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 5080, Apr. 28 | Printed Page 5100, Apr. 28 |
Printed Page 5090 . . . . . Thursday, April 28, 1994
As Chief Justice I would, of course, seek to get everybody to agree on an opinion, but I don't think that's most important. I think the most important is the preservation, formation of the Constitutional precepts.
Q. So the other candidates here today will get some idea of what they're trying to get into, would you tell us a little bit about what your workweek is like as a justice of the Supreme Court?
A. Well, it usually starts at about 5:00 o'clock in the morning when I get up and go out to try to get my thoughts together and drink some coffee and appreciate nature. I usually try to be in my office between 7:30 and 8:00 o'clock in the morning because you can achieve more before the phone starts ringing than you can the rest of the day, if you're lucky. Usually from 1:00 to 1:15, I'm at lunch and then I'll stay in the office until 5:30 or 6:00.

In the evening, I will do some reading or relax by looking at TV. On the weekends, I will -- I try to go to the office Sunday mornings prior to church and have my wife pick me up at a quarter to 11:00. I can get a lot of work done then. Saturdays, I usually try to do something around the house or go out and relax. So it's an -- I would suspect that it's anywhere from a nine, eight and a half to nine hour day and with most Saturdays not devoted to any extensive legal research. Then, of course, you do reading whenever you can and this kind of thing.
Q. There are not a lot of hours left in that schedule?
A. Not much.
Q. Do you foresee being Chief Justice affecting your work schedule?
A. I suspect it will. I would suspect that the Chief Justice has many administrative duties and responsibilities. He has public relations duties and responsibilities. He would have duties in conjunction with dealing with judges and personnel problems and this kind of thing. I would suspect that they will expand by two to three hours on an average.
Q. In the area of judicial temperament, what rules would you lay down for the judicial candidates that are here today and tomorrow?
A. Well, we have an independent judiciary which I appreciate, so I wouldn't think I would lay down any rules, but I would hopefully give them some guidance and I would ask that they treat everybody that comes before them in a manner that they would like to be treated if they were standing where a defendant or a plaintiff or whoever it was, that the

Printed Page 5091 . . . . . Thursday, April 28, 1994
lawyers are entitled to deference and -- but they are also required to be prepared and articulate their positions and move on.

So I don't think I would have -- they would tell me like I used to say, I guess that I was elected -- they were elected by the same process that I was elected and they are entitled to -- and I wouldn't lay down rules, but I would try to by precept be an example, instruct and guide them.
Q. I didn't mean to mislead you by using the word rule, but --
A. Well, I --
Q. But --
A. You know how it is, words have a tendency to get out of whack.
Q. Sure. What about the judicial temperament of the Chief Justice, is that different from just ordinary or standard judicial temperament?
A. Other than the fact that he is probably required to put in more mileage and more time and to carry his full load as a member of the Court and do the administrative details, I would think that there wouldn't be any difference. It may be necessary in our system that the Chief Justice have an opportunity and the kind of personality which could explain to the legislative body the needs and concerns of the judicial branch and give them some guidance and direction in trying to meet what our concerns are.
Q. What -- how do you determine who will sit with the Supreme Court or the Court of Appeals as an acting justice or judge?
A. Well, I gather that it is a decision that is made by the Chief Justice at the present time. As I understand it, they give consideration to the location of the judge, what his schedule is, his availability and try to do it in a manner that is most economically and judicially feasible.
Q. So basically just logistical considerations?
A. (Witness nods head up and down).
Q. In the area of ex parte communications, this is different at the appellate level than it is at the trial level, but what is your view on that?
A. I prohibit ex parte communication. I think they're detrimental to the administration of justice. I think that they give the appearance of impropriety even if there is no impropriety. Everybody understands the ground rules and I don't have any problem with it.
Q. Do judges occasionally come up to you and say you have my case down there in Columbia and I'd like to discuss with you what I meant by this or what my reasoning and thinking was?
A. Not, but once.
Q. What happened in that case?
A. Oh, no, I mean nobody would do it, but one time.
Q. Oh, I understand.

