Judiciary

Susan O. McNamee
Staff Counsel

Erin C. Burt
Assistant Staff Counsel

Ruth W. Tidwell
Executive Secretary

Signed June 12, 1995.

Signed June 12, 1995.

Signed June 7, 1995.

While H. 3096 includes a number of provisions, perhaps the two most significant features of this act are the following:

(1) Minimum Incarceration Periods: The act prohibits a prisoner who commits a newly-designated "no parole offense" (Class A, B, or C felonies and crimes exempt from classification under Code Section 16-1-10[d] punishable by maximum imprisonment of 20 years or more) on or after January 1, 1996 from being eligible for work release until he has served at least 80 percent of the actual term of imprisonment imposed; furthermore, a prisoner convicted of that offense is ineligible for early re lease, discharge or community supervision until he has served at least 85 percent of the actual term of imprisonment imposed. These percentages must be calculated without application of earned work credits, education credits and good time credits, with the percentages to be applied to the actual term of imprisonment, not to include the portion of the sentence which has been suspended. Furthermore, a person convicted of a "no parole offense" must also complete a community supervision program (las ting a maximum of 2 years) designed to help the offender in his transition back into society.

(2) Life without Parole for a Second or Third Conviction of Certain Crimes: Under H. 3096, a person convicted of a newly-designated "most serious offense" (mainly violent crimes) must be sentenced to life imprisonment without parole (except in limited circumstances) if he has at least 1 prior conviction for (a) a most serious offense; (b) a federal or out-of-state conviction for an offense that would be classified as a most serious offense; or (c) any combination of (a) and (b). If conv icted of a newly-designated "serious offense" (e.g., drug trafficking, certain "white collar" crimes, etc.), the person must be sentenced to life without (again, except in limited circumstances) chance for parole if he has at least 2 prior convictions for offenses classified as "most serious"; "serious"; any federal or state offense that would be classified as most serious or serious, or any combination of these. Persons sentenced to life imprisonment under these pr ovisions may be paroled for reasons of age and health.

H. 3096 also contains a number of other provisions. The act allows the Parole Board to grant parole to a person convicted of a violent offense which is not classified as a no parole offense by a two-thirds majority of the full board, while the board may grant parole to an offender convicted of an offense which is neither a violent crime nor a no parole offense upon a unanimous vote of a 3-member panel or a majority vote of the full board. The act contains several provisions concerning custody of juveniles ; as examples, any juvenile not paroled or released by his 19th birthday must be transferred to the custody and authority of the Department of Corrections at age 19, and juvenile status offenders may be committed to custody of a correctional institution operated by DJJ or to secure evaluation centers operated by DJJ for a determinate period not exceeding 90 days. H. 3096 also prohibits expungement of convictions for criminal domestic violence cases; revises and clarifies jurisdiction of magistrates (for e xample, clarifying that magistrates may not sentence persons to consecutive terms of imprisonment totalling more than 90 days except in fraudulent check cases or certain shoplifting cases); allows a person sentenced to death for a capital crime to choose lethal injection as an alternative to electrocution for the execution (also included in H.3703); sets forth the following sentencing options for murder---death penalty, life imprisonment without chance of parole, or a mandatory minimum sentence of 30 year s; and mandates arrests in domestic violence cases when physical manifestations of injury to the alleged victim are present. Finally, this act establishes a 7-member committee, consisting of the Attorney General and 6 legislative appointments, to study mandatory minimum sentences and alternative sentences for non-violent offenders, along with anti-recidivism methods for first time non-violent offenders.

Signed June 7, 1995.

Signed April 4, 1995.

Signed June 12, 1995.

Became law without signature of the Governor on April 27, 1995.

Signed June 7, 1995

Other major changes to the law include a provision that allows a sentencing judge to require the person convicted of stalking to undergo a mental health evaluation and to require treatment, if necessary. Further, this act provides a means by which a victim of harassment or stalking may obtain a restraining order through the magistrate's court

Signed June 12, 1995.

