SCLAWYERSWEEKLY.COM VOLUME 20 NUMBER 10 ■
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S.C. Supreme Court: DUI suspects must be shown on video when receiving Miranda warnings ■ BY TERI SAYLOR, CORRESPONDENT terisaylor@gmail.com
vehicle accident was then called to a gas station, informed that a vehicle involved in the crash was there. At the gas station, the trooper found several officers “surrounding” defendant Phillip Lowery, who was standing near a vehicle with front-end damage. The trooper said that what he considered preliminary questioning about the accident became a DUI investigation that led to many incriminating statements by Lowery, including admitting that he
The South Carolina Supreme Court upheld lower court rulings requiring video recordings to visually depict a defendant under DUI charges being advised of his Miranda rights but refused to overturn a dismissal of charges against a defendant based on violations of that requirement. In a writ of certiorari, the Supreme Court’s February 23 opinion was in response to an appeal by the State of South Carolina after a magistrate court dismissed DUI charges against defendant Kenneth Taylor, whose Miranda rights procedure was not shown on video when he was arrested seven years ago. On June 11, 2015, Lance Corporal R.B. Thornton of the South Carolina Highway Patrol responded to a call for assistance during a DUI stop. Thornton administered a field sobriety test, and ultimately arrested Taylor. He placed Taylor in his patrol car, sat in the driver’s seat and began advising him of his Miranda rights without activating his in-car camera. While Thornton could be heard asking Taylor if he understood the Miranda warnings, and Taylor could be heard responding, the exchange was not shown on camera. At question was the definition of the word “show.” The case proceeded to trial before a Spartanburg County magistrate where Taylor moved to dismiss
S e e S t a t e v. P a g e 7 ►
See DUI suspects Page 7 ►
Miranda violation leads to conviction reversal ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A man who was surrounded at a gas station by police, questioned in an accusatory manner, and kept from using the telephone or the restroom was involved in a custodial interrogation that required Miranda warnings, the South Carolina Court of Appeals has ruled, rejecting prosecutors’ claims that the questioning was merely part of a routine accident investigation that “developed into” an impaired driving investigation.
The unanimous ruling reversed the man’s conviction for third-offense driving under the influence (DUI). Judge Paula Thomas noted in the April 6 opinion that while other evidence existed that the defendant was intoxicated, only his statements made prior to Miranda warnings—while in custody— were evidence that he was driving the vehicle that was involved in a crash earlier.
Sneaking suspicion
A state trooper responding to a
Former public defender can sue federal judiciary ■ BY HEATH HAMACHER hhamacher@sclawyerweekly.com While sovereign immunity will limit her claims, a former federal public defender in North Carolina can pursue claims against the judiciary for failing to take immediate and effective action regarding her sexual harassment complaints, the 4th U.S. Circuit Court of Appeals unanimously ruled on April 26. The ruling partly reverses a 2020 dismissal of the lawsuit by U.S. District Court Judge William G. Young. Because the 4th Circuit is a defendant, judges from other circuits were designated to hear the
case. The three-judge panel consisted of 10th Circuit Senior Circuit Judge Mary Beck Briscoe, 6th Circuit Senior Circuit Judge Ronald Gilman, and 8th Circuit Senior Circuit Judge Michael Melloy. In a nutshell, the court found that the Fifth Amendment to the U.S. Constitution secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. “We have no doubt, given the Supreme Court’s equivalent treatment of equal protection claims under the Fifth and Fourteenth Amendments, that they should be extended to retaliation claims brought under the equal protection component of the Fifth Amendment’s Due Process Clause,” Bris-
coe wrote.
‘Quid pro quo’ harassment
Caryn Strickland, who worked for the Federal Public Defender’s Office in the Western District of North Carolina, claims that she was harassed by her supervisor, the first assistant public defender, who “lavished” her with attention, created “shadowing” activities for her exclusively, and asked her to drink alcohol with him in work settings, looking to create a “quid pro quo” arrangement. She further claims that she was retaliated against when she See 4th Circuit Page 7 ►
INSIDE VERDICTS & SETTLEMENTS
VERDICTS & SETTLEMENTS
COMMENTARY
Trucking crash leads to $23M global settlement
COSTCO injuries lead to $1M settlement
Has the legal system failed us? Not so PFAS-t!
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2 / NEWS
S O U T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
NEWS BRIEFS $61 million in refunds for customers in SC nuclear debacle COLUMBIA, S.C. (AP) — A South Carolina judge has approved a second round of refunds for customers of a utility that poured billions of dollars into two nuclear power plants that never produced a watt of power. About $61 million is being set aside for Dominion Energy South Carolina after the utility sold a number of properties as part of the settlement of a class-action lawsuit by 1.1 million of its customers over the never completed plants at the V.C. Summer Nuclear Station near Columbia. Wednesday’s agreement will split the $61 million based on power use by residential, business and industrial customers during a decade of planning and construction for the nuclear station, media outlets reported. The checks will be similar in amount to a first round of refunds made in the lawsuit in 2019, which was based on $60 million from Dominion Energy. The nuclear project was run by South Carolina Electric & Gas. It was bought by Virginia-based Dominion in 2019 after the local utility ran out of money to finish the reactors two years earlier. Four executives of the utility or the company that was building the reactors have been indicted or have pleaded guilty to criminal charges in the failure. One remaining question is how will the refunds be issued. The 2019 refunds were all checks, and more than 10% of the money went unclaimed as checks as small as 4 cents weren’t cashed or people who were supposed to get refunds couldn’t be found. Lawyers suggested power bill credits for amounts under $50 and former South Carolina Chief Justice Jean Toal, who was put in charge of the settlement negotiations, said she would think about it.
Bond denied for former ‘American Idol’ star charged in crash SPARTANBURG, S.C. (AP) — A South Carolina judge has denied bond for a former “American Idol” contestant accused of killing a man by barreling into him with his pickup truck after using a marijuana vaping device. Country music singer Caleb Kennedy will remain in jail after his February arrest on a charge of driving under the influence resulting in death. Police say Kennedy drove his truck up a private driveway in Spartanburg County and struck Larry Duane Parris, 54, driving Parris into a building. Circuit Judge Grace Gilchrist Knie ruled Friday that Kennedy would present a danger to himself and the community if he was released from jail. Knie said she might reconsider bond for Kennedy following a psychiatric evaluation in 45 days, news outlets reported. Prosecutors at a Thursday hearing sought the bond denial and referred to a toxicology report showing Kennedy had marijuana and Prozac in his system at the time of
the crash. Kennedy’s attorney, Ryan Beasley, had asked the judge to set a $20,000 bond, citing Kennedy’s remorse and cooperation with law enforcement, according to the Spartanburg Herald-Journal. Beasley told news outlets he was disappointed in the judge’s decision. “A 17-year-old’s mental health is much better at home than in a jail,” Beasley said. Beasley has said previously that his client had been placed on suicide watch at the jail. Kennedy advanced into the Top 5 of the television talent show last year, but dropped out of the singing competition after a video circulated of him sitting next to someone wearing what appeared to be a Ku Klux Klan hood. Kennedy apologized at the time for the video, saying “it displayed actions that were not meant to be taken in that way.” Kennedy’s mother, Anita Guy, told news outlets the video was filmed when Kennedy was 12 and had been taken out of context. She said Kennedy had been imitating characters from the film “The Strangers: Prey at Night.” Kennedy’s hometown is listed as Roebuck, which is just south of Spartanburg. He faces up to 25 years in prison if convicted.
