History of the Office of the Master-In-Equity in South Carolina

This speech was given by Judge Jasper M. Cureton to the Equity Court Council of South Carolina on May 15, 1998. It is reprinted here in its entirety with the permission of the author. Part I deals with the history of the equity courts of South Carolina. Part II deals with the South Carolina Court of Appeals. Judge Cureton is a member of the South Carolina Court of Appeals and a former Master in Equity for Richland County.

PART I

I don't think I need to tell you that the office of Master In Equity has a long and illustrious history. Its roots go back to the English courts of chancery. According to English legal history, the English medieval chancellor had a large staff of clerks broken down into three classes. The highest class of clerks was called the masters of the chancery or doctors of law. A late thirteenth-century writer described their duties as including the hearing of petitions and complaints. But their main duty was to assist the Chancellor in dispatching litigation. The most senior of these clerks was the Master of the Rolls who kept the records of the chancery court. Eventually, the chancellor tasked this officer with holding hearings in his absence. His decisions were always reviewable by the chancellor or the vice-chancellor. After 1833, the Master of the Rolls was empowered to sit concurrently with the chancellors.

As pertains to the origin of the office of Master In Equity in South Carolina, according to the introduction to 1 Desaussure's Equity Reports, equity courts have existed in this state since shortly after its settlement as a colony. The first mention I found of the office of Master is found in a 1746 Act which authorized the "master for the time being [to] have power to hear all motions of course and make orders thereon." A 1791 Act that established the fees to be charged by certain officers mentions masters and sets their fees at a healthy three shillings and six pence a day ($3.06). That Act also established masters office hours from 9-3, six days per week, except for Christmas day, and the fourth of July.

In 1784 the court of equity in South Carolina was reorganized with three judges, incidentally one of which was John Rutledge, a signer of the United States' Constitution. In 1808 the Court of Equity was again reorganized, new districts were created, and two additional judges were added bringing the total number of equity judges to five. These judges were called chancellors. Of course, they were trial judges who held court in districts through out the state. Interestingly, if an aggrieved party desired to appeal a chancellor's decision, the chancellors, to include the hearing chancellor, would simply sit en banc to hear the appeal as the Court of Appeals in Equity.

An 1824 Act revised the judicial system of South Carolina again and created the first Court of Appeals, which was a court of last resort in South Carolina. Prior to 1824, there was as I just mentioned a Court of Appeals in Equity and a Court of Appeals at Law. This Court of Appeals, however, heard appeals in both law and equity. In any event, the Act made more work for masters for it provided that masters in equity would make annual reports of all their doings to the presiding chancellor in their respective districts. A form of the requirement of reporting to the court continued well into the 1900's. Until 1979, for example, there was a requirement that a master attend all hearings before the circuit concerning all causes that he had "acted officially" in. See S.C. Code Ann. §14-11-80 as modified by Act No. 164 Part II, effective July 1, 1979.

In 1840, the South Carolina Legislature passed an Act entitled an Act To Ascertain and Define the Powers, Duties and Liabilities of Masters, Commissioners In Equity and Registers In Equity. (1)This Act gave masters additional powers. However, apparently only Charleston was authorized to have Masters under the Act. During the 1840s, 1850s and 1860s there are numerous references in the statutes to the election of Commissioners and Registers in Equity in the several judicial districts, but the only reference to the election of Masters In Equity prior to 1878 pertained to the Charleston District.

The South Carolina Constitution of 1868 provided for the merger of the courts of law and equity and established the circuit court with the Court of General Sessions and the Court of Common Pleas. The Constitution also contained a provision that the General Assembly would provide for the transfer of jurisdiction from the Chancery Court to the Court of Common Pleas.

To carry out that mandate the Legislature passed Act 300 of 1870 which established our first comprehensive code known as the 1870 Code of Civil Procedure. Additionally the Act provided that all suits pending in the Courts of Chancery were transferred to the Courts of Common Pleas. It is to be noted that the 1870 Code does not mention masters, but does provide for trial by referees. So it seems the Legislature abolished the office of master in the 1870 Act. Nevertheless, such abolition would be short lived. Act 537 of 1878 invalidated the Code procedure of referring cases to referees in the counties of Charleston, Orangeburg, and Richland and established the office of Master In Equity for those counties. Charleston was authorized two masters, while Richland and Orangeburg were authorized only one each.

After 1878 there was a proliferation of legislation establishing masters in most of the counties. There was also a proliferation of legislation abolishing the newly created masters and going back to the referee system. And so it went for a hundred years until the 1970s.

