Indicates Matter Stricken

Indicates New Matter

 

Committee Report

February 28, 2024

 

S. 1046

 

Introduced by Senators Hembree, Climer, M. Johnson, Peeler, Corbin, Cromer, Shealy, Grooms, Bennett, Gambrell, Loftis, Rice, Gustafson, Martin, Verdin, Turner, Kimbrell, Reichenbach, Cash, Harpootlian, McLeod and Fanning

 

S. Printed 02/28/24--S.

Read the first time February 14, 2024

 

________

 

The committee on Senate Judiciary

To whom was referred a Bill (S. 1046) to amend the South Carolina Code of Laws by amending Section 2-19-10, relating to Judicial Merit Selection Commission, appointment, qualifications, and terms, so, etc., respectfully

Report:

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

 

    Amend the bill, as and if amended, SECTION 2, Section 2-19-10, by striking the last undesignated paragraph and inserting:

    All appointees, except for the one provided in item (6), must be members of the South Carolina Bar and in good standing. Appointees made pursuant to items (2) and (3) may not be current members of the South Carolina General Assembly.

Amend the bill further, SECTION 3, by striking Section 2-19-10(D) and inserting:

    (D) The term of office of a member of the commission who is not a member of the General Assembly shall be for four years, except those first appointed, the members appointed by the Senate president, the Senate Judiciary chairman, the Speaker of the House, and the House Judiciary chairman shall serve an initial term of two years. Members may serve two non-consecutive terms provided a period of four years separates each term. Those initially appointed for a two-year term may serve one consecutive four-year term and a non-consecutive four-year term provided a period of four years has expired from previous service. subject to a right of removal at any time by the person appointing him, and until his successor is appointed and qualifies.  A member of the commission who is a serving member of the General Assembly shall serve for the term of office to which he has been elected.

Amend the bill further, SECTION 4, by striking Section 2-19-10(G)(1) and (2) and inserting:

(1) No member of the Judicial Merit Selection Commission is eligible for nomination and appointment as a judge or justice of the state court system or administrative law judge divisioncourt while serving on the commission and for a period of one yeartwo years thereafter; and

    (2) If a candidate is a family member of a current Judicial Merit Selection Commission member, the member must resign his position on the commission. Family member is defined for the purpose of this section as a spouse, parent, brother, sister, child, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, or grandchild.

Amend the bill further, SECTION 6, by striking Section 2-19-20(D) and inserting:

    (D) Any person wishing to seek a judicial office, which is elected by the General Assembly, shall file a notice of intention to seek the office with the Judicial Merit Selection Commission.  Upon receipt of the notice of intention, the commission shall begin to conduct the investigation of the candidate as it considers appropriate and may in the investigation utilize the services of any agency of state government.  This agency shall, upon request, cooperate fully with the commission. The investigation must include the South Carolina Bar assessment of the candidate, the Citizens Committee assessment of the candidate, and public testimony from any witness appearing before the commission. The commission may consider other information provided by any agency of state government, but such information shall be provided to the candidate seeking office at least forty-eight hours prior to a public hearing and it must be described during a public hearing. The commission must not utilize anonymous surveys sent to members of the South Carolina Bar.

Amend the bill further, SECTION 12, Section 2-19-80, by striking Section 2-19-80(A) and inserting:

    (A) The commission shall make nominations to the General Assembly of candidates and their qualifications for election to the Supreme Court, court of appeals, circuit court, family court, and the administrative law judge divisioncourt.  It shall review the qualifications of all applicants for a judicial office and select therefrom and submit to the General Assembly the names and qualifications of the threeall candidates whom it considers best qualified for the judicial office under consideration.  If fewer than three persons apply to fill a vacancy or if the commission concludes there are fewer than three candidates qualified for a vacancy, it shall submit to the General Assembly only the names and qualifications of those who are considered to be qualified, with a written explanation for submitting fewer than three names.

 

Renumber sections to conform.

Amend title to conform.

 

LUKE RANKIN for Committee.

 

 

statement of estimated fiscal impact

Explanation of Fiscal Impact

State Expenditure

This bill establishes the membership of the JMSC and terminates the existing membership.

The new membership of the JMSC is as follows:

one member appointed by the president of the Senate and one member appointed by the chairman of the Senate Judiciary Committee;

one member appointed by the Speaker of the House and one member appointed by the chairman of the House Judiciary Committee;

one member appointed by CPC upon the recommendation of the sixteen circuit solicitors. The appointee cannot be an active serving solicitor;

one member appointed by CID upon the recommendation of the sixteen circuit public defenders. The appointee cannot be an active serving public defender;

one member appointed by the current South Carolina Supreme Court Chief Justice. The appointee must be a former state or federal member of the bench.

