Indicates Matter Stricken
Indicates New Matter

The Senate assembled at 12:00 Noon, the hour to which it stood adjourned and was called to order by the PRESIDENT.

A quorum being present the proceedings were opened with a devotion by the Chaplain as follows:

Beloved, it is recorded in the Book of Exodus that Moses felt unequal to his call. (Exodus 2:10-11)
We read:

"But Moses said to God,

`Who am I that I should go...?'"
Let us pray.

Our Father-God, the Almighty, as we remember the call of Moses to a great social task, perhaps the greatest in all history, we recall that he did not doubt the reality of the commanding voice of the Most High God. But he did doubt himself, and his abilities, as being unequal to the job.

In these days of great challenge for us, when we are tempted to think that maybe this job is too big for us, give us a becoming sense of modesty and a fine sense of humility.

But help us to believe that if we are called for a job in "Caesar's house," (or Pharaoh's), we are competent to fulfill our tasks.

We remember that Moses was afraid of the apathy of his people, when he said:

"They will not believe me,

Nor hearken unto my voice."

So lead us from the trembling fear of Moses to the optimism of St. Paul, when he said, "But this one thing I do, forgetting those things which are behind, and reaching forth unto those things which are before, I press toward the high calling of God."

Amen!

Senator LANDER made the point that a quorum was not present. It was ascertained that a quorum was not present.

Senator SETZLER moved that a call of the Senate be made. The following Senators answered the call:
Bryan Cork Courson
Courtney Drummond Elliott
Ford Giese Glover
Gregory Hayes Holland
Jackson Land Lander
Leatherman Leventis Macaulay
Martin Matthews McConnell
McGill Mescher Mitchell
Moore O'Dell Passailaigue
Patterson Peeler Rankin
Reese Richter Rose
Russell Ryberg Saleeby
Setzler Short Smith, G.
Smith, J.V. Stilwell Thomas
Waldrep Washington Williams
Wilson

The Senate resumed.

TO: The Clerk of the Senate
The Clerk of the House
FROM: James H. Hodges, Chairman

Judicial Screening Committee
DATE: May 17, 1994

In compliance with the provisions of Act No. 119, 1975 S.C. Acts 122, it is respectfully requested that the following information be printed in the Journals of the Senate and the House.

Respectfully submitted,
/s/Rep. James H. Hodges, Chairman
/s/Senator Glenn F. McConnell, Vice-Chairman
/s/Senator Thomas L. Moore
/s/Senator Edward E. Saleeby
/s/Senator John R. Russell
/s/Rep. M.O. Alexander
/s/Rep. Donald W. Beatty
/s/Rep. C. Lenoir Sturkie

The Screening Process

Pursuant to Act No. 119 of 1975 and Act. No. 181 of 1993, this Committee has considered the qualifications of candidates seeking election to the positions of Associate Justice of the South Carolina Supreme Court; Judge of the Family Court of the Eighth Judicial Circuit, Seat Number 1; Judge of the Family Court of the Eleventh Judicial Circuit, Seat Number 3; Judge of the Family Court of the Sixteenth Judicial Circuit, Seat Number 1; and Administrative Law Judge, Seat Numbers 4, 5 and 6.

The Judicial Screening Committee is charged by law to consider the qualifications of candidates for the Judiciary and Judge of the Administrative Law Judge Division. When notice is received that an individual intends to seek election or reelection to one of these positions, the Committee conducts a thorough investigation of the candidate. The Committee's investigation includes a review of the candidate's scholastic, employment, and financial history and, in particular, focuses on the candidate's adherence to a strong code of ethical behavior, be it to the Rules of Professional Conduct governing the attorneys practicing in South Carolina, the Code of Judicial Conduct regulating the activities of all judges in South Carolina, or the more generally accepted, but unwritten, rules of fairness and respect which should govern interaction between all of this state's citizens.

While Act 119 restricts this Committee to making findings of qualification or non-qualification, the Committee views its role to also include the obligation to consider candidates in the context of the position to which, if they are elected, they will serve and, to some degree, govern. To that end, this Committee has inquired as to the quality of justice delivered in the hearing and court rooms of South Carolina and has sought to impart, through its questioning, the view of the public it represents as to matters of judicial temperament, concern for an informed Bench and Administrative Law Judge, and the absoluteness of the Judicial Canons as to recusal for conflict of interest, prohibition on ex parte communication, and the disallowance of the acceptance of gifts. The Committee has also sought to impart its view that good temperament is an essential quality of a judge. Justice can surely prevail when a judge is courteous to litigants and lawyers alike. The Committee reiterates its displeasure with those candidates who strain the no pledging rule so as to come to the Committee with a "lock," albeit an informal one, on a judgeship. The Committee weighs heavily such activity in determining compliance with the screening and ethics legislation and, hence, the qualification of a candidate.

The Committee's report includes the Transcript of the Proceedings before the Screening Committee on April 26 and April 27, 1994. The Transcript does not include all exhibits offered by candidates or witnesses at the hearing because of the length of some exhibits. Exhibits which are not reproduced as a part of the Transcript may be viewed in the Office of the Judicial Screening Committee (Room 211 of the Gressette Building), since these exhibits were reviewed and considered by the Committee in making its findings.

Many of the candidates in this round of screening had been recently screened by the Committee for seats on the same court. The previous screening occurred within three and one-half months of this screening in the case of candidates for Administrative Law Judge and within one month of this screening in the case of candidates for Associate Justice of the Supreme Court.

At its most recent hearings on April 26 and April 27, 1994, the Committee determined that no changes had occurred in the status of any of these same candidates. Therefore, the Committee incorporated the candidates' previous testimony, as applicable, into the transcript reported here. Without any changes in status, the Committee also adopted its previous findings regarding these candidates and reports those same findings, with appropriate modifications, in this document.

The changes in the previous testimony and findings principally relate to time specific information and complaining witnesses. If a complaining witness testified at the most recent April 26 and April 27, 1994 hearings, the transcript and findings reflect that. If a complaining witness testified at a previous screening but not at this screening, previous testimony and findings relative to the complaint are not repeated in this report. The Committee notes that any complaints in previous screenings regarding these candidates were found to be without merit.

The Committee has incorporated testimony and findings from earlier reports only because of the closeness in time of the previous screenings and only because the candidates were screened for seats on the same court.

THE CHAIRMAN: I'm going to call the meeting to order at this time. This screening committee is pursuant to Act 119 of 1975 requiring the review candidates for judicial office. The function of the committee is not to choose between candidates, but, rather, to declare whether or not the candidates who offer for positions on the bench are in our judgment qualified to fill the positions.

The inquiry which we undertake is a thorough one. It involves a complete personal and professional background check on every candidate. The candidate is investigated by the South Carolina Law Enforcement Division including court records. A Statement of Economic Interest is required. We receive a credit report. We receive reports from the Board of Commissioners on Grievances and Discipline with respect to attorneys and judges who are offering and from the Board of Commissioners on Judicial Standards with respect to sitting judges. The candidate's Personal Data Questionnaire details the personal history and professional experience and contains five letters of reference.

We are here today for the purpose of screening for the following vacancies. One is an Associate Justice position with the South Carolina Supreme Court; the second, Family Court Seats in the Eighth Circuit, Seat 1; Eleventh Circuit, Seat 3, and the Sixteenth Circuit, seat 1, and, finally Administrative Law Judge Division, Seats 4, 5 and 6.

Prior to moving into the first screening of the Supreme Court candidates, let me introduce Representative M.O. Alexander who is seated over to my left. I'm Jim Hodges. I'm the chairman of the screening committee. From time to time other screening members will be arriving today, but we'll move right into the Supreme Court seats at this time.

Our first candidate is Judge Ralph King Anderson, Jr. Judge Anderson, if you'd come forward, please. Raise your right hand.
RALPH KING ANDERSON, JR., having been duly sworn, testified as follows:
THE CHAIRMAN: Judge Anderson, your last screening was March 19th, 1994?
JUDGE ANDERSON: Yes.
THE CHAIRMAN: Let me just say at this time that what we propose to do because we have no complaining witnesses against you is to ask if you have any objection to our incorporating your last testimony, the inquiries and your responses, into the record.

We did have a complaining witness at that time who did not complain during this race. What we would propose to do would be to delete those references to that testimony, both of yourself and of that complaining witness.
JUDGE ANDERSON: I whole --
THE CHAIRMAN: Do you have any objection to our doing that?
JUDGE ANDERSON: I wholeheartedly concur.
THE CHAIRMAN: Thank you very much. Have you had a chance to review your Personal Data Questionnaire Summary?
JUDGE ANDERSON: I have.
THE CHAIRMAN: Is it correct?
JUDGE ANDERSON: It is.
THE CHAIRMAN: Any modifications or clarifications that need to be made?
JUDGE ANDERSON: No, sir.
THE CHAIRMAN: Do you have any objection to our making that Summary a part of the transcript of record at this time?
JUDGE ANDERSON: I do not.
THE CHAIRMAN: We will do that.

1. Ralph King Anderson, Jr.
Home Address: Business Address:
2997 Pamplico Highway P. O. Box 1562
Florence, SC 29505 Florence, SC 29503

2. He was born in Florence County, South Carolina on November 13, 1936. He is presently 57 years old.

4. He was married to Loretta Lynch on August 31, 1957. He has two children: Ralph King, III (Assistant Attorney General - South Carolina), and Debra Arlene Anderson Vause (part-time music teacher and church pianist).

5. Military Service: None

6. He attended Clemson College; September, 1954 - August, 1956; received 90 credits; transferred directly from Clemson College to the University of South Carolina Law School, under an arrangement existing at that time. He attended the University of South Carolina Law School; September, 1956 - June, 1959; received LLB Degree (this degree changed to Juris Doctor on September 3, 1970).

8. Legal/Judicial education during the past five years:
He attended the Judicial College in Reno, Nevada for one week and has attended numerous legal/judicial seminars conducted at the University of South Carolina Law School and in other locations.

9. Taught or Lectured:
10/30/86; Bench Bar Conference on Criminal Trial Advocacy; Batson v. Kentucky; 86-38
10/20/88; Eminent Domain (JCLE); Judicial Perspective (Panel Discussion); 88-40
11/4/88; Bench/Bar Conference on Criminal Law; Jury Instructions; 88-43
1/20/89; 4th Annual Criminal Law Update 1988 in Review (JCLE); A View From the Bench; 89-03
9/7/90; Legal Ethics & Lawyer Malpractice; Common Pleas Perspective; 90-32
10/19/90; Criminal Practice in South Carolina; Jury Instructions; 90-38
10/26/90; Civil Trial Advocacy Bench/Bar Conference; 90-39
6/8/91; 1991 Annual Meeting (Young Lawyer's Division); Judicial Ethics
9/27/91; Criminal Practice in South Carolina; Jury Instructions; 91-35
1/17/92; 7th Annual Criminal Law Update; Observations from the Trial Bench; 92-02
6/19/92; 1992 Annual Meeting (Young Lawyer's Division); Update on Ethics and Trial Practice
9/18/92; Criminal Practice in South Carolina; Jury Instructions; 92-36
10/23/92; Auto Insurance Update '92; Trial of an Auto Case; 92-42
12/11/92; Attorney's Fees; Circuit Court Practice; 92-50
1/28/93; 1993 Mid-Year Meeting (Trial & Appellate Advocacy); Circumstantial Evidence
Bridge the Gap (1984-present); Nuts & Bolts of Circuit Court Practice; Two Presentations Every Year
10/8/93; South Carolina Circuit Court Bench/Bar 1993 Update; Riding the Wave of Demonstrative Evidence: Admissibility of Computer-Generated Animations on Videotape
12/17/93; Is Your Law Office Safe? Frivolous Proceedings Act and Rule 11
2/1/94; South Carolina Probate Judges Annual Seminar; South Carolina Rules of Civil Procedure; Efficacy and Use in Probate Court
3/5/94; North Carolina/South Carolina Court Reporters Convention; Charlotte, North Carolina; Duties and Responsibilities of Court Reporters in Circuit Court

10. Published Books and Articles:
A publication entitled "Nuts and Bolts" has been authored by him. In addition, he has written numerous materials for use at Judicial/Legal Seminars.

12. Legal experience since graduation from law school:
(a) practiced law in Columbia with Mr. R. K. Wise from July 17, 1959 until December 1, 1959
(b) opened practice in Florence, South Carolina in December, 1959 running through 1960
(c) early part of 1960 to December of 1960 - practiced law in Marion, South Carolina under a share arrangement with Waddell Byrd
(d) In December, 1961, became employed with the firm of Yarborough, Parrott and Anderson and remained until September of 1979
(e) sworn in as Circuit Judge in September of 1979, serving continuously until present date

13. Rating in Martindale-Hubbell: He has been on the bench for 14 1/2 years. He does not know his last rating in this publication.

20. Judicial Office:
Elected as Circuit Court Judge, beginning service on September 14, 1979, serving continuously until present. The Circuit Court jurisdiction is unlimited except by statutory and constitutional parameters.

21. Five (5) Significant Orders or Opinions:
(a) State v. Jonathan Dale Simmons, ___ S.C. ___, 427 S.E.2d 175 (1993). This is a death penalty case. Numerous issues were involved in this trial relating to the death penalty law and criminal law in general. The Defendant received the death penalty. The South Carolina Supreme Court affirmed this death penalty trial. Certiorari was granted by the United States Supreme Court on the issue of parole eligibility. The case was argued before the United States Supreme Court on January 18, 1994.
(b) State v. Thomas Lee Davis, ___ S.C. ___, 422 S.E.2d 133 (1992). This is a death penalty case. Numerous issues were involved in this trial relating to death penalty law and criminal law in general. The Defendant received the death penalty. The South Carolina Supreme Court affirmed this death penalty trial. In this case, the South Carolina Supreme Court approved in haec verba his charges on: (1) What is a dangerous, or deadly, object? (2) Miranda Rights; and (3) Physical Torture. In addition, major issues were involved in regard to "Competency to Waive Rights and to Stand Trial." This was the first case tried in South Carolina using Section 17-21-85. The murder occurred in the County of Greenwood. The jury was drawn in the County of Florence and transported to Greenwood County for trial pursuant to Section 17-21-85.
(c) Joey M. Oliver, as Guardian ad Litem for Bradford Michael Oliver v. South Carolina Highways and Public Transportation, ___ S.C. ___, 422 S.E.2d 128 (1992). This case involved litigation issues under the South Carolina Tort Claims Act. The gist and gravamen of the case relates to unusual evidentiary issues and application of caps on verdicts awarded against governmental entities.
(d) State v. James Russell Cain, 377 S.E.2d 556 (S.C. 1988). This is a death penalty case. Numerous issues were involved in this trial relating to the death penalty law. The Defendant received the death penalty. The Supreme Court affirmed this death penalty trial. Certiorari has been denied by the United States Supreme Court.
(e) Alvin Davis, Jr. v. The State of South Carolina, (Docket Number 85-CP-40-1771). This case was tried in Richland County and involved the unique scenario wherein Davis had been convicted of serious crimes, including armed robbery. By an administrative snafu, Davis was released from jail through an error without serving his jail time. Davis was arrested approximately ten years after his original conviction. His Order disposes of numerous due process and constitutional issues. The Order was reported by the National Law Journal in detail, including interviews of legal scholars on the subject. After filing Notice of Intent to Appeal, the State dismissed its appeal from the Order.

22. Public Office:
Elected to the South Carolina House of Representatives from Florence County in November, 1972, serving continuously to August, 1979.

24. Unsuccessful Candidate:
He was defeated as a candidate for the South Carolina House of Representatives in 1970 by less than 200 votes. He was defeated as a candidate for the South Carolina House of Representatives in 1962 by an overwhelming vote.

32. Sued:
(1) 6:CV-85-2730, Robert L. Wilson v. City of Greenville, Mayor William Workman, Ralph King Anderson, Jr. . . .: This was a civil rights action that related to a local sign ordinance; the Summons and Complaint were filed on October 10, 1985; then United States District Court Judge Wilkins dismissed the action on October 24, 1985; the records maintained at the District Court indicate that the defendants were never served.
(2) 3:CV-86-1444, Jasper Buchanan v. Richard Riley, Travis Medlock, William Leeke, Woodrow Lewis, Donald Zelenka, Ralph King Anderson, Jr. . . . : Pro Se action brought by an inmate of the State Corrections Department; United States Magistrate Gambrell recommended dismissal, concluding that the action was frivolous, on June 3, 1986; United States District Court Judge Blatt entered judgment for all defendants on July 16, 1986; according to the docket sheet at the District Court, the defendants were never served.
(3) 3:CV-80-1640, Annie M. Timmons v. [all members of the South Carolina House of Representatives and the South Carolina Senate]: United States Magistrate Gambrell advised the plaintiff that a voluntary dismissal would be directed because the defendants were never served or, in the alternative, that the plaintiff would have to serve the defendants properly; this letter was dated July 27, 1982; then United States District Court Judge Wilkins issued an Order dated October 13, 1982, staying the case for six months in order to allow the plaintiff to petition to reopen it or it would be dismissed; this is the last entry in the file; the records at the District Court indicate that the defendants were never served.
(4) 3:CV-82-401, Jasper Buchanan v. Ralph King Anderson, Jr.; Sidney Tyson; and Donald J. Zelenka: This is a pro se habeas corpus action brought by an inmate within the custody of the Department of Corrections; United States Magistrate Gambrell recommended dismissal March 1, 1982; then United States District Court Judge Hemphill dismissed the case on April 5, 1982; the District Court records indicate the defendants were never served.
(5) CV:89-1533, Donald J. Strable v. Clyde N. Davis, Jr., Clerk of Court, Supreme Court of South Carolina, Chief Justice, The Honorable George T. Gregory, Honorable Julius B. Ness, former Chief Justice, Honorable Cameron B. Littlejohn, former Chief Justice, Honorable Elijah Curran Burnett, Circuit Judge, Honorable James Edward Moore, Circuit Judge, Honorable Tommy L. Hughston, Jr., Circuit Judge, Ralph King Anderson, Jr., Circuit Judge, Honorable Frank P. McGowan, Jr., Circuit Judge: This was a Pro Se action against numerous judges. The case was summarily dismissed by Judge Joseph F. Anderson, Jr., United States District Judge. The case was appealed to the United States Court of Appeals (Fourth Circuit) resulting in a per curiam dismissal on February 1, 1990.
(6) CV:4:91-3572(H), Jerry Lee Bruce v. Ralph King Anderson, Jr., Ferrell Cothran, Sharon N. Odom, Ray E. Chandler, Harold Detwilder and R. Wright Turbeville: This was a Pro Se action under 42 U.S.C. Section 1983. It was summarily dismissed by Judge Charles W. Gambrell on November 26, 1991. This case was never served on the defendant, Anderson.
(7) CV:8:92-283-17K, Phillip R. Pyett v. Judge Ralph Anderson, Dudley Saleeby, Jr. and John DeBerry: This is a Pro Se lawsuit under 42 U.S.C. Section 1983. The case was summarily dismissed by Judge Joe F. Anderson, Jr. on October 22, 1992.

39. Expenditures Relating to Candidacy:
11/24/93 Ink Cartridge $20.00
11/29/93 Postage Stamps $98.60
11/29/93 Personal stationery $34.00
(estimate - letter written to members of the General Assembly)
TOTAL: $152.60

44. Bar Associations and Professional Organizations:
South Carolina Bar Association; South Carolina Inn of Court

45. Civic, charitable, educational, social and fraternal organizations:
None

46. He was the recipient of the South Carolina Trial Lawyers Association Portrait and Scholarship Fund - 1993

47. Five (5) letters of recommendation:
(a) Ashpy P. Lowrimore, Senior Vice President and City Executive
Southern National
P. O. Box 6676, Florence, SC 29502
664-1010
(b) William T. Monroe, Pastor
Florence Baptist Temple
2308 South Irby Street, Florence, SC 29505-3427
662-0453
(c) Alma M. Jenkins
Court Coordinator/Administrative Assistant (for Horry County)
P. O. Box 677, Conway, SC 29526
248-1353
(d) Honorable James C. Gregg, Jr.
Sheriff (for Florence County)
P. O. Drawer P, Room 703, City-County Complex, Florence, SC 29501
665-3005
(e) Honorable Gwen T. Hyatt
Clerk of Court (for Dillon County)
P. O. Box 1220, Dillon, SC 29536
774-1425

2. Positions on the Bench:
Circuit Judge at Large, Seat No. One, serving continuously since September 14, 1979

10. Extra-Judicial Community Involvement:
He has limited his community involvement so as not to conflict in any way with the performance of his duties. Generally, he involves himself in church and Bar activities.

The Board of Commissioners on Grievances and Discipline reports no formal complaints have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. We checked with the appropriate law enforcement agencies: Florence County Sheriff's Office, Florence City Police, SLED and FBI, and all those records are negative. The Judgement Rolls of Florence County are negative.

We do find federal court records that while showing no judgements or criminal actions against you, there were eight civil actions brought against you in which you were a defendant. Six of these were civil rights actions brought against you and others which have been dismissed. There was one mortgage foreclosure in which you and other defendants -- it appears that default was entered against the other defendants. There was one writ of habeas corpus filed and Summary Judgement was granted. Does that sound correct?
JUDGE ANDERSON: It is.
THE CHAIRMAN: No complaints, as I've said, were received against you. There are no witnesses present to testify against you. At this time I'll turn you over to Mr. Elliott for questioning.
JUDGE ANDERSON - EXAMINATION BY MR. ELLIOTT:
Q. Good morning.
A. Good morning.
Q. It seems like just yesterday, doesn't it?
A. Yes.
Q. Just a couple of questions. Since your last screening, have there been any changes in your status or anything of that nature that the Committee might need to know about?
A. None whatsoever.
Q. I know it gets confusing, but for this particular seat on the Supreme Court, have you sought the pledge of a legislator prior to the completion of the screening process, even if that pledge is conditional upon your receiving a qualified finding from this committee?
A. I have not.
Q. Have you asked or otherwise authorized any person to solicit or seek pledges of a legislator's vote on your behalf?
A. I have not.
Q. Do you know of any solicitation or pledges on your behalf?
A. I do not.
Q. Are the reports of this committee and the House and Senate Ethics Committee about your expenditures on the campaign accurate?
A. Yes, they are.
MR. ELLIOTT: Mr. Chairman, that's all I have.
THE CHAIRMAN: Questions, Mr. Alexander?
REPRESENTATIVE ALEXANDER: No, sir.
THE CHAIRMAN: Judge, that was quick and painless. Thank you very much.
A. Have a wonderful day.

