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 250, Jan. 13 | Printed Page 270, Jan. 13 |
Printed Page 260 . . . . . Thursday, January 13, 1994
(d) Hugh Cannon
P. O. Box 31820, Charleston, SC 29417
571-3673
(e) Mary Todd Poore
93 D Beaufain, Charleston, SC 29401
577-3830

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
Circuit Court; Ninth Judicial Circuit; July 12, 1988 to present

10. Extra-Judicial Community Involvement:
Local High School Mock Trial Competition, presiding Judge; Guest Speaker: D.A.R., Paralegal Banquet, Young Lawyers Association, Hibernian Society, Citadel Inns of Court; Mediation Referral Program

The Board of Commissioner 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. The records of applicable law enforcement agencies: The Charleston County Sheriff's Office, a negative; Charleston City Police department, a negative; SLED and FBI records are negative. The Judgment Rolls of Charleston County are negative. Federal court records show no judgments or criminal actions against you. I think there was one case in the Federal Court --
JUDGE HOWARD: That's --
THE CHAIRMAN: -- for a civil action, but it was dismissed in the 1980.
JUDGE HOWARD: Well, yes, my partner and I were the plaintiffs in that. It was settled. It was dismissed.
THE CHAIRMAN: Then I understand that was brought up at the last screening?
JUDGE HOWARD: Gee, I don't even know. To be honest with you, I don't remember, but basically it was very simple. It was just a suit that we brought against an insurance company that did the New Home Buyers warranties for my client and had made some disparaging remarks. We filed suit against them --
THE CHAIRMAN: Yes, sir.
JUDGE HOWARD: -- and it was settled.

Printed Page 261 . . . . . Thursday, January 13, 1994
THE CHAIRMAN: Yes, sir. I find it was dismissed and according to our records, nothing more to it.
JUDGE HOWARD: Right.
THE CHAIRMAN: No complaints or statements have been received and as I understand, there are no witnesses present to testify. So with that, I'm going to turn it over to Mr. Couick who has some questions for you, please, sir.
JUDGE HOWARD: Yes, sir.
JUDGE HOWARD - EXAMINATION BY MR. COUICK:
Q. Good morning, Judge. If you can't hear me or if you need anything, let me know.
A. All right, sir.
Q. I believe the last time you were screened was in 1988 --
A. That's correct.
Q. -- at the beginning of your current term?
A. Right.
Q. And what a difference six years makes in terms of, I guess, the atmosphere of the screening.
A. Yes, sir.
Q. That was one of the more contentious screenings, I guess not as it relates to you, but overall that's ever been had by this Screening Committee.
A. I was just saying earlier, I think ya'll made some changes after that particular screening in different things as a result of that whole process.
Q. And I would have to imagine that as much impact as that had on the candidates, that Screening probably had a large impact on the Bar in Charleston, South Carolina because --
A. Well, at the time, I think there was a great deal of discussion and so forth down in Charleston. I think that's understandable.
Q. And I would have to imagine that once it was over and you had put on the robe and ascended to the bench, everybody would be looking to see what your stance was going to be, vis-a-vis, the various parts of the Bar that kind of fell out after that situation.

I would imagine those folks would have to be worried that they were on the wrong side, that justice may be swift, but may not be fair and the folks who are on the good side in terms of the supporting your candidacy or perhaps the removal of the incumbent judge may have an expectation, well, things are going to be better now. What did you do to make sure that those things didn't happen?
A. Well, I don't know that I set upon a particular course other than to just make sure that I handled everybody the same way. Most of those

