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 6890, May 17 | Printed Page 6910, May 17 |
Printed Page 6900 . . . . . Tuesday, May 17, 1994
16. Percentage of cases in trial courts:
Jury: 5%-10%
Non-jury: 90%-95%
Sole counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) State v. Plemmons I. 286 S.C. 78. This death penalty case created issues which resulted in death sentence being vacated by the U. S. Supreme Court. 476 US 102. Appeals handled by S. C. Office of Appellate Defense.
(b) State v. Plemmons II. 296 S.C. 76. This re-trial of a death penalty case created issues which resulted in the reversal of the death sentence by the S. C. Supreme Court. Appeal handled by S. C. Office of Appellate Defense. As associate counsel in State v. Plemmons III. Defendant sentenced to life in prison.
(c) McDaniel v. Gregory. 303 S.C. 500, 401 S.E.2d 864 (1990). A lawsuit which interpreted the effective date provisions of the South Carolina Probate Code has been criticized as being result oriented.
(d) Hughes v. Hughes. Unpublished opinion. 92-UP-161. (South Carolina Court of Appeals). He represented the father in this child custody case against homosexual wife/mother. Custody to the father not based solely on sexual orientation. Appeal handled by other counsel.
(e) Triangle v. Woodbridge. Not reported. He represented the retailer against manufacturer of defective carpet cushion. The case included over 400 defective installations. Litigation resulted in favorable settlement with damages to both retailer and to customers.

18. Five (5) civil appeals:
None

26. Officer/director or management of business enterprise:
He is involved in the management of a family-owned company which has as its assets a store building in Barnwell, South Carolina and a beach house at Sullivans Island, South Carolina, each of which generates rental income. Fifty-six percent of the company is owned by his mother, and 11% is owned by him and his two brothers and

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one sister. His duties are to manage the rental use of the beach property.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
He practiced law in the partnership with Ralph Phillips, Jr. and Pete G. Diamaduros from October, 1986 until October, 1988. These lawyers are still practicing law in Union. the partnership has been dissolved. If any conflict with litigants represented by these lawyers or with former clients of the firm arises, he will recuse himself and refer the case to the other judge in their circuit.

39. Expenditures Relating to Candidacy:
Postage for one letter of introduction and resume to all legislators: $49.30
Printing resumes: $60.00

44. Bar Associations and Professional Organizations:
South Carolina Bar; Union County Bar Association

45. Civic, charitable, educational, social and fraternal organizations:
Member First Presbyterian Church (Board of Deacons, 1990-1992; Chairman, 1992); member Union County Development Board, 1989-1992 (Chairman, 1992); Board of Directors of Union County YMCA since 1986 (Vice President); member Rotary Club of Union (Board of Directors, 1989); former member Board of Directors of Union County Chamber of Commerce; Union Chapter American Red Cross Salvation Army

47. Five (5) letters of recommendation:
(a) Jan D. Gunter, Vice President
South Carolina National Bank
P. O. Box 809, Union, SC 29379
429-1803
(b) Thomas W. Currie, Minister
First Presbyterian Church
P. O. Box 672, Union, SC 29379
427-8319
(c) J. N. Berry
105 Douglass Heights, Union, SC 29379
427-2660

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(d) H. Leland Bomar, Esquire
Holcombe, Bomar, Cothran and Gunn, P.A.
P. O. Box 1897, Spartanburg, SC 29304
585-4273
(e) Pete G. Diamaduros, Esquire
Whitney, White & Diamaduros
P. O. Box 266, Union, SC 29379
427-5661

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
He has served as Special Referee on numerous occasions beginning in approximately 1980, and continuing to the present. He has never held any judicial position other than that of Special Referee, and he does not have files and records as to his service in these specific cases.

10. Extra-Judicial Community Involvement:
His activities have been extensive. He has not used his service as a Special Referee to further these interests.

The Board of Commissioners on Grievance and Discipline reports that no formal complaints have ever been filed against you. The Judicial Standards Commission has no records of reprimands against you. The records of the applicable law enforcement agencies, the Union County Sheriff's Office are negative; Union City Police Departments are negative; SLED and FBI records are negative. The Judgement Rolls of Union County are negative. Federal court records are negative. No complaints or statements have been received as of today. And no witnesses are present to testify, so if you would I'm going to turn you over to Mr. Elliott, who I think has some questions for you, sir.
MR. GUESS: All right, thank you.
SENATOR MCCONNELL: Thank you.
MR. GUESS - EXAMINATION BY MR. ELLIOTT:
Q. Good morning.
SENATOR MCCONNELL: And by the way, the chairman gives people the option, if there is some statement you want to make before Mr. Elliott begins the questioning, we'd be happy to hear from you, otherwise we'll go directly into the questions. Some people do it. Some people do not.

