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 5340, Apr. 28 | Printed Page 5360, Apr. 28 |
Printed Page 5350 . . . . . Thursday, April 28, 1994
8. Legal/Judicial education during the past five years:
12-15 hours of Continuing Legal Education (CLE) per year

9. Taught or Lectured:
He has taught Paralegal courses for Technical College of the Lowcountry
(1) Estates, (2) Family Law, (3) Legal Bibliography, (4) Litigation, and (5) Torts

12. Legal experience since graduation from law school:
1983 Clerk for Honorable William T. Howell
1984-1994 General practice with majority of work in Family Court
1984-1993 Prosecutor of child abuse and neglect cases for the Fourteenth Circuit Solicitor's Office - Also prosecution of Department of Youth Services cases
1993 Public Defender for conflict cases of the Colleton County Public Defender
1984-1994 Public Defender for City of Walterboro

13. Rating in Martindale-Hubbell:Not rated. Doesn't know why. He currently does not subscribe.

14. Frequency of appearances in court:
Federal - 5 times per year
State - 200 times per year or more
Other -

15. Percentage of litigation:
Civil - 10%
Criminal - 10%
Domestic - 80%

16. Percentage of cases in trial courts:
Jury - 20%
Non-Jury - 80%
Sole Counsel

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17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) DSS v. Johnson, et al.; 94-UP-039; Court of Appeals; filed February 8, 1994.
This case was significant because it dealt with expert opinion testimony and burden of proof in neglect cases.
(b) Hiott v. Nolind, et al. This case is significant because it hinged on the efforts of the disabled natural mother to get custody or unsupervised visitation of a small child.
(c) Hughes v. Hughes. This case was significant because the father was granted custody of the minor children of the parties based on the best interest of the minor children.
(d) DSS v. New Bethany School for Boys. This case was significant because the case received national attention and press on allegations of abuse at the school.
(e) Estate of Myers. This case was significant because the wife had to prove common law marriage to inherit from the deceased husband.

These are the most significant in recent memory, but all cases are significant to each of his clients at the time of their representation.

18. Five (5) civil appeals:
(a) DSS v. Johnson, et al.; 94-UP-039; Court of Appeals; filed February 8, 1994.

23. Employment As a Judge Other Than Elected Judicial Office:
Special Referee three times per year
Arbitration Judge three times per year

39. Expenditures Relating to Candidacy:
Mailings 11/15/93 $69.30 (stamps, letters, envelopes)
Mailings 01/10/94 $69.30 (stamps, letters, envelopes)

TOTAL: $138.60

44. Bar Associations and Professional Organizations:
South Carolina Trial Lawyers Association, South Carolina Bar Association, Colleton County Bar Association

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45. Civic, charitable, educational, social and fraternal organizations:
former member Jaycees; Sertoma member; Walterboro Chamber of Commerce Board Member, 1988-1991; South Carolina Real Enterprises, Rural Enterpreneurship Through Action Learning, 1990

46. He has spent the last ten years of his life in the Family Court. He has spent nine years prosecuting child abuse and neglect cases and various juvenile cases, not to mention his domestic practice. He believes his experience and knowledge of the Family Court would benefit the Family Court bench.

47. Five (5) letters of recommendation:
(a) Eugene M. Varn
Enterprise Bank of South Carolina
P. O. Box 247, Cottageville, SC 29435
835-2222
(b) Perry M. Buckner, Esquire
P. O. Drawer 470, Walterboro, SC 29488
549-9544
(c) Donald H. Howe, Esquire
Gedney M. Howe, III, P.A.
P. O. Box 1034, Charleston, SC 29402
722-8048
(d) A. Cranwell Boensch, Esquire
P. O. Box 258, Walterboro, SC 29488
549-5923
(e) David B. Wheeler, Esquire
P. O. Box 858, Charleston, SC 29402-0585
724-1327

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
He was appointed by the Circuit Court Judge to act as Special Referee one time in 1992 and four times in 1993.

The Board of Commissioners on Grievances and Discipline reports no formal complaints. Judicial Standards Commission has no reprimands against you. Records of law enforcement agencies, Colleton County Sheriff, Walterboro City Police, SLED and FBI, are all negative. Judgement Rolls of Colleton County are negative. Federal Court records

Printed Page 5353 . . . . . Thursday, April 28, 1994
are negative. We have no complaints against you, no witnesses present to testify.

