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

Page Finder Index
| Printed Page 330, Jan. 13 | Printed Page 350, Jan. 13 |
Printed Page 340 . . . . . Thursday, January 13, 1994
Q. I was going to ask one question. Your exposure to Judge Smoak, the time that you have seen him in the trial of your son --
A. The only -- only thing I said about he is a prejudiced man.
Q. Right. But the time that you've been exposed to Judge Smoak has been during the trial of your son; is that correct?
A. Yeah.
Q. Have you ever been around Judge Smoak --
A. No, I ain't been around him.
Q. If we had access to the transcript of that trial, would that adequately reflect the times that you've heard Judge Smoak talk, the things he said and he's done? That's the only time you've seen him, right?
A. Right. Right.
Q. Mr. Chairman, I have no other questions.
THE CHAIRMAN: All right. Any Members of the Committee have any questions? Mr. Martin, we want to thank you for coming, sir.
A. Yes, sir. Thank you, sir.
THE CHAIRMAN: Yes, sir. You have a nice day.
A. You do the same.
MR. COUICK: Mr. Chairman, I would like to recall Judge Smoak briefly.
THE CHAIRMAN: Judge Smoak.
JUDGE SMOAK: Yes, sir.
RE-EXAMINATION BY MR. COUICK:
Q. Judge Smoak, I had sent you a copy of the complaint regarding the Martin matter and you had responded in a letter of November 15th, 1993 which is in the Members' packets. Is there anything that you would like to tell the Committee in addition to the letter that was forwarded?
A. Well, all I can say, sir, is that I was sent to Greenville by the Chief Justice to hold General Sessions court and that's what I did. Mr. Henry Martin, Jr.'s case came up before me for trial by a jury. The trial was had. He was found guilty. The record speaks for itself.

I have no prejudice against blacks or any other race, creed or color. I treat everybody the same. I certainly try to. And I simply handled this trial and the jury found him guilty and I sentenced him to life, sir. That's it, sir.
Q. That's all the questions, Mr. Chairman.
THE CHAIRMAN: Any Members have any questions? That completes it. Judge Smoak, thank you for coming, sir.
A. Thank you.
THE CHAIRMAN: It's nice to see you again.
A. Yes, sir.

Printed Page 341 . . . . . Thursday, January 13, 1994
THE CHAIRMAN: Sorry it'll be so long before you'll be back.
A. Right. I hope so.
REPRESENTATIVE: I believe we'll finish on House time.
THE CHAIRMAN: I believe we are, too. Ya'll, we've a couple of administrative matters that we need to take up. We may be able to take them up in open session. Tell me if you need to go behind in Executive Session.
(Off the record)

THE CHAIRMAN: There are no more witnesses today. We have agreed to hold these hearings in recess to the call of the Chair. If the Staff informs us that all is in, then I will adjourn these hearings and we will get a final report.

On the other hand, if we find that there is information, we will reconvene. With that we made it within two minutes. Stand Adjourned. Stand in recess.

(The proceedings recessed at 3:58 p.m.)

Findings of Fact

The Committee in its review and investigation of the candidates for Circuit Court seats conducted two full days of screening hearings based, in part, on extensive background research compiled by the Committee's legal and administrative staff. To ensure full public input, the Committee asked for the assistance of all print and electronic media in the state in advertising the judicial vacancies and the Committee's desire for citizens to appear before the Committee and offer testimony regarding any or all of the candidates.

Third Judicial Circuit

As it did with each candidate for judicial office, the Committee made detailed inquiries concerning The Honorable David F. McInnis' approach to ethical questions such as ex parte communications, recusal, and gifts. The Committee was impressed with Judge McInnis' general approach to these ethical issues, as well as his responses to specific questions concerning the ethical dilemmas faced by all members of the Judiciary. Judge McInnis noted that although the attorney who rents his former law office is not a regular trial attorney, he would recuse himself from potential cases involving this attorney upon such a motion. Also, the Committee confirmed that a campaign debt mentioned during Judge McInnis' 1985 screening has been retired.

