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Exhausting Administrative Remedies is Not Jurisdictional

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Last Wednesday, the South Carolina Supreme Court reaffirmed that a party’s failure to exhaust administrative remedies is not jurisdictional. Exhausting administrative remedies goes to a case’s prematurity, the Court held. It does not effect subject matter jurisdiction.

In confronting an exhaustion argument, the trial court begins with the general rule that a party must exhaust administrative remedies. It then enjoys the discretion to decide if an exception exists, such as whether:

  • pursuing the administrative remedies was futile
  • the administrative remedies were inadequate; and
  • the case presents issues of important public interests that need to be resolved for judicial economy.

On appeal, the trial court’s decision is reviewed only for an abuse of discretion.

The case is Storm M.H. v. Charleston County Board of Trustees, 400 S.C. 478, 735 S.E.2d 492 (2012).

Has anyone been able to persuade a court that administrative remedies are futile or inadequate? Please let us hear for you. You may leave a reply or reach me at www.attorneyroberthill.com.

 

 

Citing Unpublished Orders on Appeal

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The last post covered a brief’s Table of Authorities and proper citation form. This one addresses whether one may cite unpublished opinions.

The South Carolina rule prohibits citing unpublished orders except in proceedings in which they are directly involved. Rule 268(d)(2), SCACR. The Supreme Court and Court of Appeals reminds readers of this prohibition by placing a prominent warning on their unpublished opinions against citing the opinion except as provided in the rule.

But the Supreme Court is free to modify its rules. In one case,the Court cited its unpublished opinion in an unrelated case for its persuasiveness. Toth v. Square D Co., 298 S.C. 6, 10, 377 S.E.2d 584, 586-587 (1989).

A different rule may also apply to unpublished trial court orders. The Court of Appeals stated in dicta that a party may present trial-court orders to a trial judge as if they were memoranda of law. The trial judge may not expressly rely on such orders as authority, but may give them whatever persuasive effect that they may have. Higgins v. Medical University of South Carolina, 326 S.C. 592, 600, 486 S.E.2d 269, 273 (Ct.App. 1997).

The Supreme Court has also relied on unpublished state trial court orders from trial courts outside South Carolina. Cole v. Boy Scouts of America, 397 S.C. 247, 253 n. 2, 725 S.E.2d 476, 479 n. 2 (2012).

Federal courts addressed this by adopting Rule 32.1, FRAP. It provides that a court may not prohibit or restrict citing federal judicial opinions or other written dispositions — even if designated as “unpublished” or the like — if the disposition issued on or after January 1, 2007. The proposed rule was controversial, and the January 2007 cut-off date was an apparent compromise. See Anne Coyle, A Modest Reform:  The New Rule 32.1 Permitting Citation to Unpublished Opinions in the Federal Courts of Appeals, 72 Fordham L. Rev. 2471 (2004)(describing the competing policy arguments). The various federal circuits treat pre-2007 cases differently, with some continuing their blanket prohibition on citing pre-2007 unpublished opinions (a chart is available here).

Rule 32.1, FRAP, makes sense. A blanket prohibition on citing orders may deprive the Court of information that it could find helpful. And where is the harm? The Court, after all, remains free to give the unpublished opinions whatever weight, if any, that the court believes that the opinion deserves. Why should the South Carolina Supreme Court be able to rely on unpublished state trial court orders from Connecticut and New York, like it did in Cole, yet not allow attorneys to bring its own orders to its attention?

Has anyone else been frustrated by being unable to cite unpublished orders? Please let me hear from you. You may reach me at www.attorneyroberthill.com.

 

Appellate Briefs – Content Layout

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The two previous posts explained why a brief’s appearance matters and discussed some typography basics such as ALL CAPS, bold, and italics. This post covers how a brief is organized and compares the South Carolina rule with the federal rule.

