H 3276 Session 111 (1995-1996)
H 3276 General Bill, By J.H. Hodges
Similar(H 3986)
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 4
to Title 14 so as to create the Judicial Merit Selection Panel to assist the
General Assembly in the selection of justices and judges for vacancies in the
Supreme Court, Court of Appeals, Circuit Court, Family Court, and the
Administrative Law Judge Division, to provide for the membership of the Panel,
and to provide the procedures for the nomination and election of candidates
for these judicial vacancies; to repeal Sections 2-19-70 and 2-19-80 of the
1976 Code relating to pledging and other procedural matters regarding judicial
elections; and to provide that the above provisions take effect July 1, 1997,
and apply to judicial vacancies occurring on or after January 1, 1998,
contingent upon ratification of an amendment to Article V of the Constitution
of this State establishing a Judicial Merit Selection Panel whose nominations
and findings for these judicial offices are binding on the General Assembly.
01/17/95 House Introduced and read first time HJ-11
01/17/95 House Referred to Committee on Judiciary HJ-12
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING CHAPTER 4 TO TITLE 14 SO AS TO
CREATE THE JUDICIAL MERIT SELECTION PANEL TO
ASSIST THE GENERAL ASSEMBLY IN THE SELECTION OF
JUSTICES AND JUDGES FOR VACANCIES IN THE SUPREME
COURT, COURT OF APPEALS, CIRCUIT COURT, FAMILY
COURT, AND THE ADMINISTRATIVE LAW JUDGE
DIVISION, TO PROVIDE FOR THE MEMBERSHIP OF THE
PANEL, AND TO PROVIDE THE PROCEDURES FOR THE
NOMINATION AND ELECTION OF CANDIDATES FOR
THESE JUDICIAL VACANCIES; TO REPEAL SECTIONS
2-19-70 AND 2-19-80 OF THE 1976 CODE RELATING TO
PLEDGING AND OTHER PROCEDURAL MATTERS
REGARDING JUDICIAL ELECTIONS; AND TO PROVIDE
THAT THE ABOVE PROVISIONS TAKE EFFECT JULY 1,
1997, AND APPLY TO JUDICIAL VACANCIES OCCURRING
ON OR AFTER JANUARY 1, 1998, CONTINGENT UPON
RATIFICATION OF AN AMENDMENT TO ARTICLE V OF
THE CONSTITUTION OF THIS STATE ESTABLISHING A
JUDICIAL MERIT SELECTION PANEL WHOSE
NOMINATIONS AND FINDINGS FOR THESE JUDICIAL
OFFICES ARE BINDING ON THE GENERAL ASSEMBLY.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Title 14 of the 1976 Code is amended by adding:
"CHAPTER 4
Judicial Merit Selection Panel
Section 14-4-10. (A) There is created a Judicial Merit Selection
Panel to assist the General Assembly in the selection of qualified
justices and judges for vacancies in the Supreme Court, Court of
Appeals, Circuit Court, Family Court, and the Administrative Law
Judge Division. The panel shall consist of seven members as
follows:
(1) Two members of the panel shall be appointed by the
Governor.
(2) One member of the panel shall be appointed by the
President Pro Tempore of the Senate from the Senate's
membership.
(3) One member of the panel shall be appointed by the
Speaker of the House of Representatives from the House's
membership.
(4) The Dean of the University of South Carolina School of
Law to serve ex officio, or the dean's designee from the faculty of
the law school.
(5) The President of the South Carolina Bar to serve ex
officio, or the president's designee who shall be an attorney
licensed to practice law in this State.
(6) One member of the panel shall be appointed by the Chief
Justice of the Supreme Court. This member shall be a retired
member of the judiciary of this State or of the federal judiciary who
is not engaged in the practice of law. This member shall serve as
the chairman of the panel. This member shall recuse himself from
any proceedings of the panel involving the nomination of the Chief
Justice who appointed him to the panel.
(B) Members of the panel shall serve for terms of four years
each, and no member except for the ex officio members may serve
consecutive terms, provided that a member may serve the remainder
of a term to which he is appointed for the purpose of filling a
vacancy. All members shall serve until their successors are
appointed and qualify.
(C) No member of the panel is eligible for nomination, election,
or appointment as a judge or justice of a court for which the panel
makes nominations while he is serving on the panel and for a
period of three years after he ceases to be a member.
(D) Vacancies on the panel must be filled for the remainder of
the unexpired term by appointment in the same manner as provided
for the original appointment.
(E) Members of the panel shall be paid the usual per diem,
mileage, and subsistence 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
panel.
Section 14-4-20. The panel shall meet at least once annually and
at other times as may be designated by the chairman. The panel, at
its first meeting, also shall organize and adopt rules for the purpose
of governing its internal proceedings. Four members of the panel
shall constitute a quorum at all meetings. The panel may employ
clerical and stenographic assistance as necessary to effectuate the
provisions of this chapter upon the appropriation of sufficient funds
by the General Assembly.