Prosecutors want boy, 12, tried as adult in school killing GREENVILLE, S.C. (AP) — A 12-year-old boy accused of fatally shooting his classmate in a South Carolina middle school hallway should be tried as an adult on a murder charge, prosecutors told a judge Monday. The prosecutors’ request to move the case out of Family Court did not include any explanation regarding why the boy should be charged as an adult. Murder carries a sentence of 30 years to life in prison in South Carolina. If he is convicted as a juvenile, he couldn’t be kept in jail after he turns 22. Jamari Cortez Bonaparte Jackson was shot during a class change at Tanglewood Middle School in Greenville on March 31. The suspect left school in the chaos but was found hiding under a nearby deck about an hour later and was still armed, investigators said. No one else was injured. Greenville County deputies have released little information about what led to the shooting. A one-page police report called it “possibly gang related” but provided no details to back up that idea. The boy is charged with murder, possession of a firearm at a school and possession of a weapon by someone under 18. He remains at a juvenile prison in Columbia, authorities said. His name has not been released because of his age. South Carolina law allows anyone of any age to be tried as an adult on a murder charge if a judge allows it. Jesse Osborne, who was 14 when he shot and killed a first-grader on the playground at Townville Elementary School in September 2016, is serving a life sentence for murder. Townville is about 30 miles (48 kilometers) from the Greenville middle school.
Deputies: SC cold case cracked through robbery link GREENVILLE, S.C. (AP) — Investigators cracked a 2015 killing after determining one of the suspects was worried the victim was going to testify against him at trial, Greenville County deputies said. Brandon Rashard Barksdale, 30, is already serving time in the South Carolina prison system. He was charged with murder last month in Alfonzo Pyles’ death. Pyles was found shot to death in a parking lot near Greer in July 2015. Cold case investigators reviewing the then unsolved killing determined Pyles and Barksdale committed an armed robbery together in 2013 and investigators were told Barksdale heard Pyles might testify against him. the Greenville County Sheriff’s Office said in a statement. A second man charged in the killing, 24-year-old Isaiah Emmanuel Irby, drove Pyles to the parking lot where Barksdale waited to kill him, deputies said. Irby is also charged with murder. It wasn’t known if either man had attorneys in the case. Barksdale is serving a 20-year sentence in the state prison system for attempted murder, carjacking, armed robbery and other charges, according to South Carolina Corrections Department records.
SC says cost to finish I-526 in Charleston triples to $2.3B CHARLESTON, S.C. (AP) — South Carolina’s road agency says the cost to build a long-debated completion of the Interstate 526 loop has tripled to more than $2.3 billion because of rising costs of land and construction. The state’s share of the Mark Clark Extension is capped at $420 million in a 2019 agreement with the Charleston County, meaning the county would need to find nearly $2 billion to complete the project — six times more than it planned. The highway would start at the west end of I-526 in West Ashley, cross on to Johns Island and run back off the island to James Island. It would end at the James Island Connector. “This, to me, is a perfect opportunity for Charleston County Council to walk away from this project,” Jason Crowley of the Coastal Conservation League told The Post and Courier of Charleston. The league has fought the new highway for years, saying it would benefit few people and harm many. A large portion of the project would go through Charleston. Mayor John Tecklenburg said the I-526 extension is vital. “Our West Ashley and island residents need and deserve the traffic relief and public safety improvements this project will bring,” Tecklenburg said in statement. The I-526 extension is separate from another project to widen the mostly four-lane interstate that links Mount Pleasant to the state port, Interstate 26 and West Ashley. The freeway has been busy because of the Charleston area’s growth. State officials said it could cost
around $7 billion to expand I-526 to eight lanes, untangle its intersection with I-26 and build or expand several bridges along the route. For the I-526 extension, the South Carolina Department of Transportation is asking Charleston County to show it still wants to fund the project, estimating the county would need to pay about $75 million to get ready for bids. “I don’t know if people are going to have an appetite for it,” said County Council Chair Teddie Pryor. “Where are we going to get the extra money from?” The project’s supporters suggest prices may soon fall, reducing the cost of I-526. Charleston Metro Chamber of Commerce said, though, that further delays show costs inevitably rise. “The current cost of the project heightens the important need of completing this effort now,” the chamber said.
High school senior is animal shelter’s largest private donor By SARAH SHERIDAN, Anderson Independent Mail undefined ANDERSON, S.C. (AP) — A Crescent High senior has spent half his life donating to Anderson County’s PAWS animal shelter. Adoption Supervisor Randi Leigh Ashley was sitting at the front desk, in shock, the first year that thirdgrader Braxton Louch walked in lugging bags of food with his family. “I did not expect this from a 9-year-old,” said Ashley, who’s worked at PAWS for 13 years. “He was one of the first kids at the time to do something of this magnitude.” Now half of a lifetime later, Louch is the agency’s largest private donor. After donating around 10 pounds of food to PAWS animal shelter to begin, he started a new tradition that brought in $10,000 last year alone. The Louches have hosted an annual Cars for a Cause for eight years and running, so it’s only fitting that Louch is turning 18 on the day of this year’s fundraiser. The event started after the thenindecisive 9-year-old asked for donations toAnderson County’s PAWS animal shelter instead of gifts for his birthday. “I just always loved animals,” the Crescent High School senior said. “I don’t like doing stuff for myself, I’d rather do stuff for other people.” After Ashley heard about his plan to donate instead of receiving birthday gifts, she wanted to thank him by posting a photo on social media. He kneeled down next to Chewy, the Chihuahua, who responded with a big smile, Ashley said. Because of that post, Chewy was adopted. Louch’s love for animals stems from a home that always took in the outcasts, said his mom Teryi Louch. That’s evident by the four dogs happily playing outside and their four cats lounging inside, all rescued. On a sunny Monday afternoon, Oreo, a Dalmatian mix, obsessed with tennis balls but ready to play fetch with any object, set a rock See Page 3 ►
S O U T H C A R O L I N A L A W Y E R S W E E K LY I May 9, 2022
VERDICTS & SETTLEMENTS / 3
Trucking crash leads to $23M global settlement ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A motor vehicle crash that took the life of one high school student and injured two others has resulted in a settlement of more than $23 million, the plaintiffs’ attorneys report. Douglas Jennings, Perry Buckner, and John Dodds IV of Yarborough Applegate in Douglas Charleston and Douglas JenJennings nings Jr. and Mason King of Douglas Jennings Law Firm in Bennettsville report that the three teens were on their way to their Pee Dee area high school in the fall of 2019 when a tractor-trailer turned left in front of them, causing a “horrific” collision that saw the plaintiffs’ vehicle lodged under the trailer and the teens entrapped. The Perry driver and the rear-seat passenBuckner ger suffered major orthopedic injuries and mild traumatic brain injuries, the attorneys said. The front-seat passenger survived for two days before she was taken off life support. The attorneys said that years of hard-fought litigation against the trucking company and its driver resulted in the multi-million-dollar settlement on the eve of the discovery deadline. “These families have suffered tremendously because of this accident,” Jennings wrote in a statement. “While money can in no way make up for the loss of a child, we are pleased with the result and happy it provides some semblance of closure to them.” Many details of the case, including the names of the parties and defense counsel, have been withheld pursuant to a confidentiality agreement, but the attorneys said that the defendant
