New Year, New Laws, 2020 Edition

The State newspaper usually provides a guide to South Carolina laws that take effect January 1, and this year is no exception. Maayan Schechter’s December 31, 2019 article lists two laws that became effective at the start of 2020.

Electric Cooperative Oversight

Act 56 of 2019 empowered the Public Service Commission to ensure that electric cooperatives in South Carolina meet requirements and follow procedures listed in the act.

Three different effective dates for various portions of the act are outlined in Section 19 of the act:

SECTION    19.    The provisions of this act take effect upon approval by the Governor, except that:

(1)    Sections 1, 2, 3, 13, 14, and 15 take effect January 1, 2020.

(2)    Section 7 takes effect May 1, 2020.

(3)    Sections 4, 5, 6, 9, and 11 take effect on the first day of the fifteenth calendar month after the month of signature by the Governor.

That means additional portions of the act will go into effect May 1 and July 1 of 2020.

Boat Tax

Act 223 of 2018 changed the way the South Carolina Department of Natural Resources collects personal property tax on boats.

Effective January 1, 2020, taxes are to be paid annually, instead of every three years.

The department posts a plain-English version of these and other outdoor-related rules on eregulations.com.

New Year, New Laws

More powerful than New Year’s resolutions, state laws often have an effective date of January 1. An overview of these laws across the United States, including a special focus on North Carolina, can be found in a recent blog post by the J. Michael Goodson Law Library at Duke University School of Law.

Inspired by our neighbors to the north, we present a short guide to South Carolina’s legislation effective January 1, 2018.

News about SC Laws effective January 1

The State newspaper summarized several provisions effective January 1, 2018. But the news article provides a link to only one of the relevant acts: Act 40 of 2017 that relates to the state’s gas tax and a few other taxes and fees.

Full Text of SC Laws effective January 1

To find the full text of other South Carolina legislation summarized in the article, you could go to scstatehouse.gov, click Ratifications & Acts, click 2017 Act Lists, then click Effective Date to see a list of all acts enacted into law in the 2017 legislative session, in order of effective date. Oddly, at first glance, the latest effective date listed appears to be November 19, 2017.

Acts with Multiple Effective Dates

Taking a closer look, at the top of the list is a group of 13 acts with “multiple effective dates or other special circumstances.” Their effective dates are listed only as “See Act,” meaning that you’ll need to click on each act number to read the full text of the act to determine which provisions of that act become effective on what dates.

Act 40 of 2017 (Gas Tax)

Act 40 of 2017 is listed as one of the “Acts With Multiple Effective Dates.” The State mentions several provisions of Act 40 in its article about laws effective January 1. These provisions relate to:

  • a new gas-tax credit,
  • vehicle registration fees,
  • the college tuition tax deduction,
  • the earned-income tax credit, and
  • the property tax rate for manufacturers.
Act 15 (Elections) and Act 86 (Exotic Pets)

The State only references two more laws that have provisions effective January 1:

Acts 15 and 86 have multiple effective dates, according to the 2017 Acts List on scstatehouse.gov. So again, it would be necessary to read the full text of each act to understand how the January 1 effective date operates on only part of the act.

The Remaining 2017 Acts with Multiple Effective Dates

That leaves 10 acts with multiple effective dates (“or other special circumstances“) that aren’t mentioned in The State’s article. Why not? Is January 1, 2018 not one of the dates that any of their provisions are scheduled to go into effect? Or some other reason, perhaps that they were not of general interest to the newspaper’s readership?

We leave it as an exercise for the interested reader to determine which, if any, of the provisions in these 10 acts became effective January 1, 2018. We’re kidding, of course. Take a glance, and estimate how long it would take to figure that out.

Now does your reading for your law school classes look easier by comparison? Happy New Year from your law library!

This Little Pig Has a Docket

“Stickin’ with The Pig: A tale of loyalty and loss”

Tony Bartelme writes in the Post and Courier about the Piggly Wiggly chain that revolutionized the grocery business at the start of the 20th century, grew to become a beloved icon in the South, and is now facing a lawsuit over business decisions that are alleged to have resulted in difficulty paying obligations to employees.

The amended complaint includes these words:

How to Find Federal Court Documents Using Bloomberg Law

To find the court documents in the Piggly Wiggly lawsuit:

1.  Log in to Bloomberg Law.

2.  On the left, click “Litigation & Dockets.” Then click “Dockets Search.”  

3.  In the Courts field, select the U.S. District Court of South Carolina.

4.  In the Docket # field, type 2:16-cv-00616.

5.  Click on the caption of the case (the blue link) to see the docket for the case.

6.  All documents in the lawsuit so far are listed in the docket. Key documents have a link to “View,” meaning that the full text is available online free, through your student Bloomberg Law subscription.

Class Action against High Research Costs

Three nonprofits have sued the federal government over legal research costs—National Veterans Legal Services Program, National Consumer Law Center, and Alliance for Justice.