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

EXAMINATION BY MR. ELLIOTT:
Q. Judge Anderson, among the materials you submitted to this committee was an indication that your 1993 taxes are unpaid. Could you explain that? Is there --
A. No.
Q. -- any --
A. I just had not filed the --
Q. The return?
A. I was talking about the 1993, but all my taxes have been paid. Yes.
Q. On your Personal Data Questionnaire you mention that you're a member of the South Carolina Inn Court, and you spell that I-n-n?
A. Yes.
Q. Could you tell us what that is?
A. That's an honor society at the law school established by then Chief Judge Sanders who invited a number of Circuit judges in the state, law professors and lawyers, trial lawyers to become a member of the Inn of Court. It's a national organization. It has its etiology in England in regard to people involved in the system coming to talk about the scholarship activities in regard to the law, concerns in the law, developments and trends in the law. It is a meeting of individuals by invitation.

You are invited to become a member and I was invited to become a member by that organization and have participated in general discussions. They normally meet at the law school. They normally have a general discussion about a topic that is identified and it is in most instances intellectually stimulating.
Q. Is there any special criteria for admission other than Justice -- Judge Sanders' invitation?
A. Well, he is not the only one that invites you. I think it's a committee that invites you and I do not know what standard they use. They just gave me the invitation and I accepted.
Q. All right. A little while ago you talked about how you get a large number of cases that are complicated cases and it seems to me that's true, and you've certainly listed some in your Personal Data Questionnaire. Do you enjoy the complicated case? How do you approach the complicated case?
A. It has been said to me publicly and privately that I am somewhat unusual in that I would rather try a complicated legal issue rather than what might be termed a standard trial, and I do not denigrate any litigation by the use of that word, but, yes, I do like the challenge of the high line issue case, both in the civil and criminal venues.
Q. Do you consider yourself successful as a judge in trying those cases?
A. The highest honor given to me in recent years has been the vote that I received unanimously by members of the bar in two scenarios, one in regard to judicial rating concerning various factors that was released some several months ago and, two, a rating that I got released this morning. I pride myself in giving everything that I have to the task and only say that I will continue to do that. That's what I've tried to do.
Q. You have a son who is an attorney and he practices law with the Attorney General's office. What do you do if you ever have one of his cases come before you?
A. I do not have the Attorney General's Office appear before me. I insulate myself from my son and the Office of the Attorney General.
Q. You have been engaged in politics in the past.
A. A long time ago.
Q. It's been a long time ago.
A. 15 years.
Q. What's your opinion about what a judge is able to do in the area of politics?
A. I do not believe a judge should engage in any political activities.
Q. Talking again about complicated cases, you did note that legal scholars in a national publication commented on your Alvin Davis, Jr. case.
A. Yes.
Q. Did the legal scholars give you a favorable review?
A. The article was in The National Law Journal which is a prestigious law journal. The case emanated from the Richland County venue. It involved an individual who had been sentenced for a major crime, but then the jail personnel let him walk out. And he stayed gone for approximately eight years, if I recall, became a model citizen and did everything that was necessary to be rehabilitated. And when he came before me, they had locked him back up and I turned him loose.

I ruled that as a matter of due process the State could not let an individual loose, turn that individual back into society and do nothing. And by the way, he lived in the venue almost the entire time only a few blocks from the Richland County Judicial Center, so I was somewhat appalled by the lack of law enforcement to do anything, and then I tried to make them responsible for their actions.
Q. Did you get a favorable review?
A. I think I did. I think nationally it was accepted as a case where unusual fact scenarios were presented in regard to individuals in like circumstance and there was some precedent around the country, very little directly on the point, and I tried to conclude the matter on due process issues. I think the review was favorable.
Q. In a past screening in 1979, you discussed at some length the distinction between your beliefs in and opinions in political life and your positions or conduct as a judge. And in that screening, you're talking about the role as a Circuit Court judge and you basically said you didn't think a judge ought to interject himself into the policy making decisions of the state in regard to things like capital punishment and mandatory sentencing. Now, you're seeking the position of Associate Justice of the Supreme Court. Do you see that any differently?
A. None whatsoever.
Q. Also in that 1979 screening, you described yourself as a trial lawyer and you said you did not do very much
"office work practice," and it sounded like you really enjoyed the excitement of the courtroom and that's kind of what got your blood stirring. And now you're looking at a job where you're probably going to be sitting behind a desk a lot doing a great deal of research and have a little less interaction and excitement that you derived from the courtroom. Is that going to be an adjustment for you? Will you miss it? Will you be happy on the appellate court?
A. Counsel, I think the adjustment was when I made the transition from trial lawyer to trial judge. Obviously, when I try a case, I'm not the lawyer. I let the lawyers try the case. My view is to let the lawyers present the issue and I have maintained a position of passivity in most instances in that regard, and so I do not see any change from the trial judge mode to the appellate judge.
Q. You won't miss the interaction? I've heard appellate work described as being pretty lonely at times and it sounds like from what you're saying that's not going to be an adjustment for you?
A. I love what I'm doing. I enjoy being a trial judge. I mean I enjoy getting up going to work early in the mornings. And I certainly understand the transition, but I do have some tendency to want to write. I know my writings thus far have been limited because my role is the trial judge and writing is then sent to the appellant entity.

I think the opportunity and privilege to write precedent is a tremendous opportunity and privilege. I do believe that the role in that regard would be different, but it is appealing to me to make that transition.
Q. A couple of things you touched on just then. Let's talk about the work ethic for a minute. What is a typical week for you in court?
A. Every morning at 7:30, I'm at the office everywhere, Charleston, Columbia, wherever I'm being assigned. Every morning, 7:30. I normally stay until about 7:00 in the afternoon. I have stayed later, to the consternation of counsel sometimes, but I suppose amelioration has set in. I try to be aware and cognizant of their load. I give a very full day to the job. Normally around ten hours.
Q. Yes, sir. I didn't know 7:00 o'clock was in the afternoon, but it's good to hear that. Did you -- have you had any complaints about your work schedule, that it's too long or do you hold court for too long?
A. Not in recent years. When I first went on the bench, I had probably exacerbated that work schedule to the point of a little too long and probably needed to truncate it somewhat which has occurred. I obviously recognize lawyers needed to get ready in the morning. Lawyers have the need to talk to witnesses, get their schedule ready and I've tried to tailor that.
Q. And you mentioned, too, a few minutes ago about writing and liking to write. And your writings have received some notoriety in the press. In fact --
A. I knew that was coming.
Q. -- there was one newspaper where -- account where I read that you used some word, and I don't remember the word, nor would I know what it meant or be able to pronounce it probably, but where Solicitor Harpootlian challenged you in a courtroom to spell it and apparently you were able to do so and you moved on from there.

But you have received some notoriety in the press for using words that are probably not in common usage even among educated people, in particular, there was that article by James Kilpatrick. You're nodding your head. Apparently you're aware of it. How do you meet that criticism?
A. Well, I don't think it's a criticism really and I say that honestly and candidly because the lawyers who know me, we have repartee about words. I consider myself an etymologist. I love words. I also always have enjoyed words. Folk like Harpootlian, he's a word person. He will give me a word and challenge in a moment. Obviously, I would like to respond and I do enjoy responding.

Recently, a lawyer said to me, "You know, you've been a little inhibited in regard to your words and vocabulary." I said, "I don't want another Kilpatrick Number 2 syndrome.". I note that Kilpatrick didn't complain about the syntax or the grammar or the usage of the word. And I know he is constantly saying other people don't know anything about words.

It happens to be in the order that I issued, the lawyer before me was an honor graduate from Harvard Law School. He knew all those words. Throughout that trial, we had had constant colloquy and soliloquy concerning words and maybe Kilpatrick didn't understand the word and had to look it up, but Ned Zeigler didn't have to look it up. He knew it. He just lost.
Q. You might want to get with Ms. Boyd, our stenographer, after this is over and spell a few of those words for her. Do you have any experience as an acting justice or judge at the appellate level?
A. Five times, I have served on the State Supreme Court. That's a wonderful experience. Fantastic. The air and atmosphere there is certainly different from down at the trial level, in the pits and in the trenches. I did not have the opportunity to write. I was invited one time by Bubba Ness and I mentioned something about a dissent and the last thing I saw in his face was the information that I needed not to file a dissent.
Q. Judge Anderson, we took a look at the Court Administration's report on matters that judges had under advisement over 30 days and the period of time we looked at was 1992, 1993 and January of 1994 and you never had a case pending over 30 days. I assume you do that by keeping the kind of schedule that you were just talking about.

We talked about that more or less in terms of court, but the weeks you don't have court apparently you must spend a great deal of time in the office as well. Could you comment on that, please?
A. I spend a lot of time after hours. When I say in the afternoon and early in the morning, we don't require lawyers to come in. My law clerk is back here. And they say to work as my law clerk you are a survivalist. But insofar as the orders -- well, first I think the judge ought to decide.

A judge, federal judge, took an oath of office yesterday and she used that general presentation, you need to decide. I don't think the litigants should be delayed. I don't think an epiphany is going to occur after you hold it for 60 or 90 days. I think you need to stay with it, get the order out. That's what I try to do.
Q. Have you experienced any tension between meeting that 30 day mark and the quality of your orders?
A. None whatsoever. Background work is important to me, counsel. I do not know if you know this or not about my staff and I, but we have 50 notebooks. In those 50 notebooks accumulated over the years, we accumulate topics, opinions every week. Not a single week is missed. Every week when the State Supreme Court issues its opinions, we take those, we review them, read them, study them and then we place them in locations in the books. We work on the books and I use those books as resource material. I use that as the basis and premise for every case.

When we begin the term, we've got the books available. When we begin a hearing if that issue involves unfair trade practices, the Unfair Fair Trade Practices notebook is there. The cases for the last 10 years sequentially, chronologically identified in the book, and some charges that I've used over the years. I'm a charge person and I use those charges. The use of that background material enhances the consideration of the case in my judgment.
Q. As an appellate court judge, what do you think the practice should be about reading briefs, law clerk's memorandum, transcripts and otherwise knowing about those cases that aren't preassigned to you and what would be your practice?
A. Every brief will be read. Every paper will be read. That's my practice now when I try a case. I began a trial yesterday in Florence. It will last three weeks. They have identification of witnesses that exceed 100. That material, that information is available. I have reviewed that. I know that theories will be five in number for the Plaintiffs. I know what the theories are. I've already identified the notebooks involved in those theories. I read the material. I think the lawyer ought to be shown the courtesy that the judge will read every single document presented and I do that.
Q. And that would be your practice even with cases that are not preassigned to you?
A. It would continue.
Q. I guess that's how 7:00 o'clock gets to be in the afternoon. You're known for being strict in the courtroom. What's your philosophy about how you run the courtroom?
A. I think the jurors and the judge should listen. First and foremost, I think the judge should listen. I mean the judge should listen to the witness testifying, so he'll be able to rule on matters of evidence and be able to have a feel for that case and I think jurors should listen.

If you open every door in the courtroom continuously, the first thing when the door opens in the back door of the court facility in Florence, the jurors look. I have a tendency almost to look myself and so I do maintain some decorum. I think first that's a place where significant matters are being considered, that case is important to that litigant. I want to give it my best talent and capability. I want the jurors to do that very same thing. And I emphasize that to those participants.
Q. And you touched on judicial temperament some in that response, but describe for us what you consider to be good judicial temperament.
A. I think the judge should be willing to listen to the lawyers, listen to the witnesses, hear them out. Listen to those litigants and then rule. Now, the problem in regard to some folk when they review this process is that they do not understand that this is not a popularity contest position. You must rule. After you hear the parties and the litigants, you must issue an order. That order does not make everyone happy. Someone loses. I think the bottom line is to give everyone a fair hearing and then rule.
Q. What do you do -- assume you take a left or right turn in terms of judicial temperament and an attorney feels he has some reason to complain -- first of all, has that happened in the 13 or 14 years you've been on the bench?
A. I am so proud of what these lawyers have said in this report that they just handed this committee and I will treasure it whether I ever serve on the State Supreme Court a single day again. Members of the Bar interviewed indicated that they had received a fair trial any time they appeared before me. That is wonderful for me personally.
Q. I have known some legislator's who apparently served with you when you were in the House.
A. A very shy, reticent person.
Q. That's exactly what they said. They tend to talk about sort of as a -- affectionately as a renegade. You tended to sometime be on the minority side of a particular
issue, but you were particularly skillful at using rules to advance your position or to halt the majority in trying to pass its position.
A. I'm guilty.
Q. Guilty. That's a fair characterization?
A. I did do that during seven years occasionally. I used the rules every time I could. If I had a strong position, I used the rules. Occasionally, I would try to delay matters if I thought they were major concerns to the litigants. I remember one time engaging in what I then called educational debate concerning the interest rates. And it was being substantial increased.
Q. Well, as a member of an appellant court of five members, teamwork and consensus building will be important. Should the Committee expect Ralph King Anderson from the House days or some other Ralph King Anderson, you know, and I guess I'm asking you, too, how strongly do you have to feel to dissent from an opinion and to -- what would you do to advance your view of a case?
A. I would try to do it internally. I do not plan to dissent with any degree of regularity. That's not the role of the individual justice, unless it is a matter of conscious, counsel. If it's a matter of conscious, I shall dissent. I promise you, I will do that if it's a matter of major precedent and I have very strong feelings. I will consider a dissent if it is something that needs to be written about contra to the majority opinion, but I'm not interested in writing a lot of dissents. That's not the notoriety that I would want to achieve. I would hope that any opinion that I wrote would be concurred in by the others and that I would be able to concur with some degree of regularity.
Q. In the area of gifts and social hospitality, what are your rules about that and how do you define gift and social hospitality?
A. I do not have much interplay with lawyers. Socially, it is none unless it is a person of some long-standing that I would occasionally see. My rule is not to have any kind of contact on a regular basis. I just do not do it. I have refrained from doing that.
Q. What are your rules on ex parte communication?
A. I think I have the most strict rule in the state. I don't allow it period. My secretary knows that. My law clerk knows that. We don't allow that.
Q. If you had a matter before you in which you had a de minimis financial interest, what would your position be on hearing that case?
A. I will not rule on any case where I have any kind of financial interest including stock or whatever. That's just been my basic rule. It's a bright line test that I enforce and it keeps me from having any difficulty in regard to any perceived prejudice.
THE CHAIRMAN: Questions from the Members?
REPRESENTATIVE ALEXANDER: Yes.
THE CHAIRMAN: Mr. Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. I notice you were at Clemson from '52 to '56.
A. Yes, sir.
Q. What was your major there?
A. It was a general major because I was trying to get enough credits to go to the law school. I was trying to finish three years in two years and a summer school and I did it with no extra credit to spare, so it's mostly history and government.
Q. Is this the place you learned your mastery of grammar?
A. I had a great teacher in --
Q. Who was it?
A. -- regard to a speech course.
Q. John Lane?
A. Yes.
Q. Okay.
A. And he made us start the -- I was from the Pee Dee obviously, and I said oil, and he said, no, the word is oil. And he began to make me flex and to give the word a syllable response and he put me on a tape and I sounded horrible to myself and he kind of took me under the wing I suppose because I was so bad at that time in regard to pronunciation and articulation.
Q. He was quite an outstanding person.
A. Yes. Yes.
THE CHAIRMAN: At this time, the Record will reflect that Mr. Alexander spent eight years at Clemson and didn't -- that's why he asked that question. Any other questions? Mr. Russell.
EXAMINATION BY SENATOR RUSSELL:
Q. Judge, you're familiar with the fact we had another Anderson previously here for screening not too long ago and I just wanted to point out there was -- I don't see it on these questionnaires, but on those questionnaires, there was a question as to whether or not you had ever been scolded by a judicial entity, reprimand, and it caused him great problems. He didn't know whether to list them or leave them out, but he did mention that he had been scolded by the Court before?
A. He has.
Q. Before he had been an attorney, though?
THE CHAIRMAN: Other questions from the Members? If not, thank you, Judge Anderson.
A. Thank you.

END OF PRIOR TESTIMONY OF JUDGE ANDERSON.

THE CHAIRMAN: The next candidate is Julius H. Baggett. Judge Baggett, come forward, please.
JULIUS H. BAGGETT, having been duly sworn, testified as follows:
THE CHAIRMAN: Judge Baggett, your last screening as well was March 29, 1994, and I would say the same thing that we said with Judge Anderson with the exception there not being a complaining witness in your case. What we would propose to do would be to incorporate the questions and your responses into the transcript of record.

We've received no intervening complaints from witnesses.
MS. MCNAMEE: We have one.
THE CHAIRMAN: We do? I'm sorry. We do have one complaining witness in this case, but I would -- what we would still propose to do would be to incorporate into the record your testimony from the prior screening and --
JUDGE BAGGETT: Certainly.
THE CHAIRMAN: -- you'll be given a chance to respond to the witness who is here to testify today.
JUDGE BAGGETT: Certainly.
THE CHAIRMAN: Let me run through the series of questions with you. Have you had a chance to review your Personal Data Questionnaire?
JUDGE BAGGETT: Yes, I have.
THE CHAIRMAN: Is it correct?
JUDGE BAGGETT: It is.
THE CHAIRMAN: Any changes, clarifications?
JUDGE BAGGETT: None.
THE CHAIRMAN: Any objection to our making the Summary a part of the record at this time?
JUDGE BAGGETT: None.
THE CHAIRMAN: That will be done at this point.

1. Julius H. Baggett
Home Address: Business Address:
403 Main Street Lexington County Courthouse
P. O. Box 738 P. O. Box 885
Leesville, SC 29070 Lexington, SC 29071

2. He was born in Florence, South Carolina on February 14, 1925. He is presently 69 years old.

4. He was married to Evelyn Ruth Heacox on March 15, 1944. He has four children: Stephen D., age 43 (attorney with firm of McDonald, Burns, Bradford, Patrick & Dean - Greenwood, SC); David Jay, M.D., age 41 (medical doctor, family practice specialist, Dorchester Family Practice - Summerville, SC); Judy Kay Baggett Meggs, age 39 (teacher, Laurens School District - Laurens, SC); and Amy Susan Baggett Spillers, age 28 (former probation officer - Leesville, SC).

5. Military Service: U.S. Navy; June, 1943 - December, 1945; Signalman 2d Class (Petty Officer); Serial No. 829-24-23; Honorable Discharge

6. He attended Furman University; September, 1942 - June, 1943; January, 1945 - July, 1947; B. A. Degree awarded in 1948 after completion of first year of law school. He also attended the University of South Carolina School of Law; September 17, 1947; LLB (reissued as J.D., September 3, 1970).

8. Legal/Judicial education during the past five years:
He attended the course sponsored by National Judicial College in San Francisco on Judicial Efficiency Improvement. He attended all JCLE seminars when travel funds were available.

9. Taught or Lectured:
Yes - at JCLE Seminars on several occasions; at the S. C. Trial Lawyers Association on capital punishment; and at the S. C. Defense Association on opening statements. He spoke to new law clerks at the Annual Conference on two occasions.

10. Published Books and Articles:
Article entitled, "May It Please the Court," published in "The Bar Tab" (A Periodic Report to Members of the Young Lawyers Division), Vol. 11, No. 1, Fall, 1993.

12. Legal experience since graduation from law school:
January, 1950 - December, 1957: Trial attorney; U. S. Department of Agriculture; Office of General Counsel; Atlanta, Georgia
January, 1958 - July, 1966: Partner; Buzhardt & Baggett; Attorneys at Law; McCormick, South Carolina
July, 1966 - October, 1976: Individual practice; McCormick, South Carolina; following death of partner
October, 1976 - present; Resident Circuit Judge; Eleventh Judicial Circuit
13. Rating in Martindale-Hubbell: AV

20. Judicial Office:
South Carolina Circuit Courts, elected without opposition July 22, 1976, assumed office October 2, 1976; reelected without opposition in 1982 and 1988.
The Circuit Court of South Carolina is the highest level of trial court in South Carolina with unlimited jurisdiction in both criminal and civil cases.

21. Five (5) Significant Orders or Opinions:
(a) South Carolina Insurance Company v. Estrada, 277 S.C. 343, 287 S.E.2d 475 (1982).
(b) Multi-Cinema v. South Carolina Tax Commission, 292 S.C. 411, 357 S.E.2d 6 (1987).
(c) Sales International Limited v. Black River Farms, Inc., et al., 270 S.C. 391, 242 S.E.2d 432 (1978).
(d) Dewey Bowen, et al. v. Tony Ellis, et al., 81-CP-32-2186 (No Appeal).
(e) James C. Anders, Solicitor of the Fifth Judicial Circuit v. Albert Jones and Edward H. McElveen, et al., d/b/a DeSoto Hotel, 80-CP-40-3039 (No Appeal).

22. Public Office:
South Carolina House of Representatives, 1967-1968, 1970-1974, elected in General Elections

24. Unsuccessful Candidate:
Candidate for House of Representatives, Democratic Primary, 1968
Candidate for House of Representatives, Democratic Primary, 1974

25. Occupation, business or profession other than the practice of law:
None, except part-time work while attending school and college, as well as military service during World War II

39. Expenditures Relating to Candidacy:
12/1/93 Postage $116.00
12/14/93 Supplies $ 50.00
1/5/94 Telephone $ 81.65
1/18/94 Photographs $144.90
Booklets $250.00 (estimated)
44. Bar Associations and Professional Organizations:
South Carolina Bar Association; American Bar Association; South Carolina Association of Circuit Judges (Treasurer, Vice Chairman and Chairman [President]); Lexington County Bar Association; Tri-County (Edgefield, McCormick and Saluda) Bar Association

45. Civic, charitable, educational, social and fraternal organizations:
Mine Lodge No. 117, A.F.M. (Masonic Order); Masonic Chapter Council and Commandery; Hejaz Shrine Temple

46. As of June 30, 1994, he will have completed 17 years and 9 months of service as a Circuit Judge. He is the second-most senior Circuit Judge of the 40 judges (Judge Rodney Peeples being the most senior). He has worked diligently and has introduced innovations in the Circuit Court system, especially the use of computer generated research. The present members of the Supreme Court, with the exception of Justice Toal, are all former colleagues of his in the General Assembly and on the Circuit Court. Working with them and Justice Toal would be a pleasant and intellectually stimulating experience which would be of benefit to the Judiciary.