Prior to turning you over to Ms. McNamee for questioning, you have the opportunity to give a brief oral statement or one in writing, if you so desire.
MR. SMOAK: I'll waive that.
THE CHAIRMAN: Thank you very much.
MR. SMOAK - EXAMINATION BY MS. MCNAMEE:
Q. Good morning, Mr. Smoak. Mr. Smoak, could you tell the Committee what your experience, as I understand, aside from one year of being a law clerk for a State Circuit Court judge, that you have spent your ten years of practice in Family Court; is that correct?
A. That's correct. The vast majority, probably 80 percent, 75 to 80 percent.

I was a prosecutor for the solicitor's office for child abuse and neglect cases. I was a prosecutor for juvenile cases. I've spent -- my practice is the majority a domestic practice. I've been a guardian many times. I've represented children. I've represented
-- now I've represented juveniles. I've done adoptions, many adoptions, both privately and for DSS, as a matter of fact.

I guess I've handled the whole gamut of Family Court.
Q. Also talking about contested custody cases, equitable distribution?
A. Sure. I do a very good -- a good amount of contested custody cases, equitable distribution, I've handled a lot of them.
Q. How many -- what percentage of your case load is contested?
A. Contested, it's hard to say. I would say probably over 50 percent. Maybe 60, just, you know, that's contested at the time you're going to trial. Sometimes you can work out something before you get to trial and get to the courthouse. But a lot of times it's worked out at the courthouse. You can -- once the parties get together, it seems like then all of a sudden you can resolve some issues.

But probably contested that actually are tried and come to a judgement by a judge, probably 50 percent would probably be close. 40 to 50.
Q. Are you like the other candidates for this position in that you are in court every time Family Court holds a session?
A. I sure am.
Q. Do you just practice in Colleton County or do you also practice --
A. I do go to other counties. I have -- you know, I've had some cases in Dorchester, a few in Charleston, a few in Hampton, just -- it's kind of hodgepodge, but, you know, the vast majority in Colleton.

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Q. What is the most satisfying kind of case that you deal with in Family Court?
A. Probably -- I enjoy doing child abuse and neglect cases because I felt like I was making a difference in some child's life. And I think doing stuff like that -- adoptions, I enjoy doing that. I think that's a happy time.

I enjoy some juvenile cases because where they don't get caught up in the system, you know, every now and then they'll listen to what you have to say. You can talk to them in your office and show them that you care about them.

I have a fellow right now whose -- kind of as an aside, ever since about a year ago, he has brought me his report card and, you know, the case has been over two or three years ago. But he brings it to me and he says, you know, I'm doing great, and I say man, that's great and talk with him. That's the kind of case I like.
Q. What is the juvenile crime situation in your area? What is it like?
A. It's getting out of hand.
Q. What do you mean by that?
A. It's gone from -- it's gone from, you know, stealing something where you get some benefit out of it, you know, you can kind of see that, that you're stealing something, you're going to get something out of it.

But all of a sudden it's gone to destroying property, guns in school, knives, people getting beat up by juveniles, and it's -- I mean, it's -- you're seeing a definite increase and a definite problem. For the last couple of years it's gone on.
Q. What are your suggestions in this area that you would make to --
A. One thing I think that, you know, I kind of have in mind is, there needs to be some kind of break between the court and just sending them to Columbia to incarcerate them potentially in the Department of Youth Services until age 21 or whatever.

The big problem I find is, some children don't need to be sent into the system. There needs to be an alternative because when they get up there, somebody that really hadn't been involved in the system too much, they get involved in it and all of a sudden they're being taught to be criminals by other people up there. And I think that's a definite problem and the way to solve it, I don't know. You need places like the Beaufort Marine Institute, maybe mentor programs. It's a bad problem, no question.
Q. Why do you want to be a Family Court judge?
A. I feel like I can make a difference. I've done that for approximately ten years and it's something I enjoy doing. I mean, it's -- and, you know, people kind of -- somebody asked me, I remember when I was running for this judgeship, they asked me, they said, "Well, do you have your

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psychiatric insurance paid up?" I just kind of laughed and I said, you know -- you know, it's just something I enjoy and think I can make a difference maybe in a child's life or make somebody feel more comfortable when they're in that court, because it's definitely an, you know, an emotional time and an emotional court.
Q. You list one appeal on your questionnaire. You do not -- is that because you do not do appeals?
A. Walterboro is such, when most people -- first of all, a lot of people can't afford appeals. I mean, you know, their contract, usually it doesn't include the appeal. And every now and then, I'll have a case where either somebody -- they'll get somebody else to appeal it because I usually don't handle them. But that's very few because people just don't appeal because they don't have the money, to be honest with you. And that's why the one appeal I have, that's a DSS case I did.
Q. What is your experience about good and about bad temperament of judges? What have you learned from that and what will you then carry on into your -- if you are elected, to your judgeship?
A. Good temperament in regards to judges or just in regards to general characteristics?
Q. Well, we're talking about judges. What is a good judicial temperament?
A. I've -- I like judges who are courteous to litigants, who let you know who's in control of the courtroom, courteous to their staff, their secretary, and they make people -- you know, you can still have a sense of humor and make people feel comfortable in that situation.