Signed June 12, 1995.

Signed May 17, 1995.

This act, H. 3613, contains many of the Task Force's recommendations but also mandates a serious overhaul of the current welfare system. It establishes a limit on AFDC benefits of 24 out of 120 months (along with a 60-month lifetime limit) but with provisions to extend benefits longer under limited circumstances; it provides a tax credit for an employer who hires a person recently on AFDC; it requires job training and provides assistance with job searches for AFDC recipients; it requires family skills tr aining and a family planning assessment; it precludes the receipt of additional AFDC benefits for a child born 10 or more months after a family begins to receive AFDC; and it requires minor mothers to live with her parents or guardians in order to receive AFDC.

In addition, the Family Independence Act authorizes family court judges to order noncustodial parents of AFDC children to participate in DSS job training programs; it requires grandparents of an AFDC child to support the child if the child's parents are under 18; amends the child support enforcement provisions of DSS by authorizing the revocation of driver's and recreational licenses of non-custodial parents two months in arrearage; establishes administrative procedures for paternity and child support det ermination; and amends the child support guidelines statutes by stating that the guideline amounts create a rebuttable presumption that the amount of support under the guidelines is the correct amount. Findings that rebut the guidelines must state the amount of support which would have been required under the guidelines and must include a justification of why the order varies from that amount. Reasons for deviation include 13 different reasons such as: families of over 6 children, substantial disparity of income in which the non-custodial parent's income is significantly less than the custodial parent's income, consumer debt, equitable distribution of property, child or parent extraordinary unreimbursed medical expenses, and support obligations for other dependents living with the noncustodial parent.

Signed June 12, 1995.

Signed June 7, 1995.

Signed June 7, 1995.

Signed June 8, 1995.

Became law without signature of the Governor on June 13, 1995.

Became law without the Governor's signature on May 18, 1995.

Signed June 12, 1995.

This act increases this jurisdiction so that a magistrate may impose both a fine not exceeding $500 and a term of imprisonment not exceeding 30 days. The act also permits a magistrate to sentence a person to consecutive terms of imprisonment totalling more than 90 days in fraudulent check cases, and in certain shoplifting cases. In these cases, the magistrate must specify an amount of restitution to be paid as an alternative to any imprisonment over 90 days. In a related area, the act also increases the service charge payable to the payee of a fraudulent check from $20 to $25.

This act also includes a provision requiring the completion of a treatment program for domestic violence offenders as a condition of a suspended sentence or probation. Previously, the law only required participation in such a program. A section of the act extends the length of protective orders to a minimum of one year unless the parties have reconciled as evidenced by an order of dismissal and may be extended or terminated by the court upon motion of either party.

S. 101 also increases the penalties for passing or overtaking a stopped school bus and makes this crime a felony if death or great bodily injury results. Under previous law, the penalty for this offense was a fine of between $100 and $200 or imprisonment not exceeding 30 days; however, with adoption of S. 101, the new penalties for this offense are as follows:

(a) First Offense: Misdemeanor, punishable by fine of not less than $500 or imprisonment not exceeding 30 days; however, in lieu of imprisonment, the court may require the individual to complete a term of community service lasting at least 10 days;

(b) Second or Subsequent Offense: Misdemeanor, punishable by fine of between $2,000 and $5,000 or imprisonment of between 30 and 60 days;

(c) Commission of This Offense When Resulting in Great Bodily Injury or Death to a Pedestrian: Felony, with punishment dependent on whether the pedestrian suffers great bodily injury or death. If the pedestrian suffers great bodily injury, the offender must be fined at least $5,000 but not more than $10,000 and imprisoned at least 60 days but not longer than 1 year. If, however, the pedestrian dies, then the offender must be fined between $10,000 and $25,000 and imprisoned at least 1 year but not more than 5 years. For purposes of this offense, "great bodily injury" is defined as bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. Additionally, the driver's license of a person convicted of passing or overtaking a school bus must be suspended for the term of imprisonment plus 1 year.

