How do you depublish an opinion?

Twice in the past 1 ½ months the South Carolina Supreme Court has ordered that a published South Carolina Court of Appeals opinion be depublished. First, on February 20, 2015, it denied certiorari in State v. Mimms, 410 S.C. 32, 763 S.E.2d 46 (Ct. App. 2014) but ordered that the opinion be depublished. Then, on March 18, 2015, it dismissed as improvidently granted the writ of certiorari in The Spriggs Group, P.C. v. Slivka, 402 S.C. 42, 738 S.E.2d 495 (Ct. App. 2013) and directed the Court of Appeals to depublish its opinion and assign the matter an unpublished opinion number. In both cases the Supreme Court agreed with the Court of Appeals’ resolution of the case [or it would have reversed] but obviously did not agree with its reasoning [or it wouldn’t have ordered the opinion be depublished].

In my twenty-five years of reading appellate opinions I have never seen a superior court order an inferior court to depublish a published opinion. These opinions have already been published in actual books: the Southeastern Reporter and the South Carolina Reports. It’s not like the publishers or the owners of these books are going to rip out the offending pages. Instead we are supposed to engage in this intellectual exercise in which these published materials exist but we are to pretend as though they do not.

The South Carolina Supreme Court’s orders seem akin to the old USSR’s attempts to rewrite history to conform to the new orthodoxies. If the Supreme Court disagrees with the Court of Appeals’ reasoning, it should issue its own opinions rather than ordering the general public to treat the Court of Appeals’ opinions as though they never existed.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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