Their complaint alleges that the Administrative Office of the U.S. Courts charges excessive fees to access federal court information online through PACER. PACER stands for Public Access to Court Electronic Records. The PACER website is how the federal government provides online access to court documents from federal district courts, appellate courts, and bankruptcy courts.

The judge has allowed the case to proceed as a class action. Some law firms have recently received notice that they may be eligible to join the class, because they have paid PACER fees during the six-year time period relevant to the lawsuit. Jean O’Grady, a law librarian at the firm DLA Piper, estimates that some large law firms may have paid more than $1 million over six years, just on legal research fees to PACER.

Not many law students use PACER, because it is clunky and expensive. But most law students use subscription databases (Westlaw, Lexis Advance, and Bloomberg Law) that provide free student access and streamlined user interfaces over federal court data that originates from PACER.

We at the law library serve not only law students, but also the general public. Members of the public who don’t have access to subscription databases have no choice but to use PACER if they need federal court documents. Many of them find PACER’s 10-cents-per-page charges add up quickly to become unaffordable. The plaintiffs in the lawsuit are asking the government to reduce these costs, which would incidentally help our public patrons who need federal court information.

The Case of the Missing Comma

In O’Connor v. Oakhurst Dairy, No. 16-1901 (1st Cir. Mar. 13, 2017),  the First Circuit Court of Appeals delves deep into the rules about commas in order to interpret a Maine statute.

What would you think? If drivers only distribute perishable food, but do not pack the perishable food for distribution, would the overtime provision of the statute apply to those drivers?

First Excerpt from Maine Revised Statutes, Title 26, Chapter 7, Subchapter 3

Second Excerpt from Maine Revised Statutes, Title 26, Chapter 7, Subchapter 3

Is the last item in paragraph F “packing for shipment or distribution?” This interpretation would allow the drivers to get overtime pay, since they do not participate in “packing for shipment or distribution.”

Or is the last item in paragraph F “distribution?” This interpretation would allow the dairy not to pay the drivers overtime, since the drivers participate in “distribution.”

Both parties in this case turn to the Maine Legislative Drafting Manual to support their interpretations of the statute. In a footnote, the court provides string citations to other legislative drafting manuals, and even to an electronic journal on teaching legal research and writing in the law school classroom.

O'Connor v. Oakhurst Dairy, n. 5

Ultimately, the text of the statute was ambiguous, because there was no comma before the words “or distribution.” Because of the ambiguity, the First Circuit had to look outside of the language of the statute in order to interpret it. This is a remedial statute that the legislature intended for the benefit of workers, so the court gave the drivers the benefit of the doubt on how to interpret it.

What if a case like this arose in South Carolina?

Or what if it’s your job to draft a clearly worded S.C. statute?

PokéTreatise: Pokémon and the Law

Pokémon GOTM, an augmented-reality game played on mobile devices, raises some interesting legal issues. This blog post surely does not catch them all. Submit your findings in comments on the library’s Facebook, Twitter, or Instagram.

Torts

Negligence

A distracted driver in Auburn, New York was injured when he crashed his car into a tree while playing Pokémon GOTM. The game warns players not to play while driving. Going over a certain speed will cause gameplay to stop until the “I’m A Passenger” button is clicked.

Attractive Nuisance

Brian Wassom argues in a blog post that game elements potentially create “attractive nuisances.” An attractive nuisance, according to Black’s Law Dictionary, “foreseeably lures children to trespass” onto private property involving dangerous conditions.

While Pokémon GOTM does offer “lure modules” for sale, the PokéStop locations where such modules may be placed are (supposed to be) publicly accessible, and the game provides generalized warnings to avoid dangerous areas and not to trespass.

Nuisance or Trespass

Jeffrey Marder, a resident of New Jersey, brought a federal lawsuit against Niantic, the company that created the Pokémon GOTM mobile app. Mr. Marder asked the court to find that the placement of PokéStops and Gyms near his property was a nuisance or a trespass. At least five people had knocked on his door to ask if they could enter his backyard in order to catch Pokémon.

Contract Law

Unjust Enrichment

The Marder lawsuit also makes a claim in contract. Mr. Marder alleges that Niantic is unjustly enriched when Pokémon GOTM players’ gaming experience is enhanced by congregating around PokéStops and Gyms on private property, to which Niantic never requested permission for access.

Deceptive or Unconscionable Terms

A Florida man’s lawsuit alleges that Pokémon GOTM players unknowingly sign away their rights to an excessive amount of personal information—and grant Niantic the opportunity to change its privacy policy at will. The company has since reiterated the importance of protecting user privacy, and it has made changes to how much personal data it collects.

Breach of Contract

The terms of the Google Play store require app developers to support their products. However, support requests sent to Niantic allegedly go to an unmonitored email account, and some users are reporting this to Google as a breach of these terms.