 

All appointees, except for the member appointed by the Chief Justice, must be members of the South Carolina Bar and in good standing.

 

This bill outlines the terms of office for the members requires a member to resign if a judicial nominee is a family member.

 

Further, this bill specifies that the executive director of the JMSC will establish a professional staff compliment. The staff hired may not be employed in any other capacity with the General Assembly. The bill does not specify how many staff members may be hired or how these FTE's will be funded. Therefore, this bill will have an undetermined expenditure impact.

 

This bill will have no expenditure impact for CID or Judicial as each anticipate being able to manage any increase in expenses for the der diem, subsistence, and mileage for the members appointed to the JMSC within existing appropriations. Also, based on a response for similar legislation, we anticipate CPC will be able to manage any increase in expenses for the per diem, subsistence, and mileage for the members appointed to the JMSC within existing appropriations.

 

Further, this bill requires the House and Senate to appoint members to the JMSC. Additionally, the General Assembly must hold a joint session to elect judges and a candidate must receive a majority vote from each chamber of the General Assembly. Finally, the legislative delegations must make recommendations for an appointment for magistrate to the Governor. This bill will have no expenditure impact for the House or the Senate. Both bodies can manage the expense to provide mileage, subsistence, and per diem for the members of the JMSC appointed by the respective bodies. Additionally, electing judges is within the normal course of business of the General Assembly. Also, recommending magistrates can be managed within existing appropriations by the legislative delegations.

 

 

Frank A. Rainwater, Executive Director

Revenue and Fiscal Affairs Office

 

________

 

 

 

 

 

 

 

 

 

A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY AMENDING SECTION 2-19-10, RELATING TO JUDICIAL MERIT SELECTION COMMISSION, APPOINTMENT,  QUALIFICATIONS, AND TERMS, SO AS TO PROVIDE FOR THE APPOINTMENT OF JUDICIAL MERIT SELECTION COMMISSION MEMBERS, INITIAL TERMS, AND SUBSEQUENT TERMS, TO AMEND THE MEMBERSHIP OF THE COMMISSION, TO PROVIDE THAT, EXCEPT THOSE FIRST APPOINTED, THE MEMBERS APPOINTED BY THE SENATE PRESIDENT, THE SENATE JUDICIARY CHAIRMAN, THE SPEAKER OF THE HOUSE, AND THE HOUSE JUDICIARY CHAIRMAN SHALL SERVE AN INITIAL TERM OF TWO YEARS, AND TO PROVIDE THAT NO NOMINEE MAY BE A FAMILY MEMBER OF A CURRENT MEMBER OF THE JUDICIAL MERIT SELECTION COMMISSION; BY ADDING SECTION 2-19-15 SO AS TO PROVIDE FOR THE APPOINTMENT OF AN EXECUTIVE DIRECTOR AND PROFESSIONAL STAFF; BY AMENDING SECTION 2-19-20, RELATING TO INVESTIGATION BY COMMISSION AND PUBLICATION OF VACANCIES, SO AS TO PROVIDE THE CRITERIA FOR THE QUALIFICATION OF JUDICIAL CANDIDATES; BY AMENDING SECTION 2-19-30, RELATING TO HEARINGS AND EXECUTIVE SESSION, SO AS TO REQUIRE ALL PUBLIC HEARINGS BE LIVE STREAMED; BY AMENDING SECTION 2-19-70, RELATING TO the PROHIBITION AGAINST DUAL OFFICES, PRIVILEGES OF THE FLOOR, AND PLEDGES, SO AS TO PROVIDE FOR CERTAIN FLOOR PRIVILEGES and PROHIBITIONS FOR CANDIDATES AND ESTABLISHing SET TIMES FOR THE RELEASE OF REPORTS AND the SEEKING of PLEDGES and TO PROVIDE THAT THE FORMAL RELEASE OF THE REPORT OF QUALIFICATIONS SHALL OCCUR NO EARLIER THAN TWELVE DAYS AFTER NOMINEES HAVE BEEN RELEASED TO MEMBERS OF THE GENERAL ASSEMBLY; BY AMENDING SECTION 2-19-80, RELATING TO NOMINATION OF QUALIFIED CANDIDATES TO THE GENERAL ASSEMBLY, SO AS TO PROVIDE that ALL QUALIFIED CANDIDATES SHALL BE RELEASED TO THE GENERAL ASSEMBLY; BY AMENDING SECTION 2-19-90, RELATING TO the APPROVAL OF the GENERAL ASSEMBLY IN JOINT SESSION, SO AS TO PROVIDE that A CANDIDATE MUST RECEIVE A MAJORITY VOTE OF EACH HOUSE; AND BY AMENDING SECTION 22-1-10, RELATING TO APPOINTMENT, TERMS AND TERRITORIAL JURISDICTION, TRAINING, AND CERTIFICATION OR RECERTIFICATION REQUIREMENTS, SO AS TO PROVIDE THAT THE GOVERNOR SHALL RECEIVE RECOMMENDATIONS FROM THE FULL LEGISLATIVE DELEGATION OF THE COUNTY THE MAGISTRATE WILL SERVE.

