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

Page Finder Index
| Printed Page 6750, May 17 | Printed Page 6770, May 17 |
Printed Page 6760 . . . . . Tuesday, May 17, 1994
THE CHAIRMAN: Why don't we move into it and just see what kind of time it takes? We'll do that.
J. ERNEST KINARD, JR., having been duly sworn, testified as follows:
THE CHAIRMAN: Your last screening was March 29 of 1994, as you noted. Our plan would be as with the other candidates who appeared before us before to incorporate your testimony into the record from the last hearing.
JUDGE KINARD: That's certainly acceptable to me.
THE CHAIRMAN: Have you had a chance to review your Personal Data Questionnaire?
JUDGE KINARD: I have reviewed it except for a few typos, it's fine. It can be published as --
THE CHAIRMAN: Any corrections, clarifications other than that?
JUDGE KINARD: No, no major corrections.
THE CHAIRMAN: Any objection to our making that a part of the record?
JUDGE KINARD: That can be part of the record.

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

Printed Page 6761 . . . . . Tuesday, May 17, 1994
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
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

Printed Page 6762 . . . . . Tuesday, May 17, 1994
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
Attended on August 26, 1993; 3-1251; Judicial Conference, SCCA; 7.5 hours of JCLE credit
Attended February 27-March 5, 1993; Advanced Constitutional Criminal Procedure in Scottsdale, Arizona; 32.5 hours of JCLE credit
Attended February 4, 1994; Practical Aspects of Arbitration & Mediation at Inn of Court; .75 hour of JCLE credit
Attended May 25, 1993; Practical Aspects of Arbitration & Mediation at Inn of Court; 1 hour JCLE credit
November 4, 1993; Opening Arguments and Closing Arguments; 1 hour JCLE credit

9. Taught or Lectured:
Presented Trial and Appellate Advocacy, 1989, CLE
Panelist on Bench Bar 1992 Update - October 9, 1992 JCLE
November, 1992 - presenter at CLE on Automotive Law Materials prepared by Honorable Ralph King Anderson
JCLE material presented jointly with Mike Tighe - Default Matters
- 1991
Moderator and Program Coordinator at October, 1993 JCLE
Panelist at 1994 Criminal Law JCLE
Panelist at 1990 JCLE State Grand Jury Overview
Panelist at various S. C. Defense Lawyers Conferences
Presenter 1992 and 1993 meetings of Circuit Judges of jury charges

Printed Page 6763 . . . . . Tuesday, May 17, 1994
10. Published Books and Articles:
Published Trial and Appellate Advocacy for 1989 CLE
Published Workplace Defamation and other Ancillary causes of action in employment claims
Published JCLE material jointly with Mike Tighe - Default Matters -1991

12. Legal experience since graduation from law school:
While in law school he clerked for the old McKay firm performing general duties as well as research and rendering trial preparation assistance and was permitted to sit with the late Gus Black, Eli Walker and the McKays, Doug, Jr. and Jay, during various trials. Upon gradation from law school in January of 1964, he moved to Camden and clerked for Henry Savage, Jr. and Ed Royall until admission to the Bar in April of 1964, when he became an associate.
Henry was a business attorney and tried with his assistance in mid-1964 his only Circuit Court case in his 24 years with the law firm. Mr. Savage successfully caused the reassessment of all Kershaw County realty, which Order for reassessment Judge Kinard assisted in drafting.
The firm was strictly a defense firm when he arrived. Ed Royall generally preferred to handle non-circuit matters; so since he appeared at ease with motions, pleadings and procedure within the court system, most of the litigation was turned over to him, although Ed obviously assisted him where their exposure was great or his experience needed. Domestic cases and equity matters were quickly added to his slot, along with City Court appearances and a few Worker's Compensation hearings. By 1965, when he was made a partner, they had picked up several new carriers as clients and also expanded their representation in commercial litigations, with the addition of several finance companies to their clientele. Several utilities and roads have crossed portions of Kershaw County during his practice years and he has participated in or handled many such cases. Over the years, he has appeared in Social Security Disability, Unemployment Security Commission and zoning type matters as well as appearing in Coroner's inquests.
In trials, his representation of Defendants in personal injury litigation exceeded that of Plaintiffs, but they had fair success representing Plaintiffs and the firm has had at least one settlement exceeding $100,000 per year, fortunately, for the last several years that he practiced with the firm.

