Journal of the House of Representatives
of the Second Session of the 110th General Assembly
of the State of South Carolina
being the Regular Session Beginning Tuesday, January 11, 1994

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| Printed Page 140, Jan. 13 | Printed Page 160, Jan. 13 |
Printed Page 150 . . . . . Thursday, January 13, 1994
ten to twenty percent of the cases where, you know, there's another attorney, just find him and say we need to go talk to the judge. It's as simple as that.

As a judge in civil court, I would be a advocate of that same principle, just use it as far as the conferences go on the telephone. That's about it.
Q. As a member of the Bar now, what is your expectation of a member of the judiciary in terms of recusal? What do you think is a correct statement and why for when a judge should recuse himself?
A. Well, obviously, where there is a conflict of it delineated by the Code of Judicial Conduct. That's a given. As far as a judge goes, if something clicks in you where it just might even have the appearance of impropriety, you would -- I would contact the other attorney.

You had talked about sailing clubs. And I play golf on the weekends. If I played golf with an attorney and it turned out I was -- they had a case before me the following week, well, I would call the attorney who was representing and say, you know, I didn't know he was going to be -- if I knew he was going to be front of me the next week, I wouldn't play golf with him. It's that simple. Or I didn't know and it came up, then I'd call the attorney and explain it to him, explain the situation and just ask them what they want. If he says I don't feel comfortable with that, I want you to recuse yourself, I would consider it.
Q. I might have misheard Judge Keesley earlier, but it seemed like he had adopted a rule that he was more often not the one actually doing the recusing, but rather than being requested, he recused himself. There seems to at least be some value in terms of it takes the burden off of litigating attorneys. What's your sense of that?
A. I think that's a good idea. The point that he brought up I think subsequent to that was, you know, no attorney likes to say, "Hey, Judge, why don't you recuse yourself?" and then have the judge not do it because then -- even though the judge will probably from that point on forward make more mistakes in favor of the attorney who makes that motion. It's just an over avoiding appearance of impropriety.

It's been my experience for the most part, attorneys are afraid to do that, wouldn't want to do that, so I think Judge Keesley's method is the preferred one.
Q. You noted to the Senate Ethics Committee that you had expended $755 in campaigning for this race so far and I jumped immediately to the total and didn't look at the above and when I go back up, you note that you had spent $25 for phone calls and $10 for postage and $720 in annual leave?
A. That's correct.

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Q. So I take it the annual leave is actually not an expenditure on your part, but out of an abundance of caution you're listing it just to make sure? I would note that you followed the letter, but since you -- by your own standard have exceeded the $100 limitation, have you filed a copy with the House Ethics Committee?
A. No, sir, I have not. And I --
Q. I would suggest that you would to comply. I'm not sure you need to, but since you defined your own standard, it might be well to give both Committees a copy of the letter and complete the forms.
A. Okay. The rule -- you're right by calling it an abundance of caution. It wasn't any out of pocket -- it's not anything I've actually spent, but my wife will tell you it's vacation time for next year that I'm spending.
Q. Go on to the issue of temperament and one thing the Committee has cautioned me throughout this process is always make sure that it's fair to the person appearing here that he's not responding to something that he has no ability to cross-examine the person that accused him, but in this case, I bring up the issue because it was a fairly consistent concern.

Once again it was not a criticism in the sense that it was disqualifying on your part, but it was concern that perhaps you had a temper and that sometimes that temper tended to keep you from seeing both sides of the issue. And that when you lost your temper, you tended to proceed to the farthest corner of an issue and lock in there.

Realizing what I've laid out, there is nobody here for you to say who did it or whatever, I don't know either. Tell me is that right or wrong. I mean how are you going to handle that if it is right once you're on the bench? What do you intend to do about it?
A. I would be disturbed that I had ever been perceived as someone who refused to see both sides of the issue. That would disturb me.
Q. I can take it, you're not disturbed that somebody thinks you have a temper?
A. I don't think that I have a temper that accordingly different from any other person, to be honest with you. You say you've had a number of responses, I would just refer back to maybe a time frame.

