Mandamus Says, Do Your Job!

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"Do Your Job"What do the New England Patriots’ head coach and the South Carolina Supreme Court have in common? Both can say “Do Your Job” and make it stick. Mandamus is the Supreme Court’s way to make it stick.

Standards for Mandamus

 For mandamus to work, the petitioner for the writ must:

  • lack other adequate remedies and
  • enjoy a specific legal right that creates a
  • mandatory duty to
  • act ministerially

Other remedies - The South Carolina Supreme Court will not tell folks to do their job if it does not have to.

Ordinarily, the Supreme Court will not step in if a trial court can hear the matter first. Key v. Currie, 305 S.C. 115, 406 S.E.2d 356 (1991). It will likewise not intervene if it can later hear the issue on appeal. City of Rock Hill v. Thompson, 349 S.C. 197, 201, 563 S.E.2d 101, 103 (2002). And it will ordinarily deny mandamus if the public official decides on his or her own to do what the petitioner asks. South Carolina Retirement Sys. Inv. Comm’n v. Loftis, 741 S.E.2d 757 (S.C. 2013).

A pre-existing right must create a mandatory duty – Mandamus exists “to command and execute, not to inquire and adjudicate; therefore, it is not the purpose of the writ to establish a legal right, but to enforce one which has already been established.” Sanford v. South Carolina State Ethics Commission, 385 S.C. 483, 493-494, 685 S.E.2d 600, 605-606 (2009).

In Knight v. Austin, 396 S.C. 518, 722 S.E.2d 802 (2012), a retired firefighter wanted the Supreme Court to order a city to pay health insurance benefits. But he conceded that factual issues existed over the city’s duty to pay. The Court denied mandamus, concluding that the duty was not established well enough for the writ.

The duty is ministerial - The mandatory duty must also be specific enough to preclude discretion.

In City of Rock Hill, the City asked the Supreme Court to order a judge to apply a statute’s amended version and not its original version. When the City sought the writ, which version applied was an open issue.

The Supreme Court denied the writ, and distinguished between asking a judge to rule and asking her to rule a certain way. Directing judges to rule is ministerial. Directing judges to rule a particular way is not because a judge exercises discretion in resolving open issues.

Edwards v. State of South Carolina, 383 S.C. 82, 678 S.E.2d 412 (2009), is in contrast. The Governor declined to apply for federal funds despite the General Assembly’s decision to accept the funds. The Court held that the Governor’s duty to apply for the funds was ministerial because the Governor lacked discretion to deviate from the General Assembly’s properly enacted budget.

Mechanics

Like a common law writ of certiorari, Rule 245, SCACR, applies because mandamus is an extraordinary writ within the Supreme Court’s original jurisdiction. Rule 245 provides that the petition shall comply with Rule 240, SCACR. Rule 240, SCACR, in turn, specifies a petition’s form, content, and filing.

Remember to name and serve the judge if you are trying to mandamus him or her. City of Rock Hill requires it.

Has anyone petitioned for a writ of mandamus? Please let us know how it went. You can leave a reply or reach me at www.attorneyroberthill.com.

 

Time to Dust Off Writs of Prohibition?

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Newspaper banner on end of prohibitionIn March 1972, Watergate was a hotel and not a scandal, and the South Carolina Supreme Court granted its last writ of prohibition.

New South Life Ins. Co. v. Lindsay, 258 S.C. 198, 187 S.E.2d 794 (1972), is the case. It explains that a writ of prohibition is a centuries-old writ for challenging an inferior court’s subject matter jurisdiction.

Challenging subject-matter jurisdiction is the writ’s only function. And it does not lie if another remedy is available and adequate. These limitations explain the writ’s disuse.

For over a decade, the Supreme Court has narrowed challenges to subject matter jurisdiction. See, e.g., Linda Mc Co., Inc. v. Shore, 390 S.C. 543, 703 S.E.2d 499 (2010)(a judgment’s expiration does not deprive the court of jurisdiction to execute on the expired judgment); Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994)(distinguishing subject matter jurisdiction from venue).     

