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D.
Provisions Applicable to Both Civil and Criminial Cases

1. Change of Venue

a. Magistrate

S.C. Code Ann. § 22-3-920 provides that either party in a civil case, or the prosecutor or the accused in a criminal case, may apply for a change of venue. In civil cases, the party seeking the change of venue must give the adverse party at least two (2) days notice of his/her intent to seek a change of venue prior to applying for such, unless the affidavit shows that the necessary facts were not discovered until it was too late to give such notice. In criminal cases the request for a change of venue should be made prior to trial, unless in view of all the circumstances the person requesting the change did not have a reasonable opportunity to make such a request previously. Op. Att'y Gen. No. 1733, dated 1963-64.

In either a civil or criminal case, the person requesting the change of venue must file with the magistrate an affidavit stating that the individual does not believe he/she can receive a fair trial. The affidavit must also state the grounds supporting the belief of the requesting party. If the affidavit sets forth grounds for a belief that the party cannot obtain a fair trial, then the grant of a change of venue is mandatory.

Upon granting a change of venue, the magistrate must turn over all papers relating to the case to the nearest magistrate in the county not disqualified from hearing the case. One such transfer only shall be allowed each party in any case.

b. Municipal Court

If a municipal judge must disqualify himself or herself, either under the change of venue statute (which may be applicable to municipal courts by S.C. Code Ann. § 14-25-45) or under the Code of Judicial Conduct (which is applicable to both magistrates and municipal judges) an interim judge may be appointed in place of the disqualified judge (see S.C. Code Ann. § 14-25-25 for specific directions). If the actual place of trial must be changed (because of adverse pre-trial publicity, for example), there are no statutory provisions for change of venue of this sort. Since it would be rare that the place of trial would have to be changed, the problem would best be resolved with the cooperation of the parties.

2. Disqualification

Canon 3 E(1) of the Code of Judicial Conduct (Rule 501 SCACR "South Carolina Appellate Court Rules") provides:

A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;

(c) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or is a party to the proceeding, or has any other more than de minimis interest that could be substantially affected by the proceeding;

(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i)

is a party to the proceeding, or an officer, director, or trustee of a party;

(ii)

is acting as a lawyer in the proceeding;

(iii)

is known by the judge to have more than de minimis interest that could be substantially affected by of the proceeding;

(iv)

is to the judge's knowledge likely to be a material witness in the proceeding."

Under the civil law system the degree of relationship is determined by counting up to the common ancestor and then down to the relative in question. For example, the degree of relationship between a judge and the judge's first cousin is diagramed as follows:

Image depicting the degree of relationship between a judge and his/her first cousin.

Here it is noted that the first cousin of a magistrate or municipal judge is a fourth degree relationship, and therefore not within the prohibition of the third degree of relationship test. Nevertheless, the magistrate or municipal judge should still disqualify himself/herself under subsection (a) if the relationship with the first cousin is such that the judge has a personal bias concerning a party.

The next example shows the degree of relationship between a judge and the judge's niece or nephew.

Image depicting the relationship between a judge and his/her niece or nephew.

Here it is noted that a niece or nephew is within the third degree of relationship prohibition. Furthermore, since subsection (d) specifically includes within the prohibition the spouse of a person who is within a third degree relationship to either the judge or the judge's spouse, it follows that the spouse of the judge's niece or nephew or the spouse of the judge's spouse's niece or nephew would also fall within the prohibition.

It should be noted that Canon 3F provides that a judge disqualified from hearing a case under Canon 3E(1) (c) or (d) may nevertheless hear the case if after full disclosure of the basis of the disqualification, the parties and lawyers, independently of the judge's participation, all agree in writing that the judge's relationship is immaterial or that his financial interest is insubstantial.

In those cases in which disqualification is necessary, the magistrate should turn over all papers relating to the case to the nearest magistrate not disqualified and should notify the parties of the transfer. The municipal judge should turn the papers over to an associate municipal judge or to a temporary judge appointed in his absence pursuant to S.C. Code Ann. § 14-25-25. Note that Rule 501 SCACR requires the judge to disqualify himself/herself in those enumerated situations regardless of whether or not a party to the action requests a change of venue.

3. Witnesses

a. Compelling Attendance

(1) Magistrate

S.C. Code Ann. § 22-3-930 provides that "[a]ny magistrate, on the application of a party to a cause pending before the magistrate, must issue a summons citing any person whose testimony may be required in the cause and who resides in the county to appear before the magistrate at a certain time and place to give evidence. This summons must be served in a manner such that it is received by the witness at least one day before his attendance is required.
If the witness fails or refuses to attend, the magistrate may issue a rule to show cause commanding the witness to be brought before the magistrate or, if any witness attending refuses to give evidence without good cause shown, the magistrate may punish the witness for contempt by imposition of a sentence up to the limits imposed on magistrates' courts in Section 22-3-550."

