39 Prohibition, Writ of

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

39 Prohibition, Writ of

A. Definition

Prohibition is one of the common law "extraordinary writs" that were directed to a judge or other official to command or prevent performance of a specified action.¹

Prohibition, as the name suggests was to prohibit an "inferior tribunal"² from taking action as opposed to, for example, mandamus, which directed an official to take action.³ An interesting academic discussion could be had concerning whether an extraordinary writ is a "cause of action;"⁴ however, that discussion would indeed be academic as under modern pleading there is one form of action known as a "civil action,"⁵ and the South Carolina Supreme Court has conceded, at least by implication, the characterization of the writ of prohibition as a "cause of action."⁶ Nonetheless, the procedure governing extraordinary writs, including prohibition, is treated specially under the South Carolina Constitution and specific statutes. They give the South Carolina Supreme Court the power, under original jurisdiction, to issue writs of prohibition.⁷ The individual justices and all judges of "courts of record" have that power as well.⁸ The decision of a justice of the Supreme Court⁹ or of the Court of Appeals¹⁰ is, however, subject to appeal to the full court. The Supreme Court has limited its original jurisdiction by rule stating:

The Supreme Court will not entertain matters in its original jurisdiction when the matter can be determined in a lower court in the first instance, without material prejudice to the rights of the parties. If the public interest is involved, or if special grounds of emergency or other good reasons exist why the original jurisdiction of the Supreme Court should be exercised, the facts showing the reasons must be stated in the petition with supporting affidavits.¹¹

The history, nature, and purpose of the writ was explained at some length in the oft-cited decision of the South Carolina Supreme Court of Ex parte Jones.¹² The court said:

The ancient prerogative writ of prohibition has been recognized and employed in the common-law system of jurisprudence for more than seven centuries, and like all prerogative writs should be used with forbearance and caution, and only in cases of necessity. It is primarily a preventive process, and is only incidentally remedial. It was originally designed to perfect the administration of justice and for the 'control of subordinate functionaries and authorities,' but its principal modern use, stated generally, is to prevent the assumption and exercise of jurisdiction by an inferior Court or tribunal in cases where wrong, damage, and injustice are liable to follow such action.
With regard to the function and scope of the writ, it has been settled in this State from an early period that it will only lie to prevent an encroachment, excess, usurpation, or improper assumption of jurisdiction on the part of an inferior Court or tribunal, or to prevent some great outrage upon the settled principles of law and procedure; but, if the inferior Court or tribunal has jurisdiction of the person and subject-matter of the controversy, the writ will not lie to correct errors and irregularities in procedure, or to prevent an erroneous decision or an enforcement of an erroneous judgment, or even in cases of encroachment, usurpation, and abuse of judicial power or the improper assumption of jurisdiction, where an adequate and applicable remedy by appeal, writ of error, certiorari, or other prescribed methods of review are available.¹³

Other courts have offered additional explication of the writ. While it may be employed to prevent improper assumption of jurisdiction, it is, the state supreme court has said, "of a more or less drastic nature" and caution should always be exercised; it should only issue where the reason for it is plain.¹⁴ The writ may only be applied to prohibit a "judicial" or "quasi-judicial" function.¹⁵ It is not a substitute for an appeal,¹⁶ and will not lie to correct irregularities or errors of law or fact,¹⁷ or to prevent an erroneous decision.¹⁸ But it may be employed to challenge the constitutionality¹⁹ or validity²⁰ of a law.

It is interesting to note that one statute of the State Commodity Code,²¹ specifically mentions a writ of prohibition. Under that statute, when a violation of the Code or a regulation or order of the South Carolina Secretary of State has been shown, the court may issue writs of prohibition or mandamus.²² When a defendant is shown to be about to violate the Code or a regulation or order of the South Carolina Secretary of State one appropriate remedy is a writ of prohibition or mandamus.²³

