Time to Dust Off Writs of Prohibition?

Newspaper banner on end of prohibitionIn March 1972, Watergate was a hotel and not a scandal, and the South Carolina Supreme Court granted its last writ of prohibition.

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. Lindsay256 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 here.


Leave a Reply