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I indicated the weekend would not be a good time because it's very crowded. I told her she could pick a day, she picked Monday. They mentioned she might have health problems. I said if she has a health problem with a doctor's excuse, she can appear at a later time in that week, but she must come every week. I told her if she didn't come, the press was watching this, that the deterrent factor and the part of the sentencing philosophy is not to punish, but also to deter. Everybody would know what happened to her.

Of course, once they know, their reaction to that knowledge, you know, is different. Ms. Hull thought that was not a severe enough sentence. To me, 30 days, one day a week is a severe sentence because for 30 weeks you have to think about going to jail every day and hearing that door slam. I indicated that I thought she could live with it. Mr. Kirkland said, "I think she can." I said, "She'll have to. She's going to hear the door slam," and so forth. That's the end of that. More than that, I could not do.

You elect we judges to exercise our discretion. It depends to a large extent on the sentence a person gets, the judge is there in front. I fault no judge. The five-year period between '89 and '93, I held civil courts four weeks more than I held criminal, and it's almost the same. Now, of course, I've been criminal administrative judge and then civil administrative judge, so some years I only did criminal courts two weeks, for instance, other years, I might only do the civil court two weeks, but over five years it will average out, and over five years, I've sentenced more than any sitting judge except Judge Eppes who will in a year will do as many as I did in a five, but I'm not faulting him because more people are in jail because of him than anybody else. They just plead, get that probationary sentence, they can't live with it, they go straight to jail. I'm not faulting anybody's sentencing philosophy at all. I make no comments about that.

Further than that, this record speaks for itself. I sentence so many. You can check and see what's there. I have affidavits on my white color sentencing theme. That helps me with some segments of society. It hurts on the other. It depends on what their viewpoints are, particularly on that.

Now, I would not sentence -- if a person was making a loan, if he just got caught, I would not require jail time, you know, even if it had been recurring, if the person was taking $100 a week and putting it back in, he

At that point I said, "Listen, I'm going to be the chief administrative judge. Ya'll don't need, but ten minutes. Four judges have already heard this. What we're going to do is we're going to assign this judge to
-- this case to a particular judge. I don't see any other judges in here, I'm going to be here."

At that point, we didn't have the new nine judges. I was going to be chief administrative for the next I thought six months. It turned out to be 18. But, anyway, I would monitor this case for you. They're five cases. I will consolidate them. Anytime ya'll have a motion, I will hear it.

It involves a time-share unit at Garden City consisting of 2,000 unit holders. It involved elections that occurred in '87, '89 and '90. A lawsuit was brought concerning the propriety of elections. I think they were engendered because in '87, a board of directors -- the stockholders elected a particular board of directors and then said, "No, the vote count was wrong," and they put management back in.

In other words, in '87 on initial vote count, the management lost and got placed back in on a recount and then the lawsuits started coming. The

The next action was directly at the request of Ms. Ortega. Her husband is gone. They had scheduled an election in -- sometime in '91. Notices had already gone out, they came to me. All the attorneys involved in it said we need to get these provisions in the bylaws and so forth worked out before the election is held because if we don't, we'll just have another lawsuit which sounded reasonable to me.

I did a temporary order saying go ahead, have that particular meeting and vote on your directors again, circulate a copy of this order that says this election is subject to a ruling of this court based on the facts to be developed on the constitutionality of these particular bylaws and other matters before the court at a later date.

Then through -- I recognize I'm speaking fast and if I was in a trial, somebody would tell me to slow down, but I'm speaking fast so ya'll can get on with it. Through great effort, we negotiated a settlement. A copy of that order is there. What I did eventually was this, I said, "Listen, all of these lawsuits keep coming and I keep listening to your motions and making rulings, but what ya'll really are concerned with is control of this 2,000 unit time share facility at Garden City. Why don't ya'll just have a proxy fight? We will do it absolutely fair and square." You can read the order.

