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 150, Jan. 13 | Printed Page 170, Jan. 13 |
Printed Page 160 . . . . . Thursday, January 13, 1994
that. I try not to embarrass attorneys in open court regardless of how aggressively.
Q. So generally in terms of critique, one would never really fall ever on the other side of the line where you would do it in open court?
A. The most I'll ever do is -- of course, we have a rule that says once a judge has ruled, you don't argue with the judge after the rulings. Some attorneys will attempt to pursue the matter after you ruled and I just remind them of the rule just as discreetly as I can and then if they persist, I might bring them back into chambers.
Q. I think you may have heard the question that I asked earlier of the two persons that were either assistant solicitors now or deputy solicitors about the relationship between judges and solicitors, which in this state seems to be one that either is very, very successful or there seems to be some rub between the two because they don't match either personality wise or ideas of how cases ought to be treated, don't match up or there are some circumstances where there has publicly been friction, perhaps friction between a solicitor and a resident judge. How do you handle that? How -- when you ever have an occasion to disagree, has it been public or how do you handle your sense of frustration from time to time if you have one with your solicitor?
A. As far as I'm aware there have never been any public disagreement. If something comes up that I want to discuss with him and tell him that I disagree with him, we'll do that in chambers and my solicitor knows me well enough to know that he can tell me what he thinks and he knows I'm going to tell him what I think, but we can either settle our differences there or -- you know, he's the prosecutor. I might disagree with him, but I can't tell him how to do his job.
Q. Laypersons and witnesses and folks that are litigants in your courtroom, what's your approach to those folks? Not just attorneys, how do you treat folks that come in our courtroom, lay people?
A. Of course, lay people are inexperienced. They don't know what they're facing. I try to put them at ease. Witnesses are naturally nervous and I often tell them that I recognize they're nervous. Nobody is there to take advantage of them and certainly not the Court and try to smooth things over as best you can. Lay people that come in to testify as witnesses, I try to -- if you have an expert witness, I try to get them in, accommodate them by having their testimony heard even if we have to take it out of order, so we don't impose on their time anymore than necessary.
Q. The docket in a court, I guess, would have as much to do with the flow of things as anything else, particularly when there is pressure being
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brought from somewhere to move things along. How do you balance the interests that you just discussed with the pressure from Court Administration or from the Supreme Court or just your own sense of pressure you have about you making sure you get through with some things?
A. Well, under Justice Ness' court, we had a pretty firm rule that when a case got to be -- let's say, a civil case got to be 365 days old, it was time to dispose of that case. And I imagine that when an attorney appeared before me with a case that was over a year old, I probably wasn't as accommodating with continuances and putting things off. Since that time, of course, under Justice Gregory and Justice Harwell things have eased off a little bit. It's not that quite a firm a rule, you can be a little more accommodating.
Q. Judge, I had asked each of the earlier persons their term of commitment to being a judge. If you're reelected, do you expect to stay through the completion of this term?
A. Yes, I do. I almost cried when Judge Keesley said he was still in the Jaycees. This is the first time that my age will allow me to think about some type of retirement in the future. I could retire during this term of my tenure on the bench. I don't anticipate retiring.

Of course, the longer a judge stays on, the greater his retirement benefits up until the time he reaches mandatory retirement. I will not reach mandatory retirement during this term.
Q. How do you handle the problems inherent to ex parte communication?
A. Ex parte communication, the potential comes up most often in nonjury matters. I generally rule from the bench. I'm a firm believer that I'm never going to know more about that case than I know right then after I've just heard from the attorney, so I try to rule from the bench.

If you have a complicated issue with extensive briefs and they present cases to you that they want you to read, I will do it one of two ways. Once I make up my mind, I will call the attorneys that I rule for, tell him I've ruled for him, ask him to prepare an order if I'm not going to prepare it myself. I immediately thereafter call the other attorney, tell him I have ruled and how I ruled and he can participate in receiving it in an order.

Sometimes, I'll call both of them simultaneously and tell them both to prepare orders as if they had prevailed, then I will sign the one I'm going to sign.
Q. And the question of gifts, I think you've heard enough of my questioning earlier. What's appropriate to take? What kind of gift do you

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take whether it be lunch, dinner trip, some other item? What do you -- what's your measure of comfort?
A. Well, I don't have a measure. I think it's more of a feeling than anything else. Certainly, you don't want to do anything that would appear any type of impropriety. For example, we judges used to get a lot of cakes and pecans, cheeses around Christmastime from various attorneys. I never accept those anymore. We have an orphanage in Sumter and I take everything out and give it to them. I thank the attorneys for the gift and I tell them what I've done with it.