Printed Page 5092 . . . . . Thursday, April 28, 1994
A. You know, I think judicial impartiality is important to the preservation of our system. And I think that anything which compromises that impartiality or the appearance of impartiality is detrimental.
Q. What's your rule about gifts and social hospitality?
A. I don't accept gifts. Social hospitality, I accept with my friends of long-standing, but never anything of any value. And if a friend invites me to dinner, I make sure that I invite them to dinner with their family and I pick up the tab. I try to carry my fair share of the load.
Q. You have two children who are attorneys. What are your ethical considerations if any of their cases work their way to the Supreme Court?
A. Well, I would not participate obviously. I would not participate in the conference. I would not discuss it with my colleagues on the Court and I would treat them just like I did anybody else. I think it's interesting to note that one is primarily a criminal defense lawyer, the other is a prosecutor and so we have some interesting discussions around the fireplace and on the weekends when we get together. They get into -- they're treated like anybody else.
Q. But I understood you would not participate?
A. Absolutely not. Would I not only not participate, would not discuss it with my colleagues, would not allow them to have any involvement in it whatsoever. Now, I might discuss it with them afterwards. That's one of the pleasures of being a father.
Q. A number of the candidates we have for the judgeships today and tomorrow have been involved in the political arena and you have in the past, it's sort of a distant past for you. But what's the rule for them for engaging in political activity once they're elected as a judge?
A. Well, would you repeat it? Perhaps I --
Q. Well --
A. What is the rule for judges?
Q. Yes, sir.
A. The rule is that judges do not participate in political activity.
Q. On your Personal Data Questionnaire, you listed one of your affiliations as being the United Methodist Church, General Council on Finance and Administration, Legal Responsibilities Committee. Could you tell me what that is, what it does and what you do for that committee?
A. That is a committee which -- the national committee which meets once a year to discuss legal problems in conjunction with the United Methodist Church throughout the United States. I'm one of five members of that committee.
Printed Page 5093 . . . . . Thursday, April 28, 1994
We get reports annually on church problems, First Amendment problems with regard to the church, ministers who have brought actions against the church and this kind of thing.

It is more or less a jurisdictional committee which supervises and recommends and advises the Council of Bishops and the Council of Finance of the Methodist Church as to where we stand. I do not give, write opinions nor do I give advice other than in a consultative capacity.
Q. You are a member of a number of organizations, civic and charitable types of organizations. How would you express the rule with regard to that for judges in their participation in extrajudicial activities?
A. Well, the list that you have before you is too all encompassing because membership as I interpreted it when I filled that out implies that I go this way, for the last 16 years -- no, 18 years now, I have not been active in very many organizations. I have limited my activities because of the work load as a judge.

I am active on the Board of Trustees of Claflin College. I am active in my church to the extent that I can be and I am active with the Bar Association. But with regard to social and civic organizations, I don't think there are any others that I'm active in at this time.
Q. Do you in a sense limit your participation out of any sense of concern about actions involving any of those associations or organizations coming before you?
A. That is a prime consideration that you cannot afford to be involved in political or civic organizations which generate litigation or which might be involved in litigation or which might tend to put you in a position where you would have to disqualify yourself. And, of course, when you reach my stage, the primary consideration is there's just not but so many hours in a day and I have a full cup.
Q. You certainly do. What's your philosophy about writing opinions? What do you consider the purpose of opinions to be? Who is the audience and what's a well composed order look like?
A. Well, it depends upon the nature of the controversy, but I think that the primary purpose of opinions or orders would be to outline to the extent possible the rights and responsibilities of several parties, to point to the parties the constitutional or legislative bases upon which you base your decision, and to give them guidance with regard to how you arrived where you are.

Additionally, they should be illuminating to the general practitioner and to those out there in the field, so that they will avoid the problems which resulted in the litigation getting to the Supreme Court in the first place.

Printed Page 5094 . . . . . Thursday, April 28, 1994
Q. Justice Finney, you wrote an opinion, South Carolina Cable Television Association versus the Public Service Commission in August of 1993. It involved Southern Bell and ATT as parties. And your Personal Data Questionnaire shows that you own some BellSouth and ATT stock. Did you own the stock at that time and if you did, did you consider recusal?
A. I owned the stock at that time. The amount of stock is infinitesimal. I think it's probably $5,000. The standard procedure is that I notify the attorneys in writing prior to the argument. You know, somehow it slips up and I didn't, then, of course, on the record prior to our argument, I afford them an ample opportunity for recusal as we normally do.

