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 5090, Apr. 28
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Printed Page 5100 . . . . . Thursday, April 28,
1994
I understand the gist of your complaint as to their finding in the Lexington
County case regarding the expenditures for a certain indigent defendant in a
criminal proceeding. And we have in front of us the Supreme Court opinion that
Mr. Elliott has passed up which Judge Anderson was the trial judge and the
opinion was authored by Justice Toal and apparently Justice Finney concurred
with that opinion.
MR. KELLY: I didn't mention any names, Mr. Chairman, and thank you for --
THE CHAIRMAN: I understand that, but, you know --
MR. KELLY: -- that correction.
THE CHAIRMAN: -- I'm trying to focus the Committee on this issue.
MR. KELLY: I'm trying to show you the taxpayers' concern on monies being spent
that come from them. Let me further state that I'm in the lower to low economic
level of this state, and I'm talking about 19,000 down to 14,000 depending on
who you include. If you separate the institutionalized, then it's closer to
14,000. Now, I ask you again, it's a little -- I state again, it's a little
silly to go around and do that expecting a juror, a jury box to get more proof
from that type of person.
Now, I had much rather as a citizen when he passed me in the hall say why not
try the Ten Commandments and I mean the Ten Commandments, I don't mean the Ten
Suggestions. This will do more for that person than any court or any
legislature or anybody else will.
Now, let me go one step further and I'm not getting on --
THE CHAIRMAN: I'm going to ask you, if you will, to wrap it up because we've
got other people to testify and I want to focus you again now on the nature of
your complaint against these judges. I understand you're getting into your
philosophy about how a judge rules, but try to limit yourself to the nature of
your complaint and if you could wrap it up in a minute.
MR. KELLY: Thank you. My feeling is the jury, juries, the jurors will not be
improved as far as that person's character, honesty and integrity by any amount
of expenditure. And that's generally what I object to. I thank you for the
opportunity and I hope that some of this is took in -- in effect.
THE CHAIRMAN: Thank you very much. Mr. Elliott?
MR. KELLY - EXAMINATION BY MR. ELLIOTT:
Q. If you don't mind, just a couple of questions if you don't mind and
keeping your answers fairly short, if you can, and I don't mean to cut you
Printed Page 5101 . . . . . Thursday, April 28,
1994
off, but just so we can move along. Does your -- do you object to the
expenditure of any money on a criminal defendant?
A. It's my understanding there is a statute that covers certain budgetary for
indigent defendants. It's -- this has been approved. I don't approve of
anything beyond that. I really -- if you want my personal belief, I don't
believe in doing this type of thing that I just elaborated on.
Q. So your objection is to the level of expenditures, how much is being
spent?
A. I would object to buying that man a pair of shoes at $119, if that was the
only case in town. Let's --
Q. I mean, but a $5 --
A. But I object to both.
Q. -- pair of shoes, you wouldn't object, but if it's $119 pair of shoes, you
would object?
A. Yes. Yes, I would object to the $5 pair. I don't think that enhances
truth.
Q. All right. If Justice Finney felt compelled as he saw his job to rule the
way he did that he didn't have -- that that's the law as it was set down by the
General Assembly, would you have a complaint against him?
A. I would not, but he shouldn't say he's against ex parte hearings, because he
approved an ex parte hearing.
Q. Well, if --
A. From my understanding.
Q. Well, if he didn't have any discretion about the ex parte hearing, that
particular hearing, then you wouldn't have any objection against him?
A. He didn't have to unanimously. He could have said I step aside, they
shouldn't have had the ex parte hearing. That's all I'm saying. If I'm -- you
know, if that's -- if that's too much out of legalese, I'm sorry.
Q. That's all I have.
THE CHAIRMAN: Thank you, Mr. Elliott. Questions? Mr. Beatty?
REPRESENTATIVE BEATTY: Mr. Chairman.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q. Mr. Kelly, just to make certain the record is clear and that we are
focused upon the correct issues and the issues at hand, are you alleging any
ethical violation against Justice Finney?
