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 5120, Apr. 28 | Printed Page 5140, Apr. 28 |
Printed Page 5130 . . . . . Thursday, April 28, 1994
Q. Thank you. You are the second most senior member of the Circuit Bench and I'd like to ask you what are the most significant changes that you've seen in the Circuit Court bench during your tenure there?
A. Well, I think, first of all, the numbers have fluctuated. When we first came on, the nine of us in
'76, there had -- there was a tremendous backlog because of the fact that the County courts were being dissolved, so we accepted all of those cases and we had a tremendous backlog and so up until about 19 probably 85, 86, we began to whittle that down. And we began to be able to handle cases with more facility. So I think that's one of the major changes.

What we're seeing now is the build back -- building back up of the case loads and we have had, too, significant increases of litigation because of certain substantive changes in the law, primarily the abolition of immunities of all sorts, which have brought in a great amount of the litigation and the Unfair Trade Practices Act, a great many acts of the General Assembly and decisions of the Supreme Court have opened up more avenues for litigation. And so we're being faced and challenged constantly almost on a monthly basis to learn new laws and find out what these things mean. The Omnibus Crime Act, or the Reclassification of Crime Act, all these things, the contributory negligence, consideration of the comparative negligence which we had to learn all over again, so it's been a constancy in learning that we've had to undergo. I think there's been more movement in that area than probably at any other time that I can recall in the law.
Q. While you've been on the bench, what's been your most challenging case and why?
A. I think the Presbyterian Church litigation case. It was a nonjury case and we had some outstanding lawyers in there. It was of national concern because the issue presented as to how it was that dissidents could withdraw from the Presbyterian Church and if so, who owned the church property. And it was an interesting case and I just loved doing research on it and write an opinion which you have as a part of your material there.

The result was so striking when you look back at it, when 39 people could control the church property were out of a congregation of 700, which was a result of it. And when you think of that kind of result, you know it took some really digging to be able to justify that. And I was perfectly satisfied with the result and I'm happy to say that opinion was never appealed. It was the law in the case and I was told there was no basis for an appeal because I had covered all the holes in it and there was no need to it. I was really happy with that and proud of it.
Q. What advice would you give to new lawyers just starting out?

Printed Page 5131 . . . . . Thursday, April 28, 1994
A. Well, new lawyers just starting, if you haven't learned already go to night school or trade school, learn how to use a computer. When you learn to use your computer, buy a lap top.
Q. Everybody needs a lap top computer?
A. Yes, indeed.
Q. What is your opinion, Judge Baggett, about the proposed Rules of Evidence, the new Rules of Evidence, statutory Rules of Evidence?
A. I haven't studied them. I couldn't tell you to save my life to be honest with you.
Q. Do you think that they're necessary? The Court is discussing coming out with Rules of Evidence.
A. I haven't studied them. I couldn't possibly tell you that.
Q. Have you served as an acting appellate judge?
A. Yes, I have.
Q. And your experience there, how has it been?
A. Well, it was real interesting. Rather awesome. I think I've sat on about four cases, the latest of which was a Thrift case which was a tremendous case. We met many times on that. And it was a wonderful experience. I thoroughly enjoyed it. I think I'd really -- the Thrift case, in particular, convinced me that I would enjoy being on the Supreme Court.
Q. What is your philosophy of the appropriate demeanor for the judge in a courtroom, in his courtroom?
A. How you conduct your court?
Q. Yes.
A. You mean in the courtroom? I believe the -- a court is somewhat like a church. It's a shrine of sorts and I think unless you have the proper decorum and respect that people are not going to respect the law. I think that includes keeping the noise down, limiting access, requiring proper dress, proper manners of judges and the lawyers and having witnesses of that sort and I think that's important. I recently wrote a little article that was published in the Trial Lawyers Magazine concerning that subject and I enjoyed doing that because I may have been accused of being a little old fashion about some of the things that were put in, but I do think they're important, giving the proper respect to the court and to the law and so I think that's speaks about as well as I could say about that.
Q. What qualities of the term judicial temperament are your strongest?
A. I think courtesy is one of them and a sense of constancy and seeking to be fair, trying to find the right result to do justice and that's a very difficult thing to do in many cases. But my ambition, as I perceive the law to be, is to do justice to the case we have before us.
Printed Page 5132 . . . . . Thursday, April 28, 1994
I mean justice is a very fleeting thing. It depends upon the mentality and the judgment of people. Justice, I submit, is almost a divine concept and what little wisdom we're given imparted to us to try to accomplish that, I think, is a very difficult thing to do, but I think open-mindedness and fairness and honesty in all that you're doing are the keys to that.
Q. Are there aspects about being on the Circuit Court bench that you would miss if you became a new associate?
A. Well, the contacts, the people, lawyers, the courthouse people. I've been in every county in the state. I've met some wonderful people. I've had some great experiences. I'd miss that, that contact. I really will.