(2) Municipal Judges

S.C. Code Ann. § 14-25-45 provides that, "The [municipal] court shall also have all such powers, duties and jurisdiction in criminal cases made under state law and conferred upon magistrates." Therefore, S.C. Code Ann. § 22-3-930 is applicable to municipal courts because of this statute.

b. Compensation

(1) Magistrates

In civil cases in magistrate court, witnesses should receive twenty-five dollars per day for each day's attendance and the same mileage as provided by law for official travel for state employees and officers. Rule 45(b)(1) South Carolina Rules of Civil Procedure, Op. Att'y Gen., dated February 5, 1987. The current mileage rate is $044.5 cents per mile for state employees and officers.

(2) Municipal Judges

Since municipal courts have no civil jurisdiction, witnesses in municipal court may not receive fees or compensation for attendance at court.

4. Testimony De Bene Esse

a. Magistrate

The taking of testimony "de bene esse," or in anticipation of future need, is a process of preserving testimony which otherwise might not be available at trial. The testimony is in essence a deposition. The testimony once taken is not automatically a part of the record and only becomes so upon its being offered at trial if the witness is unavailable for examination at that time. It may be offered by either party to the action, regardless of who requested it be taken, but may not be objected to by the party offering it. Baker v. Metropolitan Life Insurance Company, 184 S.C. 341, 192 S.E. 571 (1937). The following paragraphs describe the process of taking such testimony, as set out in S.C. Code Ann. § 22-3-940.

If it appears in the judgment of the magistrate that the attendance and testimony of any witness as requested by a party may not be had due to 1) extreme age, 2) sickness or infirmity, 3) indispensable absence on public or official duty, 4) the possibility that the witness may be outside of the State at the time of trial or, 5) the fact that the witness may be a resident of another county or outside the territorial jurisdiction of the magistrate, the magistrate may take the examination of the witness in writing or allow it to be done by another magistrate within or outside of the State, or by any other officer authorized by law to administer oaths. The "other officer authorized by law," in addition to magistrates, include circuit judges, clerks of court, notary publics of this State as well as chancellors, justices or judges of a Supreme or superior court, mayors or magistrates, of any of the United States, Great Britain or Canada. Rule 28 (b) SCRCP.

All parties to an action should be given at least five (5) days notice of the time and place of examination to allow their presence at the taking of the testimony. The examination of the witness should be conducted by the magistrate, but either party may submit questions to the magistrate to be included in his examination upon four (4) days notice to the opposing party, so as to allow the opposing party time to prepare their own questions if they so desire. At the end of the examination of the witness, the magistrate, if he wishes to do so, may allow the parties present to submit further questions.

When the examination is taken by one other than the magistrate who will hear the action, the testimony should be sealed with the title of the case endorsed on its face, and conveyed by one having no interest in the case to the magistrate with jurisdiction over the case, or mailed to him with the postage prepaid.

b. Municipal Judge

S.C. Code Ann. § 14-25-45 provides that, "The [municipal] court shall also have all such powers, duties and jurisdiction in criminal cases made under state law and conferred upon magistrates." Therefore, the preceding section is applicable to municipal courts because of this statute.

5. Power to Punish for Contempt

a. Magistrate

The power of a magistrate to punish for contempt is bestowed by S.C. Code Ann. § 22-3-950. Under this section:

Every magistrate shall have power to enforce the observance of decorum in his court while holding the same and for that purpose he may punish for contempt any person who, in the presence of the court, shall offer an insult to the magistrate or a juror or who is wilfully guilty of an undue disturbance of the proceedings before the magistrate while sitting officially. A magistrate shall have the power to punish for contempt of court by imposition of sentences up to the limits imposed on magistrates' courts in S.C. Code Ann. § 22-3-550.

Op. Att'y Gen. No. 78-191, dated November 13th, 1978 states that,

"Pursuant to Section 22-3-950, magistrates may punish all behavior within the definition of contemptuous done in their presence while performing the duties of their office as contempt of court. This would include contemptuous actions during bond proceedings, preliminary examinations, and warrant issuing proceedings."

In addition, the magistrate has power to punish as for contempt of court in the following situations:

Failure to obey witness subpoena. See S.C. Code Ann. § 22-3-930.

Contempt of court by attorney. Up to twenty-four (24) hours imprisonment (S.C. Code Ann. § 40-5-510).