Judge Kleckley is one of them; he's been mentioned. Judge Inabinet's been mentioned, and he seems to do that, in my opinion. Judge Kinard Johnson, I remember he was in Colleton a little while back and I think he exhibits that. And I believe Myers might have been before that.
Q. What are the qualities that you will emulate --
A. I think I have a good sense of humor. I think I'm a fair person. I don't like -- I think I have a penchant for being fair, I like to see things handled fairly. I think any lawyer who probably has practiced has lost a case, but as long as you get in there and have a fair shot then, you know, you can deal with that.

I think I would be, you know, sensitive to the litigants. I understand it's an important day for them and I understand it's an emotional day for them, and to the children, the same way.
Q. What do you foresee your approach to writing orders and making decisions?

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A. The decisions of the vast majority would be made, probably, from the bench. There are some cases that you're in a two- or three-day, for example, custody trial, divorce, and the whole nine yards of issues; you probably couldn't make that decision from the bench.

But the cases that were decided from the bench, and I'm -- I imagine I would make notes as to what my order would be and have the attorney -- have one attorney or the other prepare it.

When it comes back to me, read through it, make sure it's what I ordered and, you know, check off my checklist, and make sure the other attorney's seen it, make sure there's no objections to it. If there are, we have to hear the objections and determine exactly what was ordered.
Q. What do you mean by checklist?
A. What I -- the notes I made when I'm doing a trial.
Q. I understand that you have experience in teaching paralegal courses --
A. That's correct.
Q. -- in a paralegal institute. Do you have any other experiences in teaching, in CLE's or in writing articles for a legal --
A. No, I don't.
Q. -- magazines? Are most of your CLE's domestic, that you attend domestic ones or are you --
A. Probably about half, maybe a little bit more than that.
Q. What is -- this was one of your entries in your activities -- REAL Enterprises, Rural Entrepreneurship Through Action Learning; could you tell us about that?
A. Sure. That was a group of business persons from Colleton County that went to the high school in Colleton County and young volunteers from the school, I think juniors -- no, they're sophomores, juniors and seniors.

They would kind've get up an idea about how to start a business and what you would need to start one, kind of get a, you know, kind of brain trust going to what kind of business it would be, drawbacks, what you have to think about in forming that business, and that's what we did. As a matter of fact, one we -- they were talking about was an ice cream parlor in Walterboro. But that's what it was.

We volunteered our time to meet out there with them, and it was a good experience for them, I think.
Q. Sort of a Junior Achievement kind of thing?
A. Very close.
Q. Is there such an ice cream parlor now, or was it just to plan it?
A. Well, there was about to be. As a matter of fact, where they were going to put it, I think they moved the building or I've forgot where they