trucking company is a sophisticated, international outfit with more than 800 trucks operating nationwide. The at-fault driver, who was previously on probation with the company and was fired after the crash, was in violation of the Federal Motor Carrier Safety AdminDouglas istration regulations regarding Jennings Jr. the number of hours he’d worked leading up to the crash, the attorneys said, adding that he had a lengthy violation history. The attorneys said that the defendant declined to speak with investigators on the scene, retained defense counsel, and chose to remain silent during the civil case, including his deposition. Mason King “There were many aggravating factors that drove the value of this case, but the driver’s assertion of his 5th Amendment right to remain silent obviously presented a big risk to the motor carrier in this case,” Jennings wrote in an email to Lawyers Weekly. The attorneys said that the trucking company dispatched an out-of-state “rapid response” expert to the scene minutes after the crash to begin mounting a defense. “We felt that the jury was going to be shocked to learn that the trucking company had an outof-state expert on the scene in this rural area not long after the helicopter landed at the hospital with our 15-year-old client who was on life support,” Jennings wrote. “The fact that they had someone at the scene so quickly and then were unable to produce basic documents, claiming they were ‘automatically deleted’ in their system was a fact we were looking forward to telling the jury.” The alleged irretrievable documents included hours of service logs and other time-stamped
SETTLEMENT REPORT — MOTOR VEHICLE CRASH/NEGLIGENCE
Amount: $23,050,000 Injuries alleged: Death, severe orthopedic injuries, traumatic brain injury Case name: Withheld Court: Withheld Mediator: Karl Folkens of Florence Insurance carriers: Withheld Date of settlement: March 21 Attorneys for plaintiff: Douglas Jennings, Perry Buckner, and John Dodds IV of Yarborough Applegate in Charleston (for the two passengers) and Douglas Jennings Jr. and Mason King of Douglas Jennings Law Firm in Bennettsville (for the driver) Attorney(s) for defendant: Withheld documents, but the plaintiffs gained momentum, the attorneys said, when a judge granted them access to the trucking company’s fleet management software systems. “Understanding and pursuing the data collected from a motor carrier’s telematics system is absolutely critical in any case involving a sophisticated tractor trailer,” Jennings wrote. Defense counsel argued that the plaintiff driver caused the crash by speeding, opining that they were traveling approximately 80 mph in 60 mph zone. Plaintiffs contended that they were traveling approximately 70 mph and that the vehicle had trouble stopping due to excessive crack sealant on the roadway. The attorneys said that damages were heavily disputed and that the decedent, a student-athlete well-regarded in the community, endured approximately 10 minutes of conscious pain and suffering before her brain activity fell below a certain level.
COSTCO injuries lead to $1M settlement ■ BY DAVID BAUGHER
Jurors have ruled that a wholesale club was partially responsible for a million dollars in damages suffered by a Greenville County woman hurt by another customer’s cart because the shopping conveyance was stacked too high. The matter was later settled. Attorney Cameron “Bozzie” Boggs of Boggs Law Firm said that his client Frieda Elledge was entering the store at the same time another man was leaving. “He had boxes stacked higher than his sight line so we sued Costco based on the theory that they created the environment,” said Boggs. “He bought goods from them and they provided the empty box that was stacked on top of the goods and they allowed him to walk having impaired vision.” When the other party turned, Elledge was struck by the cart. Boggs said his client suffered a brain bleed, a broken arm with pins inserted, tinnitus in the ears and anxiety from the incident. He said Costco argued the encounter was not their fault and that the third party involved or the plaintiff herself bore responsibility for the mishap. However, Boggs said that an employee of the defen-
C o nt inu e d f r o m 2 ►
down at Louch’s feet. Meanwhile, Buddy, a Bully mix, trotted over for a pat before wandering on his own adventure. “As a mom, I can’t express how proud I am of him,” she said, of Braxton’s decision to give to the shelter annually. “He is one of the most giving, humble people I’ve ever met.” The family has hosted the car show that benefits Anderson County PAWS for the last eight years at the Civic Center of Anderson. The event will have vendors, food and raffles along with a vehicle show.
dant was checking receipts of customers exiting the store and should have seen any dangers associated with the stack of boxes. He also said it was likely that the cart was packed by representatives of the store. “Ninety-five percent or more of all carts are stacked by Costco employees,” he said. “When I asked about their policy, it was that they shouldn’t be stacked above the rim of the carts. They provide flatbed carts if you have a lot of goods.” Boggs said that the defendant’s premises had video equipment but they were unable to locate any footage of the checkout process or the collision. He said no punitive damages were sought in the matter. Jurors ultimately found Costco only 60 percent responsible for $1 million worth of injuries to Elledge and put 30 percent fault on the other customer who was earlier dismissed from the suit. Ten percent responsibility was assigned to the plaintiff. Boggs said that a settlement was reached with the defendant after the verdict. The terms of the agreement were confidential. He listed Steve Pugh and Wilder Harte of Richardson, Plowden & Robinson as representing the defense. They did not return a request for comment. Animals will also be available for adoption through PAWS and Ashley said they typically bring at least 10. The shelter currently has an abundance of animals, she said. Louch’s love of cars comes from his dad who has a satin black 1959 Cadillac Coupe de Ville. Darren Louch was tinkering away at trophies Monday afternoon using pieces of car parts to form dog heads or funny wrench-armed figures. Braxton Louch was gifted his first car when he was 11, it was at the fundraising event that year. It is a bright yellow 1968 Dodge Charger, affectionately called “Daisy.” Cars and animals, what better way to cel-
VERDICT and SETTLEMENT REPORT – PREMISES LIABILITY
Amount: $1 million (not including allocation of fault) Injuries alleged: Brain bleed, broken arm Case name: Frieda Elledge; John Elledge v. Costco Wholesale Corporation Court: Greenville Court of Common Pleas Case No.: 2018CP2305124 Judge: Verdin Date of verdict and settlement: March 16 and April 6, 2022 Demand: Offer of judgment for $75,000 Highest offer: $0 Attorney for plaintiff: Cameron “Bozzie” Boggs of the Boggs Law Firm in Greenville Attorneys for defendant: Steve Pugh and Wilder Harte of Richardson, Plowden & Robinson in Columbia
ebrate his birthday next month than with the event that combines both. “Every year’s just gotten bigger,” he said. “It’ll be bigger this year than it was last year.” His classmates at Crescent High are joining in the effort by gathering food with a goal of 3,000 pounds, said Dylan McCullough, a spokesperson for Anderson School District Three. “The impact it has had on the shelter has been amazing,” Ashley said. “It’s something the staff looks forward to every year, the whole community looks forward to it.” The event will take place 1-5 p.m. on May 22 at the Anderson Civic Center.
4 / COMMENTARY
S O U T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
Has the legal system failed us? Not so PFAS-t! ■ BY DAN SMITH This weekend I was mildly concerned to see a news article stating that the wrappers for the oh-so-delicious chicken sandwiches I enjoy likely contain PFAS (per- and polyfluoroalkyl substances). Even more recently, a proposed class action was filed in the Southern District of Illinois against the keeper of the golden arches, alleging that the PFAS content in its food and food wrappers has injured customers. (Clark v. McDonald’s Corporation, 3:22-cv-00628, filed March 28, 2022). At least some of the family of chemicals known as PFAS likely have health impacts on humans. With continuing advancements in analytical chemistry, PFAS can be detected in the parts per trillion and, for nearly ten years, have been the subject of much study—and, increasingly, lawsuits—throughout the country. The federal government appears to be proceeding deliberately towards greater regulation of PFAS using existing regulatory structures. But if PFAS has made it into my chicken sandwich, I have to ask myself, has the legal system failed us? Having pondered for the past few days and eaten one (quite delicious) sandwich in the interim, I think the answer is no.