In 1973, the General Assembly ratified new Article V of the South Carolina Constitution, which mandates the "judicial power shall be vested in a unified judicial system consisting of the Supreme Court, the circuit court and "such other courts of uniform jurisdiction as may be provided by general law." Section 22 of Article V, however, insured the continuation of all existing courts on a temporary basis until their evolvement into the uniform system could be provided for by the General Assembly.

Following the ratification of Article V, the General Assembly, nevertheless continued to amend existing laws regarding the duties of certain family and probate judges so as to modify their duties. In 1975, the Supreme Court in the case ofState ex rel. McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1975), declared such statutes violated Article V because they unconstitutionally "extended the [then] non-unified court system."

Then in 1976, in order to implement Article V's mandate for a uniform judicial system, the General Assembly enacted Act No. 690 § 5 which provides that county courts and other similar courts with jurisdiction inferior to the circuit court together with the offices of master-in-equity, standing master and special referees would be abolished on July 1, 1979, and the jurisdiction of such courts devolved upon the uniform court system.

It was in 1976 that I came into the system. I was sworn in as Master in February 1976 and learned immediately that the office was destined to be abolished. Of course, in June of 1976, the governor signed into law legislation abolishing the office as of July 1, 1979. I need not tell you that we masters began rather frantically to try to find ways to ensure our survival in some form. We perceived a urgent necessity to organize. The lead in the effort to organize was taken by Judge Curtis Shaw, then Probate Judge and Master for Greenwood County. Judge Shaw and I met in my office in Columbia the first part of March 1976 and a statewide meeting of lawyer-masters was scheduled for March 12, 1976 at my office . Other meetings were called which gave birth to your organization.

The masters' organization played a very prominent role in getting enacted legislation reestablishing the office of Master in Equity and making it a full partner in the uniform judicial system. Of course, you are aware of the fact that our efforts culminated in Act 164 being signed into law by Governor Riley on July 16, 1979. So you are wondering what happened to masters between the phase out date of July 1, 1979 and July 16, 1979. Well there was a provision in the 1976 Act abolishing masters that authorized the Supreme Court to continue masters in existence for up to one year. Pursuant to that provision, the Supreme Court came to our rescue for two weeks.

Back to the role of your organization in the enactment of Act 164, I can tell you that the organization literally wrote Part II of the Act dealing with Masters. I along with some of the other masters appeared before Senator Marion Gressette's Senate Judiciary Committee several times to defend the proposed legislation. Needless to say, the 1979 Act changed the way masters would be utilized in the uniform judicial system. For the first time, masters were authorized to enter final orders as opposed to entering a master's report that had to be confirmed by the circuit court. Additionally, for the first time, the parties could agree that an appeal from a master's order would be directly to the Supreme Court.

As you may have assumed, Act 164 had a number of rough spots to be worked out. For example, a question arose whether under § 15-31-10 parties in default had to consent to an order of reference to enable a master to enter a final judgment. I sought an Attorney General's Opinion and as you might have guessed, the Attorney General interpreted § 15-31-10 to require defendants in default to consent to orders of reference before the master could enter a final judgment. Of course such a procedure was not practical and we got the law changed in 1980 to state that only those parties not in default needed to consent for the master to enter a final judgment.

As an aside, an interesting case decided by the court of appeals which I call the "protecting our turf case", was decided in 1984. In Boardman v. Lovett, 283 S.C. 425, 323 S.E.2d 784 (Ct. App. 1984), I was able to persuade Judge Goolsby to write an opinion stating that special referees did not possess the same authority as masters to enter final orders appealable to the South Carolina Supreme Court. We based our decision on the fact that the statute giving masters authority to enter final orders did not mention special referees. Moreover, I was involved in the masters' legislation in 1979 and no way we intended to give special referees the same authority we had. Well, that decision held up for about a year until the Supreme Court reversed it. So much for my confounded effort to distinguish you from special referees.

Of course, all rules of practice and procedure found in the Code, to include those in Chapter 31, of Title 15 dealing with Referees and Masters were repealed by Act 100 of 1985 when the South Carolina Rules of Civil Procedure became effective. I need not remind you that this change ushered in Rule 53, which in my opinion is not a model of clarity.

