Bill 2336

                    Current Status

Bill Number:               2336
Ratification Number:       159
Act Number                 89
Introducing Body:          House
Subject:                   Appeals court

(A89, R159, H2336)

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 TERMINATION DATE OF JUNE 30, 1985, FOR THE COURT OF APPEALS; TO FURTHER PROVIDE FOR 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 TERMS TO EXPIRE ON JUNE 30, 1985; AND TO PROVIDE A CERTAIN EXCEPTION THERETO; 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 FOR THE MANNER IN WHICH CASES SHALL BE REVIEWED EITHER BY THE SUPREME COURT OR BY THE COURT OF APPEALS; 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 MANNER IN WHICH BRIEFS, MOTIONS, AND OTHER MATERIALS SHALL BE FILED FOR THE PURPOSE OF DETERMINING ASSIGNMENT OF CASES; 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; TO AMEND SECTION 14-3-320, RELATING TO THE APPELLATE JURISDICTION OF THE SUPREME COURT, SO AS TO PROVIDE THAT IN CERTAIN CASES WHICH ARISE OUT OF THE FAMILY COURT, REVIEW BY THE SUPREME COURT OF THE FINDINGS OF FACT SHALL BE LIMITED TO A DETERMINATION OF WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE TO SUSTAIN SUCH FACTS.

Whereas, the General Assembly enacted at its 1979 Session Act 164 which under Part IV-A created a Court of Appeals for South Carolina. The creation of the Court as well as the constitutionality of certain provisions were subsequently challenged by the Attorney General in State ex rel Riley V. Martin, 274 SC 106, 262 SE2d 404 (1980). While the Court struck down several provisions relating to the power of the Court of Appeals to set additional terms of court, keep records of the Court in a manner prescribed by the judges thereof, and except candidates for the offices of the Court of Appeals from the general prohibition of Section 2-1-100 of the 1976 Code of Laws, it upheld the creation of the Court of Appeals and left the remaining provisions of the act in full force and effect. Efforts to further amend Act 164 of 1979 in the Bond Act of 1979 (Act 194) and the Appropriations Act of 1980 (Act 517) were struck down by the Court as violative of Article III, Section 17, in that they were not reasonably related to the subject of Act 194 and Act 517 in Maner V. Maner, Opinion No. 21801, filed October 20, 1982. Additionally, the Court in Maner determined that since four of the five judges elected by the General Assembly to serve on the Court of Appeals were ineligible as a result of the Martin decision and since the "offices of the judges of the Court of Appeals came into existence upon creation of the court on July 1, 1979, there were four vacancies on the existing Court of Appeals"; and

Whereas, the General Assembly through a joint Judiciary Subcommittee in reviewing the entire appellate judicial system in South Carolina now finds that rather than simply filling the vacancies a permanent solution to the problem requires a Court of Appeals with a constitutional base. However, recognizing the need for immediate relief to the existing appellate backlog, the General Assembly finds it necessary to amend provisions of the existing court as created by Act 164 of 1979 to provide for changes as recommended by the Joint Judiciary Subcommittee as well as a termination date to coincide with the consideration of the constitutional amendment creating a permanent court. In order to achieve these findings, the following amendments are offered. Now, therefore,

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. The terms of office of the judges of the Court shall begin on September 1, 1983, and shall expire on June 30, 1985, and on which date the Court shall cease to exist. Prior to the commencement of the terms of office, 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.

(d) Notwithstanding the above provisions of this Section which provide for the election of judges for the Court of Appeals by the General Assembly, nothing herein shall be construed as diminishing or enlarging the term of the judges elected to the Court of Appeals on August 16, 1979.

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 six months after the date of their election or within ten days after the date of the commencement of the operations of the Court, whichever comes first, 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 September 1, 1983, the determination of their seniority shall be based on their order of election, with the associate judge who is elected first being the associate judge senior in service.

(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.

(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). The minutes 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 materials 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."

Appellate jurisdiction of Supreme Court

SECTION 2. Section 14-3-320 of the 1976 Code is amended to read:

"Section 14-3-320. The Supreme Court shall have appellate jurisdiction only in cases of chancery, and in such appeals they shall review the findings of fact as well as the law, except in chancery cases when the facts are settled by a jury and the verdict not set aside; provided, that in cases which arise out of the Family Court, except those cases dealing with juvenile misconduct, review by the Supreme Court of the findings of fact of the Family Court shall be limited to a determination of whether or not there is substantial evidence to sustain such facts."

Time effective

SECTION 3. This act shall take effect upon approval by the Governor.