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 6790, May 17 | Printed Page 6810, May 17 |
Printed Page 6800 . . . . . Tuesday, May 17, 1994

Further I would bring excitement, enthusiasm and stability to the Court. In other words, I have the strong desire to help mold and lead our judiciary. And also being elected at the age of 37 would give me the opportunity to have a long lasting and committed impact to the well-being of our Court.

As to the experience aspect, I was appointed as Master in Equity, which I'm sure as you're aware, is the equity side, or a division of the Circuit Court system, back in 1989. And at that time I was the youngest judge in the state of South Carolina. And I will admit to you that there were some who had uncertainty as to whether someone who was 31 years old could stand in judgement of others in complicated disputes in litigation. Well, I certainly stand on my record on that point.

First, hundreds of lawyers across the upstate endorsed my candidacy for the Supreme Court. Lawyers of all ages and experience levels have taken the time to see what I have done, they've come to trust my decision making capability and just as important, the reasons I make those decisions. And with a race of six other well-known judges, they felt strong enough to publicly support me.

And I've also, as I'm sure you're aware, been asked by our State Supreme Court since 1989 to act as a special Circuit Court Judge in Greenville as most other counties and I can assure you that a task would not fall to someone our Supreme Court did not trust with that position.

I also want to make sure that this committee and the record reflects the nature of the type cases that I routinely hear. I do not have the luxury of having a 12-member panel called a jury assist in the cases I decide. In every case I hear, I must analyze the facts, apply the law and render a decision and I don't think that any judge in this state would or could argue the point that this is not the most complicated and demanding work that any judge can do, but it's exactly what one would also do on the Supreme Court.

And I suppose another true benchmark of judicial competence would be the record that you possess on appellate review. I have checked on this and over 90 percent of all cases that I have decided that have been reviewed by our Supreme Court or Court of Appeals have been affirmed. In other words, they have agreed with the decision and the conclusion that I have reached.

Finally, I do want to comment, this has been a very interesting process for one to go through. At times I have felt somewhat like a young child who gets dressed up in his best clothes on Sunday morning and does his

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best to behave while at church, such is the legislative election process. But what this committee must do, and I'm sure what this General Assembly will do, is to look behind the smiles and handshakes and based upon what we have already done, try to gauge what we will do in the future.

The most important aspects of this position in my opinion are character, fairness and commitment to excellence. And what I hope to convey is the fact that my record and my background make me uniquely qualified for a seat on the Supreme Court. Further, my age is a tremendous asset to the Court if the court is to be a truly representative group of our lawyers.

Finally, lawyers and litigants know that when they walk into my courtroom, I'm well prepared. I will listen to them. I respect them and I will then make the decision that I feel compelled to make that is fair and in as impartial a manner as possible. They may not, of course, agree with the decision or conclusion I reach, but that comes with the job. But they will leave knowing they were treated fairly and they will leave respecting the judicial system. I think that is the highest call that any judge can aspire to.

So now that I've made those comments, I will be glad to entertain any questions.
REPRESENTATIVE ALEXANDER: The Senate is going into Executive Session and we're now locked in here. The only escape would be out the window, so if anyone needs to go, we need to know about it. Are all of our candidates present? Have we looked around -- is there anyone not present that might not be able to get in? All right. Proceed, Steve.
MR. ELLIOTT: Thank you.
JUDGE SIMMONS - EXAMINATION BY MR. ELLIOTT:
Q. Judge, you touched on many of the things we wanted to talk about, but we may touch on them again in a little different kind -- a little different way. First of all, just sort of some record keeping matters. Several questions on your Personal Data Questionnaire ask about your experience for the preceding five years. When we look at that, is that your experience as a Master in Equity?
A. Yes, sir.
Q. It is? I've -- one year as a practicing attorney or --
A. No, sir, I finished law school in 1982 and served as a law clerk to Judge Vic Pyle and then was in private practice in Greenville up until to 1989 when I assumed my current position on the bench.
Q. So the date we have is for your time as a Master in Equity?
A. Yes, sir.