If I'm down at the beach playing golf and two or three attorneys happen to be on the trip, and one says I'll pick up the drinks, if it's not expensive, I might go along with that. Sometimes I pick them up myself.
Q. Would it ever be appropriate to accept a gift of a trip or something of that nature, do you think?
A. I don't think so, no. I've never had the opportunity to turn that down yet, but...
Q. You note in our Personal Data Questionnaire that you rent an office, I believe, to a lawyer and I also understand that attorney is not engaged in a trial practice?
A. He is not a regular trial attorney. He has had one or two matters before me. I've put on the record that relationship that he rents my old office and if there is any question there the attorneys have as far as recusal if the motion were made, I would recuse myself and it -- that motion has never been made.
Q. You ran unsuccessfully for Lieutenant Governor in 1982, I believe?
A. Correct.
Q. And you were first screened in 1985, you made note that there was some campaign debt left over from your Lieutenant Governor's race at that point. You went on to say that you were at that point trying to retire the debt before you went on the bench?
A. That was retired.
Q. You were able to take -- retire it?
A. Yes.
Q. You also note in your Personal Data Questionnaire that you've not expended any monies other than the cost of travel perhaps in this campaign. Does that continue to be true today?
A. Yes, sir.
Q. As it relates to pledges being sought from the Members of the General Assembly either directly by you or requesting a Member -- some other person to contact a Member of the General Assembly, have you engaged in any of those?

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A. No, sir. That issue came up in my mind and, you know, we always are very conscious to stay in times of conflicts. I wanted to get the Bars for the four counties in my Circuit to endorse my candidacy if I could, so I contacted the president of each bar association and asked them if there were no -- if I had no opposition, would they be inclined to do that. All of them say they do.

Now in Sumter, we hold a meeting and you vote and the president signs some sort of resolution. In the smaller counties, they get up a resolution and they send it around to the various attorneys for their signatures. Some of those attorneys happen to be Members of the General Assembly. I didn't want this Committee or anybody else to think that that signature on a Bar resolution was an endorsement. But that's the only way that county -- those particular counties know how to handle it, but the issue could I guess be raised, is that some sort of an commitment.
Q. Yes, sir. And, in fact, Counsel had spoken with the Chairman and Vice Chairman not as to your particular issue, but about Bar Resolutions in general and I think this Committee will probably have to be faced with determining for in the future how to handle that matter because it -- under the terms of the law, it certainly comes close to the line referring -- depending on the involvement of the candidate in terms of whether it complies with the law and that was one of the things I think the Committee will need to look at.

You had three letters of reference from practicing members of the Bar and as did a number of other candidates, both incumbents and challengers. Would it ever be appropriate to ask a member of the Bar to write a letter of recommendation while they had a case that you were actively considering?
A. I would have to think about that because nobody knows more about a sitting judge than a member of the Bar and I could get letters of reference from any number of people, but I really don't know who would know more about performance as a judge as a member of the Bar.

From time to time all of them have cases on my roster. I had not thought about that frankly, but I would hope that it would have no bearing on any ruling that I would make. No more so than the question you asked about a member of the General Assembly appearing before a judge.
Q. Has anyone ever made a motion to you to recuse yourself in those circumstances --
A. No, sir.
Q. -- when there has been a Member of the General Assembly before you?
A. No, sir. I hadn't had that particular situation in Florence apparently.

Printed Page 164 . . . . . Thursday, January 13, 1994
Q. I have no other questions, Mr. Chairman.
THE CHAIRMAN: Thank you. Any members of the committee have any questions?
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: Yes, sir. Representative Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. This endorsement by these -- those Bar Associations?
A. Yes, sir.
Q. Did you wonder why those Members of the General Assembly didn't excuse themselves from signing this endorsement since they are all aware that no endorsements are to be made until you've cleared screening?
A. The rule doesn't say endorsement. It says commitment.
Q. Commitment.
A. Have two or three people running and a member of this committee, for example, could endorse all three of them, but that's not a commitment to vote for them, so I did not think about that frankly.
Q. And what use was made of this commitment?
A. They were sent to this Committee and you have them.
Q. Do you have that?
A. I have four counties in my circuit.
Q. I'm aware of that, but I don't see the names of the Members of the General Assembly on it. Maybe I didn't read it close enough, but I just see the president's names on it.
A. Well, that would be from Sumter County. If you look at the one from Clarendon County and the one from -- well, I guess the one from Clarendon County would be the only one that applies, but I know that Members of the General Assembly with -- were at the Bar meeting in Sumter and I assumed that they voted. I did not hear that they abstained, so I don't know.
Q. But they didn't sign any paper or anything you said?
A. No, sir.
THE CHAIRMAN: Any other members have any questions? It seems to complete it. Able to get through it.
A. Thank you very much.
THE CHAIRMAN: We thank you for coming and I don't see any -- as far as I'm concerned, you're free to go?
A. Thank you very much. I've got a hundred jurors coming at 2:30.
THE CHAIRMAN: All right. It's good to see you.
MR. COUICK: Mr. Chairman --
A. Thank you. Nice to see you.
Printed Page 165 . . . . . Thursday, January 13, 1994
MR. COUICK: -- perhaps before we move to anything else, Counsel would like to request again that the record remain open for this candidate as well as all the candidates previously treated.
THE CHAIRMAN: Yes, sir, they -- and I hope that the transcript will reflect that at this point that the earlier motion made that all records open and that all hearings that we have this afternoon, all records will remain open until this Committee takes some action to close the record.

