South Carolina Lawyers Weekly October 2023

WEEKLY

VOLUME 21 NUMBER 10

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LEGAL DESERTS Scarcity of lawyers threatens justice in many rural areas PAGE 4

POWER LIST Lawyers honored for practices in family law

PAGE 17

OPINION Rulings deny parole to longtime inmate

PAGE 9

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CONTENTS

COVER STORY p4 | Legal deserts: Communities having few — or no — lawyers is a common issue in the state OPINIONS p9 | Fifty years after slaying, juvenile killer again denied parole OPINION DIGESTS p10 | Roundup of rulings on state and federal appeals FAMILY LAW POWER LIST p17 | Lawyers earn recognition for efforts in field VERDICTS & SETTLEMENTS p21 | The latest roundup of South Carolina legal cases LAWYERS IN THE NEWS p23 | New associations and honors COMMENTARY p24 | Law schools miss key lesson about business of law STATEMENT OF OWNERSHIP, MANAGEMENT AND CIRCULATION South Carolina Lawyers Weekly; Publication number 020-216; Complete Mailing Address of Known Office of Publication: 130 N. McDowell St., Unit B, Charlotte, NC 28204; the mailing address of Headquarters or General Business Offices of the Publisher (Not printer), South Carolina Lawyers Weekly, 130 N. McDowell St., Unit B, Charlotte, NC 28204; Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor: Publisher – Susan A. Bocamazo, Esq., 130 N. McDowell St., Unit B, Charlotte, NC 28204; Editor – Ross Chandler, 130 N. McDowell St., Unit B, Charlotte, NC 28204; Managing Editor – None.

South Carolina Lawyers Weekly is owned by BridgeTower OPCo, LLC (OpCo), 100 N Pacific Coast Hwy., Ste 1725, El Segundo, CA 90245. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities, Cerberus Business Finance Agency, 11812 San Vicente Blvd, Suite 300, Los Angeles, CA 90049.

Issue Date for Circulation Data Below, July 2023; the average number of copies of each issue during the preceding 12 months Box 15 is: (A) total copies printed 569; (B1) Paid OutsideCounty Mail Subscriptions 456; (B2) Paid In-County Subscriptions: 0; (B3) Sales through dealers and carriers, street vendors, counter sales: 0. (B4) Other classes mailed USPS: 3; (C) Total Paid Circulation: 459; (D1) Free Distribution by mail, samples complimentary and other free copies: 24; (D2) In-county free distribution: 1; (D3) Other classes mailed Free Distribution: 0; (D4) Free distribution outside the mail: 25; (E) Total Free distribution: 50; (F) Total Distribution: 509; (G) Copies not Distributed: 60; (H) Total: 569; (I) Percent of Paid: 90.18%.

The actual number of copies of a single issue published nearest to the filing date is: (A) Total number of copies printed 534; (B1) Paid Outside-County Mail Subscriptions: 451; (B2) Paid In-County Subscriptions: 0; (B3) Sales through dealers and carriers, street vendors, counter sales: 0; (B4) Other classes mailed USPS: 4; (C) Total Paid Circulation: 455; (D1) Free Distribution by mail, samples complimentary and other free copies: 23; (D2) In county free distribution: 0; (D3) Other classes mailed Free Distribution: 0; (D4) Free distribution outside the mail: 0; (E) Total Free distribution: 23; (F) Total Distribution: 478; (G) Copies not Distributed: 56; (H) Total: 534 (I) Percent of Paid: 95.19% Electronic Copy Circulation; The Average number of copies in the last 12 months was: (16A) Paid Electronic Copies, 40; (B) The Average Paid Print and Paid Digital Copies were 499; (16C) The Average Total Print and Paid Digital Distribution was 549; (16D) Percent Paid of Both Print & Paid Digital was 90.89%. Electronic Copy Circulation; The Actual Number of Copies of a Single Issue (16A) Paid Electronic Copies, 44; (16B) The Average Paid Print and Paid Digital Copies were 499; (16C) The Average Total Print and Paid Digital Distribution was 522; (16D) Percent Paid of Both Print & Paid Digital was 95.59%.

I certify that all information furnished on this form is true and complete: (Signed) Susan A. Bocamazo, Esq., Publisher REQUIRED BY TITLE 39 U.S.C. 3685 STATEMENT SHOWING OWNERSHIP, MANAGEMENT AND CIRCULATION OF South Carolina Lawyers Bi-Weekly, publication number 020-216, filed October 1, 2023, Published Monthly, 12 issues per year, $399.00 annually at 130 N. McDowell St., Unit B, Charlotte, NC 28204. The General Business offices of the Publishers are at 130 N. McDowell St., Unit B, Charlotte, NC 28204.

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COVER STORY

SWEN

LEGAL DESERTS

Rural areas, small towns lack adequate number of attorneys

North Carolina and South Carolina are marked by ‘legal deserts,’ areas where there are too few attorneys — or even none — available to ensure residents have adequate legal representation.

Depositphotos.com

T

he Carolinas feature much in the way of habitats and landscapes. There are mountains, flatlands, foothills and oceans.

And deserts.

These deserts are not barren areas devoid of water and life, but socioeconomically challenged pockets of the states devoid of attorneys and, often, justice.

These “legal deserts,” as they have been called, are defined by the American Bar Association as counties with fewer than 1 attorney per 1,000 residents.

Access to justice there is limited for those who are too poor or have too far to travel to find a lawyer to handle matters, often routine, of basic human need.

“This means that every day, millions of people in our communities are forced to handle complex and life-altering

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B y He aT H H a m a C He R Video: See Lesley Albritton of North Carolina Legal Aid explain ways that the agency can use p u b l i c - p r i va t e partnerships to bring services to “legal deserts” in a video at nclawyersweekly.com.

problems — such as safe housing, access to health care, child custody, and protection from abuse — by themselves,” Scheree Gilchrist, chief innovation officer at Legal Aid of North Carolina in Raleigh, said. “This is exacerbated in legal deserts. … It creates backlogs for the courts, delays in the delivery of justice, and unfavorable, life-altering

decisions and judgments that, if they had an attorney, could have been avoided.”

In North Carolina, nearly half of the state’s 100 counties meet the definition of legal desert.

Lesley Albritton, Legal Aid’s chief of staff in Greenville, said that more than 6 out of 10 North Carolina attorneys work in one of five urban Gilchrist c o u n t i e s .

According to the 2020 American Bar Association Profile of the Legal Profession, North Carolina — tied with Mississippi, Iowa, and Indiana — has the third-fewest lawyers

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NEWS

COVER STORY

Graphic Courtesy American Bar Association

1 dot = 10 lawyers Sources: North Carolina State Bar, South Carolina Bar

per capita in the nation.

“This means that for the majority of our counties, access to a lawyer is likely limited,” Albritton said.

South Carolina ranks even lower on the list, along with Arkansas and Arizona having the least number of attorneys per capita in America. It also offers fewer legal aid lawyers to assist low-income individuals than any other state.

Elizabeth Chambliss, law professor and director of the Nelson Mullins Riley & Scarborough Center on Professionalism at the University of South Carolina School of Law, said that the state is one of only 16 that does not have a direct state appropriation for legal aid.

Chambliss “Legal aid lawyers are also unequally distributed,” Chambliss said.

“Charleston has four legal aid providers [organizations] compared to one for the rest of the state. Yet, some of the highest poverty levels and per capita civil court case rates are in rural parts of the state.”

Chambliss added that most parties in civil court — up to 70% — are unrepre-

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s e n te d , and only 8% of cases feature lawyers on both sides.

“In some types of cases, the numbers are even starker,” Chambliss said. “In 2019, 99.7% of defendants in eviction cases, 92.3% of defendants in foreclosure cases, and 96% of defendants in debt-collection cases were unrepresented.”

Justice can’t flourish Distinctly, cost is a significant barrier for low-income individuals seeking legal services. There is no constitutional right to an attorney in civil matters; consequently, 92% of low-income Americans do not receive any or enough legal help, according to the most recent Justice Gap Report by the Legal Services Corp.

According to the U.S. Census Bureau, North Carolina and South Carolina rank among the top 10 in the percentage of impoverished residents, featuring poverty rates of 13.2% and 14.2%, respectively. Legal help is high-stakes, complicated and expensive to retain.

According to U.S. News & World Report, hiring a lawyer can cost between $100

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and $300 an hour, prohibitive to many who are struggling to pay rent and put food on the table.

Cost, however, is not the only barrier to justice. Chambliss noted that many people are unaware that their problems might have legal solutions or that no-cost legal solutions might be available. Those living in geographically isolated or economically disadvantaged areas also might lack transportation or easy internet access. Many courthouses have limited or no self-help legal services, she added.

“South Carolina Legal Services, the front-line provider of legal aid in South Carolina, engages in all kinds of outreach — from pop-up clinics and information sessions to self-help videos on YouTube and TikTok — but they only have about 65 lawyers serving the entire state, so their resources are spread very thin,” Chambliss said.

Planting roses in the sand Many say that despite efforts to entice lawyers to bring their expertise to rural areas, the lack of attorneys will likely continue for the foreseeable future. Across the nation, lawyers are attracted to larger markets. In South Carolina, three counties — Richland, Charleston, and Greenville — account for more attorneys than the state’s 43 See Page 6

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COVER STORY Continued From Page 5

other counties combined. It’s much the same in North Carolina, where the lion’s share of lawyers call Mecklenburg, Wake, Durham, Forsyth and Guilford counties home.

Suzanne Saucier is the managing attorney for Legal Aid’s Smoky Mountain office in Sylva. Saucier said the reason for recruiting and retention difficulties in rural areas is based on a simple concept.

“That’s where the jobs are,” she said.

“If you want the money and prestige of working for a firm, you’re going to be in a city. Hanging a shingle is something that younger attorneys are hesitant to do; they want to work under someone, and they want to be mentored, which is a good thing.

Albritton agrees.

“The idea of moving to a rural area and hanging out a shingle can be daunting, especially if it is not an area of the state with which a lawyer is very familiar,” she said. “It can be hard to envision a pathway to networking and support without a firm to back them up.”

Albritton said that Legal Aid is different because it functions like a large firm that serves all 100 North Carolina counties, providing training and support from experienced attorneys to newer lawyers working in even the most remote parts of the state.

Although the Saucier support is there from Legal Aid — North Carolina’s third largest firm — the agency is constrained by dollars and staff. For example, Saucier’s two offices consist of five attorneys striving to serve the residents of seven counties, the largest judicial district in North Carolina. In a perfect world, Saucier said, she would have an office in each county staffed by two attorneys and a paralegal.

