Bill 2335

                    Current Status

Bill Number:               2335
Ratification Number:       161
Act Number                 90
Introducing Body:          House
Subject:                   Appeals court

(A90, R161, H2335)

AN ACT TO AMEND CHAPTER 8 OF TITLE 14, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE COURT OF APPEALS, SO AS TO PROVIDE FOR A PERMANENT COURT OF APPEALS WITH APPELLATE JURISDICTION OF QUESTIONS OF LAW AND EQUITY ARISING IN THE CIRCUIT COURT AND THE FAMILY COURT EXCEPT IN FIVE CLASSES OF CASES; TO PROVIDE THAT THE COURT OF APPEALS SHALL CONSIST OF A CHIEF JUDGE

AND FIVE ASSOCIATE JUDGES; 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 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; 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 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 EXECUTIVE APPOINTMENT; TO PROVIDE THAT THE JUDGES OF THE COURT OF APPEALS SHALL HAVE THE SAME POWER TO ISSUE PREROGATIVE WRITS AT CHAMBERS AS IN OPEN COURT; TO PROVIDE THAT IN CERTAIN FAMILY COURT CASES THE CONCURRENCE IN THE FACTS BY THE FAMILY COURT JUDGE AND A PANEL OF THE COURT OR THE COURT SITTING EN BANC SHALL BE DETERMINATIVE OF THE FACTS OF THE CASE THROUGHOUT THE REMAINDER OF THE CASE; TO PROVIDE FOR THE MANNER IN WHICH CASES SHALL BE REVIEWED EITHER BY THE SUPREME COURT OR THE COURT OF APPEALS; TO PROVIDE FOR THE MANNER IN WHICH BRIEFS, MOTIONS, AND OTHER MATERIALS SHALL BE FILED FOR THE PURPOSE OF DETERMINING THE ASSIGNMENT OF CASES; TO PROVIDE THAT EACH SEAT ON THE COURT OF APPEALS SHALL BE NUMBERED AND CANDIDATES SHALL BE REQUIRED TO FILE FOR A SPECIFIC SEAT; TO PROVIDE THE CONDITIONS UNDER WHICH CASES MAY BE CERTIFIED TO THE SUPREME COURT BY THE COURT OF APPEALS; TO PROVIDE FOR THE PUBLICATION OF THE DECISIONS OF THE COURT OF APPEALS; TO PROVIDE FOR CERTAIN OTHER PROCEDURAL AND ADMINISTRATIVE MATTERS OF THE COURT OF APPEALS; AND TO PROVIDE THAT THIS ACT SHALL TAKE EFFECT ON JULY 1, 1985, IF THE CONSTITUTION OF THIS STATE HAS BEEN AMENDED PRIOR TO SUCH DATE SO AS TO ESTABLISH A COURT OF APPEALS.

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

Court of Appeals

SECTION 1. Chapter 8 of Title 14 of the 1976 Code is amended to read:

"CHAPTER 8

COURT OF APPEALS

ARTICLE 1

COMPOSITION, ORGANIZATION AND EMPLOYEES

Section 14-8-10. There is hereby created the Court of Appeals (the Court), which shall be a part of the unified judicial system. The Court shall consist of a Chief Judge and five associate judges.

Section 14-8-20. (a) The members of the Court shall be elected by joint public vote of the General Assembly for a term of six years and until their successors are elected and qualify; provided, however, that of those judges initially elected, the Chief Judge (Seat 5) and the judge elected to Seat 6 shall be elected for terms of six years each, the judges elected to Seats 3 and 4 shall be elected for terms of four years each, and the judges elected to Seats 1 and 2 shall be elected for terms of two years each. The terms of office of the judges of the Court shall begin on July 1, 1985. Prior to such date, the General Assembly shall have authority to take such measures as necessary to secure accommodations, personnel, supplies, and equipment and such other matters as may be necessary to effect full implementation of the Court for operation by such date.

(b) Each seat on the Court shall be numbered. Candidates shall be required to file for a specific seat. Seat five shall be designated as the office of Chief Judge and shall be a separate and distinct office for the purpose of an election.

(c) In any contested election, the vote of each member of the General Assembly present and voting shall be recorded; provided, that the provisions of Chapter 19 of Title 2 shall be followed in the course of electing the members of the Court.