NOW TURNING to some of the nuts and bolts issues that I see as an appellate judge that may be helpful to you as masters in your work. Anyone familiar with the master of twenty years ago will agree that the statute of the Office of Master In Equity has changed drastically during that period, so much so that you are now viewed almost as regular common pleas judges. I believe it to be the opinion of both the bench and bar that you are doing an exceptional job. Many of you serve in dual capacities as master and special circuit court judge. Again, at the expense of taking undue credit, that practice most probably had its genesis in Richland County. In 1980, when Lee Chandler was a circuit judge assigned to Richland as Chief Administrative Judge, he came up with the idea that instead of referring cases to me, he would approach Chief Justice Woodrow Lewis about appointing me a special circuit judge for an extended period of a year, with authority to act both as master and special circuit court judge. I believe that was the first time that had been done on a long term basis. It worked well then and continues to work well. Which brings me to the first point.

Many times it becomes very confusing to us at the appellate level as to the capacity you are functioning when you hear these cases. In a given case you are either hearing it as a special circuit court judge or as master, not in both capacities. We get orders signed both as special circuit judge and master. It is important to make a distinction because a master has no jurisdiction except that afforded him by the order of reference and by general law, while a special circuit judge has general jurisdiction for a stated term.

The next area I will discuss deals with characterizing the type of action you are dealing with. Oftentimes, we at the appellate level and you at the trial level have to deal with the question of whether or not a certain case or an issue in a case was referable to a master in the first place. Moreover, our scope of review is dependent oftentimes on the character of the action. At one time it was clear that only cases sounding in equity could be referred to masters, at least by a compulsory order of reference. Of course, now where law and equity causes of action may coexist in the same law suit, it is clear that both causes of action may be tried by the master, unless a party is entitled to a jury trial as a matter of right on one or more of the issues in the case and has not otherwise waived his right to a jury trial. According to the cases, the constitutional right to a jury trial is mandated only in those cases seeking monetary damages and in cases seeking title to specific personal and real property.

When a party questions the referability of an issue, more often than not, the contention is that by consenting to the order of reference, the party did not thereby consent to disposition of the law issue by the master and is entitled to a jury trial on the legal issue. I would guess that until 1991, the appellate courts concluded that by consenting to a general order of reference or engaging in the trial of the case without objection, a party waived any right to a jury trial. See Family Loan Company v. Surrant, 248 S.C. 113, 149 S.E.2d 334 (1966). In Floyd v. Floyd, 306 S.C. 376, 412, S.E.2d 397 (1991), a 1991 case from the Supreme Court, Justice Finney stated that "where legal and equitable issues" coexist in a case the legal issues are for determination by a jury and the equitable issues are to be decided by the court." Id. at 380. There is at least a suggestion that consent ot the order of reference is not dispositive.

So what do if you are in the middle of a reference and a party requests a jury trial on a certain issue. I believe that situation is covered by Rules 38 and 39 of the SCRCP. As I read the rules, if the party failed to request a jury trial at the appropriate time, he has lost any absolute right he may have had to a jury trial. At any rate, I believe it is at least discretionary with you whether or not you will frame an issue for the jury. In any event, while there may be a difference of opinion, I do not think that you as master have the authority to empanel a jury, even though I understand it has been tried.

Since almost 100 percent of your orders are appealed directly to the Supreme Court, it is imperative that you review orders of reference to ensure that they contain the necessary language giving you authority to enter a final order and in turn giving the appellate court authority to dispose of the case. In the late 1980's and early 1990's, our court in particular, concluded that we did not have jurisdiction to dispose of several cases because the orders of reference did not contain the appropriate language in them authorizing direct appeals. While we thought we were simply following statutory and case law, the Supreme Court made it clear that we were taking things too far and suggested we stop raising the issue sua sponte. The Supreme Court nunc pro tunc the validity of prior orders of reference. In June of 1996, Justice Finney wrote the Circuit Court judges, Masters and Clerks a letter which encourages masters to enter final orders and further contains the instructions on what to contain in orders of reference. Basically, he said the order of reference or your final orders should indicate the parties have agreed in writing or on the record the entry of a final order and a direct appeal. We don't see defective orders of reference much any more.

Another matter that masters, and for that matter any judge sitting non jury, should be cognizant of is to make adequate findings of fact. During the first term of our court, we decided the case of Atkinson v. Atkinsonin which we reversed a family court judge and remanded the case because he had not made adequate findings of fact. In that case, instead of making findings of fact, the judge simply recited the testimony of witnesses. Reciting testimony without more is insufficient for it the trial court's duty to resolve conflicts in the evidence and determine what the facts are considering such things as demeanor and credibility of witnesses. When I practiced before Judge Harry Lightsey, Richland County's Master for some 35 years, he used to admonish me to limit my master reports to two or three pages, regardless of the difficulty of the case. His theory was that a longer report simply gave opposing counsel more to take exception to. Of course, that was fine if you were the winning attorney. I can assure you that in most cases, the court of appeals welcomes full findings of fact.

