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Wednesday, July 21, 2010

Fourth Circuit rejects First Amendment challenge to SC's "sore loser" statute

by Kirsten E. Small

One of the things I love about being a lawyer is that I learn something new every day. Yesterday, I learned two things: (1) A candidate who appears on the ballot for more than one party (e.g., the Green Party and the Constitution Party) is a fusion candidate, and (2) a "sore loser" law prohibits a defeated primary candidate from appearing on the general election ballot for another party. South Carolina is one of only eight states that permit electoral fusion. All but three states prohibit failed primary candidates from appearing on general election ballots.

The Fourth Circuit yesterday rejected a constitutional challenge to South Carolina's sore loser law, S.C. Code Ann. § 7-11-10, by the South Carolina Green Party. SC Green Party v. SC State Election Comm'n, No. 09-1915 (July 20, 2010). In 2008, Eugene Platt sought the nomination for SC House seat 115 from the Democratic Party, the Green Party, and the Working Families Party. After the Green and Working Families Parties had selected Platt as their nominee for the seat, Platt was defeated in the Democratic Party primary election. As a result, the sore loser law prohibited Platt from appearing on the ballot for the Green and Working Families Parties.

The Green Party sued, claiming that Platt's removal from the ballot violated its First Amendment right to freedom of association.

The Fourth Circuit rejected this challenge, holding first that the burden on the Party's associational rights was only "moderate" (as opposed to "severe") because, while the Party was deprived of its ability to nominate a particular candidate, the SC sore loser law does not permit members of one political party to select the candidate of a rival party (as was the case with the "blanket primary" law struck down by the U.S. Supreme Court in California Democratic Party v. Jones, 530 U.S. 567 (2000)). Second, the court held that SC's sore loser statute is a reasonable, nondiscriminatory restriction that is justified by important regulatory interests. These interests, the court said, are in minimizing factionalism, avoiding voter confusion, and ensuring orderly, fair, and efficient procedures for the election of public officials.

One interesting procedural note: Judge Barbara Keenan, who has been on the court for all of four months, was the lead judge on the panel (the other two judges were Senior Judge Clyde Hamilton and District Judge Samuel Wilson).

Thursday, July 15, 2010

Just don't drop it on your foot--U.S. files 268-page brief in public corruption case

by Kirsten E. Small

Update 7/21/10: The Third Circuit has directed to reduce the length of its brief to 42,000 words, about a 20 percent cut. --KES

There's an aphorism that you'll sometimes hear from appellate judges: "The longer the brief, the worse the argument." Lengthy briefs tend to appear when (1) counsel take the "kitchen sink" approach, raising every conceivable issue instead of focusing on the two or three (or maybe four) issues that have a decent chance of success, or (2) counsel fail to take the time to present a clear, concise argument.

I am guessing that both issues are at play in the 268-page, 53,500-word opening brief filed by the United States in its appeal of the sentences imposed on Pennsylvania State Senator Vincent Fumo and his aide, Ruth Arnao. That's nearly four times longer than the presumptive length of 14,000 words for a party's opening brief.

What's more, the government's appeal is directed solely to claims of procedural error at sentencing (e.g., that the court should have imposed an obstruction-of-justice enhancement based on Fumo's perjurious trial testimony). The brief is not available online, but according to the goverment's motion to file the brief, it challenges seven specific guidelines rulings and "multiple, additional procedural errors made by the district court."

In fairness to the government, the trial lasted four months and involved testimony of 108 witnesses and roughly 26 hours of closing arguments. But I'm still not buying that 268 pages is really necessary. If nothing else, I'm willing to bet that a good many of the "multiple, additional procedural errors" are not worth raising to the Court, either because they are not well supported by law or because they didn't affect the outcome of the sentencing proceeding.

The really frightening thing is that Fumo and Arnao have cross-appealed their convictions, which means that the government (as Appellee instead of Appellant) will have to file another primary brief. The judges and clerks of the Third Circuit are going to have to start eating their Wheaties.

Wednesday, July 14, 2010

Plaintiffs are not required to name all co-tortfeasors under the Tort Claims Act

by Manton Grier, Jr.

In Chester v. South Carolina Dept. of Public Safety, Op. No. 26833 (S.C. July 12, 2010), the Supreme Court of South Carolina held that a plaintiff is not required to join other co-tortfeasors for purposes of determining proportionate liability under Section 15-78-100(c) of the Tort Claims Act.