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A. I have no statement to make as to my qualifications. I would just like to say that I appreciate the efforts of the committee in investigating the judicial candidates and I would like to compliment the staff on its courtesy and efficiency in dealing with me. I'm prepared to answer your questions.
SENATOR MCCONNELL: Thank you, sir. We're delighted to know about the staff, too. We appreciate that. They're a hard working bunch.
MR. ELLIOTT: Thank you, Mr. Chairman.
Q. According to your Personal Data Questionnaire, you have some experience as a special referee, I think, since 1980. Could you quantify that experience for us and what type of cases would you be hearing?
A. Essentially, it has consisted of hearing default mortgage foreclosure cases. We had no Master of standing -- a Master in Equity in Union County, so all the mortgage foreclosures are referred to special referee. I have heard a number of contested equity type cases involving the boundary line disputes in property matters, which have involved the testimony of witnesses and decisions by the court. That has been very limited, but I have heard some cases of that type.
Q. About how many -- what is the quantity of your experience as a special referee?
A. Well, I'd say I may hear as many as 20 default foreclosures a year. Now that, from my point of view, does not involve any real quantitative effort as a judicial officer, but I do hear them and make the effort or ensure that the paperwork is right, that the proper notices are given and testimony is of a quality that will support the judgment the litigants are asking for. It's rare in those cases that the defendant even appears.
Q. Yes, sir.
A. As for the contested equity cases, of course, it essentially is a trial as necessary to make rulings on evidence and in those cases that I have heard in a contested way, I have always written the orders. I always felt like they were too complicated for me to ask one party or the other to write an order on the issues that they were asking to be decided. And I've always undertaken to write to those orders myself.
They have been strictly limited to property matters. I mean, in our county, there's just not that much other litigated things that come up for a special referee or a Master in Equity to hear.
Q. And, again, how many of those contested kinds of matters would you --
A. I would say no more than a half dozen. Normally, the files come to us from the litigants and once the decisions are made, I have no record really to go back to look at it in any detail, but I would say it's no more than a half dozen.
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Q. That's since 1980?
A. That's since 1980, yes.
Q. When we asked you on the Personal Data Questionnaire to give us some indication of how your practice breaks out, you reported that your civil litigation was ten percent, criminal law was five percent and domestic was 20 percent?
A. Yes.
Q. And that totals up to 35 percent. What's the other 65 percent?
A. I think I interpreted that question right and that is that those things were asked for as a percentage of my total practice. The remainder of my practice consists of commercial type work and business organizations, formation of partnerships and corporations. And also the examination of real estate titles and title transfers, preparation of wills and the settling of estates essentially is the remainder of my practice.
Q. Is that what people often characterize as an office practice?
A. Generally an office practice, yes.
Q. And I guess this goes hand in hand with that, I think your Personal Data Questionnaire indicated that over the last five years, you appeared in court about 185 times, about an average of 37 times a year; is that correct?
A. Yes. I went back and counted my files as closely as I could in terms of court appearances that I had made.
Q. Do you enjoy being in the courtroom?
A. Well, I do enjoy being in the courtroom. I have found that the -- once we get started, the experience is a very pleasant one. It's the preparation that I and most other lawyers don't like, but I do enjoy doing the courtroom work when it's available to me.

I will add that it's been my experience in Union and the market that we work in that a lawyer can't make his living in a courtroom. He has to have an office practice in order to survive and I think that counts for the break as to what -- the way we make our money and the way I recorded making my money is essentially in the office and not in the courtroom. But I do enjoy the courtroom experience when I'm there.
Q. As I understand your testimony then, the reason most of your office practice -- most of your practice is an office practice is to be able to survive and feed your family?
A. That's correct. I started my practice doing criminal work and did a fair amount of it, but such that the way the court system works and it's so time consuming that if you don't have a large criminal practice, it's best to have none, so I have systematically tried to eliminate that from my practice and to take only appointed criminal cases at this time in my

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career. But I don't see the availability of the courtroom work supporting me or any other lawyer, for that matter, in Union.
Q. How would you contrast your courtroom work to the other attorneys in the county? I mean, would you be in the upper 20 percent, lower 20 percent?
A. Well, I would probably be in the lower 20 percent, but I think that it would probably be more like the lower half. I don't do as much as most of the other lawyers do.
Q. How many appearances have you had in Family Court over the last five years that involved hotly contested cases?
A. I would say no more than 20. Probably five a year, four or five a year.
Q. When you get into a hotly contested case, what's your reaction to that? Do you -- and you encounter an assertive, aggressive attorney, do you become assertive and aggressive, or do you seek to find a compromise? What's your reaction when it becomes a hotly contested case?
A. My reaction is to resist the aggressiveness. It's my nature to seek a compromise and I always in any march toward the courtroom, I'm always -- I have my eye on a compromise. My experience has been that that's by far the best way to resolve any kind of case and particularly a domestic case. I feel like I can be aggressive when I have to.

