South Carolina General Assembly
111th Session, 1995-1996

Bill 4948

Indicates Matter Stricken
Indicates New Matter

                    Current Status

Bill Number:                       4948
Type of Legislation:               General Bill GB
Introducing Body:                  House
Introduced Date:                   19960411
Primary Sponsor:                   Neilson
All Sponsors:                      Neilson, Littlejohn, Cromer,
                                   Allison, Mason, Shissias, Lloyd,
                                   Wells, Wilder, Gamble, Jaskwhich,
                                   Rice, Davenport and Keyserling 
Drafted Document Number:           gjk\21208sd.95
Residing Body:                     House
Current Committee:                 Judiciary Committee 25 HJ
Subject:                           Judicial Nominating Commission


Body    Date      Action Description                       Com     Leg Involved
______  ________  _______________________________________  _______ ____________

House   19960411  Introduced, read first time,             25 HJ
                  referred to Committee

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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:


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 must 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 must 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 must 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 must 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 shall also, at its first meeting, 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 such 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 re-election, 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 re-election 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 re-election 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 re-elected 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 must 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. (A) Before a sitting member of the General Assembly may submit an application with the commission for his nomination by the commission for election to a judicial office and before the commission may accept or consider such an application, the member of the General Assembly must 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 commission and during the time his nomination by the commission for election to a particular judicial office is pending in the General Assembly.

(C) 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.