In that case, the plaintiff’s estate sued three state agencies after the decedent died in a multiple-vehicle accident on I-95 allegedly caused by heavy smoke from a controlled fire conducted by the Forestry Commission. The state agencies argued that Section 15-78-100(c) of the Tort Claims Act required the plaintiff’s estate to name all potential co-tortfeasors, even those that previously settled with the plaintiff’s estate. In actions under the Tort Claims Act, Section 15-78-100(c) provides that “when an alleged joint tortfeasor is named as a party defendant, the trier of fact must return a special verdict specifying the proportion of monetary liability of each defendant against whom liability is determined.”

The trial court read this statute as requiring the plaintiff to name all co-tortfeasors in order to determine proportional liability. It then dismissed the action under Rule 19 because the necessary parties had already settled. The Supreme Court reversed. It stated that “a plaintiff has the sole right to determine which co-tortfeasor(s) she will sue.” Requiring a plaintiff to name co-tortfeasors at the request of a defendant agency violates this principle. The statute does not “force the plaintiff to choose between settling with some parties and thereby forego her right to sue a [Tort Claims Act] defendant, or going to trial against all co-tortfeasors.” The Court also noted that the defendants still have a remedy, as any party liable will be entitled to an equitable set-off against the settlements the plaintiff has already received.

Monday, July 12, 2010

SC Supreme Court clarifies amount of time an offender may be punished for violating terms of release

Manton Grier, Jr.

In State v. Picklemeiser, Op. No. 26831 (July 6, 2010), the Supreme Court of South Carolina clarified the amount of time an offender may be incarcerated or required to participate in a community-supervision program after violating the terms of parole or release. Although the Department of Probation, Parole, and Pardon Services had refused to impose an additional sentence for a probation violation beyond the unsuspended portion of the original sentence, the Supreme Court held that the maximum amount of time that may be imposed for parole violations includes both the unsuspended and suspended sentence. In other words, when an offender violates probation or another condition, a trial court may impose a longer term of incarceration or extend community service or probation, so long as the aggregate period of service does not extend beyond the period of the total sentence, which includes both the unsuspended and suspended portions.

Friday, July 9, 2010

Bad Settlement Decisions And Failure To Make Statutory Demand Result In Pyrrhic Victory

by Gary Beaver

In Brooks Millwork Co. v. Levine, the plaintiff won its breach of contract claim at trial but the jury awarded plaintiff only $25,575.61 -- over $10,000 less than defendants highest settlement offer. Both sides moved for attorney fees – plaintiff on the basis of contract under NCGS § 6-21.2 and defendant under NCGS § 44A-35, which allows a judge to award reasonable attorneys’ fee to the “prevailing party . . . upon a finding that there was an unreasonable refusal by the losing party to fully resolve the matter. . .” A prevailing party is a plaintiff who recovers more than 50% of the amount claimed or a defendant found liable for less than 50% of the amount claimed. Plaintiff had initially claimed over $98,000 but acknowledged partial satisfaction of its lien reducing the principal amount owed to $63,358.48.

The Court of Appeals held on June 15, 2010, that plaintiff was not entitled to contractual attorney fees because it had not complied with the mandatory provision in NCGS § 6-21.2(5) requiring it to give the defendant 5 days to pay the principal amount owed to avoid the attorney fees. Plaintiff never made that demand before filing the lawsuit. Very big “OOPS.” The court then granted attorney fees and costs to defendant as the prevailing party under § 44A-35. The trial court used the $98,000 figure rather than $63,358.48. [Note: the Court of Appeals did not give a satisfactory explanation of what claimed damages number it considered and noted that “excluding contractual attorneys’ fees – to which plaintiff is not entitled. . . – from plaintiff’s calculation, the final judgment totals less than half of plaintiff’s claimed amount.” So did the plaintiff claim attorney fees as part of the $98,000 or of the $63,358.48? Did the court then exclude those claimed fees? What number did the court use as the claimed amount? Inquiring minds want to know.] The attorney fees and costs awarded to defendant totaled about $21,000 which was only about $4600 less than the damages plaintiff won at trial. It got worse. Plaintiff’s counsel was also ordered to pay sanctions to defendant in the amount of twice the printing costs of the appeal for his many violations of the appellate rules. The court listed 7 specific violations – 6 of them involving the brief.

This is a reminder to counsel your clients to be reasonable in settlement discussions and not hold out for the homerun. There is not enough detail in the decision about the merits of the breach of contract claimed damages to know if that is what happened here but, regardless, rolling the dice with the jury obviously did not work out. Also, obey the appellate rules or bear the consequences; plaintiff’s counsel was lucky the appeal was not dismissed or the consequences could have been even worse for him.