Printed Page 6764 . . . . . Tuesday, May 17, 1994
As managing partner in charge of personnel and procedure from 1968 until his departure in May of 1988, delegating and assigning various cases and functions to firm members was his responsibility. They added Bob Sheheen in 1968, Bill Byars in 1972, Moultrie Burns in 1974, Doug Robinson in 1979, Dana Morris in 1983, and John Rabb in 1987, and he generally trained Bob, Bill, Doug, Dana and John in trial procedure and tried jury cases with each of them.
On the criminal side, in his early years the firm did not handle criminal matters, but he was immediately court appointed on many cases, which exposure led to his acquiring several fee producing criminal cases. Through the years he has been involved in the defense of virtually all crimes from hunting violations in Magistrate's Court through several murder trials in Circuit Court and trial defense of a bank president on an embezzlement charge in Federal Court. However, he did prefer civil practice, so he generally ceased handling criminal cases in 1975, as Bob Sheheen and Bill Byars of his former law firm handled those cases, and he would not generally participate unless some special circumstances required his input.
The firm handled numerous real estate matters over which he generally supervised the closing, including many commercial projects such as apartment projects, shopping centers, with many realtors and builders as clients, numerous contract and commission controversies he personally handled through litigation. Generally small estates were handled by other firm members, but he did handle a few large estates and prepared estate tax returns for the firm.
Over the years, routine foreclosure, collection suits and claim and delivery actions became his responsibility, which functions he handled as one of his secretaries was quite competent in setting these actions up and following through with minimum attorney input.
Prior to 1979, he filed a few bankruptcies for the firm and studied the changes. Since then bankruptcies with the new changes have mushroomed. While the bankruptcy practice only consumed about 10% of his total law practice, from September of 1987 through December 31, 1987, he filed 21 individual and corporate bankruptcies, consisting of Chapter 13's, Chapter 11's and 7's. From the first of 1988 until his departure in May of 1988, he filed about 5 more. He handled bankruptcies for individuals and corporations in all the surrounding counties, as there was apparently no attorney in the area outside of Columbia who would then handle them. He was fully competent to handle all styles from individual
Printed Page 6765 . . . . . Tuesday, May 17, 1994
through business reorganizations, and he also represented creditors in bankruptcy matters.
As managing partner, he was cognizant of most of the pending cases, but he had moved toward a business and tax planning role as the firm's representative of local banks. His services at that time as personal attorney for a savings and loan and his representation of various business interests dictated that much of his time be thus spent at roster meetings. Interrogatories, pleadings and depositions required blocks of time he could more profitably spend on other matters. Therefore, as mentioned above, his limited criminal practice had ceased, and he had limited his Family Court practice to a minimum and would have eliminated it entirely if family problems were not interwoven with business relationships. The savings and loan that he represented, First Federal, converted to stock ownership. He prepared proxy statements and obtained their approval for the years 1986 and 1987, and in addition also prepared proxy statements and obtained its approval in 1987 for Palmetto State Savings and Loan. Palmetto State and First Federal merged after he became a judge.
He represented numerous realtors and builders and handled numerous warranty and contract disputes.
After his election to the bench and swearing-in on May 3, 1988, he has presided over numerous civil and criminal trials, heard agency appeals, and non-jury merit and motion matters.