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The Palmetto LEADER (LEgal ADvocacy and Educational Resources) is a custom-built bus and fully functional mobile law office that the University of South Carolina School of Law uses to take legal services to people in parts of the state who otherwise could not afford legal assistance. (USC School of Law)

“I have an attorney on an upcoming Monday who has cases, I think, set in three different counties,” she said.

“What that means is that he’s going to have to cover those three counties to the extent that he can, and that means that clients are going to have to wait on him.”

To minimize the waiting for clients and the courts, Saucier said, her offices shuffle attorneys when needed and use private attorneys, often generalists, to help with the caseload. Albritton Albritton said it is not unusual for staff members to drive an hour or more from their home office to meet with clients or get to court.

“This is a regular way of doing practice out in our region,” Saucier said.

Legal Aid does not handle criminal cases, and Saucier said that getting attorneys to take court-appointed cases has been an issue. According to North Carolina Advocates for Justice,

more than 800,000 criminal defendants are awaiting adjudication of their cases.

Low rates for private attorneys to take on these cases contribute to the issue, NCAJ asserts. Immediate Past President Valerie Johnson noted in an NCAJ blog that young lawyers, particularly those burdened with student loan debt, also might find it difficult to establish a practice in a poverty-stricken area.

Legislators have approved funding to start a public defender’s office in Saucier’s district, including a chief public defender, 14 assistant public defenders and seven administrative staffers.

When and whether all the positions will be filled in a district that is less-than-desirable to some remains to be seen.

“I think there is a perception that rural communities are not thriving places to live,” Albritton said. “In reality, rural North Carolina is full of unique places that offer all sorts of benefits when it comes to quality of life. Not to mention, there is a great sense of purpose and fulfillment that comes from serving a small community.”

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Jason Luck, town attorney for Clio, South Carolina, a town of fewer than 1,000, is one of a handful of attorneys serving impoverished Marlboro County.

He moved his practice from Charleston in 2020 and said he has no regrets.

“The optimist in me says as attorneys discover the opportunities for professional growth in rural areas, this situation will resolve itself,” Luck said. “Until then, we’re going to need periodic visits from groups of lawyers — like Remote Area Medical, but legal — for some basic needs like wills and powers of attorney.”

Follow me to the desert For their part, law schools are employing their resources for the greater good.

Amy Barefoot Graedon, assistant dean for communications at the University of North Carolina School of Law, said that UNC provides legal services through its pro bono program and 10 clinics.

“Our pro bono program takes students to various places throughout the state for fall break, winter break and spring break trips to provide legal services in communities that have little access,” Graedon said.

Taylor Gilliam, pro bono program director at USC, said that even though one 1 of 5 S o u t h Carolinians lives below 125% of the federal poverty line, making them eligible for subsidized legal Luck assistance, funding for South Carolina Legal Services, a front-line provider of civil legal aid within the state, supports only 54 attorneys — one for every 18,000 eligible residents.

To help meet the needs of South Carolina’s poor, USC deploys the Palmetto LEADER (LEgal ADvocacy and Educational Resources), a custom-built

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Video: See Taylor Gilliam, pro bono director at USC Law, describe the experience law students gain when they work on the Palmetto LEADER mobile legal lab in a video at nclawyersweekly.com

bus and fully functional, mobile law office, bringing legal services such as wills, powers-of-attorney, expungements and legal document review from Columbia to those in more remote parts of the state who otherwise could not afford legal assistance.

Working from the LEADER recently on his first trip aboard the bus, heading to Clio in Marlboro County to conduct a wills and health care power-of-attorney clinic, Gilliam wrote in an email that the school’s pro bono program is an extension of its academic curriculum, teaching students substantive law and how to give back to the community through experiential learning. Witnessing the poverty in the state’s rural counties and helping to abate it is crucial, Gilliam said, adding that he looks to train future lawyers to include a pro bono component in their practices.

“Following graduation, students will be clerking for judges, working as prosecutors and defense attorneys, in various non-profits and government entities, and working in firms,” Gilliam wrote in an email.

“Some students choose dual-degree programs, some go into the military, and others use their JD in Gilliam non-practicing ways. At the end of the day, if they are able to see firsthand how their profession can serve others, we stand a chance at closing the justice gap in South Carolina.”

Campbell University School of Law recently participated in the Chief Justice’s Commission on Professionalism Legal Desert Summit

at the North Carolina State Bar, coordinating with other entities regarding how to combat legal deserts. Mallory Underwood, Campbell’s director of career and professional development, said that while most Campbell graduates end up practicing in urban areas such as Raleigh, the school has a tradition of sending practice-ready, service-oriented attorneys to small towns throughout the state. “[O]ur office created programming to educate our students about both the statewide need for lawyers and the many opportunities it creates for students,” she said.

‘We can’t do this work alone’ Gilchrist said it’ll take a village to serve the underserved because the need outpaces Legal Aid’s ability to help, especially in rural areas where travel time and limited court access can make service delivery even more challenging.

“We can’t do this work alone,” Gilchrist said. “Through the innovation lab, we will deepen our ties in the communities we serve and with other legal service providers in the state, but also foster partnerships with technology companies, universities, and community organizations to improve access to justice.”

Albritton said that Legal Aid has been working in legal deserts for 20 years and is deeply committed to providing quality legal representation to the community through oneon-one client services and community education and outreach. She added that legal services providers are uniquely positioned to help solve the access-to-justice issue in these areas.

“This is because we have an incentive to work on creative solutions … to deliver our services,” Albritton said. “However, as (Gilchrist) noted, it will take partnerships between the public and private sectors of the legal communities and beyond to provide a full range of legal services to our rural communities.” ◆

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OPINIONS

Decades after juvenile guilty plea, ‘model inmate’ once again denied parole

A

B y R a s m u s S. J o r g e n s e n • r j o r g e n s e n @ m o l a w y e r s m e d i a . c o m

man who has spent 50 years incarcerated for murdering his neighbor at age 17 was denied parole for the 18th time. The South Carolina Court of Appeals reluctantly affirmed the denial, suggesting lawmakers review the rules to make parole more attainable for convicted juveniles.

While high and drunk, Stewart Buchanan fatally stabbed his neighbor in 1973. Later that year, he pleaded guilty to murder and was sentenced to life imprisonment, which meant he would be eligible for parole after 10 years. His attorney told him that it would be unlikely for him not to get parole after 20 years.

For his 18th parole request, he argued the board should consider factors that Aiken v. Byars established must be examined when considering a sentence of life without parole for a juvenile, including age and immaturity, family and home environment, circumstances of the crime, incompetence as a juvenile in dealing with the justice system, and the possibility for rehabilitation.

Buchanan argued in his favor on all points but particularly asserted that he has become a much better person. He has visited schools and churches to dissuade teenagers from using drugs.

He has been a certified literacy tutor for more than 40 years, teaches English and started a course to teach inmates basic legal research and writing.

When on work release, he is involved with a ministry program and has completed more than 500 hours of carpentry training. In 2018, he graduated with the Jump Start release plan at the highest level. As a graduate, he would be provided transitional housing, be mentored and receive assistance getting a

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job and buying a home.

A forensic psychologist examining Buchanan noted he had some disciplinary charges but concluded that he did not represent a significant risk for future violent acts, that he took full responsibility for the murder, and that he demonstrated remorse. Through interviews with employers, prison employees, a chaplain and others, she heard that Buchanan was a model inmate, “a really good, really respectful guy,” and that, “If he got out tomorrow, I would be happy to know he bought a home on my street.”

According to Buchanan, the parole board deliberated for less than a minute before denying his request.

The board said in a letter that it applied the mandatory criteria, including the characteristics of the offense. It also said that, though its reasons for denial “will never change, these reasons for denial are legal.”

Buchanan appealed to the Administrative Law Court, which rejected his argument that recent case law created a new substantive constitutional right to a meaningful parole review, including consideration of age at the time of the crime, for inmates sentenced as juveniles.

Buchanan appealed to the Court of Appeals. He noted that 15 of his denials cite the same three reasons, all boiling down to him having committed a violent crime. Meanwhile, the board did not consider his youth and rehabilitation.

The parole board argued the law only requires factors of youth to be considered in sentencing, not in parole hearings. Because Buchanan is still eligible for parole, even if he has not yet received it, no Eighth Amendment violation has occurred, the board members argued.

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The Court of Appeals agreed.

“Although Buchanan and other juveniles similarly situated are technically eligible for parole, the continuing denial of parole based on the same factors, all unchangeable and related to their offenses, gives no guidance to these inmates about what can be done to improve their chances of parole and is, in essence, equivalent to being ineligible for parole,” wrote Judge Paula H. Thomas in the opinion, with which Judges Stephanie P. McDonald and Blake A. Hewitt concurred.

Thomas continued that the board is thwarting the public policy to restore hope to juvenile offenders for some life outside of prison and is disincentivizing good conduct and participation in rehabilitative programs.

Buchanan has since petitioned for rehearing, claiming that the Court of Appeals erred when affirming the board’s decision while simultaneously calling the denial “equivalent to being ineligible for parole,” which Buchanan said makes his current sentence cruel and unsual punishment.

In its response, the Department of Probation, Parole and Pardon Services said Buchanan raised no new arguments.

Attorneys for Buchanan are Lindsey Vann, Rosalind Major and Allison Franz of 360, who did not wish to comment, and John Blume of Cornell Law School, who did not respond to a request for comment. Matthew Buchanan, general counsel for the South Carolina Department of Probation, Parole and Pardon Services, did not wish to comment.

The case is Buchanan v. South Carolina Department of Probation, Parole, and Pardon Services. ◆

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OPINIONS

To view additional opinion digests, visit www.sclawyersweekly.com

Civil Practice Motion to Intervene — Motion to Set Aside Default Judgment — Service of Process This cross-appeal arose out of the circuit court’s grant of Trustgard Insurance Company’s motion to intervene and denial of Trustgard’s motion to set aside default judgment. Trustgard appealed the denial of its motion to set aside the default judgment, and Terence Graham appealed the grant of the motion to intervene.

We affirm.

On January 29, 2014, Johnnie William Foster had a single-vehicle motor vehicle accident while driving a commercial truck in Dorchester County during a winter storm. Graham was in the sleeping compartment of the truck when the accident occurred. Full Logistics, Inc., a commercial trucking company, owned the truck and employed both Foster and Graham.