A. No, sir.
Q. Are you alleging any legal violation against Justice Finney?
A. The knowledge I have, I am not, sir.
Q. Thank you.
A. And I tried to make this clear that I'm not trying to hamper anybody's normal
pursuit of liberty. I was real pleased with several of his
Printed Page 5102 . . . . . Thursday, April 28,
1994
statements here. And the only thing this morning that I was not pleased with
was the conflict in my mind between me understanding he approved it in this
case, the ex parte hearing, and his statement that he was totally against
them.
Q. Are you aware that the law allows it in that particular instance?
A. I understand that does in some cases.
Q. Yes.
A. But I'm confused as to the expanded part of the budget.
Q. Yes, sir.
A. I don't think it should be. If the law says $22, I think that's it.
Q. Yes, sir. Thank you. Thank you, Mr. Chairman.
THE CHAIRMAN: Mr. McConnell.
SENATOR MCCONNELL: Thank you, Mr. Chairman.
EXAMINATION BY SENATOR MCCONNELL:
Q. Mr. Kelly, then if the law says that it's supposed to be ex parte and
the judge is supposed to uphold the law, then you don't have a problem with
it?
A. No, sir.
Q. All right.
A. If that's an approved legislative, representative government by the people, I
have no problem whatsoever.
Q. But if that law says ex parte because the General Assembly passed it, then
you've got a problem with the General Assembly?
A. I do. I'd like to take that one step further. If that says that because of
some Chief Justices, and let me use Ms. Toal, if I may, she wrote this thing,
because she read the Constitution to say that it included that, I would have a
problem with that.
Q. Well, I'm looking here at the opinion, and correct me if I'm wrong, but it
appears to turn on the question of, first of all, that the law says ex parte,
and that's something that the General Assembly probably needs to revisit, to
look at.
A. If that's true, I've served the purpose that I had when I come here when I
made the complaint.
Q. Now, and in the case of Judge Finney, though, you're not complaining about --
you made reference to a sport coat or something of that nature, but with Judge
Finney, there is no question here about a $300 sport coat or a fine men's
clothing store or anything like that. This boil downs basically to this
question in this case about an ex parte hearing and the right of the public to
know or the right of the paying entity, the county, to have some input on what's
reasonable?
Printed Page 5103 . . . . . Thursday, April 28,
1994
A. Let me make sure I understand what I think as opposed to your question. I
understood there was some $500 at Judge Anderson's level for clothes. Now, I'm
not condemning him in any way at all other than the fact that his so-called
unanimous vote upheld what was presented by the defendant at the -- at Judge
Anderson's level. I have no qualms with it, with his personal thing or
anything.
I didn't know there was any involvement of stealing a coat, you know. I
thought it says, well, we need $500 to dress this person up, so he can be
presentable to the jury. And if that's the case, I would be against that.
Q. I understand. Thank you, sir.
THE CHAIRMAN: Before you leave, Mr. Kelly, let me just point out what I think
is a pertinent part of the case. The -- they are interpreting a statute which
provides for an ex parte proceeding and that was a legislative statute which
was enacted which I would note was changed to some degree in 1993. And the
Court in this case that you're referring to, the Court was interpreting the old
statute that existed at that time.
I don't know if we changed the ex parte language, but we did change to some
degree the -- how the fees are approved in 1993. But they were interpreting a
statute, which specifically said ex parte proceedings.
And what we'll do is pass -- we're going to ask Justice Finney to come back
to respond to your testimony, but also I would like to pass to you a copy of the
opinion because I note that you had a copy of the news summary, but perhaps
didn't have access to the opinion. If I could pass to you a copy just so you
can have it with --
MR. KELLY: Keep in mind, I'm going by the news media.
THE CHAIRMAN: I understand that.
MR. KELLY: I stated that in the beginning.
THE CHAIRMAN: I understand that. I just thought I would --
MR. KELLY: I'm a man on the street. You know, rumors, although you don't know
they're rumors may have as much effect as truths.
THE CHAIRMAN: We certainly --
MR. KELLY: That's the point I'm trying to make.
THE CHAIRMAN: We accept that and we thank you for your presence today and your
testimony. If you would take your seat again. We're going to ask Justice
Finney to come forward.