I remember when I first started ten years ago in the Solicitor's Office, the frustration I felt about the Rules of Evidence and how you -- if a defendant didn't take the stand, it wasn't -- you know, the jury would never hear about his two prior armed robberies and I remember the frustration that I felt and I remember a fire in my belly in my effort to stamp out crime in Charleston County. And I think the responses that you got may relate back to that earlier time. I really do because the work that I have been doing and I know a couple of attorneys that told me that they

Printed Page 152 . . . . . Thursday, January 13, 1994
actually sent in -- they sent the responses in -- they told me, hey, I told them, you know, you used to have a problem with, you know, your temper, but I want you to know I told them the truth that, you know, in the last five years you really have, you know, come a long way. And to that, I would only attribute just a maturity, just growing up in the system and being a part of it and seeing the system has the rules that its got and existed for the time that they have because they are there to protect the rights of the people.

And that's -- in that sense, I have been able to over ten years and certainly since my early days in the Solicitor's office to work within the system to fully appreciate what they are there for.
Q. If you were to have the tremendous strength in terms of excellent criminal experience by being a solicitor and that that at least raises the issue, how balanced is your perspective and you've addressed that in terms of the law and to some degree in terms of how would you remedy your lack of experience in that by law or procedure.

There is also the issue of compassion and we talked a little bit about fairness and justice, but from a term of practical experience, things that have helped you develop that compassion or have given you enough experience to understand the problems of folks that may end up before you as defendants. Have you had any experiences that you would like to point to the Committee or that have been enabled you to develop a sense of compassion for the plight of some folks that may, if not cause them to end up in circumstances, may travel along with them as they come to the circumstances?
A. I think -- I do believe that I empathize well with people. I've been working in the job that I've been working at, I've been able to put myself in the shoes of the people that I'm dealing with --
Q. Can you speak up a little bit? We're having a hard time.
A. I think that if you ask the members of the Charleston County Bar that have been working most closely with me, I think above all else they're going to tell you that I'm fair. I think that they're going to say now he -- he's firm in his commitments. He does what he believes is right. He always tempers that with a sense of fairness.

Now, you asked about a specific example, I through St. Philip's Church that I'm an active member of I work down at the homeless shelter. I'm an overnight volunteer down there. We feed the homeless the fourth Monday of every month. I don't say that because that in any way gives me a better sense of knowing where some indigent defendants are coming from, but just a sense that I -- there are problems out there that you deal with on a daily basis. It's just one of them.

Printed Page 153 . . . . . Thursday, January 13, 1994
Q. Gifts, you've heard the questions before. What's your approach to gifts? What would it be?
A. I think rather than trying to figure out what is a gift and what isn't a gift, the easiest thing is just not take it. Pay for your own lunch. Pay for your own golf. Don't go on extended vacations with attorneys that are going to practice before you.

It's just so much easier to say, hey. They're going to respect that. They know why I'm doing what I'm doing. They'd say I understand. You know, if someone tries to force something on me, that's going to raise a red flag in my book or in my mind and I think the easiest thing to do is just don't accept it. Thanks, but no thanks.
Q. And finally the question about pledging, the two parts, have you sought the pledge of a legislator prior to this process being completed and then have you asked any one to seek consideration of your candidacy by any means before today?
A. No, sir. You asked if I --
Q. First of all, have you sought a pledge from any Member of the General Assembly?
A. No, sir.
Q. And as the second one, have you sought anyone else to go out and ask for consideration of you and that person actually do it?
A. Absolutely not.
Q. Mr. Chairman, that's it.
THE CHAIRMAN: Any Members have any questions?
REPRESENTATIVE BEATTY: Just one.
THE CHAIRMAN: Yes, sir. Representative Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q. Mr. Sinclaire, would you describe yourself as prosecutorial advocate or a zealot?
A. I'd say an advocate, sir.
Q. Thank you.
A. You has asked Mr. Armstrong earlier how many cases he nonprossed. A nonpros is a term of our -- in our profession that means the case has been indicated and I would never send any case to the Grand Jury that I wasn't convinced to a moral certainty about the person's guilt, the person's rapport before it would be sent before the Grand Jury.
THE CHAIRMAN: Any further questions? That completes it. We thank you for coming and you're free to go, if you would, sir.

