Current Status Bill Number:3986 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19950411 Primary Sponsor:Neal, All Sponsors:Neal, Canty, Cave, Cobb-Hunter, Howard, Govan and Scott Drafted Document Number:gjk\21686sd.95 Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Judicial Merit Selection Panel
Body Date Action Description Com Leg Involved
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House 19950411 Introduced, read first time, 25 HJ
referred to Committee
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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, TO PROVIDE THE PROCEDURES FOR THE NOMINATION AND ELECTION OF CANDIDATES FOR THESE JUDICIAL OFFICES; TO PROHIBIT SITTING MEMBERS OF THE GENERAL ASSEMBLY, MEMBERS OF THEIR FAMILY WITHIN THE SECOND DEGREE, AND THEIR LAW PARTNERS OR ASSOCIATES OF THEIR LAW FIRM FROM SUBMITTING APPLICATIONS TO THE PANEL OR BEING ELECTED BY THE GENERAL ASSEMBLY TO SUCH JUDICIAL OFFICES; 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 ARE 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:
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 twelve members as follows:
(1) six members, one from each congressional district of this State, shall be appointed by a majority of the members of the General Assembly representing that congressional district;
(2) two members of the panel shall be appointed by the Speaker of the House of Representatives;
(3) two members of the panel shall be appointed by the President Pro Tempore of the Senate;
(4) one member shall be appointed by the Governor upon recommendation of the South Carolina Bar; and
(5) one member shall be appointed by the Governor upon the recommendation of the South Carolina Black Lawyers Association.
(B) Members of the panel shall serve for terms of four years each, and no member 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. Seven 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 at least three candidates whom it considers best qualified for the judicial office under consideration. 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 at least 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 two or more other nominations 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. Further, no member of the family within the second degree of a sitting member of the General Assembly, or a law partner or associate of the law firm of a sitting member of the General Assembly, may submit an application with the panel for nomination or be elected by the General Assembly to such a judicial 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.