Another area that I think you may give some attention to is in cases where plats, diagrams and photos are discussed and made exhibits. Please have the witnesses sufficiently explain what they talking about. A witness pointing to a place on an exhibit means little to us when we read the cold record. We too need to know what the witness was pointing to.

Occasionally, for whatever reason you must recuse yourself and a special referee appointed. A recent Court of Appeals case interpreting S.C. Code Ann. § 14-11-60 concluded the parties had to agree upon the person appointed. Further, may you as master refer the case to a special referee? The recent Court of appeals case of Bailey v. Bailey, Opinion No. 2805 filed March 2, 1998 says you cannot.

I also bring to your attention the fact that just because you heard a case as master does not mean you retain jurisdiction over the case forever. The case of Bunkum v Manor Properties, 321 S.C. 95, 467 S.E.2d 758 (Ct. App. 1996) bears out that point. There a master set an appeal bond on appeal of his final order. After the case was heard on appeal and remittitur returned to the circuit court, the prevailing party applied to the master to assess costs and expenses against the bond which the master allowed in a sum exceeding $34,000. On appeal to the Court of Appeals we held the master had no jurisdiction over the assessment of costs and expenses absent a new order of reference to him, but rather jurisdiction was in the circuit court.

Finally, while it may seem self evident, there can be no reference unless there is a pending case to refer. In the case of Chabek v. Nationwide Mut. Fire Ins. Co., 303 S.C. 26, 397 S.E.2d 786 (Ct. App. 1990), our court held that a master lacked subject matter jurisdiction to consider a reformation action, where plaintiff had not filed or served a summons and complaint when the circuit court referred the matter to the master. It was irrelevant that the parties consented to refer a case they intended to commence in the future.

PART II

Now turning to the South Carolina Court of Appeals. Like the office of Master, the court has an interesting history. I won't bore you with an extensive exposition of that history. As I mentioned to you earlier, the first Court of Appeals was established in 1824 and endured until 1835. The court was briefly resurrected in 1859. This time, however, in contrast to the 1824 court of appeals, it was a true court of appeals for there existed a Court of Errors which served as the Supreme Court. Soon thereafter, the Civil War ensued and the court of appeals again fell by the wayside.

The present day forerunner of the Court of Appeals was created by the General Assembly in 1979. That court had exclusive appellate jurisdiction only of criminal and family court cases. That court, however, never went into operation. In State ex rel. Riley v. Martin, the Supreme Court ruled that four of the five judges-elect were ineligible to sit, because they had been members of the General Assembly at the time of creation of the Court of Appeals which violated the a statute. Jack Gardner, however was found eligible to serve because he was not a member of the General Assembly at the time of the court's creation.

From 1979 to 1983, Jack Gardner was judge without a court. That year, the Legislature amended the 1979 court legislation to create a Court of Appeals with general appellate jurisdiction. At that time five additional judges were elected to join Jack Gardner, with Alex Sanders elected as chief judge. A 1985 amendment to the South Carolina Constitution ensured the future of the Court.

At that time we began looking for a permanent home. It is indeed ironic that as Alex Sanders was on his way to court in the Blatt Building, he encountered then retired Attorney General Dan Mcleod. Mr Mcleod told Alex that the fifth floor of the Calhoun Building had originally been designed for the Supreme Court in the 1920's, but that court had never utilized it because, as an equal branch of government, it wanted to remain in the capitol building. Of course, upon investigation, Alex found a partially completed court room. Alex was able to persuade the General Assembly to appropriate money to renovate the building and especially the court room in accordance with the original plans. We moved into the Calhoun building in 1988.

Enough about the history of the Court of Appeals, I was asked to talk about how we operate. When I was elected to the court in 1983, the Court of Appeals was basically a diversionary court - by that I mean our court heard almost identically, the same kinds of cases as the Supreme Court. As cases were docketed in the Supreme Court, a certain percentage of them were transferred to the Court of Appeals for disposition. There was no apparent rhyme or reason as to which cases the Court of Appeals would receive.

In 1994 the Supreme Court announced some changes in its relationship with the Court of Appeals. The Supreme Court first requested our court dispose of more cases per year. Our case load went from about 400 cases per year to about 600 cases per year and we were given some more staff.