47. Five (5) letters of recommendation:
(a) Raymond S. Caughman, Chairman and CEO
The Lexington State Bank
P. O. Box 8, Lexington, SC 29071-0008
359-5111
(b) Larry W. Propes, Deputy Director
South Carolina Court Administration
P. O. Box 50447, Columbia, SC 29250
734-1800
(c) Honorable Jeff D. Griffith, Jr.
P. O. Box 387, Saluda, SC 29138
445-2671
(d) Honorable Hubert E. Long
431 N. Lee Street, Batesburg, SC 29006
532-4605
(e) Patrick J. Frawley, Esquire
President, Lexington County Bar Association
P. O. Box 489, Lexington, SC 29071
359-2512

2. Positions on the Bench:
South Carolina Circuit Court; Eleventh Judicial Circuit; Resident Judge; October 2, 1976 to present; term expires June 30, 1994

The Board of Commissioners on Grievances and Discipline reports no formal complaints or charges of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands. The records of the appropriate law enforcement agencies: the Lexington County Sheriff's, Batesburg/Leesville City Police, SLED and FBI all are negative. The Judgement Rolls of Lexington County are negative. Federal court records show no judgements or criminal actions against you. There was one civil rights action brought against you and others in 1986 and it was dismissed.

We do have one complaint that has been received and that person is present to testify. And one -- that one witness is present to testify against you. At this time, I'll turn you over to Ms. McNamee for questioning.
JUDGE BAGGETT - EXAMINATION BY MS. MCNAMEE:
Q. Good morning, Judge Baggett.
A. Good morning. How are you?
Q. Again, it seems like just yesterday that we were here.
A. Yes, it does.
Q. I want to ask you, we have the window open for ventilation. Is there any problem with hearing?
A. Not a bit.
Q. Do we need to close it a little bit or anything like that?
A. Not a bit. Could I make my little five-minute presentation?
Q. Yes, sir.
THE CHAIRMAN: Yes, you and all the other candidates as we said the last time have the opportunity if you'd like to do a short opening statement --
A. It would be very short.
THE CHAIRMAN: -- to be incorporated into the record?
A. I just would appreciate the opportunity. It's mainly for the record. Thank you so much.
THE CHAIRMAN: Please do so.
A. Mr. Chairman and Mr. Alexander, my Brothers of the Bench, I appreciate again the opportunity of appearing before this committee and willingly submit myself to examination on my qualifications to serve as an associate justice of the South Carolina Supreme Court.

I respect the authority of the General Assembly in its inquiry and I believe that to be a needful, helpful and legitimate function of the legislature to make full investigations of those who seek judicial position into whose hands the power of the court is to be placed.

I deeply appreciate the opportunity which the General Assembly has given me to serve the public as a trial judge on the Circuit Court of this state. I have submitted to these examinations three times before now, and three times have been elected to serve as a Circuit Judge covering the time of nearly 18 years. I'm very grateful for this opportunity to serve because not only have I served the public interests to the best of my ability, but I've grown in my knowledge and love of the law and the pursuit of justice.

The mantle of justice laid on me by the General Assembly has been worn seriously. Because of the statute of limiting service to those under 72 years, I have but two and one-half years to serve. I waived the opportunity of reelection to the Circuit Court in the hope of being permitted to finish out my legal judicial career on the Supreme Court and this way the seat which I hold on the Circuit Court will not be vacant for any time because the General Assembly has already filled it with a worthy successor.

If elected to the second seat, I am prepared to fill any vacancy created by the election of any of my other brothers on the Circuit Court to the first vacancy on the Supreme Court. This is said, of course, without any right of my claim to the first seat and without any -- conceding anything to any other candidate.

Very quickly, I want to say this, that my brother who just was reviewed without denigrating him at all because he's a wonderful, outstanding judge, when he spoke of maintaining 50 notebooks, at first, I felt a little inadequate myself because I don't maintain 50 notebooks. I just can't imagine doing that.

I have been fortunate in having computer equipment provided to me by Lexington County now for about two and a half, three years. I've had very, very bright young assistants helping me with this, particularly, the one I have now. In this way, we have made it unnecessary to maintain notebooks. For example, in this compact disk, CD-ROM, we have just a few of the things. We have South Carolina cases from 1939 to 1993 with full indexes on any direction you want to take. We have the South Carolina Circuit Court Rules of Court, Federal Rules. We have the legal address book, phone numbers and addresses of every lawyer in this state on here. We have the Bar recommended jury charges. I have my own jury charges that I have developed over the years. We have numerous textbooks that are on here.

We, I guess, can do an unlimited number of things with the computer. I -- because I've been accused of flying under false colors by one of my brethren, who says it's impossible, that Baggett can hardly even turn the thing on, I want to admit that I am no expert on computers, but I am one who tremendously appreciates it and advocates it, believes that it's a salvation to us as we work on the Circuit Court and, indeed, on the Supreme Court because it facilitates the work so much. I can't tell you how much a pleasure it is to be on top of everything using computers, retrieval methods, the printing methods.

My friend, Judge Burnett has become far more expert at this than I have. He's developed intricate systems of that. He'll speak to that if he wishes. But I respect and recognize him as one of those among our Circuit judges who have done this and I say this separately to point out that even though I may be one of the elder statesmen of the bench, I fully appreciate and recognize this, this is the way of the future and would hope the General Assembly would encourage us and enable us to get this. Thank you.
THE CHAIRMAN: Thank you very much.
Q. Thank you, Judge Baggett. Judge Baggett, since your last screening only four weeks ago, have there been any changes in your status or anything of that nature that you would like to tell the committee about?
A. No, ma'am. Not a thing.
Q. Moving onto questions about pledging, in particular to this seat, the second vacancy, have you sought the pledge of a legislator prior to the completion of the screening process even if that pledge sought is conditional upon being found qualified by this screening committee?
A. No.
Q. Have you asked or otherwise authorized any other person to solicit or seek pledges of a legislator's vote on your behalf prior to the completion of this screening process?
A. I have not.
Q. And do you know of any solicitation or pledges being done on your behalf?
A. I do not.
Q. I believe our expenditure records show that you have filed with us and with the Ethics Committees of the Legislature. Is the report that we have of your campaign expenditures accurate?
A. Yes.
Q. And up to date?
A. Yes.
Q. Thank you, sir.
MS. MCNAMEE: I'll say at this time that we have a complaining witness against Judge Baggett and this lady is also complaining against Judge Kinard. Perhaps we could hear her testimony right now.
THE CHAIRMAN: All right. We'll -- why don't we -- Judge Baggett, if would you have a seat and we will call the witness forward. And what I would propose we do would be to have the witness since her testimony involves two of our candidates testify.

Judge Baggett will respond and then I believe Judge Kinard is the other judge in which she is testifying regarding to and then we'll do the -- so she doesn't have to repeat her testimony, we will allow Judge Kinard to respond during his questioning. We'll do that. Ms. Gail Hull, step forward.
GAIL HULL, having been duly sworn, testified as follows:
THE CHAIRMAN: Thank you. Be seated please. Ms. Hull, Ms. McNamee will ask you some questions regarding your complaint. We do have it in our record and we -- the members of the committee have had an opportunity to review it.
MS. HULL - EXAMINATION BY MS. MCNAMEE:
Q. Ms. Hull, would you state your name and address for the record?
A. My name is Gail Hull. I live at 2235 Ashley Crossing Drive in Charleston, South Carolina.
Q. Ms. Hull, you are here to testify against Judge Baggett and Judge Kinard; is that correct?
A. Yes.
Q. Could you explain to this screening committee what your complaint is?
A. Well, my -- the Supreme Court is -- to me, represents the highest thing that a judge can -- the highest level that a judge can attain. In order to be on the Supreme Court I think that as Circuit judges, they should have been able to show their ability to recognize and deal with repeat offenders, lifetime criminals. And in this case, both of these judges let a 17-time convicted felon walk out of their courtroom on probation. And I have trouble with believing that the justice system is working when repeat felons are not dealt with in the courtrooms.
Q. Ms. Hull, these proceedings concerned a Defendant named Julie Redick, is that correct, that was one of her names --
A. Yes. Yes.
Q. -- correct, that she used? Isn't it correct that Judge Baggett presided over a guilty plea and a sentencing hearing which took place over two days?
A. No.
Q. Over two days in 1993, August the 10th and October the 19th?
A. It was only one day that was actually in court. I don't know what happened outside of court.
Q. We have been supplied with the transcript of the hearing by Judge Baggett and that will be in the record. As I understand it, Ms. Redick was charged with the offense of obtaining property under false pretenses?
A. Yes.
Q. Is that your understanding?
A. Yes.
Q. And the facts as they came out in the transcript were that she used a forged document from Richland County Probate Court to cash a Certificate of Deposit in the amount of $13,000 from an estate; is that --
A. Yes.
Q. -- your understanding?
A. Yes.
Q. As I understand it from the transcript, she pled guilty and received a sentence from Judge Baggett, and this is what you're complaining about?
A. Yes.
Q. Is that correct?
A. Yes.
Q. Is it your understanding that the sentence was three years imprisonment, suspended on service of five years probation with six months of house arrest except for medical appointments?
A. Yes.
Q. Just to move on a little bit, Judge Kinard from Richland County --
A. Well, before we get to Judge Kinard, can I interject something?
Q. Certainly.
A. And if you read the transcript, in the transcript, Judge Baggett referred to Ms. Redick, or Gates, whichever her name was in this case, that she was a hardened criminal. Now, he recognized this fact.

This -- she pleaded guilty after manipulating the system to get in front of Judge Kinard instead of being in front of Judge Eppes earlier. She was supposed to go in front of Judge Eppes who had originally put her on probation for the Salvation Army scandal. When she found Judge Eppes was on the bench, she decided to plead not guilty in order to get a trial.

After Judge Eppes rotated off the bench, then she changed and decided she would plead guilty and she did so in Judge Baggett's courtroom. And he referred to her as a hardened criminal, who had lived for years off of other people's money, the system had been extremely kind to her. He made all these references, but then refused to take any -- any -- to this woman who has been on probation most of her adult life, probation to this woman is interpreted as the court's authority to steal some more. Probation does not deter this woman and after 16 convictions, these judges should recognize that fact.
Q. Could you tell the members of this committee what the medical evidence was that Judge Baggett had before him at this point?
A. He had a letter, whether it was -- whether or not it was signed -- someone -- someone in the court told me the letter was not signed, from a doctor, who said supposedly that Julie Redick has a heart condition. And that going to jail maybe derogatory to her health.
Q. What was the prognosis in that --
A. She has a heart condition.
Q. And what would need to be done for her?
A. Well, supposedly she claims that she is on a transplant list, but nobody has ever been able to document that she is actually that seriously ill. They never have asked for documentation.

He asked for documentation from the defense without -- he had someone from the bank called into verify the -- the records of this CD, he asked the prosecutors to verify everything they did, basically, but he never asked the doctor to be called in or any -- any backup documentation of this letter, how authentic it was, how seriously ill the woman was or how detrimental this would really be to her health. This was never brought out in court.
Q. We have in the packet of members of the screening committee, the indictment, the guilty plea and the four-page medical report from Doctor Stanley Juk of Providence Hospital, which were supplied to us from Judge Baggett. I have here one copy of the transcript. Ms. Hull, this -- you were present at both the hearings?
A. Yes.
Q. Both --
A. Well, there was only one that I'm aware of.
Q. Well, the one in front of Baggett and then also the one --
A. Oh, yes.
Q. -- of Judge Kinard?
A. Yes. I'm sorry. Yes.
Q. And what is your interest in this case?
A. I was Raymond Galindo's fiancee.
Q. And who is Raymond Galindo?
A. He is one who the CD -- the estate that the CD was stolen from.
Q. Was that money from a Certificate of Deposit restored to the estate of Mr. --
A. Yes, it was.
Q. -- Galindo?
A. But that does not -- but that does not change the fact that a crime was committed.
Q. I understand that. I just want to get that on the record. Okay. Could you say there were any key factors in Judge Baggett's sentence that came into play there?
A. Before we took the -- the break for lunch, everyone thought that Judge Baggett was going to sentence Julie Redick to Court (sic), then after lunch, he came back in and the only thing presented was the letter and there was no further discussion -- well, discussion on the matter and then he decided on probation. I don't know what happened at lunch.
THE CHAIRMAN: Why don't we before we move to Judge Kinard, let me see if the screening committee members have any questions about Judge Baggett's -- or testimony regarding Judge Baggett?
A. Before you -- Julie Redick has used this same health defense since 1989 to get out of going to jail for the Salvation Army which she embezzled $167,000 and was put on probation. She has been using this health scam as an excuse for going to jail while she has repeatedly broken the law and stolen more and more money. And I am convinced that Julie Redick will continue to steal money as long as she's allowed to walk the streets of this city.
THE CHAIRMAN: Let me ask you a question about her status at the time of her guilty plea in Richland County. Was she on probation at that time?
A. Yes, she was. She was for the Salvation Army as well as other charges from what I understand. She has been on probation -- if you read the newspaper article, it's been one probation after the other and I don't know when one ended and exactly when another one started, but she was on probation for the Salvation Army.
THE CHAIRMAN: At the time --
A. Yes, sir.
THE CHAIRMAN: -- of her plea?
A. Yes, sir.
THE CHAIRMAN: Was that probation revoked?
A. No, sir, it was not. That's why --
THE CHAIRMAN: Just continued?
A. -- she had to go back in front of Kinard because this violated her probation and that's what sent her back to Judge Kinard.
THE CHAIRMAN: That was the different -- that was the probation revocation hearing?
A. I have no problem with -- with honest judges with the legal system, but like I said, I have trouble with the fact that the Supreme Court is making supreme decisions in these matters, and situations like this are happening and I don't know whether either one of these gentleman have ever made a decision like this before. I did not research their careers because -- and I don't know. I really -- I haven't -- you know.
THE CHAIRMAN: Any other additional questions regarding -- yes, Senator McConnell.
SENATOR MCCONNELL: Thank you, Mr. Chairman.
EXAMINATION BY SENATOR MCCONNELL:
Q. How many convictions did she have at the time of this hearing exactly? Was it 17 or was this --
A. This was --
Q. -- the 17th one?
A. This was her 17th conviction.
Q. And these previous convictions, they were for --
A. Fraud.
Q. -- embezzlement or something like that?
A. Fraud. Fraud, embezzlement. It's all listed in this newspaper article. I don't have a list of all of them in front of me, but they were all related to obtaining money under false pretenses.
Q. Were any of the other victims there besides you?
A. Yes. Debra Johnson, who's -- Demos Johnson estate or some other estate, she was -- she was there as well. Neither one of us testified or were called on to testify at the hearing.
Q. Was there anybody from the Salvation Army there?
A. No, sir. There was not, that I know of. If they were, they were not called on to testify.
Q. And at the hearing, did the Solicitor's office have anything to say about it?
A. The only thing that the Solicitor's office could say is that they thought they had enough for a conviction and they were a little bit surprised that there -- that there was no -- there was nothing but another probation given because they were convinced that they had a conviction.

The SLED officer who was there thought he had given enough information to the Solicitor's office to get a conviction, but it didn't happen.
Q. And do you recall specifically whether or not the court was made aware that she was already on probation?
A. Yes, sir. It came out. There was -- the best of my knowledge, there -- her record was -- was presented and discussed during the court hearing about her different convictions and how many times she had been convicted of different things and Fran Humphries the solicitor, he -- to the best of my knowledge, he brought all of this in the courtroom.
Q. And correct me if I'm wrong, but you previously stated that she had used these medical reasons before?
A. Yes, sir.
Q. How do you know that she did that?
A. The transcript from the hearing with the Salvation Army.
Q. Do you recall --
A. And it was --
Q. -- essentially what she --
A. In the Salvation Army hearing, she asked for the judge to be lenient with her because she had thought that she was dying and that she was -- wanted to give her son a lot of things that he would never be able to have because she may die and leave him, and so she stole money to buy him cars or whatever else he wanted.
Q. And do you recall how many years previous the Salvation Army incident was before --
A. She was convicted in '89.
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: Representative Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. When did you first become aware of this problem that this lady apparently has and how did you become aware of it?
A. I became aware of it after Raymond Galindo died. He left his estate or attempted to leave his estate to the University of South Carolina. A lot of improprieties began appearing in the estate.

I started calling USC on a regular basis and then Ms. Johnson's attorney called me because the same thing was happening in her mother's estate and they called me and asked me for my information on this thing and then -- and then it turned out that Julie Redick was the one in both instances who was stealing money from the two estates.
Q. Well, how did you learn of it at first if this problem at the University of South Carolina was about to present itself?
A. The week that Ray died, his niece called me. They were still in Columbia and the personal representative, or the to-be-appointed personal representative was Louis Demos. Louis Demos had told Ray's family that he was going to move in Ray's house and live there until the estate was settled. And they were extremely distraught.

They called me wanting to know what -- is there anything we can do. Ray's family -- Ray's family is -- they're from New York. They're not really educated people. And they had no earthly idea what was going on, so I called Louis Demos and asked him and he told me at that time that he was going to move in the house supposedly to protect it.

I said that's not necessary, there is a security system on the house, there is no reason. It's tied in with the security patrol. There is no reason for you to live in the house. He said, "Well" -- he said, "It's cheaper insurance because a nonoccupied dwelling, the insurance almost doubles." I said, "You can also get rental insurance or you can get other insurance that is not quite that expensive." I said, "But even if we have to increase the insurance, that's less expensive than the estate supporting you while you live in Ray's house." So then he says, "Well, you may not like it, but there is nothing you can do about it."

That was his -- so then I called the University of South Carolina and told them what was happening and that is when -- when I came --
Q. How did Louis Demos know to call you? Why --
A. He did not call me. I called him.
Q. And how did you know to call him?
A. His niece called -- Ray's niece called me and told me that he was moving in Ray's house and I called to find out why.
Q. How did you know to call the niece? Why did --
A. She called me.
Q. Oh, she called you?
A. From his house.
Q. Well, how did -- why did she call you if -- what reason?
A. Because I lived in South Carolina and they knew that I knew about Ray's affairs. I had helped him -- I handled Ray's affairs for years and years and years. They considered me a member of the family and they did not know who else to contact.
Q. In other words, you had a family connection there that --
A. Yes, sir.
Q. With Ray?
A. Yes, sir. Yes, sir. We were engaged at one time.
Q. Oh, you were engaged?
A. Yes, sir. I stated that, I believe, in the beginning.
REPRESENTATIVE ALEXANDER: Well, this gets more confusing as we go, Mr. Chairman.
A. Oh, it gets worse, believe me.
THE CHAIRMAN: Let me ask you a few questions. Are you finished?
REPRESENTATIVE ALEXANDER: That's all I want right now.
THE CHAIRMAN: Just to see that I've got the record clear, I was looking at the news summary and it says she was convicted apparently of several fraudulent check charges back in 1980 and served no prison time?
A. Yes, sir.
THE CHAIRMAN: And then it says she was convicted on ten bad check charges in '88 and put on probation?
A. Yes, sir.
THE CHAIRMAN: And then it says she was -- that she was serving probation when she embezzled from the Salvation Army, so that's the incident you referred to in '89, was the Salvation Army incident?
A. Yes, sir.
THE CHAIRMAN: Where apparently she didn't pay her restitution and they reactivated her sentence? Is that when she got --
A. What happened with the -- with the -- when she spent the six months in jail, I went to a probation hearing and presented evidence. She had said that she was unable financially to pay the $25,000 that was to be paid in increments of I don't know how much a month.

She said that she was destitute and could not pay it. I presented papers to the Parole Board that day that Julie Redick had signed during the same period, telling Lexington State Bank that she was worth $170,000. It was filled out and signed by Julie Redick's own handwriting, and so that is when they gave her six months -- probation and that's the only jail time this woman has served.
THE CHAIRMAN: And the account again states that after that while awaiting trial for breach of trust, that she worked at Multiple Management Services and was charged with forgery there for $725 worth of checks?
A. $1,725.
THE CHAIRMAN: 1,725 and then it says while on probation, she was arrested four times on bad check charges again and then it -- the next account is the story of her work for Mr. Demos. Is that a fairly accurate summary of the history?
A. Pretty much so, yes, sir.
THE CHAIRMAN: Now, tell me about -- I'm curious about what the court ordered. Did they order restitution in your case and the other case that -- or the two cases that were pending at the time this news account was written?
A. No, sir. It was only probation as far as I'm aware.
THE CHAIRMAN: So no restitution was made of any of the money that was taken?
A. No, sir.
THE CHAIRMAN: Ms. McNamee is going to help me here.
RE-EXAMINATION BY MS. MCNAMEE:
Q. I think you did testify that the amount of the CD had been repaid?
A. The bank had repaid --
Q. The bank?
A. -- the University, but nobody has repaid the bank.
THE CHAIRMAN: All right, so what you're saying is that through some insurance plan or through -- that the bank took care of that obligation?
A. Yes.
THE CHAIRMAN: But to your knowledge, no --
A. No one pressed charges against her.
THE CHAIRMAN: All right. Questions? Any more questions? All right, let's turn to the incident involving Judge Kinard now and see if we can move into that.
FURTHER RE-EXAMINATION BY MS. MCNAMEE:
Q. As I understand it was several weeks later, Ms. Redick came up for a probation hearing; is that correct?
A. Uh-huh.
Q. Or a revocation of probation hearing in front of Judge Kinard?
A. Uh-huh.
Q. What happened at that hearing?
A. Well, they presented the same medical mumbo jumbo that they had presented at the other trial. Judge Kinard listened to the -- to the medical -- looked at the letter, did whatever and sentenced her to 30 days at the Correctional Institute, and I may not -- the wording may not be exact. Don't quote me exactly on this, but to the effect that it was to be served one day a week, the day of her choice, she was to report to the correctional institution for that day. If she was not feeling ill on the day, she was to report, and this was to be done until the 30 days had been completed.
THE CHAIRMAN: And we have just had handed toward us a copy of that. I believe this is Judge Kinard's --
MS. MCNAMEE: This is Judge Kinard's order and the transcript of the hearing.
THE CHAIRMAN: We have that in front of us.
A. Like I say, this is not a direct quote. That is my interpretation that was what --
THE CHAIRMAN: It says the 30 days are to be served one day a week Mondays unless -- it says unless a medical exam, then to be served on another day of the week.
MS. MCNAMEE: Excuse me, for medical reasons --
THE CHAIRMAN: Okay.
MS. MCNAMEE: -- is required --
THE CHAIRMAN: Report at 8:00 a.m. every Monday.
Q. Is your testimony, then, that in your opinion Judge Kinard was too lenient on Ms. Redick?
A. Yes, very much so.
Q. In the same manner as you would have --
A. Yes.
Q. -- said to us about Judge Baggett?
A. Yes.
THE CHAIRMAN: Questions from the Members? Now, were you present, Ms. Hull, at the probation revocation hearing?
A. Yes, I was.
THE CHAIRMAN: And the other victim that's described in the news account --
A. She was also.
THE CHAIRMAN: -- was she present as well?
A. Yes.
THE CHAIRMAN: Did you testify in that proceeding at all?
A. No, sir, I was not called on to testify.
THE CHAIRMAN: Do you recall whether or not the probation agent, did they make any type of recommendation or the Solicitor's office in the revocation hearing regarding what should be done with her?
A. I really don't remember exactly what their recommendation was. There have been so many of these hearings that I just -- I believe they were recommending that she get -- that her probation be revoked, but I'm not -- I would not -- I can't testify, though, under oath because I don't know.
THE CHAIRMAN: Did the judge make any comments during the hearing regarding his basis for the decision giving her the 30 days?
A. Her lawyer Kirkland, I believe is his name, said that a jail sentence for her would be a death -- it would be the same as a death sentence. Because of her health condition, she could not get the medical care in prison that she deserved. And I can only assume that that's what Judge Kinard based his decision on. I do not know.
THE CHAIRMAN: Any questions from the members? If not, Ms. Hull, you may have a seat. Let me explain to you what our procedure is. When we have a witness who comes forward to testify, we allow the candidate to come back and respond to information that we have received during the course of that testimony.

