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 6820, May 17 | Printed Page 6840, May 17 |
Printed Page 6830 . . . . . Tuesday, May 17, 1994
REPRESENTATIVE ALEXANDER: Proceed, please.
MR. ELLIOTT: Thank you, Mr. Chairman.
MR. CHEWNING - EXAMINATION BY MR. ELLIOTT:
Q. I see that you have been a practicing attorney since 1972. I think that's for about 21 years; is that correct?
A. 21, almost 22 years, yes, sir.
Q. On your Personal Data Questionnaire, it shows that during the last five years, your practice was 23 percent civil, 3 percent criminal, 19 percent domestic and 31 percent foreclosure actions?
A. That's correct.
Q. If you total that up, that's 76 percent. Is that other 24 percent as a City judge?
A. No, sir. The City judge work is not included in that at all. The other part would do -- we represent some school districts, we represent some banks we're in the general practice of law and I sort of pick up all the other area of work in that area.

Anything that computes down less than four to five percent of income, we don't include it or categorize it. 10 percent or better, I've got a listing where we go back on our records and come up with the areas of work I generate income from.
Q. Well --
A. I do -- I'm sorry. I do a lot of pro bono work also for the South Carolina Bar Association that I did not, I don't believe, indicate in this cover sheet and that's not included in any of the -- encompassed on that.
Q. And I got the impression, and I don't remember if it was from this question and other questions, too, that you actually went back and pulled your records?
A. Yes.
Q. The firm's records and made some calculations about the percent of time --
A. Yes, sir.
Q. -- you spent in different areas?
A. Yes, sir.
Q. You were reported being in court about 200 times as an attorney and as a judge on your Personal Data Questionnaire, so it's a combination of the two?
A. Yes, sir.
Q. How much of that would have been as an attorney?
A. At least 50 percent of it.
Q. At least 50 percent. How much of that 50 percent -- a hundred times, so that's 50 times, would have been in Family Court?

Printed Page 6831 . . . . . Tuesday, May 17, 1994
A. Over half of it. 30, 35 percent. Most of the court work that I do that's not related to Cayce and in the court would be in the Family Court.
Q. I'm sorry, could you say that again?
A. Most of the court work that I would do would be in the Family Court in that 50 percent area.
Q. And I'm not sure I followed that. In the --
A. If I've been in court a hundred times, 50 times as a judge -- either as a judge in the City of Cayce or a judge or special referee, the other 50 cases that I would be in court, the majority of that would be Family Court type work.
Q. All right, sir. Thank you. How much of your domestic practice is as guardian ad litem or as an attorney for a guardian ad litem?
A. Probably half of my Family Court work would fall into the guardian ad litem area.
Q. Are those pursuant to court appointments as a general rule?
A. Yes, sir.
Q. About how much of your Family Court experiences are vigorously contested cases?
A. I may be far off, but I just -- 10, 15, 20 percent. A lesser amount.
Q. And, if we can, we're going to kind of run through that sequence of issues that you find in Family Court and see what your experience is with those, please. How much experience do you have handling cases involving matters of equitable distribution of marital property?
A. More than I've ever wanted to have. Dividing up the family records and albums would make you want to do something else for a living. It's heart wrenching.
Q. Well, your answer could mean one.
A. No, no.
Q. I understand.
A. Numbers of them over 22 years.
Q. Have you handled cases concerning the equitable distribution of marital assets which include retirement accounts?
A. Yes, I have.
Q. Has that been a fair number?
A. As to retirement accounts, I wouldn't say a fair number, but it's a factor and we've dealt with it. I don't know whether it's been 5, 10 times in the last year again. As a matter of fact the last one I dealt with, my client was insistent that his wife could not get any retirement and I was insistent as a lawyer that she could per the law and he wouldn't adhere to it and we tried it and I was right and the judge ruled exactly what I told my client before we went in the courtroom that the court would rule.
Printed Page 6832 . . . . . Tuesday, May 17, 1994
Q. Have you handled cases of child custody?
A. Yes, sir.
Q. Have you handled cases involving child support?
A. Yes.
Q. And are you familiar with the DSS Child Support Guidelines?
A. Yes, I am.
Q. Have you had any experience handling cases involving the removal of children from parental care?
A. Yes, I have.
Q. How about experience involving juvenile delinquents?
A. Yes. Most of that was court appointed through the Family Court, but I've done a great deal of that representing juveniles.
Q. And what about child abuse and neglect cases?
A. Yes, I have. A number of them.
Q. And contested divorces?
A. Yes, sir.
Q. Your Personal Data Questionnaire indicates that you have some judicial experience as well, as a special referee and a judge for the City of Cayce and as a special Family Court judge?
A. Yes, sir.
Q. And as I understand it, the Family Court judge situation was like for a week or two weeks in the late seventies or eighties?
A. Yes, sir. I'm sorry to say it was so long ago, I cannot honestly remember. It was not a month or two. It was a matter of weeks. The Supreme Court ordered several of us attorneys in Lexington County, to cover a period of time and I did it several weeks, but I cannot recall and could not find any documentation I had as to the exactness of it.
Q. Would you give the committee some feel for your experience as a special referee, and I note at one time that was a fairly substantial part of your practice? As a special referee and as a City Judge, what type of things did you hear? What type of cases?
A. All right.
Q. What was that experience like? And to follow that up, too, how is that going to benefit you if at all sitting as a Family Court judge?
A. As a judge in the City of Cayce, the jurisdiction there is purely criminal, not civil. I sign the warrants. I arraign and set bonds. I conduct regular traffic court which now includes everything from speeding tickets to simple assault and various degrees of domestic violence and the other -- it's grown in 17 years from a few things to a menagerie of criminal related type offenses.
Printed Page 6833 . . . . . Tuesday, May 17, 1994
We do the preliminary hearings on all of the Circuit Court cases, refer it up. And if someone does not agree with a decision which I render then I have to personally do the -- return it to the Appeals of the Circuit Court.

