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 5330, Apr. 28 | Printed Page 5350, Apr. 28 |
Printed Page 5340 . . . . . Thursday, April 28, 1994
23. Employment As a Judge Other Than Elected Judicial Office:
None except as listed in Question #20

25. Occupation, business or profession other than the practice of law:
He owns a real estate agency known as Sanders Real Estate Agency, and he is the Broker-in-Charge.

26. Officer or Director: He owns a real estate agency known as Sanders Real Estate Agency, and he is the Broker-in-Charge.

32. Sued: He has been made a party to several Foreclosure Actions where he had a lien on the property being foreclosed. He was party to a lawsuit, Kustom Electronics v. Sanders, which was filed and then dismissed when a voluntary non-suit was requested and granted to Kustom Electronics.

44. Bar Associations and Professional Organizations:
South Carolina Bar Association; Allendale County Bar Association (Treasurer, Vice-President)

45. Civic, charitable, educational, social and fraternal organizations:
Fairfax Lions Club - President, Secretary, Treasurer and Lion of the Year for the years 1988-1989 and 1992-1993; Allendale County Rural Health Programs, Inc. (Board of Directors); Allendale County Business Association

47. Five (5) letters of recommendation:
(a) Walker R. Harter, President
Allendale County Bank
P. O. 248, Fairfax, SC 29827-0248
632-2221
(b) Michael J. Cavanaugh
P. O. Box 50666, Columbia, SC 29250
734-9220
(c) Honorable Brenda P. Bennett
Judge of Probate, Allendale County
P. O. Box 737, Allendale, SC 29810
584-3157

Printed Page 5341 . . . . . Thursday, April 28, 1994
(d) The Reverend Kenneth B. Timmerman
First United Methodist Church
P. O. Box 1367, Myrtle Beach, SC 29578
626-5957
(e) Det F. Bowers, Jr., Esquire
P. O. Box 11384, Columbia, SC 29211-1384
254-5555

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
Appointed Municipal Judge of Town of Fairfax:1980-1994
Appointed Municipal Judge of Town of Varnville:1984-1994
Appointed Municipal Judge of Town of Brunson:1988-1989
Appointed Interim Municipal Judge of Town of Allendale:1992
Appointed Master-in-Equity for Allendale County:April, 1991 to 1994

10. Extra-Judicial Community Involvement:
He is involved in Fairfax Lions Club, First Baptist Church of Fairfax affairs and other community areas. He does not use his Judicial Office to further these interests.

The Board of Commissioners on Grievances and Discipline reports that no formal complaints have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you.

The records of applicable law enforcement agencies:Allendale County Sheriff's Office are negative; Fairfax City Police Department, negative; SLED and FBI records are negative. Judgement Rolls of Allendale County are negative. Federal Court records showed no judgement or criminal actions against you.

There were five civil actions to which you were a party. Three of these were actions of foreclosure brought by the United States against you and others. One action was a breach of contract action brought against you, which was dismissed in 1986, and the final action was brought by you as administrator of an estate against the Allendale Police Department and the City of Allendale, and was dismissed in 1987.

No complaints have been received.
MR. SANDERS: That's correct.
SENATOR MCCONNELL: And no witnesses are present to testify. Did you bring your fishing pole or --

Printed Page 5342 . . . . . Thursday, April 28, 1994
MR. SANDERS: I was going to add that. I agree with everything Mr. Myrick said about Allendale County.
SENATOR MCCONNELL: All right.
MR. SANDERS: It's waiting on me back at home.
SENATOR MCCONNELL: The Chairman has been giving people the opportunity, of course, to give a statement if they wish. Was there anything you wish to say before I turn you over to Mr. Elliott for questions?
MR. SANDERS: No, sir, I'll waive any opening.
SENATOR MCCONNELL: If you would, please answer any questions that he has for you.
MR. SANDERS - EXAMINATION BY MR. ELLIOTT:
Q. Let's talk about your background experience first, too, in Family Court. Could you sort of give us that background? What is that? What have you done in Family Court? What percentage of your practice is family law?
A. On my data information sheet, I listed, it's 35 to 40 percent. I have been practicing in Family Court regularly since I was admitted to the Bar, in the late seventies. I have handled every type of case, whether it be divorce actions, termination of parental rights, represented plaintiffs and defendants, most of them wives, represented juveniles.