During Judge McInnis' screening, the Committee voiced concerns about the County Bar Association endorsements received by several of the

Printed Page 342 . . . . . Thursday, January 13, 1994
candidates prior to their screening. The Committee inquired as to whether members of the General Assembly abstained from signing these endorsements and noted that it would closely consider this issue in the future.

Fourth Judicial Circuit

The Committee was impressed with the continued dedication and outstanding past service of The Honorable Edward B. Cottingham. The Committee received three complaints, and three witnesses testified concerning Judge Cottingham's sentencing of public officials in Horry County. The complainants specifically referred to Judge Cottingham's sentencing of Archie Lee, an Horry County magistrate charged with misuse of public office and eighteen counts of assault and battery of a high and aggravated nature. Lee sexually assaulted several women and received a suspended sentence with three years probation, 400 hours of community service, and a $500 fine.

Judge Cottingham explained that Lee was a nonviolent offender with no prior convictions, and the Committee noted that probation would have been indicated under the current pre-sentencing guidelines, the federal sentencing guidelines, and the January 1994 sentencing guidelines. When asked about his sentencing philosophy, Judge Cottingham responded that he applies the same criteria for public officials and non-officials and explained that he is perhaps a little harsher in sentencing public officials because they have violated the public trust. The Committee found no evidence of an improper relationship involving Archie Lee or any of the public officials sentenced by Judge Cottingham.

Fifth Judicial Circuit

The Committee found that M. Malissa Burnette has an active and well- respected civil practice. As with other candidates, Ms. Burnette was questioned concerning judicial temperament and demeanor. Ms. Burnette gave strong responses to the Committee's questions on advocacy and indicated her willingness and ability to curtail such activities to a level commensurate with a judicial position. Although the Committee was concerned with Ms. Burnette's lack of criminal experience, she has emphasized her willingness to study in this area and has already initiated that process. The Committee was impressed by Ms. Burnette's clear positions on various ethical questions, such as ex parte communications and gifts. The Committee finds that the complaint lodged against Ms. Burnette is not supported by any evidence.

Printed Page 343 . . . . . Thursday, January 13, 1994
The Committee also found that L. Casey Manning has an active and well- rounded practice. As with other candidates, the Committee questioned Mr. Manning concerning appropriate activities for members of the bench and ethical concerns. The Committee noted Mr. Manning's involvement in a number of extracurricular activities, including his role as a radio announcer for the University of South Carolina's basketball team. Mr. Manning indicated his willingness to curtail such commitments where appropriate in view of the judicial canons.

Seventh Judicial Circuit

The Committee appreciated and respected the black and white approach taken by The Honorable E.C. Burnett, III when dealing with ex parte communications and gifts. The Committee was concerned, however, that in January 1992, Judge Burnett allowed his name to be listed in a newspaper advertisement concerning a public controversy. Such endorsements are prohibited by Canons 2 and 7 of the Canons of Judicial Ethics, and the Committee inquired about Judge Burnett's understanding of the wisdom and rationale behind the Canons. The Committee reinforces its previous concerns that judges adhere to all Canons of Judicial Ethics.

Eighth Judicial Circuit

The Committee was impressed with the very favorable comments provided in the Bar's questionnaire responses regarding The Honorable James W. Johnson, Jr. The Committee recognized Judge Johnson's high level of commitment and found his credentials to be outstanding.

Ninth Judicial Circuit

The Honorable William L. Howard also received very favorable responses from the candidate questionnaires distributed by the Committee. The Committee noted and respects Judge Howard's understanding of the need for good judicial temperament and compassion in the courtroom and was impressed by his straightforward approach for dealing with ex parte communications, gifts, and recusal.

Eleventh Judicial Circuit

The Committee was impressed by the dedication and integrity of The Honorable William P. Keesley. The Committee believes that Judge Keesley enjoys an excellent reputation and reflects outstanding judicial temperament. The Committee appreciates the seriousness and diligence

Printed Page 344 . . . . . Thursday, January 13, 1994
with which Judge Keesley has performed his duties thus far and is satisfied that he intends to continue his fine service.