Wednesday, July 7, 2010

The “Sovereignty of the People” Prevails

by Gary Beaver

On June 17, 2010, in State Employees Ass’n of NC, Inc., v. NC Dep’t of State Treasurer, the N.C. Supreme Court reversed the decision of the NC Court of Appeals affirming a trial court’s dismissal of a complaint seeking public records under the Public Records Act, NCGS §§ 132-1 to 132-10. The plaintiff sought records regarding the investment decisions and performance of the Retirement Systems Division of the Department of State Treasurer. Plaintiff began investigating after reading a February 2007 article in Forbes magazine about “pay-to-play” issues involving state retirement pension funds. The defendant had produced hundreds of pages of documents in several installments over the course of a year but plaintiff believed that defendant had not produced all it had.

The lower court had dismissed under Rule 12(b)(6) for failure to state a claim. The Supreme Court held that the allegations were based on reasonable inferences drawn by plaintiff from the documents that were produced. For example, one produced email referred to another email not produced. The Court rejected defendant’s contention that “possession” of the sought information is a necessary element of a Public Records Act lawsuit. The Court noted that NCGS § 132-9(a) provides the cause of action and it makes no mention of a possession element. The defendant can raise that as a substantive defense but it cannot act as the final authority in deciding possession or custody of the requested public records. To allow it to do so would undermine the strong public policy favoring release of public records to increase transparency in government.

This is a sound and needed decision. Given what we have seen in recent years from Jim Black and other “public servants” while our media sat idly by not, or belatedly, investigating or reporting misfeasance and malfeasance by elected and appointed officials, the Public Records Act is the public’s last, best hope at ferreting out and preventing corruption in government.

Tuesday, July 6, 2010

Fourth Circuit upholds county furlough against Contract Clause challenge

by Kirsten E. Small

As the slow economy continues to put state and municipal governments under pressure to fund necessary services while maintaining balanced budgets, furloughs of government workers are increasingly common. In areas where local government workers are unionized, a furlough may run afoul of the Constitution's Contract Clause, which provides that "[n]o State shall ... pass any ... Law impairing the Obligation of Contracts." U.S. Const. art. I, § 10, cl. 1.

The Fourth Circuit addressed such a challenge in Fraternal Order of Police v. Prince George's County, No. 09-2187 (June 23, 2010). Nexsen Pruet represented the County; yours truly wrote the brief and the case was argued by William "Billy" Wilkins.

Faced with declining revenues and unable to raise taxes, Prince George's County declared a two-week furlough of all County employees during fiscal year 2009. The County acted pursuant to § 16-229 its Personnel Code, which allows furloughs when "required" by "an ascertained shortfall in revenue."

Approximately 80-95% of county employees are union members; the Unions challenged the furlough on the basis that the County was impairing its own contractual obligations (specifically, the wage and hour provisions of collective bargaining agreements) in violation of the Contract Clause. The Unions also argued that (1) the furloughs violated a county ordinance providing that specific terms of CBAs override contrary county law, and (2) the furloughs were not "required."

The district court rejected the Unions' claims under county law, holding (1) that the CBAs did not specifically prohibit furloughs, and therefore § 16-229 was incorporated into the CBAs as a matter of law; and (2) that the County properly determined that a furlough was "required."

However, the court held that the furlough violated the Contract Clause because (1) it impaired the County's obligations under the CBAs to pay certain wages, (2) the impairment was substantial, and (3) the impairment was not "reasonable and necessary to serve an important public purpose." U.S. Trust Co. v. New Jersey, 431 U.S. 1 (1977). The County argued on appeal that there could be no impairment because (as the district court held) § 16-229 was a term of the Unions' contracts. Alternatively, the County argued that the furlough was reasonable and necessary. A key dispute between the parties--and the aspect of the case most watched by locoal governments and unions across the country--was the degree of deference to which the County was entitled in making this determination.

The Fourth Circuit accepted the County's first argument, that the CBAs were not impaired because the furlough ordinance was, by operation of law, a term of the collective bargaining agreements. Because the CBAs therefore gave the County the right to furlough union employees when "required," and because the Unions had not cross-appealed the district court's holding that the furlough was "required" within the meaning of county law, the Fourth Circuit reversed the district court.