Human civilizations have a long history of causing ourselves trouble with our own activities— and then growing, adjusting and improving. A classic example is the human waste problem and all the wonderful diseases we can give ourselves (cholera, typhoid, parasitic diseases, etc.) if our waste is not handled in a sanitary manner. After dozens of epidemics and outbreaks, we learned to separate ourselves from our waste and treat our sewage. I also think back to DDT, Rachel Carson and Silent Spring, where the chemical at issue (and its degradation products: the chemicals produced when DDT breaks down) interfered with calcium transport in the ovarian glands of birds leading to thinner eggshells and declining bird populations. During my wonderful liberal arts education, I took a history of public health class where I wrote a paper on James Whorton’s 1975 book, Before Silent Spring: Pesticides and Public Health in Pre-DDT America. Whorton addressed the use of lead and arsenic pesticides on various food crops, including apples. I still recall an apple salesperson being quoted sometime in the early 1900s as saying you would have to eat a whole bushel of apples to get sick. (Unfortunately, at that time, there was
no appreciation for the chronic impacts of lead and arsenic exposure.) Within the legal system, I am reminded of the layers of protection that have developed in our nation over nearly 250 years. Statutes like the Clean Water Act, Safe Drinking Water Act and Resource Conservation and Recovery Act are generally intended to be forward-looking, creating a regulatory system that is intended to prevent society from injuring itself. Moreover, assuming consensus can be built among legislators, new statutes could be passed. If the statutory scheme fails to protect us adequately, torts and other common law claims provide a backward-looking approach, allowing injured parties to seek payment from the bad actor who caused them harm. Admittedly, the system is imperfect and has its troubles. But the law does grind on towards justice. In the meantime, I think I’ll have another sandwich. Dan Smith, a partner at Brooks Pierce, focuses his law practice on matters involving environmental, commercial, education, and state constitutional law. A former educator and environmental scientist, Dan represents businesses, boards of education, and individuals in state, federal, administrative, and appellate courts.
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Loose bolts lead to engine fire, $1M settlement
Weekly is compiled at substantial expense
■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com
not be republished, resold, recorded, or used
A father and son who were severely burned in a flash fire on their boat have settled their lawsuit for the insurer’s policy limits of $1 million, their attorneys report. Kenneth Berger of Columbia and Myrtle Beach and C. Nicholas Cronauer of Sycamore, Illinois, report that their clients suffered second- and third-degree burns over much of their bodies when they tried to use their boat for the first time since having its engine replaced. The fire engulfed the boat, the attorneys said, but it could’ve been worse. “Because the engine bay was open, the explosion was contained to a flash fire rather than an explosion with shrapnel because the flame could escape from the engine bay being open,” the attorneys wrote in an email to Lawyers Weekly. The attorneys said that bolts and stud nuts meant to secure cables and wires to battery terminals were loose and that none of the battery connections employed a safety lock washer to ensure proper torquing and mitigate loosening over time.
“The gap between the nut and the terminal created a spark upon initiating the bilge pump,” the attorneys wrote. “Properly fastened nuts would not spark.” Of five bolts present to secure the boat’s fuel level sender to the top of the fuel tank, none were in the flange holes and just one was found in the fuel sender area, the attorneys said. This caused the fuel sender to be adrift and unable to seal the 2-inch hole in the top of the fuel tank where the sender is mounted. “Therefore, with the combination of the right fuel amount and pitch attitude of the vessel fuel can leak out of the mounting opening and into the bilge of the boat,” the attorneys wrote. Many of the case’s details were withheld pursuant to a confidentiality agreement, including the names of the parties and defense counsel, but the plaintiff’s attorneys said that the repair shop claimed that it was not responsible for the fuel leak and explosion, denying having ever accessed and replaced the fuel level sender. While the invoice corroborates this, the attorneys said, it did replace the main fuel line just eight inches away from fuel level sender. “Plaintiff argued even if not re-
SETTLEMENT REPORT — BOAT FIRE/PERSONAL INJURY
Amount: $1 million Injuries alleged: Second- and third-degree burns to both plaintiffs Case name: Case was settled before any suit was filed Venue: Horry County Date of settlement: Jan. 27 Special damages: $241,694.24 Most helpful experts: John Bloomfield of Hilton Head Insurance carrier: Withheld Attorneys for plaintiff: Kenneth Berger of Columbia and Myrtle Beach and C. Nicholas Cronauer of Sycamore, Illinois Attorney(s) for defendant: Withheld placed or otherwise loosened for the install, the shop was in the vicinity of the fuel sender lever and should have seen the cap was not screwed in,” the attorneys wrote. The attorneys said that both plaintiffs have recovered well and healed without substantial disfigurement.
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6 / NEWS
S O U T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
Alien child can seek waiver of removal despite parent’s death ■ BY NICHOLAS A. HURSTON The Board of Immigration Appeals, or BIA, erred when it found a petitioner ineligible for waiver of removal because his U.S. citizen father was no longer living, the 4th U.S. Circuit Court of Appeals has ruled. In an opinion written by Judge Toby J. Heytens and joined by Judges Julius N. Richardson and Allison Jones Rushing, the court concluded that the relevant statute did not require the petitioner to be the son of a living U.S. citizen to be eligible for waiver of removal. The Mar. 23 opinion is Julmice v. Garland (VLW 022-2-081).
Waiver petition
Evens Julmice applied for and received an immigrant visa as an unmarried child of a U.S. citizen while his father was alive. Julmice was later found to have misrepresented his marital status at the time of his application, which made him removable from the country. The U.S. Attorney General has discretion pursuant to 8 U.S.C. § 1227(a)
(1)(H)(i)(I) to waive removal for any alien who “is the spouse, parent, son, or daughter of a citizen of the United States.” An immigration judge denied Julmice’s waiver request, relying on the BIA’s decision in Matter of Federiso that a deceased parent is not a qualifying relative for waiver eligibility purposes. Julmice appealed to the BIA, noting that the 9th U.S. Circuit Court of Appeals had rejected the reasoning in Federiso and concluded that a livingparent requirement was contrary to the statute. Without analyzing the Ninth Circuit’s reasoning, the BIA declined to revisit Federiso and affirmed the immigration judge’s decision.
Statutory silence
Heytens reviewed the BIA’s interpretation of the waiver statute under the framework set forth in Chevron, which provides traditional tools of statutory construction should be used to determine “whether Congress has directly spoken to the precise question
at issue.” If the answer remains unclear, only then should the court move on to consider whether agency’s views on the meaning of the meaning of the statute are reasonable, the Fourth Circuit said. Here, Heytens wrote, the subject of the sentence in the waiver provision is “the alien seeking the waiver, and the relevant verb (‘is’) appears in the present tense. In contrast, there is no present-tense verb (or any verb at all) applicable to the citizen parent.” Given this, said the court, “‘an ordinary speaker of English would say that’ a still-living child remains the child of a deceased parent.” The BIA took the position that the statute’s “silence” regarding whether the citizen parent must be living meant the court should proceed to step two of the Chevron analysis. But the Fourth Circuit disagreed. “Saying the statute is ‘silent’ about whether the parent must currently be alive is just another way of saying Congress chose not to include such a requirement, and the government cannot invoke that silence ‘to impose unilater-
ally novel substantive requirements beyond those’ Congress enacted,” Heytens wrote. The court said that the BIA’s argument that Julmice was no longer the child of a U.S. citizen because his father was no longer a citizen after his death fails because “[t]he statute asks whether Julmice ‘is’ the son of a U.S. citizen, not whether his father is still a U.S. citizen following the father’s death.” Finding that “other provisions of the Immigration and Nationality Act repeatedly refer to ‘citizens’ in situations where context makes clear the citizen in question may — or even in one instance, must — be deceased,” the Fourth Circuit vacated and remanded the BIA’s decision. Julmice was represented by Jennifer S. Varughese of Roth Jackson Gibbons Condlin in McLean. Varughese said she had never seen a case like Julmice’s but felt the decision was a “no-brainer” after reading the Ninth Circuit’s reversal of Federiso. She said other attorneys have told her they expect this decision will help their clients in seeking removal waivers.