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people that took positions were my friends and still are my friends, in fact, including some of the ones that ended up coming up and testifying in my particular Screening and they handled many cases in front of me and we've gotten a long very well. There hadn't been any problems to my knowledge.
Q. Do things seem to have settled down somewhat in terms of the Bar seems to be more relaxed?
A. Oh, I think that's way past history. I think all that is pretty much totally over and done with as far as the Bar is concerned. They're a very united Bar. In fact, they had a function last night. I'm very proud of the Charleston County Bar Association. They just are very united.
Q. Have you been called on to recuse yourself in any situation as an outpouring to those hearings --
A. No.
Q. -- as it relates to any particular attorney or group of attorneys or firms?
A. No, not to my knowledge.
Q. What's your general standard of recusal? How do you look at a motion for recusal or look at it without a motion, how do you decide what's --
A. Well, that has evolved. As a new judge, it's very -- sometimes you -- whenever you get in a situation where you feel you can be fair, but there is a situation that's presented, it's very easy to say, well, now, I happen to know this person, so if anybody wants me to recuse myself, I'll do it.

But then as you stay on the bench for a little while, you realize that that's not a good approach, that you better say I will consider it if you make such a motion because there are times when it's not appropriate for you to recuse yourself even though somebody might want you to do that just out an overabundance of caution. That is, you would be harming the other side when they're entitled to their day in court.

My overall -- my philosophy if you will or my approach is that if there is any question than I will bring it to the attention of the lawyers for the parties and then we'll discuss it. And if -- I try to be aware of the fact that it's not easy for a lawyer to ask a judge to recuse himself also, so that in situations where I feel that it could present a problem, vis-a-vis, parties irrespective of the outcome, then I -- they'll always feel it's tainted because of my connection to the witness or the party. In those situations, I would recuse myself without making the lawyer -- putting the lawyer in that position.

Printed Page 263 . . . . . Thursday, January 13, 1994
By the same token, you try to be conscious of the fact that you just can't recuse yourself because you happen to know Mr. Smith or Mr. Jones because to do so would prevent the other party from their day in court.
Q. And, Judge, I'm very interested in terms of the balancing that you go through and I guess the one concept I'm not fully understanding is the concept of the other party is entitled to their day in court?
A. What I'm saying is, you know, after you've lived in a community for many years, chances are that you may know some of the witnesses in a case. And I'm talking about now cases that are jury trials or if you just happen to have met somebody on a previous occasion and if -- as you well know, with only forty judges in the state, court time is precious and hard to come by sometimes and people wait a long time to get to trial and various circumstances and so just because you happen to know somebody who may be called upon to testify and you're acquainted with him, you've said hello to him before, it would be very easy to say, oh, I know that witness, so I better not hear this case.

But that could have an effect in requiring somebody to wait several more months before they come to trial and so you -- I think that in those situations, you have to say can I be fair, is there going to be a problem, even if I know I'm fair, that will result from my making the decision or presiding in a case.
Q. You were not --
A. Did that clarify it?
Q. Yes, sir. And the reason I delve into this, we've done this with all judges that are currently sitting on the bench, there has been -- some concern has arisen across the state specifically about Members of the General Assembly who appear before judges and Senator Saleeby was here yesterday and commented that perhaps in some ways it's the Members of the General Assembly that ought to object because to some degree they, the judges, seem to be make sure to the nth degree that they -- there is no preference given to their client's trial. But there have been -- there are attorneys who regularly make objections about lawyer-legislators appearing before judges that they elect.

What standard to you apply in those cases? Is it always appropriate to let a lawyer-legislator appear before you? Does it matter who the lawyer-legislator is? What degree of conduct on their part, what types of activities would you have to mutually to have engaged in before there is a point where that recusal should take place?
A. I think that all of the circumstances become important in situations such as that. For example, what is my role? Am I presiding as the judge at a jury trial where the legislator is really asking the jury for relief and

Printed Page 264 . . . . . Thursday, January 13, 1994
I'm simply being asked to make decisions about evidentiary matters and charging the jury with regard to law that is very well set forth and that I say the same thing in any case, in that situation or is the case being tried to me? What is my relationship in time as well as other matters with that legislator?

