Three new attorneys join Baker Ravenel Bender

COLUMBIA, S.C. – Baker, Ravenel & Bender, LLC, is welcoming three additional attorneys to its ranks.

William A. Collins Jr. is coming on board as a partner, and Michal Kalwajtys and JC Davis will be associates. Collins and Kalwajtys join the law firm as a result of its merger with their former firm, Dougall & Collins.

“Chip” Collins practices in the areas of Construction Litigation, Insurance Coverage, Asbestos Litigation and General Litigation. In addition to the South Carolina Bar, he is admitted to practice before the U.S. District Court for the District of South Carolina, as well as the Fourth Circuit Court of Appeals and the U.S. Supreme Court.

He earned his bachelor’s degree in political science from the University of South Carolina in 1992, and his Juris Doctor from the USC School of Law in 1995.

He is an elder at Spring Valley Presbyterian Church, and is involved with both Town Theatre and the South Carolina Shakespeare Company. He has enjoyed acting in local theater for most of his life, and finds the stage experience helps him improvise and react better in real time in court.

Kalwajtys practices in the areas of Personal Injury Defense, Construction Litigation, Insurance Coverage, Product Liability, and Appellate Advocacy. He is admitted to practice in the U.S. District Court for the District of South Carolina and the Fourth Circuit Court of Appeals, as well as state courts.

He is a graduate of two law schools, in his native Poland in 2002, and the University of South Carolina School of Law, where he earned his Juris Doctor in 2012.

He first visited the United States in the summer of 1997, and immigrated after law school in Poland. He is now firmly rooted in South Carolina and proud to call it home. He spends most of his free time playing guitar and violin.

JC Davis practices in the areas of Construction Litigation and Products Liability. She, too, is admitted to the U.S. District Court for the District of South Carolina, in addition to state courts.

She holds a bachelor’s degree from Texas A&M University from 2015, and received a master’s in Homeland Security and Emergency Management from Sam Houston State University in 2016. She earned her Juris Doctor from the University of South Carolina School of Law in 2020.

JC grew up in a military family with an emphasis on service. She served as a firefighter before law school. She enjoys cooking for large groups of people, and caring for her 130-lb Great Dane puppy. She also loves playing catch, shooting hoops, and reading about theology and neuroscience.

About Baker, Ravenel & Bender

Baker, Ravenel & Bender, L.L.P., is one of South Carolina’s oldest law firms, established around 1900 as Melton & Belser. The name evolved to its current form in 1999. The firm today consists of seven attorneys who focus on litigation, covering myriad practice areas in state and federal courts. The firm is known for its work in the insurance defense field and media law, and also handles construction litigation, products liability, real estate litigation, restaurant and hospitality law, education law, and mediation.

Jay Bender to be honored by S.C. Broadcasters

COLUMBIA, S.C. – The South Carolina Broadcasters Association will present its Honorary Life Membership Award to attorney Jay Bender on Jan. 25, during its annual Awards of Distinction ceremony at the Columbia Metropolitan Convention Center.

Bender, a former partner who serves as of counsel with Baker Ravenel & Bender law firm in Columbia, has represented the SCBA since 1995, and has built a national reputation as a lawyer for broadcasters – as well as being the state’s leading attorney for print media.

Since beginning his media law practice in 1975, he has appeared in a multitude of trial and appellate courts, both federal and state, to advocate media-related cases. He is regarded as South Carolina’s foremost authority on the South Carolina Freedom of Information Act.

The Honorary Life Membership Award salutes those who have made significant contributions to the broadcasting industry. Recipients have included broadcast educators, legislators, owners and managers, on-air talent, broadcast technical specialists and regulatory experts.

“Jay has served as a tireless advocate for SC broadcasters since becoming our SCBA legal counsel in 1998,” said Margaret Wallace, executive director of the association. “He is brilliant, patient, always accessible to SCBA staff and members with questions and cares deeply about our industry. Jay is very deserving of this award.”