Rule 208(b), SCACR, governs how a brief is organized in the South Carolina appellate courts. The brief has five parts:

  1. Table of Contents and Cases (with page citations)
  2. Statement of the Issues on Appeal
  3. Statement of the Case
  4. Argument (with distinctive headings for each issue)
  5. Conclusion

Federal Appellate Rule 28 has similar requirements with a few explicit additions. The federal rule, for example, requires a jurisdictional statement explaining the basis of the district court’s and appellate court’s subject matter jurisdiction. While the South Carolina rule lacks a direct counterpart, state Rule 208 requires that the Statement of the Case describe the date of the order being appealed and the date of the service of the Notice of Appeal. The Court may thus ensure that the Notice of Appeal is timely.

The federal rule also requires a separate Statement of the Facts. The South Carolina rule, in its description of the Argument section, provides that a party may include a separate statement of facts relevant to the issues presented for review. Both the federal and state rules require that the facts stated be supported by references to the record.

Lastly, the federal rule requires a statement on the standard of review and a summary of the argument. The South Carolina rule does not require either. In his seminar, however, former Court of Appeals Judge Ralph King Anderson admonished writers to include the standard of review in their brief because it keeps the focus on what the Court may or may not do. A summary of the argument may likewise be helpful.

Over the next several posts, each of these components will be separately discussed in greater detail. In the meantime, have I missed anything? Has anyone faced a brief that lacked a required part? We would love to hear from you. You can reach me at www.attorneyroberthill.com.

 

 

 

Standards of Review on Appeal – Administrative Agencies

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This post finishes up the discussion on standards of review — how much deference the appellate courts pay to the rulings being appealed. Earlier posts discussed de novo  review for questions of law, the any evidence review of factual findings in actions at law, the preponderance review for factual findings in actions in equity, and the abuse of discretion review for most pre-trial and trial rulings.

This post covers appeals from administrative agencies, particularly the Workers Compensation Commission. As with trial courts, the Commission’s legal conclusions are reviewed de novo. Grant v. Grant Textiles, 372 S.C. 196, 200-201, 641 S.E.2d 869, 871 (2007).

The Commission’s factual findings are reviewed for “substantial evidence.” This substantial evidence standard forbids judicial fact-finding or substituting judicial judgments for the agency’s judgment. Review is limited to whether reasonable minds could reach the conclusion that the agency reached: “Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached.” Holmes v. Nat’l Serv. Ind., Inc., 395 S.C. 305, 308-309, 717 S.E.2d 751, 752 (2011).

The same standard applies when reviewing an Administrative Law Judge’s factual findings. Hill v. South Carolina Dep’t of Health and Envtl. Control, 389 S.C. 1, 698 S.E.2d 612 (2010).

As I explained in an earlier post, a Workers Compensation appeal that I argued earlier this year turned on whether the issue raised involved a question of law or an issue of fact. I argued from the record that de novo review applied because the Commission misconstrued and misapplied a statute. The Court of Appeals considered the issue as an issue of fact and deferred to the Commission as the fact-finder.

Has anyone else had a similar experience? We would love to hear from you. You may reach me at www.attorneyroberthill.com.

 

 

Appealable Orders – Special Statutes

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The last two posts covered S.C. Code Ann § 14-3-330, the general statute governing which orders may be appealed. More specialized statutes exist, however. This post discusses the statutes governing appeals from arbitration orders and from administrative orders.

  Appeals of Arbitration Orders
Section 15-48-200(a), S.C. Code Ann., governs appeals from arbitration orders. It generally allows immediate appeals from orders denying or staying arbitration but does not provide for an immediate appeal from an order compelling arbitration.

Initial attempts to apply S.C. Code Ann § 14-3-330 to fill in this gap were unsuccessful. The Supreme Court held that § 14-3-330 did not apply to orders related to arbitration and that such orders are not immediately appealable unless S.C. Code Ann. § 15-48-200(a) provides for an appeal. Heffner v. Destiny, Inc., 321 S.C. 536, 471 S.E.2d 135 (1995). The Court later held this is true even though the United States Supreme Court construed the Federal Arbitration Act somewhat differently. Toler’s Cover Homeowners Ass’n, Inc. v. Trident Constr. Co., Inc., 355 S.C. 605, 610 n. 3, 586 S.E.2d 581, 584 n. 3 (2003).

