D. Defenses

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

D. Defenses

The South Carolina Supreme Court long ago decided that: "There is no special limitation to a proceeding by mandamus, and the Statute of Limitations does not apply to such a proceeding. The rule, however, is, that where there is unreasonable delay the Court will, in the exercise of its discretion, refuse to issue the writ."¹⁶⁹ A statute of limitation, however, might be used to determine whether there has been an "unreasonable delay."¹⁷⁰ Additionally, the Court of Appeals has said that when a party appeals a verdict rendered in a magistrate's court, but the magistrate who heard the case does not file a return as required by rule, the appellant must act with "due diligence" and seek a writ of mandamus if necessary to compel the return.¹⁷¹

Other than "unreasonable delay" — in other words, laches — the appellate decisions rarely discuss defenses. A few opinions say that courts will not grant mandamus where the issue is moot.¹⁷² Similarly, the South Carolina Supreme Court has said that mandamus "... will not be granted when its issuance would prove nugatory or unavailing."¹⁷³ The plaintiff's lack of standing may be a defense.¹⁷⁴ Some issues are not appropriate for judicial determination and, therefore, should not be the subject of a writ of mandamus.¹⁷⁵

Generally, no court will entertain an application for mandamus to require someone to do that which he or she had been required and enjoined not to do by judicial authority,¹⁷⁶ therefore, an outstanding injunction would provide what would amount to an affirmative defense to a petition for mandamus.

Language used in several opinions presents another, albeit rather nebulous, possible defense. Courts have said that mandamus is not a "writ of right," but a matter of discretion.¹⁷⁷ Or, as some courts have put it, mandamus is not "demandable as of right."¹⁷⁸

What exactly the courts mean by these statements is not readily apparent, but the language would seem to allow a respondent to argue that even though a petitioner has met the elements required to grant mandamus, the writ is nonetheless inappropriate. That is almost exactly what the respondents contended in Grimball v. Beattie,¹⁷⁹ a case that called on the South Carolina Supreme Court to balance the exigencies of economic crisis against fundamental constitutional principles. The petitioner was appointed to the Circuit Court with a salary fixed by statute. The Legislature, facing the financial emergency of the Great Depression appropriated less money for judges' salaries than called for by that compensation statute. The petitioner sought a writ of mandamus to compel the state Comptroller General to issue a salary warrant for the unpaid balance of his compensation and the State Treasurer to pay that warrant. The court concluded that the State Constitution supported the writ when it created the office of Circuit Judge, prescribed the term of office, commanded the manner of fixing compensation, and prohibited diminution of that compensation during a judge's continuance in office. The respondents argued that even though the petitioner may have shown a clear right to the writ, the court could, in the exercise of judicial discretion, refuse it because the Legislature had reduced — in that critical year of 1934 — the appropriation for all state officers to meet the economic condition existing at the time, a "world-wide state of depression." The court conceded that it was perhaps true that it could, in the exercise of judicial discretion, refuse to issue the writ, even though the petitioner may have shown a clear, legal right for which mandamus was an appropriate remedy. However, in an eloquent defense of the principle of judicial independence, the court granted the writ saying: "... in giving consideration to the arguments presented by the respondents here, that this Court should take judicial notice of present economic conditions in determining what exercise we shall make of our discretion in this case, we must without hesitation say that the independence of the several branches of our government must at all times be sustained, and this especially applies to the limitations concerning the compensation of the members of our judiciary. We will not, therefore, hesitate to declare the law as we find it, and to issue such writs or process as may be necessary to continue in this state the Constitution as the supreme and fundamental law."¹⁸⁰

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Notes:

^[169] State ex rel. Cummings v. Kirby, 17 S.C. 563, 566 (S.C. 1882) (where petitioner sought mandamus to compel respondent county commissioners to draw warrant in favor of petitioner for payment of claims held by him against county, writ refused as petitioner delayed application for about ten years since claims were allowed and about seven years since they were first refused payment and petition suggested no reason for that delay). See also Godwin v. Carrigan, 227 S.C. 216, 87 S.E.2d 471 (S.C. 1955) (while statute of limitations does not apply to proceeding for writ of mandamus, nevertheless alleged adverse use for more than 20 years without assertion of remedy by appellant offers reason why...