What is the pleasure of the Committee? We have completed the At Large Seat, Number 2 and I think the next one up will be the Third Judicial Circuit and we've got a full contingent.

Printed Page 154 . . . . . Thursday, January 13, 1994
REPRESENTATIVE ALEXANDER: I'd like to recede until 2:00.
THE CHAIRMAN: Where is Senator Saleeby?
REPRESENTATIVE ALEXANDER: He just departed until 2:00 o'clock. That's what I would like to do. Recede until 2:00.
THE CHAIRMAN: Recede until 2:00?
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: Do you mind if we go ahead and take one more, so we can kind of stay because I think we've got a little bit more than we got tomorrow.
REPRESENTATIVE ALEXANDER: Okay. I'll withdraw it.
THE CHAIRMAN: And the rest of us can -- have to eat a little bit faster than the Senator. If that's okay with everyone to go forward at this point instead of breaking for lunch? Is that acceptable?
REPRESENTATIVE ALEXANDER: And then we're going to break for lunch?
THE CHAIRMAN: Then we're going to break for lunch.
REPRESENTATIVE ALEXANDER: All right.
THE CHAIRMAN: All right.
REPRESENTATIVE ALEXANDER: I'll stay.
THE CHAIRMAN: I believe you'll have to flip back up in your books to Tab Number 1 and the Judicial Circuit for Clarendon, Lee, Sumter and Williamsburg County, David F. McInnis.
JUDGE MCINNIS: Good afternoon.
THE CHAIRMAN: Glad to have you back. I'm not going to ask you if you miss all of us. If you would, raise your right hand, please, sir. And do you swear to tell the truth, the whole truth and nothing but the truth so help you God?
JUDGE MCINNIS: I do, sir.
THE CHAIRMAN: Thank you, sir. Have a seat. For the record, Judge David F. McInnis, Judge for the Third Judicial Circuit. Have you had -- your last screening I look on the record here was March the 10th, 1988. Is that about correct?
JUDGE MCINNIS: Yes, sir.
THE CHAIRMAN: And have you had a chance do review the Personal Data Questionnaire Summary?
JUDGE MCINNIS: Yes, I have, and there is only two little minor things that I caught was in the five Orders that you requested. I think the caption in two of them said Sumter County. Two of those particular orders were from Lee County, but I don't remember which two they were.
THE CHAIRMAN: Let me see. Do ya'll have that?
MR. COUICK: Yes, sir.
Printed Page 155 . . . . . Thursday, January 13, 1994
THE CHAIRMAN: Staff informs me that they have made that correction on the record, sir. We have that note. Anything else you wish to add to it?
JUDGE MCINNIS: Your Staff asked that I bring a letter indicating the whereabouts of my children now and what I did between the time I got out of the Air Force and I went back to law school, and I submitted that this morning.
THE CHAIRMAN: Okay.
MR. COUICK: We need to add that to the overall record, Mr. Chairman.
THE CHAIRMAN: I understand that they have that and we will add it to the overall record.
JUDGE MCINNIS: Thank you, sir.
THE CHAIRMAN: All right, sir. If there are no other clarifications, do you have any objection to us making this summary a part of your record of sworn testimony?
JUDGE MCINNIS: Not at all.
THE CHAIRMAN: Then we'll direct that to be put in the record at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. David F. McInnis
Home Address: Business Address:
702 Reynolds Road P. O. Box 10
Sumter, SC 29150 Sumter, SC 29151-0010

2. He was born in Timmonsville, South Carolina on August 5, 1934. He is presently 59 years old.

4. He was married to Barbara Bruce on March 29, 1958. He has three children: Shawn M. Perkins, age 34 (housewife); David F., Jr., age 32 (salesman); and Lee I., age 26 (Airborne Express).