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Q. Would you tell us a little bit about your criminal experience?
A. Well, I have never gotten caught doing anything that I shouldn't have, but I suspect that you want more of a substantive --
Q. As a practicing attorney?
A. As a practicing attorney, it was somewhat limited in that the firms I was with primarily did civil litigation. I did have some experience in City Court trials, Magistrate's Court trials and occasionally pleading a client's employee or a relative or a family member guilty, but in private practice, civil was always my strong point and what I focused on primarily.
Q. And I think I remember seeing something about you as a clerk for --
A. Vic Pyle.
Q. McAninch?
A. Yes, sir. In law school, I served as a research assistant to Professor Bill McAninch. At the time he was writing the law -- the criminal law of South Carolina, which is still I think a handbook, so I had substantial experience in researching cases and helped him write several chapters.

Also, I clerked as I mentioned for Vic Pyle, a Circuit Court judge and had a lot of hands-on criminal experience in that point. And since I have been on the bench, I have held any number of terms of PCR Court, Post Conviction Relief, where you are in effect acting in an appellate position, applying the substantive criminal law to an earlier trial.

And also I've heard any number of drug forfeiture cases, where you also involve substantive, criminal issues. So I -- while it has not been the majority of my experience on the bench or in private practice, I certainly have had substantial experience with it and feel very comfortable with it.
Q. While we are talking about your experiences as a special Circuit Court judge, what type of cases have you heard and could you kind of quantify and qualify that experience for us?
A. As a general rule, when I hear the special Circuit Court cases, it is substantially the same as what I do day in and day out, normally, civil, except for the weeks of PCR, and it may range from trials to weeks of motions, so it's really all over the board. I may hear a week of nonjury motions and hear on average 30 or 40 motions a day for a week or I may have a case that runs a full week. So it's just -- it's hard to, I guess, quantify exactly what it is other than generally it's something that I do about a week a month in Greenville as well as any other number of counties.
Q. That's a week a month on a 12-month basis?
A. Yes, sir. That's been my experience probably since 1989.
Q. You might -- just for those who will read this record later on, you might want to distinguish some between the Master in Equity and the

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Circuit Court judge. I mean, more of your experience is as a Master in Equity, but --
A. Well, the Master in Equity is the equity side of the Circuit Court. You know, I can tell you from personal experience that one of two things happened when a case gets referred to me. It is either a simple default and something that we can resolve a lot quicker or it is so complicated and convoluted and twisted up that the Circuit Court judge either does not want to or cannot afford to devote the time to unravel it, so -- and I think in my Personal Data Questionnaire, it's set forth. The cases I typically get are quite complicated and they range from -- anywhere from automobile accident cases to securities fraud cases, to relationships of enabling legislations with other acts the legislative bodies, so it is a wide range.
Q. Do you write your own orders?
A. What I typically do, just based on the sheer volume of the cases I handle, if I do not rule from the bench, then I will -- once I have a chance to research the issues and feel comfortable with my decision, I will send a letter out to both lawyers and ask one of them to prepare an order in compliance or in conformity with what I've set out in my letter. And that way, it allows me to adequately express to the attorneys what my ultimate conclusion is and why and, secondly, it avoids any ex parte problems.
Q. When the attorney returns the order, what do you do to make yourself comfortable that it -- that you need to sign under, "And it is so ordered?"
A. I pull out my notes and I pull out my letter and I read the order in light of my letter and my notes from the trial. And also, of course, any time a lawyer communicates with me, I make sure that a courtesy copy is sent to the other side and allow that lawyer the opportunity if there is something other than the ultimate conclusion to be reached. If there is something that they feel is improper or should not be in there, then I will go ahead and contact through a conference call or through a letter.
Q. Would you tell us a little bit -- well, first of all, you list -- there is a question that asks you to list up to five civil appeals that you've handled and you listed three. Is there any reason why you did not list five?
A. I didn't have five. Simply because most of my cases -- my first several years, I was generally associated with one of the older lawyers in the firm and my later years, a lot of it was Family Court, and was just fortunate enough to where we were able to get most of it resolved or if we tried it and either one or both sides did not want to go to the appeal process, so the three case I had were the ones that I was involved in.
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Q. When members of the General Assembly sit down and decide who to vote for, for associate justice, someone might ask -- it might -- shouldn't an associate justice have a little more appellate experience? How would you answer that question? What is it about your experience, your background and the nature of the job you do now and the nature of the job you're seeking that would answer those concerns?
A. Well, to start with, with the exception of Judge Bell, I think all the other candidates are in the same boat so to speak as far as the appellate experience. I would venture that as far as what is actually required in the appellate review, I have more experience than, with the exception of Judge Bell, any of the other candidates simply because what I do day in and day out is analyze the facts, determine and apply the applicable law and come up with a decision, which is exactly what I would be doing on the Supreme Court.

