H 3362 Session 110 (1993-1994)
H 3362 General Bill, By R.S. Corning
A Bill to create the South Carolina Judicial Nominating Commission to assist
the General Assembly in the selection of justices and judges of the State
Court System, provide for the membership of the Commission, and provide the
procedure for the nomination and selection of candidates for judicial
vacancies in the courts of record of this State; and to amend Section 2-19-10,
Code of Laws of South Carolina, 1976, relating to the Joint Committee to
Review Candidates for Offices Elected by the General Assembly, so as to delete
inclusion of members of the Judiciary.
02/03/93 House Introduced and read first time HJ-11
02/03/93 House Referred to Committee on Judiciary HJ-11
A BILL
TO CREATE THE SOUTH CAROLINA JUDICIAL NOMINATING
COMMISSION TO ASSIST THE GENERAL ASSEMBLY IN THE
SELECTION OF JUSTICES AND JUDGES OF THE STATE COURT
SYSTEM, PROVIDE FOR THE MEMBERSHIP OF THE
COMMISSION, AND PROVIDE THE PROCEDURE FOR THE
NOMINATION AND SELECTION OF CANDIDATES FOR
JUDICIAL VACANCIES IN THE COURTS OF RECORD OF THIS
STATE; AND TO AMEND SECTION 2-19-10, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO THE JOINT
COMMITTEE TO REVIEW CANDIDATES FOR OFFICES
ELECTED BY THE GENERAL ASSEMBLY, SO AS TO DELETE
INCLUSION OF MEMBERS OF THE JUDICIARY.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. There is created a South Carolina Judicial Nominating
Commission to assist the General Assembly in the selection of qualified
justices and judges to judicial vacancies in courts of record within the
state court system. The commission consists of eighteen members, six
of whom, one from each congressional district, must be attorneys-at-law
admitted to practice in the courts of this State for at least five years who
are not members of the General Assembly; six of whom, one from each
congressional district, must be citizens of this State who are not
attorneys-at-law or members of the General Assembly; and six of whom
must be members of the General Assembly, three from the Senate and
three from the House of Representatives. The president of the South
Carolina Bar, with the advice and consent of its board of governors,
shall appoint the nonlegislative, lawyer members. The Governor shall
appoint the nonlawyer, nonlegislative members. Each legislative body
shall elect its respective members. Appointments by the president of the
South Carolina Bar must include three attorneys primarily representing
plaintiffs and three attorneys primarily representing defendants.
Appointments by the Governor and the president of the South Carolina
Bar must be made without regard to race, creed, color, sex, or national
origin.
No member of the commission is eligible for nomination, election, or
appointment as a judge or justice of the state court system while he is
serving on the commission and for a period of three years after he is no
longer a member. Any member of the General Assembly nominated by
the Judicial Nominating Commission must resign as a member of the
General Assembly upon nomination by the commission if he intends to
seek election to such judicial office.
SECTION 2. The terms of the members of the commission are for six
years and until their successors are appointed and qualify. The terms of
the legislative members do not extend beyond their terms in the General
Assembly. Vacancies on the commission must be filled for the
remainder of the unexpired term by appointment in the same manner as
provided for the original appointment. Members of the commission
must be paid the usual mileage only, as provided by law for members of
boards, commissions, and committees, to be paid from the general fund
of the State for each day the member is on official business of the
commission.
SECTION 3. The commission shall meet at least once annually and at
the other times as designated by the chairman. The commission, at its
first meeting and annually, shall elect a chairman who shall serve for a
term of one year and until his successor is elected and qualifies. A
member may succeed himself as chairman. The commission at its first
meeting shall organize and adopt rules for the purpose of governing its
internal proceedings. Ten members of the commission constitute a
quorum at meetings of the commission. The commission may employ
clerical and stenographic assistance as is necessary to effectuate the
provisions of this act upon the appropriation of sufficient funds for this
purpose by the General Assembly.