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were going to do it, but they moved the building and couldn't do it, and so that kind of just -- that ended it when the building fell through.
Q. Is this an activity of yours that's ongoing?
A. No, I haven't done it since I think it was '90 or '91, I forgot which.
Q. Do you have any activities, extra community activities that you will feel compelled to pull back from if you become a judge?
A. I may have to pull back -- I'm in Sertoma. I may have to pull back from there because I couldn't -- if I were to be elected, I couldn't raise any funds; I don't think I could get into that. I'm a part-time -- well, I'm a coach for my little boy's little league team. I mean, I think I could probably still do that. Nothing else I can think of that I would have to pull back from. Of course, the public defender for the city of Walterboro, I couldn't do that if I was elected judge.
Q. What would be some examples of times when you would need to recuse yourself if you became a Family judge that you perceive?
A. Family members, people that are kin to me, perhaps former law partners, maybe. We'd have to fully disclose that and see if anybody had an objection to it, and if they did, of course, I'd recuse myself. Anybody I was a close personal friend with, whether it be an attorney -- I can't think of an attorney I'm that close with that I wouldn't just right off the bat say I'd recuse myself, but -- and anybody else that's a close personal friend, I don't think it'd be proper.
Q. Could you discuss with the Committee your philosophy of ex parte communication?
A. I don't believe in them. I've kind of learned a little bit from Judge Howell when I clerked for, you know, for him. If somebody walked in the office and said anything about a case, you know, he said, you know, get the other attorney in here and we'll talk about it, but, you know, we're not going to talk about a case without everybody being here. And that's the way I feel about it.
Q. I think that -- I think we show -- oh. If you have any additions, Mr. Smoak, to your campaign expenditures, I guess you will update our --
A. Sure. I don't think I do. Maybe phone calls, but I don't think --
Q. Have you indirectly or directly sought the pledge of any legislator?
A. No.
Q. Have you asked anyone to write any letters on your behalf?
A. No, not at this time. I understand some have been written because I've heard a legislator say, "I got a letter on you," and I don't know who it was from, I don't know what it said. I just -- and I said, "Well, I don't know who would do it," and that's all I said.
Q. You don't know who -- that was not done at your behest?
Printed Page 5358 . . . . . Thursday, April 28, 1994
A. No.
THE CHAIRMAN: Questions from Members? Thank you, Mr. Smoak.
A. Thank you.
MS. MCNAMEE: Oh, I have one more, I'm sorry.
Q. What is the Palmetto Home Care? You have a quarter interest in that.
A. Yes, I'm a stockholder in that. Originally my father was and now I am. It's basically a care home for not -- nobody that needs to be in a hospital, but somebody that needs a place to go, to make sure they take their medicines.

That's about the best explanation I can give you. They just have caretakers out there and it's an old house. It's pretty updated of course, but it's a motel, I don't know how many rooms, 15 maybe.
Q. Is it residential, people live there?
A. Yes.
THE CHAIRMAN: It's a licensed residential care facility; is that what it is?
A. Sure is. And, you know, in that regard, I mean, now that you've brought it up, I will probably try to divest myself of that because, it never has happened before, but technically you might get in a problem with, you know, some kind of adult abuse and neglect cases. It probably wouldn't happen and never has happened, but I just -- that's something you kind of keep in mind.
Q. And so, therefore, you would divest yourself of that?
A. If I could, uh-huh.
MS. MCNAMEE: Thank you.
THE CHAIRMAN: Other questions? Thank you very much.
Q. Thank you.
THE CHAIRMAN: That concludes the business of the Committee. Do we need an Executive Session at all before we adjourn? Do I hear a motion to keep the record open in the event that we have any additional information that we need to address on the candidates?
SENATOR MCCONNELL: I would so move.
THE CHAIRMAN: All right, moved by Senator McConnell, seconded by Representative Alexander. All in favor say aye. Opposed, no. The ayes have it. Any matters we need to take in Executive Session before concluding today's forum? If not --
REPRESENTATIVE ALEXANDER: What about, when will we expect -- I know they would like to know --
THE CHAIRMAN: Yes, let me --

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REPRESENTATIVE ALEXANDER: I think we ought to give them a little idea of when --
THE CHAIRMAN: And we announced -- for the candidates who weren't here yesterday when this statement was made, we anticipate it taking a good two weeks or so to get the transcript back, and after that, I would think it would take us at least a week or so to work through the transcript and try to prepare our findings.

So we probably are looking at three weeks from today's date. I would suggest that you not call Ms. Satterwhite.
MS. SATTERWHITE: I'll call them.
THE CHAIRMAN: She'll call you. But not be anticipating receiving anything until at least two weeks have expired
-- really, until at least three weeks have expired. And our policy is not to give anybody a head start, but to try to contact all the candidates and say the screening report will be issued at X time. That way we want to get in touch with everybody and not let one of you have a four- or five-hour head start.

So, that's the way we'll handle it. So there's no need to call her next week or the next week, but she will contact you to let you know prior to the time the report goes is out. Thank you very much. Is there a motion we adjourn?
(There being nothing further, the hearing was adjourned at 11:30 a.m.)

Findings of Fact

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

Chief Justice of the Supreme Court.

The Committee was thoroughly impressed with the experience of The Honorable Ernest A. Finney, Jr.. He served with distinction as a circuit court judge from 1976 to 1985, and as an Associate Justice of the South Carolina Supreme Court from 1985 until the present. In addition to his experience, Justice Finney enjoys an excellent reputation for impartiality and judicial temperament. His reputation was well supported by his

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responses to the Committee's questions in these areas. The Committee also notes that Justice Finney possesses a strong sense of ethics regarding conflicts of interest, acceptance of gifts, and ex parte communications. As Chief Justice of the Supreme Court, Justice Finney would serve as an outstanding role model for the judiciary and the bar.

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