But the Court of Appeals held more recently that an order granting arbitration is immediately appealable if the trial court also dismisses the underlying lawsuit. It distinguished the earlier decisions because they involved orders staying the action rather than dismissing it, and reasoned that the dismissal made the order immediately appealable under § 14-3-330. Widener v. Fort Mill Ford, 381 S.C. 522, 674 S.E.2d 172 (Ct.App. 2009). In reaching this decision, the Court did not reconcile its holding with the Heffner decision that § 14-3-330 does not apply to orders related to arbitration.

Three rules sum up these decisions: (1) orders denying arbitration are immediately appealable; (2) orders compelling arbitration and staying the underlying action are not immediately appealable; and (3) orders compelling arbitration and dismissing the underlying lawsuit are currently appealable immediately but may ultimately be dismissed if the Supreme Court applies the Heffner decision.

     Appeals for Administrative Orders
Most recently, the Supreme Court applied the Heffner rule in an appeal from an Administrative Law Court. Charlotte-Mecklenburg Hosp. Auth. v. South Carolina Dept. of Health and Env’t Control, 387 S.C. 265, 692 S.E.2d 894 (2010). In that case, the Court reaffirmed that § 14-3-330 does not apply if a more specific statute exists. It held from there that the APA only allows appeals from a final decision, and that finality was thus required even if § 14-3-330 would allow the appeal.

The Court of Appeals likewise applied this finality requirement to workers compensation appeals because the specific statute governing such appeals also requires finality. Long v. Sealed Air Corp., 391 S.C. 483, 706 S.E.2d 34 (Ct.App. 2011).

Has anyone else tried to use the general appeals statute when a more specific statute applied? We would love to hear from you. Please leave a comment or reach me at www.attorneyroberthill.com.

 

 

Specificity on Appeal – An Example

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A post earlier this month discussed that an issue must be raised in the trial court with specificity to later raise it on appeal. This issue recently fractured the Court.

In Atlantic Coast Builders and Contractors, LLC v. Lewis, 396 S.C. 479, 722 S.E.2d 213 (2011), a lessor leased property that was zoned rural to a business for commercial use. After the County enforced the zoning, the business vacated the property, sued the lessor, and sought in part the return of its security deposit. The lessor’s Answer generally denied that she should return the deposit. The lessor also presented trial testimony and argument explaining why she was entitled to keep the security deposit.

The master in equity initially failed to address the security deposit, and the business filed a Rule 59(e) motion asking for a ruling. The lessor did not respond to the motion and never argued to the trial court post-trial that she should retain the deposit. The master ordered the deposit’s return. The lessor appealed.

The Court rendered three opinions on whether this and another issue was properly preserved for review. In two opinions, Chief Justice Toal and Justices Hearn and Kitteridge held that the security deposit issue was preserved because the lessor presented trial testimony on the issue and argued the issue to the trial court prior to its initial ruling. In their view, the lessor was thus not raising an issue for the first time on appeal. They further concluded that the lessor was not required to respond to the Rule 59(e) motion or repeat post-trial the arguments that the lessor earlier made during trial.

Justice Pleicones and Acting Justice Cooper viewed the record differently. They concluded that the lessor had not made the specific argument to the trial court that she was raising on appeal, and that the Answer’s general denial was not specific enough to preserve the arguments that they believed were raised for the first time on appeal.

The dissent then applied the piggy-backing prohibition and concluded that the lessor could not rely on her opponent raising the issue over the deposit and getting a ruling on it from the trial court. She had to be the one who raised the argument in the trial court to later argue it on appeal.

Preservation thus turned on whether the deposit issue was argued with sufficient specificity in the trial court to later argue the point on appeal.

Any thought? Comments? Please let me hear from you on whether you have ever caught your opposing counsel up short for failing to argue with specificity. You can reach me through the comment box or at www.attorneyroberthill.com.

Update – the Court later refiled the Atlantic Coast Builders decision. The updated decision is discussed here.