Failure to comply with time payment plan. Imprisonment cannot exceed pro-rata portion of remaining jail sentence. S.C. Code Ann. § 17-25-350.

b. Municipal Judges

S.C. Code Ann. § 14-25-45 empowers the municipal court " . . . to punish for contempt of court by imposition of sentences up to the limits imposed on municipal courts." See S.C. Code Ann. § 14-25-65 for the jurisdictional limit of the municipal court.

6. Jurors

a. Failure to Respond to Summons

(1) Magistrates

Pursuant to S.C. Code Ann. § 22-2-130, a magistrate may punish any properly summoned prospective juror who fails to respond to the summons. If the disobedient juror fails to contact the magistrate and offer a sufficient reason for his delinquency within 48 hours, the juror shall pay a civil penalty not exceeding $100.00. Should that person fail or refuse to pay the civil penalty, the magistrate may find that person in contempt and punish him according to S.C. Code Ann. § 22-3-950.

(2) Municipal Courts

S.C. Code Ann. § 14-25-185 provides, that a duly summoned juror who neglects or refuses to appear for jury service, and fails to provide a sufficient excuse to the court within forty-eight hours of the time he was required to appear in court, may be punished as for contempt of court.

b. Persons Who Are Exempt From Serving as Jurors

S.C. Code Ann. § 14-7-840 provides,

"No person is exempt from service as a juror in any court of this State except men and women sixty-five years of age or over. Notaries public are not considered state officers and are not exempt under this section." Please Note: This is an “exemption,” not a “disqualification,” from jury service. Many individuals over the age of 65 wish to serve on a jury and are constitutionally entitled to that duty. These individuals are entitled to serve and must be issued a juror summons if a court draws their name.

In addition, S.C. Code Ann. § 22-2-130 provides, "No person shall serve on a jury in a magistrate's court more than once every calendar year."

c. Compensation

(1) Magistrate

S. C. Code Ann. § 22-2-160 provides that jurors in magistrate's court are to receive a per diem of $10.00 and mileage, to be paid by the county in which the jury sits.

(2) Municipal Courts

There is no statutory direction as to compensation to be paid jurors in municipal courts.

7. New Trial

A "new trial" is a re-examination in the same court of an issue of fact after a verdict is rendered by a jury, or is decided by the magistrate or municipal court judge in a non-jury trial. The only remedy of a party against whom a judgment is rendered is either to appeal, or to make a motion for a new trial (S.C. Code Ann. §§ 22-3-990 and 22-3-1000), and appeal upon the refusal of such motion.

A motion for a new trial must be made (and should be required to be in writing) within ten days from the time the party receives notice of the judgment; but if the judgement resulted from a default and failure of the party to appear at trial, or in a situation in which appellate did not have notice of the trial, the ten day period begins to run on the day after personal notice is received. A motion for a new trial made under Chapters 37and 40, Title 27 (landlord/tenant cases) must be requested within five days from the rendering of judgment. (S.C. Code Ann. § 22-3-1000) See Brewer v. South Carolina State Highway Dept., 261 S.C. 52, 198 S.E 2nd 256 (1973). However, when the party had notice of the trial and defaulted and did not appear, the ten day period begins to run on the day after the judgement or conviction. See State v. Adkinson, 246 S.C. 180, 213 S.E. 2nd 591 (1975).

The right of appeal from the judgment exists for thirty days after the rendering of the judgment. (S.C. Code Ann. § 22-3-1000).

While the law does not generally favor setting aside a verdict, especially a jury verdict, the granting of a new trial in any case is entirely within the discretion of the magistrate or municipal judge. New trials and amendment of judgments are controlled by Rule 59 SCRCP. However, new trials may be granted only for a reason for which new trials have usually been granted in the circuit courts of this State. A sampling of such reasons for which new trials were granted (taken from the case notes to S.C. Code Ann. § 15-27-150) is as follows:

When the jury verdict is so confused that it is not absolutely clear what was intended. Anderson v. Aetna Casualty and Surety, 175 S.C. 254, 178 S.E. 819 (1934).

Where the jury disregarded the charges of the judge. Respass & Respass, C.P.A. v. King Pontiac, 236 S.C. 363, 114 S.E. 2d 486 (1960).

Where a variance between the proof at trial and the allegations in a pleading is material to the extent that a party is misled to his prejudice. S.C. Code Ann. § 22-3-260; State v. Hamilton, 17 S.C. 462 (1882).

Where the jury verdict is contrary to the fair preponderance of the evidence. Eptin v. Bell, 260 S.C. 305, 195 S.E. 2d 608 (1973).