I'll give you a specific example. Recently I had a case which was coming up. It was a nonjury case. I would have been called upon to make the decision. It's a very serious case that is still on going. Senator McConnell is the attorney for the plaintiff and would be asking for relief both for his client and under the specific statute if he prevails for attorney's fees.
Q. You're going to waive those, aren't you, Senator?
A. As a result of the fact that this process was coming up within a matter of a couple, two or three weeks before that, I -- and as a result of the fact that it also involved my county and I knew the people also on that side, because it was nonjury, I couldn't explore settlement with the parties, so for all of those reasons combined, I decided and after talking with the lawyers that my role would be better placed as a mediator trying to help resolve that controversy and let another judge try it.

Not because there would have been any impropriety. Senator McConnell certainly wouldn't and I wouldn't and the other lawyers did not want me to recuse myself, so it's not a matter of that, but because of the timing of it, the appearance would have been or could have been too great repercussions from an appearance standpoint. And in that setting, I felt that was the best thing to do, but now I'm very protective of the system that we have in selecting judges.

I think it's the best system in the United States and I don't think that a legislator who happens to be a lawyer should be penalized to the extent of not being able to practice before the judges that are appointed. I don't know of any judge that would -- myself included, that would give a legislator preferential treatment because he is a legislator, so...
Q. Would you agree, Judge, and just for the sake of agreeing with you that we do have the best system in the country, we and two other states, of electing judges, that the best way to protect that is to always ensure that there is no appearance of impropriety or relationship between lawyer-legislators and the judges they elect?
A. Yes, sir.
Q. And based upon what you said earlier, there are basically two things that you weigh and balance. One is the power you have to deliver whether that be would deliver a verdict or an order without a jury sitting there, how you have to influence the outcome, and also the circumstance

Printed Page 265 . . . . . Thursday, January 13, 1994
of the lawyer-legislator in terms of as the case you've mentioned about Senator McConnell, you were obviously coming up for Screening and there was going to be that appearance there that there -- something was improper or could be improper. And there -- I would imagine there are other circumstances where the unique situation of a lawyer-legislator can have that same effect?
A. Yes. I think so. I mean you can sit here all day and give what if's, but that's basically right. And in addition to that, I would also include the thoughts of the attorneys and the situation of the parties as well.
Q. You have been roundly applauded in the questionnaire results that we've gotten back from Charleston as being one of the more compassionate, evenhanded judges to serve in South Carolina.
A. Well, thank you.
Q. If there is any criticism of your holding court and this
-- it's odd that we get responses back, this judge pushes the docket too hard and he doesn't care about attorneys and then sometimes we get responses back, we've got a couple that this judge is too compassionate, he doesn't worry about the docket. How do you balance that tension?
A. Boy, it's almost on a case by case basis. We implemented in Charleston a procedure of a pretrial conference approximately one month before the case would go on the docket. That allows me when the orders come before me a month before its going to go on the trial docket or would normally go on the trial docket to hear from them as to particular problems they have and to account for those problems and give them that one continuance, if you will, before they actually get on the docket and clog up the docket where they aren't ready for trial. It allows me, for example, to take more complex cases and give them 60 more days or this small case and get it up very quickly if they're already.

Now what does that for me personally in addition to the planning for the docket is that gives me more strength, the conviction in saying no when they then come to me a month later and ask for a continuance after they've already said I will be ready, we can get these depositions completed and we'll be ready for trial.

Now that's not to say I don't -- I won't consider a particular problem, but that's personally how I have dealt with that in Charleston is to do that planning ahead of time and in the lead case, the majority of those problems are the ones that do come up. More specifically the problem that may arise if it's on the trial docket, I try as conscientiously I can to say we need to -- what is the position of the other attorney and how long has this case been pending, what is the problem and then I roll around in

Printed Page 266 . . . . . Thursday, January 13, 1994
my own mind different ways of resolving this problem besides having to continue the case.
Q. Judge, I believe you heard the questions that have been asked today about ex parte communication and gifts. Very briefly state your approach to each of those, ex parte communication and acceptance of gifts?
A. In regard to ex parte communication very briefly, I -- more and more they seem to come in the forefront of problems. The days of calling a lawyer and asking him to draw an order are over and done with.

