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This opinion involved a consolidated appeal of two orders of the trial court regarding proceedings held pursuant to the State's death penalty statute, S.C. Code Section 16-3-26 (C)(Law. Coop. 1993). The proceedings held by the trial court were in response to motions by defendants' counsel requesting funds to pay for services needed to develop and present its case. The trial court's order allowed Lexington County, as a payor of public funds for the defense, to participate as a party in the proceedings and question the necessity and reasonableness of the requested expenses. The order also allowed the press to remain present in the courtroom throughout the proceedings.

The Supreme Court, with Justice Finney concurring, reversed the trial judge and held that South Carolina's death penalty statute specifically provided for an ex parte proceeding on the necessity and reasonableness of the defense's expenses, and to allow Lexington County to participate in the proceeding was outside the scope of allowable judicial interpretation of the statute. The Supreme Court also reversed the trial judge for not holding a hearing to determine if a closed proceeding should be held on the issue of the necessity and reasonableness of the defense's expenses. The Supreme Court held that the ex parte proceeding required by state statute does not mandate a closed proceeding, but one may be ordered by the trial court upon an appropriate motion by a defense counsel and the trial court's finding that there is a substantial probability of prejudice to the defendant and no reasonable alternatives to closure exist.

The complaining witness testified against Justice Finney for joining in the Supreme Court's opinion in Ex Parte: Lexington County, supra, because the witness objected to closed proceedings which involve the expenditure of public funds and because he perceived the Supreme Court's opinion as the Court's policy decision that counties should not be allowed to participate in such proceedings. The witness further objected to the expenditure of public funds on defendants for "personal enhancements" such as clothing.

Associate Justice of the Supreme Court.

The Committee was impressed with the dedication and continued service of The Honorable Ralph King Anderson, Jr., who has served as a circuit court judge for the past fourteen and one-half years. Judge Anderson is known for his hard work, with ten-hour work days being common. He testified that he reads the briefs and available information in preparation for cases he hears, and that he is committed to staying with a matter, reaching a decision and producing an order. The Committee also appreciates his legal scholarship. Judge Anderson has compiled approximately 50 notebooks of resource material that he uses as the basis for consideration of every case. The Committee believes Judge Anderson holds a deep commitment to fairness and appreciates the decorum he maintains in the courtroom and his understanding of a judge's ethical considerations.

The witness who objected to Justice Finney raised the same objections to Judge Anderson's candidacy. The Committee also finds the complaint against Judge Anderson to be without merit.

Judge Anderson was the trial judge who was reversed by the Supreme Court in Ex Parte: Lexington County, supra. Therefore, Judge Anderson actually issued orders which were in accord with the complaining witness' opinion on how such proceedings should be handled. That is, Judge Anderson allowed Lexington County to participate in the proceedings and the press to be present, as the witness suggested would be proper. Regarding the expenditure of public funds for "personal enhancements" of criminal defendants, Judge Anderson explained to the Committee's satisfaction that he did not believe requiring defendants to face the jury in prison clothes, especially in death penalty cases, comports with constitutionally required due process. The Committee also notes that

The Committee finds The Honorable Julius H. Baggett has served as a circuit court judge with distinction and honor for the past eighteen years. In his testimony he described several very difficult cases he has presided over. In the opinion of the Committee, his experiences on the circuit court bench and his experience as an acting appellate judge on occasion have prepared him well if he is elected to the Supreme Court. The Committee was impressed that Judge Baggett has faced the challenges of increasing case loads and the substantive changes in the law by becoming innovative with the use of computers in his courtroom.

Judge Baggett articulated a clear understanding of the ethical concerns facing a judge. He also demonstrated his concern that the record clearly reflect his thoughts on a question concerning rules of evidence which was asked of him. His letter to the Committee has been incorporated in this record.

The Committee is very impressed with the record of The Honorable J. Ernest Kinard, Jr. He has practiced law for twenty-four years and has been a circuit court judge for the past six years. Judge Kinard has served admirably as the Chief Administrative Judge for General Sessions court for two years and for Common Pleas court from mid 1992 until now. In these capacities Judge Kinard has experienced added pressure concerning the issue of ex parte communication and has developed an approach to this issue which he shared with the committee. His approach combines respect for the concept of avoiding ex parte communication on the substance of particular cases while maintaining some flexibility for procedural and scheduling issues which arise with great frequency for a chief administrative judge. The Committee appreciates his candor and thoughtful discussion of this issue.

