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 1560 . . . . . Thursday, February 10,
1994
THE CHAIRMAN: Senator Moore moves to leave the record open for all candidates
who are being screened today. Representative Alexander seconds that motion.
All in favor aye. Opposed, no. The ayes have it. Mr. Elliott, you may
proceed.
JUSTICE CHANDLER - EXAMINATION BY MR. ELLIOTT:
Q. Good morning.
A. Good morning.
Q. If I don't speak loudly enough, please let me know.
A. I will.
Q. Or if there is any document that you need that I have, please let me know and
we'll provide it. Justice Chandler, you'll have a relatively short tenure on
the bench as Chief justice, is it -- but is there a special project or special
program or something you have had a burning desire to do through these years
that you'd like to initiate or try to accomplish during that tenure?
A. Mr. Elliott, I'd like to answer that in two ways. I gave a lot of thought to
whether I would offer for this short time. I'm aware of the mandatory retirement
age and I gave a lot of thought to that because I didn't want the General
Assembly to be placed into unnecessary elections and that sort of thing. I
didn't want the fact that it would be an honor for me to outweigh other
considerations and I'm sincere when I tell you, I really gave a lot of
consideration as to whether I would do it or not.
I talked with some people who I felt would tell me what they really thought
rather than what I might want to hear and the consensus was unanimous that I
would do it. And so I gave some weight to that inquiry that I made.
As to the other part of your question, I would have to say that I know that
some things that I have on my mind cannot be accomplished in this short period
of time, but I know just as well as that there are some things that I -- I'm
real concerned about because I'm really interested in and were my term longer
than it is, I would have more follow-up capability. As it is, I would like to
let the rest of my Court know about two or three things that I hope will be
pursued. They are not really exciting type things, but they are things that in
house go to making I think the system better and in the end, the public
benefits.
One of the things that is plaguing the court system is case backlog and
that's continuing to this day and anything that we can do to make the movement
of cases more efficient is what we ought to do. I happen to be chairman of what
we call the Ad Hoc Rules Committee that was the one some ten years ago that drew
up and recommended to the Legislature and
Printed Page 1561 . . . . . Thursday, February 10,
1994
the Court approved the Civil Rules -- the Rules of Civil Procedure for the
Circuit Court.
We've continued that committee at the request of Ex-chief Justice Littlejohn,
to sort of be a screening mechanism when people want to make changes in the
Rules, so we've stayed in place and one of the things that we're doing this year
and next week will be presented to Chairman Hodges of the House Judiciary
Committee and Chairman Williams of the Senate as required by the Constitution is
a very significant change in one of our Rules. Now this is not an exciting
activity, but it's very important.
It's a rule known as Rule 40(C)3 and we have recommended basic changes in
that rule which we think is helpful to the Bar and to the Bench and to the
movement of cases. I'm very interested in it and I can have some follow-up on
that even in my short time. I'm very interested in that.
Then there is another undertaking that we are -- have gotten into which is a
draft of a recommended rule of evidence. We lawyers know the difference between
the Civil Procedure Rules and the evidence rules. We just -- until we got the
Civil Rules -- the Rules of Civil Procedure into a packaged book, we dealt with
hundreds of statutory provisions and all. That's been accomplished and the
lawyers and the judges now can go right to that book. We want to recommend to
the Supreme Court and then ultimately to the General Assembly, a set of Rules of
Evidence as to what is admissible in court and what is not admissible.
We have some archaic Rules of Evidence that impede the trial of cases and in
some cases really prevent as much disclosure as there ought to be. On the other
hand -- and so the guide that we are going by -- and we're in that undertaking
now, and the guide that we're going by is the Federal Rules of Civil Procedure.
I mean the Federal Rules of Evidence. That doesn't mean that we are adopting
the Federal Rules of Evidence.
We start with that as the guide and we will use their numbering system. It
makes it easier for lawyers just -- for instance in the Civil Rules, they can go
to the same number in the Federal and in the State rules now. Senator McConnell
knows a good bit about that because I had to deal with him when we presented
those rules. Had to answer some questions.
But we want to do that and we're not adopting the Federal Rules of Evidence,
but we use that as a guide. We have some situations in South Carolina that just
don't lend themselves to doing the Federal, but we will essentially be following
the Federal Rules of Evidence. We hope to have that done.
