The Supreme Court of South Carolina

 

RE:    Operation of the Trial Courts During the Coronavirus Emergency (As Amended November 23, 2021)

Appellate Case No. 2020-000447

 

ORDER

On April 3, 2020, this Court issued an order entitled "Operation of the Trial Courts During the Coronavirus Emergency."  This order was subsequently amended on four occasions, with the last amended order being filed on June 15, 2021.

On August 27, 2021, this Court issued a completely revised order relating to the operation of the trial courts during the coronavirus emergency.  That order is scheduled to expire on November 29, 2021.1    

This order amends the August 27, 2021, order to extend its provisions until February 4, 2022.  While no substantive changes have been made, this introductory portion of the order has been shortened, footnotes have been revised or added, a citation to an Act has been updated, and temporal language contained in the August 27, 2021, order has been revised in several instances.  For the benefit of the bench, bar and public, the language explaining which provisions of the June 15, 2021, have been continued, deleted or modified has been retained in this amended order.

(a)    Terminology.  The following terminology is used in this order.

(1)     Judge:  a judge of the circuit court, family court, probate court, magistrate court and municipal court, including masters-in-equity and special referees.

(2)     Remote Communication Technology:  technology such as video conferencing and teleconferencing which allows audio and/or video to be shared at differing locations in real time.

(3)     Trial Court:  the circuit court (including master-in-equity court), family court, probate court, magistrate court and municipal court.

(4)     Summary Court:  a magistrate or municipal court.

(b)     Authority of the Chief Justice to Impose Mitigation Measures.   Throughout the coronavirus pandemic, the Chief Justice has issued administrative orders and guidance under Article V, § 4, of the South Carolina Constitution to mitigate the risk posed by the pandemic.  This Court is confident that the Chief Justice will continue to issue and modify guidance as may be appropriate to reduce the risk posed by the coronavirus.  Therefore, many of the restrictions and requirements in the June 15, 2021, order, which were designed to allow hearings, trials or other matters to be safely conducted during the pandemic, have not been included in this order, and these matters are now left to the Chief Justice. 

(c)      Discretion of the Trial Judges to Impose Mitigation Measures.  In addition to the guidance the Chief Justice may issue, this Court is confident that trial judges will take appropriate mitigation measures to address any unique risk the coronavirus may pose in any individual case.

(d)     Minimizing Hearings on Motions.  Section (c)(4) of the June 15, 2021, order stated the following:

While the practice has been to conduct hearings on virtually all motions, this may not be possible during this emergency.  If, upon reviewing a motion, a judge determines that the motion is without merit, the motion may be denied without waiting for any return or other response from the opposing party or parties.  In all other situations except those where a motion may be made on an ex parte basis, a ruling shall not be made until the opposing party or parties have had an opportunity to file a return or other response to the motion.  A trial judge may elect not to hold a hearing when the judge determines the motion may readily be decided without further input from the lawyers.

This Court continues to encourage judges to follow this guidance.  As discussed above, judicial resources need to be focused on the timely and just resolution of cases, and holding unnecessary hearings is inconsistent with this goal.

(e)      Service Using AIS E-mail Address.2  A lawyer admitted to practice law in this state may serve a document on another lawyer admitted to practice law in this state using the lawyer's primary e-mail address listed in the Attorney Information System (AIS).3  For attorneys admitted pro hac vice, service on the associated South Carolina lawyer under this method of service shall be construed as service on the pro hac vice attorney; if appropriate, it is the responsibility of the associated lawyer to provide a copy to the pro hac vice attorney.  For documents that are served by e-mail, a copy of the sent e-mail shall be enclosed with the proof of service, affidavit of service, or certificate of service for that document.  This method of service may not be used for the service of a summons and complaint, subpoena, or any other pleading or document required to be personally served under Rule 4 of the South Carolina Rules of Civil Procedure (SCRCP), or for any document subject to mandatory e-filing under Section 2 of the South Carolina Electronic Filing Policies and Guidelines.  In addition, the following shall apply:

(1)       Documents served by e-mail must be sent as an attachment in PDF or a similar format unless otherwise agreed by the parties.

(2)     Service by e-mail is complete upon transmission of the e-mail.  If the serving party learns the e-mail did not reach the person to be served, the party shall immediately serve the pleading or paper by another form of service in Rule 5(b)(1), SCRCP, or other similar rule, together with evidence of the prior attempt at service by e-mail.

(3)      In those actions governed by the South Carolina Rules of Civil Procedure, Rule 6(e), SCRCP, which adds five days to the time a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, shall also apply when service is made by e-mail under this provision.