And even if subject matter jurisdiction is at stake, you may appeal after a final judgment and raise the issue for the first time on appeal. Linda Mc Co. (subject matter jurisdiction may be raised for the first time on appeal); Berry v. Lindsay, 256 S.C. 282, 182 S.E.2d 78 (1971)(denying a writ of prohibition where an appeal was available and adequate). Until then, an order denying a motion to dismiss for lack of subject matter jurisdiction does not determine anything with finality. Fulmer v. Cain, 380 S.C. 466, 470, 670 S.E.2d 652, 654 (2008).

But the right to appeal does not end all hope. The Supreme Court has issued a writ of prohibition when an appeal was inadequate because it would not resolve the issue as quickly as needed. Woodworth v. Gallman, 195 S.C. 157, 10 S.E.2d 316 (1940).

Yet even then more immediate review is available with a common law writ of certiorari. Reviewing subject matter jurisdiction is one certiorari’s most important functions. City of Columbia v. South Carolina Public Serv. Comm’n, 242 S.C. 528, 532, 131 S.E.2d 705, 707 (1963). Because a writ of  certiorari is available, a writ of prohibition is arguably precluded.

So where does that leave the writ of prohibition? Is it time to dust it off or write it off? I say dust if off because writs of prohibition may still play a valuable role if:

  • the challenge truly attacks a lack of subject matter jurisdiction
  • an appeal is inadequate because you need a quicker resolution
  • certiorari is unavailable because the issue lacks the novelty or public significance required for immediate certiorari review. See Laffitte v. Bridgestone Corp., 381 S.C. 460, 471-472, 674 S.E.2d 154, 160-161 (2009)(listing factors for granting certiorari).

Under this view, a writ of prohibition is a back-up to a petition for a writ of certiorari. Challenge subject matter jurisdiction by petitioning both for a writ of certiorari and for a writ of prohibition. If certiorari is unavailable, a writ of prohibition could then lie.

Has anyone petitioned for a writ of prohibition? Please share your story by leaving a reply or reaching me at www.attorneyroberthill.com.

 

Unappealable Order? Consider Certiorari

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wax-sealLast Friday’s post noted that the South Carolina Supreme Court may review trial-court orders on certiorari even if the order is not appealable before final judgment. This post describes how this works.

Initially, a writ to review a trial-court order is a common law writ. It differs from writs of certiorari to review final decisions from the Court of Appeals or final decisions in cases for post-conviction relief. Rules 242 and 243, SCACR, govern those writs.

Rather the common law writ allows the Supreme Court to step in and review trial-court orders before the case in the trial court is over. The Supreme Court enjoys this authority under the constitution and by statute. S.C. Const. art. V, § 5; S.C. Code Ann. § 14-3-310.

Standards for Issuing the Writ

But the Court applies stringent standards on its discretion:

  • the Court only corrects errors of law and will not review findings of fact unless the findings are wholly unsupported by the evidence. Jacoby v. South Carolina Bd. of Naturopathic Exam’rs, 219 S.C. 66, 88-89, 64 S.E.2d 138, 148-149 (1951).
  • the Court will not review errors or mistakes in matters of discretion. Jacoby, 219 S.C. at 88, 64 S.E.2d at 148.
  • the Court will not review the order unless exceptional circumstances overcome its general rule against substituting certiorari for a later appeal. In re Breast Implant Product Liability Litig., 331 S.C. 540, 543 n. 2, 503 S.E.2d 445, 447 n. 2 (1998).

“Exceptional circumstances” include:

  • novel questions of law on
  • issues of significant public interest that
  • arise in numerous actions where
  • review would eliminate numerous inevitable appeals.

Laffitte v. Bridgestone Corp., 381 S.C. 460, 471-472, 674 S.E.2d 154, 160-161 (2009); In re Breast Implant., 331 S.C. at 543 n. 2, 503 S.E.2d at 447 n. 2.

Examples

Compelling discovery – The Supreme Court has issued common law writs of certiorari to review trial-court orders compelling discovery. See Laffitte (trade secrets); Hollman v. Woofson, 384 S.C. 571, 683 S.E.2d 495 (2009)(medical information from non-parties); Oncology and Hematology Assoc. of S.C., LLC, v. South Carolina Dept. of Health and Envtl.Control, 387 S.C. 380, 692 S.E.2d 920 (2010)(irrelevant and abusive discovery requests).

But the Court cautioned, “Our willingness to review a discovery order by way of a writ of certiorari will be as rare as the proverbial ‘hen’s tooth.’” Oncology and Hematology Assoc. of S.C., 387 S.C. at 388, 692 S.E.2d at 924.