If you have any financial interest in it, you would do that. I thought you were going to ask me some technical question about that. I didn't --
Q. Before I forget about it, our records show that you've not expended any money on this particular campaign.
A. None that would --
Q. Is that accurate?
A. -- qualify. As I understand the rules, I don't have to say that I traveled over here.
Q. That's correct. Yes, sir. That's correct.
MR. ELLIOTT: Mr. Chairman, that's all the question I have.
THE CHAIRMAN: Questions from the Members?
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: Mr. Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. We hear constantly how serious crime is in our community up home and I had an audience with someone last night from Chicago and this person told me some things that really frightened me. We've heard spoken from the big office in Washington about three strikes and you're out. I think it should be -- they meant three strikes and you're in.

Now, would you care to comment? I'm trying to grasp this now and you have a vast experience in this area that I don't have. Would you care to comment on that suggestion, proposal, three strikes and you're there?
A. Well, Representative Alexander, you have asked me a question which borders on my transgressing into your legislative duties.
Q. Well, I wouldn't want you to do that.
A. But, you know, I've been a public official long enough to fully understand that I'm required sometimes to skirt very close to the water. Now, let me say that conceptually that is, I don't think, unconstitutional. You get down to the question of whether the State of South Carolina is prepared to meet the responsibilities and burdens and the financial

Printed Page 5095 . . . . . Thursday, April 28, 1994
obligations which it would entail and whether or not there has been a study or the figures are available to talk about the impact.

I do note with considerable interest that we in this state have the reputation of having more people incarcerated than any other civilized society in the world or up in the top three and yet we have not found the ideal solution to the problem with which all of us are obviously very concerned.

So other than conceptually, I would not want to make a comment, but I do think it is a matter which should be approached with considerable concern and not be a reaction to the crisis with which we find ourselves at the present time.
Q. Thank you, sir.
THE CHAIRMAN: Other questions? Justice Finney, I have one question, you -- if history holds true, you'll have some decade or so as Chief Justice of the Supreme Court. Are there any things as the chief administrative officer of the Court that you specifically would like to accomplish during your tenure?
A. For me to speak to that right now, Mr. Chairman, would be taking two steps over two of very dear friends. I do have some things that I believe conceptually I would like to do to improve the quality. I think that it is important and, indeed, I believe it is imperative that somehow we change the image of the court system and lawyers and all of us involved and I'd like to find a way that the citizenry could fully understand and appreciate the difficult task with which we are confronted in our judicial system.

I believe that there is perhaps -- I have some ideas with regard to Court Administration and how it might be revamped or changed. No major recommendations in either areas because frankly as I indicated it would be transgressing right now. But I assure you and I assure this committee and the people here that if I get an opportunity to serve as the Chief Justice for this state, I'll keep an open door.

I will fight for a viable, strong, independent judiciary, but a judiciary system which will be fair, effective and efficient in the delivery of justice for all of our citizens. I will appear before the appropriate committees of the legislature, would make requests in accordance with what I perceive to be the mandate of our Constitutional law.

Other than that, I don't have anything.
THE CHAIRMAN: Thank you. Questions? Further questions from the Members? If not, Justice Finney, there is one complaining witness and we will allow you to sit down and you will have a chance to respond to the witness.

Printed Page 5096 . . . . . Thursday, April 28, 1994
A. All right, sir.
THE CHAIRMAN: Thank you very much. Mr. C.F. Kelly, if you'd come forward please, sir. Would you raise your right hand, please.
C.F. KELLY, having been duly sworn, testified as follows:
THE CHAIRMAN: Mr. Kelly, I note in your letter that you have written to Ms. McNamee, one of our staff counsel, that your complaint is against Justice Finney and also against Judge Anderson, both of whom we're screening today for different seats on the Supreme Court.

What we'll do at this time is Mr. Elliott will question you regarding your complaints that you have lodged in the letter and we won't recall you when Judge Anderson comes up because it sounds as though the gist of your complaint is the same.