(4)     Lawyers are reminded of their obligation under Rule 410(g) of the South Carolina Appellate Court Rules (SCACR) to ensure that their AIS information is current and accurate at all times.

(f)     Signatures of Lawyers on Documents.4  A lawyer may sign documents using "s/[typed name of lawyer]," a signature stamp, or a scanned or other electronic version of the lawyer's signature.  Regardless of form, the signature shall still act as a certificate under Rule 11, SCRCP, that the lawyer has read the document; that to the best of the lawyer's knowledge, information, and belief there is good ground to support it; and that the document is not interposed for delay.

(g)    Optional Filing Methods.  Section (c)(15) of the June 15, 2021, order provided as follows:

During this emergency, clerks of the trial courts may, at their option, permit documents to be filed by electronic methods such as fax and e-mail.  If the clerk elects to do so, the clerk will post detailed information on the court's website regarding the procedure to be followed, including any appropriate restrictions, such as size limitations, which may apply.  Documents filed by one of these optional filing methods shall be treated as being filed when received by the clerk of court and a document received on or before 11:59:59 p.m., Eastern Standard Time, shall be considered filed on that day.  These optional filing methods shall not be used for any document that can be e-filed under the South Carolina Electronic Filing Policies and Guidelines.  If a trial court does not have a clerk of court, the court shall determine whether to allow the optional filing methods provided by this provision.

If such an optional filing system has been created prior to August 27, 2021, the clerk of court may continue to operate this system.  By October 1, 2021, any court with an optional filing system was required to provide the Office of Court Administration with information regarding this system, including a general description of the system, a copy of the procedures posted to the court's website, discussion of how successful and useful the system has been, how the system has been received by the users, and, if available, the approximate number of filings which have been made using this system.

(h)     Use of Remote Communication Technology.  During the coronavirus pandemic, WebEx and other remote communication technologies were successfully used by the trial courts.  Based on this experience, Rule 612 was added to the South Carolina Appellate Court Rules to allow this Court to issue an order allowing remote communication technology to be used in proceedings before the courts of this state.  Pursuant to Rule 612, SCACR, this Court issued an order regarding the use of remote communication technology in proceedings before the trial courts, including the administration of any required oath or affirmation.5  Therefore, the provisions in the June 15, 2021, order relating to the use of remote communication technology are not included in this order.

This Court recognizes that various trials, pleas or hearings may have already been scheduled to be conducted using remote communication technology under the guidance contained in the order of June 15, 2021.  If so, the use of remote communication technology for that trial, plea or hearing may continue to be conducted under the guidance contained in the June 15, 2021 order, notwithstanding any new limitations in the order governing the use of remote communication technology referenced in the preceding paragraph.

(i)      Family Court Provisions.  Section (f) of the June 15, 2021, order contained provisions applicable to the family court.  Many of these provisions have proven to be very beneficial during the pandemic, and can be used to conserve judicial resources which can better be used to resolve cases that have been necessarily delayed by the impact of the pandemic.  This Court, however, believes that hearings on consent agreements or orders regarding divorces or other final matters can now be safely conducted either in-person or using remote communication technology, and having hearings on these matters is beneficial to the litigants and the judicial system.  Therefore, this order has significantly amended the language from the prior order.

(1)     Granting of Uncontested Divorces Based on Separation for One Year Without a Hearing.  The family court may grant an uncontested divorce based on separation for one year without holding a hearing, including granting any requested name change, if:

(A)    The relief sought is limited to a divorce and any related change of name.  If other relief is sought, including but not limited to, child support, child custody or visitation, alimony, property distribution or fees for attorneys or guardians ad litem, the divorce may not be granted without a hearing.

(B)     The parties submit written testimony in the form of affidavits of the parties and corroborating witnesses that address jurisdiction and venue questions, date of marriage, date of separation, and the impossibility of reconciliation.

(C)    The written testimony must include copies of the parties' and witnesses' state-issued photo identifications.

(D)    Any decree submitted by any attorney shall be accompanied by a statement, as an officer of the court, that all counsel approve the decree and that all waiting periods have been satisfied or waived by the parties.

(E)     Should either party request a name change in connection with a request for divorce agreement approval, that party shall submit written testimony to the family court in the form of an affidavit addressing the appropriate questions for name change and the name which he or she wishes to resume.  This relief shall be included in any proposed order submitted to the Court for approval at the time of the submission of the documents related to the relief requested.

(2)     Approval of Agreements and Consent Orders Regarding Temporary Relief Without a Hearing.  Based on the consent of the parties, temporary orders, including but not limited to those relating to child custody, child support, visitation, and alimony, may, in the discretion of the family court judge, be issued without a hearing.  Any proposed order or agreement must be signed by the parties, counsel for the parties, and the guardian ad litem, if one has been appointed, and may be submitted and issued without the necessity of filing supporting affidavits, financial declarations or written testimony.

