A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING ARTICLE 10 TO CHAPTER 7, TITLE 1 SO AS TO CREATE THE CIRCUIT SOLICITORS' QUALIFICATIONs COMMISSION, PROVIDE FOR ITS MEMBERSHIP TO BE APPOINTED BY THE GOVERNOR, PROVIDE PROCEDURES FOR MAKING RECOMMENDATIONS TO THE GOVERNOR FOR DISCIPLINE, REMOVAL, OR FORCED INVOLUNTARY RETIREMENT OF CIRCUIT SOLICITORS FOR CERTAIN CONDUCT WARRANTING SUCH ACTION, AND TO PROVIDE FOR CONFIDENTIALITY IN CERTAIN CIRCUMSTANCES AND OPEN MEETINGS IN CERTAIN OTHER CIRCUMSTANCES, AMONG OTHER THINGS.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Chapter 7, Title 1 of the S.C. Code is amended by adding:

 

Article 10

 

Circuit Solicitors' Qualifications Commission

 

    Section 1-7-1210.  (A) There is created the Circuit Solicitors' Qualifications Commission, which has the power to recommend to the Governor the discipline, removal, or forced involuntary retirement of elected circuit solicitors in accordance with the provisions of this article.

    (B) The commission shall consist of eight members appointed by the Governor whose initial terms shall begin on July 1, 2026. A commission member is eligible to serve so long as he retains the status for which he was appointed, but a vacancy is created by operation of law when the member no longer has the designation for which the member was appointed. A vacancy for a member must be filled by the Governor, and such appointee shall serve the balance of the vacating member's unexpired term. Any member of the commission shall serve no more than two full terms. The initial term of a member of the commission may not be construed as counting toward the limit of two full terms of service as provided in this subsection. The commission shall be divided into a five-member investigative panel and three-member hearing panel.

    (C) The investigative panel shall be responsible for the:

       (1) investigative, prosecutorial, and administrative functions of the commission;

       (2) investigation of alleged conduct constituting grounds for discipline pursuant to Section 1-7-1260;

       (3) selection of an attorney in good standing of the South Carolina Bar who shall serve as director of the commission and who may not otherwise engage in the practice of law, other than to represent the commission; and

       (4) authorization of employment of additional staff as the commission deems necessary to carry out the duties assigned to the commission.

    (D) The hearing panel shall be responsible for:

       (1) adjudicating formal charges filed by the investigative panel;

       (2) issuing standards on its own initiative or on the recommendation of the investigative panel. Any such standards shall elaborate, define, or provide context for the grounds for discipline, removal, or forced involuntary retirement as provided in Section 1-7-1260; and

       (3) issuing formal advisory opinions and recommendations to the Governor on its own initiative or on the recommendation of the investigative panel regarding grounds for discipline, removal, or forced involuntary removal provided in Section 1-7-1260.

 

    Section 1-7-1220.  (A) As used in this section, "attorney" means a lawyer who is on active status and a member in good standing of the South Carolina Bar for at least ten years, and who is a registered voter in this State.

    (B) The five members of the commission's investigative panel shall be appointed as follows:

       (1) one attorney with prosecutorial experience as an elected circuit solicitor or the Attorney General shall be appointed by the Governor and shall serve a term of four years; provided, however, that the initial appointment shall be for three years, and thereafter, successors to such member shall serve terms of four years;

       (2) one attorney with at least five years of service as an assistant circuit solicitor or an assistant attorney general shall be appointed by the Governor and shall serve a term of four years; provided, however, that the initial appointment shall be for two years, and thereafter, successors to such member shall serve terms of four years; and

       (3) three practicing attorneys shall be appointed by the Governor and each shall serve terms of four years; provided, however, that the initial appointment of one attorney member as designated by the Governor shall be for four years and the initial appointment of the other two attorney members as designated by the Governor shall be for one year, and thereafter, successors to such members shall serve terms of four years.

    (C) The South Carolina Commission on Prosecution Coordination and the South Carolina Bar, as appropriate, may recommend to the Governor a list of names of attorneys for consideration to serve as commission members.

    (D) The investigative panel members annually shall elect a chairperson and vice chairperson for the investigative panel.