But I will say this, though, the grind and the stress of the Circuit Court will not be missed by me. I want to say that pretty clearly. Every day you've got to go meet new challenges, every day you're going to have to sentence people and a week goes by, and you sentence a hundred people or so and you have to decide each case individually, it's a stressful job and I don't particularly -- I don't -- I'm not going to miss that aspect of it.

I'll miss the fellowship of it, but I think the less stressful job of an appellant court will be very nice.
Q. Right now, Judge Baggett, how do you deal with that stress?
A. I've had the good fortune of being able to cleanse my mind as I go home every day. I sort of flush it out, all those things that have been bothering me and I start over new, every day with a new mind, a new mind, unless it's something really deep. I don't let it bother me. I shed it all and take it off when I take my robe off and I go home and deal with that and my wife is very considerate of me. We've been married for 50 years and she knows me and we just get along fine and we just don't have any problem with that.
Q. We have looked at the 30-day report and you don't show -- 30, 60 and 90-day report, you don't show any cases outstanding for the period --
A. No.
Q. -- that we were looking at. Also, could I ask you how you remain current? Could you describe your work habits?
A. Well, I haven't had a lot of nonjury work lately. Most of my work has been in General Sessions criminal work and so as a result of that, you don't have any reason to have anything overhanging.

I believe that the best time to make your decision is when you've heard something. And if you hear it, you're never going to be in a better position to make a decision than you are right then, assuming you've got the proper law briefs and things that you're ready to do it and so I make my decisions.

Printed Page 5133 . . . . . Thursday, April 28, 1994
Generally speaking, I will direct the attorneys -- the prevailing attorney to write the opinion, submit a copy to opposing counsel and then submit it to me for final approval in the ordinary case.
Q. You did mention an article you wrote for the Trial Lawyers magazine. Have you participated in the presentation of other CLE's or the writing of other articles?
A. I wrote a little article for South Carolina Circuit Judges Association, which was sort of private, but I wrote a little thing about the circus, a little just thing -- a thing about taking my granddaughter to the circus was published in the Florence paper, but I like to write. And I think I'm going to be doing more of that in the future. I've not written anything other than what you referred to.

I used to take part in JCLE's a good bit as a panelist and I've been to -- I spoke to the trial lawyers on some issues of capital murder cases and opening statements to the defense bar. That's about it.
Q. What is your philosophy about ex parte communication, sir?
A. Well, obviously, we all know now that's taboo, that you cannot do it. I mean we don't do that. I can recall one time as we were talking as I was listening here, I had a multiparty, multi million dollar environmental case that had been pending in Lexington County for about six years. It had been specially assigned. I tried to get rid of it.

I called a settlement conference and I used one of the devices that is used in arbitration and in mediation and I asked each side would they agree to let me speak to each side separately in an effort to try to resolve it. And they agreed and it was very helpful.