Special referee, I have heard cases -- the majority of the cases heard as special referee primarily dealt with foreclosures, but I have heard land line disputes, I have heard corporations, partnership divisions. I have heard just any numbers of cases that would go before the Circuit Court.

As one of the earlier gentlemen indicated, the special referee usually takes what the Circuit Court does not have time to do or don't want to do. And I don't mean that in a disparaging manner.

And I think the last of the question, what would all of that do to help me as a Family Court judge, sitting as a judge has taught me patience and I think everyone that I've watched testify before ya'll has indicated that is tremendously important for a judge to have patience.

I heard ya'll ask one person what his weakness was, and I will leave it with that, I won't admit that I have a weakness, but one of them may be impatience. Sitting on the bench, getting aggravated with the attorneys when they're driving a point that you think is just totally away from the issues before you and you want to jump up and set him straight and you have to let the lawyers do it their way even though you may not agree with them at the time.

That's their right, their responsibility and obligation to their client to practice law and advocate their client's position in the manner in which they feel is appropriate, not necessarily the manner which I think should be appropriate.

Sitting has taught me a lot of patience. I certainly understand basically how to attempt to control the courtroom and deal with witnesses, deal with attorneys who sometimes vary a great deal out of line. I am sensible and aware as to how to handle objections and motions. I've dealt with them from time and time again. Just, I should feel more comfortable than someone who has not sat as a judge for a while. It's something -- if you're a practicing lawyer and become a judge, that's one area that you'll have to get used to and I'm basically used to that and I think that would be an advantage.
Q. One of the things you touched on relates to judicial temperament. If we brought in people who had appeared before you, litigants and attorneys who appeared before you as a City judge, how would they characterize your temperament?
A. I had a horror that some of them would come. And then on the other hand, I really would like to hear because sometimes when you sit as a

Printed Page 6834 . . . . . Tuesday, May 17, 1994
judge, you do not have that mirror and reflection as to how -- I may think that I'm coming across very properly and so forth and may easily be offending someone.

