American Indian Legal Materials Interactive Map

americanindianThe Law Library of Congress has created an Indigenous Law Portal that maps and links American Indian constitutions and other legal materials by state.  The site can be searched by state, by region, or by tribal name.  As an example, clicking on South Carolina provides links to the Catawba Indian Nation, its website and its constitution.    Check it out here and browse some of the library’s materials on the Catawba Indians.

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July 30, 2014 4th Circuit published opinion

De Leon v Holder

De Leon sought special rule cancellation of removal under 8 USC 1229b. The immigration board ruled de Leon was not free from official restraint when he was apprehended and thus ineligible for special rule relief. The panel, 2-1, granted De Leon’s petition for review and remanded. The majority held that De Leon could rely on government evidence to meet his burden of proof and that the government’s evidence here established freedom from official restraint as he was first spotted nine miles inside Arizona and could have mingled with the general population at some point before observation. The majority noted this conclusion is consistent with the board’s approach to freedom from restraint when that finding allows deportation and is also consistent with the weight of authority from other circuits. Then dissent argued that De Leon bore the burden of proof of the issue of freedom from official restraint, presented zero credible evidence on the issue and thus the board’s decision should be affirmed.

 

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July 30, 2014 South Carolina Court of Appeals published opinions

State v Pearson

Pearson moved for a directed verdict on the burglary and other charges he faced at his trial. The circuit court denied his motion and the jury convicted him on all counts. The panel reversed. It held that the evidence presented by the state, namely a fingerprint on the victim’s car and participation in a job training work program with a codefendant, was insufficient to connect Pearson to the crime as Pearson could have placed the fingerprint on the car when he worked on victim’s landscaping and it was speculation that Pearson and the codefendant knew each other based solely on the job training program.

State v Mimms

Mimms appealed her DUI conviction arguing the state was required to prove intent to commit DUI and there was insufficient evidence to convict her. The panel affirmed. It held that the DUI statute creates a strict liability crime aimed at the behavior of driving drunk and not at any evil state of mind. It noted the statute is a safety measure and absurd results would result in allowing people to argue that while they drank and drove they did not intend to do so impaired. The panel also held that the arresting officer had reasonable suspicion to pull Mimms over based on leaving the road and her failed sobriety tests, manner and demeanor suggesting intoxication and the smell of alcohol on her breath were sufficient to allow the case to go to a jury.

Sierra Club v South Carolina Department of Health and Environmental Control

On reamed, the administrative law court ruled that an applicant for renewal of a license to operate a radioactive waste treatment facility complied with all regulations identified by the Court of Appeals in the readme order. The panel affirmed in part and reversed in part. It held that applicant had proven it complied with the regulations concerning stabilizing the waste, isolating the waste, minimizing contact between wastewater and surrounding waters. however, it held that applicant failed to prove compliance with technical section concerning protection of groundwater because it took no steps to prevent rainwater form getting into the treatment trenches,  took insufficient action to minimize wastewater migration and took no action to capture wastewater for testing. The panel stated its concern that Department did not require compliance with these technical provision. It ordered Department and applicant to file a plan to remedy the violations within 90 days and ordered the license to operate be revoked if the administrative law court determines the plan will not result in full compliance.

State v Parvin

Parvin appealed his murder convictions arguing the trial court erred in admitting certain statements. The panel affirmed holding that, while the trial court did err in allowing hearsay statements about Parvin soliciting sex, the error was harmless because the same statements came in through another witness without objection.

Katzburg v Katzburg

Husband appeled an order holding him in contempt. The panel vacated the order. It held that because wife registered her New York judgment in the circuit court, the family court lacked subject matter jurisdiction when she later registered the divorce decree in family court and sought a contempt order.

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Pardon our mess! Carpet cleaning!

carpetcleaningPardon our mess!  In order to prepare for the start of the Fall 2014 semester, Facilities will be cleaning the carpet on Monday, August 4th.  Please expect noise and furniture movement.  Thanks for your patience!

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July 30, 2014 South Carolina Supreme Court published opinions

State Accident Fund v South Carolina Second injury Fund (In re Adger)

Accident Fund sought reimbursement from Injury Fund under South Carolina Code 42-9-400 arguing Adger’s preexisting diabetes resulted in higher medical expenses when he injured his knee on the job. The worker’s compensation commission rejected its claim. On certified appeal, the Court, with one justice concurring in result only, reversed and remanded. It held that the commission failed to apply the presumption in 400 that Adger’s diabetes was a permanent disability, erred in finding the presumption rebutted given the evidence that Adger suffered tingling in his foot after knee replacement surgery resulting in the need for special footwear and failed to apply 400’s increased medical expenses prong which was satisfied here based on the testimony of the treating physician. The case was remanded to calculate the amount of reimbursement owned by Injury Fund.

