S 921 Session 110 (1993-1994)
S 0921 General Bill, By Courson and Giese
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.
12/06/93 Senate Prefiled
12/06/93 Senate Referred to Committee on Judiciary
01/11/94 Senate Introduced and read first time SJ-39
01/11/94 Senate Referred to Committee on Judiciary SJ-39
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 members of the commission must be appointed by the
Governor and shall consist of the seven immediate past presidents of the
South Carolina Bar if they are otherwise eligible to serve. If one is not
eligible to serve, that seat must be filled by appointment of the Governor
and shall consist of the most recent past president of the South Carolina
Bar not appointed to the commission by the Governor if he is eligible to
serve. To be eligible to serve, a past president of the South Carolina Bar
must not be serving as a member of the state or federal judiciary and
must be actively engaged in the practice of law in South Carolina.
Vacancies also must be filled by appointment of the Governor and shall
consist of the most recent past president of the South Carolina Bar not
serving on the commission and not otherwise ineligible to serve on the
commission.
(B) 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.
(C) 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. Four 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.
(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
court."
SECTION 3. This act takes effect July 1, 1994, except that the
members of the Judicial Nominating Commission established in Section
2 of this act may be appointed 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 July 1, 1994.
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