(3)     Consent Orders under S.C. Code Ann. § 63-7-1700(D).  Where all the parties consent and the family court determines a child may be safely maintained in the home in that the parent has remedied the conditions that caused the removal, and the return of the child to the child's parent would not cause an unreasonable risk of harm to the child's life, physical health, safety, or mental well-being, the family court may order the child returned to the child's parent without holding a hearing.

(4)     Consent Orders Regarding Procedural Matters.  With the consent of the parties, a consent order relating to discovery, the appointment of counsel or a guardian ad litem (including the fees for, or the relief of, a counsel or a guardian ad litem) or any other procedural matter may, in the discretion of the family court judge, be issued without requiring a hearing. 

(5)     Submission of Additional Information.  Nothing in this order shall be construed as preventing a family court judge from requiring additional information or documents to be submitted before making a determination that the order can be issued without a hearing or from holding a hearing where the judge finds a hearing is appropriate.

(6)     Consent Orders or Agreements Submitted to the Family Court Prior to the Effective Date of this Order.  Consent orders or agreements submitted to the family court on or prior to August 27, 2021, may continue to be processed under the guidance contained in the order of June 15, 2021.

(j)      Rule 3(c) of the South Carolina Rules of Criminal Procedure (SCRCrimP).  While this order remains in effect, the ninety (90) day period provided by Rule 3(c), is increased to one-hundred and twenty (120) days.6

(k)     Alternatives to Court Reporters and Digital Courtrooms.  A trial or hearing in the court of common pleas (including the master-in-equity court), the court of general sessions or the family court is usually attended by a court reporter (before the master-in-equity this is usually a private court reporter) or is scheduled in one of the digital courtrooms with a court reporter or court monitor.  While every effort will be made to continue these practices, this may not be possible as due to the impact of the pandemic and the expected increased demand for these resources to resolve cases which were delayed by the pandemic.  In the event such resources are not reasonably available, a trial or hearing may proceed if a recording (preferably both audio and video) is made.  The judge shall conduct the proceedings in a manner that will allow a court reporter to create a transcript at a later date.  This would include, but is not limited to, making sure the names and spelling of all of the persons speaking or testifying are placed on the record; ensuring exhibits or other documents referred to are clearly identified and properly marked; controlling the proceeding so that multiple persons do not speak at the same time; and noting on the record the start times and the time of any recess or adjournment.

(l)      Amendment to Rule 3, SCRCrimP.  The June 15, 2021, order contained a provision regarding the service of an arrest warrant on a defendant already in the custody of the South Carolina Department of Corrections, or a detention center or jail in South Carolina.  Since Rule 3(a), SCRCrimP, has been amended to incorporate this language, this provision is not included in this order.

(m)    Bond Hearings in Criminal Cases.  Section (h)(1) of the June 21, 2021, order has not been included in this order.  Judges should, of course, continue to hold bond hearings in accordance with the guidance provided by the Chief Justice.

(n)     Notarizations.  During the height of the pandemic, the ability to obtain notarial services was significantly impacted.  To address this, the prior versions of this order contained provisions allowing a certification in lieu of affidavit.  Since notarial services are now readily available, these provisions have not been included in this order.  It is also noted that the General Assembly recently enacted the "South Carolina Electronic Notary Public Act" (Act No. 85 of 2021), now codified as S.C. Code Ann. §§ 26-2-5 to -210 (Supp. 2021).  The provisions in this Act should greatly reduce the impact any future emergency will have on the availability of notarial services.

(o)     Extensions by Consent.  Prior versions of this order created an exception to Rule 6(b), SCRCP, allowing extensions by the agreement of the parties.  This exception is not included in this order, and Rule 6(b), SCRCP, shall govern any extension request made after August 27, 2021.

(p)     Guilty Pleas by Affidavit or Certification in the Summary Court. Section (h)(3) of the June 15, 2021, order allowed a defendant to plead guilty by affidavit or certification before the summary courts.  Since the order of the Chief Justice dated May 7, 2020 (available at https://www.sccourts.org/courtOrders/displayOrder.cfm?orderNo=2020-05-07-01, addresses this same issue, it is unnecessary to include the prior provision in this order.7

This order is effective immediately.  Unless extended by order of this Court, this order will expire on February 4, 2022.  Pursuant to Rule 611, SCACR, a copy of this order will be provided to the Chairs of the House and Senate Judiciary Committees.

Columbia, South Carolina
November 23, 2021