Last Monday’s post offered some South Carolina case law on how to argue legislative intent. This one offers South Carolina law on ways to weigh and argue case law in the Court of Appeals.

SC Supreme Court Decisions

The best precedent in the South Carolina Court of Appeals is decisions rendered by the South Carolina Supreme Court. The Court of Appeals is bound by the state’s Supreme Court decisions. S.C. Const. Art. V § 9.  While this seems obvious, it could be less obvious that the Court of Appeals will apply the state’s Supreme Court decisions over more recent United States Supreme Court decisions on federal law.

In State v. Watts, 320 S.C. 377, 382 n. 1, 465 S.E.2d 359, 363 n. 1 (Ct.App. 1995), the Court held that is was bound by a prior South Carolina Supreme Court decision on federal law despite a more recent and apparently conflicting decision from the United States Supreme Court. It invited the South Carolina Supreme Court to review the conflict, yet felt constrained to apply the South Carolina decision.

If there is a choice among which Supreme Court decisions to argue, you may want to lead with a case where the Court of Appeals agreed with your opponent’s position and was then reversed.  The next best is where the Court of Appeals agreed with your position and the Supreme Court affirmed.

SC Court of Appeals Decisions

The next best authority in the SC Court of Appeals is its own decisions. While this too is obvious, it may be less obvious that the Court considers itself bound by its own published precedent just as tightly as Supreme Court precedent. It recently stated that one panel of the Court of Appeals cannot overturn another panel’s published precedent, absent en banc review. State v. Hoyle, 397 S.C. 622, 629 725 S.E.2d 720, 724 (Ct.App. 2012).

SC Dicta

In choosing among cases, it is also important to distinguish between a holding and dicta. To bind, the statement must go to the issues actually raised in the case. If the statement goes beyond the issues raised, the statement is dicta. The Court may respect dicta but is not controlling. Ex Parte Goodyear Tire and Rubber Co., 248 S.C. 412, 418, 150 S.E.2d 525, 527 (1966).

Even so, former Chief Judge Sanders warned that those who disregard dictum, either in law or in life, do so at their peril. Yaeger v. Murphy, 291 S.C. 485, 490 n. 2, 354 S.E.2d 393, 396 n. 2 (Ct.App. 1987). The warning is ironically dicta.

Foreign Authority

Decisions from other jurisdictions, including the federal courts, may be considered persuasive if there are no contrary South Carolina decisions.

If the issue is open in South Carolina, Chief Justice Toal’s treatise suggests that one survey decisions throughout the country to identify the leading decisions and detect trends. And do not forget the minority view, she cautions, because a well-reasoned minority position may overcome sheer numbers. Jean H. Toal, et; al., Appellate Practice in South Carolina (2d Ed. South Carolina Bar-CLE Division 2002), pp. 222-223.

  Unpublished SC appellate decisions

Unpublished decisions carry the least weight, if any at all. An earlier post explains that unpublished appellate opinions cannot even be cited outside extremely narrow circumstances.

Has anyone been able to effectively use the distinction between a holding and dicta? Please leave me a reply or reach me at www.attorneyroberthill.com.