stance of the plaintiffs’ opening brief addressed sanctions as they applied to both Lokhova and to Biss, with two pages devoted entirely to Biss.
hova self-published her book. Niemeyer noted that, while Lokhova and Biss made several credible claims about the true purpose behind Halper’s letters, his intent in sending the letters is ultimately a question of fact that can’t be resolved on the “thin record” before the court. “Only after discovery and the development of a fuller record can it be determined whether Halper is able to show that the letters qualify for absolute privilege under Virginia law as (1) ‘made preliminary to a proposed proceeding,’ (2) ‘related to a proceeding contemplated in good faith and under serious consideration,’ and (3) ‘disclosed to interested persons,’” the judge wrote. “Because the district court’s conclusion that the complaint was frivolous depended on Halper’s proving these elements to show the applicability to the letters of the absolute privilege as an affirmative defense … the court erred in reaching that conclusion, as it should not have determined that the intent element of the privilege was satisfied on the basis of such a limited record.” Niemeyer added that, “At bottom, it is clear that the district court could not have concluded, based on the record before it, that Lokhova’s complaint ‘had no chance of success.’”
Sanctions vacated Defamation, tortious interference claims not frivolous By Nicholas A. Hurston Where a claimant’s defamation suit was dismissed with a warning that further frivolous pleadings might justify sanctions, her subsequently filed claims based on new conduct were not frivolous and did not warrant sanctions. The 4th U.S. Circuit Court of Appeals reversed the Eastern District of Virginia’s dismissal of the subsequent complaint and vacated the sanctions imposed on the plaintiff and her attorney. “[W]hen the same cast of characters, accusing each other of making defamatory statements about some of the same historical events, came before the district court in this case, the parties’ litigation history appears to have played a significant role in the court’s reaction, causing the court to devalue the fact that [plaintiff’s] second complaint presented claims based on new, distinct facts,” Judge Paul V. Niemeyer wrote. The district court erred by finding that absolute privilege rendered the complaint frivolous with “no chance of success.” Niemeyer’s April 5 opinion, Lokhova v. Halper (VLW 022-2-084), was joined by Judges G. Steven Agee and Albert Diaz.
‘Contentious litigation history’
In May 2019, Russian-born author and academic Svetlana Lokhova sued Stefan A. Halper, a “veteran political operative,” for defamation in a 73-page complaint that Niemeyer characterized as acrimonious, unprofessional and excessively long. Lokhova claimed Halper was the source of accusations that she was a Russian spy having an affair with Gen. Michael Flynn in furtherance of her mission, according to the opinion. Halper moved to dismiss the complaint as untimely. He also asserted that the complaint was filed in bad faith and moved for sanctions against Lokhova and her attorney, Steven Biss. The district court dismissed the complaint. Rather than imposing sanctions, it warned Biss that filing any further
inappropriate or frivolous pleadings might warrant sanctions. Ten months later, Biss filed another complaint for Lokhova, this time claiming that Halper and his attorney contacted publishers of Lokhova’s thenforthcoming book with the sole purpose of causing her book contract to be cancelled. Lokhova demanded $5 million for defamation and tortious interference. Biss attached to the complaint two letters Halper delivered to Lokhova’s publishers, which she alleged made numerous false statements about her. These letters accused the publishers of defaming him in their marketing materials for Lokhova’s book and requested a public retraction. According to Lokhova, the publishers were motivated by Halper to cancel her contract despite already having thousands of online preorders and a reasonable expectation to sell more than 500,000 copies. Halper immediately moved for sanctions against Lokhova and Biss. He acknowledged sending the letters, but claimed they were absolutely privileged. Thus, the complaint was frivolous. The Eastern District of Virginia agreed. It dismissed the complaint in May 2021, and ordered that Lakhova and Biss were jointly and severally liable for sanctions in the amount of $33,875. When Lokhova and Biss appealed, Halper claimed the appeal was frivolous and requested sanctions before the Fourth Circuit. Lokhova and Biss retorted that Halper’s sanctions request was itself frivolous and sanctionable.
Waiver
Halper argued that Biss failed to perfect his own appeal of the sanctions because he was not explicitly identified as an appellant on the notice of appeal. Alternatively, he claimed Biss waived his arguments by not making them in the opening brief. Niemeyer was unpersuaded, writing that while “Biss is not explicitly identified as an appellant […] the substance of each notice made it objectively clear that both he and Lokhova were appealing.” The court further held that the sub-
Defamation
Lokhova and Biss first argued on appeal that the litigation privilege asserted by Halper applied only to defamation, not to tortious interference. Niemeyer agreed, noting a 2021 decision from the Virginia Supreme Court — Givago Growth, LLC v. iTech AG, LLC — which upheld “preexisting principles” that absolute privilege doesn’t apply to non-defamation torts in Virginia, including tortious interference. Halper argued that the privilege did apply to Lokhova’s tortious interference claim because it had a “shared basis” with and was “inextricably tied” to her defamation claim. The court rejected that contention. “This argument … fails to recognize the distinct elements for the two torts under Virginia law, which make clear that pre-litigation demand letters, even if not defamatory, could constitute tortious interference,” the opinion pointed out.
Privilege
Lokhova and Biss next asserted that Halper failed to meet the requirements to qualify for the privilege under Mansfield v. Bernabei. They claimed Halper did not “genuinely contemplate the filing of a lawsuit,” adding that his intent was exposed because he never threatened legal action in his letters to the publishers and he never filed suit when Lok-
Current Status
On April 19, Halper petitioned the Fourth Circuit for a panel rehearing or rehearing en banc, which stayed the mandate of the court pending its ruling. Attorneys for the parties did not respond to a request for comment.
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STATE V. / Miranda violation leads to conviction reversal C o nt inu e d f r o m 1 ►
had been driving the vehicle. Lowery, the trooper said, smelled like alcohol and had slurred speech. After field sobriety tests indicated that Lowery was impaired, troopers said, he was placed under arrest for DUI and advised of his Miranda rights. At a pre-trial hearing, the trooper admitted that the questioning was “accusatory” because he believed that Lowery was involved in the accident, but Greenville County Superior Court Judge Robin Stilwell found the questions relatively “innocuous” and asked in furtherance of a routine traffic violation. Lowery unsuccessfully motioned for directed verdict, arguing that the state failed to provide evidence that he was driving a vehicle. He was convicted and sentenced to two years in prison.