MR. ELLIOTT: Mr. Chairman, I just might mention to you that at Justice Finney's
level, he didn't have the question before him of what the money was to be spent
on or how much. It was only who would participate in the hearing and how that
hearing would be conducted.
MR. KELLY: Thank you.
Printed Page 5104 . . . . . Thursday, April 28,
1994
THE CHAIRMAN: Thank you, Mr. Kelly, very much. Justice Finney, you're still
under oath.
JUSTICE FINNEY: Thank you, Mr. Chairman.
THE CHAIRMAN: I would ask you if you could briefly respond to the allegations
that are raised in Mr. Kelly's letter and the comments he made just a moment
ago.
JUSTICE FINNEY: Well, other than to say that I think the point made by Mr.
Elliott with respect that when the matter got to us, we were talking about
concepts and we were talking about the need for services as mandated by the
statute and the Constitution of the State of South Carolina.
With regard to the individual items, this opinion and I have no independent
recollection of what the factual scenario before us was at the time, we felt
that the statute mandated that there be ex parte proceedings when there was a
determination that they were necessary under the law.
Again, I think that Mr. Kelly's presentation indicates a need for the
judicial branch and the legislative branch and the citizens and the -- for
State to be more in communication. I do not apologize to anybody for my
precepts with regard to conservative use of the money of the people of the State
of South Carolina. But that there is in this instance a misconception.
When I made reference a moment ago to I prohibited ex parte communications, I
think the lawyers and perhaps the Members of the Committee understood clearly
that I was talking about an individual lawyer or an individual citizen and Mr.
Kelly was talking to me as a judge about some matters which were pending before
us. The concept as used in the Statute and as used in this case of ex parte, it
is permitted because in order to preserve and protect the rights of the
defendant, so that we don't get a reversal by some other court and have to redo
it again. The statute proscribes it and what this case did was to follow what
we interpreted the statute to mandate, but it was not inconsistent, I assure
you, with my saying that I don't permit ex parte. In other words, I wouldn't
let you or anybody else talk to me about litigation unless the legislature or
the Constitution required it.
Now, I'll be happy to answer any other inquiries that any Members of the
Committee have.
THE CHAIRMAN: Questions from the Committee Members? If not, thank you, Justice
Finney. And let me just say for you and any of the other candidates, one of the
opportunities that we afforded candidates in the prior races was to reduce to
writing a statement regarding their candidacy and put it into the record in this
proceeding if they wish to do so.
Printed Page 5105 . . . . . Thursday, April 28,
1994
Some candidates chose to exercise that right, some did not. But I wanted to
offer that to all the candidates, yourself included today, if you'd like us to
do that, you can pass forward a statement in the next day or so, we'll
incorporate it into the transcript.
JUSTICE FINNEY: Thank you, Mr. Chairman. Based upon the work load of this
committee, I would respectfully decline the opportunity. I would be happy to
answer any questions that any member may have in writing if it's necessary
Otherwise, I appreciate the opportunity to be here. Thank you.
THE CHAIRMAN: Thank you very much. Before we move into the next election which
is Associate Justice for the Supreme Court, let me just say that candidates from
time to time ask us when we're going to make a decision in these cases. In
fact, they ask us frequently when we're going to make decisions regarding
screening. Let me tell you a little about what our time table is.
It will -- generally takes about two weeks or so to get a transcript back and
then it takes the committee a week to a week and a half or so to formulate
opinions on the races that we're considering and to pass around draft copies of
our findings, so we're probably looking at sometime in, I would guess, mid
April before we actually reach findings and we actually have a report that we
issue on the hearings that we had today.
So for time's sake, we're probably looking at mid April or so. The election
is scheduled for May 4th right now, so we're going to try to move as quickly as
we can to try to render an opinion, but we're looking at a couple of weeks for
the transcript and probably a week or so, maybe a week and a half at the most
beyond that time and in the Committee's deliberation over the transcript and its
final report.
Now, the first candidate in the Associate Justice for the Supreme Court is
Ralph King Anderson, Jr. Judge Anderson, if you would raise your right
hand.