We don't because of the fact that we could go back and forth forever, we don't ask the witness to come back up. We do leave the record open, however, in the event you have additional details you would like for us to look at. And I would ask you if you do come upon information you think is relevant to either one of the cases that please forward it to Ms. McNamee or to the Screening Committee and we will consider that.

We do -- we leave the record open for the purpose, but what we'll do at this time is ask Judge Baggett to step forward and to take the witness chair and to respond to your testimony. When we screen Judge Kinard, we'll ask him to respond to the allegations as well in that.
A. Yes.
THE CHAIRMAN: Thank you very much. Judge Baggett.
JUDGE BAGGETT: Yes, sir.
THE CHAIRMAN: If you'd come forward. You're still under oath.
JUDGE BAGGETT: Thank you, sir.
EXAMINATION BY MS. MCNAMEE:
Q. Judge Baggett, I'm handing up to you your transcript --
A. I have it. I've got it.
Q. You have it?
A. I have it. Yes, I was there.
Q. Judge Baggett, I would just ask you to respond with the transcript in hand to your recollection of the day and the thought processes that --
A. Oh, yes, I remember it quite well. It's one of those perplexing situations that you're wholly frustrated with what you would like to do. First of all, she was charged in a minor way for a major crime. She stole $13,000 and she was indicted for taking money under false pretenses which carries only up to three years or a fine of $500. That was frustrating enough as it was.

She had a record that would completely justify her being incarcerated for the maximum of three years and I sympathize with this lady about this. I wanted to put her in jail and if you look at the transcript, you will see where I said that. I did not feel comfortable about this, but I relied upon the representation made to me by Mr. Henry Kirkland, a respected member of many years at the Bar, whom I've known personally for many years.

He presented to me a document from Doctor Stanley Juk, a renowned cardiologist, and when all these facts were given to me and when they were fairly recent facts when they were presented to me -- let me backtrack a minute. She first pled nolo contendere, no contest, and I accepted that, but after I got further into it and saw her record, I insisted that she plead guilty, to admit her guilt in a hearing. She did. I made her admit it. She pled guilty. I wouldn't accept nolo.

Doctor Juk presented me with this dilemma in his report. She had had three hospitalizations as myocardia infarctions. She had two arterial transplants. Not transplants, bypasses. She had two coronary artery bypass surgeries and she had been recently admitted on an emergency basis for a Class 4 chest pain. It goes on to say that she was most definitely in line and needed a heart transplant.

In addition to that, she had some gynecological problems that were suspicious of being cancerous. She was awaiting surgery on those things.

Now, I'm looking at this woman who deserved more than three years and if I gave her three years, I don't know when she'd get out, but I do know this, if she's placed in the South Carolina Department of Corrections, the State was in line to pay possibly as much as a quarter of a million dollars for a heart transplant. And I do not know what the other expenses would be for gynecological problems.

All I could see was the State of South Carolina being made to undertake to pay all these major expenses for a property crime, property criminal, indeed a very bad one, who could only face as much as three years and be out in probably under two. And I just had to balance those things and I just could not see putting this on the taxpayers of South Carolina to make them pay for this heart transplant and all these other things.

I do not apologize for that, gentlemen. I'm sorry that this lady feels as she does and I could see how she would feel that way. These are the charges that I made and -- and that's it.
THE CHAIRMAN: Questions?
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: Representative Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. One can't help, but wonder where the lady is now if she needed all of these things.
A. I couldn't tell you.
Q. Do you have any idea?
A. I don't know, Mr. Alexander.
Q. When did this occur? The sentencing, when was that?
A. I had the --
MS. HULL: It was in October.
A. August. August would be the formalized plea and I sentenced her in October.
Q. Of ninety --
A. '93.
Q. '93?
A. Yes, sir. I've not had any more --
THE CHAIRMAN: Tell me about the restitution. Was restitution ordered in the case and was any paid?
A. All but $3,000 I think in that case has been made. That's what was told to me. She was on $500 Social Security Disability and that's all she had I was told. And it was pointless -- I think the law is made to look foolish when it orders something that's impossible to do. It's one of the theories that I've learned. It may look good. But if you don't have any chance of collecting, what good does it do?
THE CHAIRMAN: Was --
A. I tried to get the bank in to testify as to anything. They've been uncooperative. It was a useless point in my trying to get her to pay restitution.
THE CHAIRMAN: Was there a recommendation made by the Solicitor's office in the case or was it a case where they made no recommendation?
A. As to sentencing?
THE CHAIRMAN: Yes, sir.
A. I don't accept recommendations from the prosecution. Never have.
THE CHAIRMAN: Other questions? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Judge Baggett, as I understand, your decision was based on the fact that the medical evidence indicated to you that we were -- the State was going to pick up substantial liability?
A. Yes, sir. That's correct.
Q. How about the consideration that she probably might go out and do this again or that she was already on parole?
A. I can't answer that.
Q. Or probation, I guess, you know.
A. I can't answer that, Senator. I think it was pretty clear that when she was brought back to court that she go to jail without question. She would in my mind. It's a difficult call. I can see that it admits of some fair criticism, but I don't think that I should make the taxpayers pay a quarter of a million dollars for -- to keep this woman in jail a few months.
THE CHAIRMAN: Other questions? Thank you, Judge Baggett.
A. Yes, sir.

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

JUDGE BAGGETT - EXAMINATION BY MS. MCNAMEE:
Q. You are the second most senior member of the Circuit Bench and I'd like to ask you what are the most significant changes that you've seen in the Circuit Court bench during your tenure there?
A. Well, I think, first of all, the numbers have fluctuated. When we first came on, the nine of us in
'76, there had -- there was a tremendous backlog because of the fact that the County courts were being dissolved, so we accepted all of those cases and we had a tremendous backlog and so up until about 19 probably 85, 86, we began to whittle that down. And we began to be able to handle cases with more facility. So I think that's one of the major changes.

What we're seeing now is the build back -- building back up of the case loads and we have had, too, significant increases of litigation because of certain substantive changes in the law, primarily the abolition of immunities of all sorts, which have brought in a great amount of the litigation and the Unfair Trade Practices Act, a great many acts of the General Assembly and decisions of the Supreme Court have opened up more avenues for litigation. And so we're being faced and challenged constantly almost on a monthly basis to learn new laws and find out what these things mean. The Omnibus Crime Act, or the Reclassification of Crime Act, all these things, the contributory negligence, consideration of the comparative negligence which we had to learn all over again, so it's been a constancy in learning that we've had to undergo. I think there's been more movement in that area than probably at any other time that I can recall in the law.
Q. While you've been on the bench, what's been your most challenging case and why?
A. I think the Presbyterian Church litigation case. It was a nonjury case and we had some outstanding lawyers in there. It was of national concern because the issue presented as to how it was that dissidents could withdraw from the Presbyterian Church and if so, who owned the church property. And it was an interesting case and I just loved doing research on it and write an opinion which you have as a part of your material there.

The result was so striking when you look back at it, when 39 people could control the church property were out of a congregation of 700, which was a result of it. And when you think of that kind of result, you know it took some really digging to be able to justify that. And I was perfectly satisfied with the result and I'm happy to say that opinion was never appealed. It was the law in the case and I was told there was no basis for an appeal because I had covered all the holes in it and there was no need to it. I was really happy with that and proud of it.
Q. What advice would you give to new lawyers just starting out?
A. Well, new lawyers just starting, if you haven't learned already go to night school or trade school, learn how to use a computer. When you learn to use your computer, buy a lap top.
Q. Everybody needs a lap top computer?
A. Yes, indeed.
Q. What is your opinion, Judge Baggett, about the proposed Rules of Evidence, the new Rules of Evidence, statutory Rules of Evidence?
A. I haven't studied them. I couldn't tell you to save my life to be honest with you.
Q. Do you think that they're necessary? The Court is discussing coming out with Rules of Evidence.
A. I haven't studied them. I couldn't possibly tell you that.
Q. Have you served as an acting appellate judge?
A. Yes, I have.
Q. And your experience there, how has it been?
A. Well, it was real interesting. Rather awesome. I think I've sat on about four cases, the latest of which was a Thrift case which was a tremendous case. We met many times on that. And it was a wonderful experience. I thoroughly enjoyed it. I think I'd really -- the Thrift case, in particular, convinced me that I would enjoy being on the Supreme Court.
Q. What is your philosophy of the appropriate demeanor for the judge in a courtroom, in his courtroom?
A. How you conduct your court?
Q. Yes.
A. You mean in the courtroom? I believe the -- a court is somewhat like a church. It's a shrine of sorts and I think unless you have the proper decorum and respect that people are not going to respect the law. I think that includes keeping the noise down, limiting access, requiring proper dress, proper manners of judges and the lawyers and having witnesses of that sort and I think that's important. I recently wrote a little article that was published in the Trial Lawyers Magazine concerning that subject and I enjoyed doing that because I may have been accused of being a little old fashion about some of the things that were put in, but I do think they're important, giving the proper respect to the court and to the law and so I think that's speaks about as well as I could say about that.
Q. What qualities of the term judicial temperament are your strongest?
A. I think courtesy is one of them and a sense of constancy and seeking to be fair, trying to find the right result to do justice and that's a very difficult thing to do in many cases. But my ambition, as I perceive the law to be, is to do justice to the case we have before us.

I mean justice is a very fleeting thing. It depends upon the mentality and the judgment of people. Justice, I submit, is almost a divine concept and what little wisdom we're given imparted to us to try to accomplish that, I think, is a very difficult thing to do, but I think open-mindedness and fairness and honesty in all that you're doing are the keys to that.
Q. Are there aspects about being on the Circuit Court bench that you would miss if you became a new associate?
A. Well, the contacts, the people, lawyers, the courthouse people. I've been in every county in the state. I've met some wonderful people. I've had some great experiences. I'd miss that, that contact. I really will.

But I will say this, though, the grind and the stress of the Circuit Court will not be missed by me. I want to say that pretty clearly. Every day you've got to go meet new challenges, every day you're going to have to sentence people and a week goes by, and you sentence a hundred people or so and you have to decide each case individually, it's a stressful job and I don't particularly -- I don't -- I'm not going to miss that aspect of it.

I'll miss the fellowship of it, but I think the less stressful job of an appellant court will be very nice.
Q. Right now, Judge Baggett, how do you deal with that stress?
A. I've had the good fortune of being able to cleanse my mind as I go home every day. I sort of flush it out, all those things that have been bothering me and I start over new, every day with a new mind, a new mind, unless it's something really deep. I don't let it bother me. I shed it all and take it off when I take my robe off and I go home and deal with that and my wife is very considerate of me. We've been married for 50 years and she knows me and we just get along fine and we just don't have any problem with that.
Q. We have looked at the 30-day report and you don't show -- 30, 60 and 90-day report, you don't show any cases outstanding for the period --
A. No.
Q. -- that we were looking at. Also, could I ask you how you remain current? Could you describe your work habits?
A. Well, I haven't had a lot of nonjury work lately. Most of my work has been in General Sessions criminal work and so as a result of that, you don't have any reason to have anything overhanging.

I believe that the best time to make your decision is when you've heard something. And if you hear it, you're never going to be in a better position to make a decision than you are right then, assuming you've got the proper law briefs and things that you're ready to do it and so I make my decisions.

Generally speaking, I will direct the attorneys -- the prevailing attorney to write the opinion, submit a copy to opposing counsel and then submit it to me for final approval in the ordinary case.
Q. You did mention an article you wrote for the Trial Lawyers magazine. Have you participated in the presentation of other CLE's or the writing of other articles?
A. I wrote a little article for South Carolina Circuit Judges Association, which was sort of private, but I wrote a little thing about the circus, a little just thing -- a thing about taking my granddaughter to the circus was published in the Florence paper, but I like to write. And I think I'm going to be doing more of that in the future. I've not written anything other than what you referred to.

I used to take part in JCLE's a good bit as a panelist and I've been to -- I spoke to the trial lawyers on some issues of capital murder cases and opening statements to the defense bar. That's about it.
Q. What is your philosophy about ex parte communication, sir?
A. Well, obviously, we all know now that's taboo, that you cannot do it. I mean we don't do that. I can recall one time as we were talking as I was listening here, I had a multiparty, multi million dollar environmental case that had been pending in Lexington County for about six years. It had been specially assigned. I tried to get rid of it.

I called a settlement conference and I used one of the devices that is used in arbitration and in mediation and I asked each side would they agree to let me speak to each side separately in an effort to try to resolve it. And they agreed and it was very helpful.

I would take the parties, the lawyers off to the side and talk about it and see how we could come to a conclusion on it, send him out, take the other side in, talk to them and then try to bring them together. I came awfully close to do doing it. And two years later, the same method was used and it was settled by someone else, multi million dollar settlement. That was an exception, though.
Q. Your son is, as I understand, a lawyer in Greenwood?
A. Yes. That's correct.
Q. Does it ever occur that you need to recuse yourself in any of those cases?
A. No. I never -- he practices in the Greenwood area. The only time that we have that is I may hold court in Saluda or McCormick and I never hear anything from him at all. When it comes to other cases from his firm, I tell the lawyers involved to ask the -- to tell your client that a member of this firm -- that the judge is a father of a member of the firm, that if they have any doubt about the problem whatsoever, I'll recuse myself, otherwise we go ahead and do it.

I do that because we are -- in my little county, we have such little court and we have got to dispose of the cases, but I let them know what the relationship is. My son never appeared before me, but the other members of the firm, I let them know in advance and then they make the decision what they want to do.
Q. Do you see this changing in any way when you -- if you move up to the Supreme Court?
A. No. No. Not at all, except I wouldn't hear anything out of his firm at all.
Q. What is your policy about accepting food and meals, social hospitality from attorneys?
A. Well, I just don't have any problem with that. I don't get any offers of it anymore. So there is no harm, no problem, just like perhaps you folks. It's not a problem. Not a problem.
Q. You and I will go out for coffee later.
A. Okay. Okay.
Q. Judge Baggett, what are your ethical considerations about participation in extra -- I want to call it extracurricular. That's not the right word. Extrajudicial organizations, social organizations or -- community group?
A. Counselor, I almost live in a monastery. I didn't realize it at first what it was like to be a judge, but I soon learned that whereas most of my friends were lawyers, I could no longer have them in that kind of relationship. I dropped out of all clubs except my Masonic order, where I'm now a life member of the Blue (phonetic) lodge. That's all I do, and my church.

Now, I don't have anything to do with anything else. Nothing. I don't belong to a country club. I don't play golf. I don't do any of those things.
Q. Do you see yourself becoming more of a monastic lifestyle kind of person being on the Supreme Court? Would that make it an even more sequestered --
A. I don't think so. I don't think so. Don't misunderstand me, I'm not without friends. And I have a large family, but I don't see that's any problem. It won't make any difference, which is not to say that I don't necessarily enjoy that.
Q. Do you have a letter of recommendation, Judge Baggett, from the Lexington County Bar?
A. Uh-huh.
Q. Or from the president rather --
A. The president, that's correct.
Q. From the president. Could you explain that, how that came about? Did you ask him for that?
A. I asked -- we needed five letters and I find it awkward
-- you know, ya'll said don't use lawyers that appear before you on a regular basis. And lawyers are the ones that I know better than anybody else, so I asked the president what he thought about it.

They first wanted to pass a resolution and I said don't do that. You've got to wait until the screening takes place and then you can consider it, after the report is made. But I said if you all want to do anything, poll your Executive Committee and if you want to make a recommendation as opposed to an endorsement, that'd be fine with me, but I needed some -- needed letters and so that's how that came about.
Q. That's all I have.
THE CHAIRMAN: Questions from the Members? Thank you, Judge Baggett.
A. Thank you.

ADDENDUM TO TESTIMONY OF JUDGE BAGGETT:
March 31, 1994
The Honorable James H. Hodges
Chairman
Judicial Screening Committee
211 Gressette Building
Post Office Box 142
Columbia, SC 29202

Dear Mr. Chairman:

I appreciate the opportunity to appear before the Committee last Tuesday and am grateful for the courteous treatment given me.

A question was asked of me by counsel for the Committee as to what I thought of a proposal of the Supreme Court to provide official rules of evidence. I responded that I had not read them and therefore could not comment on the subject. I felt dumbfounded by not being able to answer what appeared to be an appropriate question.

I later had an opportunity to discuss this with Ms. McNamee, counsel for the Committee, and we both agreed that there was a misunderstanding of the question.

Upon further inquiry of Chief Justice-Elect Chandler, I find that the subject of adopting official rules of evidence has been and is a subject of long study and there have not been any publications of the proposed rules.

Obviously, this explains why I could not answer counsel's question. I certainly do not mean to criticize her at all.

If possible, please make this a part of the record.

Respectfully,
/s/Julius H. Baggett

END OF PRIOR TESTIMONY OF JUDGE BAGGETT.
THE CHAIRMAN: Our next candidate is Judge Randall T. Bell. Would you come forward, please.
RANDALL THERON BELL, having been duly sworn, testified as follows:
THE CHAIRMAN: Judge Bell, your last screening was February 23, 1989 and that was for a seat on the Court of Appeals that you currently hold. Have you had a chance to review your Personal Data Questionnaire?
JUDGE BELL: I have.
THE CHAIRMAN: And is it correct?
JUDGE BELL: It is correct. As an afterthought as I was looking, not at the Summary that this committee had done, but at the full questionnaire, it occurred to me that it is of some relevance to the question the committee and the General Assembly have to decide what kind of practice experience a judge had. I have furnished to counsel for distribution to the committee, if you want it.

I realize the committee cannot -- members cannot read every document in this record. You have to rely on a very competent staff to sift through it and summarize the important things, but these are available to you. It is simply a copy of four pages of my screening questionnaire 15 years ago when I was offering for another seat and it does outline some of my practice experience.

Let me emphasize also that sometimes people think that because your experience in private practice is with a large law firm that you don't understand something about practice in small law firms or because you do some arguments in the US Supreme Court that you don't understand anything about what goes on in a Magistrate's Court in South Carolina.

I was the head when I was in private practice of something called the Appellate Litigation section in my firm. That's something of a misnomer because about 70 percent of our work was trying cases in the trial courts, about 30 percent was appeals. And a lot of -- although the firm that I was with had a lot of big sort of Fortune 500 clients, the work that I did there was not -- I represented some of those clients.

I did both things for them on the transactional side of the practice and on the litigation side of the practice, but a lot of my work was because I was associated either to help in a trial or an appeal by a sole practitioner in a place like Saluda County, something like that. I did a lot of work with lawyers who were in small counties and have one- or two- or three-man practices, small law firm practice.

I also represented school boards, county councils, city councils, public service districts in these little counties and so the impression that because I was in a firm that had a lot of big clients is that somehow that I either have no experience or I have some bias towards that kind of practice or that kind of litigation. I think it's not consistent with my record and I thought that might be something the committee should know and the General Assembly should know.
THE CHAIRMAN: Do you have any objection to our making your Personal Data Questionnaire a part of the record at this time?
JUDGE BELL: Not at all. I have reviewed it and it's accurate.

1. Randall Theron Bell
Home Address: Business Address:
2421 Owl Circle S. C. Court of Appeals
West Columbia, SC 29169 P. O. Box 11629
Columbia, SC 29211

2. He was born in Shelbyville, Kentucky on January 11, 1945. He is presently 49 years old.

4. He was previously divorced: October 21, 1976; Linda A. Bell (moving party); Family Court of the Ninth Judicial Circuit (Case No. 86-DR-10-3372); one year's separation. He married Pamela Stratacos on May 17, 1987. He has three children: Esther Hart Bell, age 24; Thomas Neil Eddins (stepson), age 19; and Phillip Mark Eddins (stepson); age 17.

5. Military Service: Captain; U. S. Army Reserve; 1967-1975; SN 05 251 830; Honorable Discharge

6. He attended the College of William and Mary (Williamsburg, Virginia), 1963-1967, A.B.; Oxford University (Oxford, England), 1967-1969, B.A., M.A., 1973; and Harvard Law School (Cambridge, Massachusetts), 1969-1971, J.D.

8. Legal/Judicial education during the past five years:
He has substantially exceeded the requirements for judicial continuing legal education during the past five years. In addition to attending continuing education seminars, he teaches them on a regular basis.

9. Taught or Lectured:
He has taught at the USC School of Law, the National Institute for Appellate Advocacy, and at continuing legal education seminars too numerous to list. Subject areas he has taught include contracts, legal and equitable remedies, criminal law, family law, civil and political rights, torts, damages, appellate advocacy, English legal history and Roman law.

10. Published Books and Articles:
(1) Bell, Randall T., "The Craft of Writing a Brief," South Carolina Lawyer, July/August 1990, at 11.
(2) Bell, Randall T., "The Lawyer as Guardian," Volume XI, Social Responsibility: Business, Journalism, Law, Medicine (1985).
(3) Bell, Randall T., "To Write a Brief . . .," in Appellate Advocacy 109-127 (P. Carre, A. Ntephe & H. Trainor eds., 1981).
(4) Bell, Randall T., "Litigation against South Carolina Law Examiners," 43 The Bar Examiner 23 (1974).

12. Legal experience since graduation from law school:
Sept. 1971 - June 1972 Special Counsel to S. C. Attorney General
June 1972 - Aug. 1973 Assistant S. C. Attorney General
Aug. 1973 - Jan. 1980 Law Professor at USC School of Law; private consulting on trial and appellate litigation
Jan. 1980 - Aug. 1983 McNair Law Firm, head of appellate litigation section
Sept. 1983 - present Judge, South Carolina Court of Appeals

13. Rating in Martindale-Hubbell: N/A

20. Judicial Office:
Judge, South Carolina Court of Appeals. Elected by General Assembly of South Carolina; June 27, 1983; qualified September 1, 1983; serving to present. General appellate jurisdiction with exception of cases exempted by S. C. Code Section 14-8-200(b)(Supp. 1993).
Acting Associate Justice, South Carolina Supreme Court, by appointment of the Chief Justice of that Court.