Justice Toal is the head of that and she believes that we can have it done by
the time of my retirement, that we would be in a position to have
Printed Page 1562 . . . . . Thursday, February 10,
1994
the Court approve it and then under the constitutional provisions take it over
here. And that's a very, very important undertaking.
Another matter that I am concerned about is the extent, and I emphasize now
the word extent, to which some attorney advertising is going. The United States
Supreme Court -- and that's final. The United States Supreme Court has decreed
that advertising can be practiced by members of the Bar. I do not read that
decision, however, to go nearly as far as some of the advertising that I've
seen, Walt Disney type quips and that sort of thing.
I don't want to say too much more about that, but our Court is actually
looking into and other states have now acknowledged that the Supreme Court said
you can do it, but now has it gone too far. And Iowa, particularly, and Florida
are right now in the throes of looking into that and I want to look into that.
I think that when advertising goes beyond a cut out point, then I think it's
highly counterproductive to the Bar and to the stirring up of unnecessary
litigation, et cetera, so I'm very interested in that.
I'm also interested in having a chance maybe possibly to sit down with the
leadership -- the appropriate leadership in this area to say just exactly why we
may need funding that the present Chief Justice, say, is requesting. I've been
through all the Chairs. I don't mean that in any immodest way. I've practiced
law for 29 years and then I was a circuit judge for eight and now I've been this
for nine and I have been through Chairs and been able to see the viewpoint of
Bench and Bar and ultimately the public. And I would like to have the -- my two
cents worth as to some problems that we've really got that are borne of my
experience. So those are some of the things that I would take my short time and
work very hard at.
Q. Thank you. One other question, being a Justice of the Court is a very time
consuming and difficult job and you're noted for being very deliberate and
thorough and giving great effort to achieve the correct result in a decision.
How do you balance all that and the time pressures with the additional
administrative duties you or any other chief justice face?
A. Well, I would -- I'm sure the Lord delivered me with some deficits, but one
of the pluses I got was a strong body and a workhorse attitude in my -- this is
subjective. I'm talking about myself now.
There is sitting in this audience today, I see a person who is formerly on
the South Carolina State Development Board and he was a vital cog in the local
development -- industrial development and I was a country lawyer in Darlington,
South Carolina and got involved as the Chairman
Printed Page 1563 . . . . . Thursday, February 10,
1994
of the local development board to go out and get industry and that's a job onto
itself and we did it in two years. Got four premium, major industries and I
just worked, I guess, around the clock. I just happened to see him sitting
here. He knows about this.
The chief justice, if he's -- if he seeks this position, he knows ahead of
time that he has added responsibilities and you'll see the Chief Justice staying
at his desk and in his office after hours after the others have gone home. And
you will see Mr. Rosen from Court Administration and Propes and those in his
office and this happens to me in my office and you just take it, and I don't
mean to be misunderstood in saying this, but the honor of being Chief Justice is
a pretty good impetus to make you work hard for it.
Q. Thank you. I don't have any other questions, Mr. Chairman.
THE CHAIRMAN: All right, Mr. Elliott. Members of the Committee, any questions
for Justice Chandler? Hearing none, thank you, Justice Chandler. We do have
another witness. If you would stay with us, we'll ask you to return --
A. All right.
THE CHAIRMAN: -- if you wish to and --
A. I will stay.
THE CHAIRMAN: Thank you.
A. Thank you, Mr. Chairman, and Members of the Committee.
THE CHAIRMAN: Mr. Alexander Paul, would you come forward, please, sir.
MR. PAUL: Where do you want me?
THE CHAIRMAN: To this seat right -- that Justice Chandler was in. Thank you
very much. Mr. Paul, please raise your right hand.
ALEXANDER PAUL, having been duly sworn, testified as follows:
THE CHAIRMAN: Mr. Paul, let me tell you a little bit about the process that
we'll use. We will -- Mr. Elliott will ask you some questions. We do have your
complaint on record and all the Committee members have that and he will ask you
some questions about the allegation you raised in your complaint.