While this is a big win for Prince George's County, it is unclear how much help the decision will provide to other local governments facing budget shortfalls. The Court addressed only the narrow question of the impact of county law, and did not reach the larger question of when a furlough of union employees may be "reasonable and necessary" and, most importantly, the degree of deference to which a local government is entitled in making this determination.

Friday, July 2, 2010

N.C. Supreme Court Teaches Interesting Ethics Lesson

by Gary Beaver

Rule 4.3 of the N.C. Revised Rules of Professional Conduct provides in pertinent part:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:
. . .
(b) state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers’ role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

On June 17, 2010, in Sisk v. Transylvania Community Hospital, Inc. et al., the N.C. Supreme Court reversed the Court of Appeals and upheld a trial judge who had revoked pro hac vice status for two out-of-state attorneys for their conduct in a matter in another state that was inconsistent with Rule 4.3 (Note: not “a violation of” but rather merely “inconsistent with fair dealings as reflected in Rule 4.3”). The N.C. lawsuit involved a medical malpractice claim. The two attorneys had represented a plaintiff in Kentucky in a similar lawsuit and had sued Abbott Laboratories, Inc. (among others) in that case. Abbott had a consulting expert in the Kentucky case. The out-of-state lawyers contacted that expert as the Kentucky case was settling but before it was dismissed and asked him to assist on a second Kentucky lawsuit with a similar medical issue but in which they had not sued Abbott. However, at the time they contacted the expert, they knew that they were likely to add Abbott as a defendant. The expert had a contract with Abbott to assist in all cases involving the medical issue at stake in both Kentucky cases and the N.C. case. In the second Kentucky case, Abbott moved to disqualify the two attorneys for failing to advise the expert that Abbott was a potential expert and depriving Abbott of its expert. The Kentucky court denied the motion. Abbott tried again to disqualify the lawyers in the N.C. case. The N.C. court granted the motion. The N.C. Supreme Court ultimately affirmed the trial court due to the lawyers admitted intent to keep the expert “in the black” about Abbott’s potential as a defendant.

The ruling is a strong one in favor of lawyers ensuring that they are not misleading potential witnesses in any way about the lawyers’ status and the possible parties in a case. We should all give this decision some thought in the context of all witnesses, not just expert witnesses. Infrequently (but once is too often), you may have seen instances where you know other attorneys mislead or suspect other attorneys of having mislead a witness when they question that witness while investigating a case. This decision may prove to be a big stick to use in such instances.

As for the pro hac vice aspect, the Court of Appeals had correctly noted that an attorney is not subject to discipline under the NC Rules of Professional Conduct if the attorney’s conduct conforms to the rules of the jurisdiction in which the lawyer reasonably believes the predominant effect of that conduct will occur. RPC 8.5. However, though it appears that the predominant effect may have been in Kentucky, the NC Supreme Court held that the trial court did not abuse its discretion under NCGS Section 84-4.2 to revoke the pro hac vice status because it has inherent power to control trials and discipline attorneys and the fact that Rule 4.3 may not apply to this conduct does not limit the trial court from taking some guidance from the rule in exercising such discretion.

Thursday, July 1, 2010

South Carolina Supreme Court holds that County Councils may directly engage professionals to conduct investigations

By Manton Grier, Jr.

The Supreme Court of South Carolina recently held that a county council may bypass the council administrator and directly engage professionals when investigating members of the council. Bradshaw v. Anderson County, Op. No. 26830 (S.C. June 28, 2010). In that case, voters in Anderson County elected a new county council in November 2008. After the election, but prior to the installation of the new council, the former council declared an anticipatory breach of the county administrator’s contract and awarded him over $1 million.

When the new council was sworn into office, it voted to investigate several transactions by the former council and elected several accountants and lawyers to lead the investigation. Three Anderson County taxpayers brought an action to enjoin the investigation and sought a judgment declaring that the investigation violated the Home Rule Act. The trial court dismissed the Complaint under Rule 12(b)(6), and the plaintiffs appealed.

On appeal, the Supreme Court held that the Home Rule Act authorizes the Council to conduct an investigation and engage professionals to carry it out. Although the Home Rule Act states that “the council shall deal with county officers and employees . . . solely through the administrator,” it is prefaced with the limiting language of “[e]xcept for the purposes of inquiries of investigations.” S.C. Code Ann. § 4-9-660. Thus, the Court held that because the council engaged investigators “for the purpose of inquiries and investigations,” the unambiguous language allowed the council to retain outside professionals. Further, the Court stated that it would be absurd to require the administrator to investigate himself.