Nothing ‘routine’ about this
The appeals court panel agreed with Lowery’s argument that the trial court erroneously admitted statements he made before being Mirandized because he was in custody and being interrogated when he made them, rejecting the state’s position that Lowery was not in
custody because the interaction was “merely a routine traffic stop,” which does not constitute custodial interrogation for purposes of Miranda. The court found that the questioning was more than a routine traffic stop, noting that the trooper initially went to the scene of the crash, was given a description of Lowery’s vehicle, and admitted that his questioning was accusatory. It then turned to the question of whether Lowery was “in custody”— a formal arrest or restraint on freedom of movement of the degree associated with formal arrest—for purposes of Miranda, which requires a look at the totality of the circumstances. In 2003, the court held in State v. Evans that a custodial determination is an “objective analysis based on whether a reasonable person would have concluded that he was in police custody.” Here, Thomas noted that Lowery was surrounded by numerous officers who restricted his movement and denied his request to use the restroom and telephone, and that he was questioned as a suspect rather than as a witness by a trooper who initiated the interrogation and admitted that he believed
that Lowery had been driving the vehicle. “Given these factors, we find a reasonable person in Lowery’s position would have believed he was in custody,” Thomas wrote. “Accordingly, we find there was a custodial interrogation that necessitated Miranda warnings.” Thomas further found that the failure to timely give Miranda warnings was not harmless because while officers testified that Lowery was intoxicated, no direct evidence existed that he was driving the vehicle except his statements made during the investigation. “Therefore, Lowery’s incriminating statements made prior to Miranda warnings, while being interrogated and in custody, could reasonably have affected the verdict,” Thomas wrote. Judges Stephanie McDonald and Blake Hewitt concurred in the decision. Senior Assistant Deputy Attorney General William Blitch and Assistant Attorney General Ambree Muller of Columbia and Solicitor William Wilkins III of Greenville represented the state. Court records show that the state has petitioned the court for rehearing, asserting that the court overstepped
its power by completely reevaluating the facts to determine whether Lowery was in custody rather than determining whether evidence supports the trial court’s ruling that he was not. Lowery’s attorney, Assistant Appellate Defender Taylor Gilliam, said that one of the judges at oral argument remarked that it was nice to have a clear record with honest testimony from the trooper. “His candid testimony allowed the Court of Appeals to hold that Mr. Lowery was in custody at the time of the interrogation,” Gilliam said. “I’m hopeful that on retrial … defense counsel is able to get a directed verdict for him.” The court further found that dash cam video introduced at trial failed to comply with the state’s DUI statute requiring that all sobriety tests and Miranda warnings must be captured on video. The court noted that the video transported to it stops playing approximately five minutes into the 12-minute video. The final sobriety test and Miranda warnings are not visible, Thomas wrote. The nine-page decision is State v. Lowery (Lawyers Weekly No. 011019-22). The full text of the opinion is available online at sclawyersweekly.com.
DUI SUSPECTS / S.C. Supreme Court: DUI suspects C o nt inu e d f r o m 1 ►
the DUI charge because the video recording did not “show” him being advised of his Miranda rights as per language from subsection 56-52953(A). In its argument against dismissal, the State contended that even if a defendant is not seen on the video recording while being advised of his Miranda rights, the recording still “shows” the advisement of Miranda if the defendant and arresting officer can be heard. The courts disagreed. “The circuit court affirmed the magistrate court, the court of appeals affirmed the circuit court, and we granted the State’s petition for a writ of certiorari to review the court of appeals’ decision,” Justice George C. James wrote for the Supreme Court. He went on to affirm the court’s findings that the magistrate court correctly interpreted the meaning of the word “show” as used in subsection 56-5-2953(A), and while upholding the dismissed charges
in this case. The court further held that the state’s case ignored the South Carolina General Assembly’s 2009 amendment to subsection 56-52953(A), which changed the statute stating video recordings “must include the reading of Miranda rights” to new language specifying that video recordings must be available to “show” the person being advised of his Miranda rights. “The General Assembly could have retained the prior language or used other terms, but it intentionally amended the statute to add a visual requirement,” Justice James wrote. “The General Assembly chose to amend the statute as it did, and we cannot engage in forced construction of the words the General Assembly chose to employ.” The court agreed one of the primary purposes of the DUI video recording requirement is to ensure transparency and appropriate procedures that protect defendants’ rights. In the second matter regarding
dismissal of the DUI charges over the failure to show the defendant receiving his Miranda rights, the court allowed there are a variety of failures and procedures that may go wrong, and outcomes will vary, but generally in those cases, charges should not be automatically dismissed. “Assume that in a setting similar to the one in which Taylor found himself, the video recording did not visually depict the administering of Miranda rights to a DUI defendant and assume the defendant did not utter a written or verbal word to law enforcement from the beginning of the encounter through the end of the DUI trial,” James wrote. “It would be absurd to require per se dismissal of the DUI charge simply because Miranda warnings were not visually depicted on camera.” Instead, he suggested other remedies may be put in place to address violations of the video recording statute. James went on to write that the Supreme Court “affirms the court of appeals’ holding that subsection 56-
5-2953(A) requires a video recording to visually depict a defendant being advised of his Miranda rights at the incident site, and because the question of whether per se dismissal of Taylor’s DUI charge was appropriate is not before us, we affirm the dismissal. However, we hold that from this point forward, suppression of tainted evidence flowing from the failure to administer Miranda warnings in accordance with subsection 56-5- 2953(A) — not per se dismissal of the DUI charge — is the proper remedy.” Attorney General Alan McCrory Wilson and Senior Assistant Deputy Attorney General William M. Blitch Jr., both of Columbia; and Solicitor Barry Joe Barnette, of Spartanburg, represented the state. Kenneth Taylor, of Inman, appeared on his own behalf. The 9-page decision is State v. Taylor (Lawyers Weekly No. 010008-22). The full text of the opinion is available online at sclawyersweekly.com Teri Saylor is a writer in Raleigh, N.C.
4TH CIRCUIT / Former public defender can sue C o nt inu e d f r o m 1 ►
reported the alleged abuse and that the office normalized “bullying, sexism, homophobia, racism, and mockery of disabilities,” promoting those responsible for the conduct and punishing those who complained. Strickland alleges that rather than taking proper action when she reported the harassment, the federal public defender required her to continue to work under and meet with the first assistant and that he reclassified her job and denied her a promotion. Strickland said that she tried to “self-manage” the situation before
unsuccessfully attempting to solve the issues informally through the Administrative Office of the United States Courts. As part of the first two steps of the 4th Circuit’s Employment Dispute Resolution Plan (EDR Plan), Strickland filed a request for counseling and a wrongful conduct report and a request for mediation. Ultimately, after “delays, procedural irregularities, and no resolution,” Strickland resigned in March 2019 and claims that she was constructively discharged. Strickland filed suit in 2020, alleging violations of her due process and equal protection rights, but the district court dismissed those claims,
finding that claims against the defendants in their official capacity were precluded by sovereign immunity and that claims against defendants in their individual capacity failed to state any cognizable claims for relief.
Deliberate indifference impermissible
Briscoe noted that the EDR Plan was implemented by the 4th Circuit because federal judiciary employees have no remedies under the Civil Service Reform Act and are not covered by Title VII of the Civil Rights Act, and that judiciary employees in management roles can be held liable
for deliberate indifference to sexual harassment “committed by a federal judiciary employee or supervisor against another federal judiciary employee.” The court held that the Fifth Amendment’s equal protection clause guards against sexual harassment by other federal judiciary employees and “protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.” While the circuit’s EDR Plan S e e P a g e 11 ►
8 / OPINION DIGESTS
S O U T H C A R O L I N A L A W Y E R S W E E K LY I M ay 9, 2022
Opinions Real Property Church Property – Trusts – Church & Diocesan Canons – Conformity, Allegiance & Accession In a case involving property ownership in the aftermath of many parishes’ secession from the Episcopal Church in the United States of America (National Church), we interpret the five separate opinions entered in this court’s 2017 ruling on this case to determine that 14 parishes hold all their real and personal property in trust for the National Church. The remaining 15 parishes in this case did not create trusts under South Carolina law, and those 15 parishes retain ownership of their property.