Graham suffered severe, permanent injuries including traumatic brain injury and other bodily injuries. Full Logistics had a

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commercial motor vehicle insurance policy with Trustgard at the time of the accident. Drico Fuller (Fuller) owned Full Logistics as the sole shareholder with no other officers or agents. The South Carolina Secretary of State’s records reflected that Fuller was the registered agent for the company.

Trustgard was notified of the accident on January 31, 2014, two days after it took place, and began an investigation. Around March 3, 2014, Trustgard received a letter of representation and a spoliation letter from Graham’s attorney, Brian T. Smith. In March of 2014, Trustgard made the tractor available for Smith to inspect at Smith’s request. Over the next two years, Trustgard’s representatives attempted to obtain information from Smith or his office.

Smith failed to provide requested medical documentation of Graham’s injuries or other requested information, including whether Graham was an employee of Full Logistics. The Secretary of State’s Office administratively dissolved Full Logistics on June 22, 2015.

On June 15, 2016, Barrett, on behalf of Trustgard, sent a letter to Smith, stating Trustgard had reviewed the insurance policy and Graham’s claim was denied. The letter indicated there was no liability coverage under the policy because Graham was an employee of Full Logistics at the time of the accident and workers’ compensation “would be his only recourse for recovery.” On January 23, 2017, Graham filed a summons and complaint against Full Logistics. Graham alleged negligent hiring, supervision, training, and entrustment against Full Logistics. He sought actual and punitive damages.

The court denied Trustgard’s request to conduct discovery on the issue of service, stating it saw “little profit in conducting additional discovery based on a party’s hope that the testimony of witnesses or the evidence will change.” The court stated it “conducted a deliberate inspection of the circumstances of default” and found “[a]ny inconsistencies in the affidavit of

service are overcome by Fuller’s acknowledgement and acceptance of service.”

Trustgard contended the circuit court erred in accepting Fuller’s testimony at face value notwithstanding a lack of evidentiary support and factual contradictions between this testimony and the proof of service supporting the default judgment. Trustgard asserted that giving credence to the testimony necessitates a conclusion that the default judgment is void. Trustgard further argued judicial estoppel bars Graham from changing his version of facts as to service of process.

Finally, Trustgard maintained Fuller’s testimony should not have been considered without appropriate evidentiary support.

We disagree.

Although the circuit court did not make any explicit findings on credibility, it did find Fuller was served based on his own testimony. By such a finding, the circuit court implicitly found Fuller credible.

Accordingly, the circuit court did not abuse its discretion in finding based on Fuller’s testimony Full Logistics was served.

Trustgard asserted the circuit court erred in refusing to permit it to conduct discovery on the issue of service of process. Trustgard submitted the circuit court erred in rejecting its request for a stay and the opportunity to conduct limited discovery into the circumstances of service of process. It asserted neither Graham nor Fuller provided Trustgard any information into the circumstances of service, not even the date Fuller was allegedly served or what papers he was purportedly handed. Trustgard asserted its need for discovery is not frivolous and it should also be provided a full and fair opportunity to conduct discovery. We disagree.

Trustgard maintained the circuit court erred in ruling that the judgment should not be set aside for mistake, inadvertence, surprise, or excusable neglect, or fraud due to Graham’s counsel Smith’s pre-suit conduct and failure to notify Trustgard of the default judgment. We disagree.

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OPINIONS Graham maintained the circuit court abused its discretion in granting Trustgard’s motion for permissive intervention when its arguments are identical to other parties. We disagree.

The circuit court did not err in allowing Trustgard a permissive intervention.

Trustgard demonstrated that its position was not the same as Full Logistics.

Accordingly, we affirm the circuit court’s grant of Trustgard’s motion to intervene.

Affirmed.

Ex Parte: Trustgard Insurance Company v. Full Logistics Inc. (Lawyers Weekly No. 011-074-23, 22 pp). Appealed from Greenville County Circuit Court (Robin B. Stilwell, J.) Shelley Sunderman Montague and Jessica Waller Laffitte, both of Gallivan, White & Boyd, P.A., of Columbia, for appellant/respondent; William Franklin Barnes, III, of Barnes Law Firm, LLC, of Hampton, and Brian T. Smith, of Brian T. Smith Law Offices, of Greenville, both for respondent/appellant. South Carolina Court of Appeals

Constitutional Fetal Heartbeat Anti-Abortion Act — Privacy Right — Reasonable Invasion In a new version of the Fetal Heartbeat and Protection from Abortion Act (the 2023 Act), our General Assembly has made a policy determination that, at a certain point of pregnancy, a woman’s interest in autonomy and privacy does not outweigh the interest of the unborn child to live. We cannot say as a matter of law that the 2023 Act is unreasonable and thus violates the South Carolina Constitution.

The 2023 Act is constitutional.

The 2023 Act generally prohibits an abortion after the detection of a fetal heartbeat, not at a specified period of weeks into the pregnancy. S.C. Code Ann. § 44-41-610(6). The law provides limited exceptions allowing for an abortion in the event of a risk to the health of the mother, fatal fetal anomalies, rape, and incest. § 44-41-640 to -660.

In support of the 2023 Act, the legislature explained it had placed weight on the

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fact that a woman could learn of her pregnancy within seven to fourteen days of conception and would have several weeks after that to make her decision and have an abortion if she so chose. Thus, the legislature stated it had determined the “proper balance should be struck at the point of a fetal heartbeat,” given the “ample” period of weeks a woman would have “to make a decision about whether to terminate her pregnancy.”

The 2023 Act is materially different from the 2021 act that a majority of this court previously declared unconstitutional. The new balance struck in the 2023 Act between the competing interests of the mother and unborn child was combined with the legislature’s new focus on contraceptives and early pregnancy testing, as well as a repeal of the statutes that codified the trimester framework of Roe v.

Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

The issue before us is whether the 2023 Act constitutes an unreasonable invasion of privacy in violation of S.C. Const. art. I, § 10: “The right of the people to be secure in their persons . . . against . . . unreasonable invasions of privacy shall not be violated ... .”

We will assume for purposes of our analysis that the privacy provision reaches beyond the search and seizure context to include bodily autonomy.

The 2023 Act clearly infringes on a woman’s right of privacy and bodily autonomy.

However, the legislature has made a policy determination that, at a certain point in the pregnancy, a woman’s interest in autonomy and privacy does not outweigh the interest of the unborn child to live.

Through the legal and judicial lens under which we must operate, we cannot say as a matter of law that the 2023 Act is unreasonable and thus violates the state constitution.

Because the 2023 Act is within the zone of reasonable policy decisions rationally related to the state’s interest in protecting the unborn, we are constrained to defer to the legislature’s policy prerogative.

The 2023 Act is constitutional.

Concurrence

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(Few, J.) I voted to strike down the 2021 act because the General Assembly had failed to make any inquire as to whether a substantial percentage of women even know they are pregnant in time to make an informed choice about whether to continue a pregnancy within the statutory time frame. In the 2023 Act, the General Assembly not only considered the key question, it changed the question to focus the attention of sexually-active couples on active family planning, thereby expanding the notion of choice to the period of time before fertilization, certainly before a couple passively learns of a pregnancy. The abortion restrictions in the 2023 Act are reasonable. I find the 2023 Act constitutional.

Dissent (Beatty, C.J.) The 2023 Act will essentially force an untold number of affected women to give birth without their consent.

I am hard-pressed to think of a greater governmental intrusion by a political body.

The majority leaves “for another day . . . the meaning of ‘fetal heartbeat’ and whether the statutory definition . . . refers to one period of time during a pregnancy or two separate periods of time.” In the absence of this critical determination, I fail to see how the majority’s result today is legally justifiable.

Planned Parenthood South Atlantic v.

State (Lawyers Weekly No. 010-049-23, 51 pp.) (John Kittredge, J.) (John Few, J., concurring) (Donald Beatty, C.J., dissenting) Original jurisdiction. Thomas Limehouse, William Grayson Lambert, Erica Wells Shedd, Patrick Graham Dennis, Kenneth Moffitt, John Potter Hazzard, Jessica Godwin, Alan McCrory Wilson, Robert Cook, Emory Smith, Thomas Tyler Hydrick and Joseph David Spate for petitioners; Melissa Burnette, Kathleen McColl McDaniel, Grant Burnette LeFever, Catherine Peyton Humphreville, Kyla Eastling, Caroline Sacerdote and Jasmine Yunus for respondents; Randall Scott Killer, Kimberly Parker, Hannah Gelbort, Christopher Ernest Mills and Harmon Cooper for amici curiae. South Carolina Supreme Court See Page 12

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OPINIONS Continued From Page 11

Criminal Practice Kidnapping, Robbery & Murder — Confession — Other Bad Acts — Sentencing In interrogating defendant, the detectives in this case went up to the line of what is permissible. However, despite their misrepresentations, their mentions of the death penalty, and their promise not “to slap a robbery charge on you,” the detectives did not cross that line so as to render defendant’s confession involuntary.

We affirm defendant’s convictions for kidnapping, murder and armed robbery. We vacate defendant’s kidnapping sentence.

The detectives repeatedly misrepresented the strength of the state’s case.

They invoked the specter of the death penalty twice, even if they did not directly threaten defendant’s life.

We find it particularly concerning that the detectives outlined potential stories that defendant could tell and seemingly encouraged him to “come up with a lie” if he wanted to do so—shortly before floating the scenario that “[m]aybe [the victim (Victim)] rolled up on you looking for sex.”

That, of course, would end up nearly matching the explanation defendant gave during the later stages of the interrogation for how he came to take Victim’s life.

It does not appear that defendant was promised leniency. At most, the officers assured defendant that they would put in the proverbial good word for him—that they would not “hang [him] out to f*****g dry” when they talked to prosecutors.

Glancing references to the death penalty do not automatically render a statement involuntary, and our courts have been hesitant to throw out statements encouraged by officers’ false statements.

Even if the officers’ tactics were at the extreme end of the allowable spectrum, they informed defendant’s mental calculation about whether to confess, rather than overbearing his will.

Other Bad Acts The trial court erroneously allowed the state to present evidence of defendant’s

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armed robbery of a different person, Bocar Bah. The two incidents were insufficiently similar to establish a common scheme or plan.

Among the similarities are “incident occurred in SC,” “male victim,” “def[endant] s came from G[eorgia]”—where, again, they lived at least some of the time—and “def[endant]s used cell phone.” Some of the other similarities are stronger: credit cards, a driver’s license, and other items linked to Bah were found at defendant’s residence. However, these similarities and connections are not strong enough to say that the two offenses are the result of the same “criminal process.”