Judge Kinard demonstrated a keen awareness of the rules of recusal and the ethical considerations surrounding social engagements. He thoughtfully discussed issues concerning maintenance of docket control in an urban court such as the use of computers by the judge, the use of one judge for all hearings in complex cases and an expanded role for alternative dispute resolution. He spoke from experience as he has used these techniques himself.

The Committee found The Honorable Costa M. Pleicones to possess outstanding credentials. He has an extensive twenty-three year career as a practicing attorney, including substantial appellate experience, and presently serves as a circuit court judge. Judge Pleicones has also served

The Committee was impressed with Judge Pleicones' commitment to service as a judge. He prepares for court and is thorough in his approach to decision- making. In addition, Judge Pleicones is industrious, making himself readily available to hear matters even when court is not in session. The Committee appreciated Judge Pleicones' approach to writing orders and believes him to be compassionate and respectful of litigants and lawyers while maintaining decorum in the courtroom. The Committee also found Judge Pleicones to possess a solid understanding of ethical concerns and was particularly impressed with his sensitivity to ex parte communications and conflicts of interest.

The Committee recognizes and appreciates the substantial record of service of The Honorable John H. Waller, Jr. Judge Waller has served as a circuit court judge since 1980, and also has been a hearing officer, member and, now, Chairman of the Judicial Standards Commission, which inquires into allegations of judicial misconduct and makes recommendations to the Supreme Court based upon its findings. Additionally, he is Chairman of the Circuit Court Advisory Committee, which provides an orientation program for new judges and which advises the Supreme Court upon request and on behalf of the circuit court and Bar Association.

As with other candidates, Judge Waller was questioned about ethical concerns for a judge, including acceptance of gifts and social hospitality, ex parte communications and recusal. His responses demonstrated a firm understanding of proper conduct.

Questions were raised about the South Carolina Supreme Court's reversal of Judge Waller's handling of several death penalty cases and about one particular error for which Judge Waller was reversed twice. While the Committee does not regard reversals lightly, especially those which are for commission of a previous error, it does not consider Judge Waller's reversals to warrant an adverse finding regarding him. The Committee checked the cumulative reversal records of judges with similar years of experience as Judge Waller and determined that the number of Judge Waller's reversals was not extraordinary. Furthermore, the Committee notes that one of the errors in the death penalty cases related to the proper jury instructions about a defendant's parole eligibility, which has been the subject of some confusion for the Bench and Bar.

A question was also raised about a one-sentence comment made by Judge Waller in May, 1987, which allegedly demonstrated racial prejudice. The comment was presented to the Committee in an order of

Finally, recent news reports of the misconduct of a former family court judge raised questions about the diligence of the Judicial Standards Commission, which potentially reflected upon Judge Waller because he was a member and later chairman of the Commission while a grievance against the family court judge was pending before the Commission. The news reports indicated that the grievance had been filed with the Commission without prosecution for two and one-half years.

Because of the seriousness of this situation, the Committee received a written statement from Judge Waller about the Commission's handling of the grievance and verified Judge Waller's statement with the United States Attorney. A copy of Judge Waller's statement is included in this report as Appendix A.

Based upon Judge Waller's substantiated statement and further explanation by the United States Attorney, the Committee concludes that the Commission acted reasonably and within its discretion. The allegations of the grievance were denied by the family court judge and an attorney who was also implicated. Both the Commission and the United States Attorney concluded for their separate purposes that the controverted testimony of the complainant, standing alone, was insufficient to successfully prosecute. Judge Waller's statement indicates that in the early stages the Commission coordinated its investigation with a broader one being conducted by the federal government. A central part of the federal government's investigation involved a plea arrangement whereby the attorney implicated with the family court judge would testify truthfully about the judge's misconduct. The Commission awaited receipt of this corroborative evidence to commence its prosecution of the grievance, but the anticipated evidence did not materialize until the attorney's sentencing on March 28, 1994.

Judge of the Family Court of the Fifth Judicial Circuit, Seat No. Four.

The Committee finds that Steven D. Dennis has an extensive background in family and criminal law and for the last four years has been a judge for the City of Columbia. It is pleased with Mr. Dennis' understanding of the many facets of the judge's role. He discussed with the Committee the need for a judge to communicate his decision completely, to maintain respect in the courtroom, to be sensitive to the

The Committee finds that Mr. Dennis has a strong grasp of the rules of ethical conduct which govern a judge's life. He also described for the Committee a well reasoned approach to the task of writing orders.

The Committee recognizes that Barbara M. Heape was in private practice for several years which included experience in family court handling a wide variety of domestic cases. Since Ms. Heape joined the Attorney General's Office in 1989, she has concentrated on criminal and attorney grievance matters. The Committee recognizes that Ms. Heape has a very responsible position in the Attorney General's Office and works very hard in that position. She has a reputation for being firm yet fair in her capacity as an Assistant Attorney General. She indicated to the Committee that firmness and fairness were two qualities of the utmost importance for a family court judge.