21. Five (5) Significant Orders or Opinions:
(a) Howard v. Mutz, ___ S.C. ___, 434 S.E.2d 254 (1993).
(b) Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 797 (Ct. App. 1991).
(c) Snakenburg v. Hartford Casualty Insurance Company, Inc., 299 S.C. 164, 383 S.E.2d 2 (Ct. App. 1989).
(d) Harper v. Ethridge, 290 S.C. 112, 348 S.E.2d 374 (Ct. App. 1986).
(e) Wardlaw v. Peck, 282 S.C. 199, 318 S.E.2d 270 (Ct. App. 1984).

23. Employment As a Judge Other Than Elected Judicial Office:
Adjunct Professor, 1983-present, University of South Carolina, School of Law, teach part-time, Dean John E. Montgomery

24. Unsuccessful Candidate:
He ran unsuccessfully for the Criminal Court of Appeals in August, 1979.

39. Expenditures Relating to Candidacy:
None. These expenses will be reported to the Chairs of the Senate Ethics Committee and the House of Representatives Ethics Committee in compliance with S. C. Code Ann. Section 8-13-920.

44. Bar Associations and Professional Organizations:
South Carolina Bar; American Law Institute; American Judicature Society; American Society for Legal History; Supreme Court Historical Society; Selden Society; Societe du Jean Bodin; Richland County Bar Association; Phi Alpha Delta

45. Civic, charitable, educational, social and fraternal organizations:
Northside Baptist Church, deacon; South Carolina Wildlife Federation; Riverbanks Zoological Society; Friends of S. C. State Museum; Columbia Museum of Art; South Carolina Historical Society; South Caroliniana Society; Harvard Club of South Carolina; South Carolina Rhodes Scholarship Committee, Chair

47. Five (5) letters of recommendation:
(a) W. W. Johnson, Chairman of the Executive Committee
NationsBank
P. O. Box 448, Columbia, SC 29202-0448
929-5402
(b) Thomas H. Pope, Jr., Esquire
Pope and Hudgens, P.A.
P. O. Box 190, Newberry, SC 29108
276-2532
(c) Harry M. Lightsey, Jr., Esquire
McNair & Sanford, P.A.
P. O. Box 11390, Columbia, SC 29211
799-9800
(d) Honorable Matthew J. Perry, Jr.
United States District Judge
1845 Assembly Street, Columbia, SC 29201
765-5408
(e) Honorable George T. Gregory, Jr.
P. O. Box 99, Chester, SC 29706
385-2164

2. Positions on the Bench:
South Carolina Court of Appeals; 1983-present; Seat No. 3

10. Extra-Judicial Community Involvement:
He is active in his church. He has not used his judicial office to further this or any other extra-judicial activity.

THE CHAIRMAN: The Board of Commissioners on Grievances and Discipline reports no formal complaints or charges have been filed against you. The Judicial Standards Commission has no record of reprimands. We have checked with the appropriate law enforcement Agencies: Richland County Sheriff's, Columbia City Police SLED and FBI. All are negative. The Judgement Rolls of Richland County are negative. Federal Court records show no judgments or criminal actions against you.

There was one civil rights action brought against you and others and dismissed in 1989. We have no complaints or statements that we've received. No witnesses present to testify against you.

Prior to turning you over to Mr. Elliott for questioning, he has handed me an opening statement that you've passed forward. You're welcome to read that into record or we can make it a part of the transcript of record, either way.
JUDGE BELL: With the committee's permission, I would like to make the statement.
THE CHAIRMAN: Yes, sir.
JUDGE BELL: I have provided copies to the members if they wish to look at it and I would have the committee to make it a part of the record of these hearings.
THE CHAIRMAN: All right, sir.
JUDGE BELL: Mr. Chairman, I was pleased to see an article in one of South Carolina's leading newspapers the Sunday before last. The article was about an upcoming election of two new justices to our Supreme Court. It gave a summary of the experience and the qualifications of each of the judges that's being screened by you today for this seat.

I was pleased to see this article because it had something positive to say about every judge offering for this seat. There was not a negative comment in the whole article about any one of these judges. We're not an unusually photogenic group, but they had a nice picture of each of us. I've heard many legislators talk about, "They printed that picture of me," when they were running an article perhaps criticizing a position you had taken on appeal. And there was not, I think, a bad photograph of any of us. In short, Mr. Chairman, it made us and this screening process look good.

Mr. Chairman, as you well know in the past, the media have not been afraid to publish strong criticism of judges, courts and judicial screening and I'm sure that they will continue to be watchdogs, and they should be, on the judicial system in the future. That this newspaper ran such a positive article should remind us of an obvious fact. Each of the judges here today comes before this committee with something good to offer.

I know each of these judges personally. I see their work day in and day out because their decisions come to the Court of Appeals where I work. I tell you that without exception, Mr. Chairman, I am proud to serve with these judges.

Mr. Chairman, this committee has taken seriously its statutory duty to find qualified judges for the courts of our state. The record of recent years also demonstrates that the committee has carried judicial screening beyond the initial question, who, is qualified, to the ultimate and more important question, who will best strengthen our existing Supreme Court.

Who will best strengthen our existing Supreme Court? I think that we can all agree that question does not have the same answer in every judicial election.

It is important to recognize that the Supreme Court is a collegial court. It has five members. It is not like the trial courts that my six colleagues sit on. In the trial court, there is only one judge. We have the strongest and best Supreme Court when its members are well balanced in terms of individual knowledge and experience.

Let me give you an example. If we're filling a seat and the four sitting justices already on the Court, all are former legislators and trial court judges, do we get the strongest and best Supreme Court by choosing a fifth person who is also a former legislator or trial judge when we can elect the person with an equally strong, but different record of experience.

If the sitting justices were all former law school professors, would we get the strongest and best Supreme Court by electing a fifth law professor? If the sitting justices were all former prosecutors, would we get the strongest and best Supreme Court by adding another outstanding prosecutor instead of choosing an outstanding lawyer in a private business practice.

The point is obvious. We are asking the wrong question if we argue over which experience is more valuable. Each has something valuable to offer. The more important question is which of these candidates, all with different backgrounds and experiences in the law, would bring to the Court qualities that are not already there.

Mr. Chairman, a great baseball team does not consist of nine great pitchers or nine great batters or nine great outfielders. A great baseball team consists of nine members, each of whom excels at his position.

Let me close by saying this. I think all of us would agree that as a result of changes in this committee's screening process, there is more public interest in judicial elections than at any time we can remember. This used to be an insider's game. You have changed that. Now, the voters of South Carolina are watching to see whom you will elect.

I am confident you will not disappoint our people. Thank you, Mr. Chairman. I'm ready to answer any questions the committee wishes to ask me.
THE CHAIRMAN: Thank you, Judge Bell, and your statement will be incorporated into the record.
JUDGE BELL: Thank you, Mr. Chairman.
THE CHAIRMAN: Mr. Elliott.
MR. ELLIOTT: Thank you.
JUDGE BELL - EXAMINATION BY MR. ELLIOTT:
Q. Good morning.
A. Good morning.
Q. It's nice to see you. One of the things we want to start off with is that you have an interesting educational background. If you don't mind, would you review that for the committee. It's in the materials you've supplied, but would you briefly review that for the committee, please.
A. Okay, for my primary and secondary education, I was --
Q. Excuse me.
A. -- I was educated in the public schools. I went to college at the College of William and Mary in Virginia. They celebrated their 300th anniversary last year and we all went up there and had a great big birthday party. It was a lot of fun.

My legal training was first at Oxford University in England. I read law there, which is unusual for Americans who study there. They usually read in Political Science or Literature or something like that, but I did read the law and so I have a law degree from Oxford University.

And then I came back to this country and studied law again at the Harvard Law School and I have a law degree from each of those. I would say that I not only went to those schools, which are very demanding schools -- and let me say that the reason I had that opportunity was because other people helped me get those opportunities and I was determined, because I knew that, to take advantage of them and so I worked hard.

They're very demanding schools, all three of them, and I think the evidence of that is that I graduated not -- I just didn't graduate from those schools. I graduated from every one of them with honors. But that's basically my educational background.

Of course, professionally, I regularly attend CLE's and those kinds of things, but in terms of my academic background, I think that summarizes it.
Q. Thank you. You mentioned earlier about some of your litigation experience and I don't mean to dwell on this, but you also had some experience apparently right out of law school with the Attorney General's Office, and I know that's sort of the ancient past?
A. That's right. I was an Assistant Attorney General under Dan McLeod, one of the finest public servants I've ever known. He taught me a whole lot about what it means to serve the public. And I was there for a little over a two years. I was then sort of recruited away to the law school.

And during that time, I did all kinds of things. I appeared in federal court a lot. I also did -- and I look back on this and see that this is really what gave me the experience I needed. I did a lot of nickel and dime stuff.

I learned to be a trial lawyer by doing two things up there. One is trying lots of highway condemnation cases. Now, those are not complex or particularly original in terms of the law that's applied, but I tell you, it's a good experience for a guy who went to the law schools I did to have to face a jury in Cherokee County and tell them why the Highway Department shouldn't be punished for taking half of their neighbor's farm. And I think that taught me a lot about the practice of the law.

Another thing that I did, which was sort of the nickel and dime variety, but it taught me to try cases before a jury -- most of you probably don't remember, but we used not to have full time solicitors. Senator Saleeby certainly remembers this. The solicitors by and large were part-time practitioners who also handled General Sessions in their county. And sometimes -- let's say there was a solicitor down in Manning, sometimes there would have been a big wreck out on I-95 and he had that wreck case and there was going to be a civil term of court up in Florence where that wreck was and it was scheduled at the same time he was supposed to hold General Sessions in Clarendon County. The practice in those days was for the solicitor to call General McLeod and say, "I can't handle this term of court. Can you send one of your assistants down to handle the term of court?" And guess who got to do it? It was always us guys at the bottom of the totem pole. And J.C. Coleman or somebody like that wouldn't be called to do that unless it was a big case.

And so we went down there and we got to try all the trash cases that the solicitor didn't want to bother with while he was trying, you know, a case in which maybe he would make a $50,000 verdict and be able to support himself in law practice as a solicitor. And we got to try all of these nickel and dime cases that the Solicitor couldn't plead off and that was a very valuable experience.

Again not because it taught us a lot about the theory of the criminal law or anything. Most of them were pretty open and shut on the law, but it made us stand up, it made us deal with people who sometimes only had a fourth grade education or something like that. We learned how to work with these people as witnesses, as adverse witnesses. I learned an awful lot about South Carolina juries, who were basically in these small counties, just a cross-section of people who live there.

That is a valuable experience for you not only as a human being, but it's an excellent preparation for going in later on and trying the big cases or even arguing an appeal in the United States Supreme Court. And I'm glad I had that opportunity under Dan McLeod.
Q. You mentioned your background as a law professor is one of the things that distinguishes you from the other candidates. How has that benefited you on the Court of Appeals?
A. I'm not going to elaborate on that at length. Every one of us knows that the best way to really learn a subject is to have to teach it to someone else. That is the way that my teaching experience has been valuable to me as a lawyer. I know a lot more law than I knew coming out of law school because I had to teach. And as the committee knows by looking at the record, and I won't repeat this because it's already before you, I taught in many areas.

I taught criminal and civil; I taught procedural and substantive. Bruce Littlejohn always reminded me, I taught a course in Roman Law and he has some things to say about that, but I hope the committee and the General Assembly won't hold that against me.
Q. What is it that you enjoy about appellate work especially from the perspective of the judge?
A. I wouldn't confine it to appellate work, but first is the challenge. It's just plain interesting to me and I don't fault someone -- my wife, for instance, is not a lawyer and she doesn't care about it. She probably has a lot more sense than I do, but I'm made up a certain way and I just like this stuff. I like it because it's a mental challenge. I'm probably a little bit too competitive by nature and I like it because it's a contest. It's a contest. It allows you to measure yourself against someone else. And the contest is always best when you're up against a very good lawyer on the other side, so I enjoy that. That's true of trial work and appellate work.

Now, there is a dimension to appellate work that you don't get in the trial court and that is you really don't dialogue very much with the judge in the courtroom. He usually makes the rulings on important questions of law and so forth in Chambers either before the trial or during trial.

When you go in an appellate court to present an argument, all you do is stand up and, again, you talk with some good solid lawyers who are up there and they're asking you questions. You're on the witness stand in an appellate court. And it's a test of your ability to think quickly on your feet. It draws on the fact that whether you really understand the law on the points you're arguing in this case, that is, what kind of background you have in terms of your education, your experience and so forth. And although it's a very serious business, I think it's fun. I think it's fun. One thing I always liked about Alex Sanders was that he realized that humor of which he has an abundance is just a funny way of thinking about life, which is a serious business. It's a funny way of thinking about serious things.
Q. Why do you want to make the move from the Court of Appeals to the Supreme Court?
A. Two reasons. I've been on the Court of Appeals ten years and I think I've made most of the contribution I can make. I came on that court as one of the original judges. We had a blank slate. We had to write the script for that court and that was a good process for us. Although, it's good to come on a court like the Supreme Court that has traditions and its own way of doing things and that's sort of a check on some of the wild hair notions that each of us probably has as individuals. You had basically responsible, sober people elected to that court.

The General Assembly created a great court when they elected those six judges, a really great court. And we had work to do to establish how that court would operate and so on and so forth. In some cases because the Supreme Court had never answered a question of law that came before us, we got the first shot at answering it. And that required us to be thoughtful and deliberate in what we said because we knew the Supreme Court was going to grade our paper. You know when an important question is involved in a case and it's going to go on to the Supreme Court. Or you know when you have two parties for whom money is no object and they're going to take it on to the Supreme Court. You know those things.

And so that was one task we had to do. That task has been completed. I think one reason Judge Sanders left the court to make another kind of contribution is because he realized that he had made a good contribution to that court and it was really at the point where it was the law of diminishing returns, so that's one thing.

Secondly, I think the change would be good for me personally. All of us are human. We tend to get in a rut and start developing a certain way of looking at things and doing things. And on a collegial court, I think nothing is better for you than to move over to another group of very good judges who do things differently and perhaps look at the law a little bit differently. That stimulates you. That makes you question your assumptions and so forth and we want judges to be doing that.

Let me say as an aside that you gave us two new judges last year. You made excellent choices and I'm not saying anything against the people who weren't elected because they were good candidates, too. But we had never had a circuit judge on our court. We now have two former circuit judges. It makes the point I was making in the opening statement. That has added a dynamic.

It's not that we were a bad court because we didn't have any circuit judges because four of us came directly out of law practice and two -- the other were Family Court judges, they're excellent judges. I think we've tried to do our best, those of us that came directly out of practice. But you've given us a different dimension. Those judges think a little bit differently. In fact, we have to keep reminding them, and they've stopped now to where we don't have to do this, but at first we kept having to remind them there is no jury in the Court of Appeals and you don't look at this the way you -- in evaluating the lawyer's argument, you don't look at it the way you would evaluate his jury argument and so forth, but the point is that they bring things to the court that weren't there before and it's been good for us.

One thing it's done is it's been a counterbalance against the natural human tendency. When you have six judges that have been together for nine years, they tend to start thinking more like -- and tend to think today the same way they thought last year and the year before that.

I don't have to tell this committee, society is changing at a very rapid pace nowadays and the law is changing more rapidly then it used to because it has to deal with real problems in society. It is good in this day and age when you get some new blood.

Now, let me say, I think it is fortuitous, but it was also a very happy circumstance that the six original judges served together for nine years without any turnover. We needed that because the court was brand new and it needed more of that continuity than you would need later on, but it's true with any court including the Supreme Court.

You want a good deal of continuity. You don't want too much turnover, but then again you don't want too much stability either.
Q. Has the preassignment of cases effected the quality of deliberations in the Court of Appeals?
A. I anticipated that question might be asked because it was asked when there was screening for the Court of Appeals. I am respectfully going to ask that the committee not insist that I comment on that. That's an important concern of the legislature, don't misunderstand me.

Mr. Chairman, you chair another committee which would be a great committee that -- I've never been called before a legislative committee to say anything about the court system or the substantive or the procedural law, but I think it would be a great opportunity and I will tell you now, I would be quite willing if invited. I'm not volunteering for it. But if some subcommittee chairman, the appropriate one of your subcommittees wished to inquire into those kind of things, I will give you honest and forthcoming answers within the bounds of judicial ethics.

There are some things judges can't talk about. We can't tell you what Judge Shaw thought in a conference in Roe against Doe. But those things that we are permitted to comment on publicly, I would be more than willing to appear, but I would suggest to the committee and, of course, you have to make the judgement, Mr. Chairman, but I would suggest to the committee that might be a more appropriate forum for those kinds of questions.
Q. Well, are you comfortable answering a question about how you prepare for cases that are not preassigned to you?
A. I will say this, and I'm not trying to duck. I will be responsive to the question.
Q. I understand.
A. Naturally, it's changed. We started out one of our main reasons for existence was to reduce the backlog. It used to from the time you filed a brief in the Supreme Court until you got heard was an average of 38 months when we started three and -- three years and some. And in some cases it was five years before you got to argue it. And then sometimes after you had been heard, it took you a whole year to get the opinion. That was an intolerable situation and the legislature saw that and wisely created the Court of Appeals.

And one thing we had to do was reduce all those cases that had backed up in that system because the Supreme Court had -- couldn't handle them. You expanded the trial court system by almost doubling the number of Circuit judges by adding a whole new system, 46 Family Court judges, and then no change was made in the Supreme Court. Obviously, the Supreme Court became a bottleneck on the system.

The General Assembly saw that and wisely set up the Court of Appeals, and so originally we had to handle that work load. We sat in cases, and this is not good, but we had to do it, 12 months a year. We held a term of court every month and we were writing opinions year-round. We did that for three years and got rid of the backlog, but I can tell you that all of us were simply burned out by that time.

After that, the docket, the appellate docket, stayed pretty stable for a while and the Court of Appeals averaged around 360 dispositions a year, about 60 opinions per judge. We, unlike the Supreme Court, had to write a full opinion in every case. And so 60 opinions is gracious plenty if you want the judges to do a good job. If you want them to sort of glance at the case and pass a benediction over it, a stamp censored or whatever you're supposed to do, okay, but if you want us to hear an oral argument in the case, study the briefs and records and work on our opinions, that is plenty of work for us.

About a year and a half ago, the Supreme Court, because of the case loads -- since then you've added nine more Circuit judges -- life is getting more complex and more and more people come in and sue instead of talking it out with their neighbor or having other institutions in society which used to handle a lot of this, your club or your church or whatever. A lot of that gets dumped into courts now and the Supreme Court a couple of years ago told us, "We know there are only six of you. We can't give you one additional staff member," and they have not. "We can't even give you a computer system, but you have to dispose of a minimum of 600 cases a year."

It's no secret that when you have six people who are ratcheted from about 360 cases a year up to a minimum of 600 cases a year, the work is going to change, the opinions are going to look different.

We had, for one example, to completely reorganize our staff, our legal staff. We have five staff attorneys. They have been doing one type of work in the years where we had the other case loads. If we had to keep doing that, we would be probably in a year and a half to two years behind on our docket now. We knew that we had to rethink that and it took some hard thinking, and I'll tell you that the six of us didn't agree, but we worked long enough -- and this is another advantage of all of us having been together as long as we
have. We worked on it hard and reached a consensus which everybody agreed was a practical solution, if it wasn't every judge's optimum solution.

We put that into effect. We had to -- experience is a good teacher and there were some bugs in the system for the first three months. We modified it to do that and I can tell you that it's working today and even though we only have six judges and we only sit in threes, not -- the whole court doesn't sit together like the Supreme Court. We sit in panels and we still only have five staff attorneys and we still only have one law clerk when we could use two, we're current.

I'll give you an example, so you see what I mean. We just finished our April term of court. The cases, most of the cases that we heard were cases in which the last brief in that case, the last brief in that case, was filed in February. We're hearing them in April. On the panel I presided on, we had about 30 cases for April, about 20 of those opinions are already filed. They're in the Clerk's office. We're still working on some of the others that were a little bit more difficult and you can't treat every case alike, but that's what we're able to do.

Let me say that I don't mean for the General Assembly to get complacent and say, hey, they're real current and all of this. If we have to take any additional cases, and the Supreme Court told us that we want to give you additional cases. In fact, three or four years from now, we'd like for you to be handling about a thousand cases in the Court of Appeals. We will have to have other judges. But I'm not going to take a position on what the General Assembly should do about that. I'm not elected to makes those decisions, to spend the public money or to staff the judiciary or DSS or any other agency or any other branch of government.

You are, and I have confidence that you will do the best you can when you have literally hundreds of different people say, "My thing is more important than somebody else's." It's the same process as saying I'm better than some other judge.

What you should be asking is what's best for the government of South Carolina? What's best for the Supreme Court? You can never referee when you only have money for ten things and you have 50 people, you can't referee -- they're all worthy. Some are obviously more worthy than others, but it's self-defeating and it wastes a lot of time and emotional energy when we get into the mind-set the task is to decide whether A's thing is more worthy than B. They're both worthy. What we should be asking is what's best for government in South Carolina because that means what's best for the people of South Carolina.
Q. In your 1983 screening you indicated that one of the things you thought played a part in the backlog of the Court -- courts was a lack of clarity in some judicial opinion writing. Do you still think that is a contributing factor?
A. Again, I'm respectfully going to ask the committee not to demand that I answer that question. The reason is that our judicial system in the circumstances is doing the best job that I think it can. If we want to improve the system, the General Assembly, of course, has to look and decide if we need additional resources and you have all these other things to look at, too. But we don't make those decisions and it's appropriate that we shouldn't.

Another thing I will not do -- let me say this is the Supreme Court grades our papers just like we grade the trial court's papers. Sometimes I personally agree, or as a judge, agree with what they do. There are sometimes when I don't agree with what they do. And we have the same prerogative that parties do, which is after the case is over, you can go down to the tavern with your lawyer, have a drink and cuss the judge. And we get cussed plenty by our brothers on the Circuit bench. We know why they do that. They're frustrated. They're overworked. Nobody likes in public to be told that he was wrong about something.

I am not going to comment either on the general performance of the Supreme Court or on the specific cases they've decided or the quality of their opinions or anything else. The court system and judges are taking too many negative shots today. Let's recognize what that newspaper article did, which is the system is not perfect and it never will be. We are moral, fallible human beings and that's all you have to staff your courts or your legislature or anything else.

But there are some good things looked at objectively, and it's not just my opinion. There are some good things that are being done and I tell you the Supreme Court is doing some good things, they're writing some good opinions. I'm a judge in the system, too. And there is another reason I shouldn't comment is because they are over me and whether I agree with what -- an opinion they wrote, whether I think it was clear as you suggested or not, I am bound to follow it and apply it in cases before me. And that doesn't matter if my view is a better view or not, I am bound to apply the decisions of the Supreme Court.