And I've also at times prosecuted cases for the Fourteenth Judicial Circuit when the acting solicitor was not available, and I've also acted in many cases as the guardian ad litem and represented guardian ad litems. You know, we live, again, in a small county. You get a chance to do a little bit of everything. You get introduced to all aspects of family law.
Q. And you've dealt with marital property and --
A. Right.
Q. -- divorces? You also have some experience as a judge. If you would, just tell us a little bit about that, you have in a number of capacities. If you would tell us a little bit about that.
A. Well, currently, I am the municipal judge for the town of Fairfax, the town of Brunson, and that may be an addition because that has changed since I made this. I've been hired as the town of Brunson judge also, again, and I am the town of Varnville municipal judge. And what -- municipal judges have only criminal jurisdiction, $500 or 30 days.

I am also the standing Master-in-Equity for Allendale County. With Allendale County being a small county, it's an optional office that Allendale County has elected to have and, of course, the jurisdiction of a Master-in-Equity is similar to a Circuit Court, but sitting without a jury.

Printed Page 5343 . . . . . Thursday, April 28, 1994
Q. What about that experience will benefit you as a Family Court judge if you're elected?
A. Well, I think that experience is going to be very vital to being a Family Court judge. As y'all know, a Family Court judge sits without a jury, and so the judge is the judge and the jury. And in Municipal Court, most cases the judge sits without a jury, and also Master-in-Equity I sit without a jury.

You have to determine the facts and apply the law to the facts, so I think it would help you to be able to handle Family Court situations that arise.
Q. In terms of legal scholarship, have you written anything in the area of family law, other than appellate or trial briefs?
A. No.
Q. Why are you -- what is it about the job of Family Court judge that appeals to you and what do you think you can contribute? And, I guess the obvious answer is for entertainment from where you come from, but aside from that, what would be your answer?
A. Well, of course, I just said I'm a municipal judge and Master-in-Equity, and I enjoy, you know, the role of being a judge. I'm very concerned and interested in the issues that come before Family Court, and I'd like to think that I can make a difference.

You know, the perception of Family Courts, whether right or wrong, is that they don't do anything to anybody, especially to juveniles, but then when you read the papers that all of our facilities are overflowing with juveniles. But if you ever go to Family Court and listen to Family Court hearings, you know, a lot of times it does appear that the litigants -- not the litigants, but the parties are just being slapped on the hand, talking about juveniles.
Q. What are your thoughts on that while we're on that topic? What can be done about the rising tide of juvenile crime from the perspective of a Family Court judge?
A. Well, I think as a Family Court judge, you've got to be ready to punish to meet the particular crime. Of course, we have to work within the framework of the system that has been established by the legislature.

But if -- you know, some juveniles can be rehabilitated much easier than others, so there are different options that you have to follow, depending on the particular facts of each case.
Q. You own a real estate agency. What would be your intentions with regard to that if you're elected --
A. I would close it.

Printed Page 5344 . . . . . Thursday, April 28, 1994
Q. You also have a number of property interests, and correct me if I'm wrong, too, but it seems that those lead you into foreclosure actions on --
A. Right.
Q. Or at least on several occasions.
A. Well, I have an -- you know, I've never been actually foreclosed against. What those foreclosure actions involve are where I have an interest, a lien against somebody on interest behind the person foreclosing, and any time you bring a foreclosure action, you have to bring -- name parties to the action, anyone who has an interest in order to clear the title to it.
Q. Is that a situation that's likely to continue?
A. Of course, I own some rental properties myself. But what rental properties I handle for other people, I would not do, but I would still own property and probably maybe have some liens against people, so it could.
Q. Does that cause you any trouble in your mind serving as a Family Court judge?
A. I don't see how it could. Of course, if anyone who was involved in any of that was a party in the court that I was sitting as judge, I'd have to recuse myself, unless there was full disclosure and no one objected to it.
Q. If you are elected, what's going to be -- or who is going to be your role model for judicial temperament?
A. Well, of course, I have -- since I have been practicing law, whether it be in Circuit Court or Family Court, I have always almost judged judges by their temperament. And by and far the judiciary that y'all have elected is a good judiciary and they have good temperament.

It's like Mr. Myrick said, you don't know bad temperament until you see it. Of course, there's some who don't have good temperament, but I would -- the judge that I would like to emulate is the judge that I am hopefully replacing, Judge Al Kleckley.