As a matter of course, we leave the record open, so that if there are things
that we hear that we want to further investigate, we have the ability to go back
and do that at a later time, so Mr. Elliott will ask you some questions right
now. Try if you can to condense your summary if you want to get into a summary
of events after Mr. Elliott finishes his questioning, try if you can to condense
it into a reasonable time frame because we do have other complaints we need to
hear and we do have the
Printed Page 1564 . . . . . Thursday, February 10,
1994
power and the ability to go back and further investigate if we think that it is
necessary.
MR. PAUL: I think mine will be very short.
THE CHAIRMAN: All right. Thank you.
MR. PAUL - EXAMINATION BY MR. ELLIOTT:
Q. Your complaint with Justice Chandler relates to a lawsuit in which you
were the defendant; is that correct?
A. That's correct. In part.
Q. All right. Let's get to the other part in just a minute. Let's first
establish the lawsuit that you're talking about that generates part of your
complaint against Justice Chandler. As I understand, that is a lawsuit brought
against you in September of 1989 by a C.R. Cribb and Vacie Cribb; is that
correct?
A. That is correct. That is Alexander Paul and Darlington County.
Q. Both as defendants?
A. Correct.
Q. In that suit, the plaintiffs were in part seeking to have a dirt road across
your property declared as an easement to their benefit; is that correct?
A. Right through my barnyard. That is correct.
Q. And you contested that?
A. Yes, sir.
Q. Darlington County also as a defendant in that suit essentially agreed to the
plaintiffs' claims; is that correct?
A. Say that again.
Q. The Defendant Darlington County in that lawsuit that even though they were
the defendant, they essentially agreed to the claims made by the plaintiff in
the sense that they agreed that the road was public and ought to be -- remain
opened and that the County agreed to maintain that road; is that correct?
A. Some of the representatives from Darlington County did, but the Darlington
County did not itself I don't think agree with the decision, no, it did not.
Q. All right. Well, let's get --
A. We're talking -- we're talking about a County Council and so forth.
Q. All right. Let's come to that in just a minute. We'll come back to that and
I understand what you're saying. I'm just right now trying to establish a
chronology of events, what the lawsuit was about and the procedure, the history
that the case went through.
Then around November 12th, 1990, Woodrow Lewis sitting as a Special Master
issued an order in your case in which he ruled for the plaintiffs,
Printed Page 1565 . . . . . Thursday, February 10,
1994
is that correct, and found the easement for the benefit of the Cribbs across
your property; is that correct?
A. That is correct.
Q. Thereafter you appealed; is that correct? You appealed the Master -- Special
Master's decision, his order, you appealed to the Supreme Court?
A. With the assistance of an attorney.
Q. Yes, sir. That's correct. I mean that is correct, you appealed --
A. I wanted the point -- I wanted that to be clear.
Q. And then October 12th, 1993, the Supreme Court affirmed the Special Master's
order; is that correct?
A. Upheld.
Q. They upheld it. And Justice Chandler did not participate in that decision;
is that correct?
A. At that particular time, no.
Q. Then you petitioned for a rehearing -- petitioned the Supreme Court for a
rehearing; is that correct, sir?
A. That is correct.
Q. And at that point in time about, let's see, December 7th of 1993, the Supreme
Court rejected or denied your petition for rehearing and Justice Chandler
participated in that decision; is that correct?
A. I was granted rights to proceed -- proceed with the -- for the petition for
rehearing, that is correct.
Q. And then there was a ruling on that petition and your petition was actually
denied and no rehearing granted; is that correct?
A. That is correct.
Q. And that was a unanimous decision? There were five justices that signed that
order and Justice Chandler was one of them; is that correct?
A. That is correct.
Q. As I understand your complaint, part of your complaint against Justice
Chandler relates to a conflict of interest; is that correct?
A. That is correct.
Q. What's the nature of that conflict of interest as it arises out of this
lawsuit?
A. Justice Chandler was a former Darlington County -- attorney for Darlington
County. Justice Chandler was a former law partner with an attorney involved in
this case pending before the courts at that time. I think that was a conflict
of interest.
Q. Do you know how long ago it was that Justice Chandler was --
A. I think that's irrelevant. I don't know.
Printed Page 1566 . . . . . Thursday, February 10,
1994
Q. If it was 18 years, do you think that that is sufficient time -- passage of
time that Justice Chandler ought to be able to sit on one of these cases and
participate?