What we'll do is ask you to testify completely at this time. And we will incorporate your testimony into Judge Anderson's screening when he comes forward.
MR. KELLY: This is fine. Before we start, could I make just a couple of corrections to the letter to Ms. McNamee.
THE CHAIRMAN: Yes, sir. I believe you have the letter, Mr. Elliott?
MR. ELLIOTT: I have it, yes, sir.
THE CHAIRMAN: Yes, sir, you can.
MR. KELLY: As you stated in my complaint, I was speaking specifically about the Associate Justice Finney as well as Judge Anderson. I need to make this one clarification. In the case of Judge Anderson, it's my understanding that I -- an understanding I didn't have at the time of my preparation for the letter that he did agree to the ex parte hearing and the specific thing that I was not with the proper understanding at the time was that he opposed the personal enhancement expenditure.

Now, if I'm wrong on that, I would like for someone to clear me up. So in this -- if that is the truth, I'm not condemning or complaining about Judge Anderson's -- I'm only complaining against him approving the expense, if that's clear.
THE CHAIRMAN: Let's do this, to move things along, why don't you just try to briefly give us a synopsis of your complaint and then if Mr. Elliott has any questions, he will ask you, and Judge Anderson and Justice Finney will both have a chance to respond and perhaps they'll clarify what your concerns are in there.

But why don't you give us a synopsis of your complaint, so that the Committee Members will --
MR. KELLY: All right. There is one other thing. Down below the signature, a typographical error of voter right. Now, I'll live with voter

Printed Page 5097 . . . . . Thursday, April 28, 1994
right, but -- to me, that's dear, but my intent there was voter registration number.
THE CHAIRMAN: Okay.
MR. KELLY: And I'm proud of that and it's about the only thing that people like myself, the simple man on the street, has left. And I will protect that.
THE CHAIRMAN: Those changes will be noted on your letter and incorporated into the record.
MR. KELLY: Thank you very much. I'm not displeased with the word "right," but it was not what I intended.

Mr. Chairman, I'm C.F. Kelly. I've past the three score ten. I live at 209 Maple Road in Lexington County. I've been living there since 1950. I have two lovely daughters. I have a hard working son-in-law. And I have a wonderful grandson, nine year old next -- in May.

I am deeply concerned as a man on the street taxpayer as to where this state, this country and my county, I don't happen to live in the city, but that concern is there for all of these things of ever, ever, ever, ever increasing government expense.

I'm not here today so much as to hamper either of these judges' right to their pursuit of liberty, that's not my purpose. I hope they make ten billion, billion, if you'll excuse the simplicity.

My purpose here today is to try whatever amount that I can to slow this trend of ever increasing costs and real flippant and frivolous attitudes to the answers of our society. Now, I'm going to refer to the Patterson case and if there's others, I don't -- I'm a layperson and I don't profess to know or be an expert on what this court case was in detail.

However, I am deeply concerned about taking monies from me, selfish as you may want to call it and other taxpayers in my category, in my economic category and spending it for this type thing, if my understanding is correct of the Patterson case.

Now, let me just say what I think is correct, what I believe from newspaper reports, radio reports, TV and what have you and a few conversations with people that heard it. I happened to be in attendance one night at my county council. A County Council member and the County Council manager made the statement that they had finally been granted permission to attend Judge Anderson's case
-- Judge Anderson's hearing on the Patterson's case.

They further commented they had no idea how it would come out as far as pay or not pay, and I'm talking primarily the personal enhancement rumor and that's all I can call it, that's all I know. But they were at least trying to oppose it and this pleased me. This pleased me very much. And

Printed Page 5098 . . . . . Thursday, April 28, 1994
in the same breath, he says, "However, we aren't to talk about it." This don't please me.

