SC Court of Appeals En Banc? Fuggedaboutit

The last post asked you to imagine that a South Carolina Supreme Court decision kills your case. Because it is a Supreme Court decision, spending time in the Court of Appeals is a waste unless you can distinguish the precedent or point to an intervening statute. Bypassing the Court of Appeals, to get immediate Supreme Court review, may be a way to go.

But say the case that kills you was rendered by the Court of Appeals. You are still stuck because one panel of the Court of Appeals is bound by an earlier panel’s published precedent. State v. Hoyle, 397 S.C. 622, 629, 725 S.E.2d 720, 724 (Ct.App. 2012); Mr. T. v. Ms. T, 378 S.C. 127, 131 n. 3, 662 S.E.2d 413, 415 n. 3 (Ct.App. 2008).

As before, you can try to bypass the Court of Appeals and get directly to the Supreme Court. But there is another option, at least on paper: the Court of Appeals may initially hear the appeal en banc. S.C. Code Ann. §  14-8-90; Rule 219, SCACR. This option allows you to bypass a three-member panel and immediately get to all nine members of the Court.

Good luck. Since 1983, when the Court of Appeals became functional, the Court of Appeals has bypassed a panel decision four times. That’s right — four times in over 30 years. An en banc rehearing is almost as rare; since 1983, the Court has granted rehearing en banc 12 times.

The rarity is understandable. The rule says that en banc review “is not favored” and requires six of the nine Judges to agree. Rule 219, SCACR. Even then, the Supreme Court may take the case and reverse. See Williamson v. Middleton, 383 S.C. 490, 681 S.E.2d 867 (2009)(reversing an en banc decision).

And parties taking an appeal may think twice about asking for it. When the Court of Appeals sits en banc, you must convince six of the nine judges to reverse the trial-court ruling that you are appealing. Williamson, 383 S.C. at 494-495, 681 S.E.2d at 869-870.       

So what happens if you are on the other side and opposing counsel is the one seeking en banc review. What do you need to do? Nothing. By rule, you don’t respond unless the Court orders a response. Rule 219(b), SCACR.

When would you consider asking for a hearing en banc? A rehearing en banc? Please leave a reply.

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