We do not question the circuit court’s view of the evidence that a carjacking or armed robbery scheme or plan involving defendant and his girlfriend existed.

However, we do not believe the state produced enough evidence to show that Victim’s murder was part of that scheme or plan. Given that, admitting evidence of the robbery of Bah under the common scheme or plan exception was error.

Nevertheless, the error was harmless.

The state’s evidence placed defendant’s and Victim’s cell phones in the same areas; defendant’s statement placed him in Victim’s bloody truck; and Victim’s gun and holster were found at defendant’s residence.

The only element of murder on which the jury’s considerations could have been tainted by Bah’s testimony was on the issue of malice—the dividing line between murder on one side and voluntary manslaughter, involuntary manslaughter, or self-defense on the other. However, there is overwhelming evidence in the record from which the jury would have inferred malice regardless. The evidence that Victim was shot in the back of the head and the evidence that he was shot twice both indicate the presence of malice.

Additionally, we note that the jury convicted defendant of armed robbery and kidnapping—both of which are felonies.

Admission of evidence of the Bah robbery was harmless error.

Sentencing Since defendant was convicted of both kidnapping and murder, he should not

have been sentenced for kidnapping. S.C. Code Ann. § 16-3-910.

Although defendant failed to preserve this issue for appellate review, principles of judicial economy favor vacating defendant’s kidnapping sentence. There is no cognizable legal argument the state can raise that this sentence was properly imposed. Nor do we believe that the interests of our state’s justice system are served by requiring defendant to go through a collateral appeal process to attack a facially invalid sentence that will not actually affect the length of his imprisonment.

Affirmed in part; vacated in part.

State v. Hillary (Lawyers Weekly No. 011062-23, 18 pp.) (John Geathers, J.) Appealed from Horry County Circuit Court (William McKinnon, J.) David Alexander for appellant; Alan McCrory Wilson, Donald Zelenka, Melody Jane Brown, Anthony Mabry and Jimmy Richardson for respondent. South Carolina Court of Appeals

Criminal Practice Post-Conviction Relief — Shackles at Trial — Guilt Testimony When petitioner walked to the witness stand at her murder trial, the jury saw that she was shackled. It is unclear from the record whether the jury could view petitioner’s shackles at other times during the trial. However, petitioner’s co-defendant mentioned shackles in his opening statement, and the charges in this case stem from petitioner’s allegedly violent conduct.

The shackles could have suggested the court was concerned she would experience a violent outburst or, more problematically, their appearance after opening statements (when the court was informed that petitioner’s bond had not been extended) could imply petitioner exhibited some conduct between opening statements and the beginning of testimony that necessitated shackling.

Petitioner has demonstrated prejudice from her trial counsel’s failure to object to the shackles and to certain testimony. We reverse the denial of petitioner’s petition

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U.S.

Every state constitution is longer than the U.S. Constitution.

State constitutions provide rights that aren’t in the U.S. Constitution.

C O N S T I T U T I O N WO R D C O U N T S

402,850 92,345 4,543

Alabama (longest) Texas (2nd longest)

STAT E

9x LONGER on average

United States

D ID YOU KNOW? The Alabama constitution is longer than all but two of Stephen King’s novels – The Stand and It.

Get to know your state constitution and courts at StateCourtReport.org

OPINIONS Continued From Page 12 for post-conviction relief.

A law enforcement officer testified that, while not everyone who was involved in two separate beatings of the victims was charged, he believed that “everyone involved . . . was guilty.” There was conflicting testimony as to petitioner’s assault or attempted assault on the victim. Based on the specific facts of this case and the impact of counsel’s error, petitioner has demonstrated prejudice.

Reese v. State (Lawyers Weekly No. 011071-23, 14 pp.) (Aphrodite Konduros, J.) Appealed from Richland County Circuit Court (Jocelyn Newman, J.) Kathrine Haggard Hudgins for appellant; Alan McCrory Wilson, David Spencer, Mark Reynolds Farthing and Joshua Abraham Edwards for respondent. South Carolina Court of Appeals

Real Property Condominium Development — Common Area Removal During a condominium development’s transition period, the developer retained the authority to remove unimproved common-area property from the property regime. None of the events triggering the end of the transition period had yet occurred when – six years into the development – the developer removed from the regime a 2.58-acre tract that had been designated, but had not been developed, as a common area.

We affirm the circuit court’s grant of summary judgment for defendants.

The master deed creating the property regime at issue was filed on December 4, 2003. The master deed allowed the developer (Developer) to add or remove property from the regime during a transition period. The transition period was to end the earlier of December 31, 2017 (option 1); three months after the sale of 99 percent of the maximum number of units to be contained in all phases of the regime (option 2); or when Developer chose to end the development by surrendering its authority as a Class B member (option 3).

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On April 6, 2009, Developer filed an amendment to the master deed, pursuant to which Developer removed a 2.58-acre tract of the regime’s common area (the Property) and added five acres to the regime.

On December 19, 2013, Developer sold the Property to GDMB Ocean, LLC, and assigned the developer rights to GDMB Operations, LLC. On November 7, 2014, GDMB Operations filed an amendment to the master deed surrendering its Class B Membership, which it contended triggered the three-month phase to end the transition period.

GDMB Ocean sold the Property (along with an additional 26.53-acre tract) to Atlantic Development Company on January 6, 2016.

Transition Period Plaintiffs argue that, under option 2, the transition period ended before the removal of the Property from the regime because 99 percent of all already-constructed units had been sold. However, this option triggered the end of the transition period with the sale of 99 percent “of the maximum number of Units to be contained in all phases of the Regime.” The master deed clearly contemplated Developer constructing the regime in phases and allowed it the authority to expand and contract the regime as it desired.

Option 2 was never triggered because Developer never completed all phases of the regime contemplated in the master deed. Instead, the transition period did not end until February 2015, which was three months after GDMB Operations filed an amendment to the master deed surrendering its Class B authority. Accordingly, the circuit court did not err in finding the transition period had not ended and Developer still possessed the authority to remove the Property from the regime on April 6, 2009.

Removal of a Common Area S.C. Code Ann. § 27-31-60(b) of the Horizontal Property Act (the Act) contemplates that a developer may choose to forgo completing all phases of the development. Section 27-31-60(b) of the Act grants unit owners “the right to require specific performance of any proposed

common elements for recreational purposes set out in the master deed which are included in the next stage of the development that applies to recreational facilities in the event the additional stages of erection do not develop.” The Act does not grant unit owners similar rights to demand specific performance of the remaining common elements that are not recreational. However, once common elements are set aside and vested in the co-owners, such co-owners may not be unilaterally deprived of their interests in the common elements by the actions of the developer.

Considering the Act as a whole, we hold § 27-31-70’s prohibition of partition or division of common elements concerns the unit owners’ rights in the common elements and does not prohibit a developer from removing non-recreational common elements from a regime unless those common elements have vested in the unit owners pursuant to the terms of the master deed. Therefore, we look to the terms of the master deed to discern whether Developer’s removal of the Property from the regime was valid.

The master deed allowed Developer to “subdivide portions of the Common Area from the Project which are unimproved with structures and to remove the subdivided portion” with an amendment of the master deed. Because Developer had the right to unilaterally remove common areas unimproved with structures from the regime, the common areas did not become vested in the unit owners until they were improved or the transition period ended.

Plaintiffs have not presented any evidence the Property was improved with structures. Accordingly, Developer’s removal of the Property from the regime was valid.

Affirmed.

Vista Del Mar Condominium Association v. Vista Del Mar Condominiums, LLC (Lawyers Weekly No. 011-063-23, 13 pp.)

(Letitia Verdin, J.) Appealed from Horry County Circuit Court (Larry Hyman, J.) Kenneth Ray Moss, Paul Ekster and Robert Lee for appellants; Demetri Koutrakos, Harry Alwyn Dixon and James Christopher Clark for respondents. South Carolina Court of Appeals

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COURTS

4th Circuit joins other courts on attorneys’ fees

J

oining every other circuit to decide the issue, a divided 4th U.S. Circuit Court of Appeals has overruled its precedent that preliminary injunctions can’t convey “prevailing party” status to a plaintiff, which precluded awards of attorney’s fees.

A 4th Circuit panel upheld an earlier decision from the Western District of Virginia based on its 2002 holding in Smyth ex rel. Smyth v. Rivero but granted a rehearing en banc.

Writing for the majority, U.S. Circuit Judge Pamela A. Harris concluded that Smyth was “too stringent.”

“Although many preliminary injunctions represent only ‘a transient victory at the threshold of an action,’ some provide enduring, merits-based relief that satisfies all the requisites of the prevailing party standard,” she wrote.

“Because the plaintiffs here ‘prevailed’ in every sense needed to make them eligible for a fee award, we vacate the district court’s denial of attorney’s fees and remand for further proceedings.”

Harris was joined by Chief Judge Albert Diaz and Judges Paul V. Niemeyer, Robert B. King, Roger L. Gregory, James Andrew Wynn and Stephanie D. Thacker.

Judge A. Marvin Quattlebaum Jr., joined by Judges G. Steven Agee, Julius N. Richardson and Allison Jones Rushing, dissented.

The opinion is Stinnie, et al., v.

Newcomb.

Injunction granted In 2018, the Western District of Virginia granted a preliminary injunction to indigent plaintiffs who alleged the suspension of their driver’s licenses by the state for unpaid court fees was unconstitutional.

The District Court concluded that the plaintiffs were likely to succeed on the merits and satisfied the factors set forth

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By Nick Hurston by the U.S. Supreme Court in 2008’s Winter v. Natural Resources Defense Council Inc. The District Court preliminarily enjoined enforcement of Virginia Code § 46.2-395 and ordered the reinstatement of the plaintiffs’ licenses. Over the plaintiffs’ objections, the court stayed the case when the Virginia General Assembly suspended the statute.

Once the legislature eliminated the statute, the District Court dismissed the plaintiffs’ case as moot.

The plaintiffs requested attorneys’ fees under 42 U.S.C. § 1988(b), which gives the court discretion to award reasonable attorneys’ fees to the “prevailing party” in certain civil rights actions.

The state pointed to Smyth to argue that preliminary relief was “necessarily uncertain.”

The 4th Circuit concluded in Smyth that preliminary injunctions were — without exception — “not the stuff of which legal victories are made.”