Applications for a writ of prohibition in South Carolina have always been rare; not surprising for an "extraordinary writ" "of a more or less drastic nature" to be used with "forbearance and caution." Since the South Carolina Reports was first published in 1868, of the reported appellate decisions in which an application for the writ was entertained, the great majority were decided between 1870 and 1910. There was a small spike in reported appellate decisions during the period of the Great Depression — mainly cases concerned with banks. However, there have been very few appellate level decisions since 1950.²⁴ The most recent mention of the writ in an appellate decision — and perhaps the only one in the 21^st Century — appears to have been in 2005.²⁵ Besides the fact that courts are reluctant to grant a writ of prohibition, there are a number of reason why it has become less common: fewer "special" courts; better educated trial judges; modern rules of civil procedure and simplified pleading; and, more, and better suited, alternatives.²⁶ Nonetheless, the writ remains a viable action and, despite the significant obstacles in obtaining prohibition, its potential should not be ignored in those unusual cases where it alone can provide the relief sought.

B. Elements

It does not appear that any South Carolina appellate opinion has explicitly set forth the elements that must be stated in a petition for a writ of prohibition. The elements can be gleaned from the decisions, but first it must be noted that the writ is applicable to two circumstances: "... to prevent an encroachment, excess, usurpation, or improper assumption of jurisdiction on the part of an inferior Court or tribunal, or to prevent some great outrage upon the settled principles of law and procedure ...".²⁷ Thus, the elements must be stated in the alternative. It would appear that the petitioner's application must: (1) identify the inferior "tribunal;" (2) state that the tribunal is acting in a "judicial" or "quasi-judicial" function; (3) either assert an improper assumption of jurisdiction or "some great outrage;" (4) state consequent damage; and (5) assert the absence of an adequate and applicable remedy.²⁸

Corpus Juris Secundum has a similar, but somewhat longer, list. Its says that the petition must show that there is a matter actually pending in an inferior court that the court threatens to pass on, that tribunal is without jurisdiction or is acting in excess of its jurisdiction, that the petitioner would be injured by the action, and that the petitioner objected to the tribunal's jurisdiction.²⁹ The "pending matter" requirement is seldom discussed, perhaps because it is self-evident. If the purpose of the writ is to prohibit the lower tribunal from taking action, its purpose is lost once the action has been taken. The one appellate case to address the matter concluded exactly that. In State ex rel. Hamer v. Stackhouse,³⁰ the petitioner was a property owner whose neighbors employed a procedure created by state statute to establish a right of way over his land. Pursuant to the statute a board of three referees was created and they established the sought after road, for which the petitioner was evidently awarded damages as in the case of eminent domain. Seeking to prevent the right of way, the petitioner applied for a writ of prohibition, in essence challenging the constitutionality of the statute, and thereby, the jurisdiction of the referees. A circuit court found the statute constitutional and denied the writ. The petitioner appealed to the South Carolina Supreme Court which affirmed and commented: "It seems in this case, that, whether legally or not, the road in controversy is open, the court dissolved and the parties dispersed. Under this view, even though the appellant had the right and the law on his side, he could not obtain redress through this proceeding."³¹

South Carolina courts also rarely discuss the requirement of an objection by the petitioner. That may be because most writs of prohibition concern jurisdiction, a matter about which a litigant would routinely raise an objection in his or her answer.³² In State ex rel. Zimmerman v. Gibbes,³³ it was argued that a writ should not issue because the inferior court did not have its attention called to its alleged lack of excess of jurisdiction. The court said that while it has been held that an objection is a prerequisite to prohibition, it has also been decided that the rule is only a "'mere rule of courtesy, and not in any sense rigid.'" Whether an objection was made, concluded the South Carolina Supreme Court, was immaterial where lack of jurisdiction was apparent on the face of the original suit or where the lower court appeared in the prohibition proceeding and asserted jurisdiction. Thus, while it may, in many cases, be unnecessary to allege an objection in the lower tribunal, the petitioner's counsel is wise to make that objection and refer to it in the application for the writ.

C. Elements Defined

1. Inferior "Tribunal"

A writ of prohibition must be directed toward an "inferior tribunal."³⁴ Ordinarily, the aspect of inferiority is evident: the object of the writ is a lower court.³⁵ In that case, there is also no question that the object is a "tribunal." However, historically, the writ could be directed to an individual³⁶ or a body.³⁷...