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24. Unsuccessful Candidate:
He did announce and ran against Judge Owens Cobb for the seat he now holds in 1983, but withdrew prior to the election.

25. Occupation, business or profession other than the practice of law:
He was raised on a farm and performed farm chores daily, from milking cows to feeding 40,000 plus chickens and planting and harvesting timber and crops.
He held various summer jobs while in high school and attending college with Cherokee & Sloan Construction Companies and worked briefly at the Piano Factory in Central, South Carolina, while attending Clemson, but had only engaged in the practice of law since graduation until his election to the bench.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
Recusal would be in order where stock ownership or former clients are involved. He plans to blind trust the majority of his stock holdings if elected.

37. Violations of S. C. Code Section 08-13-700:He has no knowledge of any violations.

38. Violations of S. C. Code Section 8-13-765:He has no knowledge of violations.

39. Expenditures Relating to Candidacy:
He purchased personal stationery and envelopes totaling $68.39 that he has paid, and he employed his CPA firm to type correspondence and mail Notice of Intent to File with legislators. He paid them $224.30 for services and postage through 12/31/93. The CPA Firm has typed and posted additional letters, resumes and documents during 1994, for which he has yet to be billed.

40. Contributions Made to Members of the General Assembly:
No contributions have been made.

45. Civic, charitable, educational, social and fraternal organizations:
Kershaw County Chamber of Commerce (former President); Camden Country Club (former President); Camden Sertoma Club (former President, now life member); He was a member of Kershaw Lodge #29 but withdrew in good standing several years ago; Circle All Dance Club (resigned last year - unable to attend dances); Snipe Club; also a contributing member to various charities, e.g., S. C. State Museum, Fine Arts Commission, Riverbanks Zoo, etc.

46. He has held court in 26 counties and has always moved dockets without, he feels, unduly pressuring attorneys or litigants. He was head of the first Bar sponsored Settlement Week, which success has assisted the Bar in moving toward ADR in many actions. He was the first Presiding Judge over the State Grand Jury - having qualified three of the State Grand Juries, and served as Presiding Judge of State Grand Jury for 2 years, alternate for 18 months and is currently alternate. Two years of service as Chief Criminal Administrative Judge and over 19 months as Civil Administrative Judge in the Fifth Judicial Circuit has prepared him for virtually any matter. Presiding in a high media area has opened his service to full public scrutiny.
Additionally, while in private practice, he prepared for his clients, his firm and other attorneys untold agreements, including complex wills, trial briefs, complex trust agreements, partnership documents, corporate documents, complex leases, timber sales agreements, proxy statements, shopping center and apartment project leases, restrictive covenants, tax free exchanges, buy and sale agreements, mergers, sale of assets, Chapter 11 and 13 Plans, decrees in virtually every equity and family court type proceeding and is unaware of any problem with any drafted document, many of which served as models for the local bar.

2. Positions on the Bench:
Resident Circuit Court Judge; Fifth Judicial Circuit; May 3, 1988 - June 30, 1995

10. Extra-Judicial Community Involvement:
(1) Member of St. Timothy's Lutheran Church, usher, lector, tabulator - various committees, but will not offer as councilman although his wife currently serves as councilperson
(2) Camden Sertoma Club. He resigned as Chairman of Camden Charity Horse Show Sec. upon being elected to Bench and became a life member, which removes him from club responsibilities and permits attendance at an occasional meeting.
(3) Camden Chamber of Commerce - contributing member only. He does occasionally attend breakfast meetings.

THE CHAIRMAN: We have no reports from the Board of Commissioners on Grievances and Discipline of any kind of formal complaints or charges or the Judicial Standards Commission. No record of reprimands against you. Law Enforcement agency records: Kershaw County Sheriff's, Camden City Police, SLED FBI are all negative. The Judgement Rolls of Kershaw County are negative. Federal court records are negative as well.

We do have two complainants who are here to testify against you. I offer you the same opportunity as all other candidates to either reduce to writing or make an oral statement if you so choose to be entered into the record.
JUDGE KINARD: I'll, of course, waive the opening statement in the interest of time.
THE CHAIRMAN: All right. I turn you over to Ms. McNamee at this time.
JUDGE KINARD: All right. Ms. McNamee.
JUDGE KINARD - EXAMINATION BY MS. MCNAMEE:
Q. Good morning, Judge. Since that screening a very short period of time ago, have there been any changes in your status or anything of that nature that you would like the committee to know of?
A. No changes to my knowledge.
Q. Yes, sir. We have two different amounts in terms of expenditures. One that went to the Senate and the House Ethics Committee and one that was on our PDQ. Will you just make sure that the -- we are updated?
A. Right. I filed the same in the last screening, but apparently I only filed with the House Ethics and Senate Ethics Committees, but I have no other expenditures except for copies that I ran off when I got your call at 5:00 yesterday.
Q. Yes, sir.
A. A quarter to 5:00. I don't know when that was.
Q. Have you sought the pledge of a legislator prior to this screening for this particular seat?
A. I haven't.
Q. And have you asked or otherwise authorized any other person to solicit or seek pledges on your behalf?
A. No, I have not.
MS. MCNAMEE: That is the end of the first questions.