I fought with the attorneys over every provision in that consent order. I fought with them on the proxy statement that went out. It went out as a joint mailing. They argued about the color. Blue on gray tends to win votes more than red on green, whatever.

When the final ruling came down, the vote was tabulated, they couldn't even agree on who was to tally the votes. As a personal favor, I got the Master in Equity for Richland County to tally the votes. There was a Supplemental Order appointing him. All ballots came to him and existing management was retained. The playing field has been leveled and in that order that their cumulative voting rights were not to be exercised or if they were to be exercised, they would be severely limited. I did all that I could. The Ortega group lost in that election.

I've got no problem with the Court of Appeals ruling. As far as interpreting by the numbers, my reasoning was on another basis as you will see.

Further than that, I have no comment on that.
THE CHAIRMAN: Yes, sir.
A. I'm sorry that he -- well, he didn't really seem like he was complaining about it. He was just --
THE CHAIRMAN: Questions? None. Thank you, Judge Kinard.
A. Sorry to hold ya'll up.
THE CHAIRMAN: That's okay and let me say again in your case as well as in Judge Baggett's the record -- well, in all cases, the record is kept open. If there are further -- as further information we develop, if anyone wishes to forward to us either yourself or any other witnesses, we're open to receiving that and hearing it. So if there is anything you wish to forward to us or anything any of the other witnesses do, we'll be happy to consider it prior to our deliberations.
A. Of course, I never know how the printed word is going to come out on what you say when you speak in the heat of the battle. It's very difficult as a trial lawyer and clothed within a judicial robe, you know, not to stand and do whatever. It's very hard to be like this. I hope my answers were intelligible in the heat of battle. Your report will come out, it will be too late for me to do anything. I'll stand by what I said.
THE CHAIRMAN: Thank you. Do I hear a motion to recede until 2:00 o'clock? Second? All in favor say aye. Opposed, no.

TRANSCRIPT OF TESTIMONY OF JUDGE KINARD AT PUBLIC HEARING OF MARCH 29, 1994:

JUDGE KINARD - EXAMINATION BY MS. MCNAMEE:
Q. Judge Kinard, you have been on the Circuit Bench for five years now. Are there any changes that you have noticed in what's come before you, what the duties of the job are, what the work load is in that tenure?

The Court Administration did finally give me a fax machine and that turned out to be a blight on our life rather than an asset because the faxes just come in all day long, especially on Friday all the way to 5:00 o'clock about why an attorney can't be ready on Monday. That's the biggest thing, sheer volume. Sheer volume is amazing.
Q. Do you like the more difficult, complicated case?
A. Yes.
Q. Why?
A. Sure. Actually, I'd take the more complicated case, but then I try to resolve it and I've been relatively successful in resolving complicated cases. I implemented the assignment of complex cases statewide in this county, which was the first county, but I had earlier done that, assigned the complex cases to one particular judge just to avoid the same attorneys coming before seven different judges on Discovery problems because if one judge has it, actually, the attorneys don't come back with discovery difficulties in front of that same judge.

So initially, actually, I just took most of the complex cases until later in '91 when a few other judges were added and they added the nine, then I was able to parcel out the cases. The Supreme Court passed an order saying that, you know, you could assign complex cases to individuals, regional wide as well as circuit wide.
Q. I understand that you headed up the Settlement Week for Richland County one year and what was your experience with that? Will it be done again?
A. Well, not in my county. This was the first Settlement Week project in the state. Richland is generally designated as the pilot project and we had great success with it. The problem I had with it, of course, is I am the Chief Administrative Judge and I'm asking the attorney to participate in Settlement Week without pay. Of course, every attorney that I called or wrote the letter to said, "Sure, Judge, I'll be happy to assist," and they did. They did a good job.

The Bar then moved to Charleston where Judge Howard has implemented an ongoing situation down there. Back in Richland, we now have Alternative Dispute Resolution Committee which is very active, and since I'm Civil Administrative Judge again, I'm actually over that.

