Tag Archives: unpublished decisions

Arguing Precedent in South Carolina

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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.

 

 

 

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.