And as I understand it, there is a second case which is called Betty -- I believe it's Betty Ortega versus Kingfisher, which was appealed and we have the Court of Appeals order in that case.

Are those the two cases that you're particularly interested in?
A. Yes, ma'am. But may I make a comment to clarify something? In our phone conversations you had with me which was on my mobile phone, I had to talk to you as well as dodge traffic, I got the impression that you feel that I'm here to talk against Judge Kinard, which is totally wrong.
Q. All right.
A. All right. I'm here to discuss with you what he said in court and I want you then to consider what he said in court in your deliberations for judicial selection.
Q. All right.
A. I do not disagree. I'm not a litigant. I was not a litigant. I was not a participant. I was a fly on the wall in his courtroom. Now, I'm particularly sensitive about these two cases, one of them happens to be my wife. But the other case involves Horizontal Regimes in South Carolina.

When I came here -- and I'm a Cuban American, so I look a little bit on the outside. My wife asked me to go by the Rock over here and Mr. Gonzales to take a look at it before I came here. But, unfortunately, I couldn't find it. But I'm very sensitive to the right of the silent majority

But my experience in Horizontal Regime has been in Mexico and in Florida, and the legislation that is available in those two countries does not allow what the legislation you have in this state. And it has hurt this state in its largest industry, namely tourism.

Mexicans will not allow the abuses that have occurred in South Carolina in this industry. Their justice is very swift and very severe. Florida, having the intelligence to anticipate this, passed good legislation with teeth in it. Unfortunately, the legislation here has no teeth.
THE CHAIRMAN: Let -- Mr. Ortega, let me just ask you, and I -- we're trying to focus on Judge Kinard and things that he may or may not have done that -- if you have some testimony that bears on his -- how he handled a case, of course, we're interested in that and we're interested in your testimony regarding the law we have, but it sounds as though that complaint primarily relates to legislative action.
A. I think that's the genesis of Judge Kinard's actions, yes.
THE CHAIRMAN: All right. Well --
A. I think they're related, if you allow me to proceed.
THE CHAIRMAN: Well, I will, but I don't want you to -- if we're going to talk about this history of Horizontal Regime or whatever the topic is, that sounds as though that's more appropriately a legislative topic and our concern is whether or not he's appropriately applied the law or handled himself correctly in the courtroom.
A. All right, let me continue then.
THE CHAIRMAN: All right.
A. This case, the first case you cited, was brought by both South Carolinians and also people from out of state. They had made investments in Horizontal Regime Properties in Myrtle Beach and they were told in the Master deed that they had certain rights and expectations. Along with that, there was a South Carolina corporate document which had bylaws.

There is a section of that bylaws which basically guarantees the developer, if he so chooses, to maintain perpetual control of the project, even though in the Master Deed there was a sunset law of five years or when a certain percentage of units were sold.

So we know that this legislation that ya'll have referred to permitted these developers to do whatever they pleased irrespective of the consequences. And I think Judge Kinard realized that, so when this case came up finally after being tossed like a hot potato, among several circuit judges and dumped -- I guess, dumped on him, if you want to use that term, I think he saw right from the beginning that South Carolina law

Now, the Plaintiffs that were coming were people that funded their own litigation. They came before Judge Kinard pleaing that he hear the case and seeking relief. Such relief was given again in the consent decree at Myrtle Beach against the contractor whereby this particular provision in the contract was set aside for a special election. The contractor lost.

Judge Kinard in his ruling or his consent decree or whatever it is -- I'm not a lawyer, I'm a pathologist -- and Judge Kinard said, "I'm not going to remove the provision. I'm going to leave it there." And Judge Kinard further said in his statements that he felt that the developers had to have consideration in court to protect their investment.

There was a lot of money involved and everybody knew it. So everything Judge Kinard did was consistent with his decision. Now, he paid little or no attention to the plaintiffs because I feel that he felt they had -- really had no position. They shouldn't be there.

The second case which was brought by my wife, who is a member of a political family here in South Carolina, they brought me here from Mexico, felt that that should be challenged, that one provision, because how can you take this one -- you're familiar with the provision, right? This is the provision in the bylaws in a corporation in South Carolina which allows the developer to vote all shares of voting rights of people who either don't attend the meeting and vote personally or have submitted signed proxies. In other words, they really had the right to vote the majority. And in the project that was failing, going downhill, where the delinquencies were high and the developer was owning more and more property on take-backs, he was getting the majority and always had the majority. So my wife felt that this was wrong and ought to be challenged.