A. I don't think time has anything to do with it.
Q. Your opinion is that he's forever barred once he's associated in the practice
of law with an attorney from ever sitting as a judge on that case?
A. In -- in this particular type case, yes.
Q. How is this -- when you say this particular type of case, how is that
different from any other case?
A. Well, he was an attorney for Darlington County. He was in the law firm with
John Milling. It's common knowledge in Darlington County.
Q. All right, sir.
A. And I can remember things very clearly when I was a child, so these things
are not forgotten.
Q. But in essence what you're saying is because Justice Chandler was at one
point in time in the practice of law with John Milling who represented the
plaintiffs in this lawsuit against you that he should not have participated in
any decision against you; is that correct?
A. That's one reason, yes. That is one strong reason.
Q. Well, what's your other -- you have another complaint and it seems to me that
it relates to his relationship or his practice as Darlington County attorney; is
that correct?
A. Yes.
Q. Okay.
A. His practice as a Darlington County attorney, but first of all, let us think
in these terms, it's been ringing ever since this case has been brought up and
ever since he's considered the position -- this prestigious position for Chief
Justice of South Carolina, why would he be asking why this position can do so
much for me instead of what I can do while I serve in this position. And that's
very important to me with crime going on as it is today in our land. It's
ridiculous and it's totally unacceptable.
MR. MOORE: Mr. Chairman, if I may?
THE CHAIRMAN: Senator Moore.
SENATOR MOORE: Sir, I'm trying -- Mr. Paul, I'm trying to follow your complaint.
If you can tell -- you say that's one of the reasons that Justice Chandler
participated in the rehearing denial. Are there any others parts in your
complaint specifically? I'm trying to read through it as you talk. I don't see
anything else. What else? You say that's one part of your complaint. Is there
other specific comments as far as the complaint?
A. Yes, to me, Justice Chandler has demonstrated in his track record does not
respect the Constitutional rights of the citizens of this state and
Printed Page 1567 . . . . . Thursday, February 10,
1994
that being under the 5th Amendment and in my particular case, and I think it's
very clear and pointed out very clearly that he does not respect the
Constitutional rights.
MR. ELLIOTT: So you --
SENATOR MOORE: Mr. Chairman?
THE CHAIRMAN: Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. What specifically are you speaking in regards to his demonstration?
That he participated in the denial of the rehearing or what are you pointing to
specifically?
A. Well, how can he participate in the denial of my rehearing excepting that he
had knowledge of everything that was in the case. Or if he did not have
knowledge, then he should not have participated and if he had done these things,
he should not -- if he did do these things, then he should not have participated
anyway.
Q. And then I suppose that's what you're telling us that specifically in your
affidavit, you point to the fact that he participated in the denial of the
rehearing and that's what you base your complaint upon?
A. That's a broad statement, but I assume that that would be --
Q. Well, I'm reading from your affidavit. Is there anything else specifically
that Justice Chandler has demonstrated or participated in that leads to your
conclusion other than his participation in the denial of the rehearing? Is
there something specifically other than that in reading your affidavit? I can't
find it and I'm asking you.
A. I don't know if I know exactly how to answer your question and I'm --
Q. I'm not an attorney, so I'm not trying to trick you.
A. I'm a farmer from Darlington County and I'm a fellow that hadn't been in a
barber's chair for 24 years. If I can't cut it myself, my wife helps me. Okay.
To have this road and this property to pay for it.
Q. All right, sir.
A. I've never been to the beach and been swimming. And then have this property
just taken from me and me believing in the Constitution of the United States.
Did you also read what is happening across the other parts of the state? That
was in the information that I sent. It has landowners, ranchers, farmers
throughout this country baffled at what's happening.
MR. ELLIOTT: Mr. Paul --
A. I have lost -- I don't know why I have to say it, but it's just plumb
unthinkable to me.
Printed Page 1568 . . . . . Thursday, February 10,
1994
THE CHAIRMAN: Mr. Paul, let's -- and let's try to focus again on this specific
case and, Mr. Elliott -- Senator, I'm sorry, were you finished with your
questioning?