If I have some trouble understanding what they mean in a case, I'm bound to work harder, to study that case longer until I reach a conclusion. In fact, I'm probably then bound to read other cases they've written on the same topic and say how does this one fit, what's the overall picture, because you don't see a rule of law in one case. Sometimes you do, if they're short clear opinion, and that's it. It's like a headnote in West, and that's great when we have those kind of opinions. But sometimes you have to read a lot of opinions.

I'll give you an example, I have written what I think is recognized as the definitive opinion on something that's called breach of contract accompanied by a fraudulent act, to write that opinion, which is fairly short and fairly lean, I had to study about 25 Supreme Court cases starting back in the Depression in the thirties, or I wouldn't have understood that. Now, I should have done it because it -- there may be nothing wrong with the opinions as such, maybe it's that Randy Bell doesn't have that in his background. I never tried one of those cases. I did teach a little bit about it in the law school. And my job, in that situation, is to hit the books, understand it, ask my law clerk who is also a good lawyer, what do you think about this, go to the other judges on my panel because our decisions are judgements of the court, not of Randy Bell or Bert Goolsby or Bill Howell or Carol Connor. They're judgments of the Court. One of us has to write it as a necessity, but they are still judgments of the court and so I talk to these other people and say what do you think. I never encountered that in practice.

Bert Goolsby was one of the finest criminal prosecutors in this state. He prosecuted cases for 20 years. Do you think I'm going to sit in my office like I'm a monk in a cell when he's on the same panel and there is a criminal question and not go down to talk to him. In fact, I talk to him about it before I hear the case in oral argument. We talk about it afterwards in decision conference. And if it's not a place where I have a background, I just go down and chew the fat with him for an hour. Our Court works that way and that's one reason it's a strong court, but my opinion stated publicly would not be appropriate to say things about opinions by the Supreme Court.
Q. I didn't mean to --
A. And if the committee says we want you to answer it anyway, I would defer to this committee's judgement, but I'm telling you why I'm not doing it. I don't want you to think that I'm --
Q. I understand.
A. -- trying to be sneaky or evasive.
Q. I understand. I just didn't want you to think that was an attack on the judiciary in any way.
A. I do not. I know you. I don't know you well, but I know you to be a competent, professional lawyer and one aspect of professionalism is courtesy and fairness and you are.
Q. Thank you, sir.
A. So don't worry about it.
Q. Thank you, sir. You submitted two letters of recommendation to the committee from attorneys. What standards did you use to select those two attorneys?
A. Let me answer that in this way. I think some people may assume that the committee or the staff doesn't read those letters because after all who are you going to go out and get references from? All your good friends and damn a man who won't lie for his friends and so they're not as much value because do you expect to see anything negative in there? Even if there is anything negative he said about Randy Bell, do you expect to see it in there? No. You expect it to say he's the greatest judge since John Marshall and all of this kind of stuff.

I didn't want those kinds of letters, so I thought about who I should ask and let me tell you before I thought of any individual, I had sort of a profile in mind and I asked myself what kind of people would the committee respect and believe because if you don't respect the person who's writing the opinion and believe them, that's not of very much value in this process.

And let me tell you who I chose. I chose Doctor Harry M. Lightsey, Jr. I chose him for a reason. Judge Lightsey is one of the outstanding intellectuals at the Bar. Put in ordinary language, he's smart. He would be able to tell you something about my intellectual ability and you would believe him.

Judge Lightsey has seen me for years. I've known him for years. We're friends, but let me say this about all of these people, I have never played a round of golf with any of them, I've never taken them up on a tennis match, I have never stayed overnight in their houses or any of that. We are professional friends and personal friends, but we're not people who see each other every day, okay, and all of these people fit in that category. I don't go hunting with any of them. Okay.

Doctor Lightsey, he's smart and you know that and you would expect since he's been president of the College of Charleston as well as dean of the Law School. He was a full-time faculty member over there and also an adjunct professor. He knew me and he's known me for a long time. Why? Because we were on the opposite sides of cases in the reapportionment litigation back in the 1970's, so he knows what I'm like when I'm against you. He also knows my ability to handle something as complex as reapportionment legislation and it's politically sensitive. He was my colleague at the law school. He knows what kind of teacher I was. He was my boss at the law school because he was dean for part of the time I was there. I left while he was still dean to go into private practice, but he knows that. He's seen how I interact in committee meetings and he knows how I taught and what the students thought of me. And he also had an unusual practice.

I said that he's one of the leading intellects of the bar, but he didn't practice in a great big defense firm. Most of his practice was Harry Lightsey, Attorney at Law, or Lightsey and one other person. You can check the record on this. I won't give you the details. But he -- and he also didn't handle a practice which could be called a plaintiff's practice or a defense practice. He dealt with a practice that largely was things like reapportionment, that is governmental affairs or regulated industries. Regulated industries is one of the most complicated and technical areas of the law. And thank goodness that there are Harry Lightseys who are interested in it because I think most of us don't care anything about it. We may care about our power bill at the end of the month, but we don't care about the law and we don't know much about it. Same with tax or patent and copyright. These are specialties. Harry practiced and taught in this area and so he's the guy who knows what it is to try a big case. I'm confident because he's such a good lawyer that when he started out as a junior in the practice of law, he did a lot of nickel and dime cases, but I don't know that, so I won't represent that to this committee. That's why I chose him. I'll be briefer on the others.

Chief Justice George Gregory, now my policy is not to ask a sitting, active judge to say anything for me or to pick me over any other judge that's in -- up for judicial election, but Chief Justice Gregory is retired and he is not like Justice -- Chief Justice Littlejohn who's effectively the seventh judge on our court and has been for three years. He does not sit on cases. To my knowledge, he hasn't sat on a single case since he's retired, trial or appeal.

He was a trial judge for many years. He was on the Supreme Court for 17 years. He was Chief Justice of that court. I have sat on that court a number of times. He not only grades my papers when they come across the street, but I've been an acting justice on his court not once or twice, but many times. Who better would know the kinds of things that you want in a Supreme Court justice than someone like George Gregory. He's not the only one, but he's a person who would know those things. Why? Because he has the experience okay.
Q. Excuse me for interrupting you, but you have outstanding references, but one of the reasons we ask that, and we ask it of other candidates that have attorneys listed as references, are they people who would appear before the court on any kind of a regular basis?

I guess Thomas Pope would probably --
A. Okay. I'll tell you who the others are. Of course, the first three would not.
Q. Not.
A. Harry Lightsey doesn't do courtroom practice now. The fourth one is Tom Pope and I don't mean Tom Pope who was a colleague of some of the senators, but his father. He is a very senior member of the Bar. People have been looking at him as a lawyer for 50 years and don't find much to criticize about him and he does not appear in my court anymore. He has sort of a half time practice now with his age.

The final person is Johnson, W.W. Johnson. He's the CEO of NationsBank, South Carolina. He doesn't come into my court at all. He was a client of ours when I was in practice, so he knows what kind of lawyer I was and if you want to find out about the lawyer, ask his client. They are our most severe critics. Also the committee requires me to furnish a banking reference and I banked at his bank for over 15 years, so he knows if my checks bounce or things like that. And he was in a position to tell you what my credit status was and in a general way, he doesn't know in detail, how I manage my finances. So that's why I chose those people.
Q. Thank you. In your packet that you included to the committee, you included a letter from a Doctor Brannigan and it stated that you're not experiencing any problems at this time, is that --
A. Yes.
Q. -- correct, that effect your work?
A. Let me make two responses to that rather than giving you a full answer. There has been a lot talk about my health and I know that and I've heard some of it. And it's laughable in one sense, but I also have to take it seriously because it creates an image and perhaps it creates an image that somehow I'm a bedridden invalid and shouldn't be on any court.

Because so much of that talk had been circulated over here and I was told people would call me and say are you such and such and so and so, so and so told me this. And so I -- in the letter in which I announced to the General Assembly on January 3rd that I would seek election to the Supreme Court, I took the liberty of laying out in some detail, and we don't need to go into that detail here and probably the committee doesn't have to really know the details, the facts of the case.

I also, although you don't require it on the Personal Data Questionnaire anymore, furnished a letter from my doctor because the supporter of some judge who is running against me doesn't know what the state of my health is. My doctor does. So that's that reason that's in there. The committee members may not have read that.

I know they rely on staff to digest it, but the bottom line is that I am capable of going to work every day as a judge and sitting on cases and writing my opinions. I don't know that I need to add anything to that, but that's the reason I furnished that doctor's letter. If committee members have further questions, I'm happy to answer them.
Q. That's the information I was looking for. The area of receiving gifts from attorneys, how do you approach that?
A. I'm sorry.
Q. In the area of receiving gifts from attorneys, how do you approach that?
A. Okay. My answer and, of course, I heard you a month ago ask all the other judges these questions, so I was prepared to answer this or I anticipated that you would ask that and my basic answer to that is a short one. I play by the rules. The rules are in the Canons. They're in the Code of Laws of South Carolina. These are the people who enact those laws. I'm not -- unless you want me to, I can read the text if the committee wishes or give you citations. I'm prepared to do this, but I don't want to waste your time. I play by the rules.
Q. What is your standard for the appropriate demeanor for a judge?
A. Okay, demeanor, the appropriate demeanor for a judge in my opinion is this, it consists of being prepared on the law when you go to court, it -- you should be attentive while you're in court, you should be courteous to everybody in the court, most of all the lawyers, because lawyers can be very trying people when they're trying to win a case. We're human. They're human.

None of us are our best sometime when we're trying too hard and lawyers can be pretty obnoxious when they're trying hard, but I try to be courteous to them. I try to remember what it was like when I was a lawyer. I tried too hard, too, for my client. And I think that he wants to give each lawyer in his court a maximum chance to win his case.

Now, let me talk about that at the appellate level where I sit. That means that I have to be open-minded on that case. I've studied it and I have a tentative opinion beforehand, but I have to be open-minded, that is, when a lawyer starts making an argument, I don't hear his first few sentences and, ahh, say, there is nothing to that and tune out. I listen open-mindedly to all of his argument.

The second thing is that I know that it never helps for a judge to terrorize or humiliate a lawyer in court and I don't do it. He can't do his -- who of us sitting in this room, judge, legislator or ordinary person, does the best at what he can do well when someone is leaning on him hard, criticizing him openly in front of a jury or in our court, there are no juries, the other lawyers and whoever is in the audience, or intimidate him, so -- and that -- to me, not doing that is part of wanting to give each lawyer a maximum chance to win his case.

That's why we ask them questions, too. The questions we ask on our court are not designed to show we're smarter than the lawyer or that he doesn't know this particular citation from memory or something like that. We're asking him the questions that in our mind will give him the best chance to shore up what we think is a weakness or to improve what is his strength and we need that. Briefs tell us an awful lot about the case, but I'm a firm believer that even if you only have ten minutes to hear an oral argument, you should do it because he can talk back to you when you ask him something.

It's different for a trial judge, may I say. In a trial judge, we want -- there are no juries or witnesses or parties in our court. There are two lawyers standing up arguing, but in a trial court, you want that trial judge to be courteous to the jury, to the witnesses, to the parties. I think you want him to be decisive in his rulings, so he makes a mistake. Sometimes, and we all know this as a general principle of life, it's better to just make up your mind than to be a hundred percent correct, so I think judges -- I think they should know the law well, but I think they should be decisive in courtroom rulings and a lot of courtroom rulings have nothing to do with law. They have to do with the tone of voice in which a lawyer is speaking to a witness or something. The judge is there to sit up and rule decisively, so everybody means -- knows he means it and they obey him.

And the third thing besides being courteous and decisive is he should always and even more in our court, we sometimes ask questions that people might reasonably think means we are all already for one side. We aren't, but we're asking those questions, so that lawyer can give us his best case. The trial judge can't do that. A trial judge must observe an appearance of strict impartiality. We play devil's advocate a lot. A trial judge can never play devil's advocate with a lawyer in front of a jury.

If that's necessary, he should either send the jury out or he should recess and let you go to chambers and argue it. So it's not the same on a trial court as it is in an appellate court.
Q. At the appellate level, how is an ex parte communication most likely to occur?
A. I'll give you the same answer. I follow the rules on that. Let me say on ex parte communications in particular that rather than you taking my word for it, of course, I'm going to say I never have ex parte communication and so forth to this committee. I would like the lawyers of South Carolina to answer that question.

The lawyers of South Carolina graded me in 1985 in a confidential survey. I don't know who answered those questions or what their answers were, but hundreds of lawyers were surveyed, and so you're not just getting the opinion of the guy who lost the case in front of me and thinks I'm a terrible judge or the guy who won a case in front of me and thinks I'm the greatest judge on the bench.

When a lawyer tells you I'm the greatest judge on the bench, just follow the rule I was told to follow by an older judge when I first went on. He said, "You're going on the bench now. Things are going to change. You'll never lose a case again and you'll never have an honest conversation with a lawyer." Okay. But the lawyers here, it was a confidential survey, it was not conducted by the Bar or the Supreme Court. The Supreme Court commissioned it, but it was done by an independent, outside auditing agent that is skilled and experienced in conducting these kinds of surveys.

And in that survey regarding ex parte communications, and it's on my fact sheet as well, they rated me as the best judge on my court and, believe me, this does not imply that all the other judges were having ex parte communications, they weren't. But on my court, they rated me the best judge in saying that I was not influenced by improper ex parte communications. My short answer is I follow the Rules. That's the lawyer's answer.

Let me, if I may, tell you what else they -- the lawyers said about me on that. They said I was the best judge in terms of knowledge and application of the law. They said that I was best in terms of awareness of recent legal developments in the law. I was up to date. That I was not influenced by political consideration. The press often expresses concern that members of the General Assembly elect us and some of them are lawyers who appear before us, but the lawyers said I was the best judge in terms of not being influenced by political considerations.

Senator -- no, I won't say that. And they said that I was the best lawyer in not being influenced by the identity of the lawyers involved in the case. I'm not going to comment on what the lawyers said. You give it whatever value you think it is, but I think it's a better answer than mine because I would be -- I try to be honest, but I'm not as objective as other people are and you might think I was being a little self-serving. My short answer is I follow the Rules. And, again, I won't cite the Canons on that, but there are very specific requirements in the Canons.
Q. Thank you. In the area of pledges, have you sought the pledge of any legislator prior to this screening?
A. I have not.
Q. Have you sought a pledge which is conditioned upon your advancement through the screening process?
A. I have not. The statute -- this committee knows it. I'm not telling you anything, but perhaps other people in the room don't know it. You passed a statute on that. That's the rule. Whether I agree with that rule or not, I am going to follow that rule.

You also gave us, and very helpfully I might say, an interpretive letter last August amplifying on what that statute means. It had been amended and there is some question about what the amendment meant. You made it clear what the amendment meant. You have determined -- you, the General Assembly, have made the rule. That's what the people elect you to do. They don't elect Randy Bell or anybody else to do. That's the rules. I follow the rules.
Q. And --
A. And I state to the committee under oath that I have not done that.
Q. Have you asked anyone to solicit or seek a vote on your behalf?
A. I have not. You know what the rule is.
Q. Yes, sir.
A. Let me qualify that because in court we swear people not just to tell the truth, but the whole truth and I don't want to give a misimpression. There are a lot -- and some of you know this anyway, there are a lot of people who want to help in my election. They have talked to some of them. I don't know how many of them they've talked to.

In some cases I know who it is because they'll call me and say I talked to so and so, but in most cases, I don't know who they've talked to. I notice some people have written Letters to the Editor about it. So there are people who are saying to the General Assembly what they know about my qualifications. Some of them are also giving their opinion, but people have called me, lots of people have called me and said I'm glad you're running, how can I help and the first thing I say is you can help by not even appearing to be asking for a vote right now. There will be a time when the rules will allow us to do that, and you can do it then, but don't do it now and don't say wink, wink, I'm not asking for a vote, but I expect you to recognize that Judge Bell is this, that and the other.

Okay. I told them don't do those kind of things. Is that helpful to me? No. It's hurting me because they're talking to Members of the General Assembly, they know the rules. This committee knows the rule. What will they say? The people supporting Bell are breaking the rules, so I told them don't do that. To my knowledge, none of them have broken that rule.

I've also told them that there is going to be a day coming soon when we can do that and I hope they will work their hardest when they talk to legislators down there, but we're going to play the game by the rules.
Q. Those contacts that are being made now are not at your -- you haven't initiated any?
A. If you ask me has someone said I want to help, can I do so, I say yes. If you ask me, Lawyer A, will you talk to Legislator Y, I have not. I'm having trouble with old so and so, I know you were his campaign treasurer, straighten him out. I have not said anything that expresses that directly or I hope would even remotely suggest that. I don't want that kind of help.
Q. Our records show that you have no expenditures on this campaign?
A. Okay, I have filed as you note two reports with Senator Leatherman and Representative Neilson. I'm required to do that by law. Both of them show zero. That doesn't mean I haven't spent anything, just so there is no misimpression.

The law requires you to report when those expenditures go over $100 and the reason it says zero is not because I hadn't spent anything, it's that I hadn't spent $100. I will tell you on my campaign expenditures that last night I got the calculator and totaled them up and they are this, and I'm happy for the committee to know it although I'm not legally required to disclose this.

My main expenses have been phone calls. I have -- and I'm amazed at this, I thought I was probably over the $100 mark by now, but the breakup of Ma Bell has really made the competition in a deregulated communications industry, it's amazing how cheap you can call people. I made lots of calls. I know I've made over hundred. My phone bill so far -- these are things that have been billed to me. I'll get some more that I've already made, but haven't been billed and I'll disclose those when I'm required to.

The phone calls, $74.31; fax, 51 cents; copying, I've done some of that and I can give you a reasonable estimate although that hasn't been billed to me yet, so I don't know the exact figure, that's about $10. Those have been my expenses so far.

Thank goodness, judges can run for office in South Carolina and not have to spend anymore money than that. A former student of mine is a judge in Texas where they're all popularly elected and I won't tell you how much she had to spend, but it was in six figures.
Q. Thank you, judge. That's all the questions.
THE CHAIRMAN: Questions from the members?
A. Thank you very much.
THE CHAIRMAN: The next candidate is E.C. Burnett, III. Judge Burnett, will you raise your right hand.
E.C. BURNETT, III, having been duly sworn, testified as follows:
THE CHAIRMAN: Judge, your last screening was November 17, 1993 and that was for reelection to the seat you currently hold. Have you had a chance to review your Personal Data questionnaire?
JUDGE BURNETT: Yes, sir.
THE CHAIRMAN: Is it correct?
JUDGE BURNETT: A couple of minor things. You misspelled my wife's name. I have to stay out of as much Dutch as I can. It has no E on it. You know, only potato has an E on it. I think that would be the only corrections I would make, Mr. Chairman.
THE CHAIRMAN: That's a wise suggestion. Do you have any objection to our making the Summary a part of the record?
JUDGE BURNETT: No, sir, I do not.
THE CHAIRMAN: It will be done at this time.

1. E. C. Burnett, III
Home Address: Business Address:
200 Burnett Road P. O. Box 1742
Pauline, SC 29374 Spartanburg, SC 29304

2. He was born in Spartanburg, South Carolina on January 26, 1942. He is presently 52 years old.

4. He was married to Jami Grant on August 24, 1964. He has three children: Curry, age 28 (Milliken & Company); Sharon B. West, age 25 (elementary school teacher); and Jeffrey G., age 22 (Roebuck Greenhouses).

5. Military Service: U. S. Army, 1966; Reserve Service, Active and Inactive, 8/66-3/86; Major; SN05321457; Honorable Discharge, 3/14/86

6. He attended Wofford College, 1960-1964, B.A.; and the University of South Carolina School of Law, 1966-1969, J.D.

8. Legal/Judicial education during the past five years:
During the past five years, he has met or exceeded the minimum judicial education requirements.

9. Taught or Lectured: South Carolina Rules of Civil Procedure, Spartanburg-Cherokee Legal Secretaries' Association

12. Legal experience since graduation from law school:
1969-1976: Private Law Practice, Criminal, Workers' Compensation
1976-May, 1980: Spartanburg County Probate Court Judge
May, 1980 - September, 1981: Resident Family Court Judge, Seventh Judicial Circuit
September, 1981 - Present: Resident Circuit Court Judge, Seventh Judicial Circuit

13. Rating in Martindale-Hubbell: He has never applied for rating in Martindale-Hubbell and is unaware that he is now listed.

14. Frequency of appearances in court:
He has served as a Circuit Court Judge during the past 13 years.

15. Percentage of litigation:
He has served as a Circuit Court Judge during the past 13 years.

16. Percentage of cases in trial courts:
He has served as a Circuit Court Judge during the past 13 years.

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) State v. Trotter. (Not reported) Criminal defense of charge of violation of Drug Act. Defense of entrapment successfully presented.
(b) Warren v. Aetna. (Not reported) Action against life insurance carrier for payment of proceeds on alleged forged change of beneficiary form. Forgery established by handwriting expert witness, and carrier was required to pay proceeds even though payment had previously been made to the wrong beneficiary.
(c) Barron v. Levitz Furniture Co. (Not reported) Wrongful death action. Driver of defendant's motor vehicle was not an employee of defendant. Employee-passenger delivering goods had suffered a broken arm and had enlisted the assistance of a friend to drive. Agency relationship established at Coroner's inquest. Case settled.
(d) Capell v. Hammett. (Not reported) Action in trespass. Defense of adverse possession. Testimony established no record owner of the property at issue. Factual dispute as to the use of property by litigants. After verdict for plaintiff, new trial was granted to defendant. Case settled.
(e) Lawter Estate. (Not reported) Proof in solemn form of will. Deceased had been treated by psychiatrist prior to and after date of execution of will. Lucid intervals of deceased at the time of execution established. Property passed to heir who had cared for deceased. Will found valid.

