How is the COVID-19 outbreak affecting SC courts?

The short answer is all courts are now closed for everything but emergency matters. Despite this, we want to assure our clients and the public that we are open for business and we are continuing to fight for our clients.

If you are a current client who has questions about your case or if you are someone who has been arrested or needs legal assistance, call or email our office and you will receive a prompt response.

If you have a matter that has been canceled by the court closures, we will immediately notify you once your case has been rescheduled. Rest assured that we are taking all recommendations of federal, state, and local government seriously, we are taking all precautions to prevent the spread of COVID-19, and we are available for telephone or videoconference consultations when appropriate.

How is the COVID-19 Outbreak Affecting SC Trial Courts?

The Supreme Court has issued orders essentially closing all SC courts to all but emergency proceedings, extending filing deadlines, doing away with all preliminary hearings, and giving guidance for how attorneys and judges should proceed when hearings or trials are held.

All terms of court have been canceled until May 1, 2020, except for emergency matters, but judges who are not otherwise on leave or vacation will be in chambers.

Most of the information below is contained in the Supreme Court’s April 3, 2020 Order titled “Operation of the Trial Courts During the Coronavirus Emergency.” When the information is found in another Order, I have provided a link to it.

Jury Trials

All jury trials have been continued indefinitely:

All jury selections and jury trials in all criminal and civil cases are continued until further notice.

Non-Jury Trials

The courts can have non-jury trials if both parties consent, if there is an emergency, and if the court can minimize potential risk to all parties by holding the trial by video or teleconference or by limiting in-person attendance:

The appropriate Chief Judge for Administrative Purposes, or in the case of any court that does not have a Chief Judge for Administrative Purposes, the appropriate judge responsible for scheduling matters, may authorize a non-jury trial to occur if the parties consent, or the matter involves an emergency or other circumstance warranting immediate resolution. To proceed, the Chief Judge or the appropriate judge responsible for scheduling matters must find that the trial can be conducted in a manner to minimize the risk such as limiting the persons present to the parties, counsel and necessary witnesses, or that the trial may be conducted using remote communication technology to avoid the need for a physical appearance of all or some of the parties, counsel or witnesses. If an in-person non-jury trial is conducted, only attorneys, the parties, and necessary witnesses will be allowed to appear. Hearings must be staggered to minimize the number of people appearing at the same time.

Motion Hearings

Courts can hold hearings only if “the matter involves an emergency or other circumstance warranting immediate determination.” Courts should hold the hearing remotely using video or teleconferencing or limit the attorneys, parties, and witnesses to no more than ten people:

A hearing on a motion or other matter may be conducted using remote communication technology to avoid the need for a physical appearance by any party, witness or counsel. Only if a judge determines that the hearing cannot be conducted adequately using remote communication technology and the matter involves an emergency or other circumstance warranting immediate determination, will an in-person hearing be conducted. If an in-person hearing is conducted, only attorneys, the parties, and necessary witnesses will be allowed to appear. The total number of participants should not exceed ten (10) people. Hearings must be staggered to minimize the number of people appearing at the same time.

Also, judges are not required to hold a hearing on every motion – the court can grant or deny a motion after hearing from both sides, or the court can deny a motion without waiting for a response if the court decides the motion is without merit.

Bench Warrants

The SC Supreme Court has ordered that no bench warrants will be issued or served for nonpayment of child support or alimony until May 10, 2020:

IT IS ORDERED, that any and all unexecuted bench warrants issued by Family Courts of this State, for the non-payment of child support and alimony, shall not be executed and no person subject to such bench warrants shall be arrested, for a period of thirty (30) days from the date of this Order.

Preliminary Hearings

No preliminary hearings will be heard… indefinitely:

Until further order of this Court, preliminary hearings will not be conducted.

The Supreme Court’s order does require that, when there is a warrantless arrest, the arresting officer must provide an affidavit stating their probable cause within eight hours of the arrest, and the court should make a determination of probable cause within 24 hours of the arrest.

Scheduling Orders

If your case was subject to a scheduling order before the shutdown, all deadlines in the order are extended until 45 days after whatever date the governor lifts the state’s emergency orders, or the court can issue a new scheduling order.

Filing Deadlines

All filing deadlines are extended for 30 days, all procedural defaults since March 13, 2020, are forgiven but must be corrected within 30 days of the Supreme Court’s order, and attorneys are encouraged to consent to multiple extensions of time for filing without asking the court for permission.

Court Reporters

If a trial does go forward during the shutdown, it can go forward without a court reporter present if an audio recording is made of the proceedings.

Guilty Pleas

Guilty pleas can be conducted by remote technology during the shutdown if both the defendant and the prosecutor consent:

If consented to by both the defendant and the prosecutor, a hearing on a guilty plea may be held subject to the standards specified in (c)(3) above. If the defendant will participate by remote communication technology, the trial court must make a determination that the defendant is knowingly and intelligently waiving his right to be physically present for the plea. If the defendant’s counsel will participate by remote communication technology, the trial court must determine that the defendant is knowingly and intelligently waiving any right to have counsel physically present, and the court must ensure that the defendant has the ability to consult privately with counsel during the plea proceeding as may be necessary. Finally, if other persons will address the court or testify during the plea proceedings by remote communication technology, the court must find that the defendant is knowingly and intelligently waiving any right to have those persons physically present for the plea.