Now, it's, of course, entirely voluntarily except, you know, I'm chief judge. When I ask them to do it, they will try if they can to do it. So that's basically it.
Q. What kind of cases are you picking for this experiment --
A. All right. If -- it's picked by category. I had to get a Bar committee to do that and I was very careful to alert the attorneys that the Bar members were not looking at their file. In other words, construction litigations, actions against State agencies, products liability cases, not who ran the red light cases where liability is a question in, those cases are going to be tried.

But homeowners' contractor dispute and those things, really should be mediated. If you can get the people sitting down and looking at each other, they can generally be resolved.
Q. You were the managing partner for your firm for many years and I wondered if you had any advice for new lawyers starting out and also with your experience on the bench?
A. Well, it's a little different. I was a generalist, I guess you could say. I started and the law kept evolving and I kept growing with the law. Now, I think you have to specialize more and more. I mean I did things that I wouldn't contemplate having an attorney do like handle stock issues and interstate commerce. My goodness, you can get sued for millions of dollars if you make a mistake on that. Merged savings and loans.

You know, I didn't know you needed expertise, so I think you just have to specialize to do a good job, at least in the metropolitan areas. Now, of you're in a small town, what walks in the door, you have to take, but you need to seek other advice if it's beyond your field of expertise.

Get involved in the community, that's what I would tell a young lawyer. Read the law and get involved.
Q. Do you have an opinion about the proposed Rules of Evidence, the necessity for them?
A. Well, I have read the proposed Rules. The only -- there are two areas of some concern. We have the little handbook of the comparison of Federal Rules of Evidence to the State, I keep that on the bench, have it highlighted and so forth and just use that to anticipate.

I normally rule along with the Federal Rules of Evidence anyway except like for impeachment purposes, they have an ironclad rule of ten years on

I actually have a problem with concurring opinion. Our Court does not do that too much. The US Supreme Court, as you know, when it comes down they decided whatever and you have two main opinions, three concurring opinions and four dissents, now, what's the law of the case?

I think the small court of five, if we can agree on the result, we can certainly agree on the terminology even if it takes a little longer to lobby for that position it seems to me.

So dissent, yes, I would do that as a matter of conscience. Concurring opinions, I'd really have to be shocked to write a concurring one. I'm not saying I won't now. I've learned not to box myself in.
Q. What do you feel are the components of a good judicial temperament, Judge Kinard?
A. I've read all the screening reports for the last two years, or I've skimmed them anyway, what the judges have said. I think it's a little different on the appellate level than on the trial. At the trial level, of course, you have to be courteous not only to the attorneys, but specifically to the jurors and the litigants because you're the one with the robe and you're the one that they look to. They actually react to your gesture, your mannerism and your tone of voice and all that and you have to be very careful on that.

At the appellate level, you have timed arguments and so forth. You have attorneys who are hardened to the process and I would still be polite and courtesy and patient and listen, but I don't have to go the second mile on it that I do when I have a jury going on, I think. You know, just characteristics that you put on your questionnaire about rate a judge by A,

You know, in a smaller circuit, you could take some time and I would look forward to being an associate justice to have time because we make mistakes that you wouldn't make given time to study. But we have to read and decide because if you don't, you get deluged. Attorneys come in, in nonjury terms that are pushing trays of depositions. They've got briefs this thick. You listen to that. Another one comes in right behind it.

I mean, you can't ruminate over those for months. We just have to go to the bottom line and decide. You've got better than, what, 75 percent chance. I should say probably 90 percent chance in most cases of ruling right anyway if you practiced law. Unless it's a novel issue, then if it's a novel issue, you have a 50 percent chance. You just go with the feeling on that after you've read the case.
Q. How do you utilize your law clerk?
A. Well, unfortunately, I do not utilize my law clerk for research because my law clerk stays on the phone dealing with the Richland Bar all the time and protecting me to the extent that she can from ex parte communication. And the hall is lined with attorneys trying to get in every time I step off the bench, that's just the way it is.

