\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0"[E]quity is nothing more or less than the power possessed by judges— and even the duty resting upon them—to decide every case according to a high standard of morality and abstract right."1
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Courts of equity trace their roots to the English Court of Chancery, which evolved to dispose of litigants' pleas to the king's conscience to right a wrong that resulted from the common law's rigidity2 Inefficiency burdensome procedural hurdles, and unfair results prompted the creation of a court separate from England's common law courts.3 The royal subject charged with dispensing justice in the king's name was the Lord Chancellor, referred to commonly as the "Keeper of the King's Conscience."4 This model eventually evolved into what became known as England's High Court of Chancery, created in the 14th Century5
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0True to its historical underpinnings, South Carolina's equitable counterpart, the office of master-inequity also "has a long and illustrious history"6 Two of Carolina's founders, Edward Hyde and Anthony Ashley Cooper, served as chancellors of this court and, thus, were intimately familiar with the importance of a court suited for disposing of equitable claims.7 In fact, many of the duties of South Carolina's current masters descend in large part from the powers first vested in the English chancellors and vice-chancellors and later relied upon by Hyde and Cooper.8 From the colony's first chancery suit in November of 1671 until 1868,9 South Carolina maintained a system of equity courts that existed alongside courts of law.10 After this point, however, the two systems merged procedurally and, as a result, the court of common pleas obtained jurisdiction over suits at law and in e quity, and the office of master was abolished.11 In 1878, however, the legislature reestablished the office of master-in-equity for the counties of Charleston, Orangeburg and Richland.12
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Nearly a century later, with the legislature's ratification of revised Article V in 1973, the separate courts merged into the unified judicial system that exists today. Notably, under this present unified system, the old courts of equity persist as divisions of the court of common pleas. Specifically, Section 14-11-10 of the S.C. Code established a "master-in-equity court" and provided for a full-time master for every county with a population of at least 130,000.13 While counties with populations below this threshold may not have a master, such counties are not precluded, at least not statutorily, from having a part-time master.14 In all, 22 counties presently have a master.15
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Because equity courts are "considered a division of the circuit court," masters are equivalent in most respects to their common pleas and family court colleagues.16 Once a case is referred by a circuit court to a master, the master has the same power and authority of a circuit court sitting without a jury; she can rule on motions and admissibility of evidence, compel attendance of witnesses, examine witnesses, enter final judgment as to the causes of action referred, and punish for contempt.17 In certain circumstances, masters can even conduct sales. With that said, however, some constraints do exist; a circuit court can specify or limit a master's powers and authority and, once referred, "the master must enter final judgment as to [those] causes of action."18
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Despite a master's broad powers, an attorney cannot file a case directly with the master-in-equity, not even a purely equitable claim; the case must be filed in circuit court and, at the circuit judge's discretion, referred to a master.19 This circuitous route results because the master's jurisdiction to hear part or all of any matter arises only pursuant to an order of reference issued by a circuit judge or the clerk of court within the respective county's circuit court.20 Therefore, a master is not vested with these broad powers, with regard to any particular case, until the case is specifically referred by a circuit judge to the master.21 Consequently, all matters coming before a master must originate in circuit court.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The issue thus becomes, how does a practitioner navigate a client's case to the master-in-equity court, i.e., obtain an order of reference, and what factors should an attorney consider in seeking, or arguing against the issuance of, such an order.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0While reference to Rule 53, SCRCP, readily answers the first question, the implications of a circuit court granting an order of reference are much more nuanced, despite such implications having rather mundane origins. Accordingly, this article addresses when an order of reference may be issued and, subsequently, discusses why an attorney should carefully consider the implications of such an order's issuance.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Pursuant to Rule 53(b), SCRCP, the circuit judge or clerk of court may refer, by order, some or all of the causes of action in a default case or...