Say your opposing counsel uncovered a South Carolina Supreme Court decision that just kills your case. You tried to distinguish it and use other techniques to deal with it, but the case is there. The trial court relied on it to toss your case, and the Court of Appeals will likely agree that the precedent controls.
So what do you do?
One option is to go ahead and appeal to the Court of Appeals, repeat your distinctions and other techniques, and preserve your arguments for overruling the case. But don’t waste time asking the Court of Appeals to do it. It cannot overrule a Supreme Court decision.
Another option is to appeal to the Court of Appeals and immediately move the Supreme Court to transfer the case to itself. S.C. Code Ann. § 14-8-210 and Rule 204(b), SCACR, allow the Supreme Court to bypass the Court of Appeals.
The General Assembly established the modern South Carolina Court of Appeals in 1979. But the Court of Appeals did not function until 1983. Even then, the Supreme Court retained jurisdiction over all appeals from the trial courts. Appeals were fully perfected in the Supreme Court, and the Court would decide which cases were then transferred to the Court of Appeals.
This began changing in 1996. A few years later, the General Assembly enacted the current two-tier system. Outside the exceptions in S.C. Code Ann. § 14-8-200(b), the Court of Appeals now has jurisdiction over most appeals. Supreme Court review is generally by certiorari to the Court of Appeals.
Despite enacting a two-tiered system, the General Assembly authorized the Supreme Court to immediately handle the appeal if the issues were of “significant public interest,” a “legal principle of major importance,” and in “other cases the [Supreme] court considers appropriate.” S.C. Code Ann. § 14-8-210(b). Interestingly, the Supreme Court’s corresponding rule drops the catch-all “other cases” category. Rule 204(b), SCACR.
The Supreme Court may consider your arguments against an earlier decision important enough to bypass the Court of Appeals. And this, of course, is just one of many situations where the rule can apply.
A party may move for the bypass, the Court of Appeals may ask for it, or the Supreme Court may transfer the appeal on its own.
One of my opposing counsel once simultaneously moved the Supreme Court for a by-pass and the Court of Appeals to ask that it be bypassed. Seemed like overkill to me. I always thought that the Court of Appeals would wait and see what the Supreme Court did, and doubt that it would ask for a bypass after the Supreme Court denied a party’s motion for one. In my case, both motions were denied.
The Supreme Court’s ability to bypass the Court of Appeals on its own motion also has interesting effects. In another appeal of mine, the Supreme Court denied my motion to bypass the Court of Appeals yet months later issued its own bypass — sua sponte — after the appeal was fully submitted.
Can the Court of Appeals help?
A bypass motion seems warranted if you are facing a bad Supreme Court decision that you cannot distinguish away. If you can distinguish it, it may be best to let the Court of Appeals handle the appeal.
A recent appeal of mine turned on how broadly the Supreme Court read one of its decisions. I advocated a narrow reading, and argued that the Court should limit the case to its facts. Yet I was also ready to argue that the case was just plain wrong.
The Court of Appeals agreed with me that the Supreme Court decision was distinguishable, saving me from having to attack the case directly. I appreciated the help.
The Supreme Court ultimately agreed with me that the troublesome case did not apply. The help from the Court of Appeals was worth the wait.
Has anyone else bypassed the Court of Appeals? Opposed a bypass? Thought about one and decided against it? Please tell us about it.