Ms. Heape's experience with the Council on Child Abuse and Neglect will be valuable to her if she attains the family court judgeship. She explained to the Committee her plan for writing orders, if elected, which the Committee finds to be carefully thought out and ambitious. By her testimony Ms. Heape expressed a firm understanding of the ethical bounds within which a judge must function.

The Committee believes The Honorable Francenia B. (Frannie) Heizer possesses a keen intellect. As an undergraduate student at the University of South Carolina, Ms. Heizer was a Carolina Scholar and graduated Summa Cum Laude. Then, as a law student, she achieved distinction by receiving the Am Jur Award for the highest grade in three of her law school courses.

The Committee also finds Ms. Heizer has substantial experience, which is relevant to service as a family court judge. Approximately one-third of her law practice is presently in the area of family law, and before 1989, Ms. Heizer handled a broad range of domestic matters with almost daily appearances in family court. Ms. Heizer also has experience as a hearing officer for the Department of Health and Environmental Control.

Ms. Heizer demonstrated a thorough knowledge of ethical considerations and an appreciation of the role of the family court and the family court judge.

The Committee found Leslie Kirkland Riddle to have extensive and wide experience in family court matters. During her ten years as an attorney, she has practiced almost exclusively in family court. Ms. Riddle was a juvenile prosecutor for the Fifth Circuit Solicitor's Office for approximately one and one-half years and has handled a broad range of

The Committee appreciated Ms. Riddle's work ethic and her desire, if she becomes a family court judge, to move the docket for the benefit of the litigants. Ms. Riddle's responses to questions about ethical concerns and judicial temperament indicated a commitment to fairness and a sensitivity to the litigants.

The Committee notes with approval that Donna S. Strom's legal experience, aside from one year clerking for a circuit court judge, has all been in family court. As the chief counsel for the Office of Child Support Enforcement of the Department of Social Services, she has had valuable experience in many areas of family court jurisdiction. The Committee feels Ms. Strom has the resourcefulness and ability to master those areas of family court jurisdiction with which she may not be as familiar. She has been conscientious about maintaining a brief bank for herself and attorneys at DSS; she has given presentations on child support enforcement and related topics; and she has attended many CLE's on family law topics.

The Committee appreciated Ms. Strom's understanding of the ethical considerations governing a judge's life on and off the bench. The Committee was impressed with several of Ms. Strom's ideas concerning juvenile crime.

The Committee finds H. Bruce Williams has extensive experience in domestic law as his practice for the past twelve years has been almost exclusively in family court. He also serves as a municipal judge part time. Mr. Williams works closely, as a volunteer, with high school groups. The Committee finds that he has thoughtful plans for alternative programs he would like to employ in juvenile cases, if he is elected to this family court position.

The Committee is impressed with Mr. Williams' thoughts on the components of good judicial temperament. Also, the Committee recognizes that Mr. Williams understands thoroughly the rules of ethical conduct including recusal, ex parte communications and social hospitality which govern a judge's life.

One witness testified against Mr. Williams' candidacy. Mr. Williams was the court appointed guardian ad litem for the complainant's two children in a contested custody proceeding. The witness expressed dissatisfaction with his performance of that role. She criticized him for being indecisive and said Mr. Williams was predisposed in favor of the father concerning his residence and life style offering more security and stability to the children. Mr. Williams replied that his participation in the case had been noted positively by the judge in the order. The judge stated

The Committee finds that this custody dispute involved a very difficult decision for the judge. It finds that Mr. Williams performed his duties thoroughly, with care and professionalism. His investigation included a trip out of state to the father's neighborhood, interviews with the children's teachers and principal, a visit with the children in their home in Columbia, and several discussions with the children's therapist. The final outcome of the case was that the judge awarded custody of the children to the complainant and that the visitation arrangements were not substantially different from what the parties had previously worked out. The complainant has appealed financial aspects of the order including the requirement that she pay Mr. Williams' fee. The Committee, however, is satisfied that Mr. Williams performed his duties in this contested case with objectivity and professionalism.

Judge of the Family Court of the Fourteenth Judicial Circuit, Seat No. Two.

The Committee found The Honorable Harris Lewis Beach, Jr., to have substantial and varied experience in family law. Mr. Beach has been a member of the South Carolina Bar for approximately twenty years. While he has been engaged in a general practice, Mr. Beach has concentrated on domestic cases. About one-half of his practice is in family court and has involved a wide array of domestic and juvenile matters. Mr. Beach has a long history of public service as a member of County Council, has taught paralegals family court procedure and has served on several occasions as an arbiter and special referee.