When you're doing the taxpayers' business, Mr. Chairman, there should be no secret. It's not your money, it's not the government's money in this case, it's not the judiciary's money in this case. It's the taxpayers' money and you should not try to keep this ex parte, et cetera. Which reminds me, I need one more correction. If I understood Justice Finney correct, he said he was against ex parte hearings and I need that corrected before I can respond to that. Could you correct --
THE CHAIRMAN: I'm sorry.
MR. KELLY: I understood him to say --
THE CHAIRMAN: I was reading your --
MR. KELLY: -- he was opposed to ex parte hearings as -- which was a big contention in this case that I'm talking about and complaining about.
THE CHAIRMAN: He did say that. He said he's against ex parte communication in court cases.
MR. KELLY: Now, there is, and I've got the headlines and the news articles. There's an article in the paper that he along with the other justices unanimously approved the hearing that I'm talking about with the Patterson case. Now, this is no big thing to me. But it does point this out, that we need to do what we say.

And in my opinion I really don't appreciate saying I'm against ex parte hearings and in my case, in my county, he condoned it at the Supreme Court level of having it and approving of the expenditures. I don't have anything else to add to that unless you want further on my feelings.
THE CHAIRMAN: Mr. Elliott.
MR. ELLIOTT: It might be helpful if we just for a moment, to bring everybody up to speed, hand out this -- the Patterson case, if anybody wants that and just mention that what we're talking about is an indigent defendant in a death penalty case and the hearing that's held to determine what services are reasonably necessary for that defendant's defense and for the court to authorize those expenses, so we're talking about that hearing.

And the statute provides for an ex parte proceeding and the Supreme Court reversed Judge Anderson holding that the County unit of government did not have standing to participate in that hearing and that the hearing would actually be open unless -- well, it would be closed, if the trial court determines there is a substantial probability of prejudice to the defendant which would result from publicity and there's not any reasonable alternatives to closure which would protect the defendant's right to a fair trial.

Printed Page 5099 . . . . . Thursday, April 28, 1994
MR. KELLY: Now, it's my understanding that Judge Finney voted unanimously -- if I'm wrong, I need to know that because -- but the article says Justice Toal wrote the decision, the unanimous decision, and I have a copy of the article if you need it.
MR. ELLIOTT: That's correct. Justice Toal wrote the opinion and all the justices concurred in that, including Justice Finney.
MR. KELLY: I would be delighted to accept Justice Finney's statement.
THE CHAIRMAN: Pass copies out to the Members.
MR. KELLY: I hope I'm wrong. I don't hope he's wrong.
THE CHAIRMAN: Let me just say for a minute, Mr. Kelly, that some of this may involve interpretation of State statute, so Justice Finney, of course, will have a chance to respond, but some of your complaint might be directed to the legislature and the way that we drafted the statute.
MR. KELLY: I understand that, but this is the only opportunity as a taxpayer and as a citizen that I have to voice my views against this, someone involved in a situation. I'm not here to slap wrists or say don't give somebody a promotion. That's not my purpose.

It is my purpose to point out that as a man on the street, I'm sick of this sort of stuff. You know, you say one thing, you say one thing and if the people that support -- if the people that supports government and the judiciary, in particular in this case, cannot understand what this article implies there, then somebody needs to do it over and that's all I'm saying.

Now, as far as my fifteen cents, I don't appreciate it. I really don't appreciate it. Now, let me get into the reason I don't appreciate it. Mr. Patterson may be entitled to everything in the book. It's not a personal thing. It's hard for me to understand that if you give somebody 119, -- and this is rumor, let me clear that, $119 pair of shoes, a 300-plus dollar suit of clothes, a tie and this sort of thing, it's hard for me to understand that's going to get the judge or the jury any more truth. It will not get any more truth.

And an example of how enhancement doesn't get you the truth, I'd like to pass that along for everybody to look and I don't have any personal thing here. But one person has had everything government can give, especially in the field of education and then another thing, he evidently has had nothing, but it maybe his own fault. I don't see any difference in the outcome at that stage of life of the two people.
THE CHAIRMAN: Mr. Kelly.
MR. KELLY: Yes.
THE CHAIRMAN: I'm going to ask you to limit yourself to the matter, we're here to determine the qualifications of Justice Finney and Judge Anderson and the article you passed up relates to the former president of

Printed Page 5100 . . . . . Thursday, April 28, 1994
USC, Mr. Holderman, and I respect your opinions, but would ask you to try to limit yourself to the matter before the Committee today, which is the qualification of these two gentlemen.

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