5. Military Service: Air Force; A03074163; September, 1957 - March, 1958; 2nd Lt.; 7 1/2 years reserve; Cpt.; Honorable Discharge

6. He attended the University of North Carolina, 1953-1957, A.B. Degree; and the University of South Carolina, 1962-1965, LLB & JD.

Printed Page 156 . . . . . Thursday, January 13, 1994
8. Legal/Judicial education during the past five years:
He has met all CLE requirements while practicing law. He has met all JCLE requirements since becoming a Judge in 1985.

9. Taught or Lectured: He lectured at Sumter TEC to community groups and students on scope and jurisdiction of the South Carolina Circuit Court.

12. Legal experience since graduation from law school:
General law practice, trial work

13. Rating in Martindale-Hubbell: To his best recollection he had a "B" rating when he practiced in 1985. He has no publications to verify this information.

20. Judicial Office:

He has served as Circuit Judge for the Third Circuit since July, 1985, elected by the General Assembly of South Carolina. Jurisdiction is unlimited.

Sumter City Recorder, 1966-1970; jurisdiction same as Magistrate; maximum of $200 fine or 30 days incarceration

21. Five (5) Significant Orders or Opinions:
(a) Citizens for Lee County, Inc. v. Lee County, No. 90-CP-31-131 (Lee County, S.C., Court of Common Pleas, June 13, 1991), affirmed Op. No. 23652 (S.C. Sup. Ct. filed April 22, 1992).
(b) Dennis v. Timmons, No. 91-CP-43-731 (Sumter, S.C., Court of Common Pleas, April 21, 1992), affirmed Op. No. 2064 (S.C. Court of Appeals filed August 9, 1993).
(c) Cunningham v. Clark, No. 88-CP-43-971 (Sumter, S.C., Court of Common Pleas, May 24, 1990), affirmed Op. No. 92-UP-118 (S. C. Court of Appeals filed July 2, 1992).
(d) Ardis v. Cox, No. 90-CP-43-703 (Sumter, S.C., Court of Common Pleas, September 30, 1991), affirmed Op. No. 2021 (S. C. Court of Appeals filed June 1, 1993).
(e) Berkeley Electric Cooperative, Inc. v. Town of Mt. Pleasant, 394 S.E.2d 712 (S.C. 1990) (McInnis, acting Associate Justice dissenting).

Printed Page 157 . . . . . Thursday, January 13, 1994
22. Public Office: South Carolina House of Representatives, 1975-1982, elected from Sumter County

24. Unsuccessful Candidate:
He ran for Lt. Governor of South Carolina in 1982, and was defeated in the Democratic Primary.

25. Occupation, business or profession other than the practice of law:
He was a Chamber of Commerce Executive in Sumter (1958-1959); Conway (1959-1960) and Lancaster (1961-1962).

28. Financial Arrangements or Business Relationships (Conflict of Interest):
He rents his former law office to a local attorney. He states this for the record in any case that comes before him that this attorney is involved in. He would recuse himself if requested. The attorney is not engaged in a trial practice.

He has never been cited or disciplined for unprofessional conduct or a breach of ethics. There have been two instances where formal complaints have been filed with Judicial Standards.

The first complaint was from a Defendant in Criminal Court that represented himself at trial and was convicted. The Defendant complained that Judge McInnis had denied him an attorney. Judge McInnis sent a copy of the trial transcript to the Commission that clearly showed that he had advised the Defendant fully of his right to counsel and his waiver of the same. This complaint was dismissed.