SECTION 4. It is the responsibility of the commission to determine
when judicial vacancies are to occur in the state court system and
expeditiously investigate in advance the qualifications of those who seek
nomination to the commission. If possible, the commission shall make
nominations to the General Assembly during the opening week of its
regular session for vacancies which in the normal course of events will
occur by creation of new judgeships or by expiration of terms before or
during that session. For vacancies created by death, resignation,
disciplinary proceedings, or disability, the commission shall send to the
General Assembly nominations for each vacancy as promptly as
conditions permit.
SECTION 5. Upon the completion of the investigation, as provided in
this act, the chairman of the commission shall schedule a public hearing
concerning the qualifications of the candidates. A person who desires
to testify at the hearing, including candidates, shall furnish a written
statement of his proposed testimony to the chairman of the commission.
The statement must be furnished no later than forty-eight hours before
the date and time set for the hearing. The commission shall determine
the person who shall testify at the hearing. All testimony, including
documents furnished to the commission, must be submitted under oath
and persons knowingly furnishing false information, either orally or in
writing, are subject to the penalties provided by law for perjury and false
swearing. During the course of the investigation, the commission may
schedule an executive session at which a candidate, and other persons
whom the committee wishes to interview, may be interviewed by the
commission on matters pertinent to the candidate's qualification for the
office to be filled. In a reasonable time after the hearing the commission
shall render its tentative findings and reasons for its findings to each
candidate.
As soon as possible after the completion of the hearing, a verbatim
copy of the testimony, documents submitted at the hearing, and findings
of fact must be transcribed and furnished to each candidate and anyone
else upon request.
A candidate may withdraw at any stage of the proceedings, and if he
does, no further inquiry about, report on, or consideration of his
candidacy may be made.
SECTION 6. Notwithstanding the provisions of this act, when there is
no known opposition to an incumbent, there appears to be no substantial
reason for having a public hearing, and no request is made by at least ten
members of the House of Representatives and five members of the
Senate for a public hearing, the commission chairman, upon
recommendation of the commission, may determine that the public
hearing is unnecessary and will not be held, but no election may be held
before that determination.
SECTION 7. A person who desires to be considered for nomination as
justice or judge may make application for consideration by the
commission. A person or organization may submit to the commission the
name of a person desired to be considered for nomination. The
commission shall observe the confidentiality of the names of all
applicants for judicial vacancies except for those submitted by it to the
General Assembly for consideration for election.
SECTION 8. Except as otherwise provided in this act, the
responsibility of the commission includes, but is not limited to, the
investigation of, the character, reputation, legal ability, physical health,
mental stability, experience, and general suitability to exercise judicial
office of all persons being considered by it. The commission shall select
from these persons and submit to the General Assembly the names of the
three candidates whom it considers best qualified for the judicial office
under consideration, except that of Chief Justice of the Supreme Court,
for which the commission is authorized, in its discretion, to submit the
name of only one person for that position. If the commission concludes
that there are fewer than three applicants qualified for a vacancy, other
than that of Chief Justice, it shall submit to the General Assembly only
the names of those determined qualified with a written explanation for
the smaller number. Each person the commission nominates must be
rated as very qualified or qualified by the commission.
The nominations of the commission for the Supreme Court and any
judgeship, the qualifications for which are specified in the State
Constitution, are not binding on the General Assembly, and it may elect
a person other than those nominated by the commission to those offices.
However, the nominations the commission makes for those judgeships,
the qualifications for which are not contained in the State Constitution,
are binding on the General Assembly, and it must elect one of the
persons so nominated by the commission. The General Assembly may
reject all persons so nominated, and if it does, further nominations in the
manner required by this act must be made until the office is filled.
The commission is authorized to obtain information relative to a
candidate from a state agency, including, but not limited to, the State
Court Administrator, the Board of Commissioners on Grievances and
Discipline, the Board of Commissioners on Judicial Standards, and a law
enforcement agency.