I would like to think, and I've had no reason to indicate otherwise, that the majority feel that I am fair and I am courteous and I am understanding. I am sure that there are those few that would have a difference of opinion in that regard.
Q. You listed three business relationships that you're involved in and all of them relate to your practice of law, your partners?
A. Yes.
Q. And you indicate that you would divest yourself of those interests if you're elected to the Family Court; is that correct?
A. That's correct.
Q. After you divest yourself of those interests, will you hear cases involving your former partners?
A. Not for a long time, I hope if I can get out of it. And I say that -- the record will indicate we've been in partnership 17 years together and I'm closer to my partners than I am my brother.

Our families are tied together, our monies are tied together, our livelihood is tied together and has been for 17 years and I won't hesitate one bit to tell you, you know, I'm close to them. I can't back out of that tomorrow morning at 9:00 a.m.

I would like to think that I am man enough to sit down and hear a case and not be biased and leaning to one of my partners, but there is nobody in the world going to believe that. That appearance of impropriety is going to be there and it will take awhile for that to work itself down to Lexington County, I believe, and I'm very conscious and aware of that appearance question and everybody is greatly concerned over that. I must try very hard.
Q. Well, how will you handle that when one of their cases does come before you if you're elected Family Court judge?
A. Dealing with them or any other situation that I feel that I can recuse myself -- if I've got a question about it, I'm going to bring it up and I'm going to discuss it openly with the attorneys and the parties present. Not only am I going to have to satisfy myself that the other parties and the attorneys are not bothered with it, I'm going to have to satisfy myself finally that even I am not going to be bothered with it. And then I'll make the decision and proceed on.

I perceive that there would be a time that I could do it in regards to my partners. But in any situation, if an attorney or a client has a valid reason, even though I don't think that it would effect me, if there is any

Printed Page 6835 . . . . . Tuesday, May 17, 1994
way that -- without causing the court system and those parties a great deal of inconvenience, it's just much easier to have another judge hear it. And since we have three judges in our county, it should be able to be handled without much problem.
Q. You listed a number of associations that you've been a member of during the last five years and some of them were alumni associations and finance committees and it may be that you don't do any fund-raising for those -- well,
let me ask that, do you do any fund-raising for those?
A. No, sir. I do not.
Q. Do you understand what your ethical obligations would be if you become a Family Court judge in that regard?
A. I'm looking forward to having to tell those people, I absolutely cannot do it.
Q. It is a blessing, isn't it?
A. Yes, sir.
Q. You report doing some motivational and awareness speaking. Briefly tell the committee what that is.
A. I have always -- I like young people. I like people in all, but I've got a special interest in children and young people. I will go anytime, anywhere, any church organization, school, grammar school. It doesn't make any difference. If I'm asked, I will go talk about anything they'd like to talk about. Naturally, being a judge and a lawyer, it generally revolves around this area.

I enjoy talking to them. I want the parents present and I just cannot remember the numbers of groups of people I've spoke to and I like to do young people. I've just done it for years. I think there are more parents that are unaware of laws that affect them, that affect their children, that they're not conscious and aware of, and to me, it's promoting the law in all. These are not ignorant people.

We're just so busy in our society. Our laws change and our paths so rapidly during the day that we're not aware and conscious of it and I do an effort to help these people understand what they and their children are walking through tomorrow and the next day, driving or running around with friends who were doing certain things, I enjoy doing it.
Q. I appreciate your interest in children. How would you assess your interest in a domestic practice in Family law?
A. To me probably one of the worst things that can happen in a family is a separation or a divorce. By nature, I like helping people. In my practice of law, I was going to have a difficult time answering, and even providing information, and we alluded to it a while ago and you were

Printed Page 6836 . . . . . Tuesday, May 17, 1994
gracious enough to move on about the time I spent in court with contested domestic cases.

As an attorney, I believe in advocating my client's position, but I'm also one of apparently the fewer attorneys that are left that have the idea of helping these people to solve their problem and understand their problems and accept their problems and deal with them without going before a court. And I do that.