Subject-matter jurisdiction -  The Court has also stated that one of the writ’s most important functions is to see whether the lower court has subject matter jurisdiction. City of Columbia v. South Carolina Public Serv. Comm’n, 242 S.C. 528, 532, 131 S.E.2d 705, 707 (1963).

Product Liability – The Supreme Court used the writ to review the liability standards for breast-implant manufacturers, reasoning that the legal issued were novel, of great public interest, and were present in many cases. In re Breast Implant., 331 S.C. at 543 n. 2, 503 S.E.2d at 447 n. 2.

Constitutional Issues – In contrast, the Court has stated that certiorari does not ordinarily lie to decide a statute’s constitutionality because further developments may moot the constitutional issue. Floyd v. Thornton, 220 S.C. 414, 424-425, 68 S.E.2d 334, 339 (1951).

Mechanics of Petitioning

Because a common law writ of certiorari is an extraordinary writ within the Supreme Court’s original jurisdiction, Rule 245, SCACR, applies. It provides that the petition shall comply with Rule 240, SCACR. Rule 240, SCACR, in turn, specifies a petition’s form, content, and filing.

Has anyone successfully petitioned the South Carolina Supreme Court to review an unappealable trial-court order? Please let us hear how you did it. You can leave a reply or reach me at www.attorneyroberthill.com.

 

Discovery Sanctions are Not Appealable

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The South Carolina Court of Appeals reaffirmed that discovery orders are not appealable. Johnson v. Chaudry, M.D., Op.No. 2013-UP-176 (S.C. Ct.App. filed May 1, 2013).

In Johnson, the plaintiff apparently missed a deadline in a scheduling order for naming experts. The circuit court denied her motion for an extension and sanctioned her by allowing her to present only one liability expert at trial. She then appealed those orders.

The Court of Appeals dismissed the appeal. It reasoned that discovery orders are not appealable because they neither involve the merits nor affect a substantial right within the meaning of the statute governing appeals. This is in line with unbroken holdings that discovery orders are not immediately appealable. See, e.g., Wiethers, M.D. v. Bon-Secours-St. Francis Xavier, 381, 673 S.E.2d 417 (2009)(vacating Court of Appeals decision that reviewed an order compelling discovery).

Then how do you get a bad discovery order reviewed?

To appeal, you must wait until a final order on the merits. Once the trial court issues a final order, prior discovery orders may be raised in an appeal from the final order. Hamm v. South Carolina Pub. Serv. Comm’n, 312 S.C. 238, 439 S.E.2d 852 (1994).

For quicker review, you may petition the Supreme Court to issue a common law writ of certiorari. Laffittee v. Bridgestone Corp., 381 S.C. 460, 674 S.E.2d 154 (2009)(reviewing on certiorari an order compelling discovery); Wiethers (distinguishing review of discovery orders on appeal and on certiorari).

This writ will be covered in more detail in next Monday’s post.

Any thoughts? Please leave me a reply or reach me at www.attorneyroberthill.com.

 

Order Referring Foreclosure Case is Not Appealable

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The South Carolina Court of Appeals held last week that a circuit-court order referring a mortgage foreclosure action to a master-in-equity is not appealable until the master rules on the demand for a jury trial.

In TD Bank v. Farm Hill Associates, No. 2013-UP-118 (S.C. Ct.App. refiled May 29, 2013), the defendants in a mortgage foreclosure action appealed an order that referred the case to a master-in-equity. They argued that the reference denied them their right to a jury trial. The Court disagreed and dismissed the appeal.

The Court acknowledged that an order of reference that denies a party the right to a jury trial is directly appealable. But it held that the rule did not apply because the order of reference allowed the master to rule on the demand for a jury. If the master decided that the parties had a right to a jury, the issues triable to a jury would be returned to the circuit court. Because the master had not yet ruled, the Court held that the order of reference, by itself, did not deny anyone their rights.

TD Bank closely follows Supreme Court precedent. In Williford v. Downs, 265 S.C. 319, 218 S.E.2d 242 (1975), the court held that an order of reference in a mortgage foreclosure action is not directly appealable because the action lies in equity and there is no right to a jury trial in equity actions. See also North Carolina Fed. Savings & Loan Ass’n v. Twin States Dev. Corp., 289 S.C. 480, 347 S.E.2d 97 (1986)(applying Williford).