Where an excessive verdict is rendered, and the judge is so convinced by a clear conviction. Patterson v. Bogan, 261 S.C. 87, 198 S.E. 2d 586 (1973).

Where there was an error in the amount of the verdict. Levi v. Legg and Bell, 23 S.C. 282 (1885).

Where verdict is grossly inadequate in a tort action. Toole v. Toole, 260 S.C. 235, 195 S.E. 2d 389 (1973).

To justify the granting of a motion for a new trial on after discovered evidence, the moving party must establish to the satisfaction of the court before which the motion is made, at least three facts: (1) that the proposed new evidence was discovered after the former trial, (2) that it could not, by the use of due diligence, have been discovered in time to be offered at the former trial, and (3) that it is material. Ortowski v. Ortowski, 237 S.C. 499, 117 S.E. 2d 860 (1961). It must also appear that 1) the evidence is such as will probably change the result if a new trial is granted, and 2) that it is not merely cumulative or impeaching. Ortowski, supra.

Relief from a judgement obtained in a magistrate's court or a municipal court due to the mistake, inadvertence, surprise, or excusable neglect of a party, or their attorney, is only obtained by effecting an appeal, as these grounds are not applicable to magistrates' courts (or municipal courts, by implication) insofar as the granting of a new trial is concerned. See Drummond v. Edwards, 126 S.C. 435, 120 S.E. 366 (1922) and Doty & Co. v. Duvall, 19 S.C. 143 (1883). Relief on these grounds may not be granted by the magistrate or municipal judge.

8. Party Charged with Costs Entitled to Itemized Account

a. Magistrate

S.C. Code Ann. § 22-3-1010 provides that any person being charged costs in a magistrate's court may demand of the magistrate an itemized account of such costs. Furthermore, it provides that no person shall be compelled to pay any costs unless the magistrate provides that person with an itemized account.

b. Municipal Court

(Inapplicable)

9. Court Interpreters

State law provides that whenever a deaf person (§15-27-15) or a non-English speaking person (§15-27-155) is a party, witness, or juror to a civil or criminal court proceeding, the court must appoint as many qualified interpreters or deaf relay interpreters (in the case of a deaf person) to interpret the proceedings and the testimony of the party or witness. A deaf person may waive the appointment of a qualified interpreter and elect to use another individual of his own selection as his interpreter. In the case of a deaf person or a non-English speaking person, the court may waive the use of a qualified interpreter of the court finds that it is not necessary for the fulfillment of justice. Please see the statutes referenced above for definitions involved in this process. The following procedures are provided as general guidelines when a deaf person or a non-English speaking person, who is a juror, witness, or a party to a legal proceeding is in need of an interpreter:

1. The court must complete an order of appointment for an interpreter, SCCA/262. (A list of interpreters is available through Court Administration).

2. The court should notify the interpreter of their appointment.

3. Once the interpreter’s services have been rendered, the interpreter is responsible for completing a timesheet, SCCA/264, and also a Request for Payment, SCCA/263.

4. The timesheet, SCCA/264, should detail the actual hours spent interpreting at the completion of the court proceeding. Interpreters will be compensated for mileage but not for travel time.

5. Upon completion of the proceeding, the court should review, verify, and sign the completed Request for Payment form, SCCA/263.

6. The court interpreter should mail the original or a certified true copy of these forms to Court Administration.

7. The court should retain a copy or the original of these forms for the court’s record.

§15-27-15 and §15-27-155 require that the Judicial Department compensate court interpreters under these circumstances. The amount of payment that the court interpreter will receive is currently set by the August 3, 2006, Order of the Chief Justice, and allows for an hourly rate of $45.00 for language interpreter services, and $45.00 per hour for deaf/sign language services, with a two-hour minimum. By Order of the Chief Justice dated August 3, 2006, those fees are raised effective September 1, 2006, to $45.00 per hour for certified foreign language interpreters. The Judicial Department will not compensate for amounts in excess of the rates set forth by the Order of the Chief Justice. Any fee incurred from the services provided by the interpreter that exceeds the amounts per hour set forth by the above referenced Order will be the responsibility of the County or City.

By Order dated January 14, 2003, the Chief Justice has authorized the use of telephonic interpreters in magistrate and municipal court proceedings. County and municipal governments are required to pay for telephonic interpreter services. The use of telephonic interpreter services must comply with the requirements contained in the Order referenced above.

The South Carolina Supreme Court, in Rule 511, SCACR, has promulgated Rules of Professional Conduct for Court Interpreters. Please see the “Orders” and “Forms” sections of this book, as well as the Judicial Department website, for the Orders and forms referenced in this section.