13. Rating in Martindale-Hubbell:"AV" was last rating.

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Mary Whitaker v. Catawba Timber Company; Court of Common Pleas; Kershaw County, South Carolina (81-CP-28-159); decision May 3, 1982; Judge Walter J. Bristow, Jr.
The Plaintiffs in 1947 agreed to accept an increasing yearly rental for a 66-year term for about 260 acres and further executed an option to purchase for $15,000 any time after the 20th year increasing 5% per year from the 21st year through the 66th year of the lease term. Plaintiff filed suit seeking cancellation of the lease and option after he attempted to exercise the option to purchase for the company. Basically, the Plaintiff alleged inadequacy of consideration and that the

Printed Page 6766 . . . . . Tuesday, May 17, 1994
option violated the rule against perpetuities. He paid the consideration into court and counterclaimed, seeking specific performance. After a trial without a jury before Judge Bristow, Judge Bristow executed an Order granting specific performance, and they immediately closed the purchase. A group of cases do hold such a clause violative of the rule and that issue was novel to South Carolina; however, his research had found the majority rule to hold favorable in similar circumstances, including a then recent Georgia decision involving a landowner, a paper company and a 60-year lease. Catawba Timber is a subsidiary of Bowater and many thousands of acres were under option under similar leases. House counsel for Bowater advised him that based on his research, they ascertained that their options in several states would possibly be held to violate the perpetuities rule in those states. They accordingly exercised all their options to purchase rather than risk litigating the issue again which, of course, is why he, as sole counsel, found the case to be significant.
(b) Foxwood, a Limited Partnership v. Town of Kershaw; 80-CP-20-10; Court of Common Pleas; Lancaster County; decision Judge George Coleman; July 14, 1980.
The Town of Kershaw refused to permit an apartment project to connect to its water and sewer facilities after earlier granting permission. The suit was for a writ of mandamus and also sought injunctive relief alleging basically that the city was estopped, that water hook ups were ministerial functions and could not be arbitrarily withheld, and that quasi-zoning by granting or withholding water taps denied equal protection. Judge Coleman ordered the Town to furnish the services. The Town filed Notice to Appeal, which was eventually dismissed in early 1981. Incidentally, their clients then sought issuance of permits and the Town refused, resulting in their filing suit seeking damages and a contempt order against each council person. Prior to hearing on the contempt matter, the Town agreed to cooperate, and they filed an Order of Dismissal in June of 1982, with the apartment project finally commenced in late 1982, and is now completed. He feels this case to be significant in that it again shows that if you persevere, elected officials will be
Printed Page 6767 . . . . . Tuesday, May 17, 1994
compelled to perform their legal duty and will acknowledge that they also are under the law.
(c) The State v. McKinley Thomas; Murder Indictment; Trial in Richland County, South Carolina
Criminal case about 20 years ago when Theodore Byrd and associates marched 2 Kershaw County deputies off I-20 near Elgin, killed Officer Potter and severely injured a fellow officer. The case was tried by Solicitor John Foard before Judge Grimball just before the Solicitor's defeat by Jim Anders. The trial was widely publicized and took a week to try. He spent at least one month working on that unpopular court appointed defense, including many trips to Columbia, and never received any compensation, as the defense fund was exhausted when the claim was filed, as he recalls. The trial was complex, many attorneys were involved, including the Richland County defense group. He served as Chief Counsel for this defendant and examined every witness and argued to the jury. They successfully overcame the old "hand of one is hand of all" argument in the face of the previous knowledge brought out in the trial that Byrd had killed another officer the previous night with the defendant and others in attendance and also that all defendants were holding guns on the officers when Byrd started shooting. The jury found the defendants, except Byrd who had pleaded guilty, not guilty of murder and other related charges, finding guilt only of larceny of the officers' pistols, as he recalls. Overcoming the Solicitor's vigorous presentation and the legal issues presented made the case appear significant to him. His jury arguments, since he felt the defendant should be found guilty, against the hand of one theory was his most trying moment in his career. While he did not falter during the argument, he honestly never felt that a not guilty verdict was within the realm of possibility. He took no pride in that verdict when received, but did learn to rethink some of his previous conceptions of how juries arrived at verdicts and feels that his trial skills were helped by participation in that apparent hopeless decision.
(d) Helen Best, et al. v. L. L. DeBruhl, Court of Common Pleas, Kershaw County, South Carolina.
He was chief counsel in this case, ably assisted by the late Judge Clator Arrants and Senator Donald Holland, decided
Printed Page 6768 . . . . . Tuesday, May 17, 1994
over 20 years ago, which involved suit by the Plaintiff against the then Sheriff of Kershaw County alleging false imprisonment and violation of various civil rights statutes growing out of the Sheriff's arrest of three middle-age ladies from the Bethune area on alleged drug possession. A reliable informant advised the Sheriff that the ladies who were under surveillance had certain drugs in their possession and where they were to be. The Sheriff picked up the ladies and brought them to the jail and asked if his wife could search them (this was before they had any female officers in the County) to which they consented, provided they could first use the bathroom, which consent was then given (their Sheriff was then younger and not as experienced). Obviously, the subsequent search uncovered no controlled substances. The case was difficult to defend as some procedures were not properly followed and the Sheriff refused to identify his informant or permit us to present other drug related evidence damaging to the Plaintiffs, earlier obtained by his force. The case was tried before Judge Wade Weatherford and resulted in a verdict for the Defendant. The case seems significant in that it was widely publicized, and the favorable verdict tended to discourage frivolous suits locally against elected officials. In fairness, they would have been pressed to have won the case had suit been filed in Federal Court due to the minor procedure violations mentioned above. Plaintiffs' attorneys permitted them to paint a damaging portrait of their clients by innuendo, which would probably not have been permitted in Federal Court.
(e) Hovis v. Wright, Fourth Circuit; January 10, 1985; 84-1128.
This was a bankruptcy matter where he filed a school teacher in bankruptcy and claimed as exempt from bankrupt proceedings, the State's retirement contributions of his teacher/debtor, which amount at that time exceeded $8,000. Judge Davis, on motion of the Trustee and hearing, ruled that the Trustee could reach the State retirement fund. He appealed, and Judge Perry for the District Court held that the Trustee could not reach the funds. A subsequent appeal was taken to the Fourth Circuit, where it was held that the funds could not be reached. This case was very important since not only his individual teacher, but all State employees were affected by the outcome. He doesn't know the exact number,
Printed Page 6769 . . . . . Tuesday, May 17, 1994
but about 40 State employees' retirement benefits were riding on the outcome of this decision at the time of the final adjudication. He did not actually appear before the Fourth Circuit as he asked the Attorney General to intervene since the State's interest appeared great, and they graciously furnished counsel. He did file a brief, but did not appear before the Fourth Circuit.