Occasionally, I will ask my law clerk to read briefs that have been filed by the attorneys and ask for her input into it, but I don't require her to do much research beyond that, but then I practiced law, you know, for 24 years.
Q. We also did look at your 30-day report and you were totally current also.
A. That's what I just said.
Q. All right. I think you have talked about your philosophy about ex parte communication. You --
A. No, I haven't really talked about it.

Last year, I was Criminal Administrative Judge. My solicitor is running for something else. That's neither here nor there. Because of that to an extent, he delegated docket control. We no longer have the roll calls, and, you know, just tying up people in Richland County. What happens is I send out memos to the Bar asking the status of those cases. These cases are to be called this week or next week and so forth, please reply to me and to the Solicitor. The Solicitor, of course, comes and ex partes you all the time. They do that to me. They do that to every other judge. It's whether you view that as being ex parte or not, I mean they say we've got to call this case. That's ex parte, isn't it? I mean the other side is not present. It's an old murder case and it's a mean murder case. Well, I mean, you know, that doesn't prejudice me, but the solicitors do that statewide. Public defenders are limited in that they come in from time to time.

Now, I'm taking too long with this, I know, but if I'm going to be in a circuit for a while I call in each of the solicitors, and normally there are lots of them, individually and talk to them about these other small things. Now, that's not ex parte on a case that's before me, but I just need to know, for instance, if you get along with him and which public defender do you as a prosecutor dislike because you know I need to know that because if it's a little like before they changed the law for shoplifting, fourth offense, some little lady has taken a pair of shoelaces, the solicitor stands there and wants five years when normally they want time served, I know that there is something besides that case involved. And I need to know that and I have to ex parte to find that out.

I have never breached a confidence on that and I have never told this person that he said that about him and so forth, but I need to know that to run my dockets. I need to know personal problems that they have back and forth.

On the civil side, I do status conferences all the time. We have In Chambers Week. I do them at least 30 to 35 a day, sometimes more than that, but let's just say 30 a day. The attorneys can't always get there. The law clerk is present. If the attorneys come in, I try to settle the case. I need to move the case if I can. Sometimes one attorney will show. There are other attorneys in the office all the time while that's going on. If I can

I've never heard a complaint about that. I'm not saying that an attorney will not try to get an edge by saying, "This is a pretty good case, Judge," but I tune that out to the extent that I can.

I mentioned I do not eat lunch. The phone rings and I answer the phone. It may be I won the Publisher's Clearinghouse Sweepstakes or something. If an attorney is on there trying to talk about a case, I cut him off. And I try to do conference calls. You just can't do it here. I can do that in Lancaster. I could never have an ex parte communication in Lancaster right now. There will come a time, of course, when that will also -- as the numbers increase up there. Or Fairfield, I would never -- I could just say I would never have an ex parte communication. I say no.

My answer is no, I never have ex parte communication, with the qualification I have to hear -- I don't talk about the cases other than to gather information.
Q. It's very complicated being in an urban --
A. It's --
Q. What is your standard for recusal, judge?
A. Well, as you know, I have a lot of stock.
Q. Yes.
A. And if I have even one share of the company, I'll do it. In addition, I recuse anytime anybody has any problems or mentions it, I recuse a good bit. I also practiced for 24 years. I've recused all over the state. I've represented corporations. You know, let's say Westvaco is being sued or something or a bank is being sued, I put that on the record. Many times the attorneys will go, no problem. But the litigants, you know, if they frown at all about it, I mean, it's out of here, somebody else can try it without you doing it.

In Camden, it's a major problem. I did a special nonjury term Friday two weeks ago with Criminal Court, finished on Thursday because the solicitor couldn't be -- I called in about forty cases and probably recused on ten of them because I used to represent the people. Or I had stock or I knew something about it, that kind of thing. Other judges have the same problem.

One share of stock, you're out of there. Any financial interest, you're out of the case. That's the bright line that I follow. If I represented one

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