 

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

 

SECTION 1.  Section 2-19-10(A) of the S.C. Code is amended to read:

 

    (A) Whenever an election is to be held by the General Assembly in Joint Session, for members of the judiciary, a Judicial Merit Selection Commission, composed of ten nine members, shall be appointed, in the manner prescribed by this sectionchapter, to consider the qualifications of the candidates.  The Judicial Merit Selection Commission shall meet at least once annually and at other times as may be designated by the chairman.  The commission, at its first meeting and then annually, shall elect a chairman and a vice chairman who shall serve for a term of one year and until their successors are elected and qualified, and adopt rules necessary to the purposes of the commission and consistent with this chapter.  These rules shall address, among other things:

       (1) the confidentiality of records and other information received concerning candidates for judicial office;

       (2) the conduct of proceedings before the commission;

       (3) receipt of public statements in support of or in opposition to any of the candidates;

       (4) procedures to review the qualifications of retired judges for continued judicial service;

       (5) contacting incumbent judges regarding their desire to seek re-election;

       (6) prohibition against candidates communicating with individual members of the commission concerning the qualifications of candidates unless specifically authorized by the commission.

    A member may succeed himself as chairman or vice chairman.  Six Five members of the commission constitute a quorum at all meetings.

 

SECTION 2.  Section 2-19-10(B) of the S.C. Code is amended to read:

 

    (B) Notwithstanding any other provision of law, the Judicial Merit Selection Commission shall consist of the following individuals:

       (1) five members appointed by the Speaker of the House of Representatives and of these appointments:

           (a) three members must be serving members of the General Assembly;  and

           (b) two members must be selected from the general public two members appointed by the Governor;

       (2) three members, appointed by the Chairman of the Senate Judiciary Committee, who must be serving members of the Senateone member appointed by the president of the Senate and one member appointed by the chairman of the Senate Judiciary Committee;

       (3) one member appointed by the Speaker of the House and one member appointed by the chairman of the House Judiciary Committee;

       (4) one member appointed by the South Carolina Commission on Prosecution Coordination upon the recommendation of the sixteen circuit solicitors. The appointee cannot be an active serving solicitor;

       (5) one member appointed by the Commission on Indigent Defense upon the recommendation of the sixteen circuit public defenders. The appointee cannot be an active serving public defender; and

       (3) two members, appointed by the President of the Senate, who must be selected from the general public(6) one member appointed by the current South Carolina Supreme Court Chief Justice. The appointee must be a former state or federal member of the bench.

    All appointees, except for the one provided in item (6), must be members of the South Carolina Bar and in good standing.

 

SECTION 3.  Section 2-19-10(D) of the S.C. Code is amended to read:

 

    (D) The term of office of a member of the commission who is not a member of the General Assembly shall be for four years, except those first appointed, the members appointed by the Senate president, the Senate Judiciary chairman, the Speaker of the House and the House Judiciary chairman shall serve an initial term of two years. Members may serve two non-consecutive terms provided a period of four years separates each term. Those initially appointed for a two year term may serve one consecutive four year term and a non-consecutive four year term provided a period of four years has expired from previous service. subject to a right of removal at any time by the person appointing him, and until his successor is appointed and qualifies.  A member of the commission who is a serving member of the General Assembly shall serve for the term of office to which he has been elected.

 

SECTION 4.  Section 2-19-10(G) of the S.C. Code is amended to read:

 

    (G)(1) No member of the Judicial Merit Selection Commission is eligible for nomination and appointment as a judge or justice of the state court system or administrative law judge division while serving on the commission and for a period of one yeartwo years thereafter; and

    (2) If a nominee is a family member of a current Judicial Merit Selection Commission member, the member must resign his position on the commission. Family member is defined for the purpose of this section as a spouse, parent, brother, sister, child, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, or grandchild.