Although compelled to recommend denial, a magistrate judge noted that Smyth “stands alone,” and the plaintiffs would be prevailing parties under “a board consensus among other circuits.”

The District Court adopted the magistrate’s recommendation. After a panel of the 4th Circuit rejected the plaintiffs’ argument to overturn Smyth, the court granted a rehearing en banc.

Three developments Harris said three developments now compelled the court to revisit the holding in Smyth.

First was the U.S. Supreme Court’s decision in Winter, which clarified that a plaintiff seeking preliminary relief must first make a “clear showing” that their claim will likely succeed on the merits.

The second was that Smyth had become a distinct outlier among other circuits.

The courts explained in these cases

that “although the plaintiff never secured a final judgment granting permanent injunctive relief, the preliminary injunction ended up affording all the relief that proved necessary,” the judge added.

Third, Congress enacted § 1988(b) “‘in furtherance of the policy of facilitating access to judicial process for the redress of civil rights grievances.’ Our circuit’s rule, however, may undermine that policy by allowing government defendants to game the system,” Harris observed.

Having overruled Smyth, the 4th Circuit articulated a new standard.

“When a preliminary injunction provides the plaintiff concrete, irreversible relief on the merits of her claim and becomes moot before final judgment because no further court-ordered assistance proves necessary, the subsequent mootness of the case does not preclude an award of attorney’s fees,” Harris wrote.

‘Actual relief’ Not every preliminary injunction would provide the necessary “actual relief” to render a party prevailing, Harris cautioned.

“But here — where the district court enjoined a longstanding statute and ordered affirmative relief, much to the plaintiffs’ concrete benefit — this first requirement is easily satisfied,” she said.

It was clear that the plaintiffs’ relief was granted sufficiently on the merits.

“There is little question that a preliminary injunction entails a ‘judicially sanctioned change’ in the parties’ legal relationship,” Harris noted. “And any concerns we had about this judicially sanctioned change resting only on the equities and not ‘on the merits,’ … were addressed by the Supreme Court in Winter.”

The matter returns to the Western District of Virginia to determine what fee is reasonable. ◆

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THE

powerLIST FAMILY LAW

OCTOBER 2023

THE

powerLIST HEALTHCARE

THE

powerLIST HEALTH CARE TABLE OF CONTENTS JONATHAN LOUNSBERRY .................................................18

MARIE-LOUISE RAMSDALE ...............................................19

JAMES T. McLAREN .........................................................18

REID SHERARD ................................................................20

AMANDA S. MUELLER ......................................................18

JOHN MICHAEL TURNER ..................................................20

THE

MARY FRAN QUINDLEN ....................................................19

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BUSINESS DEFENSE

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FAMILY LAW

JONATHAN LOUNSBERRY ATTORNEY, KD TRIAL LAWYERS SPARTANBURG, S.C.

Jonathan Lounsberry recalls receiving advice from his father encouraging him to find a career helping others.

“He said I’d never be without work,” Lounsberry says. “And based on that advice, I became an attorney.”

Today, Lounsberry focuses on family law at KD Trial Lawyers in Spartanburg. His practice rose organically out of opportunities he had during the early years in his career.

“I quickly learned that this practice area centered on helping others in times of crisis, and I haven’t looked back,” he says.

A fellow in the International Academy of Family Lawyers and the American Academy of Matrimonial Lawyers, Lounsberry focuses on international child abduction and cross-border custody issues pursuant to the 1980 Hague Convention. His practice revolves around finding practical solutions for his clients and helping them move forward with their lives.

“To know I have been able to help a family bring resolution to their lives will always be what I consider a career success,” he says.

JAMES T. McLAREN

FOUNDING PARTNER McLAREN & LEE, ATTORNEYS AT LAW COLUMBIA A founding partner of McLaren & Lee, Attorneys at Law, James McLaren has been practicing law for 47 years.

He is a recognized leader in the legal profession and a fellow in the American Academy of Matrimonial Lawyers as well as a past president. He is also a fellow in the International Academy of Matrimonial Lawyers.

McLaren is also a past president of the South Carolina Chapter of the International Network of Boutique Law Firms and is a diplomate in the American College of Family Trial Lawyers. He has chaired the Family Law Sections of the South Carolina Bar and the S.C. Trial Lawyers’ Association.

In his 38th year of practice, McLaren wrote an article titled “Ten Things I Wish I Knew 30 Years Ago,” and listed 20 pieces of advice. The last one on the list was: “As lawyers, we belong to one of the noblest professions — we are charged with the responsibility of speaking for others at the worst of times. Treasure and respect that obligation.”

AMANDA S. MUELLER PARTNER, BURNETTE SHUTT & MCDANIEL COLUMBIA, S.C.

After passing the South Carolina Bar, Amanda Mueller had an opportunity to join the Department of Social Services in a new program designed to help new lawyers get on-the-job experience. This gave her an opportunity to appear in front of the family court bench, and she learned to love family law.

“I met some great family law attorneys, and after leaving DSS, I went into private domestic litigation and never looked back,” she says. “I never actually set out to be a family law attorney, but I believe it is what I was meant to do.”

Mueller views honesty and integrity as keys to a successful career as a lawyer.

“While I’m compassionate about the situations my clients find themselves in, I am not doing them any good if I’m not open and honest about the strengths and weaknesses in their cases,” she says. “It’s not always easy, but every good family law attorney must speak honestly with their clients.”

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FAMILY LAW

MARY FRAN QUINDLEN

MARIE-LOUISE RAMSDALE

An attorney and military veteran, Mary Fran Quindlen is the founding partner at Quindlen Law, a firm she opened in 2005 in Beaufort. She concentrates her practice in the areas of military and family law, including custody, visitation and divorce.

With bachelor’s degree in English and history from Rutgers University and a law degree from the University of South Carolina, Quindlen started her career as a Marine Corps judge advocate serving as a legal assistance attorney and defense counsel. She continued to serve in the Marine Corps Reserve until May 2006, when she resigned her commission as a major.

Quindlen is a fellow in the American Academy of Matrimonial Lawyers, the International Academy of Family Lawyers, and serves on the South Carolina Bar’s Fee Dispute Resolution Board. She is qualified as an expert in South Carolina Family Courts regarding military matters related to divorce, and she teaches military family law continuing legal education classes around the country.

Marie-Louise Ramsdale says she started her family law practice because many of her friends began getting divorced and came to her for advice.

Today, she practices solely in family law and is the managing partner at the Ramsdale Family Law Firm in Mount Pleasant.

“Family law allows me to make a real difference in people’s lives during a challenging time, and it’s rarely boring,” she says.

She is a self-described “straight shooter,” and since 2007, she has led clients through South Carolina’s family court system with strength, integrity, and determination.

Ramsdale enjoys working with students and young professionals and was the volunteer attorney coach for the Moultrie Middle School mock trial team that took first place in the state competition in 2016. She also has successfully coached the Wando High School mock trial team.

She also enjoys training young lawyers to practice ethically and to the best of their ability.

FOUNDING PARTNER, QUINDLEN LAW BEAUFORT, S.C.

MANAGING PARTNER, RAMSDALE FAMILY LAW FIRM MOUNT PLEASANT, S.C.

LAWYERS WEEKLY POWER LIST 2023 Congratulations to J. Michael Turner, Jr. on being named a Power Player for 2023, one of the most influential Family Law attorneys in the Carolinas.

116 W. Stone Ave. | Greenville, SC 29609 864-807-2507 | www.mturnerfamilylaw.com

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FAMILY LAW

REID SHERARD

SHAREHOLDER, HAYNSWORTH SINKLER BOYD GREENVILLE, S.C. Reid Sherard carefully plans his cases and believes in having a strategy from the beginning of every matter, all enabling him to reach the best possible solutions for his clients.

He began practicing family law for the opportunity to make a name for himself and to do what he loves most — representing individuals, designing case-specific strategies and action plans, and having significant time in the courtroom.

Sherard is a shareholder at Haynesworth Sinkler Boyd and leads the firm’s family law practice group. He is frequently invited to speak on family law issues at statewide seminars, and he serves on the University of South Carolina Board of Trustees.

Receiving his clients’ trust is among his greatest professional rewards.

“The trust each client places in me for their life-altering matter is my highest success, and I have been fortunate to attain a number of particularly meaningful results for clients,” he says.

JOHN MICHAEL TURNER MANAGING PARTNER, TURNER FAMILY LAW & DIVORCE GREENVILLE, S.C.

Michael Turner understands the complexity and emotional aspects of practicing family law, and he can’t imagine doing anything else. He is a second-generation attorney whose father, J. Michael Turner Sr., recently retired after practicing law for nearly 50 years.

“There is no better place to make an impact in someone’s life than by protecting their children, their assets and their sanity,” he says.

Knowing his clients appreciate his efforts is among his greatest rewards.

“I proactively make my clients aware of the status and next steps of their cases,” he says. “They appreciate being well-informed and it helps to manage expectations throughout litigation.”

Last March, after practicing law for 23 years, Turner launched his firm, Turner Family Law & Divorce, and he considers this as his top professional accomplishment.

“Being able to control the quality and quantity of clients I represent has allowed me to focus on high-conflict cases and complex litigation,” he says.

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VERDICTS & SETTLEMENTS $2.25 MILLION SETTLEMENT

Painful stairway fall comes on second day of beach vacation Action: Premises liability Injuries alleged: Closed right pilon fracture, closed fracture of right tibia and fibula, closed left pilon fracture, and closed fracture of medial malleolus of left ankle.

Case name: Ruth Ann Mason and Michael Mason v. The Debordieu Co. of Pawleys Island d/b/a Peace Vacations, Brian A. Lemon and Shawna C. Lemon Court/case no.: Georgetown County Court of Common Pleas / 2023-CP-22-00095 Demand: $2.25 million Highest offer: $2.25 million Amount: $2.25 million Date: July 6, 2023 Most helpful expert: Bryan Durig, Ph.D. Attorneys: Christopher Kinon of Kinon & Boyer, Conway (for the plaintiff)

Ruth Ann Mason was on a vacation at

Pawleys Island with a group of high school girlfriends, all celebrating their 65th birthdays. The house they rented was marketed, rented and managed by Peace Vacations.

The group arrived Sept. 11, 2021. About 7 a.m.

Sept. 12, 2021, she started to walk down the interior stairs leading to the carport and covered area under the beach house.

When she reached the landing on the interior stairs, she was unable to appreciate that there was a change in elevation or an additional step down. As a result, she fell, fracturing both legs.