If you've ever been in his courtroom, you appreciate a judge who has his temperament because he treats everybody equally, he treats everybody with firmness, and he reaches decisions that are fair. And even though I've been before him many times, I've lost many cases, I've never argued with his decisions because of the way he renders his decisions and explains his verdict.
Q. You talked about what's good judicial temperament. I'm just interested, both of you have mentioned you've been victimized by someone with bad judicial temperament. Describe the bad judicial temperament --

Printed Page 5345 . . . . . Thursday, April 28, 1994
A. Well, a bad judicial temperament is a judge who is not respectful of the lawyers and litigants, who -- you know, I've had some judges that make, you know, being a lawyer
-- you know, I've been in that position, it makes the lawyer feel like they're stupid. There are ways of telling a lawyer that they're doing something wrong without making them feel stupid.
Q. How would you approach that? If you have a lawyer you think's, for example, not prepared on a regular basis, how would you handle that?
A. I think that I would have an in camera conference with him and express my concerns to him, that I don't think that he is preparing his cases. Of course, there's nothing I can do if he doesn't prepare his cases and as a result of him not being prepared, you know, his clients will continue to lose. But I think I would advise him, give him my advice.
Q. If you're elected to the Family Court, there are probably going to be some hearings where you fairly early on say, gosh, I've heard enough, I know what the answer is in this case and we've got a crowded docket, I need to move things along. What would you do in that instance?
A. That's a hard question because, you know, most parties want to be heard. You know, they want to have their day in court, and a lot of times a lot of the information that is presented it is not necessary in order to make a decision. I wouldn't with diplomacy try to lengthen the time that it takes each side to present their case, but I would allow each side to present their case as they think they should to protect their clients' interests.
Q. Well, talking about courtroom efficiency, too, how would you achieve that? I mean, it sounds like one of the things you might do is set time limits for hearings.
A. Well, I think it's essential. If you've ever been in Family Court, the worst thing for lawyers and litigants is to have court running behind time, which they usually do, so the judge has got to put some constraints on time, a time limit. And a lawyer will call and schedule a case for an hour when he knows the case is going to take five hours. If you have a five-hour case scheduled for an hour, that throws everybody the rest of the day out. So I think that you would have to be generally firm in holding them to the time constraints that they have put on themselves, taking into consideration that there will be circumstances where the lawyers don't have any idea that it's going to get into other issues that they have no control over.
Q. Tell the Committee how you envision making decisions and preparing orders as a Family Court judge.
Printed Page 5346 . . . . . Thursday, April 28, 1994
A. Of course, a lot of matters in Family Court are not contested. I would envision that most uncontested matters that are simple, that the attorney would prepare the order and present it to me and I would review it based on the facts presented.

The more complicated cases, I would be more inclined to issue my own opinion based on briefs or proposed orders from the respective parties.
Q. For those orders that are drafted by the attorney, what would be your procedure about that? If an attorney comes to you with the order he's asked about -- you've asked him to draft, what would you ask him? What would you make sure he's done --
A. Well, I would read it and make sure -- and I would also
-- I think it's important that the other side, if there is another side, have a chance to review that order and make any objections to it before I sign it.
Q. What's your work schedule like during a typical week now and how do you envision that working as a Family Court judge?
A. I get to the office a little bit before 7:00. I started doing that years ago because I felt like I could get more work done early in the morning. But it hasn't worked out that way because when you live in a small town, all my back door clients are bamming on my door when they see the light on. But I usually get there a little bit before 7:00 and usually it's six -- 6:30 or 7:00 before I leave. And then I go in on the weekend if I'm in town.
Q. You said a back door client? What's a back door client?
A. Well, a back door client is a client that comes to your back door and knocks on it when your office staff is not there.
Q. Oh, okay.
A. To discuss things with you.
Q. Outside normal hours?
A. Right.
Q. What's your understanding of the Canons of Ethics as they relate to gifts and social hospitality?
A. Well, I think that gifts are precluded, you know, absolutely. And social hospitality, you have to be very careful as to not put yourself in a position that -- where there may be a conflict.

But it's impossible, again, in a small area where we are not going to run into lawyers and run into people who may appear in court, but you have to keep your distance as far as discussing any type of pending Family Court matters.
Q. Well, it does seem that it would be difficult. What's the size of the Bar there?

Printed Page 5347 . . . . . Thursday, April 28, 1994
A. We have six or so practicing attorneys. But, now, you have to realize, too, in Allendale County, we don't hold court. Allendale doesn't have -- well, like right now, we don't -- we're not having any court this month because there is no money to send us a judge.

So, we don't -- Allendale County in the circuit doesn't have court but, you know, one week a month, if there's a judge. So, you know, any judge who's elected to this position would be riding not only maybe outside the circuit, but would be within the five-county area.
Q. While we're talking about that, I understand you're hampered to some degree by the amount of court that's held there, but on the average how often would you appear in Family Court on the year -- in a year?
A. Well, every time there's court in Allendale, and generally when there's court in Hampton County, too, which Fairfax, if you're familiar with geography, it's right on the Hampton County line, I'm usually in court. I also attend court in Barnwell and Bamberg Counties more so than any other counties.
Q. About how many times would that be?
A. Well, we have court about -- that's about one week every month.
Q. You're a judge now. How do you deal with ex parte communications?
A. I've heard that question, and anyone who's a judge, especially a Municipal Court judge, knows that it's a very hard situation. I have my office staff -- every call that comes into my office, they ask, and most people don't like to be asked what their call is in regards to, in order to try to stop people from calling me about a traffic ticket and those types of things.