Of course, when I'm -- when I begin litigation and when you're representing the party that begins a divorce, I feel like I take an aggressive stance to start with to put myself and my client in a position to give up points as we go along. When I say "an aggressive stance," I begin by asking for a lot of things that we might not be able to get that you might want and then you move towards the middle, but I am capable of being aggressive in return to aggression. But to answer your question, my nature and my experience has been towards mediation and compromise.
Q. While we've come to that area, how would you control your courtroom, and let's talk a little bit about what you consider to be appropriate judicial temperament?
A. Well, I think patience and the ability to deal with people and get lawyers and litigants to stick to the issues without being discourteous or impatient is a very important -- probably what I would consider to be the essential tenant of a judicial temperament.
Q. What about maintaining control in the courtroom?
A. Well, I think that's very important. I have -- in my experience, there can certainly be some times in a Family Courtroom where the maintenance of control is important. I think if you're courteous and if you're fair and

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the litigants believe that they are having or are going to have an opportunity to fairly state their position, the courtroom will control itself.

The lectures from judges and commands from judges to do things or not to do things are what -- to me have been the thing that may create an outburst and I would try to avoid those kind of situations by being as even tempered as I could and maintain courtesy to the litigants and I believe that they respond, the litigants and the lawyers respond to the courtroom situation when they're treated that way, and that's the best way I would propose to keep control.
Q. Ms. McNamee has asked the previous candidates about their experience in Family Court, and if you would, if you could give us some indication of the breadth and depth of your experience in the Family Court.
A. Let me preface my answer by saying that Family Court experiences in our market are limited by the fact that Union is a working man's town. There are not a lot of wealthy people there. There are not a lot of doctors there or people who were put in situations who have to make complicated equitable divisions. Day in, day out, we deal with people who do not have the money to live as two families. They don't have the money to divide. A typical case, there is no equitable division. And I'll say that to start off with.

In the course of my practice in Union, I have been involved in every type of case. I have been involved in juvenile matters, mostly as appointed lawyer for the juveniles, guardians for the juveniles, appointed lawyers for the parents of juveniles. I have represented as a retained lawyer in child abuse cases, that I have represented the perpetrators as the retained lawyer because they -- they're never appointed.

I have done those -- the normal amount of uncontested divorces to resolve a marriage that didn't work out. I have done a number of cases involving equitable division, both before and after the equitable division statute. Mostly through a point of negotiation, but I have taken some of them to trial when it was not possible to negotiate those cases. I have done adoptions. I have served as guardians in adoptions. I have done termination of parental rights cases, both representing the parent seeking the termination and representing the parent resisting the termination.

I have -- I think I've been involved in a number of just about every type of case you can come to, contested custody cases, child abuse cases as I've said.
Q. And just so I'm clear about what you said earlier. You said there weren't a lot of cases where there was much property to divide in Union

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County, but have you had -- I believe you did say you had had some cases in which you've been involved in that?
A. I have where -- I have had cases where property was divided by agreement and also they have been litigated to a decision. I have not been involved in the division of any significant retirement accounts. It has not come up in my practice. It's very rare in Union County in my opinion.
Q. In the area of gifts and social hospitality, how do you define a gift?
A. Well, I don't think I'm prepared to go as far as to say if it's anything of value, which I know that seems to be the term that's applied now. No cup of coffee. But I would certainly say that anything that you could hold in your hands or look at is a gift and it's something that I wouldn't take from a lawyer if I were a judge.

I don't think that I would allow lawyers to buy meals for me. I may go to a party at a lawyer's house if it was a big party. I wouldn't think that I would go there socially with lawyers one on one once I became a judge. I think that I would find it necessary to limit that in some way.

But essentially I think a gift is something that you can see or something that you can hold in your hand or eat, you know, a ham or whatever they give at Christmastime. I don't believe it's appropriate under today's standards to accept those things whether -- I'm not suggesting that they create any obligation one way or the other, but I think the appearance of it in this day and time basically prohibits it. That's my opinion.
Q. Just for clarification, you said you don't "think," and I know we're projecting in the future, but if there are any, state what would be your policy.
A. Well, that would be my policy. I haven't had to -- any experience with it otherwise.
Q. Yes, sir. I understand that. What kind of work schedule do you maintain now and what do you anticipate if you're elected to the Family Court?
A. Well, I'm one of these people that gets up and goes to work every day. I work essentially 8:30 to 9:00 o'clock until 5:00 or later every day. I may not always get a lot done on those days, but I do get up and go to work.