RALPH KING ANDERSON, JR., having been duly sworn, testified as follows:
THE CHAIRMAN: Judge Anderson, your last screening was October 16, 1990 and that
was a screening for the seat on the Circuit bench, which you currently hold.
Have you had a chance to review your Personal Data Questionnaire Summary?
JUDGE ANDERSON: Yes, I have.
THE CHAIRMAN: And is it correct?
JUDGE ANDERSON: Yes, it is.
THE CHAIRMAN: Are there any clarifications or changes that need to be made?
Printed Page 5106 . . . . . Thursday, April 28,
1994
JUDGE ANDERSON: None.
THE CHAIRMAN: Is there any objection at this time to making that Summary a part
of the record of this proceeding?
JUDGE ANDERSON: No.
THE CHAIRMAN: All right. With that being the case, it is so ordered.
PERSONAL DATA QUESTIONNAIRE SUMMARY
1. Ralph King Anderson, Jr.
Home Address: Business Address:
2997 Pamplico Highway P. O. Box 1562
Florence, SC 29505 Florence, SC 29503
2. He was born in Florence County, South Carolina on November 13, 1936. He
is presently 57 years old.
4. He was married to Loretta Lynch on August 31, 1957. He has two children:
Ralph King, III (Assistant Attorney General - South Carolina), and Debra
Arlene Anderson Vause (part-time music teacher and church pianist).
5. Military Service: None
6. He attended Clemson College; September, 1954 - August, 1956; received 90
credits; transferred directly from Clemson College to the University of
South Carolina Law School, under an arrangement existing at that time. He
attended the University of South Carolina Law School; September, 1956 -
June, 1959; received LLB Degree (this degree changed to Juris Doctor on
September 3, 1970).
8. Legal/Judicial education during the past five years:
He attended the Judicial College in Reno, Nevada for one week and has
attended numerous legal/judicial seminars conducted at the University of
South Carolina Law School and in other locations.
9. Taught or Lectured:
10/30/86; Bench Bar Conference on Criminal Trial Advocacy; Batson v.
Kentucky; 86-38
10/20/88; Eminent Domain (JCLE); Judicial Perspective (Panel Discussion); 88-
40
Printed Page 5107 . . . . . Thursday, April 28,
1994
11/4/88; Bench/Bar Conference on Criminal Law; Jury Instructions; 88-43
1/20/89; 4th Annual Criminal Law Update 1988 in Review (JCLE); A View From
the Bench; 89-03
9/7/90; Legal Ethics & Lawyer Malpractice; Common Pleas Perspective; 90-
32
10/19/90; Criminal Practice in South Carolina; Jury Instructions; 90-38
10/26/90; Civil Trial Advocacy Bench/Bar Conference; 90-39
6/8/91; 1991 Annual Meeting (Young Lawyer's Division); Judicial Ethics
9/27/91; Criminal Practice in South Carolina; Jury Instructions; 91-35
1/17/92; 7th Annual Criminal Law Update; Observations from the Trial Bench;
92-02
6/19/92; 1992 Annual Meeting (Young Lawyer's Division); Update on Ethics and
Trial Practice
9/18/92; Criminal Practice in South Carolina; Jury Instructions; 92-36
10/23/92; Auto Insurance Update '92; Trial of an Auto Case; 92-42
12/11/92; Attorney's Fees; Circuit Court Practice; 92-50
1/28/93; 1993 Mid-Year Meeting (Trial & Appellate Advocacy);
Circumstantial Evidence
Bridge the Gap (1984-present); Nuts & Bolts of Circuit Court Practice;
Two Presentations Every Year
10/8/93; South Carolina Circuit Court Bench/Bar 1993 Update; Riding the Wave
of Demonstrative Evidence: Admissibility of Computer-Generated Animations on
Videotape
12/17/93; Is Your Law Office Safe? Frivolous Proceedings Act and Rule 11
2/1/94; South Carolina Probate Judges Annual Seminar; South Carolina Rules of
Civil Procedure; Efficacy and Use in Probate Court
3/5/94; North Carolina/South Carolina Court Reporters Convention; Charlotte,
North Carolina; Duties and Responsibilities of Court Reporters in Circuit
Court
10. Published Books and Articles:
A publication entitled "Nuts and Bolts" has been authored by him.