Background
In the 1970’s, a dispute arose in the National Church over the ordination of women. One result of that dispute was the Dennis Canon: “All real and personal property held by or for the benefit of any
Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains part of, and subject to this Church and its Constitution and Canons.” In 1987, the Lower Diocese in South Carolina adopted, as its own canons, a version of the Dennis Canon (the Diocesan Canon). In order to establish the existence of a trust under South Carolina law, the party claiming to benefit from the trust must prove, inter alia, (1) the party creating the trust took present actions – in writing – documenting both the creation of a trust and the placing of specified property in it and (2) the documents creating the trust indicate that the owner had the present intent for the writings to create a trust for the particular beneficiary.
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After the National Church began ordinating gay priests, several South Carolina parishes withdrew from the National Church. At issue in our 2017 decision and again here is the question of who now owns these parishes’ property.
Parish Analysis
Trinity Episcopal Church, Pinopolis, appears not to have taken any action that could be argued to have created a trust. Four other parishes did nothing more than to pledge or affirm, in their constitutions or bylaws, allegiance to the National Church and its teachings, or to acknowledge the National Church and the Lower Diocese’s religious authority. Without more, their promise to follow the religious teachings of the National Church and the Lower Diocese cannot deprive them of their ownership rights in their property. The St. Helena Parish said it “pledges to adhere to the doctrine, discipline, and the worship” of the National Church and that any of its bylaws that “may be in conflict with the canons” of the National Church or the Lower Diocese “shall be considered null and void.” The use of the word “pledges” contemplates future action. This language does not show a present action necessary to create a trust, nor does it indicate the intent necessary to create a trust based on the Dennis Canon. Five parishes said in their governing documents they were organized and/or operated pursuant to the canons of the National Church and the Lower Diocese. We view “organizing” and “operating” a church as different from, and not involving, the disposition of real estate by creating a trust. St. Paul’s Episcopal Church of Bennettsville stated in its 2002 Articles of Incorporation not only that it was “organized under” the canons of the National Church and the Lower Diocese, but also that it was “subject to” the canons. The lan-
guage “subject to” refers to future action, not the present action of the property owner that is necessary to satisfy the first element mentioned above. Three parishes amended their constitutions or bylaws after the National Church adopted the Dennis Canon in 1979 to include phrases such as we agree “to be bound by” or “to conform to” the Canons of the National Church and the Lower Diocese. There is no specific reference to the Dennis Canon. These statements contemplate how a parish is going to act in the future. Future compliance with the Canons is not present action and does not indicate these Parishes had the present intent necessary to create a trust based on the Dennis Canon. Nine parishes amended their constitutions or bylaws after the National Church adopted the Dennis Canon in 1979 and after the Lower Diocese adopted the Diocesan Canon in 1987 to include phrases such as we “adopt” or “accede to” the canons of the National Church and the Lower Diocese. The parishes that used this language took present action that created the trust the National Church and the Lower Diocese recited in their canons. These parishes’ actions satisfy the two elements described above. Four parishes went further to recognize the Lower Diocese’s beneficial interest in their property. This recognition is additional evidence of these parishes’ intent to create a trust in favor of the National Church and its diocese. Finally, St. James’ Church, James Island, recited a version of the Dennis Canon in its own constitution. Verbatim recitation of the Dennis Canon is clearly sufficient to create a trust.
Parish Analysis Summary
According to the five opinions of this court in its 2017 opinion, express accession to the Dennis Canon is sufficient to create a trust under South Carolina law. “Express acces-
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sion” occurs under the 2017 Court’s collective ruling when the governing body of a parish states in an official document of the parish, such as a constitution or bylaws, that the parish “adopts” or “accedes to” the canons of the National Church, coupled with the parish’s knowledge of the Dennis Canon and participation in adopting the Diocesan Canon indicating the present intent to create a trust. The parish’s formal adoption of the constitutional provision or bylaw satisfies the writing and signature requirements of our trust law. Under these circumstances, the formal adoption of the document indicates the governing body of the parish took the action with the intent of complying with the National Church’s demand set forth in the Dennis Canon and thus intentionally created a trust. Under this analysis, we are satisfied that 14 parishes created a trust in favor of the National Church and its diocese by their “express accession to the Dennis Canon.” The remaining 15 Parishes, however, either did not take the necessary actions or did not have the requisite intent to create a trust under South Carolina trust law. On the 2017 court, three justices would have held that the trusts in this case are irrevocable. We adhere to the votes those justices cast in 2017. Moreover, three justices in 2017 decided the disassociated diocese (after separation from the National Church) and the Trustees of The Protestant Episcopal Church in South Carolina hold all of their real
and personal property in trust for the benefit of the National Church and the associated diocese. We adhere today to the votes those justices cast in 2017.
Concurrence
(Beatty, C.J.) In 2017 I held the deciding vote. I did not vote to end the case in 2017. Rather, I intended to reserve final judgment as to each individual parish until the circuit court decided on remand whether each individual parish acceded to the Dennis Canon.
Concurrence
(James, J.) In my view, Justice Toal was correct in 2017—express accession to the Dennis Canon was not enough to create a real property trust under South Carolina law; however, that ship has sailed. Try as I might, I cannot disagree with Justice Few’s dissection of the 2017 opinions and his analysis of each parish’s real property; therefore, I reluctantly concur. Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church (Lawyers Weekly No. 010-018-22, 36 pp.) (John Few, J.) (Donald Beatty, C.J., & George James, J., concurring separately) Appealed from Dorchester County Circuit Court (Edgar Dickson, J.) Bert Glenn Utsey, Kathleen Chewning Barnes, Thomas Tisdale, Allan Holmes, David Booth Beers and Mary Kostel for appellant; Alan Runyan, William Bryan, Thomas Christian Davis, Albert Lacour, Charles Williams, Susan Pardue MacDonald, Mark Phillips, Peter Brandt Shelbourne, Pierce Campbell, James Kent Lehman, Mitchell Brown, Ivon
Keith McCarty, Timothy O’Neill Lewis, Henry Grimball, Robert Horger, Allan Poe Sloan, Andrew Spencer Platte, Thornwell Sowell, Bess Jones DuRant, William Foster Gaillard, Joseph Wilson, David Spence Cox, William Scott, Harry Roberson Easterling, Mark Evans, Francis Marion Mack, David Marvel, David DeVane, Henrietta Golding and John Furman Wall for respondents. S.C. S. Ct.
