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.

The post Mandamus Says, Do Your Job! appeared first on Law Offices of Robert Hill.

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.

The post Time to Dust Off Writs of Prohibition? appeared first on Law Offices of Robert Hill.

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.

The post Unappealable Order? Consider Certiorari appeared first on Law Offices of Robert Hill.

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.

The post Discovery Sanctions are Not Appealable appeared first on Law Offices of Robert Hill.

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.

The post Order Referring Foreclosure Case is Not Appealable appeared first on Law Offices of Robert Hill.