Reviewing Appellate Orders: the Catch 22

catch 22Joseph Heller memorialized the phrase “Catch 22″ in his novel. Yossarian, a WWII combat pilot, asks about how to be grounded:

Yossarian: Ok, let me see if I’ve got this straight. In order to be grounded, I’ve got to be crazy. And I must be crazy to keep flying. But if I ask to be grounded, that means I’m not crazy anymore, and I have to keep flying.
Dr. ‘Doc’ Daneeka: You got it, that’s Catch-22.
Yossarian: Whoo… That’s some catch, that Catch-22.
Dr. ‘Doc’ Daneeka: It’s the best there is.

South Carolina imposes a similar catch when a single judge or justice denies an appellate motion. Rule 240(j) generally allows a single judge or justice to rule on appellate motions, and provides: “Any review of an order issued by an individual judge or justice shall be by petition for rehearing.” But the rule also provides that the court will not entertain petitions for rehearing unless the appeal is effectively dismissed or finally decided. Rule 240(i), SCACR.

So what happens if a meritorious motion is wrongly denied? Review is by petition for rehearing, yet you cannot petition for rehearing because the appeal remains pending. And we go round and round. That’s some catch, that catch-22.

There are three possible ways to cut through this.

If the motion to dismiss was for lack of subject-matter jurisdiction, you can re-raise the issue in your brief on the merits. As an earlier post explains, subject-matter jurisdiction can be raised at any time. And taking an untimely appeal, or trying to appeal an unappealable order, are jurisdictional. Applying this rule, the Court concluded that a party could argue to the panel that an appeal is untimely without petitioning to rehear a single judge’s refusal to dismiss. Portee v. Always Precise Protection Agency & Investigations, Inc., No. 2012-UP-649 (S.C. Ct.App. filed Dec. 5, 2012).

Another way is find a more specific governing rule. For example, the rule governing stays and supersedeas specifically provides that an aggrieved party may petition the full appellate court for review of the single judge’s order. Rule 241(d)(2), SCACR.

Lastly, you can attack the rule head-on. S.C. Code

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