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 220, Jan. 13 | Printed Page 240, Jan. 13 |
Printed Page 230 . . . . . Thursday, January 13, 1994
the Year; 1981 USC Mortar Board Woman of the Year; 1980 YWCA Career Woman; 1979 Business and Professional Women's Young Career Woman; 1978 "Ten for the Future" recipient, The Columbia Record

48. Five (5) letters of recommendation:
(a) Leslie F. Pharr, Assistant Vice President
NationsBank
P. O. Box 727, Columbia, SC 29222
733-9680
(b) Bishop Joseph B. Bethea
S. C. Conference, United Methodist Church
4908 Colonial Drive, Columbia, SC 29203
786-9486

(c) Cameron M. Currie, Esquire
3405 Devereaux Road, Columbia, SC 29205
734-3693
(d) Vance J. Bettis, Esquire
1527 Blanding Street, Columbia, SC 29201
799-9311
(e) Professor Thomas R. Haggard, Esquire
1720 Maplewood Drive, Columbia, SC 29205
777-4155

BAR RESOLUTION: Richland County

To my understanding, there are no Formal Complaints that have been filed against you. The records of the applicable law enforcement agencies: the Richland County Sheriff's Office are a negative; the Columbia City Police, a negative. Had some indication in here that -- anyway, there was a typographical error that indicated at some point, there might have been some contact by you, but come to find, there was nothing to it. So if that ever pops up, it's just a typographical error in the computer or something.

SLED and FBI records are negative. Judgement Rolls of Richland County are negative. Federal court records are negative. I understand one complaint or statement has been received and one witness is present to testify.

With that, I'm going to turn it over to our Counsel, Mr. Couick. Please answer what questions he has.
MS. BURNETTE - EXAMINATION BY MR. COUICK:
Q. Good morning, Ms. Burnette.

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A. Good morning.
Q. If you can't understand anything I say, I'm not loud enough or whatever, ask me. Do you have a copy of your Personal Data Questionnaire with you?
A. Yes, I do.
Q. We may refer to that a couple of times during the course of appearing this morning. The Committee places much emphasis on appropriate judicial demeanor. By way of analogy to a currently sitting judge or to just a statement of philosophy or goals, explain to the Committee how you would approach service to the bench in terms of demeanor in the courtroom both to litigating attorneys and lay witnesses and lay litigants?
A. Well, I think my philosophy is that I judge people by what they do, not by who they are and that is a guiding principal for me. I try to treat people very fairly. I have had five years of experience as a hearing officer at DHEC and enjoyed that a lot. I didn't mind sometimes having to rule against my friends or even the president of the Bar at one time point, I believe. And I just try to do what is fair.

I use as a model -- a role model to me is federal judge Joe Anderson because I think he's both a gentleman and a scholar. He treats all people with respect. He's a very practical person. He's a very honest person, a very calm and really a judicious person and I would like to model myself after the way he handles a courtroom.
Q. Sitting and listening to your explanation, it seems that you would be, if you were the model of Joe Anderson, a fairly reserved judge, that you would contain your activities to the courtroom and that you would treat folks fairly in that model. That has certainly not been the reputation of the Malissa Burnette the litigator over the years and the public activist. How hard of a transition is that going to be for you?
A. It might even be a relief. I have been called upon by the news media throughout my career and even before I was in law school because I've been very concerned about a lot of community issues. Even as a child, even as a teenager, I took down KKK posters and got my -- got death threats to my grandfather. I'm going to have to be a little bit more careful at this point, I think and I've grown up a lot, but I'm pleased that I have been seen as a spokesperson in my adult years as someone who is knowledgeable about certain issues.

I certainly know the difference between being an advocate and being a judge and I think I can make that transition just as I have made the transition in my life from representing primarily plaintiffs to being able to switch and represent, for example, the City of Columbia in all of its employment matters and even now representing a man accused of sexual

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harassment. I can do that. I can see both sides. I can work both sides and I think I can be very open-minded.