 

    Section 1-7-1230.  (A) The three members of the commission's hearing panel shall be appointed as follows:

       (1) two elected circuit solicitors shall be appointed by the Governor for a term of four years and his successors shall serve terms of four years; provided, however, that the initial appointment of one circuit solicitor as designated by the Governor shall be for three years and the initial appointment of the other circuit solicitor shall be for one year, and thereafter, successors to such member shall serve terms of four years; and

       (2) one former justice or judge of the Supreme Court or Court of Appeals who served on the respective court for at least ten years and has formerly been a circuit solicitor, Attorney General or assistant circuit solicitor or assistant attorney general shall be appointed by the Governor and shall serve a term of four years; provided, however, that the initial appointment shall be for three years, and thereafter, successors to such member shall serve terms of four years.

    (B) The hearing panel members shall select a presiding officer for each matter that comes before the panel or may elect a presiding officer annually to serve the panel.

    (C) Members and staff of the hearing panel shall not engage in any ex parte communications regarding a disciplinary or incapacity matter of a circuit solicitor, including with members and staff of the investigative panel.

 

    Section 1-7-1240.  (A) Each member of the commission is entitled to vote on any matter coming before the respective panel unless otherwise provided by rules adopted by the commission concerning recusal. The chairperson of the investigative panel and the presiding officer of the hearing panel shall retain a vote on all matters except those in which such chairperson or presiding officer has been recused. No commission member present at a panel meeting shall abstain from voting unless recused. The rules of the commission shall establish grounds for recusal and the process for allowing a temporary replacement of a commission member under these circumstances.

    (B) As used in this subsection, the term "for cause" includes indictment for or conviction of a felony or any offense involving moral turpitude; misconduct, malpractice, malfeasance, misfeasance, nonfeasance, or incapacity; failure to attend three or more panel meetings or hearings in a one-year period without good and sufficient reason; or abstaining from voting, unless recused. Removal of a panel member for cause must be by a unanimous vote of all members of the commission; provided, however, that the panel member who is the subject of the vote shall not vote. The commission shall forward the name of the member so removed to the Governor for official removal from the commission and the filling of the vacancy created pursuant to the provisions of this article.

    (C) Three members of the investigative panel constitutes a quorum, and two members of the hearing panel constitutes a quorum.

 

    Section 1-7-1250.  (A) Members of the commission shall serve without compensation but shall receive the same daily expense allowance as members of the General Assembly receive, for each day that the member is in physical attendance at a panel meeting or hearing, plus either reimbursement for actual transportation costs while traveling by public transportation or the same mileage allowance for use of a personal motor vehicle in connection with the attendance as members of the General Assembly receive.

    (B) Notwithstanding subsection (A), no member shall receive such expense allowance or travel reimbursement if already entitled to receive an expense allowance, travel reimbursement, or salary for performance of duties as a state employee.

    (C) Expense allowances and travel reimbursements must be paid from funds appropriated or otherwise available to the commission.

 

    Section 1-7-1260.  (A) The commission, with the assistance of the Commission on Prosecution Coordination and South Carolina Bar, shall promulgate standards of conduct and rules for the commission's governance which will comport with due process and enforce the provisions of this section. These standards and rules shall allow for a full investigation of a circuit solicitor only upon majority vote of the investigative panel. When a commission member receives information relating to such conduct, the member shall provide relevant information to the commission's director for appropriate action.

    (B) The following are grounds for a recommendation to the Governor of discipline, removal, or involuntary retirement of a circuit solicitor:

       (1) mental or physical incapacity interfering with the performance of his duties which is, or is likely to become, permanent;

       (2) wilful misconduct in office;

       (3) with respect to circuit solicitors, wilful and persistent failure to carry out duties as required by law;

       (4) conviction of a crime of moral turpitude;

       (5) conduct prejudicial to the administration of justice which brings the office into disrepute; or

       (6) knowingly authorizing or permitting an assistant solicitor or assistant attorney general to commit any act constituting grounds for removal pursuant to this subsection.

    (C) The commission:

       (1) in any complaint filed alleging a violation of subsection (B) and requesting an investigation of an elected circuit solicitor, shall require the complainant to file with the commission a sworn affidavit detailing the personal knowledge of the facts supporting the complaint, including any interest the complainant may have in the outcome of the case. The complainant may attach documents to support the complaint. And, nothing in this item may be construed to limit the ability of the commission to bring a complaint pursuant to this article on its own motion;

       (2) may not entertain a complaint on the basis of a charging decision, plea offer, opposition to or grant of a continuance, placement of a case on a trial calendar, or recommendation regarding bond unless the affidavits and any documents attached to the complaint show it is plausible that the circuit solicitor made or knowingly authorized the decision based on:

           (a) undue bias or prejudice against the accused or in favor of persons with interests adverse to the accused;

           (b) an undisclosed financial interest in the outcome of the prosecution;

           (c) an undisclosed conflict of interest;

           (d) factors that are completely unrelated to the duties of prosecution; or

           (e) a stated policy, written or otherwise, which demonstrates that the circuit solicitor categorically refuses to prosecute any offense or offenses of which he is required by law to prosecute;

       (3) shall suspend its investigation or hearing pending the outcome upon the indictment of the circuit solicitor.