She was immediately in pain and began screaming for help. One of Mason’s friends went to her aid, but when she attempted to reach Mason, she also fell at where Mason fell. The friend was not injured.

Plaintiff’s counsel argued the defendants, who are the homeowners and their management company, were aware of the hazardous conditions of the stairs because the management company marketed and maintained

certain aspects of the home and the homeowners had traversed the steps numerous times. The latter was evidenced by the homeowners placing yellow warning tape on the stairs after the fall.

Plaintiff’s counsel argued the defendants have a duty to ensure that properties they market and rent are clear of dangerous conditions, and that the management company is in a better position to discover, notice and warn of hazardous conditions at the home.

The appearance of the steps and witness testimony show the area is a hazard, and the step where the plaintiff fell looks more like an intricate design than another step.

Regardless of the appearance of the steps, plaintiff’s counsel argued that the 2006 International Residential Code requires stair tread winders have a minimum tread depth of 6 inches. It was clear from photographs of the scene that the winder where the plaintiff fell would not meet the 6-inch threshold required by local building codes. ◆

$1.05 MILLION SETTLEMENT

Runaway tire from logging truck crashes into customer, store Action: Personal injury Injuries alleged: Closed-head injury Case name: Withheld Court/case no.: Georgetown County Court of Common Pleas Amount: $1.05 million Date: March 2023

Williams, Williams Innovative Software and Technology (forensic scene analysis); Oliver Wood, PhD., and Andrew O. Wood, J.D. (economic loss); Marshal A. White, M.D. (neurology) Attorneys: Scott C. Evans and James B. Moore III of Evans Moore (for the plaintiff )

The plaintiff was pumping gas at a convenience store in Georgetown. As

Most helpful experts: William A.

a log truck passed the store, the lug nuts holding one wheel on its trailer sheared off. The loose wheel and tire assembly rolled through the pump area, striking the plaintiff, his vehicle and the canopy of the station. Security cameras captured a portion of the impact.

Special damages included $347,029 for medical care and economic loss. ◆

$1 MILLION SETTLEMENT

Interstate 85 crash mortally injures oncoming driver Action: Personal injury Injuries alleged: Massive head trauma leading to death Case name: Withheld

The plaintiff was driving along Interstate 85 in Spartanburg County when a collision occurred between a tractor-trailer and another vehicle in the

Court/case no.: Withheld Amount: $1 million Date: Aug, 29, 2023

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Attorneys: Cezar E. McKnight of Law Offices of Cezar McKnight, Kingstree (for the plaintiff )

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opposite lane of the interstate. An axle from the tractor-trailer detached because of the collision and landed on top of the plaintiff’s vehicle, causing massive head injuries. He died of his injuries five days later.

Recovery was from the tractor trailer’s liability carrier. ◆

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VERDICTS & SETTLEMENTS $453,000 VERDICT

Basal cell carcinoma uncovered during second biopsy Action: Medical malpractice Injuries alleged: Basal cell carcinoma Case name: Phillip C. Allison and Laura J. Allison v. ADCS Clinics LLC (d/b/a Advanced Dermatology and Cosmetic Surgery, f/k/a Westside Dermatology Court: Spartanburg County Circuit Court Judge Derham Cole Demand: $135,000 Highest offer: $35,000 Amount: $453,919.47 Trial date: Sept. 18-21, 2023 Attorneys: Brink Hinson and Christina Brown of HHP Law Group and Ryan Langley of Hodge & Langley (for the plaintiff); David Williford and Tim Maio of Huff Powell Bailey (for the defendant)

The plaintiff went to a dermatologist in 2018 with a small lesion on the right side of his nose. Per the medical record, the appearance of the lesion was a clas-

sic presentation of basal cell carcinoma.

The health care provider, a physician assistant, did a biopsy; a few days later, the pathology report came back as “serum crust with parakeratosis,” the medical term for a scab.

At his next appointment, the plaintiff was told by another health care provider, an advanced practice registered nurse, that the pathology results had come back as benign, and that the results were entered into his chart as “benign skin.”

Over the next two years, the lesion worsened. The plaintiff then went to another dermatologist, who did a biopsy that was interpreted as basal cell carcinoma.

The plaintiff required a Mohs procedure to remove the skin cancer. This procedure resulted in a large defect in the skin on the plaintiff’s nose and required a three-stage plastic surgery to repair, which was relatively successful.

The plaintiff’s counsel argued that the

pathology report was inconclusive, and that the plaintiff should have been provided a complete picture of what the report really meant and given the option of having a second biopsy performed. The counsel asserted that had this occurred, the plaintiff would have opted for a second biopsy, basal cell carcinoma would have been diagnosed two years sooner, and his skin cancer would have been addressed when it was small and would not have needed plastic surgery to repair.

The defense asserted that the health care providers didn’t deviate from the standard of care, claimed that no one could say for certain that the patient had skin cancer in 2018, and, even if he did have cancer back in 2018, that the ultimate outcome would have been the same. The defense also tried to blame the plaintiff for not promptly coming back to see a dermatologist when the lesion worsened. ◆

$8 MILLION SETTLEMENT

Rehabilitation hospital fall leads to undiagnosed spinal injury Action: Medical malpractice and wrongful death Injuries alleged: Undiagnosed cervical spine injury that progressed to paralysis that left the plaintiff hospitalized and ventilatordependent until her death Case name, number, and court: Withheld Mediator: Darren Saunders Amount: $8 million Date: Aug. 7, 2023 Attorneys: Julie Moore and Rutledge Young of Duffy & Young, Charleston (for the plaintiff )

The plaintiff was admitted to a rehabil-

itation hospital to recover from brain surgery. Staff at the facility found the plaintiff lying face down bleeding from her head after an unwitnessed fall from her hospital bed. The plaintiff was rolled back on her hospital bed, but her cervical spine was not evaluated or stabilized after the fall.

Plaintiff’s counsel contended that there was a failure of the rehabilitation hospital to evaluate her symptoms and take precautions to stabilize her cervical spine.

About nine hours later, the plaintiff was transferred back to the hospital, where she underwent brain surgery. She was admitted to the care of a hospitalist, who noted that she complained of neck pain.

Plaintiff’s family testified that they told the

hospitalist the plaintiff believed her neck was broken. The hospitalist ordered an imaging study that was not appropriate to evaluate an injury to the cervical spine.

A neurosurgeon was not aware of any concern for a potential cervical spine injury and operated on the plaintiff’s original surgical incision to address sutures placed by the staff at the rehabilitation hospital the following day.

The plaintiff remained in the hospital for 11 days before an MRI revealed that she had bilateral perched facets with severe spinal cord compression. The patient remained in the hospital, paralyzed and dependent on a ventilator for 20 months, until she died. ◆

Submit Your Verdicts & Settlements Online https://sclawyersweekly.com/submit-verdicts-settlements/ 22

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LAWYERS IN THE NEWS New associations Carlisle Brice Allen has joined Haynsworth Sinkler Boyd. She will practice as a member of the firm’s family law team.

David Dill has joined the Greenville office of Maynard Nexsen as a shareholder. His practice focuses on complex litigation, contracts and governmental relations. He comes to the firm from the Greenville office of Nelson Mullins.

Caroline Gimenez-Kaushik has joined Sowell & DuRant of Columbia as an associate. Her practice will focus on complex business disputes, corporate governance, appeals, and probate, estate and general commercial litigation. She comes to the firm after serving as a clerk to Judge Timothy M. Cain for the federal District of South Carolina.

Colleen M. Miller has taken the position of director of recruitment at Shumaker. She previously served as the firm’s director of associate recruitment.

William Neinast has joined the Greenville office of Nelson Mullins as a senior associate. As a member of the litigation team, his practice focuses on product liability litigation, professional liability litigation, commercial litigation, business torts, real estate and premises liability.

Jake Thompson has joined Collins & Lacy’s office in Columbia as an associate.

He practices in the retail and hospitality group. He most recently practiced as an associate at a Lexington law firm.

Jennifer Williams has joined Saxton & Stump’s Charleston office. Her practice includes business law, commercial real estate, trusts, estates and general counsel. She comes to Saxton & Stump from her own established firm.

Daniel Young has joined Moore & Van Allen as director of economic development. He will help lead the firm’s economic development and incentives team. He previously served as executive director of the South Carolina Coordinating Council for Economic Development.

Honors Charles M. Jordan Jr. or Moore & Van Allen has been selected to participate in the Diversity Leaders Initiative program sponsored by the Riley Institute at Furman University. He is one of 42 people selected for the 17th Lowcountry cohort. The institute teaches participants how to help leverage diversity, improve organizational outcomes, and drive social and economic progress.

Gibbs Leaphart, a member of the Robinson Gray law firm, has been certified by the South Carolina Supreme Court’s Board of Arbitrator and Mediator Certification as a Circuit Court mediator. The certification empowers Gibbs to serve as a neutral and impartial communicator between parties to encourage and facilitate voluntary resolution of a dispute. Gibbs’ practice focuses on workers’ compensation law.

Submit notices for Lawyers in the Law to Ross Chandler at rchandler@nclawyersweekly.com. ◆

Lawyers among those recognized with ‘genius grant’ honor Staff & Wire Report

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his year’s class of “genius grant” recipients recognized by the John D. and Catherine T. MacArthur Foundation includes three lawyers, all of whom share an educational connection.

The trio is among 20 recipients of the prestigious fellowships announced Wednesday, Oct. 6.

MacArthur fellows receive a grant of $800,000 over five years to spend however they want. Fellows are nominated and endorsed by their peers and communities through an often yearslong process that the foundation oversees.

They do not apply and are never officially interviewed for the fellowship before it is awarded.

The three lawyers are:

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• E. Tendayi Achiume, 41, of Los Angeles, a legal scholar who examines the history of global migration to argue for a reimagining of the rules governing the movement of people. She is the Alicia Miñana professor of law and a former faculty director of the Promise Institute for Human Rights at the University of California at Los Angeles.

• Andrea Armstrong, 48, of New Orleans, a legal scholar who focuses on incarceration and created a methodology for documenting the deaths of people who die in prison or jail. She is the Dr. Norman C. Francis distinguished professor of law at Loyola University College of Law. • Ian Bassin, 47, of Washington, a lawyer and advocate for democracy. He is

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co-founder and executive director of Protect Democracy, a nonpartisan organization that helped to shape legislation passed in December 2022 to overhaul the Electoral Count Act of 1887 to make it harder for future presidents to seek to prevent the transfer of power. Each earned a Juris Doctor degree at Yale Law School.

