1983-1984 Bill 2330: Appeals Court - South Carolina Legislature Online

South Carolina General Assembly
105th Session, 1983-1984

Bill 2330

                    Current Status

Bill Number:               2330
Ratification Number:       160
Act Number                 152
Introducing Body:          House
Subject:                   Appeals Court

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(A152, R160, H2330)

A JOINT RESOLUTION PROPOSING AN AMENDMENT TO ARTICLE V OF THE CONSTITUTION OF SOUTH CAROLINA, 1895, RELATING TO THE JUDICIAL DEPARTMENT, SO AS TO PROVIDE FOR THE ESTABLISHMENT OF A COURT OF APPEALS WITH SUCH JURISDICTION AS THE GENERAL ASSEMBLY SHALL PRESCRIBE; TO PROVIDE FOR THE CREATION OF THE JUDICIAL COMMISSION AS THE SOLE AUTHORITY TO PROMULGATE RULES OF PRACTICE AND PROCEDURE FOR THE UNIFIED JUDICIAL SYSTEM AND FOR THE MEMBERSHIP THEREOF; TO PROVIDE THAT THE GENERAL ASSEMBLY MAY DESIGNATE BY GENERAL LAW CERTAIN CASES OF EQUITY EXCLUDING MATTERS OF JUVENILE MISCONDUCT THE APPEAL FROM WHICH SHALL BE ON MATTERS OF LAW ONLY; TO PROVIDE THAT THE COURT OF APPEALS SHALL CONSIST OF A CHIEF JUDGE AND AT LEAST FIVE ASSOCIATE JUDGES WITH THE NUMBER TO BE DETERMINED BY LAW; TO PROVIDE THAT THE CHIEF JUDGE SHALL PRESIDE AND IN HIS ABSENCE THE SENIOR ASSOCIATE JUDGE; TO PROVIDE THAT THE COURT OF APPEALS SHALL SIT IN PANELS AND, AS PROVIDED BY THE GENERAL ASSEMBLY, MAY SIT EN BANC; TO PROVIDE THAT THE MEMBERS OF THE COURT OF APPEALS SHALL BE ELECTED BY A JOINT PUBLIC VOTE OF THE GENERAL ASSEMBLY FOR A TERM OF SIX YEARS, EXCEPT IN THE FIRST ELECTION WHEN STAGGERED TERMS SHALL BE PROVIDED FOR; TO PROVIDE THAT IN ANY CONTESTED ELECTION FOR A POSITION ON THE COURT OF APPEALS, THE VOTE OF EACH MEMBER OF THE GENERAL ASSEMBLY PRESENT AND VOTING SHALL BE RECORDED; TO PROVIDE THAT THE JURISDICTION OF THE COURT OF APPEALS SHALL BE AS THE GENERAL ASSEMBLY SHALL PROVIDE; TO PROVIDE THAT THE COURT OF APPEALS SHALL BE BOUND BY THE DECISIONS OF THE SUPREME COURT; TO PROVIDE THAT THE JUDGES OF THE COURT OF APPEALS SHALL APPOINT A CLERK OF COURT FOR THE COURT OF APPEALS; TO PROVIDE THAT THE JUDGES OF THE COURT OF APPEALS SHALL RECEIVE COMPENSATION TO BE DETERMINED BY LAW; TO PROVIDE FOR THE FILLING OF VACANCIES ON THE COURT OF APPEALS BY ELECTION OR, IF THE UNEXPIRED TERM DOES NOT EXCEED ONE YEAR, BY APPOINTMENT OF THE GOVERNOR; TO PROVIDE THAT THE JUDGES OF THE COURT OF APPEALS SHALL HAVE THE SAME POWER TO ISSUE PREROGATIVE WRITS AT CHAMBERS AS WHEN IN OPEN COURT AND SUCH OTHER POWERS AT CHAMBERS AS THE GENERAL ASSEMBLY MAY PROVIDE; TO PROVIDE THAT THE DECISIONS OF THE COURT OF APPEALS SHALL BE PUBLISHED AS PROVIDED BY THE GENERAL ASSEMBLY; AND TO DELETE OBSOLETE LANGUAGE WHICH PERMITS EXISTING COURTS TO BE CONTINUED UNTIL ARTICLE V IS IMPLEMENTED.