Signed June 12, 1995.

Signed April 10, 1995.

This act also makes changes to current practices of probate judges. Probate judges are required to enter into $100,000 bond before assuming the duties of a probate judge. (In the past, the law required $15,000). Furthermore, the act states that a probate judge cannot serve as a personal representative for an estate of any person within his jurisdiction, except as provided for in §(A)(estates of a value of less than $10,000). Finally, the act provides that a probate judge or an employee of the probate court shall not serve as the conservator of an estate, unless it is an estate of a family member.

Signed April 4, 1995.

This act allows a county governing body, by ordinance, to suspend the Blue Laws within that particular county, but if the governing body refuses to suspend the Blue Laws, then the question of continuance of these laws must be placed on the ballot in the November 1996 general election. The results will be determined on a "local option basis," so that it is up to the individual county to determine if the Blue Laws are continued. If the result of the referendum is against the observance of the Bl ue Laws, then the Sunday work restrictions would not apply within that particular county once the results are certified to the Secretary of State. Counties which qualified for the Blue Laws exemption after May 8, 1985 because of their accommodation tax collections also must hold a referendum next year. The act continues current provisions which protect workers and franchisors who conscientiously object to Sunday work as well as provisions protecting from discrimination persons whose regular day of worshi p is Saturday.

This act also provides that once a county meets the $900,000 threshold in accommodations taxes in a fiscal year, then the county's exemption from the Blue Laws continues from year to year, regardless of subsequent collection totals.

Became law without signature of Governor on June 13, 1995.

A person who violates this section and, while driving, performs an unlawful act or neglects a duty imposed by law must be punished as follows: (1) if great bodily injury results - felony punishable by imprisonment not exceeding 10 years; (2) if death results - felony punishable by imprisonment not exceeding 25 years. Additionally, the license of the driver convicted of this offense in cases where great bodily injury or death results must be suspended for a period to include any term of imprisonment, sus pended sentence, parole or probation, plus 3 years.

Signed June 12, 1995.

H.3281 is a joint resolution amending the State Constitution to establish term limits for state legislators and state constitutional officers (secretary of state, attorney general, treasurer, comptroller general, superintendent of education, commissioner of agriculture, and adjutant general). This proposal establishes a lifetime limit of 12 years for any one legislative office or constitutional office. The limit is retroactive to the 1994 elections for House members and state constitutional officers and would first apply to Senators elected in the 1996 elections. Since H.3281 is a constitutional amendment, it requires [1] a two-thirds vote of the elected members of each chamber of the General Assembly (83 affirmative votes in the House and 31 in the Senate), [2] approval by South Carolina's citizens in a referendum, and [3] ratification by approval of the next General Assembly.

Twenty states now limit the terms of state legislators. These limits range from six years' total in Michigan and California, for example, to twelve years in Utah. In most states, term limits legislation has been the result of voter initiatives; only in Utah was term limits passed through the legislature. Efforts of the states to limit congressional terms were thwarted by the U.S. Supreme Court decision in April, when the Court declared unconstitutional an Arkansas law limiting congressional terms. The highest court found that the state did not have the authority to regulate the tenure of federal lawmakers.

Status: Pending in the Senate Judiciary Committee.

The permit may be revoked if the person becomes a person prohibited under state law from possessing a weapon, moves his permanent residence to another state, or voluntary surrenders the permit. The permit i.d. card must be carried whenever a concealed weapon is carried. Possession of a permit does not authorize the permit holder to carry a concealed weapon into certain places (such as courthouses and premises licensed for the consumption of alcoholic beverages). This bill further makes it unlawful for a person to use a firearm while under the influence of alcohol or a controlled substance.

Status: Pending in the Senate Judiciary Committee.