 

SECTION 5.  Chapter 19, Title 2 of the S.C. Code is amended by adding:

 

    Section 2-19-15. (A) An executive director must be appointed by the commission to manage and carry out the duties of the commission as prescribed by law and assigned by the commission. The executive director is not subject to the State Employee Grievance Procedure Act of 1982 as amended and may be dismissed without cause.

    (B) A professional staff complement shall be established by the executive director who shall ensure that there are persons on the staff who have the professional competence and experience to carry out the duties assigned. Staff hired for these positions cannot also be employed in any other capacity with the General Assembly.

 

SECTION 6.  Section 2-19-20(D) of the S.C. Code is amended to read:

 

    (D) Any person wishing to seek a judicial office, which is elected by the General Assembly, shall file a notice of intention to seek the office with the Judicial Merit Selection Commission.  Upon receipt of the notice of intention, the commission shall begin to conduct the investigation of the candidate as it considers appropriate and may in the investigation utilize the services of any agency of state government.  This agency shall, upon request, cooperate fully with the commission. The investigation must include the South Carolina Bar assessment of the candidate, the Citizens Committee assessment of the candidate and public testimony from any witness appearing before the commission. The commission may consider other information provided by any agency of state government, but such information shall be provided to the candidate seeking office at least forty-eight hours prior to a public hearing and it must be described during a public hearing. The commission must not utilize anonymous surveys sent to members of the South Carolina Bar.

 

SECTION 7.  Section 2-19-30(E) of the S.C. Code is amended to read:

 

    (E) A candidate may withdraw at any stage of the proceedings and in this event no further inquiry or consideration of his candidacy shall be made. All materials concerning that candidate including his report, transcript, application, materials, and other information gathered during the commission's investigation must be kept confidential and destroyed as soon as possible after the candidate's written notification to the commission of his withdrawalafter filing their notice of intent but prior to submitting a completed application. A candidate may also withdraw after the time period opens for seeking pledges from members of the General Assembly. The information concerning a withdrawn candidate also shall be exempt from disclosure pursuant to Chapter 4 of Title 30.

 

SECTION 8.  Chapter 19, Title 2 of the S.C. Code is amended by adding:

 

    Section 2-19-30(F).All public hearings of the Commission shall be live streamed excluding any portions of the hearing conducted while in executive session.

 

SECTION 9.  Section 2-19-70(A) of the S.C. Code is amended to read:

 

    (A) No member of the General Assembly may be elected to a judicial office while he is serving in the General Assembly, nor shall that person be elected to a judicial office for a period of one yeartwo years after he either:

       (1) ceases to be a member of the General Assembly;  or

       (2) fails to file for election to the General Assembly in accordance with Section 7-11-15.

 

SECTION 10. Section 2-19-70(B) of the S.C. Code is amended to read:

 

    (B) The privilege of the floor in either house of the General Assembly may not be granted to any candidate or any immediate family member of a candidate unless the family member is serving in the General Assembly, during the time the candidate's 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.

 

SECTION 11. Section 2-19-70(C) of the S.C. Code is amended to read:

 

    (C) No candidate person for judicial office may seek directly or indirectly the pledge of a member of the General Assembly's vote or, directly or indirectly, contact a member of the General Assembly regarding screening for the judicial office until the qualifications of all candidates for that office have been determined by the Judicial Merit Selection Commission and the commission has formally released its report as to the qualifications of all candidates 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 Commission and until the commission has formally released its report as to the qualifications of its nominees to the General Assembly.  The formal release of the report of qualifications shall occur no earlier than forty-eight hours twelve days after the nominees have been initially released to members of 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 formally made by the commission.  The prohibitions of this section do not extend to an announcement of candidacy by the candidate and statements by the candidate detailing the candidate's qualifications.

 

SECTION 12. Section 2-19-80 of the S.C. Code is amended to read:

 

    Section 2-19-80. (A) The commission shall make nominations to the General Assembly of candidates and their qualifications 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 and qualifications of the threeall candidates whom it considers best qualified for the judicial office under consideration.  If fewer than three persons apply to fill a vacancy or if the commission concludes there are fewer than three candidates qualified for a vacancy, it shall submit to the General Assembly only the names and qualifications of those who are considered to be qualified, with a written explanation for submitting fewer than three names.

    (B) The nominations of the commission for any judgeship are binding on the General Assembly, and it shall not elect a person not nominated by the commission.  Nothing shall prevent the General Assembly from rejecting all persons nominated.  In this event, the commission shall submit another group of names and qualifications for that position.  Further nominations in the manner required by this chapter must be made until the office is filled.