The MacArthur Foundation has run the fellowship program since 1981 and selected more than 1,030 recipients.

The awards are given to individuals "of outstanding talent to pursue their own creative, intellectual, and professional inclinations," according to the foundation's website, and the fellowships are not tied to a specific project or institution.

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COMMENTARY

Depositphotos.com

It’s all business, especially the ‘busyness’

I

have been self-employed — or as I call it, unemployed with overhead — for a couple of decades. Unless it was one of the days I skipped, no one in law school taught us how to operate a law firm.

It requires a much different skill set from being a trial lawyer; in fact, many of the skills are exactly the opposite of what a trial lawyer does.

Farris As business owner me, I have to solve problems, but the approach is much different than trial lawyer me uses. I can’t drag a lousy vendor to court on a motion hearing if he sells me a broken product. The

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By Spencer Farris threat of litigation scares most businesses onto the straight and narrow, but for those already in litigation, it is just another day at the office.

A high school student told me a couple of years ago that he wanted to get a business degree and go into business for himself.

“Great idea! What do you want to do?” I asked him.

He looked at me blankly and as if I were speaking Martian.

We don’t go start a business just to own a business; the business is the vehicle that lets us get to the work.

Mine is an old Studebaker with three bald tires and a spring coming through the seat upholstery.

My oldest son recently started his own business with a friend, or as he

calls it, working 60 hours to keep from working 40. He rented space next to my office, and I see him regularly, which is nice. His growing pains in the new venture bring back memories of when I started my law firm. Thankfully, those experiences are barely memories now, far in the rearview.

Starting a new venture of any kind is a young person’s game. You can get a lot accomplished with ambition and a lot of energy. Conversely, you can maintain what you have been doing with experience and an occasional nap.

One major difference between my son and me is our upbringing. As a Gen Xer, I let myself into an empty house after school, jumped bikes over propane tanks, had bottle rocket fights, and was gone till dark without cell-

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COMMENTARY phones or any way to check in. It made perfect sense for me to start my own law firm with no business background or idea of what it would entail. What was the worst that could happen? I could always fail and go to work for someone else.

My son had a parent overseeing most of his activities. His days were structured from wake to sleep. Striking out on his own seems bolder to me.

When he said he was behind invoicing customers, I asked him about getting his bookkeeping and banking set up. He complained that he was too busy doing the work. I could only laugh.

When I started my firm, I was a full-time

single dad half of the time. I had a decent-sized caseload and dockets to answer, and I didn’t think there were enough hours in the day, either.

“What were you doing at 3 in the morning?” I asked him. “You can sleep when you are dead. Better get your work done while you can.”

He rolled his eyes but didn’t say anything. Young people these days want to have a work-life balance. If I had mentioned that concept to my boss at his age, I would have been given the opportunity to have a life without work — or a job. I am convinced that the new way is better. Even so, my baby law firm wouldn’t have survived those early days

but for the hours I spent building a business to practice law in. I remember painting walls, configuring computers and learning to do bookkeeping.

Fortunately, I don’t remember the days running on two hours of sleep and three pots of coffee.

There must be a happy medium between working ourselves to death and not working at all. Until I find it, I will listen while my son complains about how much he has to do each day and try to hide my smile.

Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis. His column is made available by Missouri Lawyers Weekly. ◆

Court cases add new twists to legal language

By Ken Bresler

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he Commerce Clause is right there in the U.S. Constitution, authorizing Congress “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

The dormant Commerce Clause does not appear in the Constitution but is implied. And now Justice Neil M. Gorsuch has devised the phrase “the (wakeful) Commerce Clause,” by which he means — the Commerce Clause.

The phrase appears for the first time in a reported decision, in a case issued toward the end of the Supreme Court’s 2022-23 term.

Gorsuch used the phrase in National Pork Producers Council v. Ross, which let stand a California law that bars in-state sales of pork from pigs that were confined in a cruel manner. The major issue: Did the law affect interstate commerce in violation of the Commerce Clause?

The majority opinion discussed “what has come to be called the dormant Commerce Clause. Reading between the Constitution’s lines … this Court has held that the Commerce Clause not only vests Congress with the power to regulate interstate trade; the clause also contain[s] a

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further, negative command, one effectively forbidding the enforcement of certain state [economic regulations] even when Congress has failed to legislate on the subject.”

In that context, Gorsuch distinguished between the Commerce Clause and the dormant Commerce Clause by writing: “Under the (wakeful) Commerce Clause, that body [Congress] enjoys the power to adopt federal legislation that may preempt conflicting state laws.”

And the point in creating the phrase is what? Has anyone had trouble distinguishing between the Commerce Clause and the dormant Commerce Clause?

Justice Elena Kagan continues to be the breeziest writer on the high bench, but I’m not sure if her catchphrases will become dated — and hard to understand in years to come.

In her dissent to Andy Warhol Foundation for the Visual Arts v. Goldsmith, she used “m.o.” without saying that it stands for “modus operandi.” In Biden v. Nebraska, the student loan forgiveness case, Kagan dissented: “Today’s decision … moves the goalposts … .”

In the same dissent, she used “tell” as a noun, as in a poker player’s change in

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behavior or demeanor to reveal the player’s assessment of the strength of a hand.

(Think of a “telltale sign.”) Kagan wrote: “The tell comes in the last part of the majority’s opinion.” It may be the first use in a Supreme Court opinion or any reported case of “tell” as a noun. But it’s hard to, well, tell because even searching for “the tell” or “a tell” retrieves uses of “tell” as a verb.

Kagan immediately continued to another metaphor: “When a court is confident in its interpretation of a statute’s text, it spells out its reading and hits the send button.” In two successive sentences, she evoked poker and email.

What else did Kagan say about the court’s majority? “It blows through a constitutional guardrail intended to keep courts acting like courts.” Four pages later, she objected that the court did not “stay in its lane.”

Justice Amy Comey Barrett, in her concurrence in the same loan forgiveness case, also used motor vehicle metaphors.

She wrote, “We have also pumped the brakes” on decisions by administrative agencies.

Well, not exactly. Pumping the brakes is See Page 26

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COMMENTARY Continued From Page 25

what a driver does. The Supreme Court, sitting in the passenger’s seat or even in another vehicle, reached its legs across those of the administrative agency in the driver’s seat and pumped the brakes for it.

Barrett also used “greenlight” as a synonym for “approve.”

“Greenlight” is new in Supreme Court opinions; Kagan used it in dissents in 2021 (Whole Women’s Health v. Jackson) and 2022 (Federal Election Commission v.

Cruz). Justice Stephen Breyer also used it in a 2022 dissent (Dobbs v. Jackson Women’s Health Organization).

So far, “greenlight” as a synonym for “approve” carries a whiff of disapproval in Supreme Court decisions; it hints at danger at what greenlighting will bring.

In the student loan forgiveness case, Kagan seemed to initiate a round of conversation using the word “wheelhouse,” meaning the locus of one’s skills or authority. (She used “wheelhouse” twice in her dissent in West Virginia v. EPA in 2022.) In her 2023 dissent, she wrote: “Student loans are in the Secretary[ of Education]’s wheelhouse.” Barrett wrote in concurrence that “[a]nother telltale sign that an agency may have transgressed its statutory authority is when it regulates outside its wheelhouse.”

The majority opinion, rebutting Kagan’s argument and putting “wheelhouse” in quotation marks, wrote that “it would seem more accurate to describe the [student loan forgiveness] program as being in the ‘wheelhouse’ of the House and Senate Committees on Appropriations.”

The end-of-term decisions also seemed to be a conversation among justices using the phrase “straw man” and variations on it. What’s a straw man argument?

Distorting the argument of one’s opponent so that it is weak or extreme and as easy to knock down as an effigy made of straw.

The action connected with a straw man that I’m familiar with is “knock down”; one sets up a straw man for the purpose of knocking it down.

In the 2023 affirmative action case Students for Fair Admissions v. President & Fellows of Harvard College, Justice Sonia

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Sotomayor used a different verb. She wrote in her dissent that the majority opinion “attacks a straw man.”

Justice Ketanji Brown Jackson used a still different verb in her dissent. She wrote that Justice Clarence Thomas “ignites too many more straw men to list, or fully extinguish.” (Thomas wrote a concurrence.) Did Jackson expand the idiom on purpose? I don’t know.

“Strawman” is a verb, too. Thomas, in his dissent in a different case, had this to say: “After thus straw-manning Alabama’s arguments at the outset, the majority muddles its own response.” That was in Allen v. Milligan, the electoral redistricting case at the end of the court’s term.

Is it one word or two? “Straw man” and “straw men”? Or “strawman” and “strawmen”? Is it hyphenated? “Straw-man” and “straw-men”? In 2023, the expression was two words in Sotomayor’s dissent in the affirmative action case. In 2022, it was one word in her dissent to Kennedy v.

Bremerton School District, the case of the praying high school football coach. It is hyphenated in Thomas’ dissent in the 2023 redistricting case.

Are these the justices’ personal preferences to which the court’s reporter of decisions is deferring? Is the reporter of decisions changing its institutional mind from case to case, or not paying attention?

I don’t know.

The Supreme Court’s end-of-term decisions were notable for things that are not words: bullet points and graphics. In the affirmative action case, Justice Brett M. Kavanaugh used five bullet points in his concurrence. They’ve appeared before in Supreme Court decisions, but they’re rarer than they should be in legal writing.

The majority opinion about Vanity Fair’s use of an Andy Warhol portrait of the late singer Prince featured 11 images, including the photograph by the photographer-respondent, Warhol’s purple silkscreen portrait as it ran in Vanity Fair, and a Campbell’s soup can by Warhol. The appendix had 16 images of Prince. Kagan’s dissent contained eight images, including three reclining female nudes, one each by Giorgione, Titian and Manet. Most of the images in the case’s various opinions were in color.

Another intellectual property case, Jack Daniel’s Properties v. VIP Products, had four photographs. Gorsuch’s plurality opinion in Mallory v. Norfolk Southern Railway Co. had a color graphic detailing the railway’s operations. The appendix to Thomas’ dissent in Allen v. Michigan had 11 electoral district maps. “A picture (or two) … is worth a thousand words,” wrote Kagan in her dissent in the Warhol case.

When I first learned legal writing decades ago, writers who were aware of the power of language to include or exclude made an effort to use “his or her” instead of “his.” It was a significant development in legal and other writing.