In addition, he has written numerous materials for use at Judicial/Legal
Seminars.
Printed Page 5108 . . . . . Thursday, April 28,
1994
12. Legal experience since graduation from law school:
(a) practiced law in Columbia with Mr. R. K. Wise from July 17, 1959 until
December 1, 1959
(b) opened practice in Florence, South Carolina in December, 1959 running
through 1960
(c) early part of 1960 to December of 1960 - practiced law in Marion, South
Carolina under a share arrangement with Waddell Byrd
(d) In December, 1961, became employed with the firm of Yarborough, Parrott
and Anderson and remained until September of 1979
(e) sworn in as Circuit Judge in September of 1979, serving continuously
until present date
13. Rating in Martindale-Hubbell:He has been on the bench for 14 1/2
years. He does not know his last rating in this publication.
20. Judicial Office:
Elected as Circuit Court Judge, beginning service on September 14, 1979,
serving continuously until present. The Circuit Court jurisdiction is
unlimited except by statutory and constitutional parameters.
21. Five (5) Significant Orders or Opinions:
(a) State v. Jonathan Dale Simmons, ___ S.C. ___, 427 S.E.2d 175
(1993). This is a death penalty case. Numerous issues were involved
in this trial relating to the death penalty law and criminal law in
general. The Defendant received the death penalty. The South Carolina
Supreme Court affirmed this death penalty trial. Certiorari was
granted by the United States Supreme Court on the issue of parole
eligibility. The case was argued before the United States Supreme
Court on January 18, 1994.
(b) State v. Thomas Lee Davis, ___ S.C. ___, 422 S.E.2d 133 (1992).
This is a death penalty case. Numerous issues were involved in this
trial relating to death penalty law and criminal law in general. The
Defendant received the death penalty. The South Carolina Supreme Court
affirmed this death penalty trial. In this case, the South Carolina
Supreme Court approved in haec verba his charges on:(1) What is
a dangerous, or deadly, object? (2) Miranda Rights; and (3)
Printed Page 5109 . . . . . Thursday, April 28,
1994
Physical Torture. In addition, major issues were involved in regard to
"Competency to Waive Rights and to Stand Trial." This was the first
case tried in South Carolina using Section 17-21-85. The murder occurred in the
County of Greenwood. The jury was drawn in the County of Florence and
transported to Greenwood County for trial pursuant to Section 17-21-85.
(c) Joey M. Oliver, as Guardian ad Litem for Bradford Michael Oliver v.
South Carolina Highways and Public Transportation, ___ S.C. ___,
422 S.E.2d 128 (1992). This case involved litigation issues under the
South Carolina Tort Claims Act. The gist and gravamen of the case
relates to unusual evidentiary issues and application of caps on
verdicts awarded against governmental entities.
(d) State v. James Russell Cain, 377 S.E.2d 556 (S.C. 1988). This
is a death penalty case. Numerous issues were involved in this trial
relating to the death penalty law. The Defendant received the death
penalty. The Supreme Court affirmed this death penalty trial.
Certiorari has been denied by the United States Supreme Court.
(e) Alvin Davis, Jr. v. The State of South Carolina, (Docket Number
85-CP-40-1771). This case was tried in Richland County and involved
the unique scenario wherein Davis had been convicted of serious crimes,
including armed robbery. By an administrative snafu, Davis was
released from jail through an error without serving his jail time.
Davis was arrested approximately ten years after his original
conviction. His Order disposes of numerous due process and
constitutional issues. The Order was reported by the National Law
Journal in detail, including interviews of legal scholars on the
subject. After filing Notice of Intent to Appeal, the State dismissed
its appeal from the Order.
22. Public Office:
Elected to the South Carolina House of Representatives from Florence County
in November, 1972, serving continuously to August, 1979.
24. Unsuccessful Candidate:
He was defeated as a candidate for the South Carolina House of
Representatives in 1970 by less than 200 votes. He was defeated as
Printed Page 5110 . . . . . Thursday, April 28,
1994
a candidate for the South Carolina House of Representatives in 1962 by an
overwhelming vote.
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