And Judge Kinard made a very quick ruling and brought up two points. One is they also intended, which was not in the bylaws, to stagger the Board of Directors, which is a violation of South Carolina corporation law. Judge Kinard made a ruling on both of those in the developer's favor. And it was appealed. And the appellate court, of course, upheld this voting provision that you -- without knowledge, you should have known and that's exactly what Judge Kinard said, "Buyer, beware, you have no protection in this state on Horizontal Regime."

The Real Estate Commission won't protect you. Steve Hamm says that's not my job. The Attorney General's Office is not interested. I think the only people that are interested in now are the FBI. These people went through all these administrative procedures and expenses to get just treatment. I think the Court of Appeals ruling on the overturning of one

But that is the demeanor I think that you're seeing from a Circuit Court judge who is asking to be considered for the highest court in this state, which I guess the lady that testified before, this is the silent majority's last resort. And the other judge said that the Court of Appeals knows that the Supreme Court will eventually get a case if the people have enough money.

Well, unfortunately the silent majority doesn't always have enough money to get to the Court of Appeals or to the Supreme Court, so I think we want a greater sensitivity in the candidates, at least I do. I want to see a greater sensitivity in the candidates for the Supreme Court rather than just a very cut and dry and matter of fact, these people are wrong, they have no business being here; this next judge gets them.

Now, have I tied this together or am I totally out of order in this proceeding?
Q. Is it your position that Judge Kinard should not have followed the statute of the state?
A. Absolutely not.
Q. He should not have followed --
A. You've been trying to get out of me anything that Judge Kinard did wrong. I don't think he's done anything wrong. I'm not complaining about him. I'm complaining about the situation he found himself in and the way he ruled.
Q. But the way he ruled, you're not complaining about?
A. Not really, no.
Q. Okay.
A. But I am making you aware of it.
THE CHAIRMAN: Questions from the --
SENATOR SALEEBY: I'd like to say this to you, I have been aware of our weak law that was passed some years ago by a very influential lobbyist and I think it's a disgrace, but we have not had the ability to change it as yet. Okay?
A. May I make a comment about that?
SENATOR SALEEBY: Well, I just wanted -- no. I don't --
A. May I --
SENATOR SALEEBY: I don't want to prolong the hearing, but I know we've got a weak law, and I wouldn't hold that against the judge.

Now, were she in the courtroom that day, she would have paid attention, which I'm sure she did, it's been awhile, the facts that were presented to me that the only violation on Ms. Gates' behalf that I was concerned with was the plea in front of Judge Baggett. I had all the medical records that Judge Baggett had. Pretty devastating as far as her health condition is concerned.

I acknowledge straight out that I had no problem with Judge Baggett's sentence. Each judge has their own sentencing philosophy. I told the two Kirkland attorneys and Ms. Gates, as the record will reflect, that the time of her commission of the crime involving the Salvation Army, the solicitors or the attorneys approached me and asked if I would go along

At that point I was chief administrative judge of Richland County in '89 and Judge Eppes was in town, they talked to him. He gave her probation. I stated in this record, if you will read it, that it's my philosophy that somebody that embezzles, I always put them in jail.

Now, not for an extended period of time. I explained why I did that, that the solicitors from all over the state had asked me to put embezzlers on probation. While I didn't normally put them in jail for a long time, I felt that, as it will reflect in here, that embezzling is a deliberate crime; it's an ongoing situation. The individuals rarely need the money. Historically, it is a repeating type crime, so because of that my sentencing philosophy is always to put them in jail.

And had Ms. Gates pled in front of me three weeks before, I would have put her in jail. I don't know for how long or what have you, but I would have told her attorneys that at that point and they could have elected whether or not they were going to plead in front of me. But since this was a probation revocation, she did not have that choice. Here she was, here I am, here is the judge.

The dialogue runs on and on about she's, of course, had three heart attacks. She is on the list, according to the medical records, to receive a heart transplant. Comments are made about the fact of high costs the state will bear. The running dialogue indicates that we can deal with that or somehow we can construct it, so the cost won't be that prohibitive. And I still think she has to serve some jail time. "You can't put her in jail because of health problems, Judge," and I'm paraphrasing, you have it here. I said you were in the courtroom, you just saw me send some person to jail with a health problem,, major health problem, that was coming right now for a longer period than that, I can't worry about her health problems, she did the crime. Of course, I'm rehashing it at that point.

I moved on and talked about she had a cancerous type condition. Reports in front of me that she needed a hysterectomy. Kirkland and Dodson in court indicated there was a mass that was developed that was not in the medical records, which is why I questioned him about that. He further kept speaking if I put her in jail for any period of time, it would amount to a death sentence. I say, "I'm not going to give her a death sentence." They talk about her mother just being in a wreck. She was the only, sole support for her mother and her mother has broken two legs and so forth and so forth. I say that's fine. I'm still going to put her in jail. Jail will kill her and so forth.

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