What ever happened to comity?

I am beginning to pity the South Carolina Court of Appeals. For the third time in less than two months the South Carolina Supreme Court has directed the Court of Appeals to depublish one of its opinions–this time on April 9, 2015 in the case of State v. Starks, 410 S.C. 580, 765 S.E.2d 148 (Ct. App. 2014).

As I noted recently, I’ve never heard of a superior court ordering an inferior appellate court to depublish one of its opinions. In all three cases the Supreme Court did not reverse the Court of Appeals’ decision. The only rationale I can determine for ordering an inferior appellate court to depublish an opinion without reversing the decision is that the Supreme Court agrees with the result but disagrees with the reasoning and does not want the Court of Appeals’ reasoning to be cited as precedent. However, if that’s the case, it behooves the Supreme Court to issue its own opinion and explain its own reasoning–basically to affirm the Court of Appeals as modified.

There are so many areas of South Carolina law that could use precedential analysis by our appellate courts that the act of depublishing opinions is almost perverse. It also demonstrates a lack of respect of the Supreme Court for the Court of Appeals. Ironically, our appellate courts are renowned for their general courtesy–the Court of Appeals has a tradition of the appellate judges stepping down from the bench to shake appellate counsels’ hands at the conclusion of every oral argument. The Supreme Court’s recent lack of comity towards the Court of Appeals is a bit shocking and frankly inexplicable.

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