Resources for King v. Burwell

supremecourtunitedstates On Wednesday, March 4, 2015, the United States Supreme Court will hear oral arguments in King v. Burwell, the latest challenge to the Patient Protection and Affordable Care Act, popularly known as Obamacare.

According to the docket sheet on file with the Court, the issue is framed as follows:  “Whether the Internal Revenue Service (IRS) may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through Exchanges established by the federal government under Section 1321 of the ACA?”  Merits and Amicus briefs, maintained by the American Bar Association, can be found here.

Oral arguments will be recorded but audio will not be available until Friday, March 6th.

Since the dispute involves statutory interpretation and ascertaining legislative intent, ProQuest Congressional and Congress are excellent resources for obtaining Congressional documents, including bill variations, reports, hearings, debate, and prints.  Check out the ProQuest legislative history for the ACA here and the more limited history from Congress here.

Links to the audio of the oral arguments will be posted Friday.  Happy reading!

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Library Hours During Spring Break

springbreak Charleston School of Law’s spring break starts officially when classes end on Friday, March 6, 2015 and runs until they resume on Monday, March 16th.  During that time, the library will be open its usual operating hours.  The Circulation, Help, and Reference Desks will be staffed at this time.    Either enjoy your spring break or have a productive one.  Travel safely!

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South Carolina Supreme Court Opinions 2-25-15


On Wednesday, February 25, 2015, the South Carolina Supreme Court handed down six opinions: State v. Samuel, Independence National Bank v. Buncombe Professional Park, In the Matter of Givens, In the Matter of Pennington, State v. Ortho-McNeil-Janssen Pharmaceuticals, and In the Matter of Brunty.

In State v. Samuel, the Petitioner was on trial for homicide by child abuse, relating to the death of a ten week old infant left in her care.  The petitioner took a polygraph and provided a series of 5 statements to the police. The trial court granted a motion to suppress the first of the 5 statements made by Petitioner in connection with the polygraph examination. The other 4 statements, made subsequent by the petitioner, produced similar evidence as the Statement 1. The prosecution immediately appealed this decision and was granted a reversal by the court of appeals. This Court vacated the court of appeals’ decision reversing the trial court’s suppression of the initial statement during pre-trial motions. The Court reasoned that “Petitioner’s statements made subsequent to Statement 1 were admitted by the trial court.” And that “[b]ecause those statements supplied essentially the same information and confession as Statement 1, the suppression of Statement 1 did not significantly impair the prosecution’s ability to try Petitioner’s case.” Thus the Court found that the trial court’s pre-trial order was not immediately appealable and vacated the order.

In Independence National Bank v. Buncombe Professional Park, the Court reversed the decision of the court of appeals, finding that the petititioner Bank established its right to equitable subrogation.

In 2007, DeClarlis, owner of respondent Buncombe Professional, LLC (“Buncombe”), executed a note and mortgage with Bank. Simultaneously, DeCarlis executed a personal guaranty and the Bank satisfied the existing first mortgage at closing.

Later Buncombe ceased payment on the 2007 mortgage and the Bank prepared a foreclosure suit. The Bank discovered DeCarlis held a second mortgage on the property executed and properly recorded in 2006. The same attorney represented both Bank and Buncombe in the 2007 mortgage closing and had notice of DeCarlis’s 2006 mortgage. Due to the attorney’s neglect in having DeCarlis execute a satisfaction, release or subordination of his 2006 mortgage, before the 2007 closing, the 2006 mortgage took priority over the Bank’s 2007 mortgage.

Bank brought this foreclosure action against both Buncombe and DeCarlis. The master reformed both mortgages, subordinating DeCarlis’ mortgage to the Bank’s. In a post-trial order, the master found Bank was equitably subrogated to the original first mortgage . . ., thus giving Bank’s 2007 mortgage priority over the 2006 DeCarlis mortgage on a second ground. The court of appeals reversed the master’s decision. This Court reversed the decision holding that the court of appeals erred in finding Bank had actual notice of DeCarlis’ 2006 mortgage by virtue of its agent’s actual knowledge of this lien. The Court reasoned that “[s]ince Bank had only constructive knowledge of that mortgage, . . . and otherwise met the requirements for equitable subrogation to the original first mortgage . . . the master correctly ordered that Bank’s 2007 mortgage was equitably subrogated to that mortgage and therefore had priority.