The Committee was well-satisfied with Mr. Beach's understanding of ethical concerns and his appreciation of the special requirements that the emotional nature of family court proceedings place upon a family court judge. The Committee also appreciated Mr. Beach's interest in using the hours before court for continuing his education, his thoughts on achieving courtroom efficiency through pre-trial conferences and mediation and his willingness to make himself available for unscheduled matters.

The Committee considers Jane Dowling Fender to have an extensive and broad experience in family court matters. Ninety-five percent of her practice is in domestic and juvenile cases, with weekly appearances in family court. Ms Fender has also completed the forty hours of instruction

The Committee was impressed with the dedication and work ethic Ms Fender would bring to the bench. Ms Fender testified that her work day begins at 3:00 or 3:30 a.m. and concludes around 5:30 or 6:00 p.m. The Committee considered Ms Fender to have an understanding of the appropriate temperament for a judge, and especially appreciated her sensitivity to the litigants. She understood the importance of family court proceedings in the litigants' lives, and expressed an intent to put litigants at ease and explain the proceedings to them. The Committee found Ms Fender to have an appreciation for ethical concerns, and an appropriate approach to writing orders.

The Committee finds that William E. Myrick, Jr. has had an active law practice in Allendale County for the past thirty five years and that he has added to his legal credentials and experience by being a city judge in Allendale for the last year and one half. Mr. Myrick expressed a clear understanding of the decorum he would expect to maintain in his courtroom if he were elected to the family court bench. Mr. Myrick told the Committee of his experience in family court which has made up approximately one-half of his general practice. He has served in a pro bono capacity on many cases involving the Department of Social Services.

Mr. Myrick is concerned about the rising incidence of juvenile crime and clearly expressed this issue as one he would devote much of his time and energy to as a family court judge.

The Committee found that The Honorable Walter H. Sanders, Jr., has practiced regularly in family court during his seventeen year career as an attorney. Mr. Sanders has handled a wide range of family court cases. Besides the usual domestic matters, Mr. Sanders has defended juveniles and also prosecuted them when the acting solicitor was unavailable. Mr. Sanders also has experience as a judge, serving as a municipal judge for several towns and as a Master-in-Equity. For two of the municipalities, he has served as municipal judge for ten years or more.

The Committee considered Mr. Sanders to have a solid understanding of ethical considerations and appreciated his view of proper judicial temperament. Mr. Sanders indicated that firm, but fair, impartial and respectful treatment of litigants and attorneys was important. The Committee also found Mr. Sanders to have a strong work ethic and appreciated his approach to writing orders.

The Committee is impressed that Gerald C. Smoak, Jr. has concentrated his ten years of legal experience as an attorney in family court and as a

Mr. Smoak demonstrated a keen understanding of the elements of a good judicial temperament and the ethical principles by which a judge must live.

Appendix A
Statement of John H. Waller, Jr., Chairman of the South Carolina Judicial Standards Commission

The South Carolina Supreme Court has been briefed on the investigation of former Family Court Judge Sam Mendenhall. After consultation with the Supreme Court, I am authorized to issue the following statement as Chairman of the South Carolina Judicial Standards Commission.

On November 1, 1991 the Board received a complaint by Dorothy Bone against former Family Court Judge Sam Mendenhall. Judge Mendenhall categorically denied the allegations and an investigation ensued. Early on, the investigation was coordinated with a broader investigation by the federal government. It became apparent that a grievance against Judge Mendenhall could not be successfully prosecuted without the information the federal investigation sought to obtain. Central to the federal investigation was the plea bargain arrangement with attorney Sam Fewell whereby Fewell agreed to testify truthfully regarding Judge Mendenhall. Fewell did not disclose under oath the charges involving Judge Mendenhall until March 28, 1994. The Judicial Standards matter has been awaiting the completion of the federal investigation and the receipt of the admissions made by Fewell during his sentencing on March 28, 1994.

Summary

The following persons were unanimously found qualified:

The Honorable Ernest A. Finney, Jr., candidate for Chief Justice of the South Carolina Supreme Court;

The Honorable Ralph King Anderson, Jr., candidate for Associate Justice of the South Carolina Supreme Court;

The Honorable Julius H. Baggett, candidate for Associate Justice of the South Carolina Supreme Court;

The Honorable J. Ernest Kinard, Jr., candidate for Associate Justice of the South Carolina Supreme Court;

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