In the matter of Robert Paul Taylor

Taylor submitted fabricated evidence in his bar investigation and abandoned a client. He agreed to disbarment. The Court disbarred Taylor retroactive to his interim suspension and ordered that he complete the bar’s ethics, trust fund and office management courses prior to seeking readmission.

In the Matter of James Watson Smiley IV

Smiley failed to maintain trust fund account records, agreed to a plea deal for a client without notifying the client before or after the negotiations and failed to provide information to the bar in a timely manner during his investigation. He agreed to discipline and the Court publicly reprimanded him and ordered him to pay the costs of the investigation and pass the bar’s ethics and trust fund courses within six months.

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July 28, 2014 4th Circuit published opinions

Bostic v Schaefer

Bositc and others sued Shaefer and other state officials seeking declaration that Virginia’s constitutional and statutory bans on same sex marriage violate the 14th Amendment. The district court granted summary judgment to Bostic and the other plaintiffs. The panel, 2-1, affirmed. The majority held that Bostic had standing because his application for a marriage license was denied, that the state’s forms did not allow a same sex couple to be apply for a license or be listed as the two parents of a child and same sex couples face stigma rising form the enforcement of the bans.  The majority held that a 1972 summary decision by the United States Supreme Court affirming a state court declaration that the 14th Amendment does not require recognition of same sex couples is no longer binding given the development of equal protection and due process doctrine and the 2013 Windsor decision which required the federal government to recognize same sex marriage in states which authorized them. The majority held that because the right to marry, which includes the right to marry someone of the same sex, is a fundamental right, strict scrutiny applied. It held the bans did not satisfy strict scrutiny because Virginia’s right to define marriage is subject to federal constitutional restrictions, preserving the historical understanding of marriage is not a compelling interest, there is no evidence that recognizing same sex marriage will undermine the institution of marriage, banning same sex marriage does nothing to promote the asserted interest in preventing accidental pregnancies and the state’ belief that opposite sex parents are the optimal family form is based on broad overgeneralizations and there is no evidence that recognizing same sex marriage will undermine sound parenting by opposite sex couples. The dissent argue that same sex marriage is not a fundamental right as it has no long historical basis in the American experience. The dissent argued that the bans survive rational basis review as Virginia could rationally conclude favoring opposite sex couples serves the purposes of encouraging those couples to procreate in marriage and forming stable family units which provide the basis of stable political entities. The dissent also rejected Bositc’s equal protection claim as sexual orientation is not a suspect class and the bans survive rational basis review.

In re Railworks Corporation (Guttman v Construction Program Group)

Gutmman, as trustee of Railwork’s bankruptcy estate, sought the return of insurance premiums sent to Group for transfer to Railwork’s insurance company. The bankruptcy judge granted summary judgment to group. The district court reversed. The panel reversed holding that under 11 USC 550, Group was a mere conduit for the premiums because it was obligated to transfer the premiums to the insurance company. Thus, it was not a proper party to bring a claim against.

 

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July 25, 2014 4th Circuit published opinions and order

National Heritage Foundation, Incorporated v Higbourne Foundation

The panel granted a motion to rehear and deleted a portion of the June 27, 2014 initial opinion which stated in dicta that Heritage may have other means of relief should the feared lawsuits against Heritage be filed. The panel left intact the holding that there was insufficient proof that the nondebtor officers and directors release provision was essential and affirmed its rejection by the bankruptcy court.

United States v Valdovinos

Valdavinos appealed his federal sentence arguing his state drug dealing conviction was not a felony for the career criminal sentencing guidelines. The panel 2-1 affirmed. The majority held that the state conviction qualified as Valdavinos was subject to the mandatory 16 month term which is longer than one year. The fact that Valdavinos had a plea agreement capping his sentence at 12 months does not change the analysis as the statue, not the plea agreement, controls the characterization of the crime for federals sentencing purposes and in any event Valdavinos was on notice he was pleading to a drug crime with a potential 16 month sentence and the state court had the option of rejecting his plea. The dissent argued that the American criminal justice system incarcerates too many for too long and punishes minorities and illegal immigrants far worse than whites and citizens. Thus, on this open question the dissent would hold that because North Carolina law requires a sentencing judge to sentence within the range of the plea agreement it has accepted, the plea sentencing range, not eh statutory range should control. It also argued that the majority approach undermines state prosecutors and judges.

Nucor Corporation v Brown

Nucor sought to file an interlocutory appeal of the denial of motion to decertify a class. The panel denied the motion holding that Nucor had 14 days to appeal the original certification order and did not do so. The later motions to decertify did not restart the 14 day clock as the class remained certified. Thus, the appeal was time barred.

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