In South Carolina, certain types of circuit court cases are not decided by a judge. Instead, these cases are referred to a master-in-equity, who “is entitled to all the benefits and subject to all the requirements of the South Carolina Bar and the rules of the Supreme Court in the same respect as circuit court and family court judges.”
To further complicate matters, when a master-in-equity is unable to preside over a case, whether due to a vacancy in office or a conflict of interest, then the case is not referred to another master-in-equity, but instead to a special referee. By law, this special referee “has all the powers of a master-in-equity.”
What is a Special Referee?
A special referee is an individual who has been appointed to preside over certain circuit court matters in the absence of a duly-appointed master-in-equity. Special referees are lawyers who are members of the South Carolina Bar, and who generally have a significant amount of experience representing clients in family, estate and probate, real estate, or other civil matters. Special referees may serve over:
- Estate and probate, real estate, and other cases in which both parties consent to the appointment of a special referee;
- Cases of default; and,
- Cases involving an action for foreclosure.
When is a Special Referee Needed?
A special referee is needed anytime a master-in-equity is unavailable to preside over a pending case. As noted above, this may be due to a vacancy in office, or it may be due to a conflict of interest between the master-in-equity and one of the parties to the court proceeding (like special referees, masters-in-equity are attorneys who have experience in private practice). A special referee may also be needed in the case of a master-in-equity’s “disability”—in other words, if the master-in-equity is unable to preside over the case due to an illness or injury.
With regard to the need for masters-in-equity and special referees in general, the Note to Rule 53 (“Masters and Special Referees”) of the South Carolina Civil Court Rules states that, although “[r]eferences [to masters-in-equity and special referees] in Federal Courts are rare, [they are] absolutely necessary in State Courts, particularly to handle a large volume of State litigation such as foreclosures, partitions, and other equity matters.”
What Does a Special Referee Do?
A special referee serves in the role of a master-in-equity; and, by law, has the same authority and responsibility as a master-in-equity. This means that the special referee may hear evidence, compel the appearance of witnesses, order the sale of property, and render other decisions that are binding on the parties to the matter in question. Pursuant to Section 14-11-85 of the South Carolina Code of Laws:
“When some or all of the causes of action in a case are referred to a master-in-equity or special referee, the master or referee shall enter final judgment as to those causes of action, and an appeal from an order or judgment of the master or referee must be to the Supreme Court or the court of appeals as provided by the South Carolina Appellate Court Rules.”
What Powers and Authorities are Granted to Special Referees?
In their judicial capacity, special referees have a number of powers and authorities. Rule 53(c) of the South Carolina Civil Court Rules states that, “Once [a case has been] referred, the . . . special referee shall exercise all power and authority which a circuit judge sitting without a jury would have in a similar matter.” The only exception is if the order of reference assigning a particular case to a special referee expressly limits his or her authority.
Some examples of the “power[s] and authorit[ies]” granted to special referees in South Carolina include the power and authority to:
- Grant equitable relief and “execute all proper conveyances thereof;”
- Conduct property sales at the county courthouse or other designated locations;
- Sell property located in other counties;
- Execute and perform orders from the circuit court;
- Administer oaths;
- Take depositions, affidavits and renunciations of dower, probate deeds, and other instruments;
- Take testimony of witnesses; and,
- Compel the attendance of witnesses and punish witnesses for contempt.
Additionally, under Rule 53(d) of the South Carolina Civil Court Rules, special referees have the authority to set their own compensation to be paid by the parties (unless the parties object); and, unlike full-time masters-in-equity, special referees are permitted to practice law concurrently with presiding over referred cases.
Why Would Parties to a Dispute Consent to the Appointment of a Special Referee?
In all cases, referral of a case to a special referee is subject to the agreement and consent of the parties (this is not the case for masters-in-equity). So, if parties have the option to have their case heard by a circuit court judge, and if they have to pay the compensation set by the special referee, why would they choose to accept a referral to a special referee?
As referenced in the Note to Rule 53 of the South Carolina Civil Court Rules, one of the primary considerations is timing. If the local circuit court has a significant backlog, it could take significantly longer to obtain a ruling from a judge than to receive a decision from a special referee. A special referee should be well-qualified to render a decision on the legal issues involved in the parties’ dispute; and, with all the powers and authorities of a circuit court judge, the special referee should be able to offer the parties the same benefits that would be available in circuit court litigation. Additionally, if either party is dissatisfied with the special referee’s decision, that party will still have the right to appeal the decision in South Carolina’s appellate courts.
Contact Watts Law Firm PA in Summerville, SC
If you have additional questions about the special referee’s role in South Carolina, we encourage you to contact us for a confidential initial consultation. To request an appointment at your convenience, please call 843-851-7050 or inquire online today.