The next year and in keeping with the intent of the Legislature in creating the Court of Appeals as part of a system whereby we would render final decisions in most cases with the Supreme Court involving itself only in those cases having exceptional precedential value through the process of discretionary review, Chief Justice Finney was able to convince the Legislature to give us three additional judges, and additional manpower. The Supreme Court then began the process of changing the appellate rules and all cases filed, except those we do not have jurisdiction over, were transferred to the Court of Appeals immediately after filing.

At that point all that remained was devising a method to most efficiently address our mission with the additional caseload and personnel. Instead of 6 judges disposing of 600 cases, we now had 9 judges to dispose of approximately 900 cases and over 5000 motions per year.

As all of you know, the court sits in three-judge panels. When we had six judges we designated panels as Panels A and B. We now have panels A, B and C. We have instituted a process, which insofar as I know is unique, among intermediate courts anywhere in the United States. We have taken Panel C, and charged it with the responsibility of disposing of all of the s not a member of simple civil cases and all no merit criminal appeals. Additionally, all motions are heard by this panel. We rotate the judges service on Panel C, just as we do on panels A & B, with each judge being on each panel three months at a time.

Like the Supreme Court, we preassign cases to an authoring judge as soon as briefing is complete. On our court there is an overriding concern that decisions not be one judge decisions and we have instituted a procedure of case disposition, that assures three-judge treatment of all cases. Our procedure is as follows: all cases transferred to our court are sent to Panel C and divided equally among the chambers of the three judges. The judge and his/her law clerks will then make the determination of which cases to retain for possible Panel C disposition and which cases will be sent to Panels A & B for possible oral argument designation. All Panel C cases are disposed of solely on the record. Each chambers is responsible for preparing memorandums and proposed opinions in their cases which are distributed before panel meetings. Each judge is charged with the responsibility of being familiar with the other judges' proposed dispositions. At the meeting the judge proposing a disposition is responsible for presenting the facts, issues, and proposed disposition to the other judges. If any judge objects to Panel C disposition the case goes on to panels A & B for disposition. This interaction between the three chambers minimizes the possibility that something will be missed and encourages thorough preparation of cases by the Judges.

By this method, Panel C disposes of approximately 45 % of the cases filed on appeal. The balance, of course, are disposed of by Panels A & B. Of course panels A and B utilizes the same procedure of all judges considering all cases. According to the last judicial report 1,170 cases were docketed in the appellate courts for fiscal year 1996-1997. Of those cases the Court of Appeals disposed of 900.

The cynics among you are probably thinking, what does the Supreme Court do?. My impression from a review of the last years advance sheets is that one of the things that consumes a lot of their time is disciplinary proceedings. They are disbarring lawyers that have barely been barred. The second thing that they are doing is dealing with those important cases contained in the five categories reserved for them including, but not limited to, death penalty cases. Thirdly, and most importantly, from the perspective of development of our case law, they have the responsibility for reviewing the cases decided by us on certiorari. I'm sure that all of you have noticed that the list of those cases fills several pages of each advance sheet.

It must be remembered that the Supreme Court is the court of last resort, the policy court, as opposed to the Court of Appeals, which is designed primarily to correct errors. If our rulings are incorrect, it is not difficult for the Supreme Court to change them. On the other hand, if the Supreme Court rules incorrectly, the precedential value of that decision is very difficult to change.

Now, contrary to the approach used in the past, when the Supreme Court reviews petitions for writs of certiorari they are not looking for errors that we may have made as to whether or not Sally should have gotten the tea set instead of Ronnie. They are examining our opinions to determine if our rulings on matters of policy are consistent with precedent and also to determine if we have ruled on any novel issue which deserves their immediate attention. Of course, if we have ruled against precedent they will without much fanfare reverse us. On the other hand, if we have decided a matter of novel impression, there are a couple of courses of action they can take. First, they can decide that we have ruled correctly and grant the petitions for certiorari and in their affirmance firmly establish this holding as the law of the State. Second, they can decide that we have ruled inconsistent with our State's policy which would require them to reverse us and establish their own policy. Lastly, they can decide that the policy that we have adopted is likely correct, but that it should be put to trial by time and application before being firmly ingrained as the law of our State. In that event, they would simply deny the writ of certiorari and allow the trial judges to put the law into effect, let the legal scholars comment on it and the law professors critique it until such time as another case with the same issue presents itself for them to establish that policy as the policy of this State.

IN CONCLUSION, I am pleased to report that we remain current in our case load and that our treatment of the cases is thorough and thoughtful.

1. Act No. 2812, enacted December 18, 1840