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

Constitutional amendment - Court of Appeals established

SECTION 1. Article V of the Constitution of this State is amended to read:

"ARTICLE V

The Judicial Department

Section 1. The judicial power shall be vested in a unified judicial system, which shall include a Supreme Court, a Court of Appeals, a Circuit Court, and such other courts of uniform jurisdiction as may be provided for by general law.

Section 2. The Supreme Court shall consist of a Chief Justice and four Associate Justices, any three of whom shall constitute a quorum for the transaction of business. The Chief Justice shall preside, and in his absence the senior Associate Justice. In all cases decided by the Supreme Court, the concurrence of three of the Justices shall be necessary for a reversal of the judgment below.

Section 3. The members of the Supreme Court shall be elected by a joint public vote of the General Assembly for a term of ten years, and shall continue in office until their successors shall be elected and qualified, and shall be classified so that the term of one of them shall expire every two years. In any contested election, the vote of each member of the General Assembly present and voting shall be recorded.

Section 4. The Chief Justice of the Supreme Court shall be the administrative head of the unified judicial system. He shall appoint an administrator of the courts and such assistants as he deems necessary to aid in the administration of the courts of the State. The Chief Justice shall set the terms of any court and shall have the power to assign any judge to sit in any court within the unified judicial system. Provided, each county shall be entitled to four weeks of court each year and such terms therefor shall be provided for by the General Assembly. Provided, further, that the Chief Justice shall set a term of at least one week in any court of original jurisdiction in any county within sixty days after receipt by him of a resolution of the county bar requesting it. The Supreme Court shall make rules governing the administration of all the courts of the State. The Judicial Commission as established herein shall promulgate rules of practice and procedure for all courts within the unified judicial system. These rules shall not be inconsistent with the statutory law of the State. These rules of practice and procedure shall be promulgated only after due notice to the public, submission to the Supreme Court and the General Assembly, and opportunity for comment for at least sixty days, and shall become effective on May first next following promulgation.

The Judicial Commission shall consist of the following members: The Chief Justice of the Supreme Court, who shall serve as Chairman of the Commission; two members to be appointed by the Supreme Court, one of whom shall be a member of the Court of Appeals; two judges of the Circuit Court to be elected by the circuit court judges; one judge of a court with jurisdiction over domestic relations matters to be elected by the judges of such court; three members to be appointed by the Governor, two of whom shall be members of the South Carolina Bar who are not members of the General Assembly and who shall be appointed by the Governor upon the recommendation of the South Carolina Bar; the Chairman of the Senate Judiciary Committee and the Chairman of the House Judiciary Committee, or designees of the chairmen of these Judiciary Committees, which designees shall be voting members of the Commission. All appointed members of the Judicial Commission shall be members of the South Carolina Bar and

shall maintain this membership during their tenure on the Judicial Commission. The General Assembly by law shall provide for the terms of the members of the Judicial Commission and for other necessary matters relating to the functions of the Commission.

The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted.

Section 5. The Supreme Court shall have power to issue writs or orders of injunction, mandamus, quo warranto, prohibition, certiorari, habeas corpus, and other original and remedial writs. And the Court shall have appellate jurisdiction only in cases of equity, and in such appeals they shall review the findings of fact as well as the law, except in cases where the facts are settled by a jury and the verdict not set aside; provided, that the General Assembly may designate by general law certain cases of equity the appeal from which shall be on matters of law only, but such cases shall not include matters of juvenile misconduct. The Supreme Court shall constitute a Court for the correction of errors at law under such regulations as the General Assembly may prescribe.

Section 6. There shall be appointed by the Justices of the Supreme Court a Reporter and a Clerk of Court, whose terms and duties shall be prescribed by the Court.