In the Matter of  Givens, the Court handed down a disciplinary opinion in which the Court suspends a lawyer from the practice of law for nine months for violations of Rules of Professional Conduct, Rule 407, SCACR: Rule 8.4 and the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1) and Rule 7(a)(4).

In the Matter of Pennington, the Court handed down a disciplinary opinion in which the Court publicly reprimands a lawyer for violations of Rules of Professional Conduct, Rule 407, SCACR: Rule 1.15(a); Rule 1.15(f); Rule 8.4(d); and Rule 417, SCACR. Respondent also violated Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1).

State v. Ortho-McNiel-Janssen Pharmaceuticals was a direct appeal concerning the S.C. Unfair Trade Practices Act. The Court affirmed the liability judgment on the labeling claim but modified the judgment to limit the imposition of civil penalties to a period of three years from the date of the tolling agreement. The Court affirmed the liability judgement on the Dear Doctor Letter claim but remitted the civil penalties imposed. Accordingly, the Court affirmed in part, reversed in part and remanded for entry of judgment against Janssen in the amount of $136, 025.400.

In the Matter of Brunty, the Court disbarred respondent, imposed conditions his readmission, and ordered him to pay restitution.  Respondent was found to have violated the current version of then Rules of Professional Conduct, Rule 407, SCACR: Rule 1.7(b), 8.1(a), 8.4(d), and 8.4(e). Respondent was also determined to be in violation of Rules1.1  1.2, 1.3, 1.4, 1.5, 1.6, 1.7,1.8,  1.8(m), 1.15, 1.16, 1.16(d), 3.2, 5.5, 7.1, 7.3(a), 8.1(a), 8.1(b), 8.4, Rule 417, SCACR, the Lawyer’s Oath, Rule 402(k)(3) SCACR,. Respondent also violated Rules of Professional Conduct for several other states where barred.

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South Carolina Court of Appeals Opinion 2-25-15


On Wednesday, February 25, 2015, the Court of Appeals handed down a decision in Srivastava v. Srivastava.

In this divorce action, Jane Srivastava (Wife) appeals the family court’s final order. Ms. Srivastava argues that the family court erred by: (1) failing to either impute income to Husband or deviate from the Child Support Guidelines in its child support award, (2) giving credit to Husband for excess child support payments, (3) awarding Husband attorney’s fees, (4) not awarding Wife attorney’s fees, (5) dividing the material property in an equitable manner, (6) finding Husband did not condone Wife’s adultery, (7) denying Wife alimony, and (8) rendering a partial and biased decision.

On the first two issues, the Court held that Wife did not preserve her arguments for appellate review because she failed to raise the issues to the family court, and never filed a Rule 59(e) motion for the family court to consider the issues.

For the award of attorney’s fees, the Court found that the family court erred in awarding $50,000 to Husband as the evidence did not support the attorney’s fees awarded.  The court, in comparing the award of attorney’s fees to Wife’s annual income, found that the $50,000 award represents approximately 90% of Wife’s gross annual income. Moreover, Husband earned a substantially higher annual income than Wife.  The family court generally acknowledged that it considered the four factors in E.D.M. v. T.A.M. in deciding whether to reward attorney’s fees, and then referenced the Glasscock factors in determining how much to award in attorney’s fees. The income-to attorney’s fees ratio made it apparent that the family court did not sufficiently consider each party’s ability to pay, their respective financial conditions, and the effect of the award on each party’s standard of living.  Therefore, the Court found the awarded amount of attorney’s fees to Husband to be excessive and an abuse of discretion. And thus, the Court remanded this issue to the family court for reconsideration.

As well, the Court reversed the family court’s finding that Husband did not condone Wife’s adultery. The Court found that the evidence of continued martial cohabitation and two counseling sessions did not support the family court’s finding of the absence of condonation, on the part of Husband and, therefore, Wife is not barred from receiving alimony. The Court remanded the issue of alimony back to the family court for reconsideration.

Finally, the Court found Wife’s allegation of bias on the part of the family court to be without merit.

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Good Luck to February Bar Exam Takers!

barexam Next week, Charleston School of Law alumni will be sitting for the February bar exam in South Carolina and elsewhere.  Good luck!

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February Issue of The Barrister Newsletter Available

newsletter The February 2015 issue of The Barrister newsletter is now available.  Check it out here.  Enjoy!

