Alan Wilson & the United States & South Carolina Supreme Courts

marriageequalityOn Tuesday, November 18th, South Carolina Attorney General, Alan Wilson, filed an Application for an Emergency Stay with the United States Supreme Court.  Wilson asked the Court to grant a stay that “…last[s] while the appellate process is completed in this case at the Court of Appeals and while any Petition for Writ of Certiorari is considered by this Court.  Time is of the essence….”  Wilson was defending Article XVII, Section 15, of the South Carolina Constitution which recognizes a marriage “…between one man and one woman…” as the “,,,only lawful domestic union which shall be valid or recognized in this State.”

Because Judge Michelle Childs  issued an opinion in Bradacs v. Haley that resolved the same-sex marriage issue, the South Carolina Supreme Court issued an order, lifting its injunction against Judge Irvin Condon on Wednesday, November 19th.  The injunction was issued by the Court on October 9th to prevent Judge Condon from issuing same-sex marriage licenses.

On Thursday, November 20th, the United States Supreme Court denied Wilson’s application, noting that Justice Scalia and Justice Thomas would have granted the stay.

These decisions paved the way for same-sex marriages to begin in South Carolina.    According to Charleston’s Post & Courier, a gay couple picked up the first license for a same-sex marriage on November 20th in Charleston.

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Thanksgiving & Library Hours

thanksgiving2014Have a most happy Thanksgiving and travel safely if you are headed out.  For those who are staying here and studying, the library will be closed on Thanksgiving.  It will re-open as a study hall only, staffed only by security, on Friday, November 28th, at 9:00 a.m. and close at 6:00 p.m.  Extended exam hours begin at 7:00 a.m. on Saturday, November 29th.  The library will be open, nightly, from 7:00 a.m. – 2:00 a.m. until Saturday, December 13th.  Good luck on exams!

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4th Circuit Refuses to Grant S.C. a Delay Re Same-Sex Marriages

marriageequalityYesterday Judges Traxler, Motz and Thacker of the United States Court of Appeals for the Fourth Circuit denied South Carolina Attorney General Alan Wilson’s Motion for a Stay, pending appeal, regarding same-sex marriage.  As a result, the first gay couple married in Charleston, South Carolina this morning.

Last night, the Attorney General filed an Emergency Application to Stay the enforcement of South Carolina District Court Judge Richard Gergel’s order with the United States Supreme Court.

For a more detailed analysis, check out the SCOTUS blog entry on the subject here.

Hat Tip:  Cassie Hutchens, SCOTUS Blog

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Judge Gergel’s Decision in Condon v. Haley

marriageequalityJudge Richard Gergel of the United States District Court of South Carolina (Charleston) handed down a decision this morning in Condon v. Haley, declaring S.C. Code Sections 20-1-10 and 20-1-15 and S.C. Const. Art. XVII Section 15 to unconstitutionally infringe on same-sex couples’ fundamental right to marry and their equal protection rights.  Noting that these rights are guaranteed under the Due Process and Equal Protection clauses of the Fourteenth Amendment,    Gergel held that the United States Court of Appeals for the Fourth Circuit’s decision in Bostic v. Schaefer was controlling.  He pointed out that the United States Supreme Court decision in United States v. Windsor, published in June of 2013, paved the path for this morning’s decision.

Hat Tip:  The State and The Post & Courier

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Check out the November Barrister

sbjlllogoCheck out the November issue of the library’s student newsletter, The Barrister, here for information about:

Thanksgiving holiday hours

Extended exam hours

*  IT and ExamSoft

*  Stress Relievers & Crunch Time

Study Aids

Study Rooms

South Carolina Advance Sheets

Bar Prep materials &

*  iPads for check out.

 

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Decisions by the South Carolina Supreme Court

On October 29th, the South Carolina Supreme Court handed down five decisions. In Bordeaux v. State, the Court granted certiorari in a post-conviction relief action to review  whether the Court of Appeals’ erred in remanding for reconsideration of the legality of Bordeaux’s convictions and sentences for first degree burglary.