With the fairly recent realization (at least by some people) that not every person fits into the binary categories of he or she, the word “they” became the genderless singular pronoun, at least for some. Thus, writing came to mimic colloquial speech in using “they” and its variations to designate an unspecified or generic person.

I’m not saying that the Supreme Court used the singular “they” for the first time in its affirmative action opinion — I don’t read every Supreme Court case — but it is the first time I’ve noticed it. The last substantive paragraph of the opinion states that universities “have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.” An individual is a “they.”

Sotomayor also used “they” in the singular. Her dissenting opinion said that the majority opinion “does not identify a single instance where respondents’ methodology has prevented any student from reporting their race with the level of detail they preferred.” “Any student” is a “they” whose possessive pronoun is “their.”

The court majority and some people who laud the opinion see it as an advance, a way to implement a colorblind society.

The dissenters and people who decry the opinion see it as a retreat from inclusion.

But the subtle language in the majority and a dissenting opinion (whether the writers used it on purpose) incrementally advanced inclusion.

Ken Bresler writes about legal and other writing at clearwriting.com. ◆

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JUNE 8, 2020 ■

2020

In a first, COVID-19 concerns lead to compassionate release for inmate ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires A U.S. district judge in South Carolina has granted a federal inmate’s motion for a reduced sentence in light of the presence of COVID-19 at his North Carolina prison facility. The order is reportedly the first in the state, but it may not be the last, with other inmates following suit and complaints having been filed by the American Civil Liberties Union on behalf of prisoners in both South Carolina and North Carolina.

Joseph Leslie Griggs pleaded guilty in 2018 to illegal possession of firearms. In August 2019, he was sentenced to 25 months of incarceration and three years of supervised release, but in May he moved to have his sentence reduced pursuant to the federal compassionate release statute. Congress recently amended the statute as part of the First Step Act, to allow inmates to petition the federal courts for compassionate release once their administrative remedies with the Bureau of Prisons have been exhausted.

Griggs argued that his release was required due to his medical conditions—particularly chronic obstructive pulmonary disorder (COPD)— and the spread of COVID-19 at the federal prison in Butner, North Carolina, where he was incarcerated. The federal government countered that Griggs had failed to make a sufficient showing of extraordinary and compelling reasons under the U.S. Sentencing Guidelines’ Policy Statement.

But U.S. District Judge Donald C. Coggins Jr. ruled that the policy statement is limited in application to motions for reduction filed by the director of the BOP and hasn’t been updated since the First Step Act was passed. Coggins relied on the discretion vested in district courts to apply the factors spelled out in federal law in granting Griggs’s motion.

“The Court finds that there are viable sentencing alternatives to Defendant finishing his custodial sentence at FCI Butner Low,” Coggins wrote.

“The Court is reluctant to modify Defendant’s sentence, as he has already been spared years of time in federal prison due to his medical conditions.

His criminal conduct was egregious and showed a blatant disrespect of the law; however, this Court cannot sit idly by and watch while COVID-19 destroys elderly and seriously infirm inmates in BOP custody.”

A ‘perfect storm of preexisting conditions’

While the policy statement provides “helpful guidance,” it doesn’t constrain a district court’s independent assessment of whether “extraordinary and compelling reasons” warrant a sentencing reduction, Coggins said.

Griggs argued that his extensive medical conditions established extraordinary and compelling reasons

for a sentence reduction. The court acknowledged that Griggs, 54, was classified as borderline clinically obese and suffered from a host of conditions including spinal stenosis, degenerative disc disease, a narrow spinal canal, conjoined nerves at the lumbar of his back, sciatica nerve pain, high cholesterol, high blood pressure, COPD, diabetes, anxiety and depression.

His medical conditions resulted in his placement at FCI Butner Low, where 76 active cases of COVID-19 had been confirmed among inmates as of May 21.

“The Court further acknowledges that Defendant has the proverbial perfect storm of preexisting conditions that would make him vulnerable to severe complications if infected with COVID-19,” Coggins wrote. “The Court is particularly concerned with Defendant’s COPD.” District courts in other states have granted compassionate release motions under similar circumstances, Coggins noted, including Connecticut, New York, and Washington.

“The common thread among these district court orders is that a sentence reduction is justified only when a defendant is of relatively advanced age and suffers from serious preexisting conditions,” the ruling reads. “The Court emphasizes that it will scrupulously examine future requests for compassionate release and will only grant such requests in extraordinary and compelling cases.”

Coggins emphasized that potential exposure to COVID-19 alone is not a basis for a reduced sentence, nor does the existence of one or more preexisting conditions guarantee release.

Instead, the court must analyze each defendant on a case-by-case basis.

COVID-19 cases continue to climb

Applying the statutory factors, Coggins concluded that Griggs’ request was a “very close question in light of the severity and scope” of his criminal conduct.

Griggs was “brazen” about his criminal conduct, Coggins wrote, leaving numerous stolen goods in plain view at his house and purchasing a firearm from a law enforcement officer with full knowledge that he was prohibited from owning a firearm due to a 10-year sentence in 1992 for property crimes.

While the nature and circumstances of Griggs’s offense and history, as well as the seriousness of the offense, weighed in favor of serving his full term of imprisonment, Coggins expressed concern about the severity of the COVID-19 problem at Butner.

“The number of positive cases among inmates and staff continues to climb at all of the BOP facilities at Butner,” he wrote. “This directly endangers Defendant’s health; however, it also stifles the opportunity for Defendant to receive prompt and

Evan Meyer Slavitt

Senior Vice President, General Counsel, Corporate Secretary • AVX Corporation Greenville

adequate treatment for his medical conditions.”

Although Coggins found that the factors tipped in favor of reducing Griggs’s sentence to time served, he imposed several conditions, modifying the three years of supervised release to home incarceration for the first 18 months (with GPS location monitoring), a 14-day self-quarantine after release, and a ban on leaving his home other than for scheduled doctors’ appointments (including for work, church, or social events).

Coggins also sent a message to the BOP, reminding the agency that it is in the best position to evaluate inmates’ health conditions, risk of infection and complications, dangerousness as well as the need for avoiding sentencing disparities.

“It is critical that district courts give full consideration to all motions for compassionate release and be mindful of the lack of resources available to many federal inmates,” the ruling reads. “Law must be applied uniformly, and the BOP must be mindful of its obligation to apply the criteria in the Policy Statement fairly to all inmates, not just those high-profile inmates who can afford a bullpen of legal and medical experts.”

More cases to come?

Paul V. Cannarella of Hartsville and Rose Mary Parham of Florence represented Griggs. Michael R. Ray of from Hartsville, a non-attorney who assisted with Griggs’ defense, said that this was the first case in the District of South Carolina where an inmate received compassionate release solely based on COVID-19 as a reason

Reprinted with permission of South Carolina Lawyers Weekly

for release under the First Step Act, and Coggins granted the motion despite serious misgivings.

“Griggs is certainly not his favorite defendant,” Ray said. “Judge Coggins didn’t think he deserved to be out, didn’t want him out and didn’t think he served long enough, but he couldn’t turn a blind eye to the dangers facing [Griggs] if he stayed in prison.”

A spokesperson for the U.S. Attorney’s Office declined to comment on the order.

The order could be the first of many in the state, with a lawsuit recently filed by the ACLU on behalf of incarcerated individuals at risk of serious harm or death from COVID-19 due to underlying medical conditions. In addition, the suit seeks policy and procedural changes at Spartanburg County Detention Center such as allowing free, unlimited access to soap, disinfecting cleaners, and personal protective equipment, as well as requiring social distancing of six feet, with enforcement.

The issue has also reached the 4th U.S. Circuit Court of Appeals in the case of Albert Parish, who pleaded guilty to charges of fraud and began serving a 24-year prison sentence in 2008. Mount Pleasant attorney Cameron Jane Blazer is handling Parish’s appeal and will point to the Griggs decision for support.

“The BOP has demonstrated at [multiple facilities] that they do not possess the ability to protect the people who are there from this or other kinds of health issues arising out of institutionalized settings,” Blazer said.

The Associated Press

E

van Meyer Slavitt believes lawyers must lead with an eye toward the values of the profession and the next generation of lawyers that will follow them.

“Being a leader is more than just an operational job. It requires a strong ethical and teaching component,” he says.

Slavitt grew up on Cape Cod in Massachusetts and enjoyed participating in the Harwich Junior Theatre, an organization that relied on participating children to act, build the sets, run lighting and sound, work on costumes, and perform other chores.

In that environment, the adults expected the kids to be responsible and professional.

“I think this approach was essential to my later academic and professional success,” he says. “Further, I got a chance to fly on stage as John in Peter Pan and to play Templeton the Rat in Charlotte’s Web,” he says.

Slavitt earned Bachelor of Arts and Master of Arts degrees in economics from Yale University and a J.D. from Harvard Law School, where he was editor of the Harvard Law Review. He is senior vice president, general counsel, and corporate secretary at AVX Corporation, a global manufacturing facility in Greenville.

He is also a commercial, environmental, and appellate panel member for the American Arbitration Association.

He points to Bob Sylvia as his most important mentor who taught him lessons about how to be an effective trial lawyer.

“Bob was a partner in a law firm I joined when I went into private practice,” Slavitt says. “In addition to his technical coaching, he helped me understand how to find joy in the grind of litigation and how to manage the stress of private practice.”

If Slavitt had not become a lawyer, he likely would have pursued a career in economics because “economics is both intellectually challenging and has real-world implications,” he says.

His first job at a bakery, which required him to go to work at 4 a.m. every day, taught him to find joy in his work.

“The lead baker was always there when I arrived, and had been for some time,” Slavitt says. “He never complained because he loved what he did and showed me the important of finding work that you love, because that diminishes all the ancillary problems.”

While Slavitt cites managing work/ life balance as one of his biggest career challenges, he draws from advice his Latin teacher gave him to put things in perspective.

“He said ‘don’t sweat the small stuff,’” he recalls. “Just because something is immediate, doesn’t mean it is important. When there were chores to do at home, they sometimes didn’t get done because taking my kids to the park was more important.”

When Slavitt takes a vacation, he enjoys visiting islands in the Caribbean where his cell phone doesn’t work, and where he can simply sit on the beach with a fruity beverage.

Some people may not know that Slavitt likes to relax by doing needlepoint, and he has published a novel titled Death of a Prosecutor.

Reprinted with permission of North Carolina Lawyers Weekly

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© 2020

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