I would not talk about any case in the newspaper. I have learned that sometimes the newspaper can certainly make you look very one dimensional and they won't always print the whole story or everything you say. I'm sure some of you have had that experience and I have had that experience frequently, but I don't think that's the role of a judge. I think the role of a judge is in the court.
Q. What is your interpretation of the Canons as it relates to restrictions on your involvement in public controversies, the Canons of Judicial Conduct?
A. Right. Well, certainly, I would abide by the Canons.
Q. Give me a quick course of what they mean to you. What have we got? What are the guiding principles of the Canons as it relates to that? What can you do and what cannot you do and give a couple of examples?
A. Well, I think as a judge, a person must focus solely on cases before him or her and the issues involved in those cases and without being prejudiced toward either side or letting your personal feeling interfere with hearing a case and giving a fair hearing to everybody.

I think if a judge feels that they are -- changes that need to be made, those changes have to be made according to the -- what law exists. I think if there are changes, for example, in the Rules of Civil Procedure, there are mechanisms to make those changes in an orderly fashion and through the system. Is that what you were asking?
Q. Yes, ma'am. And in addition, Ms. Burnette, what organizations that you have previously belonged to such as the South Carolina Crime Victims Advisory Board and you also were appointed to serve as a member of the Department of Social Services Board of Richland County by the Governor and you've been an activist in a number of organizations relating to the rights of women and the rights of victims and other circumstances. Could you maintain these memberships? How active could you be in them --
A. No.
Q. -- even while you're not on the bench?
A. If I were on the bench, I would essentially forego what I consider my community service except to my church and that is the most important thing I do. Now, I'm the Chair of the Board of my church and have been for four years and I serve in a lot of other capacities, but I feel that that would be home to me as a judge.
Q. Other aspects of judicial temperament the Committee has given a great deal attention to are the ability of judges to ensure that a trial is fair and you mentioned a little about fairness awhile ago and two particular

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issues are ex parte communication and avoiding the impression that there may be some bias in how justice is delivered in your courtroom through the acceptance of gifts whether it be lunch, dinners, travel, whatever. What are you going to -- what are going to be your rules on ex parte communication and gifts?
A. Well, as far as gifts go, I think my word is just say no. I don't see any point in accepting any type of gift, not even a cup of coffee. It is not worth it. Someone said yesterday if you don't want it to be on the front of the newspaper, don't do it. I wouldn't want any litigant to even think that I might be influenced by a lawyer on the other side. It is just not worth the public embarrassment, embarrassment to my family or something that could be made of it later. It is just not worth it. As to -- what was the other question?
Q. On ex parte --
A. Ex parte communication, I would not permit any lawyer to come see me alone. I would not accept a telephone call from a lawyer unless my assistant could get both lawyers on the phone at the same time. I would not call a lawyer unless I can get both lawyers on the phone at the same time. If I need an order drafted and I can't get them both on the phone at the same time, I'd send them both a letter that said the same thing.
Q. You have -- you and your husband have a young child, I believe, two years old at the time you filed your application and I believe you might have sat through the hearings yesterday. I've asked those males that are applying for the judgeships as well as all others, what -- how will this work into your plans for full service on the bench? Court Administration pushes the docket, that sometimes pushes the courtroom later and later into the evening. You obviously have family commitments as other folks do. How are you going to be able to balance that?
A. Well, first of all, you remind me that my daughter asked me this morning if I was coming to the Screaming Committee. No, I don't think so, darling. They're not going to scream. But she has been a joy to us our older years, I must say.

We have a very good situation. She's at day care at our church which is two blocks from Main Street and two blocks from my husband's office and we participate equally in the care of our child. Both of us enjoy it very much. Also my family is in town and like last night my mother picked her up when this meeting went late.