Section 14-8-30. No person shall be eligible for the office of Chief Judge or associate judge of the Court who does not at the time of his election or appointment meet the qualifications for justices and judges as set forth in Article V of the Constitution of this State.

Section 14-8-40. The judges of the Court shall qualify within twelve months after the date of their election by taking the constitutional oath or the office shall be declared vacant by the Governor. The oath shall be administered by a justice of the Supreme Court, a judge of the Court of Appeals, or by a circuit court judge.

Section 14-8-50. The Chief Judge and the associate judges shall receive such annual salary as may be provided by the General Assembly. They shall not be allowed any fees or perquisites of office, nor shall they hold any other office of honor, trust or profit.

Section 14-8-60. All vacancies in the Court shall be filled in the manner of original election; provided, that if the unexpired term does not exceed one year such vacancy may be filled by executive appointment. When a vacancy is filled, the judge selected shall hold office only for the unexpired term of his predecessor.

Section 14-8-70. In addition to the prohibitions of Section 14-1-130, no judge shall sit in any case in which he may be interested or in which he may have been counsel or has presided in any inferior court.

Section 14-8-80. (a) The Court shall sit in two panels of three judges each. However, nothing herein shall be construed to prevent the Court from sitting as a whole.

(b) The Chief Judge shall be responsible for the administration of the Court, subject to the provisions of Article V, Section 4 of the Constitution of this State. The Chief Judge shall assign the members of the panels and shall systematically rotate and interchange the members of the panels in accordance with rules promulgated by the Supreme Court. The Chief Judge shall preside over the panel of which he is a member and in his absence the judge senior in service and present shall preside. The judge senior in service and present on the other panel shall preside over the other panel. For the five associate judges whose terms begin on July 1, 1985, the determination of their length of service shall be based on their order of election, with the associate judge who is elected first being the associate judge senior in service; provided, however, that seniority among the judges on an interim Court of Appeals shall continue on the permanent Court of Appeals established by the provisions of this chapter and service on that Court shall be included in determining the length of service on the Court herein established.

(c) Cases shall be distributed between the two panels by the Chief Judge in accordance with rules promulgated by the Supreme Court; provided, that the Chief Judge may transfer cases from one panel to the other in order to maintain approximately equal caseloads for the two panels.

(d) On a panel, three judges shall constitute a quorum, and the concurrence of a majority of the judges shall be necessary for the reversal of the judgment below.

Section 14-8-90. The Court may sit en banc to hear cases that have not been heard by a panel:

(a) upon petition by a party filed in accordance with rules promulgated by the Supreme Court if the petition is granted by four judges of the Court; or

(b) upon its own motion agreed to by four judges of the Court.

When the Court shall sit en banc, four of the judges shall constitute a quorum and a concurrence of four of the judges shall be necessary for a reversal of the judgment below. The Chief Judge shall preside, and in his absence the judge senior in service and present shall preside.

Section 14-8-100. The Supreme Court reporter shall report the opinions and decisions of the Court of Appeals in all respects as he is now or hereafter may be required by law to report the decisions and opinions of the Supreme Court. An assistant reporter for the Court of Appeals may be appointed by the judges of such Court to aid the reporter in his duties.

Section 14-8-110. The Clerk of the Supreme Court, in a manner prescribed by the Supreme Court, shall be responsible for the custody and keeping of the record of the court. A clerk of the Court of Appeals shall be appointed by the judges of the Court to aid the clerk of the Supreme Court in the performance of these duties.

Section 14-8-120. Editing, publishing and distributing of the opinions and decisions of the Court shall be done in accordance with the procedures followed by the Supreme Court with respect to the editing, publishing and distributing of its opinions and decisions.

Section 14-8-130. The Court of Appeals may require the sheriff of each county to whom any order or process issuing from such court may be directed to serve and execute such order or process and shall have the same power to enforce such service and execution and punish default thereon as is vested in circuit courts on processes issuing therefrom.

ARTICLE III

JURISDICTION, DUTIES AND PROCEDURE

Section 14-8-200. (a) The jurisdiction of the Court shall be appellate only and shall extend, except as provided in subsection (b) of this section, to all questions of law and equity arising in the course of proceedings of the Circuit Court and the Family Court, and such jurisdiction shall be subject to the provisions of Section 14-8-260. In cases which arise out of the Family Court, except those dealing with juvenile misconduct, a concurrence in the facts by the family court judge and a panel of the Court or by the Court sitting en banc shall be determinative of the facts of the case throughout the remainder of the case.