The Committee appreciated the past dedication and commitment that The Honorable Clyde N. Davis, Jr. has demonstrated in his capacity as a former Chief Staff Attorney and the current Clerk of Court for the South Carolina Supreme Court. Mr. Davis has supervised the Court's staff attorneys and has dealt with other attorneys in his capacity as spokesperson for the Court.

The Committee raised its concerns regarding Mr. Davis' lack of actual trial experience in his limited private practice from 1976-1977. During this period, Mr. Davis achieved some experience in the domestic and probate areas yet handled only one civil case in Circuit Court. The Committee expressed its concern that Mr. Davis' total courtroom experience, whether as trial attorney or as an observer, was very limited. Mr. Davis responded to these concerns by explaining that his research as a Supreme Court Staff Attorney made him very familiar with trial procedures and problems. Mr. Davis also noted that he proofreads all South Carolina Supreme Court opinions and must also read all Fourth Circuit and U.S. Supreme Court opinions.

The Committee noted and respected The Honorable Marc H. Westbrook's continued service as a Family Court Judge. As with all other candidates, the Committee questioned Judge Westbrook about the subjects of judicial temperament, ex parte communications, gifts, and recusal. The Committee also addressed its concerns about Judge Westbrook's degree of Circuit Court experience prior to his taking the Family Court bench. Judge Westbrook responded that he spent about 45% of his time in Circuit Court and about 40% in Family Court. He also noted that as a Family Court judge, he has handled criminal matters involving juveniles and civil issues arising in family scenarios.

Twelfth Judicial Circuit
 The Committee was impressed with the past service and continuing dedication of The Honorable John H. Waller, Jr. The Committee noted with approval that Judge Waller demonstrated an understanding of the importance of good judicial temperament.

Thirteenth Judicial Circuit
 The Committee recognizes and appreciates the past service of The Honorable C. Victor Pyle, Jr. Judge Pyle testified that, as Chief Administrative Judge for the thirteenth judicial circuit, he attempts to

Printed Page 345 . . . . . Thursday, January 13, 1994
move his docket efficiently while balancing that with an understanding of attorneys' schedules.

The Committee found no evidence to support Mr. Henry Martin, Sr.'s charges of racism. Mr. Martin's allegations were very general and vague and appear to be related to his son's incarceration. A second complaint, lodged by Ms. Ruth Trippe, involved allegations of bias, where Judge Pyle granted an injunction in a case argued by his former law clerk. The Committee reviewed the appropriate canons and determined that Judge Pyle complied with all provisions on judicial recusal.

Fourteenth Judicial Circuit

The Committee found that the credentials and service of The Honorable Gerald C. Smoak, Sr. are outstanding. Judge Smoak displayed an understanding and appreciation of the need for good judicial temperament.

After questioning, the Committee found that Judge Smoak's service as a director for an eleemosynary telephone cooperative has not compromised his judicial integrity. The Committee then commended Judge Smoak's decision to discontinue such service at the expiration of his term in November 1994. The Committee found no evidence in support of Mr. Henry Martin, Sr.'s allegations of racism. As mentioned earlier, Mr. Martin's allegations were very general and vague and appear to be at least partially motivated by his son's incarceration.

At Large Seat, Number 2

The Committee found John Sinclaire, III to have strong criminal experience and a solid understanding of ethical concerns, such as ex parte communication, gifts, and recusal. When questioned about the need for appropriate judicial temperament, Mr. Sinclaire emphasized the importance of being able to empathize with courtroom participants. He also cited his experiences in the Charleston County Solicitor's Office as a maturing process.

The Committee was concerned with Mr. Sinclaire's lack of civil experience. Although he has served with the Charleston County Solicitor's Office for over ten years, Mr. Sinclaire's experience in civil matters is limited to magistrate's matters and bond estreatments.