Cravens Ravenel retires from firm

Baker, Ravenel & Bender, L.L.P., of Columbia announces that its senior partner Cravens Ravenel has retired from the practice of law following a distinguished career of nearly 50 years.

Ravenel’s practice was focused on complex civil litigation in the areas of products liability, professional malpractice, and construction defects. In recognition of his law practice accomplishments, Ravenel was named a Fellow of the American College of Trial Lawyers and recognized in the publication Best Lawyers in America.

Ravenel’s contributions to the profession and community included service on the South Carolina Supreme Court Committee on Character and Fitness; the Midlands Commission on Homelessness; chair of the Board of Trustees, South Carolina Episcopal Home at Still Hopes; Board of Directors of the Greater Columbia Human Relations Council; and vice chair of the Richland County Election Commission.

Ravenel’s commitment to the community has not been limited to service in leadership positions, as he weekly serves meals to the homeless at Trinity Episcopal Cathedral and regularly participates in work details at St. Lawrence Place transitional housing for families.

Gamecock athletics are expected to benefit from Ravenel’s retirement as he will have more time to cheer them on at all USC sporting events, from spring football to the games of the national-champion women’s basketball team and twice national-champion baseball team.

Georgia Federal Court Protects Web Reporter from Subpoena

Camden Military Academy was sued in federal court in South Carolina by a former student who alleged that the school failed to protect him from hazing and sexual assault.  The plaintiff lives in the Atlanta area and a Georgia web publication, Southern Free Press, published a piece on the plaintiff and his suit.  The military school sought to depose the reporter and issued a subpoena for her deposition in Georgia.  The U.S. District Court for the Northern District of Georgia granted the reporter’s motion to quash the subpoena on grounds that the reporter was protected from being forced to testify by privileges arising under the First Amendment and reporter shield laws in both Georgia and South Carolina.  The reporter was represented by Bill Davis and Jay Bender.

An outbreak of prior restraint in SC

By Jay Bender

When public health officials learn of an individual with a food-borne E. coli illness, it is an incident.  When a few more folks get sick, the incident becomes an outbreak and  public health departments swing into action to prevent the outbreak from becoming an epidemic.

South Carolina has had an outbreak of judicially-imposed prior restraints, and action is needed to contain the outbreak before it becomes an epidemic.

Although official reports of South Carolina law cases began in 1783 with 1 Bay (1 S.C.L.) and equity cases in 1784 with 1 Desaussure (1 S.C. Eq.), it wasn’t until 1998 that a case was reported involving a judicially imposed prior restraint.  A “prior restraint” in this context is an order prohibiting a publication.  In  Ex Parte The State-Record Co., Inc. In Re State v. Quattlebaum, 332 S.C. 346, 504 S.E.2d 592 (1998), a divided Supreme Court upheld the imposition of an order prohibiting news organizations from publishing the contents of a  conversation between a murder suspect, Quattlebaum, and his attorney          The conversation had been secretly videotaped by the Lexington County Sheriff’s Department.  After the existence of the videotape was disclosed by the prosecutor and a copy provided to Quattlebaum’s attorneys, one of  Quattlebaum’s attorneys provided a copy of the tape to news organizations while another of Quattlebaum’s attorneys obtained an ex parte court order prohibiting the news organizations from publishing the contents of the recording.  The publisher of The State newspaper challenged the TRO on First  Amendment grounds, and following the refusal of the trial court to set aside the TRO, appealed the ruling to the Supreme Court of South Carolina.

In its opinion the majority affirmed the trial court, but sought to restrict the reach of its decision by declaring, “Under the extremely limited factual circumstances of this case, we find the circuit court properly enjoined dissemination of the privileged communication.”  504 S.E.2d at 594.   Notwithstanding its affirmation of the TRO, the court noted that a party seeking to limit speech protected by the First Amendment bears “an extremely heavy burden.”Id.