Section 14-4-30. (A) It is the responsibility of the panel to
determine when judicial vacancies are to occur in the Supreme
Court, Court of Appeals, Circuit Court, Family Court, or the
Administrative Law Judge Division and to expeditiously investigate
the qualifications of those who seek nomination by the panel.
(B) The term `vacancy' as used in this chapter in regard to a
judicial office, unless the context clearly requires otherwise,
includes the expiration of a term of an incumbent judge, the
creation of a new judicial seat on one of the courts for which the
panel makes nominations, or the death, resignation, retirement, or
other removal of a judge before he completes his then current term.
(C) The state court administrator shall notify each judge and
justice whose term of office expires during a particular year of this
fact by July first of the preceding year. 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. The state court
administrator shall notify the panel of the choice made by an
incumbent justice or judge by August fifteenth of that preceding
year.
(D) The panel, upon receiving notice of a judicial vacancy,
ascertaining that a judicial vacancy shall occur, or being notified by
the state court administrator of an incumbent judge's decision
regarding his reelection shall notify the Supreme Court of the
vacancy for publication in the advance sheets provided by the Clerk
of the Supreme Court at least thirty days prior to accepting
applications for the vacancy. The panel also shall notify the South
Carolina Bar, other professional legal organizations it considers
appropriate, and each newspaper of this State with daily circulation
of the vacancy at least thirty days prior to accepting applications for
the vacancy. This notice must include, but not be limited to, the
judicial office in which the vacancy occurs, the address to which,
and the date by which interested candidates may apply. A notice to
the panel by the state court administrator that an incumbent judge
desires to seek reelection does not constitute the acceptance of an
application for a vacancy within the meaning of this prohibition,
except that the panel thereafter shall provide the notice required by
this subsection.
Section 14-4-40. (A) All persons who desire to be considered
for nomination as justice or judge shall make application for
consideration by the panel. Any person or organization may submit
to the panel the name of any person desired to be considered for
such nomination. Any person whose name has been recommended
to the panel for nomination for election to a judicial office by
another person or organization is not considered an applicant unless
he makes an application to the panel on forms it requires.
(B) Each applicant as part of his application is required to give
to the panel a general waiver which allows the panel to obtain
whatever information it considers necessary, from any source
whether or not confidential including personnel, judicial, or bar
commissions, in order for the panel to make an informed judgment
of that applicant's qualifications.
Section 14-4-50. (A) Except as otherwise provided in this
chapter, the responsibility of the panel includes the investigation of,
among other things, the character, integrity, reputation, knowledge
of the law, aptitude for legal scholarship, writing ability, familiarity
with courts and court procedures, legal ability, judicial
temperament, experience, and general suitability to exercise the
judicial office of all persons being considered by the panel for
nomination to this office. These criteria must be used by the panel
in evaluating the candidates and making its nominations.
(B) The chairman of the panel shall schedule a public hearing
concerning the qualifications of the candidates. At least thirty days'
notice of the public hearing must be provided in the same manner
that notice of the judicial vacancy is provided in Section 14-4-30(D)
informing interested persons of the place and date of the public
hearing and their right to attend and participate. Any person who
desires to testify at the hearing, including candidates, shall furnish a
written statement of his proposed testimony to the chairman of the
panel. This statement must be furnished no later than forty-eight
hours prior to the date and time set for the hearing. The panel shall
determine the persons who shall testify at the hearing. All
testimony, including documents furnished to the panel, 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 panel may schedule an executive session at
which the candidate, and other persons whom the committee wishes
to interview, may be interviewed by the panel on matters pertinent
to the candidate's qualifications for the office to be filled.
(C) When there is no known opposition to an incumbent who
has notified the state court administrator of his desire for reelection,
where there appears to be no substantial reason for having a public
hearing, and where 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 panel chairman, upon recommendation of the
panel, may determine that the public hearing is unnecessary and
shall not be held, but no nominations may be made prior to such
determination.
(D) As soon as possible after the completion of the hearing, a
verbatim copy of the testimony, documents submitted at the public
hearing, and findings of fact must be transcribed and furnished to
each candidate and anyone else upon request. A charge for these
copies may be made as authorized in the Freedom of Information
Act.
(E) A candidate may withdraw at any stage of the proceedings,
and thereafter no further inquiry, report on or consideration of his
candidacy may be made.
Section 14-4-60. (A) The panel 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
panel.
(B) No person is excused from attending and testifying or from
producing books, papers, correspondence, memoranda, or other
records before the panel 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. No
individual may be prosecuted or subjected to any criminal penalty
based upon testimony or evidence submitted or forfeiture for or on
account of any 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.
(C) In case of the refusal of any person to obey a lawful request
or order of the panel, to obey a subpoena issued by the panel, or to
obey a lawful order of a court in regard to the functions of the
panel, any Circuit Court of this State or circuit judge within the
jurisdiction of which this person is found, resides, or transacts
business, upon application by the panel, may issue to the person an
order requiring him to appear before the panel to produce evidence
if so ordered or to give testimony touching the matter under
investigation. Any 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 panel and must be signed by the panel chairman.
Subpoenas may be issued to such persons as the panel may
designate.