In applying this law, the Court in TD Bank pointedly noted that the parties may be able to directly appeal a later order f the master denied their demand for a jury trial. Such an appeal would be directly from the master to the Court of Appeals. Rule 203(b)(4), SCACR.

Any thoughts? Please leave me a reply or reach me at www.attorneyroberthill.com.

 

So Lead with Conjunctions

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What do Chaucer, Einstein, and the Grammar Girl have in common? They begin sentences with conjunctions. And they are not alone.

Matthew Salzwedel, a blogger over at The Lawyerist, recently collected some of the authorities which agree that it is perfectly proper to begin sentences with conjunctions. His scholarly post lists among other authorities Bryan A. Garner, John Trimble, H.W. Fowler, William Zinsser, and The Chicago Manual of Style.

The Chicago Manual of Style puts it this way -

There is a widespread belief — one with no historical or grammatical foundation — that it is an error to begin a sentence with a conjunction such as and, but, or so. In fact, a substantial percentage (often as many as 10 percent) of the sentences in first-rate writing begin with conjunctions. It has been so for centuries, and even the most conservative grammarians have followed this practice.

On first-rate writing from centuries ago, the Manual could have cited Chaucer, Shakespeare, Swift, and Shelley. All used conjunctions to begin sentences. In Garner on Language and Writing, Garner reports that Jonathon Swift began his sentences with conjunctions more than one-fifth of the time.

Yet the purported prohibition lingers (see here and here). Why? And where did the rule against it come from?

Salzwedel notes that writing authorities are unsure how the purported prohibition started. The simplest reason seems best, and that is the rule was created to avoid sentence fragments. But you can begin with a conjunction without creating a sentence fragment. And it makes writing powerful.

Because a danger exists, however, the technique should be used sparingly. Garner reports that contemporary journalism begins sentences with conjunctions in about 15% of sentences. That seems right. Using conjunction-starters more often may render the writing too choppy. Or it may not.

Does anyone have thoughts on using conjunctions? Please leave me a reply or reach me at www.attorneyroberthill.com. In the meantime, please enjoy the video –

Who Is He, She, and It?

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pronoun_1ab Pronouns are wonderful. No one wants to keep repeating someone’s name or a company’s title over and over if “she” or “it” will do the work. But problems come when the antecedent that the pronoun is replacing is missing, obscure, or ambiguous.

Ask yourself five questions to make sure your judges on appeal know who he, she, or it is.

Is the person, place, or thing explicit?

Lawyers may talk about “the law” or some other abstraction and then refer to “it” when they mean a particular rule or statute. Spelling out the antecedent help readers know what it is.

Is the noun first?

Use the noun before the pronoun. Consider, Defendant Smith narrowly lost the appeal. Because he was afraid of further review, Plaintiff Jones settled. Who was afraid of further review? Does “he” mean Smith or Jones?

Are there multiple nouns?

Problems may arise when there is more than one candidate for he or she. Take a simple example. Jim Doe and John Roe sued the widget company. He then dropped the case. Who dropped it? Doe or Roe?  Or say — Jane Doe asked her attorney about an appeal; she then filed a notice of appeal. Does “she” mean Doe or Doe’s attorney? Is the appeal pro se? It is again hard to say.

Are there multiple pronouns?

A similar issue comes up when the same pronoun refers to two or more antecedents. Say, Attorney Smith left his telephone in his car, so Lawyer Jones lent him a phone that was lent to him. The first “him” is Smith and the second “him” is Jones. Or is it?

Is there an apostrophe s?

Lastly, pronouns substitute for nouns, not adjectives. This simple rule becomes tricky with possessive nouns because they function as adjectives. Say — The brief’s table of contents needs proofing, but otherwise it reads well. “It” refers to the table of contents and not the brief. The brief is the adjective. The table of contents is the noun. May need to say, The brief’s table of contents needs proofing, but otherwise the brief reads well.

Kudos to The Redbook: A Manual on Legal Style, for these tips. The illustrations are mine, so they may not prove the point nearly as well as the manual.

Anyone have other tips on how to avoid pronoun confusion? Please leave a reply or reach me at www.attorneyroberthill.com. Until then, please enjoy the video on pronouns –