18. Five (5) civil appeals:
(a) Allen v. Foss, 255 S.C. 336, 178 S.E.2d 659 (S. C. Supreme Court, 1/14/71).

19. Five (5) criminal appeals:
None

20. Judicial Office:
1976-May 1, 1980 - Spartanburg County Probate Judge (Elected) Probate of Deceased Estates
May 1, 1980-September 17, 1981 - Judge, Family Court, Seventh Judicial Circuit (Elected) Juvenile and Domestic Relations
September 17, 1981-Present - Judge, Seventh Judicial Circuit (Elected) General Jurisdiction Civil and Criminal Litigation, Administrative Agency and Magistrate Court Appellate Jurisdiction

21. Five (5) Significant Orders or Opinions:
(a) Bernadette M. Durkin v. Kevin Hansen, et al.

(b) Audrey W. Moffitt v. Patrick Beckett, et al.
(c) Sandra L. White v. Stouffer Foods, 91-CP-11-536
(d) T. Travis Medlock, etc. v. 5.91 Acres, etc., 91-CP-4715091
(e) James Laughter v. Health Insurance of Vermont, 92-CP-42-2552

22. Public Office: February-June, 1978, Spartanburg County Clerk of Court (appointed as a result of indictment of sitting Clerk of Court); 1973-1974, Member, South Carolina House of Representatives from Spartanburg County (Elected)

32. Sued: James E. Loftin, an inmate of the S. C. Department of Corrections, brought suit against him in May of 1982. The suit was dismissed in May of 1983.

39. Expenditures Relating to Candidacy:
Typing $20.00 2/24/94
Postage $58.00 2/24/94

44. Bar Associations and Professional Organizations:
South Carolina Bar Association; American Bar Association, Judicial Administration Division

45. Civic, charitable, educational, social and fraternal organizations:
None

47. Five (5) letters of recommendation:
(a) Louie W. Blanton, Vice President
South Carolina National Bank
P. O. Box 5707, Spartanburg, SC 29304
(b) Roland H. Windham, Jr., County Administrator
County of Spartanburg
P. O. Box 5666, Spartanburg, SC 29304
596-2123
(c) Horace C. Smith, Esquire
The Whiteside-Smith Firm
P. O. Box 1144, Spartanburg, SC 29304
582-4569
(d) H. Carlisle Bean, Esquire
Bean and Bean
P. O. Box 81, Spartanburg, SC 29304
582-3341
(e) James R. Turner, Esquire
184 N. Daniel Morgan Avenue
Spartanburg, SC 29306-2344
582-7742

2. Positions on the Bench:
Spartanburg County Probate Court: 1/76-5/80
Seventh Judicial Circuit Family Court: 5/80-9/81
Seventh Judicial Circuit: 9/81-present

10. Extra-Judicial Community Involvement:
He has not used his judicial office to further any interests.

The Board of Commissioners on Grievances and Discipline reports no formal complaints or charges of any kind have been filed against you. The records of the applicable law enforcement agencies - Spartanburg County Sheriff's, Spartanburg City Police, SLED and FBI are all negative. The Judgement Rolls of Spartanburg County are negative. Federal Court records show no judgements or criminal actions against you.

There were two civil actions brought against you. One action was a habeas corpus dismissed in 1985. The other was brought against you and a number of South Carolina court officials alleging some civil rights violations and was dismissed in 1989. Does that sound correct?
JUDGE BURNETT: Yes, sir.
THE CHAIRMAN: We have no complaints or statements that we've received and no witnesses present to testify against you. Prior to turning you over to Ms. McNamee for questioning, you do have the right to make an opening statement or to include one for the record.
MR. BURNETT: No, sir, I make no opening statement. Having recently appeared before you, I think you know me. I've met so many of you and talked to you during the ongoing campaign and I feel like you do know me, I'll just thank you for the interest -- that you have made to this process and just state that I join with you in the commitment to open this for the benefit of the people of the State of South Carolina and I'm just glad this day has finally come. Thank you.
THE CHAIRMAN: Thank you, sir.
JUDGE BURNETT - EXAMINATION BY MS. MCNAMEE:
Q. Good morning, Judge.
A. Good morning.
Q. Judge, just five months ago when you were screened by this committee for your reelection as Circuit Court judge in the Seventh Circuit, the question was asked of you if you intended to serve out that term if you were reelected and you answered yes, that it was your intention. Three months later, you filed for this vacancy on the Supreme Court. Could you just explain that, sir?
A. It was certainly my intention to do that and my intention to do so. When the two -- it became apparent how the vacancies would evolve on the Supreme Court, I had so many calls from so many people inquiring of my interest, that it piqued my true interest in the appellate bench.

I've always had a great interest in serving there, but it caused me to think very greatly about it and caused me, not to lessen the enthusiasm I have for service on the Circuit Court, but rather to take an opportunity that was available, a rare opportunity available, to use the experience I have gained as a member of the South Carolina House of Representatives and as a Family Court judge on the Seventh Circuit and for the past 13 plus years as a Circuit Court judge to bring that wealth of experience to use on the appellate level and it resulted in a change of my position and changed my mind.
Q. We're all entitled to do that.
A. Indeed, we are. Thank you.
Q. That's certainly true. Why do you want to be on the Supreme Court? What appeals to you about that position?
A. I have served a very long time as a trial judge and, of course, have tried all types of cases, civil and criminal. I have, in addition to that, had appellate jurisdiction in, of course, Magistrate's Appeals and Master in Equity hearings and in Employment Security appeals and in Workers' Compensation appeals and I enjoy the exchange of, as Judge Bell so aptly appointed out, the exchange of ideas, the dialogue you're able to have with the attorneys representing appealing parties.

So I have had an occasion to do that and found such an enjoyment in that intellectual exchange and such an enjoyment in the preparation of the opinions that I would render. And then I had an opportunity to share on the appellate court with Judge Bell and Judge Littlejohn joining a panel of theirs some few months ago, to sit and work in that environment and just found such an excitement, if that could be the correct word to use, such an excitement in that kind of environment and the kind of exchanges you can have there with the lawyers who come there that I think that I would find a regeneration of my spirit in the work and application of all that I have learned could be well placed in continuing to see our appellate jurisdiction grow and improve.
Q. Was the time you just spoke of when you served on the panel with Judge Bell and Justice Littlejohn, was that your only opportunity to serve as an acting --
A. That's correct.
Q. -- appellate justice?
A. That's correct.
Q. Previously, in November, you were asked your opinion of the attributes of judicial -- a good judicial temperament and as it related to being on the Circuit bench. You were asked the question in terms of how you related to the lay people in your court and how you related to the attorneys that appeared before you. What is your opinion of that proper temperament and demeanor for an appellate court judge?
A. Hardly could be a great deal different. I think that all parties whether they be lawyers presenting appeals or lawyers trying a case, they are all representing some litigant. True, in trial court, the litigants are there actively involved in the process.

In addition to the trial courts, you have jurors and you have witnesses who are not parties to it and I think all of those parties are entitled to the utmost of my attention, the utmost of my abilities, the utmost of my courtesies, the utmost of my concerns, as I recognize that this case belongs to those litigants and not to a particular lawyer and certainly not to a member of the jury, but to show courtesy, concern and caring coming from a preparation in the facts of the case and knowledge of the case, so that I can appear to a litigant or a lawyer on appeal as having enough interest in it that I have studied it and have an awareness of the issues involved in it, and I'm better able to discuss it with them and legal arguments on appeal or better able to discuss legal argument in the trial court or better able to discuss objections to evidence which might arise. But I think common human concern is necessary at whatever level of court you may be.
Q. What is your strongest suit in this whole discussion of judicial temperament in your opinion?
A. I think my strongest suit is that I am keenly aware that on every case, on every piece of paper that carries a caption of Sue McNamee versus E.C. Burnett, that there are real people behind this piece of paper.

And although I have legal abilities and I have intellectual capacities, I add to that the human capacity and never forgetting that this is indeed a real controversy. It's not nearly an intellectual endeavor and that these indeed are real people that have -- that expect to be treated as real people and expect to be fairly treated not only in the repertoire in the courtroom, but in the final decision of the court.

So I think that my strongest characteristics would be that I recognize that I have an obligation to be ultimately fair with -- beginning with the litigants and with the lawyers and, obviously, courtesy and caring and concern grow out of that, but I think the court system owes it to all parties an obligation of fairness.
Q. And do you have a weaker -- is there a weaker side --
A. Oh, but, of course.
Q. Because we're all human.
A. Because I have a -- indeed, we are. I have -- and I've worked on this because this was a real problem for me. I have been able in my professional career to quickly analyze a factual situation and to determine the issues involved in it and to see which way in -- without prejudice to a party and in fairness to a party, which way to ought to go and when it doesn't go that way as quickly as I think it ought to, then my patience will wear thin. Now, I've worked on that and it's been a battle.

Galatians reports a listing of the fruits of the spirit. Patience is about the third one, I think, leading with love being the first, but, yes, I'm weak in patience. I confess to it, plead guilty to it. I'm working on it, though.
Q. Well, do you have any advice for us who also need a little more patience?
A. Yes.
Q. How do you work on it?
A. Yes, I can. Do you want it now or do you want it later.
Q. I'm patient, but I'm kind of curious.
A. But you want to be patient right now. No. It is -- I had to come to the point of knowing that even though I might quickly come to an opinion of what was involved in the case, that I had to recognize that these attorneys representing these parties have prepared broader than maybe I have and that they have a course of action that they would follow in the orderly presentment of their case, and even though I might discern quickly where they're going, they deserve an opportunity to go there at a speed that they feel fully represents their client.

So I have chewed grievously on my tongue, but I have learned to let the lawyers bring the case unless it became so dilatory that I found it necessary to call a recess and adjourn to a more secluded environment for a conference.
Q. Are these practices of yours the same whether you're in General Sessions court or in Circuit Court?
A. Yes, ma'am.
Q. Court of Common Pleas?
A. Yes, ma'am. I think so.
Q. If you attain the position of a Supreme Court justice, what would be your advice to your successor on the Circuit Court bench?
A. To prepare. To prepare. To prepare. To study the law. To know evidence. To prepare. I think that we cannot be well enough prepared in the basics of evidence and of substantive law and of procedural law. And we have an obligation to know that for the benefit of the litigants whom we are there to serve. Just as the members of the House and Senate are here to serve the people of this State, we are a service industry also. We -- my advice would be prepare.
Q. Mention has been made here that you are competent and enjoy using computers. Could you explain that a little bit --
A. I will.
Q. -- for the committee, please?
A. I think all of us who have been involved in the legal business for sometime are aware that judges carry multitudes of notebooks, or bags of notebooks, for civil and/or criminal terms of court and, indeed, I did also until probably three and a half, maybe almost four years ago. I just simply decided that there was a better way to do it, so in my ignorance of automation, I went to a computer store and just bought a computer and bought Word Perfect, a version of it they had at that time, and went home and would spend nights, hour after hour learning how to operate that computer.

That ain't the best way to learn how to do it, but that's the way I learned how to do it, so that now I have evolved to this point. All of my boiler plate law, all of my legal research to include the Virginia Bedford's CD-ROM availability, I have on a four-and-a-half pound notebook computer. I use it on the bench. I formulate and personalize the charges in every case competely and I reference the charge off of that as I give my instructions to the jury.

I also put in points of law that I select from the Advance Sheets of our State Supreme Court or from the United States Supreme Court that I think are important and I maintain directories in Evidence, General Sessions, Common Pleas, Workers' Compensation and I put all of that into a particular directory with a file name that I have selected so that I can find it. It's not a program I was able to buy. I use Word Perfect 6.0 and, of course, you're familiar with that, but I have created my own file system within selected directories with my own file name.

In the office, I have three freestanding computers networked, my secretary's being the base. The County, Spartanburg County, bought those for me and I maintain everything on those. I do all my correspondence off the computer and my secretary and I just took a Word Perfect course two and a half years ago when the County bought the computers for me, so that we would have some knowledge of what we were doing and we both continue to learn.

In addition to that, I have with the cooperation of the Spartanburg County Bar Association purchased a computer for the Clerk of Court's office where the Bar actually generated the money about $3500, I think it cost maybe $10 a piece or something like that and we have the Master Trial Roster, the Common Pleas Trial Roster, the Term of Court Trial Roster, a what we call a "hot list," the top five or six cases for a particular term of court.

We have Bar notices, administrative orders and we have E-mail all in a bulletin board concept. The E-mail has proven so beneficial in lawyers communicating with each other. It's proven beneficial in lawyers communicating in to me. For instance, a lawyer who might be in a deposition, an evidence problem arises and as so often happens, they're able to go to a computer, call my court coordinator, go into the E-mail, leave a message for me, and my secretary constantly checks that to see what's coming in. She'll bring the note to me that Lawyer Jones is having a problem with the admissibility of a hospital report, peer review problem, can you give them a ruling on it, and I can either write it on there and have her type it back to him or I can take a recess and come back to my computer and do it or, as I now have set up in Spartanburg and in Cherokee County, the only -- the most -- the two most progressive counties in the state, I have telephone communication on the bench. And I can call into the bulletin board from the bench and leave messages for you on the case on which you call me.

I think that in a nutshell, Ms. McNamee, is what I have done in computerization. There is still a lot of things we can do, but that's what I have done with the cooperation of my county council and the cooperation of the Spartanburg County Bar Association. Other judges in the state -- I provided to Judge Howard in Charleston, he had wanted to see how my bulletin board concept worked and I provided that to him. I think it's a good idea and it's been beneficial, I think, to the lawyers at home.
Q. Do you serve on any committees for the Bar or for the Supreme Court on law and technology or technology and the law, computer application?
A. I have been appointed to a committee. Judge Ervin from Anderson chairs a committee dealing with automation and the needs of the court system. But because of the financial constraints of the state, the committee has been fairly dormant and I think the work that has been done -- ya'll have been able to give some money, but we are in a financial crises and it hasn't been all that we would like to have, but the efforts that I have seen generated have come from monies from counties. And I'll get a call from a judge who says, "I have gotten some money from my county. Tell me what you have and how -- what your experience has been with that," and, of course, I share that with them, just as when new judges come on the bench and they want a copy of my boiler plate charges or whatever is in my notebook, I can make a disk for them and send them my whole Common Pleas and General Sessions notebook on a couple of disks.
Q. It would appear that just as you could use a conference call, you might be able to use E-mail for your committee meetings.
A. Oh, you can, and we have. And we have. Well, meetings between lawyers, not committee meetings, but you're right. A lot of possibilities in automation that we continue to see. And the ABA has been most innovative in presenting ideas to us principally from an article a year or so ago from a lawyer out in the Midwest where the towns were far apart, and in one place, he couldn't really make enough money to pay his overhead, so by the use of automation he was able to spread his business over about a 600-mile area. And by computers and an airplane, he was able to do much more work and serve many more people, so automation is an enormous resource that we have and as money comes available, we just appreciate very much what the legislature has done to help us.
Q. We, of course, have discussed ex parte communication with you previously, but I guess I think that this brings on a different aspect of it. Is there any problem or do you see any problem with ex parte communication in your E-mail system?
A. Somewhat. If the lawyers are together and they're in deposition, then I have none. True, my E-mail is going into Sue McNamee's mailbox, but I do that because I know Sue McNamee is there in a deposition receiving that mail. Substantive discussion of cases is just not done.

As chief judges for administrative purposes, most of us, and there are obviously lot of us, civil and criminal statewide, we have administrative discussions with individual lawyers. I don't think any of us as a group view those as any violation of the ex parte prohibition. The prohibition extends to substantive discussions with one lawyer or one part of the case about that case and not to the administrative matters that we have to deal with tangential to the substantive disposition of the case, so I -- substantive discussion just cannot be done. It's unfair, and as Judge Bell said, it's simply against the rules.
Q. Is there any record, written record, kept of the E-mail about the decision on an administrative matter or procedural matter?
A. You know, I know that we have a printer in the court coordinator's office where the bulletin board is maintained, but whether it records -- my guess is no. If I write you, you can make a copy of it on your computer in your office, but there is no central place that can copy that because the court coordinator cannot get into your mailbox, so, no, unless it comes into the court coordinator.

If the question comes into her, everything coming into her is printed instantly as it comes in, so we have a running record of that. But to a mailbox, no.
Q. Judge Burnett, we've looked at the 30, the 60 and the 90-day report which is provided by court administration over the past year and a half and there was some months in that year when you showed no outstanding cases and others where there were three or four cases. Can you explain that? What kind of matters do you take under advisement?
A. The only time that I would have anything under advisement would arise from nonjury. The things I take under advisement might be Workers' Compensation appeals where
-- or Employment Security Appeals where I've got to study the record and bring into play the argument presented by the attorneys.

From time to time in a Magistrate's Court appeal, I might have to do an order in that, just so that I don't have a riot in the courtroom, but I think those are the times that I might have some apparent backlog of three or four cases. I don't like to keep a backlog. It burdens me to go home at night with orders pending.
Q. And I'm not saying that there were very many of these --
A. Oh, no, I know there have never been very many.
Q. What is your -- concerning the opinions that you will write if you're elected to the Supreme Court, do you have any kind of standard for writing dissents or a standard or time when you might feel it necessary to write a concurrence? Do you have any ideas on this that you would like to share with the committee?
A. If in my opinion the majority opinion does not address an important issue that may be of interest to the Bar on the point of law before us, I might write a concurring opinion and present that.

My experience -- of course, my office has been next door to Bruce Littlejohn for my entire judicial career and I've had many occasions to talk with him and I know that many discussions are ongoing in the appellate process, so I know that I have input into whatever the majority opinion might say.

So unless I have some unique point that I might wish to make as an aid to the Bar or unless I would dissent, I would not do a concurring opinion just so that I would have my name specially in the book. I have no pride in notoriety whatsoever.

I think as all politicians, it took me awhile to get over that, but I think I have done that. In the one time that I sat with the Court of Appeals, I had -- I have written two opinions and I have dissented in one opinion and as grievous as it was, I disagreed with my dear friend Justice Littlejohn and Judge Bell, but they're probably all right.
Q. They got over it. I note that you have lectured to local associations on the Rules of Civil Procedure. Have you done any other more -- any other formal lecturing or writing or contributions to CLE's?
A. Not recently. I have not done such an activity. I have scheduled for June -- well, we just moved it. It was May the 17th, an update of the Rules to the legal secretaries of Spartanburg and, of course, the lawyers come to that also. And it's been approved for CLE credit. But I have that upcoming, but, generally, I have not done that.

I have worked in presenting the position of the Bar and the bench by way of civic clubs, speeches and such as that, but CLE involvement, I have not allocated time to do that.
Q. What is your opinion of alternative dispute resolution and has the Seventh Circuit been involved in this?
A. The Seventh Circuit has been. I think that ADR is a concept whose time is long overdue. We just recently finished our first Mediation Week. Rob Hassold from Greenville, who is -- I view as sort of the guru of mediation in our area and, of course, Bruce Littlejohn has long proposed that. He was instrumental to us in setting up the program with -- but as it was set up in Greenville, Rob did all the work and I didn't have somebody like him in Spartanburg, so my secretary and I did it all in Spartanburg and, fortunately, I had a number of lawyers, including some present, who took the mediation training.

This was given in Greenville in conjunction with the Anderson County Bar and presided over mediation hearings in Spartanburg resulting in a settlement of 60 percent of the cases we scheduled. We find it phenomenal. Two things in my mind grow out of that. One is that I intend to do a mediation, a full mediation week at least once a quarter. And secondly, it is my request, and I've made this to court administration, that they take a term of court when the mediation concept is in place statewide, that they take a term of court and designate it as a mediation week and let that be all that we do that week.

The results from that are the movement of many, many more cases than we ordinarily can do in a Common Pleas term of court, but ADR is an avenue that we are beginning to use more and more and I think has a dramatic position in the justice system, not only in the trial level, but I can certainly see its application in the appellate level.
Q. Judge, you were questioned in November concerning ex parte communications, tests for recusal, your approach to the acceptance of gifts versus your ideas on ordinary social hospitality?
A. Right.
Q. Are the answers that you provided us at that time the same as you would provide us today? Has anything happened to change your opinion on those questions?
A. Nothing has happened. I think it -- we have come to the point or to the realization that it is simply improper to take gifts from lawyers who appear before you. It is not wrong to enjoy ordinary social hospitality, a barbecue at a friend's house who might be a lawyer and, of course, those of us who are lawyers, most of our friends are lawyers and those of us who become judges, most of our friends are still lawyers.

And so I have -- I see no wrongdoing whatsoever in having ordinary social hospitality at lunch or dinner with a lawyer. I would avoid it when the lawyer had a matter then pending before me where the appearance of impropriety might be evident.
Q. As far as the matter which you discussed with the committee last November concerning your name being listed in an ad endorsing certain legislation, is there anything further about this matter that you would like to share with the committee at this time?
A. My moral foundation remains absolutely the same. The approach might not have been the best approach, but my Christian character is nonetheless strong.
Q. And you understand the Canons on that?
A. Oh, indeed, I do. Yes, ma'am.
Q. You do not list any membership in any civic, social or charitable organizations. Is that -- on your PDQ, is that accurate?
A. That's right. With the rotational system that we had enjoyed for so long here, just had no time to fairly be a member and I don't like to be a member merely to have my name on the roles, so I have not -- though I am a life member of SERTOMA International, I have served it in various offices to include the president of our downtown SERTOMA Club, a local club in Spartanburg and have served at the district level in the SERTOMA activities as secretary and treasurer, but none other, no ma'am.
Q. Our records show that you've expended less than $100 on this campaign. Is that amount still accurate?
A. No, ma'am. My bill on my stationery came in and it was $240 and that will be included at the appropriate time on a report. I did look for a report form and I didn't see one that you designed for the reporting of that type thing, so --
Q. I think that's correct. I think we get it in the form of a letter.
A. Yeah. So I didn't -- I just thought I might do it by letter.
Q. Yes, sir.
A. To report that, and I'll do that in the time provided by statute.
Q. And to finish up our questioning, at least my questioning of you --
A. Yes.
Q. -- this morning, the question of pledging is one that we're asking all candidates and I would ask you if you have sought the pledge either directly or indirectly of any member of the legislature for this seat?
A. No, ma'am, I have not.
Q. Are you aware of anyone who might have contacted people on your behalf at your request?
A. Oh, no, ma'am.
Q. Or anyone who might have contacted the --
A. I know that people have contacted me and -- not -- or contacted members of the House and/or Senate. I had occasion, one of the evening festivities, as I spoke to a member of the legislature, they said that somebody from Spartanburg had called them. And they told me who it was and I didn't know who that was, but they had been favorably impressed by the comments of that person. But, no, ma'am, I understand the statute and the interpretative opinion issued by the committee and I know what indirect contact is and I don't -- I have not done that.
Q. Thank you.
THE CHAIRMAN: Questions from the members? Thank you, Judge Burnett.
A. Thank you, Mr. Chairman.

(Off the record)
THE CHAIRMAN: Judge Pleicones, would you please --
COSTA M. PLEICONES, having been duly sworn, testified as follows:
THE CHAIRMAN: All right, Judge, your last screening was March 30, 1994 for a vacancy on the Supreme Court. Have you had a chance to review your Personal Data Summary?
JUDGE PLEICONES: Yes, sir, I have.
THE CHAIRMAN: And is it -- any corrections need to be made?
JUDGE PLEICONES: No, sir.
THE CHAIRMAN: Let me just say at this time that unless there is an objection on your part, our plan would be to incorporate the questions and responses from the last screening that we had on March 29 into the record.
JUDGE PLEICONES: None whatsoever.
THE CHAIRMAN: Do you have any objection to our making the Summary that we have of your current -- the summary that you provided for this election a part of the record?
JUDGE PLEICONES: Not at all.
THE CHAIRMAN: That will be done at this time.