Criminal Law

Armed Robbery

Police in O’Fallon, Missouri discovered that four people had placed a lure module on a PokéStop in order to attract potential victims to the area. Those who had placed the lure were allegedly waiting to rob mobile game players.

Evidence

A teenager in Wyoming was looking for Pokémon near a river, and unfortunately discovered a human body that detectives said had been dead for less than 24 hours. Authorities were still investigating at the time the news was published.

Constitutional Law

Right to Privacy

The Electronic Privacy Information Center has written to the Federal Trade Commission requesting an investigation because Pokémon GOTM “raises complex and novel privacy issues” involving alleged over-collection of user data. Senator Franken of Minnesota sent a letter to Niantic with similar concerns.

Transnational Law

Canada-US Border Crossing

Two Canadian siblings accidentally crossed from Alberta into Montana because they were so focused on playing Pokémon GOTM, they lost track of where they were. Their mother had to pick them up from Border Patrol.

Banned in Saudi Arabia

A 2001 religious edict forbidding Pokémon, which was then played only with cards, was renewed and applied to the Pokémon GOTM mobile app. Niantic has not officially released the app in the Middle East as of this writing, although some users in the region may have been able to download it, for example while travelling outside the region.

Incorporated By Reference: Who Owns the Law?

On Tuesday, August 9, 2016, after debate from both sides of the issue, the ABA House of Delegates passed a resolution calling on Congress to require federal agencies to provide free online read-only access to all privately drafted materials that are incorporated by reference into federal regulations.

When many federal agencies write regulations, the specific standards for items ranging from toys and cribs to nuclear power plants are written by private entities with expertise in those fields. In other words, the details of regulations (which have the force of law) are being written not by elected legislators, nor by agency employees, but by private industry associations. Currently, the Director of the Federal Register requires federal agencies to state how they are making those incorporated standards available to the public, but the full text is still not always available online, and copies may cost thousands of dollars.

Arguably, when industry groups have hard-earned expertise and non-governmental status, the standards they write are their own intellectual property for which they are entitled to charge a fee for access. On the other hand, democracy and the rule of law arguably depend on all people being freely able to read and discuss the laws to which they are subject, and some say “read-only access” to the law would be insufficient to support this freedom.

Do you think the ABA was right to pass this resolution? Do you think it goes too far, or not far enough? Tell us your thoughts on Facebook or Twitter.

South Carolina Department of Social Services lawsuit

The South Carolina Department of Social Services (DSS) is in the news because of a class-action lawsuit in federal court (The State). Two organizations—Children’s Rights and Appleseed Legal Justice Center—sued the agency, alleging that its shortcomings have caused repeated harm to children.

A settlement agreement has been proposed and preliminarily approved, and the date has been set for a hearing to finalize the settlement. The settlement proposes to ensure that case workers are not overloaded with more cases than they can reasonably handle, along with other proposed improvements.

Research perspective:

It is somewhat challenging to find the court documents referred to in the news article. Here are some clues to navigating the public record.

The case is in federal district court, and as of the June 3, 2016 date of the news article, there had not yet been a final order in the case. These two facts mean the settlement agreement will not appear in databases that focus on appellate decisions, nor will it be included in collections of trial court orders. Two places to look would be PACER or Bloomberg Law Dockets.

DSS is not a party to the case; neither are Children’s Rights or Appleseed Legal Justice Center. Searching on any of these names will lead to a dead-end. The named defendants are Nikki Haley in her capacity as governor and Susan Alford in her capacity as director.

One possible shortcut in researching a high-profile case such as this, is to see whether the parties or lawyers in the case may have posted court documents on their website. In this case, Appleseed Legal Justice Center has posted the settlement agreement as a pdf on its website. The title of the case is in the description, and the case number is stamped on the pdf; both these pieces of information would help a researcher find additional documents from the case.

Supreme Court opinions: more changeable than previously thought

Nothing could be more reliable as precedent than an opinion of the United States Supreme Court, issued earlier in the day. Yet even that could change.

The New York Times gives examples of justices altering the wording of published opinions, sometimes in ways that are legally significant, hours, days, or even years after the opinions were first issued. Sometimes the unrevised opinion remains available on respected sites for legal research. Fortunately, the Court is now making the changes more transparent, but it remains to be seen whether, or how quickly various websites will ensure that they have the current version.

Chalk it up as just one more reason lawyers need to update their legal research from a reliable and current source.

Award issued regarding South China Sea territorial claims

map displaying disputed territories in South China Sea

Award issued July 12, 2016

The Permanent Court of Arbitration in The Hague, the Netherlands, issued its award regarding the dispute between the People’s Republic of China and the Philippines over territorial claims in the South China Sea.

Background material

Permanent Court of Arbitration

The Permanent Court of Arbitration (PCA) is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. The PCA has 121 Member States. Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties.