The South Carolina Judicial System
The judicial system of South Carolina is composed of the courts, the prosecution, and the defense components. The court system is comprised of the Supreme Court, Court of Appeals, Circuit Courts, Family Courts, the Magisterial Courts, Municipal Courts, Probate Courts, and Master-in-Equity Courts. The prosecutorial system is made up of the circuit solicitors and the Attorney General's Office. The defense component includes public defender corporations, court appointed counsel, retained counsel, and the S.C. Commission of Appellate Defense.
2. The Courts
a. The Supreme Court
The State's highest tribunal is the Supreme Court. The court has both original and appellate jurisdiction, but generally acts only in its appellate capacity which includes cases on certiorari from the Court of Appeals and seven classes of appeals directly from the circuit and family courts. The seven classes are cases involving 1) the death penalty, 2) public utility rates, 3) significant constitutional issues, 4) public bond issues, 5) election laws, 6) an order limiting the investigation by a state grand jury, and 7) an order of a family court relating to an abortion of a minor. Other appeals from the circuit and family courts are apportioned between the Supreme Court and the Court of Appeals. The Supreme Court renders decisions based on lower court transcripts, briefs, and oral arguments. In addition to hearing and deciding cases, the court also has rulemaking authority for the unified judicial system, including ethics regulations for judges and controlling admissions to and disciplining of the S.C. Bar. The Supreme Court is composed of a Chief Justice and four Associate Justices who are elected by the S.C. General Assembly for a term of ten years. The terms are staggered and a justice may be re-elected to any number of terms. (See Art. V, S.C. Constitution).
b. The Court of Appeals
Most appeals from the Circuit Court and the Family Court will be heard by the Court of Appeals (S.C. Code Ann. § 14-8-200). Exceptions are when the appeal falls within any of the seven classes listed above, or when the appeal is certified for determination by the Supreme Court.
The Court of Appeals is the judicial system's newest court, having commenced operation on September 1, 1983. It consists of a Chief Judge and eight associate judges who are elected to staggered terms of six years each. The Court sits either as three panels of three judges each or as a whole, and it may hear oral arguments and motions in any county in the State.
c. The Circuit Courts
Directly under the Supreme Court and the Court of Appeals is the Circuit Court, the State's court of general jurisdiction. It has a civil court (the Court of Common Pleas) and a criminal court (the Court of General Sessions). In addition to its general trial jurisdiction, the Circuit Court has limited appellate jurisdiction over appeals from the Probate Court, Magistrate's Court, and Municipal Court, as well as appeals from the Administrative Law Judge Division over matters relating to state administrative and regulatory agencies. The state is divided into sixteen judicial circuits. Each circuit has at least one resident judge who maintains an office in the judge's home county within the circuit. Circuit judges serve the sixteen circuits, on a rotating basis, with court terms and assignments determined by the Chief Justice through Court Administration. Circuit Court judges are elected to staggered terms of six years.
The Masters-in-Equity are appointed by the Governor with the advice and consent of the General Assembly to a term of six years. They may serve in full or part-time capacity and are compensated by the county governing body. Masters have jurisdiction in equity matters referred to them by the Circuit Court. They have the power and authority of the Circuit Court sitting without a jury, to regulate all proceedings in every hearing before them, and to perform all acts and take all measures necessary or proper for the efficient performance of their duties under the order of reference. This includes the power to rule on all motions, require the production of evidence, and call witnesses and examine them under oath. Masters may also conduct sales under certain circumstances. There are currently 21 Masters-in-Equity. Appeals from an order or judgment entered by a master or referee "must be to the Supreme or the Court of Appeals as provided by the South Carolina Appellate Court Rules. A matter may not be referred to the master or referee for the purpose of making a report to the circuit court." S.C. Code Ann. § 14-11-85. See: Rule 53, SCRCP.
e. The Family Courts
The unified statewide family court system was established by statute in 1976. The Family Courts have exclusive jurisdiction of all matters involving domestic or family relationships. Pursuant to this provision, the Family Courts are the sole forum for the hearing of all cases concerning marriage, divorce, legal separation, custody, visitation rights, termination of parental rights, adoption, support, alimony, division of marital property, and change of name. These courts also generally have exclusive jurisdiction over minors under the age of seventeen. S.C. Code Ann. § 63-3-510 provides that the family court "shall have exclusive original jurisdiction and shall be the sole court for initiating action" concerning a child who "is alleged to have violated or attempted to violate any State or local law or municipal ordinance."
S.C. Code Ann. § 63-19-1210 provides that if, "during the pendency of a criminal or quasi-criminal charge . . . it is ascertained that the child was under the age of seventeen years at the time of committing the alleged offense, it is the duty of the circuit court immediately to transfer the case, together with all papers, documents, and testimony connected therewith, to the family court." Each summary court judge should contact the family court office in the judge's county and arrange with family court personnel such procedures as will expedite and insure the orderly transfer of juvenile cases to the family court.
While as a general proposition the family court has "exclusive" jurisdiction over a person under seventeen years of age, S.C. Code Ann. § 63-3-520 provides the following:
"The magistrate courts and municipal courts of this State have concurrent jurisdiction with the family courts for the trial of persons under seventeen years of age charged with traffic violations or violations of the provisions of Title 50 relating to fish, game and watercraft when such courts would have jurisdiction of the offense charged if committed by an adult."
S.C. Code Ann. § 63-19-20(1) defines "child" or "juvenile" as a person less than seventeen years of age. "Child" or "juvenile" does not mean a person sixteen years of age or older who is charged with a Class A, B, C, or D felony as defined in § 16-1-20 or a felony which provides for a maximum term of imprisonment of fifteen years or more. In addition, "If a child sixteen years of age or older is charged with an offense which, if committed by an adult, would be a misdemeanor, a Class E or F felony as defined in Section 16-1-20, or a felony which provides for a maximum term of imprisonment of 10 years or less,". . . the family court "... may bind over the child for proper criminal proceedings to a court which would have trial jurisdiction of the offense if committed by an adult." S.C. Code Ann. § 63-19-1210(4). In addition, when a "... child fourteen or fifteen years of age is charged with an offense which, if committed by an adult, would be a Class A, B, C, or D felony as defined in S.C. Code Ann. § 16-1-20 or a felony which provides for a maximum term of imprisonment of fifteen years or more," the family court "may bind over the child for proper criminal proceedings to a court which would have trial jurisdiction of the offenses if committed by an adult." S.C. Code Ann. § 63-19-1210(5). Therefore, "When jurisdiction is relinquished by the family court in favor of another court, the court shall have full authority and power to grant bail, hold a preliminary hearing and other powers as now provided by law for magistrates in such cases." S.C. Code Ann. § 63-19-1210(8). It is clear from these statutes that the normal situations in which a summary court judge would be conducting a criminal proceeding over a child would be when the child is 16 and it is so ordered by the family court, or where the child is charged with a traffic offense within the jurisdiction of the summary court judge. A summary court judge may never commit a child under seventeen (17) years of age to jail, however.
At least two family court judges are elected for staggered six year terms to each of the sixteen judicial circuits, with 58 judges (including six at-large judges) who rotate primarily from county to county within their resident circuits. They are assigned to other circuits based upon caseload requirements as directed by the Chief Justice.
f. The Magistrates' Court
There are approximately 311 magistrates in South Carolina, each serving the county for which he or she is appointed. They are appointed by the Governor upon the advice and consent of the Senate for four year terms and until their successors are appointed and qualified. (Art. V, § 26, S.C. Const., and S.C. Code Ann. § 22-1-10). Anyone seeking an initial appointment as magistrate must pass an eligibility examination before they can be recommended to the Governor by the senatorial delegation. S.C. Code Ann. § 22-2-5. Magistrates must also attend an orientation program, pass a certification examination within one year of their appointment, and attend a specified number of trials prior to conducting a trial.
Magistrates have criminal trial jurisdiction over all offenses which are subject to the penalty of a fine not exceeding $500.00 or imprisonment not exceeding 30 days, or both. (S.C. Code Ann. § 22-3-550). Some traffic and criminal statutes grant the summary courts greater jurisdiction. These statutes will specify that the magistrate court can try cases with a higher penalty provision. Examples include, but are not limited to, domestic violence, third degree (S.C. Code Ann. § 16-25-20(D)(1); third offense driving under suspension (S.C. Code Ann. §56-1-460(d); and forgery, no dollar amount involved (S.C. Code Ann. § 16-13-10(C). In addition, S.C. Code Ann. § 22-3-545 provides that magistrates may hear cases transferred from general sessions, the penalty for which does not exceed one year imprisonment or a fine of $5,500, or both, upon petition by the solicitor and agreement by the defendant. Magistrates have civil jurisdiction when the amount in controversy does not exceed $7,500. (S.C. Code Ann. § 22-3-10). In addition, magistrates are responsible for setting bail, conducting preliminary hearings, and issuing arrest and search warrants. Unlike circuit courts and probate courts, magistrate courts are not courts of record. Proceedings in magistrates courts are summary. (S.C. Code Ann. § 22-3-730).
g. The Municipal Courts
The council of each municipality may establish, by ordinance, a municipal court to hear and determine all cases within its jurisdiction. Such courts are part of the unified judicial system. It should be noted, however, that a municipality may, upon prior agreement with county governing body, prosecute its cases in magistrate court, in lieu of establishing its own municipal court. In addition, the council may establish, by ordinance, a municipal court, and contract with the county governing authority for the services of a magistrate to serve as its municipal judge. The Chief Justice, pursuant to his/her powers as administrative head of the unified judicial system, would, in turn, delegate authority to the Chief Summary Court Judge of the county to assign a specific magistrate as municipal judge.
Municipal courts have jurisdiction over cases arising under ordinances of the municipality, and over all offenses which are subject to a fine not exceeding $500.00 or imprisonment not exceeding 30 days, or both, and which occur within the municipality. Some traffic and criminal statutes grant the summary courts greater jurisdiction. These statutes will specify that the magistrate court can try cases with a higher penalty provision. Examples include, but are not limited to, domestic violence third degree (S.C. Code Ann. § 16-25-20(D)(1); third offense driving under suspension (S.C. Code Ann. §56-1-460(d); and forgery, no dollar amount involved (S.C. Code Ann. § 16-13-10(C). In addition, S.C. Code Ann. § 22-3-545 provides that municipal courts may hear cases transferred from general sessions, the penalty for which does not exceed one year imprisonment or a fine of $5,500, or both, upon petition by the solicitor and agreement by the defendant. The powers and duties of a municipal judge are the same as those of a magistrate, with regard to criminal matters; however, municipal courts have no civil jurisdiction.
The term of a municipal judge is set by the council of the municipality, but cannot exceed four years. Municipal Judges appointed on or after May 24, 2004, must be appointed for a set term of not less than two years but not more than four years. Section 14-25-15(A) states, “Each municipal judge must be appointed by the council to serve for a term set by the council of not less than two years but not more than four years and until his successor is appointed and qualified. His compensation must be fixed by the council.”
Section 14-25-115 provides "[t]he council of a municipality may establish the office of ministerial recorder and appoint one or more full-time or part-time ministerial recorders, who shall hold office at the pleasure of the council. Before entering upon the discharge of the duties of the office of ministerial recorder, the person appointed shall take and subscribe the prescribed oath of office and shall be certified by the municipal judge as having been instructed in the proper method of issuing warrants and setting and accepting bonds and recognizances. Ministerial recorders shall have the power to set and accept bonds and recognizances and to issue summonses, subpoenas, arrest warrants, and search warrants in all cases arising under the ordinances of the municipality, and in criminal cases as are now conferred by law upon magistrates. Ministerial recorders shall have no other judicial authority."
Approximately 200 municipalities in South Carolina have chosen to create municipal courts.
All municipal judges, including ministerial recorders, are required to complete a training program or pass certification or recertification examinations, or both, within one year of taking office. See S.C. Code Ann. § 14-25-15 and Rule 509, SCACR. The examination will be offered three times each year. Members of the South Carolina Bar are exempt from the examination; however, they are required to attend the orientation program.
Each municipal judge and ministerial recorder must pass a recertification examination within eight years after passing the initial certification examination and at least once every eight years thereafter.
h. The Probate Courts
Each county in South Carolina has a popularly elected probate judge who serves a four-year term. Probate courts have jurisdiction over marriage licenses, estates of deceased persons, minor settlements under $25,000.00, guardianships of minors and incompetents and involuntary commitments to mental institutions. (S.C. Code Ann. § 14-23-1010 et seq.) They also have exclusive jurisdiction over trusts and concurrent jurisdiction with Circuit Courts over powers of attorney.
3. South Carolina Court Administration
The Office of Court Administration is the administrative arm of the Chief Justice, who is constitutionally designated as the administrative head of the unified judicial system. (Art. V, § 4 S.C. Const.). In addition to carrying out special assignments as directed by the Chief Justice, this office collects caseload data from the state courts, makes recommendations to the Chief Justice for terms of court and assignment of judges, administers judicial education programs, and administers the funds for foreign language interpreters and interpreters for the deaf.