The “heavy burden” placed on one seeking to restrain speech or press in advance of publication was established by decisions of the United States Supreme Court which held that “Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.”  Carroll v. Princess Anne, 393 U.S. 175, 181 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).

Perhaps the most famous prior restraint case in this country is New York Times Co. v. United States, 403 U.S. 713 (1971), the “Pentagon Papers” case, in which the Supreme Court held the government had failed to meet the heavy burden required to restrain the publication of a classified document entitled “History of U.S. Decision-Making Process on Viet Nam Policy.”  The decision of the court was per curiam, but with each justice writing separately.  Notwithstanding the separate opinions, even a justice who dissented  Pentagon Papers wrote later that each member of the court acknowledged that a prior restraint was presumptively unconstitutional.  Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976).

In Nebraska Press Assn. Chief Justice Burger, who had dissented in Pentagon Papers, analyzed the Supreme Court prior restraint rulings and noted a unifying principle (427 U.S. at 559):

The thread running through all these cases is that prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.  A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted.  Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative.

A prior restraint, by contrast and by definition, has an immediate and irreversible sanction.  If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it at least for the time.

The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events….

From all of this you would be correct in concluding that prior restraints are not favored by courts and, as a consequence, have been rare.  Writing for the majority in Near v. Minnesota, 283 U.S. 697 (1931), which reversed an injunction against the publication of a newspaper deemed a “nuisance” by the trial court, Chief Justice Hughes ascribed the rarity of prior restraint cases to a national conviction favoring free expression (283 U.S. at 718):

The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right.

The absence between 1783 and 1998 of a reported South Carolina case imposing a prior restraint unfortunately constituted little impediment to contemporary courts leading to an outbreak of judicially imposed prior restraints in the state.  Between May 2010 and January 2011 three separate courts in three separate cases entered prior restraint orders.

On May 19, 2010 a circuit court sitting in Spartanburg issued an ex parte temporary restraining order prohibiting an independent political committee identified as Reform SC from “continuing to air any ad featuring the Candidate and/or promoting the Candidate’s candidacy for governor in South Carolina media markets prior to the June 8, 2010 primary election….”  The TRO was accompanied by a Rule to Show Cause setting a hearing on May 28.  The plaintiffs, among whom was gubernatorial candidate Gresham Barrett, alleged Reform SC was violating the campaign practices provisions of the state ethics lawby failing to file reports of expenditures and contributions, by accepting contributions in excess of statutory limits, and by failing to act independently of the “Candidate’s” campaign. S.C. Code Ann. §§ 8-13-1300 et seq. (Supp 2010).   An “independent expenditure” is one made without control, coordination or consultation with a candidate.  S.C. Code Ann. §8-13-1300(17).

The “Candidate” was not named in the court’s order and a footnote claimed the omission was “In deference to the confidentiality requirements of the South Carolina campaign ethics and finance regulations.”  The sensitivity displayed in the court’s order served no purpose as the Complaint in the action identified the “Candidate” as Nikki Haley.

The Barrett suit alleged that Reform SC had purchased commercial air time on South Carolina television stations to advocate the candidacy of Haley, and by doing so had exceeded the statutory limit for campaign contributions.  The court’s order considered the request for injunctive relief in the traditional non-constitutional framework of irreparable injury and probability of success on the merits.

While irreparable injury and likelihood of success on the merits are appropriate considerations in some settings to warrant injunctive relief, the use of this standard to justify the imposition of a prior restraint on political speech is misplaced.  While any prior restraint is presumed to be unconstitutional, prior restraints on political speech must be even less favored given the elevated status of political speech in our democracy, reflective of our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”  New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

In June 2010 an order was issued in an action initiated by Michael Alan Wilson and the Wilson for Attorney General campaign against South Carolina Truth Squad and L. E. Adams.  As in the Barrett case, the Wilson Complaint alleged that the defendants had failed to file appropriate campaign finance disclosure forms with the South Carolina Ethics Commission, and defendants’ expenditures were not independent committee expenditures because they had been coordinated with Leighton Lord with whom Wilson was in a primary run-off election.

