H 3476 Session 111 (1995-1996)
H 3476 General Bill, By Neilson, Allison, Bailey, Davenport, R.J. Herdklotz,
H.G. Hutson, M.F. Jaskwhich, L.H. Limbaugh, Limehouse, Littlejohn, Riser,
C.C. Wells and S.S. Wofford
Similar(H 3297)
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 4
to Title 14 so as to create the South Carolina Judicial Nominating Commission
to assist the General Assembly in the selection of justices and judges for
vacancies in the offices of Supreme Court Justice, and Judge of the Court of
Appeals, Circuit Court, and Family Court, to provide for the membership of the
Commission, and to provide the procedure for the nomination and election of
candidates for these judicial vacancies.
02/02/95 House Introduced and read first time HJ-8
02/02/95 House Referred to Committee on Judiciary HJ-8
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING CHAPTER 4 TO TITLE 14 SO AS TO
CREATE THE SOUTH CAROLINA JUDICIAL NOMINATING
COMMISSION TO ASSIST THE GENERAL ASSEMBLY IN
THE SELECTION OF JUSTICES AND JUDGES FOR
VACANCIES IN THE OFFICES OF SUPREME COURT
JUSTICE, AND JUDGE OF THE COURT OF APPEALS,
CIRCUIT COURT, AND FAMILY COURT, TO PROVIDE FOR
THE MEMBERSHIP OF THE COMMISSION, AND TO
PROVIDE THE PROCEDURE FOR THE NOMINATION AND
ELECTION OF CANDIDATES FOR THESE JUDICIAL
VACANCIES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Mindful of its duty to elect members of the
Supreme Court, the Court of Appeals, and the Circuit Courts under
Article V of the South Carolina Constitution, the General Assembly
finds that the exercise of this constitutional power will be
substantially aided and improved by the creation of a Judicial
Nominating Commission pursuant to this act. The General
Assembly has considered the constitutionality of this legislation and
finds that such legislation is constitutional under Article V of the
South Carolina Constitution.
SECTION 2. Title 14 of the 1976 Code is amended by adding:
"CHAPTER 4
Judicial Nominating Commission
Section 14-4-10. (A) There is created a South Carolina Judicial
Nominating Commission to assist the General Assembly in the
selection of qualified justices and judges for vacancies in the offices
of Supreme Court justice, and judge of the Court of Appeals,
Circuit Court, and Family Court. The commission shall consist of
fifteen members as follows:
(1) Six members of the commission shall be appointed by
the Governor, one from each congressional district of this State, for
terms of four years and until their successors are appointed and
qualify except that of the members first appointed by the Governor,
the members appointed from the first, third, and fifth congressional
districts shall serve for initial terms of two years each.
(2) Six members of the commission must be elected by
the General Assembly, one from each congressional district of this
State, for terms of four years and until their successors are elected
and qualify, except that of the members first elected by the General
Assembly, three members shall serve for initial terms of two years
each and the General Assembly in making its initial elections shall
designate the term of each member.
(3) Three members shall be appointed by the Chief Justice
of the South Carolina Supreme Court from the State at large, for
terms of four years each and until their successors are appointed
and qualify, except that of those first appointed, one member shall
serve for an initial term of two years, the initial terms of each of
these three members to be designated by the Chief Justice when
making the appointments. These three members appointed by the
Chief Justice must be attorneys licensed to practice law in South
Carolina and these three members must recuse themselves from any
proceedings of the commission involving the nomination of the
chief justice who appointed them to the commission.
(B) Two of the members appointed by the Governor and three
of the members elected by the General Assembly shall be attorneys
at law admitted to practice in this State, and the remainder must be
lay members representing the general public who are not attorneys
at law licensed to practice in this State.
(C) The Governor, Chief Justice, and the General Assembly
shall endeavor to include representatives of all sectors of the
practicing bar when making their selections of attorney members on
the commission.
(D) No member of the commission may serve more than two
consecutive terms on the commission, including a term to which he
is appointed or elected for the purpose of filling the remainder of an
unexpired term of a former member of the commission.
(E) No member of the commission is eligible for nomination,
election, or appointment as a judge or justice of a court for which
the commission makes nominations while he is serving on the
commission and for a period of three years after he ceases to be a
member.
(F) Vacancies on the commission must be filled for the
remainder of the unexpired term by appointment or election in the
same manner as provided for the original appointment or election.
(G) Members of the commission 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 such member is on official business
of the commission.
