Unappealable Order? Consider Certiorari

wax-sealLast Friday’s post noted that the South Carolina Supreme Court may review trial-court orders on certiorari even if the order is not appealable before final judgment. This post describes how this works.

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’rs219 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.


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 here.


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