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Today’s Opinions From The South Carolina Court of Appeals

sccourtofappeals  Today, February 18, 2015, the South Carolina Court of Appeals published two opinions:  Trident Tech v. South Carolina Department of Health and Environmental Control (SCDHEC) and Thomas v. 5 Star Transportation.

Trident Tech v. SCDHEC involved an appeal from the Administrative Law Court (ALC) that was affirmed by the South Carolina Court of Appeals.

Before opening a new hospital facility, hospitals must go before the South Carolina Department of Health and Environmental Control (DHEC) per the South Carolina State Health Plan, the South Carolina Ann. Reg. Section 61-15, and South Carolina Code of Laws section 44-7-130 to obtain a Certificate of Need (CON.)  When awarding a CON, DHEC must consider the statutorily enumerated (South Carolina Code of Laws Section 44-7-110) criteria and evaluate.  DHEC interpreted the South Carolina’s Bed Transfer Provision as allowing “…for approval of a CON application for the transfer of licensed general acute hospital beds to establish a new hospital.”

In this case, Trident submitted a request for a CON to build a new hospital facility in Berkeley County South Carolina in 2008.  At the time, the population of Berkeley County was 158,140 but there were no hospital beds in the county.  In late 2008, Roper St. Francis then applied to DHEC for a CON to transfer some of its beds at its downtown Charleston County facility to a new proposed facility in Berkeley County.  DHEC conducted a project review for both the Roper and Trident applications and approved both for CONs.  Trident objected and appealed to the ALC, arguing that DHEC improperly granted Roper a CON to transfer beds from its Charleston facility to a new facility in Berkeley County.  Trident also argued that it and Roper were competing applicants, which meant per South Carolina Code of Laws 44-7-130(5), that the award of the CON should be awarded to the organization that most fully complied with CON criteria.  Trident argued that DHEC was misinterpreting and misapplying the law in both instances.  The ALC upheld DHEC’s position and interpretations.  Trident then appealed to the Court of Appeals.

The Court of Appeals was asked to consider whether DHEC properly interpreted the Bed Transfer Provision and whether the ALC had erred in concluding that Roper and Trident were not competing applicants.

The Court concluded that the ALC properly deferred to DHEC’s interpretation, noting that courts “…defer to an agency interpretation unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.'”  The Court further concluded that Roper and Trident were not competing applicants for the CON.  Instead it indicated that Roper was merely transferring beds from one facility to another to suit the needs of the local population as the statute required.

Thomas v. 5 Star Transportation is an appeal to the Court of Appeals from the South Carolina Worker’s Compensation Commission.

George Thomas was employed by 5 Star as a tour bus driver.  On November 19, 2007, his bus left Interstate-26 and collided with a tree.  George died.  An autopsy performed on George was inconclusive as to cause of death.  The coroner, Dr. Schandl, concluded that death resulted from both blunt trauma, i.e. the wreck, and an aneurysm that would have most likely been survivable were it not for the wreck.    Schandl testified that George’s aneurysm could have occurred before or after the wreck and said “there are so many different fatal injuries at that moment of the crash that it’s kind of difficult to sort out which one would have made him more dead.”

Despite this testimony, 5 Star argued that George’s death resulted from the aneurysm and thus did not “arise out of and during the course of employment” as required by South Carolina Code of Laws Section 42-1-160.  The Worker’s Compensation Commission disagreed, awarding survivor benefits to Emily Thomas.  Because Emily and George were married before George’s divorce from another woman, Cynthia, was finalized, 5 Star then argued that Emily was not a surviving spouse within the meaning of South Carolina Code of Laws Section 42-1-175.

Examining the record before it, the Court concluded that the Commission had substantial evidence to support its finding that George’s death arose out of and in the course of his employment.  Dr. Schandl’s testimony supported this conclusion.

However the Court concluded that the Commission misapplied the law of common law marriage regarding George and Emily.  Since Emily was unaware of the fatal impediment, a previous marriage that had not yet been dissolved, until after George’s death, the Court concluded that “…George and Emily’s relationship was not converted to a common law marriage once the impediment to their marriage was removed.”  After reviewing case-law, the Court found Emily to be George’s “…surviving spouse because she married George in good faith.”  Citing Pierre v. Seaside Farms, the Court said “[t]he general policy in South Carolina is to construe the Worker’s Compensation Act in favor of coverage, and any reasonable doubts as to construction should be resolved in favor of the claimant.”

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