(b) Jurisdiction of the Court shall not extend to the following class of cases, the appeal from which shall lie of right directly to the Supreme Court:

(1) any final judgment from the Circuit Court which involves a sentence under Article I, Chapter 3 of Title 16;

(2) any final judgment from the Circuit Court setting public utility rates pursuant to Title 58;

(3) any final judgment involving a challenge on state or federal grounds, to the constitutionality of a state law or county or municipal ordinance where the principal issue is one of the constitutionality of the law or ordinance; provided, however, in any case where the Supreme Court finds that the constitutional question raised is not a significant one, the Supreme Court may refer the case to the Court for final judgment;

(4) any final judgment from the Circuit Court involving the authorization, issuance or proposed issuance of general obligation debt, revenue, institutional, industrial or hospital bonds of the State, its agencies, political subdivisions, public service districts, counties and municipalities or any other indebtedness now or hereafter authorized by Article X of the Constitution of this State;

(5) any final judgment from the Circuit Court pertaining to elections and election procedure.

Section 14-8-210. (a) The decisions of a panel of the Court and of the Court sitting en banc shall be final and not subject to further appeal, except by petition for review or by other exercise of discretionary review by the Supreme Court.

(b) In any case in which an appeal has been assigned to the Court of Appeals, the Supreme Court may in its discretion, on motion of any party to the case, on certification by the Court of Appeals, or on its own motion, certify the case for review by the Supreme Court before it has been determined by the Court of Appeals. The effect of such certification shall be to transfer jurisdiction over the case to the Supreme Court for all purposes.

(c) The Court may certify to the Supreme Court any case appealed to the Court if it finds that the appealed case involves an issue of significant public interest or a legal principle of major importance. Certification to the Supreme Court shall be by a concurrence of at least four members of the Court.

Section 14-8-220. The Court and each of the judges thereof shall have the same power at chambers or in open court to administer oaths, and to issue such remedial writs as are necessary to give effect to its jurisdiction. An appeal shall be allowed from decision of any one judge to a panel of the Court.

Section 14-8-230. The Supreme Court shall promulgate rules governing the administration of the Court.

Section 14-8-240. The Court shall be a court of record, and the records thereof shall at all times be subject to public inspection. Section 14-8-250. In every decision rendered by the Court, every point distinctly stated in the case which is necessary to the decision of the appeal and fairly arising upon the record of the Court, shall be stated in writing and shall, with the reason for the Court's decision, be preserved in the record of the case.

Section 14-8-260. In all cases within the jurisdiction of the Court as provided in this chapter notice of intent to appeal shall be given to the Supreme Court. Cases, including those filed before the creation of the Court, shall be either transferred to the Court of Appeals or retained by the Supreme Court. In determining which cases shall be assigned to the Court of Appeals, it shall require a concurrence of four justices to retain in the Supreme Court a case not otherwise retained pursuant to Section 14-8-200(b). Both the minutes and the printed official reports shall show how many and which justices concurred in each assignment and which, if any, dissented therefrom. The Supreme Court may in its discretion provide by rule for the filing of motions, briefs, or any other materials for the purpose of its determination of assignment, provided that all such material shall be transferred to the Court of Appeals wherever applicable to the proceedings in the Court of Appeals.

ARTICLE V

TERMS, ORDER AND PLACE OF HEARINGS

Section 14-8-400. Subject to the supervision of the Chief Justice of the Supreme Court, the Chief Judge shall set the terms of court of the Court of Appeals, and the Supreme Court shall by rule prescribe and provide the order in which cases shall be docketed and heard.

Section 14-8-410. The Court shall sit and maintain its principal offices in the City of Columbia; however, any hearing panel of the Court may hold court in any county in South Carolina for the purpose of hearing oral arguments and motions pending in cases before such court."

Time effective

SECTION 2. This act shall take effect on July 1, 1985, if Article V of the Constitution of this State has been amended prior to such date so as to establish a Court of Appeals. If Article V of the Constitution has not been so amended, the provisions of this act shall be null and void.

Approved the 7th day of June, 1983.