As well as I hear any number of appeals from Workers' Compensation Commission, Employment Security Commission, Magistrate's Court or City Court, and any number of other agencies I never knew existed until I saw an appeal come across on my desk, so I have handled -- and I haven't looked at numbers, but I feel safe in saying hundreds of appeals from the so-called inferioral -- inferior court or tribunals or whatever label you want to attach to it.
Q. Well, the General Assembly tried to reduce the number of agencies you would hear appeals from last year. In your materials you indicate that you believe it's very important for judges to contribute to the well-being of the community?
A. Sure.
Q. I think you characterize it as a responsibility?
A. Yes, sir.
Q. Please tell the committee how you see the role of the judge in society.
A. Number one, it is an awesome task that should not be entered into lightly. I think the emotional stress, the physical stress and the spiritual stress are three critical factors that must be addressed by each individual judge. But what I have observed over the years is that it's becoming more and more of an isolation position and I don't think that's good for the judge because the judge then is detached from the real world, so to speak.

And I also I think it's important that the community see that this person, this judge that they read about in the papers, these decisions they see, it comes from a real person. It comes from a human. And they need to understand that. They need to have that confidence that, yes, it's

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somebody that I can talk to, it's somebody I can trust, it's somebody I can respect. So I just think it's very important.

I was always raised where you need to give back more than you take out. And I just think it's a real danger to isolate yourself.
Q. Have you found that it is difficult to find time for community activities as a Master in Equity?
A. It is. Sure, but you try to make yourself available when you can and try to work your schedule around it. Most things I'm involved in now, it maybe a lunch meeting or an after-work meeting and it's scheduled at a sufficient time to where I can work my schedule around it.

That is one luxury of not having any jury to have to contend with because you're more fluid with your schedule. So you put in the same amount of court time, but you simply have a little more flexibility.
Q. What do you understand the ethical constraints to be about your community activities?
A. I cannot be involved in any type of fund-raising and I tell the boards that ask me to serve with them up front, I will be glad to -- if it is something I believe in, I will be glad to work with you, but I can't be involved in any type of fund-raising, can't do anything political or anything that approaches me taking any type of position.

And I've been involved with the Big Brother/Big Sister's program, the Pendleton Place Home for abused children up in Greenville. I'm also involved currently with the Greenville Zoo. I've also been on the chair of the Paralegal Advisory Committee of Greenville Technical College. So all of them are good groups that as far as I can see they're very noncontroversial and as well as serving on the session in our church and working with young people there.
Q. They are not groups that end up in court a lot, are they?
A. I hope not.
Q. One of the letters of recommendation you provided was
from an attorney, and I think was a former law partner?
A. Yes, sir. Cecil Nelson?
Q. Cecil Nelson?
A. Yes, sir.
Q. Is he an attorney who would appear before you with any kind of frequency as a Master in Equity?
A. Mr. Nelson does primarily real estate now. We used to be in a firm that split several years after I left. Occasionally, he does come in front of me and I guess we've been apart from each other almost six years and what I did with former lawyers, or the lawyers in my former firm, I imposed a six-month rule that I wouldn't hear any cases involving them,

Printed Page 6806 . . . . . Tuesday, May 17, 1994
and then after that, probably the next six months, I put on the record that I used to practice with Lawyer X here and if the other side has any questions about it, I'll be glad to recuse myself and let some other judge hear it.