Section 7. The Court of Appeals shall consist of a Chief Judge and no fewer than five Associate Judges, the appropriate number to be determined by law. The Chief Judge shall preside, and in his absence the senior Associate Judge. Subject to the supervision of the Chief Justice of the Supreme Court, the Chief Judge shall set the terms of the Court of Appeals. The structure and organization of the Court of Appeals shall be determined by the General Assembly. The Court of Appeals shall sit in panels. The General Assembly may by statute provide for the court to sit en banc.

Section 8. The members of the Court of Appeals shall be elected by a joint public vote of the General Assembly for a term of six years and shall continue in office until their successors shall be elected and qualify. In any contested election, the vote of each member of the General Assembly present and voting shall be recorded. Provided, that for the first election of members of the Court of Appeals, the General Assembly shall by law provide for staggered terms.

Section 9. The Court of Appeals shall have such jurisdiction as the General Assembly shall prescribe by general law. The decisions of the Supreme Court shall bind the Court of Appeals as precedents.

Section 10. There shall be appointed by the Judges of the Court of Appeals a clerk of court, whose term and duties shall be prescribed by the Court of Appeals and shall be subject to the general administrative authority and supervision of the Chief Justice.

Section 11. The Circuit Court shall be a general trial court with original jurisdiction in civil and criminal cases, except those cases in which exclusive jurisdiction shall be given to inferior courts, and shall have such appellate jurisdiction as provided by law.

Section 12. Jurisdiction in matters testamentary and of administration, in matters appertaining to minors and to persons mentally incompetent, shall be vested as the General Assembly may provide, consistent with the provisions of Section 1 of this Article.

Section 13. The General Assembly shall divide the State into judicial circuits of compact and contiguous territory. For each circuit a judge or judges shall be elected by a joint public vote of the General Assembly; provided, that in any contested election, the vote of each member of the General Assembly present and voting shall be recorded. He or they shall hold office for a term of six years, and at the time of his election he shall be an elector of a county of, and during his continuance in office he shall reside in, the circuit of which he is judge.

The General Assembly may by law provide for additional circuit judges, to be assigned by the Chief Justice. Such additional circuit judges shall be elected in the same manner and for the same term as provided in the preceding paragraph of this section for other circuit judges, except that residence in a particular county or circuit shall not be a qualification for office.

Section 14. Judges of the Circuit Court shall interchange circuits and all judges shall be systematically rotated throughout the State as directed by the Chief Justice.

Section 15. No person shall be eligible to the office of Chief Justice, Associate Justice of the Supreme Court, judge of the Court of Appeals, or judge of the Circuit Court who is not at the time of his election a citizen of the United States and of this State, and has not attained the age of twenty-six years, has not been a licensed attorney at law for at least five years, and has not been a resident of this State for five years next preceding his election.

Section 16. The Justices of the Supreme Court and the judges of the Court of Appeals and Circuit Court shall each receive compensation for their services to be fixed by law, which shall not be diminished during the term. They shall not, while in office, engage in the practice of law, hold office in a political party, or hold any other office or position of profit under the United States, the State, or its political subdivisions except in the militia, nor shall they be allowed any fees or perquisites of office. Any such Justice or judge who shall become a candidate for a popularly elected office shall thereby forfeit his judicial office.

Section 17. Within the unified court system, the Supreme Court shall have power, after hearing, to remove or retire any judge from office upon a finding of disability seriously interfering with the performance of his duties which is, or is likely to become, of a permanent character. A Justice shall not sit in any hearing involving his own removal or retirement. Implementation and enforcement of this section may be by rule or order of the Supreme Court.

Section 18. All vacancies in the Supreme Court, Court of Appeals, or Circuit Court shall be filled by elections as prescribed in Sections 3, 8, and 13 of this Article; provided, that if the unexpired term does not exceed one year such vacancy may be filled by the Governor. When a vacancy is filled by either appointment or election, the incumbent shall hold office only for the unexpired term of his predecessor.

Section 19. The General Assembly shall specify the grounds for disqualification of Justices and judges to sit on certain cases. The General Assembly shall also provide for the temporary appointment of men learned in the law to sit as special Justices and judges when the necessity for such appointment shall arise.