Bordeaux pleaded guilty to first degree burglary. Pursuant to his negotiated plea agreement, he was sentenced to a term of twenty-five years, provided that upon the service of twenty years the balance is suspended and he is placed on three years probation. However, the sentencing sheets indicated that Bordeaux pleaded guilty to  second degree burglary that has a maximum of fifteen years.

Bordeaux sought relief from his sentence claiming that it was illegal since the twenty-five year sentence exceeded the maximum allowed for a second degree burglary conviction.  The PCR judge granted a new trial recognizing that the sentencing sheets definitely took precedent over the unambiguous plea transcript.

The Supreme Court affirmed in part and reversed in part the Court of Appeals’ decision. The Court agreed that “the PCR judge committed an error of law in ruling the ambiguous sentencing sheets took precedence over the unambiguous plea transcript. However, the Court reversed the Court of Appeals’ decision to remand finding “as a matter of law that Bordeaux pleaded guilty to two counts of first degree burglary and was properly sentenced . . . pursuant to his negotiated plea.

In South Carolina Property and Casualty Ins. v. Brock et al., the Court affirmed in part and reversed in part the Court of Appeals’ decision. The issue was solely one of statutory interpretation of the South Carolina Property and Casualty Insurance Guaranty Association Act (S.C. Code Ann. Sec. 38-31-10 to 170 ).

The case arose when Brock sustained injuries in an accident with a logging truck insured by Aequicap Insurance Company. Prior to Brock receiving payment for his injuries, Aequicap was declared insolvent and the claim was referred to Guaranty. The trial court allowed Guaranty to offset the payments made by solvent insurers to Brock pursuant to section 38-31-100 (1). The circuit court reversed finding that 38-31-100(1) was ambiguous, but did allow offset of the uninsured motorist (UM) and personal injury protection (PIP) benefits. The Supreme Court held that section 38-31-100 was unambiguous, reversing the lower court’s holding, and provided that Guaranty may offset all payments from all solvent insurers made to Brock as a result of this wreck.

In the Matter of Nathan Jardine, the Court disciplined Attorney Jardine for violating Rule 7, Rules of Professional Conduct, Rule 407, SCACR, and Rule 418, SCACR. Respondent was permanently debarred from seeking any form of admission to practice law in this state (including pro hac vice admission) without first obtaining an order from this Court allowing him to seek admission. Further, Respondent was prohibited from advertising or soliciting business in South Carolina without first obtaining an order from the Court.

Fabian v. Lindsay, was a cause of action, in tort and contract, by a third-party beneficiary of an existing will or estate planning document against a lawyer whose drafting error defeats or diminishes the client’s intent.  The Court held that “Recovery under either cause of action is limited to persons who are named in the estate planning document or otherwise identified in the instrument by their status. Whether the claim sounds in both tort and contract, the plaintiff may elect a recovery.” The Court reversed the order dismissing Appellant’s complaint and remanded the matter to the circuit court for further proceedings consistent with this decision.

In State v. Heller, the Court reviewed the Court of Appeals’ decisions in State v. Heller, 399 S.C. 157 and dismissed the writ as improvidently granted.

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Court of Appeals Decision for 10-29-14

On October 29th, the Court of Appeals handed down a decision in State v. Starks, affirming the decision of the trial court to allow evidence of an out of court identification of Starks by the State’s sole witness. In his appeal, Starks argues that the out of court identification evidence was “unnecessarily suggestive and created a substantial likelihood of misidentification under Neil v. Biggers.

Starks robbed a convenience store while wearing a ski mask. The store clerk and eye witness identified Starks during the commission of the crime, through recognition of his voice and body build, based on her prior knowledge of Starks as a regular customer. The clerk later identified Starks in a police line up. The court reasoned that the reliability of Williams’ [the store clerk] testimony that Starks committed the crime depended only upon the accuracy of her recognition of Starks’ voice and body build during the sequence of the crime, and did not depend upon any likelihood of misidentification the police created when she viewed Starks’ face during the show up procedure.  The trial court placed particular emphasis on the fact that Williams knew Starks before the crime. Thus, the Court of Appeals held that the trial court’s finding that the identification was sufficiently reliable is supported by the evidence, and thus was not an abuse of discretion. 

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