SECTION 9. The State Court Administrator shall notify each judge
and justice of the expiration of his term of office at least one hundred
twenty days before the end of the term. Unless the judge or justice
notifies the State Court Administrator in writing within thirty days after
receipt of the notice that he will not seek reelection, he is considered a
candidate to succeed himself. If no other nomination is made by the
commission and the name of a judge or justice is submitted by the State
Court Administrator to the Judicial Screening Committee, the General
Assembly that receives the names of qualified candidates from the
committee, in joint session by recorded public vote, shall determine
whether or not the judge or justice is retained in office.
If a majority of those voting vote to retain the judge or justice in
office, he is reelected for a new term. If a majority of those voting vote
against retaining the judge or justice in office, the commission
expeditiously shall proceed in accordance with the provisions of this act
to submit nominees to the General Assembly for the vacancy which is
created by the expiration of the term of the judge or justice.
SECTION 10. Records, information, and other material that the
commission has obtained or used to make its findings of fact, except the
materials, records, and information presented under oath at the public
hearing, must be kept strictly confidential. After the commission has
reported its findings of fact or after a candidate has withdrawn his name
from consideration, the records, information, and material required to be
kept confidential must be destroyed.
SECTION 11. The commission in its discharge of its duties may
administer oaths and affirmations, take depositions, and issue subpoenas
to compel the attendance of witnesses and the production of books,
papers, correspondence, memoranda, and other records considered
necessary in connection with the investigation of the commission.
No person is excused from attending and testifying or from producing
books, papers, correspondence, memoranda, or other records before the
commission on the ground that the testimony or evidence, documentary
or otherwise, required of him may tend to incriminate him or subject him
to a penalty or forfeiture. However, no individual may be prosecuted or
subjected to a criminal penalty based upon testimony or evidence
submitted or forfeiture for or on account of a transaction, matter, or thing
concerning which he is compelled, after having claimed his privilege
against self incrimination, to testify or produce evidence, documentary
or otherwise, except that the individual so testifying is not exempt from
prosecution and punishment for perjury and false swearing committed
in so testifying.
In case of contumacy by a person or refusal to obey a subpoena issued
to a person, a circuit court of this State, or circuit judge within the
jurisdiction of which the person guilty of contumacy or refusal to obey
is found, resides, or transacts business, upon application by the
commission, may issue to the person an order requiring him to appear
before the commission to produce evidence if so ordered or to give
testimony touching the matter under investigation. A failure to obey an
order of the court may be punished as a contempt of court. Subpoenas
must be issued in the name of the commission and must be signed by the
commission chairman. Subpoenas may be issued to persons whom the
commission designates.
SECTION 12. Persons nominated by the commission must be selected
without regard to race, creed, color, sex, or national origin.
SECTION 13. Of those persons first appointed to the South Carolina
Judicial Nominating Commission under this act, two nonlegislative,
lawyer members, two nonlawyer, nonlegislative members, and two
legislative members must be appointed for terms of two years each, and
two nonlegislative, lawyer members, two nonlawyer, nonlegislative
members, and two legislative members must be appointed for terms of
four years each.
SECTION 14. The provisions of Chapter 19 of Title 2 of the 1976 Code
do not apply to the screening of candidates for the judiciary.
SECTION 15. Section 2-19-10 of the 1976 Code is amended to read:
"Section 2-19-10. Whenever an election is to be held by the
General Assembly in Joint Session joint session,
including members of the judiciary, a joint committee, composed
of eight members, four of whom shall be members of the House
of Representatives and four of whom shall be members of the
Senate, shall must be appointed to consider the
qualifications of the candidates. Each body shall determine how its
respective members shall be are selected. Each joint
committee shall meet as soon after its appointment as may be practicable
and shall elect one of its members as chairman, one as secretary, and
such other officers as it may deem consider
desirable."
SECTION 16. This act takes effect upon approval by the Governor.
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