(D) All records, information, and other material that the panel
has obtained or used in its investigation, except the materials,
records, and information presented under oath at the public hearing
must be kept strictly confidential.
Section 14-4-70. (A) The panel shall make nominations to the
General Assembly of candidates for election to the Supreme Court,
Court of Appeals, Circuit Court, Family Court, and the
Administrative Law Judge Division. It shall review the
qualifications of all applicants for a judicial office and select
therefrom and submit to the General Assembly the names of up to
three candidates whom it considers best qualified for the judicial
office under consideration. With its written assessment of the
candidates submitted, the panel may, if it desires, make a
recommendation to the General Assembly of the candidate it
believes most capable of filling the position. If the panel concludes
that there are fewer than three applicants qualified for a vacancy, it
shall submit to the General Assembly only the names of those
determined qualified with a written explanation of why fewer than
three names were submitted.
(B) Insofar as possible, the panel shall make nominations as
provided herein to the General Assembly during the opening week
of its regular session for all vacancies which in the normal course
of events will occur by creation of new judgeships or by expiration
of terms during that year.
(C) In the case of vacancies created by death, resignation,
disciplinary proceedings, or disability, the panel shall send to the
General Assembly nominations for each vacancy as promptly as
conditions permit, except that notice of the vacancy must be
provided in the manner required by this chapter.
(D) The nominations of the panel for any judgeship are binding
on the General Assembly, and it may not elect a person not
nominated by the panel. Nothing shall prevent the General
Assembly from rejecting all persons nominated. In this event, the
panel shall submit another group of up to three names for that
position. Further nominations in the manner required by this
chapter must be made until the office is filled.
(E) If an incumbent justice or judge does desire reelection, his
name must be forwarded by the panel to the General Assembly if
the panel finds him qualified to serve in the judicial office held. If
the panel does not find the incumbent justice or judge qualified for
the judicial office held, it shall so notify the General Assembly and
upon the expiration of his then current term of office, a vacancy in
such office shall exist for which the panel shall submit nominations
in the manner provided by this chapter together with its notification
to the General Assembly of its finding that the incumbent justice or
judge is not qualified. If the panel does forward the name of an
incumbent justice or judge to the General Assembly, it also may
submit other nominations up to two for the judicial office. If no
other nominations are made by the panel, the name of that judge or
justice only must be submitted by the panel to the General
Assembly. The General Assembly 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 deemed reelected for a new term. If
a majority of those voting vote against retaining the judge or justice
in office, he is deemed to not be reelected for a new term, and the
panel shall expeditiously proceed in accordance with the provisions
of this chapter to submit nominees to the General Assembly for the
vacancy which is created by the expiration of the term of the judge
or justice.
(F) In making nominations, race, gender, national origin, and
other demographic factors should be considered by the panel to
assure nondiscrimination, inclusion, and representation to the
greatest extent possible of all segments of the population of this
State.
(G) The panel may accompany its nominations to the General
Assembly with those reports or recommendations as to the
qualifications of particular candidates that it deems appropriate.
Section 14-4-80. (A) Before a sitting member of the General
Assembly may submit an application with the panel for his
nomination by the panel for election to a judicial office and before
the panel may accept or consider such an application, the member
of the General Assembly shall first resign his office.
(B) The privilege of the floor in either House of the General
Assembly may not be granted to a former member during the time
his application is pending before the panel and during the time his
nomination by the panel for election to a particular judicial office is
pending in the General Assembly.
(C) No person may seek directly or indirectly the pledge of a
member of the General Assembly's vote or contact a member of the
General Assembly regarding the judicial office, other than through a
letter of introduction, until the qualifications of all candidates for
that office have been determined by the judicial merit selection
panel and the panel has furnished the names of its nominees for the
vacancy to the General Assembly. No member of the General
Assembly may offer his pledge until the qualifications of all
candidates for that office have been determined by the judicial merit
selection panel and the panel has furnished the names of its
nominees to the General Assembly. For purposes of this section,
indirectly seeking a pledge means the candidate, or someone acting
on behalf of and at the request of the candidate, requesting a person
to contact a member of the General Assembly on behalf of the
candidate before nominations for that office are made by the panel.
Violations of this section may be considered by the merit selection
panel when it considers the applicant's qualifications.
Section 14-4-90. The provisions of Chapter 19 of Title 2 do not
apply to the selection and screening of candidates for the Supreme
Court, Court of Appeals, Circuit Court, Family Court, and the
Administrative Law Judge Division."
SECTION 2. Sections 2-19-70 and 2-19-80 of the 1976 Code
are repealed.
SECTION 3. This act takes effect July 1, 1997, and applies to
judicial vacancies occurring on or after January 1, 1998, contingent
upon the ratification of an amendment to Article V of the
Constitution of this State prior to July 1, 1997, authorizing the
establishment of a Judicial Merit Selection Panel whose nominations
for judicial offices are binding on the General Assembly. Members
of the Judicial Merit Selection Panel established in Section 1 of this
act may be appointed prior to July 1, 1997, and the panel is
authorized to organize prior to this date so that it may begin acting
upon judicial vacancies which occur on or after January 1, 1998.
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