 

    Section 1-7-1270.  (A) All information regarding a disciplinary or incapacity matter of a circuit solicitor must be kept confidential by the investigative panel and commission staff before a recommendation of formal charges are filed with the Governor; provided, however, that prior to providing the recommendation, if the investigative panel agrees to a satisfactory disposition of a disciplinary matter other than by providing a recommendation to the Governor, the commission may issue a private admonition, a report of such private admonition must be forwarded to the Governor for information only. Private admonitions also must be kept confidential by the Governor and his staff.

    (B) After filing and service of intent to forward a recommendation for formal charges to the Governor:

       (1) with respect to incapacity, all pleadings, information, hearings, and proceedings must remain confidential;

       (2) with respect to disciplinary matters, all pleadings and information are subject to disclosure to the public, and all hearings and proceedings must be open and available to the public, except to the extent that such pleadings and information or hearings and proceedings could be properly sealed or closed pursuant to Chapter 4, Title 30, the Freedom of Information Act, or as ordered by a court of competent jurisdiction.

    (C) With respect to administrative and other matters, all records and information are subject to disclosure to the public, and all meetings, or portions of meetings, must be open and available to the public, except to the extent that such records, information, and meetings would:

       (1) disclose disciplinary matters protected in subsection (A);

       (2) disclose incapacity matters protected in subsection (A) and (B)(1);

       (3) be considered a matter subject to executive session, as may be allowed under the provisions of Chapter 4, Title 30; or

       (4) otherwise not be required to be publicly disclosed pursuant to any other provision of law.

    (D) The work product of the commission and its staff and the deliberations of the commission shall remain confidential.

    (E) Notwithstanding the provisions of this section, information regarding a disciplinary or incapacity matter may be disclosed or the confidentiality of such information may be removed when the:

       (1) privilege of confidentiality has been waived by the individual who was the subject of the commission's investigation; or

       (2) commission's rules provide for disclosure:

           (a) in the interest of justice and to protect the public;

           (b) if an emergency situation exists; or

           (c) if an individual is under consideration for another state or federal position.

    (F) Information submitted to the commission or its staff, and testimony given in any proceeding before the commission or one of its panels, is absolutely privileged, and no civil action predicated upon such information or testimony may be instituted against any complainant, witness, or his counsel.

    (G) A respondent may appeal the decision of the hearing panel by submitting a petition to a circuit court of competent jurisdiction where such respondent served. A respondent who is subjected to a recommendation to the Governor of a public reprimand, censure, limitation on the performance of prosecutorial duties, suspension, retirement, or removal is entitled to a copy of the proposed record to be filed with the Governor and, if the respondent has objections to it, to have the record settled by the hearing panel's presiding officer. The hearing panel's recommendation to the Governor in a disciplinary or incapacity matter may be appealed to a court of competent jurisdiction.

 

    Section 1-7-1280.  (A) The commission shall commence by July 1, 2026, and the rules and regulations promulgated by the commission must be established no later than July 1, 2027. No complaint may be filed before July 1, 2027. The commission shall not receive complaint submissions regarding misconduct in office that occurred prior to May 1, 2027, unless such alleged misconduct is related to a continuous pattern of conduct that continues beyond that date.

    (B) The authority of the commission is limited to making recommendations to the Governor regarding the conduct of circuit solicitors when discipline, removal, or involuntary retirement is warranted based on the investigation of complaints regarding such conduct. Nothing in this article may be construed as diminishing the authority of the Supreme Court from regulating the practice of law in this State.

    (C) In the event that the Governor removes or forces the involuntary retirement of an individual pursuant to this article, such individual is disqualified from being elected to the office of circuit solicitor for a period of ten years from the date of such removal or involuntary retirement.

 

SECTION 2.  The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.  After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

 

SECTION 3.  If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

 

SECTION 4.  This act takes effect upon approval by the Governor.

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