A. I want to be -- I'm -- if I'm not respectful, I want to be okay.
Q. You haven't been disrespectful.
THE CHAIRMAN: No, you have not --
A. Please help me to be respectful, but help me to get my point across.
THE CHAIRMAN: Let me see if I can help, Mr. Paul, and we're just trying to
channel this into the form that we have here today. As I understand the nature
of your specific complaint, it is that Justice Chandler through his
relationship with this attorney that you referred to and his prior represent --
or his prior relationship and his prior representation of Darlington County as
County attorney that that in your judgment should have disqualified him from
participating in your case, is that fair to say?
A. I'm in the thinking that Justice Chandler flexed his prestigious position in
not ruling against a former chief justice himself. I knew that was against me
and I believe that that stands true. Senator Lewis was a former chief justice
himself.
THE CHAIRMAN: All right, Mr. Elliott?
A. But that doesn't -- that is no reason to disrespect the Constitution. What
do we base our beliefs upon if we don't base it upon the Constitution?
RE-EXAMINATION BY MR. ELLIOTT:
Q. Mr. Paul, I understand what you're saying about the constitutional
issue. Your complaint in that regard is not just specific to Justice Chandler,
is it? I mean you would have the same complaint against Woodrow Lewis who is a
special master who ruled against you, would you not?
A. I do, but when you get 84 sometimes you consider it.
Q. And then the other justices of the Supreme Court that denied your petition
for rehearing and the other four who actually affirmed the appeal from the
Special Master, you'd have the same complaint against them, would you not?
A. Not as strong.
Q. But you would have the same complaint?
A. It would have to be against them, yes.
Q. Thank you. That's --
THE CHAIRMAN: Thank you, Mr. Elliott. Any questions from the Committee
members? If not, thank you very much, Mr. Paul. You may be seated again. Mr.
Paul?
Printed Page 1569 . . . . . Thursday, February 10,
1994
A. Yes, sir.
THE CHAIRMAN: I didn't know whether you -- thank you.
A. There was five subjects that I wanted to point out.
THE CHAIRMAN: We -- and we do have your affidavit as I've stated and your
records and they're part of the record that the Committee members have to
consider. Thank you very much. Justice Chandler.
JUSTICE CHANDLER: I will be happy to --
THE CHAIRMAN: Yes, sir, if you care to respond.
JUSTICE CHANDLER: Yes, sir.
THE CHAIRMAN: Take the witness chair again.
JUSTICE CHANDLER: And --
THE CHAIRMAN: I remind you're --
JUSTICE CHANDLER: I'm not under oath.
THE CHAIRMAN: -- still under oath.
JUSTICE CHANDLER: I'd be placed --
THE CHAIRMAN: You still are.
JUSTICE CHANDLER: I have no quarrel whatsoever with Mr. Paul feeling the way
that he does. I don't think he understands. There was never any impediment
legally or ethically to my participating in this case from the very beginning.
Mr. Cribb represented by John Milling who came to my law office and was there
a year and a half before, 18 years ago, I was elected a Circuit judge. For
whatever it's worth, Mr. Milling was never a partner. He was simply a paid
attorney there. He later after I left became a partner with Mr. Greer, but the
Mr. Milling that he's talking about is a young graduate of the law school,
stayed there. I was still in the firm for about a year and a half while he was
there.
I also was County attorney until I was elected to the General Assembly in
1972. That was 22 years ago. There was no impediment to my sitting on the
entire matter from the beginning, but out of an abundance of caution and concern
where Darlington County has been a defendant, I've gone the extra mile and just
recused myself because I was County attorney for 10 years. But under all the
authorities that I know about and all the writers on the subject of what you
should do and how long you should be out, I would certainly have had no
impediment to hearing the case even with Darlington County being involved. But
for the reason that I just said, I recused myself.
When the matter came up on rehearing, Mr. Paul made two motions. He made a
motion to expedite it and in our Court move it up quicker for hearing and to
grant a rehearing. Judge Lewis had ruled and Judge Cottingham had affirmed the
ruling. The Court decided to expedite it and
| Printed Page 1550, Feb. 9
| Printed Page 1570, Feb. 10
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