But, you know, my position on ex parte communication is you're not supposed to have any. And if someone does get through to you, you know, friends call and they don't tell you what it's about and the first thing they say is they got pulled coming into Fairfax. You have to -- you have to cut them off and tell them that you cannot -- you know, the law requires you can't discuss it unless the prosecutor or the police officer is present, and you'll be glad to, you know, hear their court -- I mean, their case in court. And that's very hard in a small town as you can imagine when your next door neighbor gets pulled.
Q. Have you been sanctioned or held in contempt by a court?
A. I have not.
Q. In answer to question 42 on your Personal Data Questionnaire, you said you might request friends and colleagues to contact the General Assembly after screening.
A. Correct.

Printed Page 5348 . . . . . Thursday, April 28, 1994
Q. Is that still accurate? Have you made any efforts --
A. No. I sent out -- initially, I sent out a letter to all the legislators. This is back in December, which I'm sure they got summarily trashed by a lot of them, but I did send a letters.

And then I sent letters out to friends throughout the state, specifically in that letter outlining my understanding that they were not to contact any legislator on my behalf either by talking to them or sending letters prior to being cleared by the Screening Committee.
Q. Have you otherwise sought the pledge of a legislator directly or indirectly?
A. Except for, as Mr. Myrick said, hanging around here. But I haven't actually -- you know, just met and been present as we all are told you have to do, be present, but I haven't asked anybody to support me.
Q. In the area of mediation, do you have any experience in that area?
A. I do not have.
Q. Do you have any particular views or opinions about that?
A. Well, I think it's an effective way to dispose of cases with the least time and expense, without going into an actual courtroom situation. Most Family Court cases, most issues can be resolved if the parties can, you know, get down and negotiate out most of the issues that are in dispute.
MR. ELLIOTT: That's all the questions I have, Mr. Chairman.
THE CHAIRMAN: Questions from the Members?
SENATOR MCCONNELL: Yes, I've got one.
THE CHAIRMAN: You do?
EXAMINATION BY MR. MCCONNELL:
Q. If y'all don't have court but every two months, how in the world do the lawyers down there make a living? And I won't ask for the answer.
MR. ELLIOTT: I think we got one.
A. Well, you're talking about Family Court. Well, Circuit Court, generally like twice a week. Circuit Court -- well, of course, you have Circuit and you have Civil and Criminal, but --
THE CHAIRMAN: You practice in other counties, too, though, don't you?
A. Practice in other counties and that's probably why all of us do other things. I have a real estate agent and I have -- get hold of judgeships and I teach at Salkehatchie also.
Q. And you've got a fishing pole also?
A. I've got a fishing pole. And a gun, yes. That's a prerequisite for living in that area.
THE CHAIRMAN: Well, I've been both to Fairfax and Allendale. I don't know if any of the other Committee Members can say that. I'm well

Printed Page 5349 . . . . . Thursday, April 28, 1994
aware of what you're talking about. Any other questions? Thank you very much.
GERALD C. SMOAK, JR., having been duly sworn, testified as follows: THE CHAIRMAN: Mr. Smoak, have you had a chance to review the Personal Data Questionnaire?
MR. SMOAK: Yes, I have.
THE CHAIRMAN: Any additions or deletions?
MR. SMOAK: Yes, two additions. At number 12, it's listed I'm a public defender for conflict cases in Colleton County for General Sessions -- well, it's just for General Sessions and juveniles, 1993 to the present. And also, another addition, I've been on the Board of Grievances for about a year and a half or two years now; I don't think that I've reflected in my PDQ.
THE CHAIRMAN: All right. Any other changes?
MR. SMOAK: No, sir.
THE CHAIRMAN: Those will be noted and we'll place this in the record. Any objection to our making the Summary a part of the record?
MR. SMOAK: No, sir.
THE CHAIRMAN: That will be done at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Gerald C. Smoak, Jr.
Home Address: Business Address:
130 Jefferson Davis Road 218 Carn Street
Walterboro, SC 29488 Walterboro, SC 29488

2. He was born in Walterboro, South Carolina on July 25, 1959. He is presently 34 years old.

4. He was married to Elizabeth Thompson on June 1, 1985. He has two children: Gerald C., III, age 7 and Caleigh Elizabeth, age 4 months.

5. Military Service: No.

6. He attended the University of South Carolina, 1977-1980, B.A. English, and the University of South Carolina School of Law, 1980-1983, J.D.

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