20. Judicial Office:
Elected to Circuit Court, served from May 3, 1988 continuously. Resident Judge of the Fifth Judicial Circuit

21. Five (5) Significant Orders or Opinions:
(a) Centaur, Inc. v. Richland County, South Carolina; Richland County Court of Common Pleas; 87-CP-40-5320; November 3, 1988.
(b) South Carolina Department of Highways and Public Transportation v. W. Richard McClellion and D. C. Bryson; Newberry County Court of Common Pleas; 91-CP-36-234; July 30, 1992.
(c) State v. Russell Eugene Blankenship; Richland County Court of Common Pleas; 90-1277; January 3, 1991.
(d) Felecia Nadine Belton v. The South Carolina State Housing Authority and the South Carolina Budget and Control Board, Division of Human Resource Management; Richland County Court of Common Pleas; 88-CP- 40-4732; March, 1991.
(e) The Murray Properties Partnership of Dallas v. L. P. Cox Company and L. P. Cox Company v. Plantation Oaks Investors, Ltd., a Texas Limited Partnership, and Murray Properties Investors XXIII, Inc., and Crozier Dallas Associates, Ltd., as general partners, The Murray Properties Partnership of Dallas and Interfirst Bank Dallas, N.A., Charleston County Court of Common Pleas; 86-CP-10-2288 and 86-CP-10-3765; February 3, 1989.

22. Public Office:
He was President of the Kershaw County Chamber of Commerce in 1983; elected by the members as President of the Camden Country Club, 2 years from 1981- 1982 and 1982-1983; elected as Vice-Chairman of the Wateree Community Actions from 1969 to

Printed Page 6770 . . . . . Tuesday, May 17, 1994
1972 by the membership, appointed to the Board by the Kershaw County Council, elected Vice-Chairman by the members; appointed by City Council to serve on the Board of Kershaw County Commission on Drug Abuse from 1970 until 1975.

| Printed Page 6750, May 17 | Printed Page 6770, May 17 |
Page Finder Index