What I do is I either rule from the bench or when I'm ready to make a decision, I will call both lawyers. If I can't get them on a conference call, then I'll wait until I can before I make my decision or I'll draw my own order.

If a lawyer comes in and has purely scheduling question, then as the Administrative judge you have to talk with him. Of course, in an injunctive situation where somebody is moving for an ex parte Temporary Restraining Order, you have to under the Rules hear from them as to those matters, but if somebody comes in and starts a conversation about a scheduling matter, but from what I can glean as soon as that -- a little red light goes off in my head that we're getting into the merits of the case or that the actual scheduling is a part of the merits of the case, then I will stop them right there and say let's -- you know, I don't want to have any ex parte communication. Let's get Mr. So and So on the phone and we'll do that. If we can't, I'll say, I'll call you.
Q. In the area of --
A. With regard to gifts, I try my best not to get into any situation which would be one that would give the appearance of impropriety. When I first went on the bench the first year, a lawyer brought me a bottle of liquor. I said I can't accept it. He said, well, you know it takes at least a case to buy a judge, but what I did was I gave it to a -- obviously, he was kidding, but --
Q. They stopped writing before you said that.
A. Obviously, I had told him I couldn't accept it. What I did was I gave that to the Charleston County Bar Association for their events and I haven't gotten any since then. So that's my way of handling things is to not accept them. Now and then if I go out to lunch and somebody is a friend of mine and they don't -- they're not appearing in front of me, I'll have lunch with them, but I pay for my own.
Q. And some final questions. We have talked extensively with candidates about public controversy and becoming involved in public controversy, one specific example, and just to check your approach on this I think this is valid, what carry over -- if you were to have a disagreement

Printed Page 267 . . . . . Thursday, January 13, 1994
between the administration of the Solicitor's Office and his trial -- and his office's trial of cases, what would be appropriate way to bring the Solicitor's attention to your disagreement with that approach?
A. The appropriate way in my view is to meet with the Solicitor and say this is my view of what's going on and my problem with how things are being handled, Is there a way that we can deal with your problems and at the same time change things around to make it more efficient or handle whatever I perceive as a problem.

You know, I've had that and we've done just that. In South Carolina at this time, solicitors run the docket to the extent that the defendants don't run it by virtue of their decisions to plead or to try. And I think that as a judge, we're just knocking our head against the wall trying to tell the Solicitor how to run his docket. So what I do is I say you're in charge of that docket, now how can I help you plan that and I haven't had any problems.
Q. I take it, it would be inappropriate to do that publicly whether it be in a courtroom or in the newspaper?
A. Oh, definitely. My view with regard to things like that is that it's not appropriate for me to -- I'm not a public source of that kind of information. It's not appropriate for me to criticize that solicitor.
Q. And, finally, Judge, the question as to pledges, have you sought the pledge of any legislator prior to this hearing or will you prior to the completion of the Screening report?
A. No, sir.
Q. And have you asked any third party to approach any Member of the General Assembly and seek your consideration?
A. No, sir.
Q. Thank you. Mr. Chairman, that's all the questions for Judge Howard.
THE CHAIRMAN: Thank you, sir. Any Members of the Committee have any questions? Thank you, sir. We appreciate your coming.
A. Thank you.
MR. COUICK: Mr. Chairman.
THE CHAIRMAN: You're free of course to leave also.
A. Thank you.
MR. COUICK: Mr. Chairman, a Member of the Committee had indicated earlier and I also have an commitment to -- a speaking engagement at 11:40 today. I believe it's over about 1:00 o'clock. It was something Mr. Hodges and I scheduled before these hearings were scheduled. Would it be possible to adjourn until approximately 1:15 or