4. The Clerk of Court
Each county of South Carolina has a popularly elected Clerk of Court who serves a four-year term. Duties of the clerks extend in both civil and criminal areas: receiving criminal warrants and forwarding them to the solicitor; receiving bail; assembling trial lists; performing courtroom duties; receipt and disbursement of support payments paid through the Clerk of Court, and issuance of Rules to Show Cause to bring non-paying obligors before the Family Court; handling jury-related matters; receiving fees, fines, and costs; maintaining court records, and handling reporting requirements. In some counties, the clerk serves as the register of deeds sometimes called register of mesne conveyance and thus keeps all records required by the recording statutes. All funding of clerks of court for staff, office space, and equipment is a county responsibility, with the exception of a limited state salary and support personnel supplement. (S.C. Code Ann. § 14-17-10, et seq.).
5. The Prosecution
By constitutional provision, the Attorney General is the chief prosecutor of the State. (Art. V, § 20, S.C. Const.). The Attorney General, besides acting as the State's chief prosecutor, also represents the State in civil litigation, and issues opinions regarding the interpretation of law. (S.C. Code Ann. § 1-7-10 et seq.)
Prosecution in circuit court is carried out by a circuit solicitor and the solicitor's assistant. In addition, a solicitor, if directed by the Attorney General, may represent the State in a civil proceeding.
Prosecution of misdemeanor traffic and criminal violations in the summary courts may be made by the arresting officer or a supervisory officer assisting the arresting officer. See, e.g. State v. Messervy, 258 S.C. 110, 187 S.E.2d 524 (1972); State ex rel McLeod v. Seaborn, 270 S.C. 696, 244 S.E.2d 317 (1978); Supreme Court Order In re: Unauthorized Practice of Law Rules Proposed by the South Carolina Bar, September 21, 1992. While a business can be represented by a non-lawyer officer, agent, or employee, including attorneys licensed in other jurisdictions and those possessing Limited Certificates of Admission pursuant to Rule 405, SCACR, in civil magistrate's court proceedings, a non-lawyer representing a business to prosecute a criminal misdemeanor charge in magistrate's court constitutes the unauthorized practice of law. In re: Richland County Magistrate's Court, 389 S.C. 308, 699 S.E.2d 161 (2010).County attorneys may prosecute violations of county ordinances in magistrates courts.
6. The Defense
When a magistrate or municipal judge calls a criminal case for disposition and determines that a prison sentence is likely to be imposed following a conviction, the accused, if unable to retain counsel due to financial inability, is entitled to a court appointed attorney upon proof of indigency. (Rule 602(a), SCACR). The court may appoint the public defender to represent the accused. Once appointed, the public defender must represent the accused as far as the case is pursued in South Carolina's courts unless he is permitted to withdraw for good cause. (Rule 602(e)(1), SCACR. Article 5 of Chapter 3, Title 17 of the South Carolina Code of Laws provides for Circuit and County Public Defenders.) Further, Rule 608, SCACR, provides a uniform method of managing the appointment of lawyers to serve as counsel for indigent persons in the circuit and family courts pursuant to statutory and constitutional mandates. However, Rule 608, SCACR applies only to circuit and family courts, and does not apply to representation of indigents in magistrate and municipal courts. Criminal indigency appeals are generally handled by the Office of Appellate Defense which operates under the direction of the S.C. Commission of Appellate Defense.
Pursuant to Proviso 61.12 of the South Carolina General Appropriations Act, if a municipality has or elects to have an optional municipal court system, it must provide adequate funds for representation of indigents. No public defender shall be appointed in any such court unless the municipality and the office of the circuit public defender have reached an agreement for indigent representation and no funds allocated to the Commission of Indigent Defense shall be used to provide compensation for appointed counsel in municipal courts.
A criminal defendant's initial appearance before a court, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Rothgery v. Gillespie County, Tex., 554 U.S. 191 (2008).
S. C. Code Ann. § 40-5-80 allows a citizen to prosecute or defend his own cause, if he so desires.
By Order of the Supreme Court dated September 21, 1992, and as promulgated by Rule 21, SCRMC, businesses may be represented by a non-lawyer officer, agent or employee, including attorneys licensed in other jurisdictions and those possessing Limited Certificates of Admission pursuant to Rule 405, SCACR, in civil magistrate's court proceedings. Such representation may be compensated and shall be undertaken at the business's option, and with the understanding that the business assumes the risk on any problem incurred as the result of such representation. The magistrate shall require written authorization from the entity's president, chairperson, general partner, owner or chief executive officer, or in the case of a person possessing a Limited Certificate, a copy of the certificate, before permitting such representation.