I have had some cases and clients that if I let it go or any other attorney handled it, it would have spent weeks in a Family Court, but I work very hard trying them
-- trying to get them to accept the facts by seeing if there is some way we can work it out and leave apart with the other side working out an agreement. And if you can't, the only other places to go are before a court and have an unbiased judge who is patient, who is knowledgeable of the law, who is consistent with his rulings, so the attorneys will know and can tell their clients, this judge is always lenient and went this way and interprets this law this way and doesn't vary from it unless we've got unusual circumstances.

It should help lawyers reduce litigation in court and I can take facts and I can take the law and I can apply it fairly. And I would look forward to doing it. It's a challenge.
Q. What would your workday be like on the bench? When would it begin, when would it end?
A. According to the deputies who unlock the courthouse, I'll stay in bed longer than I normally do now. I'm an early morning person. I'll get up at 4:00 or 5:00 o'clock. I'll be in the office. I love to be there at 6:00. If I'm there at 7:00 o'clock, I'm nervous because I'm behind for the day, but I'm just that type of person. And I will work to 5:00, 6:00 or 7:00 o'clock easily. I enjoy my work.

My wife calls me and tells me to come home. I enjoy going home, too, but -- and I hope in Family Court, the other gentlemen said he'd start at 9:30 or 10:00, I cannot tell you what I can or can't do because seriously in checking with the deputies the other day -- I would love to be able to tell attorneys, if you've got an uncontested divorce, I'm sitting up here at 7:00 o'clock reading the newspaper, bring your client on over, we'll do it. But now we have the problems of security whether the deputies are going to be available. We have security -- problems for the court reporters and their time and as to whether we can have a transcript or not.

I really don't know how I can utilize my time, but I look forward to hopefully being able to give the practicing Bar maybe an opportunity to dispose of some easy matters real quickly, real timely, in the morning

Printed Page 6837 . . . . . Tuesday, May 17, 1994
before you get bogged down with all the normal practice of law in a normal trial. I don't know whether it would work or not, but I have a fantasy about that, it might.
Q. In the area of gifts and social hospitality, what is appropriate for a judge to take from an attorney?
A. Absolutely nothing.
Q. Does that mean you would take nothing that has any value?
A. I would take nothing of any value from an attorney or anybody.
Q. In City Court, I imagine it's fairly informal; is that correct?
A. (Witness nods in the affirmative).
Q. And I guess a lot of times the prosecutor or the prosecuting witness is a police officer; is that correct?
A. (Witness nods in the affirmative).
Q. And there are probably times when they want to get you in chambers and explain the case to you. How do you handle that?
A. I can't try it in the hall. I don't want to hear it. I'll listen to anything you've got to say in the courtroom. If you want to help this guy, you've given him a ticket and you want to help him, when you get up to testify, you tell me that in the open courtroom and I'll deal with it.

My law partners and secretaries laugh when they call the office, when I say "they," people who are charged, and I'll say, "Lady, I'm not going to try it on the telephone. I cannot listen to you any more. Don't tell me anything else." I don't like to be rude and hang up, but it's hard to get some good honest people to understand, don't tell me all of this.

I want to hear it all at one time and everybody is together. And it is a problem particularly for City Court judge and I imagine as a magistrate. That's something we fight off all the time. Just -- I use different doors. I don't want to go through the hallway where they're all waiting to come. I'll circle around and go in the front door one day or something. You know, just to keep from being rude. It's a hard thing to do and not be rude about it.
Q. How do you plan to produce your orders? Will you also ask attorneys to submit those to you?
A. I have not thought of that until I heard you ask the question to the gentleman prior to me. Right now, I would have to say, my first thought is yes, I would have the attorneys produce or I would like to draft orders, particularly orders that dealt with a complicated matter or an unusual twist in the law, so to speak. I would like personally to do it myself.

I think that's a lost art is drafting an order. I'd really like to think that I'd have an opportunity to maybe improve my skills there a great deal.