This joint resolution amends the State Constitution to permit the implementation of a state lottery. The joint resolution was the subject of a public hearing by the Constitutional Laws Subcommittee in April. In May, the House recalled the joint resolution from the Judiciary Committee, and late that month the House debated and amended H.3772 to require the net proceeds remaining after lottery operational costs and awarding of prizes to be spent on property tax relief and assisting the elderly in pur chasing prescription medication. While the resolution received second reading by a majority vote (64 to 43), it did not receive the requisite two-thirds vote (83 votes in the House) necessary for approval of constitutional amendments. The third reading of the joint resolution has been delayed until the 1996 session.

Status: Pending on the House Third Reading Statewide Contested Calendar.

Under the provisions of this bill, an owner of real property would be entitled to compensation when a state or local law or regulation substantially diminishes the use or the value of the property. In all cases in which it appears likely that adoption or enforcement of a regulation may give rise to a right of compensation to the landowner (whether by constitutional, statutory or common law) then the proposed regulation must be treated as a proposed 'taking' of the property with the governmental entity the n proceeding to condemn the interest in real property through the state's Eminent Domain Act. The bill also requires government entities, as much as is reasonably possible, to avoid adopting or enforcing regulations in a manner that constitutes a taking of property, requiring a payment of just compensation.

This bill is being studied in the Constitutional Laws Subcommittee of the House Judiciary Committee. Public hearings will be held on H. 3790 before the 1996 session.

Status: Pending in the House Judiciary Committee.

H.3962 is a proposed constitutional amendment which requires the General Assembly to establish a Judicial Merit Selection Panel, the purpose of which is to consider the qualifications and fitness of candidates for judicial positions on courts of this State which are filled by election of the General Assembly. Under H.3962, no person may be elected to these judicial positions unless found qualified by the commission; furthermore, sitting legislators seeking judicial office must first resign their position before the panel may consider the person's qualifications. This proposal also increases the age and legal experience requirements for serving on the Supreme Court, Court of Appeals, and Circuit Court, with the new age requirement being 32 (as currently opposed to 26) and the years of legal experience increasing from 5 to 10.

H.3961 serves as the implementing statutory language for H.3962, the constitutional amendment establishing the Judicial Merit Selection Panel. Under H. 3961, an 11-member Judicial Merit Selection Commission is established, with the commission required to assist legislators in selecting qualified justices and judges for vacancies in the Administrative Law Judge Division, Family Court, Circuit Court, Court of Appeals, and Supreme Court. Of the 11 commission members, 4 are appointed by the Speaker of the House, 4 are appointed by the Senate President Pro Tempore, and 3 are appointed by the Governor. After reviewing qualifications of candidates, the commission must submit to the General Assembly the names of 3 candidates whom the commission considers best qualified for the judicial office under consideration. The General Assembly may not elect a person to a judgeship who has not been nominated by the commission, but may reject all the commission's nominees, in which case the commission must submit fu rther nominations. H.3961 contains restrictions on pledging (i.e., prohibiting judicial candidates from seeking pledges from legislators or legislators offering pledges until the commission submits a list of nominees to the General Assembly). The bill also increases from 26 to 32 and from 5 to 10 years the minimum age/legal experience required to serve on the Family Court.

Status: Both H.3961 and H.3962 are pending in the Senate Judiciary Committee.

This Judiciary Committee bill {formerly H.3744, introduced by Rep. Shissias) adds § to the Code which provides that a person who collects and anonymously submits a sample of his or her body fluid or tissue for HIV testing is not required to report a positive test result, and the test results are confidential. This section does require the person or lab performing the test on an anonymous sample to report a positive HIV infection test result to DHEC, but the report must not contain any info rmation identifying the subject of the report. The bill was amended on the floor of the House to require an individual to inform any health care professional who would be performing an invasive procedure the patient's HIV status. Another House amendment to the bill requires a person who is applying for a marriage license to present to the probate judge a certificate signed by a doctor certifying that the person has taken, within the last 30 days, a standard test for sexually transmitted diseases, includ ing HIV. This certificate would provide the results of the test and must be signed by the individuals who are to marry.

Status: Pending in the Senate Medical Affairs Committee.