    (C)(1) If the commission does not find the incumbent justice or judge qualified for the judicial office held and sought, his name shall not be submitted to the General Assembly for re-election and upon expiration of his then current term of office, he shall cease serving in that judicial position.

       (2) If the commission finds an incumbent judge not qualified for the office sought, or if an incumbent judge dies, withdraws, or becomes otherwise disqualified for the office sought between the time he makes application for the office and the date of the election therefor, the election for the office may not be held at that scheduled time, and the commission shall proceed in accordance with the provisions of this chapter to make other nominations for the office as though a new vacancy without an incumbent exists in that office, including reopening the application process with all required notices.  Nothing prevents the commission from including in its new nominations the names and qualifications of persons other than the incumbent judge it included in its previous nominations.

    (D) The commission shall accompany its nominations to the General Assembly with reports or recommendations as to the qualifications of particular candidates.

    (E) A period of at least two weekstwenty-two days must elapse between the date of the commission's nominations to the General Assembly and the date the General Assembly conducts the election for these judgeships.

 

SECTION 13. Section 2-19-90 of the S.C. Code is amended to read:

 

    Section 2-19-90. The General Assembly shall meet in joint session for the election of judges.  The date and time for the joint session shall be set by concurrent resolution upon the recommendation of the Judicial Merit Selection Commission.  The Chairman of the Judicial Merit Selection Commission shall announce the commission's nominees for each judicial race, and no further nominating or seconding speeches shall be allowed by members of the General Assembly.  In order to be elected, a candidate must receive a majority of the vote of the members in each chamber of the General Assembly voting in joint session.  The General Assembly must conduct a subsequent vote if no candidate receives the necessary majority. During the subsequent vote only the top two vote getting candidates may be considered by the General Assembly. No member of the General Assembly may vote or ask for a vote for a candidate or future person, if they are a family member as defined by Section 2-19-10(G)(2).

 

SECTION 14. Section 22-1-10(A) of the S.C. Code is amended to read:

 

    (A) The Governor, by and with the advice and consent of the Senate, may appoint magistrates in each county of the State for a term of four years and until their successors are appointed and qualified, or their positions are terminated as provided in subsection (B), Section 22-1-30, or Section 22-2-40. Recommendations for appointments shall be given to the governor by a weighted vote of the full legislative delegation for the county in which the appointee will serve.

    Magistrates serving the counties of Abbeville, Allendale, Bamberg, Beaufort, Calhoun, Cherokee, Chesterfield, Clarendon, Colleton, Dillon, Edgefield, Florence, Greenville, Hampton, Jasper, Lancaster, Lee, Marion, McCormick, Oconee, Pickens, Saluda, Sumter, and Williamsburg shall serve terms of four years commencing May 1, 1990.  Magistrates serving the counties of Aiken, Anderson, Barnwell, Berkeley, Charleston, Chester, Darlington, Dorchester, Fairfield, Georgetown, Greenwood, Horry, Kershaw, Laurens, Lexington, Marlboro, Newberry, Orangeburg, Richland, Spartanburg, Union, and York shall serve terms of four years commencing May 1, 1991.

    At least ninety days before the date of the commencement of the terms provided in the preceding paragraph and every four years thereafter, each county governing body must inform, in writing, the Senators representing that county of the number of full-time and part-time magistrate positions available in the county, the number of work hours required by each position, the compensation for each position, and the area of the county to which each position is assigned.  If the county governing body fails to inform, in writing, the Senators representing that county of the information as required in this section, then the compensation, hours, and location of the full-time and part-time magistrate positions available in the county remain as designated for the previous four years.

    Each magistrate's number of work hours, compensation, and work location must remain the same throughout the term of office, except for a change (1) specifically allowed by statute or (2) authorized by the county governing body at least four years after the magistrate's most recent appointment and after a material change in conditions has occurred which warrants the change.  Nothing provided in this section prohibits the raising of compensation or hours and compensation during a term of office.  No magistrate may be paid for work not performed except for bona fide illness or as otherwise provided by law.

    The number of magistrates to be appointed for each county and their territorial jurisdiction are as prescribed by law before March 2, 1897, for trial justices in the respective counties of the State, except as otherwise provided in this section.

 

SECTION 15. Upon enactment, all terms of current members of the Judicial Merit Selection Commission shall be terminated. No current member of the commission shall be eligible for reappointment under this act if they have previously served six or more years on the commission.  

 

SECTION 16. This act takes effect upon approval by the Governor.

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