I would take the parties, the lawyers off to the side and talk about it and see how we could come to a conclusion on it, send him out, take the other side in, talk to them and then try to bring them together. I came awfully close to do doing it. And two years later, the same method was used and it was settled by someone else, multi million dollar settlement. That was an exception, though.
Q. Your son is, as I understand, a lawyer in Greenwood?
A. Yes. That's correct.
Q. Does it ever occur that you need to recuse yourself in any of those cases?
A. No. I never -- he practices in the Greenwood area. The only time that we have that is I may hold court in Saluda or McCormick and I never hear anything from him at all. When it comes to other cases from his firm, I tell the lawyers involved to ask the -- to tell your client that a member of this firm -- that the judge is a father of a member of the firm,

Printed Page 5134 . . . . . Thursday, April 28, 1994
that if they have any doubt about the problem whatsoever, I'll recuse myself, otherwise we go ahead and do it.

I do that because we are -- in my little county, we have such little court and we have got to dispose of the cases, but I let them know what the relationship is. My son never appeared before me, but the other members of the firm, I let them know in advance and then they make the decision what they want to do.
Q. Do you see this changing in any way when you -- if you move up to the Supreme Court?
A. No. No. Not at all, except I wouldn't hear anything out of his firm at all.
Q. What is your policy about accepting food and meals, social hospitality from attorneys?
A. Well, I just don't have any problem with that. I don't get any offers of it anymore. So there is no harm, no problem, just like perhaps you folks. It's not a problem. Not a problem.
Q. You and I will go out for coffee later.
A. Okay. Okay.
Q. Judge Baggett, what are your ethical considerations about participation in extra -- I want to call it extracurricular. That's not the right word. Extrajudicial organizations, social organizations or -- community group?
A. Counselor, I almost live in a monastery. I didn't realize it at first what it was like to be a judge, but I soon learned that whereas most of my friends were lawyers, I could no longer have them in that kind of relationship. I dropped out of all clubs except my Masonic order, where I'm now a life member of the Blue (phonetic) lodge. That's all I do, and my church.

Now, I don't have anything to do with anything else. Nothing. I don't belong to a country club. I don't play golf. I don't do any of those things.
Q. Do you see yourself becoming more of a monastic lifestyle kind of person being on the Supreme Court? Would that make it an even more sequestered --
A. I don't think so. I don't think so. Don't misunderstand me, I'm not without friends. And I have a large family, but I don't see that's any problem. It won't make any difference, which is not to say that I don't necessarily enjoy that.
Q. Your report, Judge Baggett, shows you spent $312 on this candidacy. We don't show, though, that you have reported that to the House and the Senate Ethics Committees and would ask that you do that.

Printed Page 5135 . . . . . Thursday, April 28, 1994
A. I'm sorry. I thought this was all I was supposed to do.
Q. So if you would just copy the --
A. That's why I filled out that report.
Q. If you could just copy that, that'd be --
A. Oh.
Q. Do you have a letter of recommendation, Judge Baggett, from the Lexington County Bar?
A. Uh-huh.
Q. Or from the president rather --
A. The president, that's correct.
Q. From the president. Could you explain that, how that came about? Did you ask him for that?
A. I asked -- we needed five letters and I find it awkward
-- you know, ya'll said don't use lawyers that appear before you on a regular basis. And lawyers are the ones that I know better than anybody else, so I asked the president what he thought about it.

They first wanted to pass a resolution and I said don't do that. You've got to wait until the screening takes place and then you can consider it, after the report is made. But I said if you all want to do anything, poll your Executive Committee and if you want to make a recommendation as opposed to an endorsement, that'd be fine with me, but I needed some -- needed letters and so that's how that came about.
Q. Have you sought directly or indirectly the pledge of any legislator?
A. I have not.
Q. How have you gone about introducing yourself and conducting --
A. Okay.
Q. -- this candidacy?
A. I first wrote a letter just simply announcing the fact that I was going to be a candidate for the Supreme Court, intended to file prior to the opening of it. I have attended a few of the functions in the evening trying my best to get to know some members of the General Assembly. I've been out of it for 20 years, and so I don't know many of them.