Section 14-4-20. The commission shall meet at least once
annually and at such other times as may be designated by the
chairman. The commission, at its first meeting and annually
thereafter, shall elect a chairman who shall serve for a term of one
year and until his successor is elected and qualifies. Any member
may succeed himself as chairman. The commission, at its first
meeting, also shall organize and adopt rules for the purpose of
governing its internal proceedings. Eight members of the
commission shall constitute a quorum at all meetings thereof. The
commission may employ clerical and stenographic assistance as
may be 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 commission
to determine when judicial vacancies are to occur in the office of
justice of the Supreme Court or judge of the Court of Appeals,
Circuit Court, or Family Court and to expeditiously investigate the
qualifications of those who seek nomination by the commission.
(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
commission 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 will expire 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 commission of the choice made by an
incumbent justice or judge by August fifteenth of that preceding
year. However, for vacancies which shall occur during 1996, the
state court administrator shall notify judges whose terms of office
are scheduled to expire in 1996 of this fact as soon as possible
during 1996, and shall notify the commission of the incumbent
judge's decision as soon as possible thereafter.
(D) The commission, upon receiving notice of a judicial
vacancy, ascertaining that a judicial vacancy will occur, or being
notified by the state court administrator of an incumbent judge's
decision regarding his reelection 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 shall occur or occurred, and the
address to which and the date by which interested candidates may
apply. A notice to the commission 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 commission thereafter
must provide the notice required by this subsection.
Section 14-4-40. (A) All persons who may desire to be
considered for nomination as justice or judge may make application
for consideration by the commission, and any person or
organization may submit to the commission the name of any person
desired to be considered for such nomination.
(B) Any person whose name has been recommended to the
commission 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 commission on forms it requires, and
to be nominated for election to a judicial office by the commission,
such an application is required.
(C) Each applicant as part of his application is required to give
to the commission a general waiver which allows the commission to
obtain whatever information it considers necessary, from any source
whether or not confidential including medical personnel and bar or
judicial commissions, in order for the commission 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 commission includes the
investigation of, among other things, the character, reputation,
knowledge of the law, legal ability, physical health, mental stability,
judicial temperament, experience, and general suitability to exercise
the judicial office of all persons being considered by the
commission for nomination to this office.
(B) The chairman of the commission 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 was 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 commission. Such statement must
be furnished no later than forty-eight hours prior to the date and
time set for the hearing. The commission shall determine the
persons 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 the
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.
(C) When there is no known opposition to an incumbent who
has notified the state court administrator of his desire for re-election
and 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 must 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 at the rate 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 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.
(B) 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. But 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 commission, to obey a subpoena issued by the
commission, or to obey a lawful order of a court in regard to the
functions of the commission, 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 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. 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 commission and must
be signed by the commission chairman. Subpoenas may be issued
to such persons as the commission may designate.
(D) All records, information, and other material that the
commission 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 commission shall make nominations to
the General Assembly of candidates for election to the offices of
Supreme Court Justice, and judge of the Court of Appeals, Circuit
Court, and Family Court. It shall review the qualifications of all
applicants for a judicial office and select therefrom and submit to
the General Assembly the names of the three candidates whom it
deems best qualified for the judicial office under consideration,
except that for the offices of Chief Justice of the Supreme Court
and Chief Judge of the Court of Appeals, the commission is
authorized, in its discretion, to submit the name of only one person
for these positions. Should the commission conclude that there are
fewer than three applicants qualified for a vacancy, other than that
of Chief Justice and Chief Judge of the Court of Appeals, it shall
submit to the General Assembly only the names of those determined
qualified with a written explanation.
(B) Insofar as possible, the commission 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 commission 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 commission for any judgeship are
binding on the General Assembly, and it may not elect a person not
nominated by the commission. Nothing shall prevent the General
Assembly from rejecting all persons so nominated. In this event,
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 re-election, his
name must be forwarded by the commission to the General
Assembly. In addition the commission may also submit other
nominations up to two for the judicial office. If no other
nomination is made by the commission, the name of that judge or
justice must be submitted by the commission to the General
Assembly. The General Assembly thereupon, 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 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) Persons nominated by the commission shall be selected
without regard to race, creed, color, sex, or national origin.
(G) The commission 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. No person shall seek a pledge from or solicit
the vote of any member of the General Assembly, whether on his
behalf or on behalf of another person, nor shall any member of the
General Assembly pledge his vote to any person for any judicial
vacancy until the commission has furnished the names of its
nominees for the vacancy to the General Assembly.
Section 14-4-90. The provisions of Chapter 19 of Title 2 do not
apply to the selection and screening of candidates for justices and
judges of the Supreme Court, Court of Appeals, and the Circuit and
Family Courts."
SECTION 3. This act takes effect January 1, 1996, except that
the members of the Judicial Nominating Commission established in
Section 2 of this act may be appointed or elected prior to this date
and the commission is authorized to organize prior to this date so
that it may begin acting upon judicial vacancies which occur on or
after January 1, 1996.
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