Is that -- is everybody interested in the motion? We will at this point entertain a motion I guess that we recede until 2:00 if that's fine with ya'll for lunch? I'm advised that 2:15 is a better time. I would ask everybody to please be here at 2:15 because we will go -- we'll probably go into Executive Session to take up some administrative matters and we need a full contingent here for that before we come and break out and come back for the hearings, so Representative Alexander has moved that we recede until 2:15. Representative Beatty has seconded the motion. Is there any discussion? There being no discussion, all in favor signify by saying aye, all opposed by nay. The Ayes have it.

(A lunch break was taken)

THE CHAIRMAN: Call the meeting back to order. Since we're on House time, we allowed a few extra minutes. I believe there are a few administrative matters that we need to take up and hear from our attorneys before we proceed forward and see if there is anything.

We normally do that at the start of the meetings, but we didn't this morning, so I ask at this moment to entertain a motion that we go into Executive Session for the purpose of taking care of some administrative matters.
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: It's now been moved and seconded. Moved and seconded, the floor is now open for discussion. There being no discussion, we'll vote. All in favor signify by saying aye. Opposed by nay. The ayes have it. So ordered. We would ask ya'll -- we hate to ask ya'll -- I guess it might be easier for us to go somewhere. Not a room large enough for us? If there was a room large enough for us, we would just ourselves move, but we have to ask you for a moment if you don't mind stepping out. We'll be quickly back with you.

(Executive Session)

THE CHAIRMAN: After a brief meeting on administrative matters being over -- for lawyers I think it's pretty brief -- we will move forward with the Screening and I believe the next position we have up is the Fourth Judicial Circuit and that would be the Honorable Edward B. Cottingham.
Printed Page 166 . . . . . Thursday, January 13, 1994
Judge Cottingham, if you would come forward, sir. Over here. I think they're using over here on the left side.
JUDGE COTTINGHAM: Over here, sir?
THE CHAIRMAN: Yes, sir. Raise your right hand, sir. And do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
JUDGE COTTINGHAM: I do.
THE CHAIRMAN: Thank you, sir.
JUDGE COTTINGHAM: Mr. Chairman, prior to beginning, if you would permit me, I would like to introduce to you my wife and companion of some 38 years, Iris; my daughter, Jeannie, and her friend, Mary Staples. I would like to say, too, if I may that I've been here on two prior occasions. I am delighted to have this opportunity. I'm privileged to participate in the process and thank you so much.
THE CHAIRMAN: Thank you, sir. We're delighted to have you and delighted that your family is here joining us today. I see where your last screening was on March the 10th, 1988?
JUDGE COTTINGHAM: Yes, sir.
THE CHAIRMAN: Time flies, I tell you. Have you had a chance to review the Personal Data Questionnaire Summary?
JUDGE COTTINGHAM: I have, sir, and I find it basically correct.
THE CHAIRMAN: Does it need any clarification that you know of or any changes at this particular time?
JUDGE COTTINGHAM: Mr. Chairman, I think not, sir.
THE CHAIRMAN: All right, sir, if you don't have any objection, we're going to make that summary a part of the record of your sworn testimony and have that put into the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Edward B. Cottingham
Home Address: Business Address:
602 Lakeshore Drive Marlboro County Courthouse
Bennettsville, SC 29512 P. O. Drawer 1114
Bennettsville, SC 29512

2. He was born in Bennettsville, South Carolina on June 27, 1928. He is presently 65 years old.

Printed Page 167 . . . . . Thursday, January 13, 1994
4. He was married to Iris Evans on June 10, 1955. He has two children: Iris Jean Cottingham Clifton, age 36 (housewife) and Edward B., Jr., age 34 (attorney, Ness Motley Firm).

5. Military Service: U. S. Navy; June 10, 1946 to April 9, 1948; Honorable Discharge; Seaman 1st Class Svc. No. 582-59-92; U. S. Air Force Reserve A92245345; Commissioned 2nd Lt. May 26, 1950 (ROTC, University of S.C.); Transferred to Inactive Status List - Reserve Section 1961

6. He attended the University of Virginia, September, 1948 - January, 1949. After one semester he transferred to the University of South Carolina for financial reasons and the desire to graduate from a South Carolina institution. University of South Carolina, 1949 through January 26, 1953 - L.L.B.