I have traveled extensively in my practice. At times there are school board hearings or hearings out of town, we can arrange. We've never really had a problem with it. We have enough resources and also some other reliable baby-sitters.

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Q. What is the driving reason for your wanting to serve on the Circuit Court in South Carolina?
A. I think at this point in my career, having graduated in 1977 and having had a very successful law practice that I've enjoyed, it's just a different approach I want to take now. I feel like I have a lot of experience under my belt. I want to do something just a little different. Get out of the -- I don't want to say rat race, but in a way it is a rat race being in a small law office where you do a of lot of litigation.

But I think one of the reasons is I feel like I might have a little more control over my own schedule. Not that my schedule will be any shorter or that time put in will be any less, but I'm at a point where I would enjoy that as well as the challenge of being a Circuit Court judge.

I like -- I think I would like to use my administrative abilities, which I think are strong. I believe I could take control of the docket. I'm a very organized person. And that would be an aspect of being a judge that I would enjoy also.
Q. Ms. Burnette, your recent experience at least as you've listed on your Personal Data Questionnaire would indicate that you have probably concentrated on civil matters perhaps 80 percent of your practice and domestic was 20 percent and that has left very little room for criminal practice.

In addition, it seems that you have done a good bit of settlement work lately and perhaps what appearances you may have been before perhaps administrative tribunals rather trial courts. Those are things that are certainly important, but it leaves this hole of criminal trial practice at least in your recent practice as an attorney. How would you compensate for that?
A. That's a legitimate question and I did -- I have concentrated on civil practice. I feel that you can't be everything to everybody and you can't be an expert in everything, so I've tried to being an expert in some areas.

I believe I've achieved a good balance in my practice in other ways. I've done not only litigation, but also a great deal of research and writing as you can see by my extensive presentations at Continuing Legal Education seminars, but more specifically as to the criminal law, I'm not unfamiliar with the system.

My first job out of college was a prison guard, so I've been literally in the system. I, of course, took criminal law courses in law school. I assisted Professor Jon Thames in updating the Criminal Defense manual.

I did serve on the South Carolina Crime Victims Advisory Board as chairperson for four years and I'm familiar with the system of victim

Printed Page 235 . . . . . Thursday, January 13, 1994
assistance, restitution and so forth. But I am preparing myself for having to deal with criminal law cases and let me tell exactly how.

First of all, I have consulted with three sitting judges who have great experience and told them I said, you know, what do you think. I have very little experienced in criminal law and I'm worried about that being a problem if I'm a judge and all of them said it'd be better to have to learn criminal law than to have to learn the full gamut of civil law. That criminal law at least has a more narrow focus. A lot of it has to do with basic constitutional issues, which I am familiar with, and you know, I was somewhat satisfied in talking with them about that.

I've gone further than that, though, and I have studied one of the judge's civil and criminal trial notebooks, four volumes, I believe, and looked at rulings and standards for all the rulings, the charges to the jury on both specific and general charges and evidentiary questions that come up.

I've also got Jack Swerling's two volume criminal trial notebook which is huge. It has 63 sections and I have been studying that very closely and I find sort of a theme in talking with the three judges and also my studies in criminal law and that is some of the things that come up most often. They are three things: photo identification, search and seizure and confessions. And so I've already begun to try to educate myself in that area.

I'm also signed up for the criminal law seminar that's going to be scheduled in January and along with the South Carolina Bar meeting. I feel that my extensive experience in the civil area as well as my strong research and writing skills prepare me to learn criminal law as a judge.
Q. You're in the process of learning and I think that's what you've been saying. You're trying to do it and you're admitting that you need more. Obviously, it'd be a learning process that will continue once you go on the bench as well?
A. That's right.
Q. The Solicitor is going to be there every day or someone out of his office and they're going to be well known to you either well known in a good sort of way or well known in a bad sort of way. There are going to be criminal defense attorneys that come through on a much more sporadic basis.