I'm the type of person that I haven't gotten to the point where I take days off in the middle of the week without it bothering me. I hope I get there one of these days. When I get to be a judge, I would expect to work to meet the case load, to keep the docket going and to accommodate the litigants and the lawyers who depend on the courts to solve their problems. I feel like I would meet that in a more than adequate way.

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Q. What about your availability for nonscheduled or unscheduled matters?
A. Well, I would -- like -- I would make myself available. I would be at home. My habits are such that I like to tell people sometimes my hobby is staying at home. I stay there as much as I can. And I've been a lawyer enough and I've had enough clients badger me for action to know what it means to a lawyer to be able to go to the judge's house with an emergency rule to show cause or some paper that needs to be signed or an order for child support that needs to be signed to make myself available to lawyers and do those types of things.

I would never say no to a lawyer who made a reasonable request to me for an unscheduled function as a judge. I have just been in that position too much to ever say no to somebody if it was reasonable, so I would make myself available.
Q. If DSS comes to you in the middle of the night, which happens sometimes, with a case for the removal of a child and you feel like they haven't met their burden of proof at that point, but at the same time you somehow feel like the child is in danger, how would you handle a situation like that?
A. Well, if it was the middle of the night, I would tell them -- if they felt like they needed to remove the child, that they were in danger, to do so at that time, but get everybody together as soon as possible, even if it was the first thing in the morning, 8:30, 8:00 o'clock and get -- get me some lawyers, get me some people and get me a court reporter, so I can do something about this in the morning before I go to York or in the morning before we start the cases that we've got here.

That's what I would -- the way -- the only way I know of to handle something like that. If I was going to make an error in dealing with a child in a situation like that, I certainly would be more comfortable if they were in custody overnight or for, you know, 12 hours than I would than to say no and have something happen to them.
Q. How would you plan to implement the Canon against ex parte communications?
A. Well, I thought about that and once you get into the process of applying for a judgeship, you start to plan how you're going to do it. My thought would be to -- well, it's -- it may not be practical, but I would like to talk to the Union Bar. I could do that. We could sit around this table and I could just say, look, you guys, we know each other and let's get something straight in the beginning about these ex parte things and don't put me in the position to have to say no, don't put us each in the position to get in trouble, let's know what the rules are or obey them. And I don't

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know if I could do that with the York Bar or not, but I would like to make it known to the lawyers that to contact me or come into contact with me on cases or on legal matters that we weren't -- just weren't going to talk about it and not to bring it up and don't put me in that position.
Q. If you're elected as a Family Court judge, what would be your intent about how to handle writing orders?
A. Well, I would ask the prevailing attorney to propose an order. As I understand it, there is an ethics opinion or a rule that requires the proposed order to be communicated or transmitted to the opposing attorney in the same form it comes to the judge. And I would make it my practice when I made the rulings from the bench to instruct the lawyer that I asked to prepare the order to do that.

I would say if you mail it, mail him one. If you fax, fax him one. If you bring me one, have it hand carried to the lawyer across the street. I would make that statement when I made the ruling.
Q. What -- for those orders written by an attorney, what will you do to achieve a level of comfort about signing those orders?
A. You mean as to the correctness of the orders or --
Q. Yes, sir.
A. Well, I would -- I expect I would make some notes in the file and hopefully, I'd get those orders soon enough to have some recollection of what I ordered. If not, I'd be able to refer to my notes.

From my experience in dealing with Family Court judges over the years, they find out fairly early in the game who they can trust and who they can't and I would just try to use my knowledge of the lawyers hopefully to rely on what they say as being correct.

I also would have the additional safeguard, really the main safeguard of the other lawyer having the same thing I've got and would expect him to tell me if there was some discrepancy in that order.
Q. A few minutes ago, you mentioned about some difference between the Union and York Bar as far as your ability to deal with them. What is that? I'm not sure I understand what the difference would be.
A. Well, it's a difference in the number of them, and like I say, it would be nice for a new judge to come in and be able to get in front of the Bar and say don't ex parte me, please don't send me stuff at Christmas, you know, kind of lay down some ground rules, so they know where you stood and there wouldn't be any hurt feelings.

I don't think I'd have an opportunity to do that with the York Bar, but I could let it be known on an individual basis as these things arose how I was going to deal with them. You asked me how I would implement the Canons.

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