The Committee also found Robert S. Armstrong to have well-rounded and strong criminal experience. Mr. Armstrong served as the first Public Defender for Allendale, Hampton, and Jasper counties and is now a Deputy Solicitor. The Committee was impressed by Mr. Armstrong's clear stand on ex parte communications and noted that he already has

Printed Page 346 . . . . . Thursday, January 13, 1994
experience in the area of docket management, as the Solicitor's office manages the criminal docket.

Again, the Committee was concerned that Mr. Armstrong lacks experience in the civil arena. Mr. Armstrong has worked briefly on some forfeiture cases which came to the Solicitor's office and has handled some cases from Family Court and DSS, but he has not tried any actual civil cases.

R. Markley Dennis, Jr. has had a general law practice in Moncks Corner since 1973 and handles domestic, civil, and criminal cases, with criminal cases comprising the least percentage of his practice. The Committee inquired as to the extent of Mr. Dennis' criminal experience and was informed that he has negotiated serious drug cases and that his most complex criminal matter involved a murder trial, resulting in a plea to involuntary manslaughter. The Committee was impressed with the importance that Mr. Dennis placed on the subject of mutual respect in the courtroom and with his general approach to the issue of judicial temperament.

The Committee was concerned with Mr. Dennis' involvement with the failed Palmetto Fitness and Wellness Center in Moncks Corner and made a detailed inquiry into this subject. Mr. Dennis was a member of a six- or seven-person group which incorporated and sold stock in the center. He did not, however, serve the group or its investors in his capacity as an attorney. Mr. Dennis confirmed that all tax liens have been resolved and that a lawsuit by a disgruntled stockholder was handled by buying back the investor's stock and interest in the property.

Summary

The following persons were unanimously found qualified.

The Honorable David F. McInnis, candidate for Judge of the Third Judicial Circuit;

The Honorable Edward B. Cottingham, candidate for Judge of the Fourth Judicial Circuit;

M. Malissa Burnette, candidate for Judge of the Fifth Judicial Circuit;

L. Casey Manning, candidate for Judge of the Fifth Judicial Circuit;

The Honorable E. C. Burnett, III, candidate for Judge of the Seventh Judicial Circuit;

The Honorable James W. Johnson, Jr., candidate for Judge of the Eighth Judicial Circuit;

The Honorable William L. Howard, candidate for Judge of the Ninth Judicial Circuit;

Printed Page 347 . . . . . Thursday, January 13, 1994
The Honorable William P. Keesley, candidate for Judge of the Eleventh Judicial Circuit;

Clyde N. Davis, Jr., candidate for Judge of the Eleventh Judicial Circuit;

The Honorable Marc H. Westbrook, candidate for Judge of the Eleventh Judicial Circuit;

The Honorable John H. Waller, Jr., candidate for Judge of the Twelfth Judicial Circuit;

The Honorable C. Victor Pyle, Jr., candidate for Judge of the Thirteenth Judicial Circuit;

The Honorable Gerald C. Smoak, Sr., candidate for Judge of the Fourteenth Judicial Circuit;

Robert S. Armstrong, candidate for Judge of the Circuit Court At-Large, Seat #2;

R. Markley Dennis, Jr., candidate for Judge of the Circuit Court At-Large, Seat #2;

John Sinclaire, III, candidate for Judge of the Circuit Court At- Large, Seat #2.

Respectfully submitted,
/s/Senator Glenn F. McConnell, Chairman
/s/Rep. James H. Hodges, Vice-Chairman
/s/Senator Thomas L. Moore
/s/Senator Edward E. Saleeby
/s/Senator John R. Russell
/s/Rep. M. O. Alexander
/s/Rep. Donald W. Beatty
/s/Rep. C. Lenoir Sturkie

On motion of Rep. HODGES, the report was ordered printed in the Journal.

Printed Page 348 . . . . . Thursday, January 13, 1994

REGULATION WITHDRAWN

The following was received.