8. Legal/Judicial education during the past five years:

1/15/88 Criminal Law Update S. C. Bar
5/6/88 Current Issues in Circuit Court S. C. Bar
10/20-21/88 Eminent Domain Procedure Act S. C. Bar
1/20/89 Criminal Law Update S. C. Bar
4/19/89 Issues in Civil Litigation S. C. Bar
10/26-27/89 Items of Interest S. C. Bar
1/25-26/90 Criminal Law Update S. C. Bar
3/30/90 Charleston Seminar-Circuit & Family
Courts S. C. Bar
2/1/91 Criminal Law Update S. C. Bar
4/4-5/91 The Future & The Courts S. C. Bar
10/12-18/91 Judicial Productivity Seminar Nat. Jud.
College
1/17/91 Criminal Law Update S. C. Bar
10/9/92 Circuit Court Bench/Bar Update S. C. Bar
4/18-5/7/93 Faculty Advisor, General Jurisdiction Nat.
Jud. Col.

9. Taught or Lectured: Faculty Advisor; National Judicial College; Reno, Nevada; 4/18/93-5/7/93.

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12. Legal experience since graduation from law school:

Associated with the Law Office of Russell D. Miller, January, 1953 through January, 1954, general practice including trials in all courts. Joined with W. C. Goldberg, in the formation of the firm of Goldberg and Cottingham, with a general practice with particular emphasis on the trial of civil and criminal cases. Continued practice with Goldberg, Cottingham & Easterling in 1970 and with Goldberg, Cottingham, Easterling and Napier in February, 1984. He was senior member of the firm after the death of W. C. Goldberg in 1972. He has participated in numerous civil and criminal trials in the state's court as well as being local counsel for the following:

LOCAL COUNSEL FOR: J. P. Stevens Co., Inc.; Mohasco Industries; Boise- Cascade Corp; Crown Cork and Seal Corp; Marnat Packing Co.; Emerson Electric Co.; Essex Wire Corp; Powell Manufacturing Co., Inc.; Hanes Corp.; Security Federal Savings and Loan Assoc.; Carolina Power & Light Co.; South Carolina National Bank; Canal Industries, Inc.; Carolina Forest Industries, Inc.; Stora Kopparberg

Circuit Judge, Fourth Judicial Circuit, from June 29, 1984 to present.

13. Rating in Martindale-Hubbell: A

20. Judicial Office:
He was elected in 1984 to serve unexpired term; Circuit Judge, Fourth Judicial Circuit; June, 1984 to June, 1988; reelected to same seat for term July, 1988 to June, 1994

21. Five (5) Significant Orders or Opinions:
(a) William J. Quirk v. Governor Carroll A. Campbell, The South Carolina Tax Commission, Richland County and Union Camp Corporation, 394 S.E.2d 320, 302 SC 148 (1990).
(b) Irvin D. Parker, Consumer Advocate of the State of S. C. v. S. C. Public Service Commission and Duke Power Company, 342 S.E.2d 403, 285 SC 304 (1986).

Printed Page 169 . . . . . Thursday, January 13, 1994
(c) Joseph J. Connor, et al. v. The City of North Myrtle Beach, by and through its elected officials, Henry C. Hester, in his official capacity as Mayor of North Myrtle Beach, et al.
(d) Charleston Associates v. Provident Life and Accident Insurance Company and East Cooper Associates, through East Cooper Mall, Inc., its General Partner.
(e) Multimedia Publishing of South Carolina, Inc., d/b/a Greenville News-Piedmont Company v. J. R. Mullins, et al.

22. Public Office:
Elected to House of Representatives, 1955-1956, 1957-1958, 1967-1968, 1969- 1970, 1971-1972; appointed to Board of Trustees of the University of South Carolina to fill the unexpired term of Russell D. Miller, 1960-1961; Highway Commissioner, 1972-1976, Chairman 1975-1976

32. Sued: Lillian Goldberg v. Lakeside, Inc., a Corporation, Edward B. Cottingham, individually and as shareholder in Lakeside, Inc. and William L. Kinney, Jr., individually and as shareholder of Lakeside, Inc. Action upon option on lot given by Lakeside, Inc. Settled by conveyance of lot upon agreed price. Suit filed March 31, 1983. Settled September 21, 1983.

37. Lodging, Transportation, Entertainment, Food, Meals, Beverages, Money or Any Other Thing of Value From a Lobbyist or Lobbyist Principal:
Each year, Judge Cottingham and one of his guests are invited to attend the spring and fall races at Darlington Speedway as their guests.

45. Bar Associations and Professional Organizations:
South Carolina Bar; American Bar

46. Civic, charitable, educational, social and fraternal organizations:
Member of Masons & Shriners; Member, Marlboro Area Players

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