After I've ruled against some of my former partners on some close questions fairly early, I think any concern about my impartiality was resolved. In fact, they accused me of going too far the other way.
Q. In your Personal Data Questionnaire regarding gifts and social hospitality, you say it's the better rule to avoid any appearance of impropriety and maintain a completely professional relationship with attorneys. What do you mean by completely professional relationship?
A. I will give you an example. There are still -- there is still a law firm in Greenville that I don't think fully understands -- I think it's three Christmases ago. They sent over a couple of very large boxes of chocolate at Christmastime and it was certainly meant with no strings attached, I'm sure, but I called them back and said, "I'm sorry, I just can't accept," and I think I offended them.

But I just think it's the better rule that you just keep it professional. If I go out to lunch with a lawyer, I pay for my own food. If it comes Christmastime and whatnot, I -- don't even send it anymore, please. No, it's not -- it is not going to be accepted. And, again, is it going to influence my decision? No. It may put a little more weight around my middle, but it's not going to influence us, but you have to be so careful nowadays with the appearance things are given and I've just been very sensitive about that.
Q. Do you hear any landlord tenant disputes?
A. Occasionally, on appeal from the Magistrate's Court, I do.
Q. And I notice from your Personal Data Questionnaire that you have some rental property; is that correct?
A. Yes, sir.
Q. How do you avoid a bias in favor of the landlord in a situation like that? I mean, you've got to be familiar with the trials of being a landlord?
A. Well, knock on wood, my vast holdings are two properties, I believe, and one tenant has been in there the eight years I've owned the house and the other one is a duplex and I've never had any problems, so I've never had any problems related to it.

The only time I ever see a landlord tenant dispute is on appeal and generally it's on something that the Landlord Tenant Act, but it's fairly straight forward, so it -- it's never been a concern that it'd ever come up.
Q. Is there an area in which you think there would be any potential bias on your part and if so, how would you guard against that?

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A. I really don't think there would be. I mean, no more than any other potential biases that may come along and the only thing I can tell you is that in the past, that I have very diligently tried to avoid any biases and decide on the record that's in front of me.
Q. In the area of judicial temperament, what's your approach?
A. I can still remember the esteemed comments made by the trial judge shortly after I started private practice that in my opinion was absolutely without foundation and in front of some clients of mine that greatly embarrassed me. And so my opinion is that a judge sits in an awesome role and the litigants that come forward look on me as the judiciary.

If they leave being mistreated, if they leave feeling I didn't listen to them, if they leave thinking that the other side had an in with me because of the position of one lawyer, then they leave not trusting the entire system. So my opinion, and my belief, has been that you treat people fairly, you respect them.

You listen to them and then you make the decision that you need to make and anything beyond that, you know, you don't need to be involved in.
Q. If you're elected to the Supreme Court, what will you consider it to be your duty as far as preparing for those cases that are not preassigned to you?
A. Do what I do now on every single case I have, get the file and sit down before the hearing and review it. I think that's part of my job. If I walk into a courtroom unprepared, then it makes me look bad, it makes the court look bad and it slows things down. So I would think that with any case, I would want to have at least a good working knowledge of it, of the facts and of the law before I try to step into it.
Q. What's your view of dissents? Should you work to avoid dissents?
A. I think if you look at our US Supreme Court, you see the danger of dissents because for those of us who are down in the pits, so to speak, and for the practicing lawyer, I'm not sure how to square what's going on up there at the US Supreme Court.