Printed Page 6838 . . . . . Tuesday, May 17, 1994
But, again, as the other gentleman indicated with the volume of cases that the judges hear, I don't see how they could draft many orders.
Q. If an attorney submits an order to you that you've requested, where is going to be your level of comfort about signing that order?
A. Only after I've read it thoroughly and if I did not recall the case clearly, go back to my notes to make sure that order is what I wanted it to be.
Q. What are your thoughts on sharing that order with opposing --
A. I would definitely want both attorneys to have an opportunity to review that order before it even came to me for a revision.
Q. In your practice now, do you do very much writing in the nature of legal analysis and applying the law to the facts?
A. In all honesty now, no. I used to do a lot of it, but again the changing of times, the volume of cases you have to handle, the idea of using legal assistants and secretaries and paralegals, I do less and less and less. I would like to do more.
Q. Have you sought the pledge of a legislator prior to this screening?
A. No, sir.
Q. Have you sought the pledge of a legislator conditioned upon your advancement through screening?
A. No, sir.
Q. Have you asked or otherwise authorized any person to solicit pledges on your behalf?
A. No, sir.
Q. Do you know of any solicitations or pledges on your behalf?
A. No, sir, I do not.
Q. Excluding travel expenses and room and board, have you or anyone else expended any funds on behalf of your candidacy?
A. I spent, I think, $5.38 to copy all these forms to bring up here and deliver, and I wouldn't even do it at the law firm. I thought there may be some problem, so I drove down to Copie Kwik and had it done and paid them, but that's all.
Q. That's all the questions I have.
REPRESENTATIVE ALEXANDER: Any members have -- yes, sir, Representative Beatty?
EXAMINATION BY REPRESENTATIVE BEATTY:
Q. Talking about juvenile crime, if you will.
A. Yes, sir.
Printed Page 6839 . . . . . Tuesday, May 17, 1994
Q. What is your opinion of referring the juvenile up to General Sessions Court for trial?
A. I may have to change this opinion, but -- and I keep referring to myself as old. I still perceive the Family Court is the place for a juvenile to be handled, but I'm ready to -- would have to admit there are certain obvious blatant cases that have been out in the papers recently that I think that it was proper for a juvenile case to be remanded over to the Circuit Court. But I still tend to want to keep as many of them in the Family Court as I can if I have something to say about it.

Again, not knowing how the Family Court really works internally, the burdens of the numbers the Supreme Court has on them to dispose of cases, whether that has an influence or not, but I still like the concept of juveniles being disposed of in a juvenile -- the Family Court.
Q. Do you feel that our present procedure of waiving juveniles up to General Sessions Court inhibits the prosecution of juveniles for serious crimes?
A. It inhibits it? No, sir.
Q. That's all. Thank you.
REPRESENTATIVE ALEXANDER: Any other questions? Thank you so much.
A. Thank you, sir.
REPRESENTATIVE ALEXANDER: It's taking about 30 minutes per candidate, we have two to go. Would ya'll like to take a break for no more than ten minutes to stand up or you want to continue on? Stand up time.

(A short break was taken)
REPRESENTATIVE ALEXANDER: I see our vice chairman --
SENATOR MCCONNELL: That's okay.
REPRESENTATIVE ALEXANDER: -- has just appeared. We have one more candidate to screen. I'll be --
SENATOR MCCONNELL: Mr. Chairman, I apologize for -- I had to chair a subcommittee over there and I couldn't let it go and they were hot at it.

Mr. Douglas K. Kotti.
MR. KOTTI: Kotti.
SENATOR MCCONNELL: Kotti. We were up here debating whether to call it Kotti or Kotti and so --
MR. KOTTI: It's an Albanian name. It's a little rare in South Carolina.
SENATOR MCCONNELL: And you offer for the judge of the Family Court of the Eleventh Judicial Circuit, Seat Number 3; is that correct, sir?

| Printed Page 6820, May 17 | Printed Page 6840, May 17 |
Page Finder Index