RE AMENDMENTS TO RULE CODE OF JUDICIAL CONDUCT RULE 501 SOUTH CAROLINA APPELLATE COURT RULES v. << (2026)

ORDER

This Court has recently been made aware of instances where judges have misapplied the disqualification and the remittal (waiver) of disqualification processes in Canon 3 of the Code of Judicial Conduct (CJC), which is found in Rule 501 of the South Carolina Appellate Court Rules (SCACR). In most instances, judges appear to understand when they are disqualified from presiding in cases because their impartiality might reasonably be questioned. However, there appears to be some misunderstanding regarding mandatory disqualifications that frequently arise based on judges’ family connections with law enforcement or prosecution agencies. Further, some judges appear eager to remit these disqualifications; however, remittal is a difficult, cumbersome procedure that should not be routinely invoked by a judge. Furthermore, while the rule states a judge should ask the parties if they wish to remit the disqualification as part of the process, remittal should be based on the express request of the parties to proceed, not a judge's desire to hear a matter. We believe amendments to the Canon are necessary to provide additional instruction and guidance.

Pursuant to Article V, Section 4 of the South Carolina Constitution, we amend Canon 3 of the Code of Judicial Conduct in several respects.

First, Section E(1)(d) is amended to add new paragraph (v) to clarify that disqualification is required in cases where “the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person”¹ is directly involved in the arrest or prosecution in the pending matter or is employed in the office of the law enforcement or prosecuting agency and has supervisory or managerial authority over officers or prosecutors who may appear before the judge. A new explanatory paragraph has been added to the Commentary to this portion of Section E. This amendment is consistent with, and essentially codifies, this Court's opinion in In re Barker, 436 S.C. 610, 875 S.E.2d 44 (2022).

Second, we amend portions of the Commentary in Sections E and F in several respects. These amendments are intended to: (1) provide additional guidance with regard to when and how judges may utilize the remittal process; (2) clarify the process for a judge to disclose issues that do not mandate disqualification, but require disclosure, and add language regarding the process to consider and rule on motions from the parties in those cases; and (3) instruct judges on the limited, narrow use of the rule of necessity in cases where a judge would ordinarily be disqualified, but involve an emergency or where immediate action is required.

Finally, we take this opportunity to remind judges that all litigants are entitled to an impartial tribunal. While judges have a duty to “hear and decide matters assigned to the judge except those in which disqualification is required” under Section B(1) of Canon 3, judges also have an obligation to self-disqualify in cases where their impartiality might reasonably be questioned in accordance with Section E(1) of the Canon. To fulfill this obligation, judges must keep informed of potential family, personal, and economic conflicts that may affect decisions on disqualification.

These amendments, which are set forth in the attachment to this order, are effective immediately.

s/ John W. Kittredge, C.J.

s/ John Cannon Few, J.

s/ George C. James, Jr., J.

s/ D. Garrison Hill, J.

s/ Letitia H. Verdin, J.

Attachment

The Commentary to Rule 3E(1), CJC, Rule 501, SCACR, is amended to provide:

Commentary:

Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared, unless the disqualification was waived by the parties after disclosure by the judge in accordance with the requirements in Section 3F.

There are circumstances where a judge should provide information to the parties regarding issues that do not mandate disqualification under Section 3E(1). A judge should disclose on the record all information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no real basis for disqualification. Disclosure on the record provides the parties with an opportunity to be fully informed and present additional information to the judge that may be relevant to the question of whether disqualification is required. In making a required disclosure, a judge should not inform the parties that the judge will disqualify him or herself upon request, but inform the parties that a motion is required, and the judge will consider the parties’ arguments on the issue. A judge should rule on a motion for disqualification prior to addressing any substantive matters in the case.

By decisional law, the rule of necessity may override the rule of disqualification in rare circumstances. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In the latter case, the judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable. If after reasonable efforts, the matter cannot be transferred, the judge must state on the record that the matter cannot be transferred, and that the rule of necessity dictates the judge hear the matter.

Rule 3E(1)(d), CJC, Rule 501, SCACR, is amended to add new paragraph (v), which provides:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

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(d) the judge or the judge's spouse, or a person within the third degree of relationship* to either of them, or the spouse of such a person:

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(v) in a criminal case, is directly involved in the arrest or prosecution in the pending matter or is employed in the office of the law enforcement or prosecuting agency and has supervisory or managerial authority over officers or prosecutors who may appear before the judge.

The Commentary to Rule 3E(1)(d), CJC, Rule 501, SCACR, is amended to add an additional paragraph, which provides:

Under the rule, disqualification by the judge is required when a judge's spouse, or a person within the third degree of relationship* to either the judge or the judge's spouse, or the spouse of such a person, is involved in a proceeding before the judge. In a criminal case, a judge must also disqualify him or herself from a proceeding in which a judge's spouse or a person within the third degree of relationship* to the judge or the judge's spouse, or the spouse of such a person, has supervisory authority in the office that appears before the judge. In those instances, the judge is disqualified from all proceedings involving that law enforcement or prosecutorial agency.

The Commentary to Rule 3F, CJC, Rule 501, SCACR, is amended to provide:

Commentary:

A remittal procedure provides the parties an opportunity to proceed without delay if they wish to waive the disqualification. To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule. A party may act through counsel if counsel represents on the record that the party has been consulted and consents. As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement. Remittal should not be a routine procedure, and a judge should only ask the parties and their lawyers to consider remittal when the parties and their lawyers express a desire to proceed. To ensure that the parties fully understand the nature of the disqualification, the judge should fully communicate all information the parties might consider relevant to the issue of disqualification. A judge should use caution in utilizing the procedure because not all disqualifications should be remitted.

FOOTNOTES

1.   The third degree of relationship is defined as a “great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.”