And recently, I mailed out a resume which I had done at my expense to try to acquaint them with who I am.
Q. Have you requested any friends or colleagues to contact any Member of the General Assembly?
A. If -- yes, but to be careful not to ask for commitments or just simply if they want to recommend him to me, make comments about me, but they're specifically not to ask for any pledge or commitment.
Q. That's all I have.

Printed Page 5136 . . . . . Thursday, April 28, 1994
THE CHAIRMAN: Questions from the Members? Thank you, Judge Baggett?
A. Thank you.

ADDENDUM TO TESTIMONY OF JUDGE BAGGETT:

March 31, 1994
The Honorable James H. Hodges
Chairman
Judicial Screening Committee
211 Gressette Building
Post Office Box 142
Columbia, SC 29202

Dear Mr. Chairman:

I appreciate the opportunity to appear before the Committee last Tuesday and am grateful for the courteous treatment given me.

A question was asked of me by counsel for the Committee as to what I thought of a proposal of the Supreme Court to provide official rules of evidence. I responded that I had not read them and therefore could not comment on the subject. I felt dumbfounded by not being able to answer what appeared to be an appropriate question.

I later had an opportunity to discuss this with Ms. McNamee, counsel for the Committee, and we both agreed that there was a misunderstanding of the question.

Upon further inquiry of Chief Justice-Elect Chandler, I find that the subject of adopting official rules of evidence has been and is a subject of long study and there have not been any publications of the proposed rules.

Obviously, this explains why I could not answer counsel's question. I certainly do not mean to criticize her at all.

If possible, please make this a part of the record.

Respectfully,
/s/Julius H. Baggett

THE CHAIRMAN: We've got two candidates left in the Associate Justice race today. Judge Pleicones has a National Guard responsibility and will be with us tomorrow morning at 9:00 o'clock. Let me just suggest, how does the Committee feel about taking a five or ten minute

Printed Page 5137 . . . . . Thursday, April 28, 1994
break and then trying to wrap the remaining two candidates up before noon? Is that okay?
REPRESENTATIVE ALEXANDER: Fine.
THE CHAIRMAN: If we can take ten minutes, and start back about 11:25, we ought to have enough time to finish the two before 12:00.
SENATOR MCCONNELL: Mr. Chairman, I'm going to probably have to leave a proxy during the Senate time because we have a matter coming up, a confirmation hearing on the Senate floor this morning that I intend to be involved in the debate.
THE CHAIRMAN: Is that -- what time is that, Senator?
SENATOR MCCONNELL: That would come on -- sometime after 12:00, but I believe the Senator here is going to be up here, so I just wanted to alert you, I've got to be on that Floor for that confirmation process.
THE CHAIRMAN: Let me just ask the Committee Members, in terms of scheduling, we have committee meetings this afternoon, but we have -- how many Family Court do we have scheduled today? Six candidates? What's the pleasure of the Committee? Do you want to come back -- do you want to start back right after 12:00 and try to plow through those or do you want to -- 2:00? Okay, I'm told they aren't scheduled to be here until 2:00 anyway, so that answers that question. Why don't we finish the Supreme Court race? I think we can finish those before 12:00, Senator McConnell, and then we'll just break until 2:00.
SENATOR MCCONNELL: Okay.
JUDGE BAGGETT: Mr. Chairman, may I be excused?
THE CHAIRMAN: You may.
JUDGE BAGGETT: Thank you so much.
THE CHAIRMAN: Thank you.

(A short break was taken)
THE CHAIRMAN: The Committee will come to order our next candidate is Judge J. Ernest Kinard, Jr. Judge Kinard, if you'd raise your right hand please.
J. ERNEST KINARD, JR., having been duly sworn, testified as follows:
THE CHAIRMAN: Judge Kinard, your last screening was February 23, 1989. Have you had a chance to review the Personal Data Questionnaire Summary?
JUDGE KINARD: I have reviewed it. It's correct except for a few typos, which if you can stand that, it's correct.
THE CHAIRMAN: All right. Any objection to making the Summary a part of the record?
JUDGE KINARD: No objection at all.