This has the potential for good and bad… First, a prosecutor has the power to refuse to consent to a reasonable plea by videoconference, leaving a defendant who cannot pay bond in the county jail waiting for the coronavirus to make its way into his or her cell…

But, more importantly, it allows defendants who can plead to time served to get out of jail and return home to their families.

How is the COVID-19 Outbreak Affecting SC Summary Courts and Bond Hearings?

Bond hearings must be held at least once a day and must be held by videoconference or the court must limit the number of attendees to 10 or less.

Judges are encouraged to “consider the need to minimize the detention center population” in addition to the traditional considerations when setting bond, and they are encouraged to consider home detention as an alternative to incarceration at the jail:

Bond hearings, which shall be conducted in the manner specified by (c)(3) above, should be held at least once a day. In addition to the normal factors for determining whether the defendant will be required to post a bond or will be released on a personal recognizance, the judge should consider the need to minimize the detention center population during this emergency. Further, judges should consider home detention or other options to help reduce detention center population.

As in General Sessions Court, the summary courts are authorized to hold guilty plea hearings by videoconference as needed if both the defendant and the prosecutor consent:

If consented to by both the defendant and the prosecutor, a hearing on a guilty plea may be held by the summary court. If the defendant will participate by remote communication technology, the trial court must make a determination that the defendant is knowingly and intelligently waiving his right to be physically present for the plea. If the defendant’s counsel will participate by remote communication technology, the trial court must determine that the defendant is knowingly and intelligently waiving any right to have counsel physically present, and the court must ensure that the defendant has the ability to consult privately with counsel during the plea proceeding as may be necessary. Finally, if other persons will address the court or testify during the plea proceedings by remote communication technology, the court must find that the defendant is knowingly and intelligently waiving any right to have those persons physically present for the plea.

How is the COVID-19 Outbreak Affecting Other SC Courts?

Although I won’t include every detail in this article, the SC Supreme Court has issued orders affecting every type of court in SC, including the administrative courts, the probate courts, the family courts, and the masters in equity.

If the information you need is not included here, you can browse through this list of Supreme Court Orders related to the COVID-19 outbreak to find what you need.

Family Courts

Although the family courts are now closed to all but emergency hearings, you can now get an uncontested, quickie divorce without a hearing and based solely on written testimony and affidavits. That may come in handy as you find yourself trapped in a house or apartment with your spouse:

The Family Court may grant an uncontested divorce without holding a hearing where:

(A) The parties submit written testimony in the form of affidavits or certifications of the parties and corroborating witnesses that address jurisdiction and venue questions, date of marriage, date of separation, the impossibility of reconciliation and the alleged divorce grounds.

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

(C) 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.

(D) 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 or certification 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.

Appellate Courts

There have been some major changes to the operation of the SC Court of Appeals and Supreme Court:

• All oral arguments have been canceled, although the Supreme Court’s order provides for conducting oral argument by video conference if necessary;
• Documents can be hand-delivered or mailed to the appellate courts, but they will be subject to 48-hour quarantine before anyone reads them;
• On the other hand, you don’t have to deliver or mail the documents – you can just fax them to the court as long as the order is in effect;
• The single most annoying detail of appellate practice has been suspended – you do not need to provide x number of copies of your appellate briefs and the documents “shall be submitted unbound and unstapled;”
• You are no longer required to submit two copies of the Appendix in appeals from the Court of Appeals;
• Electronic signatures will be accepted on all documents;
• All due deadlines for appellate court documents after the date of the Order are extended for 20 days (this does not apply to deadlines for notices of appeal); and
• All procedural defaults after March 13, 2020, are forgiven and litigants have 20 days from the date of the court’s Order to correct the default.

Evictions and Foreclosures

The SC Supreme Court has ordered that all eviction proceedings are stayed – even if the court has already ordered and scheduled the eviction – until after May 1, 2020:

IT IS ORDERED that all evictions currently ordered and scheduled statewide shall be rescheduled for a date not earlier than May 1, 2020. Furthermore, the court shall not accept applications for ejectment, schedule hearings, issue writs or warrants of ejectment, or proceed in any other manner regarding evictions until directed by subsequent order by the Chief Justice. However, case-by-case exceptions for evictions may be made for matters that involve essential services and/or harm to person or property.

All foreclosure proceedings are stayed indefinitely:

I FURTHER ORDER a moratorium in Master-in-Equity courts statewide on foreclosure hearings, foreclosure sales, writs of assistance and writs of ejectments, nor should Masters-in-Equity proceed in any other manner regarding foreclosures until directed by subsequent order by the Chief Justice.

Criminal Defense Lawyer in Charleston, SC

Grant B. Smaldone is a SC criminal defense lawyer based in Charleston, SC. Despite the COVID-19 lockdown, we are operating and serving our clients, and we can make arrangements for a video or phone conference instead of a face-to-meeting as needed.

If you have been charged with a crime in the Charleston, SC area, call Charleston criminal defense lawyer Grant B. Smaldone now at (843) 808-2100 or send an email to set up a free initial consultation today.