Section 20. Each of the Justices of the Supreme Court and judges of the Court of Appeals and Circuit Court and of all other courts of record shall have the same power at chambers to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and interlocutory writs or orders of injunction as when in open court. The judges of the Court of Appeals and Circuit Court and other courts of record shall have such additional powers at chambers as the General Assembly may provide, except in matters required to be determined in a public trial.

Section 21. Judges shall not charge juries in respect to matters of fact, but shall declare the law.

Section 22. The petit jury of the Circuit Court shall consist of twelve members and the number of jurors of other courts shall be determined by law. All jurors in any trial court must agree to a verdict in order to render the same. The grand jury of each county shall consist of eighteen members, twelve of whom must agree in a matter before it can be submitted to the Court. Each juror must be a qualified elector under the provision of this Constitution and of good moral character.

Section 23. It shall be the duty of the General Assembly to pass laws for the change of venue in all cases, civil and criminal, upon proper showing, supported by affidavit, that a fair and impartial trial cannot be had in the county where such action or prosecution was commenced. The State shall have the same right to move for a change of venue that a defendant has for such offenses as the General Assembly may prescribe.

Section 24. There shall be elected in each county by the electors thereof a clerk of the circuit court, a sheriff and a coroner; and in each judicial circuit a solicitor shall be elected by the electors thereof. All of these officers shall serve for terms of four years and until their successors are elected and qualify. The General Assembly shall provide by law for their duties and compensation.

The General Assembly may also provide by law for the selection, duties, and compensation of other appropriate officials to enforce the criminal laws of the State, to prosecute persons under such laws and to carry on the administrative functions of the courts of the State.

The Attorney General shall be the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases in courts of record.

Section 25. The General Assembly shall provide for the publication of the decisions of the Supreme Court and the Court of Appeals.

Section 26. The Governor, by and with the advice and consent of the Senate, shall appoint a number of magistrates for each county as provided by law. The General Assembly shall provide for their terms of office and their civil and criminal jurisdiction. The terms of office need not be uniform throughout the State but shall be uniform within each county."

Proposed amendments submitted to qualified electors

SECTION 2. The proposed amendments shall be submitted to the qualified electors at the next general election for representatives. Ballots shall be provided at the various voting precincts with the following words printed or written thereon:

"Shall Article V of the Constitution of this State be amended so as to provide for the establishment of a Court of Appeals to be composed of a Chief Judge and at least five associate judges, to provide that the General Assembly shall prescribe the jurisdiction of the Court of Appeals, to provide that the Chief Judge shall preside over the Court of Appeals and in his absence the senior associate judge shall preside, to provide that the Court of Appeals shall sit in panels and may sit en banc, to provide that the members of the Court of Appeals shall be elected by the General Assembly for six-year terms except at the first election when terms shall be staggered, to provide that votes shall be recorded in a contested election for a position on the Court of Appeals, to provide that the Court of Appeals shall be bound by the decisions of the Supreme Court, to provide for a clerk of court for the Court of Appeals; to provide that the judges of the Court of Appeals shall receive such compensation as the General Assembly shall provide, to provide for the filling of vacancies on the Court of Appeals, to provide that the judges of the Court of Appeals shall have the power to issue writs at chambers or in open court, to provide for the publication of decisions of the Court of Appeals, and to delete obsolete language which permits existing courts to be continued until Article V is implemented?

Yes / /

No / /

Those voting in favor of the question shall deposit a ballot with a check or cross mark in the square after the word 'Yes' and those voting against the question shall deposit a ballot with a check or cross mark in the square after the word 'No'."

"Shall Article V of the Constitution of this State be amended so as to provide for the creation and composition of the Judicial Commission which shall be the sole authority to promulgate rules of practice and procedure for the unified judicial system?

Yes / /

No / /

"Shall Article V of the Constitution of this State be amended so as to provide that the General Assembly may designate that appeals from certain cases of equity excluding matters of juvenile misconduct shall be on matters of law only?

Yes / /

No / /