Is it possible that you may become to reliant on the Solicitor's Office as a guiding force because at least they've got some consistency in their approach or how are you going to compensate for that? How are you going to make sure that you don't become one dimensional in how you approach the criminal trial?

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A. I would be cautious about that and go in realizing that that might be something that would be easy to do and aware that I might be tempted to do that.

First of all, if I'm assigned in Richland County, there is going to be a new Solicitor one way or the another, I believe, who may not have all that much experience. On the other hand, I intend to take Continuing Legal Education courses and read as much as I can to prepare myself and not to be more influenced by one side than the other.
Q. Let's assume that you're on the bench for several years and you're very, very comfortable with your knowledge of criminal law and you're to the point where you may decide that you should self-anoint yourself as the expert on criminal procedure and law in Richland County and you disagree with the way this new solicitor is trying cases or the way he's organizing the docket, how are you going to handle that disagreement?

And let's say you're right. Let's say that you are right on point. There is some legitimate grievance you have against the Solicitor.
A. Well, I don't think believe in embarrassing any attorney or any litigant in court. And if I had a problem with the Solicitor, I would ask that that Solicitor meet with me and sit down and discuss it and try to determine the best way to reach a resolution that would be satisfactory to us both. And I would expect the Solicitor to be open to talking to me about that.
Q. Would it ever be appropriate to take that level of disagreement publicly whether in the courtroom or in the newspaper?
A. No.
Q. I have some perfunctory questions that are being in terms of pledging, but I have one other question that it involves your public involvement in a number of controversial matters in the last several years, most recently involvement I believe it was the Rotary Club here in Columbia and the question is not whether it was right or wrong, the approach that you took to it, but just the distinction that it would seem the Canons would call for the approach one might take as a private citizen/private litigating attorney and a person that is a judge. And if I could read you a quote, you may have been here last evening to hear this. I assume it's correct. I'm reading it from the Greenville News and they're pretty accurate. And I quote, it says, "Judges" -- and this a quote from a judge that was being screened -- it says, "Judges have no public lives. Judges can't be involved in anything. Judges are neuters."

Is that a fair statement of a judge's position on controversial matters whether it be matters of Right to Life or matters involving the Rotary

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Club or matters involving victims assistance or what's your position on that?
A. That's a pretty strong statement, but it applied pretty well to I think abortion issues or the Rotary Club or something like that, but I do think judges can have a life. I think judges can have personal friends and serve in their church and there are many very satisfying ways that a judge can have a life. But I want to state for the record today that I did not go to the news media about the Rotary issue. A male Rotary member did that five weeks -- and it came out five weeks after my resignation and what was once a grain of sand became a beach.
Q. But you don't believe, Ms. Burnette, that whatever you did -- and there is always going to be a difference of public opinion on controversial matters. That's what makes it controversial. That's what sells newspapers?
A. That's right.
Q. Don't you believe that what was appropriate in that matter may not be appropriate once you have ascended to the beach -- I mean, the bench? Don't you think that there is a significant difference in terms of whatever the matter is between that what you've done is wholly right, it's appropriate for a person that's active in a democratic society, but once you assume that bench, it's a wholly different approach you can study?
A. I think it's a whole different world. Yes, I do, and I would not have been talking to the newspaper about anything like that if I were a judge.
Q. Do you see the wisdom, I guess, beyond it being a rule and being the law and being black and white, is there wisdom in that approach? What is the philosophy behind it? How do you understand it? Why is that the right approach?
A. I think that is absolutely the right approach because I think when the citizens of South Carolina go before a judge, they need to know that that judge is not -- or -- and they need to believe that that judge is not going to be biased one way or another.

And I think that whenever you start talking to the news media, you can state your bias if you're a private citizen. I think if you have bias as a judge, you must keep them to yourself and you must not apply them in the courtroom either.