Printed Page 268 . . . . . Thursday, January 13, 1994
so at this time and at that time take up the Eleventh Circuit which would be Candidates Davis and Westbrook? I apologize for the inconvenience.
THE CHAIRMAN: Are we going to pretty much be able to maintain -- can we finish today? Are we back to schedule?
MR. COUICK: Yes, sir.
REPRESENTATIVE HODGES: We're going to start back after lunch.
THE CHAIRMAN: 1:15. We'll be on House time, so --
REPRESENTATIVE HODGES: Whenever Mike and I get back.
REPRESENTATIVE ALEXANDER: I need to know approximately what time we might finish today. Can you give us a ballpark --
MR. COUICK: Yes, sir. If I can borrow your --
THE CHAIRMAN: Yes, sir. Go ahead.
MR. COUICK: -- list of candidates, I would --
THE CHAIRMAN: Got them right here.
MR. COUICK: We have got two, three incumbents left and we've also got what I call a nonincumbent seat that's the first one up. I will -- right. So we've a total of five candidates remaining. I would imagine if there were no complaints against either of the two persons seeking the Eleventh Circuit, so that should go probably no more than 30 to 45 minutes per candidate, an hour and a half maybe.

On the remaining three candidates, there is a complaint. It's not a very long complaint on two of those three. I would imagine we probably have another hour to hour and fifteen minutes for those two. So I'd say maybe two hours and forty-five minutes after we're back. We should be through about 4:00 o'clock.
REPRESENTATIVE ALEXANDER: So I can get out of Columbia before 5:00.
THE CHAIRMAN: Now, if everybody gets back here at 1:15, so we're on Senate time, we'll start right up on time.
REPRESENTATIVE ALEXANDER: Any problem?
THE CHAIRMAN: Ya'll, we're going to make it 1:30 in light of the schedules and everything. There is no need for me to bring you back at 1:15 and we be on Senate time. We'll start at 1:30.
REPRESENTATIVE ALEXANDER: That'd be 1:45.
THE CHAIRMAN: We're going to go 1:30 House time, 1:15 Senate time. Is that acceptable schedule?
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: With that, we'll stand in recess. Do I hear a motion we stand in recess until 1:30 House time? There being no objection, so ordered.

(A lunch break was taken)

Printed Page 269 . . . . . Thursday, January 13, 1994
THE CHAIRMAN: Come back out of recess now and I think that the House preferred Senate time.
REPRESENTATIVE ALEXANDER: Come on now.
THE CHAIRMAN: So we're back and running. We're to the Eleventh Judicial Circuit, McCormick, Edgefield, Saluda and Lexington Counties. The first candidate will be the Honorable Clyde N. Davis, Jr., West Columbia. Mr. Davis, come forward. Have a seat, sir, and -- I shouldn't say have a seat because I need to swear you in. If you'd raise your right hand for me, sir. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
MR. DAVIS: I do.
THE CHAIRMAN: Thank you, sir. Have a seat. As I understand it, this is your first time. It is not.
MR. DAVIS: No, sir.
THE CHAIRMAN: You were screened -- I'm sorry, December the 11th, 1990. Have you had a chance review the Personal Data Questionnaire Summary?
MR. DAVIS: Yes.
THE CHAIRMAN: Is it correct? Does it need any clarification or anything?
MR. DAVIS: It's correct. I did submit two letters to the Committee.
THE CHAIRMAN: The Staff informs me that we have those and they will be so entered thereon. Anything else, sir?
MR. DAVIS: No, sir.
THE CHAIRMAN: With that, would you have any objection with us making those clarifications to make this summary a part of the record of your sworn testimony?
MR. DAVIS: No, sir.
THE CHAIRMAN: All right. I direct at this point that be inserted into the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Clyde Norwood Davis, Jr.
Home Address: Business Address:
1009 Lonsdale Drive South Carolina Supreme Court
West Columbia, SC 29170 P. O. Box 11330
Columbia, SC 29211

2. He was born in Greenville, South Carolina on October 28, 1946. He is presently 47 years old.

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