The second complaint was filed by a juror from Georgetown County. When that particular jury panel was being qualified, the juror stated that his religion prevented him from judging others. Since the law that sets out exemptions from jury services does not list religion as a reason for disqualification, Judge McInnis asked the juror if he would volunteer for other courthouse duties sometime during the week of court. The juror volunteered and was given some minor task in the office of the Clerk of Court. The juror filed a complaint with the Judicial Standards Commission alleging that Judge McInnis had violated his rights. The complaint was dismissed.

Printed Page 158 . . . . . Thursday, January 13, 1994
45. Bar Associations and Professional Organizations:
South Carolina Bar; Sumter County Bar Association; American Bar Association; South Carolina Circuit Judges' Association

46. Civic, charitable, educational, social and fraternal organizations:
Phi Delta Phi Legal Fraternity; Sunset Country Club; BPOE #855 Sumter

48. Five (5) letters of recommendation:
(a) John M. Graham, Regional President/Sumter
The First Savings Bank
P. O. Box 1178, Sumter, SC 29151-1178
775-9323
(b) Rex L. Carter, Esquire
Carter, Smith, Merriam, Rogers & Traxler, P.A.
P. O. Box 10828, Greenville, SC 29603
242-3566
(c) Ramon Schwartz, Jr., Esquire
Schwartz, McLeod, DuRant & Burchstead
10 Law Range, Sumter, SC 29150
775-9000
(d) George C. James, Esquire
Richardson, James and Player
P. O. Box 1716, Sumter, SC 29151
775-7815
(e) O. V. Player, Jr., Clerk of Court
Sumter County Courthouse
Sumter, SC 29150
436-2227

BAR RESOLUTIONS: Lee County, Sumter County, Clarendon County, Williamsburg County

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
July, 1985 to present; Circuit Court Judge; Third Judicial Circuit

The Board of Commissioners on Grievances and Discipline reports that no Formal Complaints of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you.

Printed Page 159 . . . . . Thursday, January 13, 1994
Records of the applicable law enforcement agencies: the Sumter County Sheriff's Office are negative; the Sumter City Police Department are negative; SLED and FBI records are negative.

The Judgement Rolls of Sumter County are negative. The Federal Court Records show no judgements or criminal against you. There was one civil rights action brought against you and 175 other individuals, including the South Carolina Legislature, former Governors West, McNair, Riley and the Members of the State PRT. The suit was dismissed in 1982. No complaints or statements were received.

My notes indicate there are no witnesses here today to testify, so at this point, I would turn the matter over to Mr. Couick and ask you to please answer any questions he's got, sir.
JUDGE MCINNIS: Be glad to.
JUDGE MCINNIS - EXAMINATION BY MR. COUICK:
Q. Good morning, Judge. Judge, if you need anything or if you can't hear me, just let me know, if you would.
A. Thank you very much.
Q. Judge, in the area of judicial temperament, we'll start there because it's kind of the easiest one to start with, what's your approach? How do you ensure that a litigant gets a fair trial and the attorneys that appear before you if not have an enjoyable experience, they at least have one that they -- it's not to their detriment?
A. Well, after having a fairly active private practice for 25 years before I got on the bench, I can remember very well how I expected to be treated as an attorney and judicial temperament has been defined in many ways. I think it's not -- it's showing some restraint there.

As Judge Keesley said, there are times when attorneys will try your patience either by accident and sometimes on purpose. And you don't have to -- you can't let that get under your skin. You try to be evenhanded, don't talk too soon, compose yourself, try to treat them like I wanted to be treated while I was practicing.
Q. What circumstances are appropriate for an attorney to be dressed down, critiqued, given some instruction in the courtroom versus those that are appropriate for the Judge Field's approach where you ask them back in the back afterwards? What's the dividing line in your mind?
A. That's been my experience is if you -- it's only happened twice and the lawyer was getting a little too vigorous, a little too aggressive, I just asked him to step back into chambers. Bring your court reporter back there. I usually have my clerk there as witnessing this and tell him what you have -- that he's a little bit out of line, you know, gone beyond the bounds, restrain himself or you're going to have to do something about

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