Document No. 1652
Promulgated By Ethics Commission
Ethics, Government Accountability, and Campaign Reform Act of 1991
Received By Speaker May 6, 1993
Referred to House Committee on Judiciary
120 Day Review Expiration Date April 12, 1994
Sine Die Revised Expiration Date March 31, 1994
Withdrawn January 12, 1994

CONCURRENT RESOLUTION

The following was introduced:

H. 4514 -- Reps. Spearman and McAbee: A CONCURRENT RESOLUTION TO CONGRATULATE THE SALUDA HIGH SCHOOL MARCHING BAND FOR WINNING THE STATE CLASS AA BAND CHAMPIONSHIP FOR 1993.

Whereas, the members of the General Assembly were pleased to learn that during the legislative interim on October 30, 1993, the Saluda High School Tiger Marching Band captured the State Class AA Band championship; and

Whereas, the 1993 championship is the fourth championship this outstanding group of students has won in the past five years which is a remarkable record for any band and is indicative of the dedication, hard work, and determination of each of the members of the band and its very capable directors; and

Whereas, the accomplishments of the band this year again show that directors, Steven O'Kelly and Byron Hilley are two of the finest band directors in South Carolina. Additionally, the strong support given the band not only this year but for a number of years by its Band Booster Club has helped the band achieve its many successes and accomplishments; and

Whereas, the members of the General Assembly, by this resolution, would like to publicly recognize and congratulate each of the nearly one hundred students from Saluda High School, Riverside Middle School, and Hollywood School who make up the band as well as the band directors on the occasion of this truly deserved championship. Now, therefore,

Be it resolved by the House of Representatives, the Senate concurring:

Printed Page 349 . . . . . Thursday, January 13, 1994
That the members of the General Assembly hereby congratulate the Saluda High School marching band for winning the State Class AA Band Championship for 1993.

Be it further resolved that the Saluda High School band and its directors shall be recognized in the Hall of the House at a suitable time to be determined by the Speaker.

Be it further resolved that a copy of this resolution be forwarded to band directors, Steven O'Kelly and Byron Hilley and to the principal of Saluda High School.

The Concurrent Resolution was agreed to and ordered sent to the Senate.

CONCURRENT RESOLUTION

The following was introduced:

H. 4515 -- Reps. Tucker and Chamblee: A CONCURRENT RESOLUTION TO DIRECT THE DEPARTMENT OF TRANSPORTATION TO ADD LEFT TURN PHASES OR ARROWS TO CERTAIN TRAFFIC SIGNALS IN ANDERSON COUNTY.

The Concurrent Resolution was ordered referred to the Committee on Invitations and Memorial Resolutions.

CONCURRENT RESOLUTION

The following was introduced:

H. 4516 -- Rep. Tucker: A CONCURRENT RESOLUTION CONGRATULATING DR. KAREN CALLISON WOODWARD OF ANDERSON COUNTY ON BEING CHOSEN THE 1994 SOUTH CAROLINA CAREER WOMAN OF THE YEAR BY THE SOUTH CAROLINA FEDERATION OF BUSINESS AND PROFESSIONAL WOMEN'S CLUBS, INC.

The Concurrent Resolution was agreed to and ordered sent to the Senate.

CONCURRENT RESOLUTION

The following was introduced:

H. 4517 -- Reps. Tucker and P. Harris: A CONCURRENT RESOLUTION EXPRESSING THE SORROW OF THE MEMBERS OF THE GENERAL ASSEMBLY AT THE DEATH OF JOHNNY TEMPLE

Printed Page 350 . . . . . Thursday, January 13, 1994
(JOHN ELLIS) OF ANDERSON COUNTY, AND EXTENDING SYMPATHY TO HIS FAMILY AND MANY FRIENDS.

The Concurrent Resolution was agreed to and ordered sent to the Senate.

| Printed Page 330, Jan. 13 | Printed Page 350, Jan. 13 |
Page Finder Index