There are times when I think you have to dissent. The mere fact that you have five individuals together, you're going to have dissents, but I think that unless it is a strong reason that you should try to come up with a consensus.
Q. If you have any kind of financial interest whatsoever in a case, what would be your practice about hearing that case?
A. I would recuse it. Well, I would recuse -- I would state to the lawyers ahead of time, if I knew it, through a conference call. As a matter of fact a few days ago, I was looking at my court docket and saw

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a case coming up I think at the end of June where a friend of mine is a conservator, a two-day trial for breach of fiduciary, so I got both lawyers on the line and said, I just want to let ya'll know, I know Mr. X and I want to give either one of you the chance now to let somebody else hear it and then they both said they felt comfortable with me hearing it, but I think the better practice is if there is any possibility of any dispute or any question, you put it on the record and give the attorneys the chance to let some other judge hear it.
Q. In the area of pledges, have you sought the pledge of any legislator prior to the screening?
A. I have shaken a whole lot more hands than perhaps I've ever wanted to, but I have never actually solicited for their pledge.
Q. You can get calluses, can't you?
A. Yes, sir. On many parts of one's body.
Q. Have you asked anyone to solicit or seek a pledge of a legislator's vote --
A. No, sir, I have not.
Q. -- for you prior to this screening?
A. I have not directly or indirectly done that.
Q. Has any member of the General Assembly assured you that if you get past screening, he can spearhead your effort or he has a certain lock on a number of votes for you?
A. No, sir. You know, there are certainly those that you, in all honestly, anticipate may be in a position to help you, but have they said anything or have I asked them, no, sir.
Q. Earlier in your statement you mentioned some endorsements, about a hundred, I think?
A. Hundreds.
Q. How did that come about? Is that something you initiated?
A. Yes, I had --
Q. What happened with those endorsements?
A. There are some petitions that have been circulated through the upstate and I had discussed the matter back some months ago with some attorneys and then they have taken the lead, so to speak, and I have not had any direct involvement with it simply because I don't think it's appropriate for a judge to, you know, call a lawyer and say here do this for me.

If they want to, fine, but I just think it puts undue pressure on them, so I did initiate it in that sense, but I have not had any direct involvement as far as what has gone on beyond that point.

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Q. I believe you list your campaign expenditures to this committee as being in excess of $100?
A. Yes, sir.
Q. And, as I recall, there is no indication that you filed with the House or Senate Ethics Committees and you need to do that. If you'd attend to that, please.
A. Okay.
MR. ELLIOTT: That's all the questions I have, Mr. Chairman.
REPRESENTATIVE ALEXANDER: Does any member of the committee have a question?
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. The word "endorsement" raised a flag with me because you know in the past persons seeking these positions they have indicated to us that the position would already be locked up even before screening?
A. Yes, sir.
Q. And, certainly, your -- when you mentioned endorsements, were you -- to what extent did you participate with these attorneys that -- those ones that decided to endorse you? You spoke on it briefly.
A. Yes, sir.
Q. Exactly what did you --
A. Well, now, to start with, let me make sure I make the distinction clear, these are not endorsements or any -- nothing has gone to any legislator because I understand that prior to that happening, this committee must issue its report, so nothing has gone out.

And the only thing that I did was talk with several friends in the Greenville area, who are lawyers, and discuss different possibilities and different ways to be effective, if you will, down here and they said well, how about if we do this. And I said, well, that would be fine, but I'm not going to directly get involved in that, for the reasons I've just stated.
Q. So far as you know they have not made any contacts with members of the General Assembly?
A. Oh, no. Absolutely none. No, sir. I've been very zealous about that.
Q. Okay. Thank you.
A. Thank you.
REPRESENTATIVE ALEXANDER: Anything else? Thank you so much.
A. Okay, can I leave?
REPRESENTATIVE ALEXANDER: Yes, sir, if they'll let you out the door.
A. Am I still locked in with the Senate?

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