Criminal Practice CSC with a Minor – Expert Testimony – False Memories – Violence against Others In this case involving a victim’s delayed disclosure about sexual abuse by her mother’s boyfriend, when the trial court decided to exclude a defense expert’s testimony about false memories, the court made the determinations required by Rule 702, SCRE, including relevance. Although the expert indicated that schizoaffective disorder (from which the victim suffered) could result in false memories, he also acknowledged false memories could occur in the absence of the disorder, which casted doubt on a causal link. Furthermore, the expert said he would need to evaluate the victim, or at least review her records – neither of which he had done – to opine on whether the victim’s memories of the alleged abuse by defendant were false. Finally, because of the absence of any evidence that the victim fabricated or otherwise imagined her recollections of her past abuse, the probative value of the expert’s proposed testi-
mony would have been substantially outweighed by the possibility that it would confuse the issues or mislead the jury. The restriction of the expert’s testimony was within the trial court’s discretion. We affirm defendant’s convictions of criminal sexual conduct with a child in the first degree and lewd act upon a child. Defendant argues the trial court abused its discretion in allowing a prosecution expert to testify about the risk factors of childhood sexual abuse because the subject matter of the testimony was not beyond the ordinary knowledge of the jury. However, in State v. Acker, Op. No. 5892 (S.C. Ct. App. Filed Jan. 19, 2022), this court found an expert’s testimony concerning risk factors such as substance abuse in the home, a child’s age, a child’s special needs or disabilities and behavioral problems were beyond the ordinary knowledge of the jury. We likewise find the risk factors associated with childhood abuse admitted in this case (e.g., a single-parent household with a live-in caregiver) were not likely to be within the common knowledge of jurors. The trial court did not abuse its discretion in admitting this evidence. Where the prosecution expert testified at length regarding her qualifications as a licensed professional counselor, provided a source with an overview of the topics she was expected to testify about, and explained that it contained an extensive bibliography of the topics related to child abuse, the trial court acted within its discretion S e e O p i n i o n s P a g e 11 ►
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in qualifying her as an expert witness regardless of whether she fully complied with defendant’s subpoena duces tecum. Before allowing the victim to testify about defendant’s violence against her mother, the trial court should have conducted the balancing test required by Rule 404(b), SCRE. However, given the extensive evidence of defendant’s other violent acts, which was admitted without objection, this was harmless error. The trial court allowed the victim’s mother to testify about a letter, which she could not produce, that defendant had written to her. Since the letter referred to abusive behavior against the mother, not sexual abuse of the victim, the original letter was not required because it referenced a collateral matter under Rule 1004(4), SCRE. Moreover, any error in admitting testimony about the letter was harmless as cumulative based on the many other instances of violence admitted without objection. Affirmed. State v. Galloway (Lawyers Weekly No. 011-021-22, 11 pp.) (Paula Thomas, J.) Appealed from Greenville County Circuit Court (Perry Gravely, J.) Joanna Delany for appellant; Alan McCrory Wilson, David Spencer and William Wilkins for respondent. S.C. App.
Criminal Practice Sentencing – Mitigating Factors – Failure to Consider At sentencing, defendant presented mitigation evidence about his family history, mental health, paternal role, and rehabilitation efforts. However, the district court mentioned only defendant’s drug addiction, and the
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does not afford employees a substantive right to continued employment, it does provide the substantive right to work under conditions free from discrimination and harassment and to be free from retaliation where employees file a claim under the plan. Further, it creates
Even though USSG § 1B1.13 does not apply to a defendant’s compassionate-release motion, since the district court also conducted a detailed review of the relevant factors under 18 U.S.C. § 3553(a), the district court’s consideration of § 1B1.13’s dangerousness criterion does not require reversal. We affirm the denial of defendant’s motion for compassionate release. The district court conducted a detailed review of the relevant § 3553(a) factors, explaining its conclusions that defendant’s offense and criminal history were serious, that any sentencing disparity had been resolved through a prior reduction, and that compassionate release would not reflect the seriousness of the offense, promote respect for the law, provide just punishment, or adequately deter further crime. Defendant does not take issue with any portion of this analysis, and it finds support in the record. Nothing in the court’s analysis suggests that its consideration of the § 3553(a) factors was influenced by its consideration of USSG § 1B1.13(2).
Although the respondent-employer showed that the claimant-employee falsely said on his post-hire medical questionnaire that he had never sought medical attention for a prior back injury or back pain, and although the employer showed that it relied on this falsehood, the employer failed to show a causal connection between the claimant’s 1997 back injury and his 2017 back injury, especially since – in the interim – the claimant worked for Westinghouse for 16 years. We reverse the Workers’ Compensation Commission’s denial of the claim. Remanded. The record contains no medical evidence that the claimant’s 1997 back injury somehow contributed to his June 24, 2017, injury or that he was predisposed to back injury. Because the medical testimony is the only competent evidence in the record relating to a causal connection, or lack thereof, between the claimant’s false representation of the 1997 back injury and the 2017 injury, the Commission erred in finding the employer proved its fraud in the application defense. The Commission’s order does not
contain sufficient findings of fact and conclusions of law relating to Capers v. Flautt, 305 S.C. 254, 407 S.E.2d 660 (Ct. App. 1991). The order merely states that “moreover, the claim would be barred under Capers v. Flautt.” The Commission did not apply the law to its findings or indicate which findings were applicable to Capers. S.C. Code Ann. § 42-9-60 provides in part, “No compensation shall be payable if the injury . . . was occasioned . . . by the wil[l]ful intention of the employee to injure . . . himself. . . .” The record contains no evidence that the claimant deliberately intended to injure himself as described in this section. The Commission erred in finding his claim was barred by § 42-9-60. The Commission found that the claimant did not injure his back in an accident arising out of his employment with respondent. The Commission specifically grounded its findings on the claimant’s lack of credibility and his “vague” and “rambling” responses. The claimant’s credibility as to his prior workers’ compensation claim and prior back injury in 1997 is not a reasonable and meaningful basis for the Commission’s determination that he did not suffer an accidental injury arising out of his employment in 2017. Rather, the medical evidence pertaining to his 2017 injury, which consists of an MRI and the expert medical opinion of a neurosurgeon, is not contradicted and constitutes substantial evidence that supports a reversal of the Commission’s order. Reversed and remanded. Brailey v. Michelin North America, Inc. (Lawyers Weekly No. 011-022-22, 11 pp.) (Bruce Williams, C.J.) Appealed from the Workers’ Compensation Commission. Stephen Benjamin Samuels for appellant; Grady Larry Beard and Jasmine Denise Smith for respondents. S.C. App.
a clear and specific set of procedures to follow when an employee claims that those rights have been violated, the court found. “Defendants could of course have chosen not to provide a right to combat the harassment of federal judiciary employees. But once they did so by adopting the EDR Plan, ‘the floor for the procedures
due is set by the federal Constitution,’” Briscoe wrote, citing the 3rd Circuit decision in 1987’s Stephany v. Wagner. The court rejected Strickland’s argument that the internal employment dispute resolution process used by the 4th Circuit like other courts to handle misconduct complaints was unconstitutional
but found that the refusal to disqualify the federal public defender from the investigation to be a plausible violation of her due process rights. The court also declined to vacate the district court’s judgment and to recuse District Judge Young, holding that Strickland has not shown a likelihood of actual bias.
court discussed why it wasn’t moved by defendant’s argument that addiction motivated his crimes. The district court’s failure to even acknowledge swaths of nonfrivolous mitigation evidence is procedural error. We vacate defendant’s sentence and remand for resentencing. United States v. Black (Lawyers Weekly No 003-017-22, 10 pp.) (Albert Diaz, J.) 21-4022. Appealed from USDC at Charleston, S.C. (David Norton, J.) Howard Walton Anderson for appellant; Andrew Robert de Holl and Rhett DeHart for appellee. 4th Cir. Unpub.
Criminal Practice Sentencing – Compassionate Release Motion – USSG § 1B1.13
We therefore conclude that any error the district court’s reliance on the policy statement was not reversible, and the district court did not abuse its discretion in denying relief. United States v. Wallace (Lawyers Weekly No. 003-018-22, 5 pp.) (Per Curiam) 21-6135. Appealed from USDC at Columbia, S.C. (Joseph Anderson, S.J.) Jeremy Thompson for appellant; Rhett DeHart and Stacey Haynes for appellee. 4th Cir. Unpub.
Workers’ Compensation Prior Back Injury – Application Falsehood – 20-Year Gap
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6 / OPINION DIGESTS
N O R T H C A R O L I N A L A W Y E R S W E E K LY I Ju n e 26, 2017
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