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Week 40 (2020)

Week of September 28, 2020 through October 2, 2020

Middleton v. Andino (9/28/2020: reh’g granted en banc) (9/30/2020: denying the motion for a stay pending appeal): A majority of non-disqualified judges in active service voted for rehearing en banc after Judge Childs (D.S.C.) enjoined South Carolina’s witness requirement for absentee voting in the November 2020 election. The en banc court reversed the decision of the three-judge panel and denied the appellants’ emergency motion to stay the district court’s injunction pending an appeal to the U.S. Supreme Court. 

Judge Wilkinson and Judge Agee dissented. The dissent argued that the courts should not interfere with South Carolina’s electoral process. The dissent reasoned that the appellants are likely to succeed on the merits because the Constitution makes it clear that the states are responsible for setting their election rules. U.S. Const. art. I § 4, cl. 1. Further, the dissent would have found that the state has a common election system and has a compelling interest to combat voter fraud.

However, in rehearing the emergency motion to stay the district court’s injunction en banc, the majority of voting judges denied the motion for a stay pending appeal. Judge King and Judge Wynn filed concurring opinions concluding that the en banc court was justified in denying the emergency motion to stay the district court’s preliminary injunction pending appeal. Upon analysis of the competing interests, the majority found that imposing the witness requirement would unconstitutionally burden the fundamental right to vote, irreparably harm voters, and be unfair to South Carolina’s public interest. Judge Wilkinson and Judge Agee, again, dissented. This dissent urged the court to accept South Carolina’s justification for the witness requirement. Full Opinion (9/28/2020); Full Opinion (9/30/2020)

Harrell v. Freedom Mortgage Corp. (Richardson 10/2/2020): The Fourth Circuit held that the Real Estate Settlement Procedures Act of 1974 (RESPA) requires taxes to be paid by the entity responsible for servicing the mortgage at the time the tax is due. The court reversed the district court’s judgment, which concluded that RESPA demanded the entity that received funds for escrow make the tax payment when it is ultimately due. The right to service a mortgage is an asset that may be subject to purchase and sale; however, a question arises as to who is the servicer accountable for the tax payment when the servicing rights are transferred in the time between the borrower’s payment to escrow and the tax due date. In this case, the Fourth Circuit reasoned that RESPA connects a servicer’s obligation to a payment’s due date, and not the date of payment into escrow by the borrower. Full Opinion

Dean v. McKinney (Gregory 10/2/2020): The Fourth Circuit affirmed the district court’s denial of the defendant’s motion for summary judgment after the plaintiff-appellee sued under § 1983. In the case, Anderson County (SC) Deputy Sheriff Stephen B. McKinney collided with Janel Harkness’s vehicle while McKinney was on patrol. In the collision, McKinney lost control of his patrol vehicle while responding to a non-emergency request from another officer. Accident reconstructionist concluded that McKinney’s vehicle was traveling 83 miles an hour in a 45 mile per hour zone. 

The Fourth Circuit determined that a reasonable jury could find that McKinney’s behavior was “so egregious, so outrageous, that it may fairly be said to shock the . . . conscience.” Further, the court rejected McKinney’s argument that his conduct should be judged under the higher “intent to harm” standard  and, instead, applied the “deliberate indifference” standard to McKinney’s conduct. Full Opinion

Michael Moran