But there should be no appearance of bias and there should be no question in a litigant's mind that the person they're appearing before has a preconceived idea about some issue in the case and I absolutely understand that and agree with it.
Q. Do you believe it's reasonable to expect that someone who has been as high profile as you in your activities can make that transition such that

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if you're elected four months from now or six months from now someone can walk into that courtroom and tell there is a difference or not expect that that past carries over?
A. I think in the beginning people will wonder what I would be like, but I think very quickly they will see that my philosophy is to be completely unbiased, to be a fair person. I think just because you may have been involved in some very public issues does not mean that you cannot be a judge. Look at Ruth Bader Ginsburg. Look at Thurgood Marshall. Look at people who are outstanding jurists in this country. I've always thought that if you were worth your salt, you stood for something, but that doesn't mean that you wear that badge when you become a judge. It means that you have prepared yourself through research and study and hard work to be a judge to be able to look at all the issues.
Q. You have the reported expenditures of approximately $280,000 to the Ethics Committees and to this Committee. Do you have any further expenditures you would like to report as well?
A. Well, I don't think I have $280,000.
Q. Excuse me. $280.
A. Thank you.
Q. I'm still at the beach.
A. Let's see. I'm aware now that some people have written letters in my behalf to legislators because they sent me copies out of the blue and I assumed that some other people were spending money for postage, but I have no way of knowing how much that is, but I have not made any other expenditures.
Q. And finally the Committee has each asked candidate to take an oath that they have not sought the pledge of any legislator prior to the completion of the Screening Process. Could you take that pledge today?
A. Yes, I will.
Q. And have you not sought any third person to contact any Member of the General Assembly prior to?
A. I have not and I will not.
Q. Thank you. That's all, Mr. Chairman.
THE CHAIRMAN: Thank you, sir. Any Members of the Committee have any questions?
MR. COUICK: Mr. Chairman, we do have one witness that we'd like to call and reserve --
THE CHAIRMAN: Who is that?
MR. COUICK: It's Mr. David Pointer. He's present and then have the capability of calling Ms. Burnette back if she would like to.
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THE CHAIRMAN: Ms. Burnette, if you wouldn't mind staying around until after we've heard the testimony of Mr. Pointer, Counsel may have some questions for you. Mr. David Pointer. If you would come forward there and if you will raise your right hand. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
MR. POINTER: I do.
THE CHAIRMAN: Thank you, sir. Have a seat and state for the record, your name and your current address, please, sir?
MR. POINTER: My name is David Pointer, 652 Lockshire Circle, Columbia in Lexington County.
THE CHAIRMAN: All right, sir. Mr. Couick, our counsel, has some questions for you. Please answer his questions for Mr. Couick.
MR. POINTER - EXAMINATION BY MR. COUICK:
Q. Mr. Pointer, what is your current employment?
A. I'm an investigator for the State.
Q. For the State of South Carolina?
A. State of South Carolina.
Q. Affiliated with any particular agency?
THE REPORTER: Excuse me, who?
Q. The Attorney General's office, I believe is his response?
A. Yes.
THE CHAIRMAN: Ask him to please speak into that microphone because it -- this sound system just doesn't pick it up unless it's --
Q. Mr. Pointer, you have filed an affidavit with the Committee that included an attachment which was a letter from a third party who is not present today.

You and I discussed earlier that I had some concern about your testifying about the contents of the letter. I'll be glad for you to supply your original copy to Committee. We'll be glad to follow up on it with further investigation if appropriate if the Committee should will, but I would -- if you would just generally describe the reasons why you are here today for the Committee.
A. I think I can be very succinct. May I read just one sentence from the affidavit? I believe this candidate has violated the Rules 8.4(d) and (e) and 3.4(b) of the Appellate Court Rules by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, by engaging in conduct that is prejudicial to the administration of justice and by attempting to assist a witness to testify falsely.

Since I understand that I cannot discuss the letter, I simply would add that the -- I will submit the original and my request would be that the

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