Printed Page 5138 . . . . . Thursday, April 28, 1994
THE CHAIRMAN: It will be done at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. J. Ernest Kinard, Jr.
Home Address: Business Address:
1900 Lyttleton Street Room 310, Kershaw County Courthouse
Camden, SC 29020 1121 Broad Street
Camden, SC 29020

2. He was born in Newberry, South Carolina on October 18, 1939. He is presently 54 years old.

4. He was married to Kay Livingston Davis on July 21, 1963. He has three children: Kay Marie, age 28 (teaches English at Camden High School); Audrey, age 26 (teaches English at Summerville High School); and John, age 23 (Assistant Manager of First Palmetto Savings Bank in Lancaster, SC).

5. Military Service: N/A

6. He attended Clemson University, fall of 1957 until mid-year of 1960, then transferred to the University of South Carolina with plans to subsequently enter USC Law School. He graduated USC in 1961, with a Bachelor of Arts Degree. He entered law school in the fall of 1961. He graduated mid-term of 1964 with a LLB Degree (Wig & Robe while in law school).

8. Legal/Judicial education during the past five years:
4th Annual Criminal Law Review at USC; January 20, 1989; 5 hours JCLE credit
Current Issues in Civil Litigation at USC on April 15, 1989; 5 hours JCLE
National Judicial College at Reno, Nevada; July 9 - August 4, 1989; 126 JCLE hours credit
Items of Interest in Circuit Court at USC; October 26-27, 1989; 7.5 hours JCLE credit
Also attended CLE's at Mid-Year and Annual Meetings of S. C. Bar for 9 hours JCLE credit
Circuit Judges meeting; 6 hours JCLE credit
Circuit Judges Annual Conference; 1989; 7.5 hours JCLE credit

Printed Page 5139 . . . . . Thursday, April 28, 1994
Criminal Law Update in Columbia; January 25-26, 1990 for 10 hours JCLE credit
Charleston Seminar in Charleston; 3/30/90 for 5 hours JCLE credit
In 1990, he also attended CLE's at Mid-Year meeting of the Bar in January, Trial Lawyers in August and Defense Lawyers in October for 10 hours JCLE credit
Circuit Judges Association; 6 hours JCLE credit
Circuit Judges Annual Conference; 7.5 hours JCLE credit
Criminal Law Update in Columbia; January 25, 1991; 5 hours JCLE credit
The Future & the Courts at Greenville, SC; April 4-5, 1991; 10 hours JCLE credit
Also attended CLE's at 1991 Annual Meeting of the South Carolina Bar held in Hilton Head; June 7-8, 1991. Trial Lawyers Annual Meeting at Hilton Head; August 15-17, 1991. Defense Attorneys Annual Meeting at The Cloisters in Sea Island, Georgia; November 8-10, 1991
Attended Circuit Court Judicial Conference; August 21-23, 1991; at the Marriott Hotel in Columbia
Criminal Law Update in Charleston; January 17, 1992; 5 hours JCLE credit
Employment & Labor Law in Asheville, North Carolina; June 20, 1992; 3 hours JCLE
Bench/Bar Update in Columbia; October 9, 1992; 6.25 hours JCLE credit
Environmental Law in Columbia; January 23, 1993; 1 hour JCLE credit
Law and Economics in Columbia; February 27, 1992; 1 hour JCLE credit
Courts, News Media & the Law in Columbia at USC; October 22, 1992; 1.25 hours JCLE credit
Attended on January 8, 1993; 3-224 - 42 USC Sec. 1983; the SC Torts Claims; 6 hours JCLE credit
Attended on January 30, 1993; 3-230; Mid-Year Meeting; 8th Annual Criminal Law Update & S. C. Bar for 6.5 hours JCLE credit
Attended on August 29, 1993; 3-1431; 1993 Annual Convention of SCTLA for 12 hours JCLE credit
Attended on September 19, 1993; 3-1548; Settlement Techniques, ABA; for 11.67 JCLE hours
Attended on September 22, 1992; 3-1547; Significant Developments in Search and Seizure, ABA; 13.33 hours JCLE credit

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