In the Wilson case a Lexington County circuit court issued an ex parte prior restraint order three days before the run-off election was to be held and prohibited defendants from broadcasting political advertisements questioning Wilson’s qualifications for office.  As in the Barrett case the prior restraint was characterized as a Temporary Restraining Order.  This TRO was also accompanied by a Rule to Show Cause which set a hearing for 9:00 a.m. on election day.  The TRO was granted on the court’s forecast of irreparable injury and likelihood of success on the merits—the same framework used by the court in the Barrett case.

These trial court orders are remarkable in that they enjoined core political speech within days of an election without an adversarial hearing and based solely on allegations of violations of the state ethics law provisions relating to campaign contribution limits and reporting requirements.  The civil penalty for late filing or failing to file a campaign report is $100 for the first five days of failing to file and up to $100 per day after certified notice of the deficiency has been given.  S.C. Code Ann. §8-13-1510.  If the expenditures were not independent, defendants could have been in violation of state limits on campaign contribution, a misdemeanor.  S.C. Code Ann. §8-13-1520.  Had there been a contested hearing in advance of the issuance of the restraining orders, it is possible the courts might have concluded the reporting requirements were constitutional while at the same time having to confront the possibility that some caps on campaign expenditures are unconstitutional in light of the decision of the United States Supreme Court in Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010).

While the ex parte nature of the prior restraint orders alone would make them remarkable, the orders are made even more remarkable because at no point in the combined 16 pages devoted to describing the alleged violations of the campaign laws and formulating the injunctive relief is mention made of the First Amendment to the United States Constitution.

The Barrett order was not appealed, and Reform SC’s advertising ceased.  Wilson’s attorneys, upon receipt of the TRO, wrote to television stations in the state advising the stations that the order barred the “airing of advertisements purchased by the South Carolina Truth Squad regarding Alan Wilson effective immediately.”  (emphasis in letter)  In fact, the order did impose a restraint on television stations and “media outlets” by stating”

All television stations and media outlets in South Carolina are enjoined from airing or continuing to air any ad sponsored by, paid for or produced by the Defendants that features Alan Wilson and/or advocates the defeat of Alan Wilson for the office of South Carolina Attorney General….

No television station was a party to the Wilson suit, and no provision was made to compensate the television stations for lost advertising revenue.

Defendants in the Wilson suit appealed and the Supreme Court of South Carolina issued its writ of supersedeas within two days of the issuance of the TRO.

On January 11, 2011 a circuit court in Horry County issued an oral prior restraint order in connection with an evidentiary suppression hearing in a homicide case.  The order was issued during a hearing on a motion by the Solicitor to close the evidentiary hearing.  The trial court denied the closure motion, but enjoined the reporters in attendance from reporting the identity of the defendants and other matters discussed in open court and contained in open court files.  Wacacamaw Publishers, Inc., the publisher of several newspapers in Horry County, filed an emergency motion for a writ of supersedeas immediately following the issuance of the restraint.

Chief Justice Jean Toal convened a hearing on the motion by telephone, and within two hours of the imposition of the prior restraint, issued a hand-written order staying the restraining order.  The appeal of the prior restraint by Waccamaw Publishers resulted in a reversal of the trial court in an unpublished per curiam opinion issued by the Supreme Court in October.  The Supreme Court’s opinion bears the legend “THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(D)(2), SCACR.”

The message from the Supreme Court of South Carolina seems clear:  prior restraints on expression remain presumptively unconstitutional in South Carolina, and the law in the area needs no further explanation.  Perhaps the outbreak has been contained, but we should know soon as citizens in Charleston protesting the application of the federal Indian Child Welfare Act of 1978, 25 U.S.C.A. §§1901 et seq., to set aside a South Carolina adoption are fearful that a court has been asked to impose a “gag” order to silence them.