1. Costa M. Pleicones
Home Address: Business Address:
525 Congaree Avenue P. O. Box 192
Columbia, SC 29205 Columbia, SC 29202

2. He was born in Greenville, South Carolina on February 29, 1944. He is presently 50 years old.

4. He was married to Dona Singletary on August 14, 1965. He has two children: Sara Venetia Pleicones Norrell, age 24 (homemaker), and Laura Suzanne, age 21 (senior at the University of Georgia).

5. Military Service: United States Army; November 25, 1968 - present. He is presently a Colonel in the Reserve. His serial number is the same as his Social Security Number. The only discharge he has ever received was from enlisted status to become an officer, and that discharge was Honorable.

6. He attended Wofford College, 1961-1965 (actually completed all courses in December, 1964, and returned for commencement exercises in June, 1965), AB, English; and the University of South Carolina School of Law, 1965-1968, J.D.

8. Legal/Judicial education during the past five years:
The courses varied widely, from civil to criminal and from substantive to procedural. He believes that he always exceeded requirements. Since becoming a judge, he has attended all MCLE except for October, 1993. He was excused from this course so that he could attend a National Judicial College (NJC) course called "Children in Court." This dealt with the child as victim/witness. He attended the NJC General Jurisdiction course in 1992.

9. Taught or Lectured:
"Bridge the Gap" for a number of years, through to the present. He recently lectured at the State Bar meeting (1993) on ex parte communications. He taught legal segment for "Leadership Columbia" (1992). He frequently presides over Moot Court competitions as well as speaks at civil organization meetings, including National Verbatim Court Reporters Conference (1993).

10. Published Books and Articles:
None since college, when he wrote for the literary magazine.

12. Legal experience since graduation from law school:
September, 1965 - May, 1968 Student, University of South Carolina Law School
Law Clerk for Herbert, Dial and Windham (Columbia, South Carolina)
Law Clerk for Lawyers Abstract Company (Columbia, South Carolina)
June, 1968 - November, 1968 Preparation of course materials for proposed South Carolina Bar Review Course
November, 1968 - March, 1973 Active Duty, United States Army. Legal experience included Chief of Military Justice and Trial Counsel
March, 1973 - February, 1975 Assistant Public Defender for Richland County, South Carolina
Duties entailed preparation for and trial of indigent persons accused of criminal offenses. Cases ranged from murder charges through Magistrate and Municipal Court offenses.
February, 1975 - February, 1976 Private Practice and Independent Contractor with Richland County Public Defender Agency. Private Practice duties entailed preparation and trial of federal and state civil matters. Independent Contractor duties continued Public Defense duties.
February, 1976 - March, 1977 Chief Deputy Public Defender, Richland County, South Carolina
Duties included supervision of personnel, in addition to the preparation and trial of major criminal charges such as murder, armed robbery, etc.
March, 1977 - January, 1981 Private practitioner in general civil and criminal practice with the firm of Harrison and Pleicones, Columbia, South Carolina. Additionally served as Assistant County Attorney for Richland County (August, 1977 - December, 1978) and as County Attorney for Richland County (January, 1979 - January, 1981). Duties included representing Richland County in litigation matters, advising County Council and supervising staff of 12.
January, 1981 - June, 1991 Sole Practitioner (January, 1981 - October, 1984)
Partner in Lewis, Babcock, Pleicones & Hawkins (formerly Lewis, Babcock, Gregory & Pleicones) of Columbia, South Carolina (October, 1984 - June, 1991). The firm grew in that time from 4 to 13 lawyers and engaged in major civil litigation (both plaintiff and defense litigation). Served as member of three-person executive committee of the firm. Other responsibilities included legislative monitoring and liaison work with the South Carolina General Assembly for two large trade associations. Additional duties as Municipal Judge for the City of Columbia from September, 1982 through March, 1988.
July, 1991 - Present Resident Circuit Court Judge for the Fifth Judicial Circuit of South Carolina. Designated as Chief Administrative Judge for the Fifth Circuit Court of General Sessions, effective January 6, 1992 through January 3, 1993. On seven occasions, served by order of the Chief Justice as an Acting Associate Justice of the Supreme Court of South Carolina.

13. Rating in Martindale-Hubbell: His last rating was "AV," and had been at that level for a number of years.

14. Frequency of appearances in court:
Federal - 5 times per year on average
State - 85 times per year on average
Other - Administrative tribunal 10 times per year on average
1986-1991 (became a Judge in 1991) - includes motions, trials, conferences

15. Percentage of litigation:
Civil - 70%
Criminal - 10%
Domestic - 20%
1986-1991

16. Percentage of cases in trial courts:
Jury - 5%+
Non-Jury - 10%+
1986-1991 - He has included only matters in trial court that actually went to a fact finder for resolution.
Sole and/or Chief most often

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Southern Bell v. Steven W. Hamm, 306 SC 70, 409 S.E.2d 775 (1991); 60 USLW 2294, 126 P.U.R.4th 535, 9 ALR 5th 1131. He believes this case was the first in the United States to judicially approve "Caller ID" telephone service. Important constitutional questions were implicated, e.g., right to privacy. He argued the case in the trial court where it was won and co-authored the brief to the South Carolina Supreme Court. Actually, he was the principal author of the brief to the Supreme Court but did not argue the case there, as he was pending swearing-in to the Circuit Court. The Supreme Court affirmed.
(b) Funderburk v. Funderburk, 281 SC 246, 315 S.E.2d 126 (Ct. App. 1984); on cert to South Carolina Supreme Court 286 SC 129, 332 S.E.2d 205 (1985). The Supreme Court reversed the trial court and the Court of Appeals in ruling that jurisdiction of a contractual agreement's voluntary nature was properly before the Family Court and not the Circuit Court. He did not handle the trial, where his client did not prevail, but did handle the appellate stage, with co-counsel. Their client prevailed, and the decision was helpful to the bench and bar in clarifying jurisdictional matters.
(c) Barnwell v. Barber-Colman Co., 301 SC 534, 393 S.E.2d 162 (1989). The Supreme Court held that punitive damages are not recoverable in a cause of action based solely upon the theory of strict liability. This question was certified to the court by the United States District Court. He was involved only at the state court as the author and proponent of a brief filed on behalf of his client, a trade association of property and casualty writers.
(d) Russo v. Sutton, ___ SC ___, 422 S.E.2d 750 (1992). In December of 1990, he tried this case in Common Pleas Court in Richland County and secured a large jury verdict for the plaintiff. The case is significant because on appeal the defendant's argument as to the non-viability of the cause of action (alienation of affections) was accepted by the Supreme Court, which prospectively did away with the cause of action. Happily, however, his client kept his verdict.
(e) State v. Motes, 264 SC 317, 215 S.E.2d 190 (1975). He represented Mr. Motes at trial and on appeal. He was convicted of murder largely upon the testimony of his estranged wife, who was allowed to testify over their objection. The case is significant because in interpreting their statute on first impression, the Supreme Court (and of course the trial judge) ruled that the privilege belonged to the testifying spouse, not the one testified against.

18. Five (5) civil appeals:
(a) Funderburk v. Funderburk, 281 SC 246, 315 S.E.2d 126, (Ct. App. 1984); quashed by South Carolina Supreme Court after grant of certiorari, 286 SC 129, 332 S.E.2d 205 (1985).
(b) Hamm v. Southern Bell, 305 SC 1, 406 S.E.2d 157 (1991). NOTE: This is not the case referred to in 17(a) above.
(c) Peoples Federal Savings and Loan Association v. Myrtle Beach Retirement Group, Inc., et al., 300 SC 277, 387 S.E.2d 672 (1989).
(d) Dale v. South Carolina Tax Commission, et al., 276 SC 110, 276 S.E.2d 293 (1981). He appeared on behalf of Richland County, another party to the suit.
(e) Truett v. Georgeson, ___ SC ___, 258 S.E.2d 499 (1979).
He was the principal counsel in each case.

19. Five (5) criminal appeals:
(a) State v. Monroe, 262 SC 346, 204 S.E.2d 433 (1974).
(b) State v. Thomas, 264 SC 159, 213 S.E.2d 452 (1975).
(c) State v. Motes, 264 SC 317, 215 S.E.2d 190 (1975).
(d) State v. Sweet, 270 SC 97, 240 S.E.2d 648 (1978).
(e) State v. Watson, 81-MO-232, SC Supreme Ct. (1981); cert denied 454 US 1148, 71 L.Ed.2d 301 (1982).
He was chief or sole counsel in each of these cases.

20. Judicial Office:
(a) July, 1991 - present. Circuit Court Judge, Fifth Judicial Circuit of South Carolina. Elected by the General Assembly of South Carolina. General civil and criminal jurisdiction.
(b) September, 1982 - March, 1988. Municipal Judge (part-time), City of Columbia, South Carolina. Criminal jurisdiction only. Limit of 30 days or $200.
(c) On seven occasions, the first being February 2, 1992, he has served as an Acting Associate Justice of the South Carolina Supreme Court.

21. Five (5) Significant Orders or Opinions:
(a) State v. Jackson was a spouse sexual battery criminal jury trial over which he presided this month. Given the notoriety of the trial and the depth of feeling over the so-called "marital rape" statute, he was determined to do everything possible to assure a fair and impartial jury to both sides. Although the process was tedious and time consuming, he individually questioned 32 potential jurors. This process revealed ingrained biases and attitudes which would, in his opinion, not ordinarily have been discovered. He believes a fair jury was obtained through this process. Since many of the questions posed were personal, the examination was conducted only in the presence of one lawyer for each side and the court reporter. He ordered these private sessions sealed, lest the admissions of having been abused intrude upon jurors' privacy. The jury obtained, at least according to the newspapers, originally was heavily in favor of acquittal, and only voted to convict after lengthy deliberations. He is convinced that the selection process resulted in a serious, deliberative jury, which was fair and impartial.
(b) In Myers, et al. v. Patterson, et al., 92-CP-40-3479, the plaintiff sought to enjoin the transfer of $25,000,000 from the SHIM's account to the General Fund to pay for Hugo damage. He declined to enjoin the transfer because of a failure to show irreparable harm would flow and because of the unlikelihood of prevailing on the merits. The case was later heard in the original jurisdiction of the Supreme Court, which ruled for the defendants.
(c) Brown, et al. v. The Continental Insurance Company, 91-CP-28-489. Supreme Court of South Carolina affirmed his Order at Opinion #23899, July 12, 1993.
(d) Ben Davis, et al. v. County of Greenville, et al., 90-CP-23-4809. In this case he ruled that certain taxes imposed by the county upon city residents were lawfully collected under the existing statutory and constitutional law of our state. The county has appealed, and the appeal was heard in the Supreme Court during the week of January 31, 1994. Whichever way the decision goes, it will be quite significant to local government.
(e) City of Columbia v. William Stewart, 90-CP-40-2163.

23. Employment As a Judge Other Than Elected Judicial Office:
Officer (Colonel), United States Army Reserve, 1973-present. Since August, 1993, he has served as Emergency Preparedness Liaison Officer from the 2nd United States Army to the S. C. National Guard and militia in South Carolina. Prior to that he was Commander of the 12th Military Law Center. The commander of the 2nd Army and of the 120th ARCOM are or were his supervisors. All duties are military in nature.

24. Unsuccessful Candidate:
1982 primary campaign for Richland County Council

25. Occupation, business or profession other than the practice of law:
None, other than military service, since graduation from college

26. Officer or Director: He is a member of a partnership (QUINCUNX) which owns an office building at 1513 Hampton Street, Columbia, South Carolina.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
Through 1993, he received payments from his former law firm for services performed on cases prior to his leaving. He has reported these payments. He still owns a share in the partnership which owns his former law firm's office building. The other partners are present or former members of the firm. Since he was unable to divest without serious economic consequences, he has recused and will continue to recuse himself from all cases involving these lawyers: A. Camden Lewis, Keith M. Babcock, Daryl G. Hawkins, Mary G. Lewis, Cameron B. Littlejohn and Frederick M. Zeigler.

32. Sued:
Only as a member of the firm. They obtained a judgment against an individual whose mortgage was subsequently foreclosed. As judgment creditors, they were thus necessary parties to the foreclosure. As he recalls, the case was dismissed before hearing.

35. Lobbyist or Lobbyist Principal:
1984-1991. Alliance of American Insurers. A trade association of property and casualty writers. The association was based in Schaumburg, Illinois, but he was supervised by James Purcell, the regional manager in Atlanta.
1981-1990. South Carolina Association of Convenience Stores. A trade association of convenience store owners and suppliers. Supervised by Carol Davis, Columbia, South Carolina, Executive Director.

39. Expenditures Relating to Candidacy:
11/23/93 Purchase of paper and printing of biographical summary; $69.68
11/29/93 Postage for initial mailing to members of General Assembly; $49.30
12/2/93 Payment to typists for typing letter and addressing envelopes; $80.00
1/12/94-date Postage for letters to members; $10.15
TOTAL: $209.13

44. Bar Associations and Professional Organizations:
South Carolina Bar (at one time he was a member of the House of Delegates); Richland County Bar; S. C. Woman Lawyers Association; S. C. Circuit Judge's Association

45. Civic, charitable, educational, social and fraternal organizations:
Charter Member (Master of the Bench), John Belton O'Neall Chapter, American Inns of Court; Board of Commissioners, Columbia Housing Authority; Board Member, Richland County DSS; Board Chairperson, Richland County Public Defender Agency; United Way Palmetto Society; Order of AHEPA; Wildewood County Club

46. On seven occasions he has served as an Acting Associate Justice of the Supreme Court.

He is quite gratified by the ratings which he received from members of the bar in the recent anonymous survey. He has not attempted to compare these ratings to those of other judges. He will continue to strive to make these ratings even better.

He has experienced an enormously broad range of trial and appellate practice in the not too distant past. He understands how hard it is to be a lawyer in these hectic times and believes that he has an excellent handle on both the theoretical and the practical aspects of the law.

47. Five (5) letters of recommendation:
(a) James E. Smith, Senior Banking Executive
NationsBank
P. O. Box 727, Columbia, SC 29222
343-7650
(b) Richard A. Jones, Jr., Esquire
Dobson, Jones & Layman
P. O. Box 1923, Greenville, SC 29602
271-8171
(c) William N. Epps, Jr., Esquire
Epps, Krause, Nicholson & Stathakis
P. O. Box 2167, Anderson, SC 29622
224-2111
(d) Luther J. Battiste, III, Esquire
Johnson, Toal & Battiste, P.A.
P. O. Box 1431, Columbia, SC 29202
252-9700
(e) Keith M. Babcock, Esquire
Lewis, Babcock & Hawkins
P. O. Box 11208, Columbia, SC 29211
771-8000

2. Positions on the Bench:
July, 1991 - present Resident Circuit Judge, Fifth Judicial Circuit
September, 1982 - March, 1988 Municipal Court Judge, City of Columbia
Beginning February, 1992 On seven occasions he has served as an Acting Associate Justice of the Supreme Court, most recently on February 3, 1994.

10. Extra-Judicial Community Involvement:
None. Not at all.

We have no -- the Board of Commissioners on Grievances and Discipline reports no formal complaints or charges. The Judicial Standards has no records of reprimands. The records of the applicable law enforcement agencies: Richland County Sheriff's, Columbia City Police, SLED and FBI are negative. The Judgement Rolls of Richland County are negative. Federal court records show no judgements or criminal actions involving you.

There was one civil action in which you were a plaintiff that I believe you discussed last time. It was filed in -- by you and others against the US Department of Treasury. That case was closed by Consent Order in August of '89. No complaints or statements have been received. No witnesses present to testify against you. You do have a right to make an opening statement or we'll incorporate one in the record if you so choose.
JUDGE PLEICONES: Which I'll waive.
THE CHAIRMAN: Thank you very much. I'll you turn you over now.
JUDGE PLEICONES - EXAMINATION BY MR. ELLIOTT:
Q. Since we're incorporating your testimony from the last hearing, I just have a couple of questions.
A. Sure.
Q. First of all, since your last screening a couple of weeks ago, have there been any changes in your status or anything of that nature that the committee might need to know about?
A. No.
Q. Have you sought the pledge of a legislator prior to this screening for the position that you're being screened for today?
A. No.
Q. Have you asked or otherwise authorized any person to make -- solicit pledges on your behalf?
A. No.
Q. Do you have any -- do you know of any solicitations on your behalf?
A. Like Judge Bell, in all candor, a lawyer called me from Charleston a couple of weeks ago and said that a legislator had inquired into the qualifications of all of the candidates for the Supreme Court. The legislator -- this person, which was not at my request, it was gratuitous, said that he had talked to that legislator and, obviously, he said that I was the best qualified or otherwise he wouldn't be calling me. I mean, you know, but --
Q. Or he called everybody?
A. He might have called everybody and given the same information, but, again, I am aware that I have friends and I'm sure that friends of mine have talked to legislators at their request about my qualifications, but I have not requested anybody to talk to members of the General Assembly on my behalf.
Q. Thank you. You list your campaign expenditures with this committee as being in excess of $100, but I don't think -- our records don't show that you filed with the Senate and House Ethics Committee and that's required. If you would just attend to that.
A. I'll do that.
MR. ELLIOTT: That's all the questions I have, Mr. Chairman.
THE CHAIRMAN: Questions from the members? If not, thank you, Judge Pleicones.
A. Thank you.

TRANSCRIPT OF TESTIMONY OF JUDGE PLEICONES AT PUBLIC HEARING OF MARCH 30, 1994:

JUDGE PLEICONES- EXAMINATION BY MR. ELLIOTT:
Q. You've been on the Circuit Court bench for about two and a half years now, and there are some who might have the perception that you need a little more seasoning before moving on to the highest appeals court in the State. How would you respond to the people who have those perceptions?
A. Well, I'm a quick study. I frankly think I need no further seasoning. I have, and I'm happy to say, been asked on seven occasions to serve as an Acting Associate Justice on the South Carolina Supreme Court, in not minor cases. A death penalty case among others, and I feel that I have the necessary experience to serve as an appellate judge.

I have an extensive career as a practitioner and, as you can see, I have an extensive amount of appellate experience as well.
Q. Like some of the other candidates, you ran for public office before becoming a judge. Are you currently engaged in any kind of political activity?
A. Other than this, no.
Q. Other than this. Thank you. I also notice that you have an undergraduate degree in English, and I believe you wrote for your college literary magazine. So --
A. I did.
Q. -- I take it that you like to write?
A. I do indeed.
Q. But it also appeared you hadn't had much opportunity other than in the professional area for writing. I guess mostly that's writing, now writing orders; is that correct?
A. (Witness nods in the affirmative).
Q. What do you strive for in your orders? What constitutes a well composed order for you?
A. One that's succinct, that's as brief as possible, that hits the points of law that were raised by the parties. And the Supreme Court has been returning cases to, or remanding them to a lower court where a judge has not fully ruled on matters that were before him or her, and so I take every point that's raised by the parties and cover each point and make sure that it's supported by an appropriate citation of the authority.

I typically, as with most judges, do not write my own orders, but what I will do and -- is to submit a jointly addressed letter to both parties. Sometimes these letters go on for three and four pages telling them exactly what I want contained in the order by the person who is to write it, and they're very detailed and I take the instructions and compare it to the written, final written product and quite frequently make changes.

Just make sure that everything is hit and everything is appropriately supported by a correct citation of authority. I do check them.
Q. You do check the cite?
A. I do.
Q. If you're elected to the Supreme Court, what is going to be your test for when you feel you -- it's appropriate to write a dissent?
A. When I disagree with the majority.
Q. How --
A. And I don't mean to be flippant.
Q. Well, how strongly will your feelings have to be?
A. Well, the law is not necessarily a black and white thing, and I can be persuaded that there -- to agree with perhaps a shade of gray, assuming that it is not a matter that is of momentous import. But if I feel that the majority is wrong in their application of the law, I would feel that it would be appropriate to dissent in any case.
Q. What's your view of concurring opinions?
A. Of --
Q. Concurring opinions?
A. Well, I think that concurring opinions can be useful. Obviously, they're beneficial to the Bar in determining what the point of view of the sitting justices are, and I think the word concurring opinion -- if I believe that the right result has been reached for the wrong reason, I would have no hesitation about writing a concurring opinion, concurring in the result, but not in the reasoning. And I think that they're appropriate and I think that they're beneficial to the Bar.
Q. What about the position on the Supreme Court appeals to you and what do you think that you particularly would contribute?
A. Well, without sounding immodest, I believe that I have the scholarship that's necessary to serve on the Supreme Court. I think it's an enormous responsibility and I think that I would bring -- I'm proud of my reputation and I think I bring a good reputation, and will bring a good reputation, to the Supreme Court.

I think that I have something to contribute in terms of my scholarship and I just think that -- I really don't know how to respond other than that.
Q. What is it about the job that appeals to you?
A. About the job that appeals to me, other than the visceral things, the prestige and the --
Q. Yes, sir.
A. An opportunity for service. I think that everybody who's in here, in this room, that has held public office or who seeks judicial office or further political office has a desire for public service in his or her life. I share that.

I was a practitioner of the law for 23 years and was moderately successful at that both economically and professionally. I yearn for something other than going to my office at 6:00 a.m. and leaving my office at 8:00 p.m. I could do that. I think that I have a lot to contribute and I think that the desire for public service that I have and that I would like to continue in a role such as that. Public service.
Q. All right.
A. And an ability to contribute. I think that I would represent our State well.
Q. If you're elected to the Supreme Court, what would be your practice about preparing for oral argument? Would you read -- particularly when the case is not preassigned to you, do you read the transcripts, the briefs, just a statement of the case? What do you do and what do you think the practice should be?
A. I think that in every case, it would be perhaps overly ambitious to suggest that anybody is going to read every transcript, every page of every transcript of every case. But the cases are, in fact, briefed very well and summarized very well by the staff attorneys and by the law clerks that the justices have. And I know that, for instance, in the death penalty case that I was on, I read every page of each volume of each transcript, several thousand pages.

Depending upon the complexity of the case, I would tend to think that I would -- there would be cases in which I would read everything. In each case I would not do that, but in each case, certainly, the bench memorandum that had been prepared, obviously the briefs, you would have to read the briefs of the parties. I think you owe that to the parties.

I don't think that -- I do that now when people have oral arguments before me on nonjury matters. The worst thing in the world for a lawyer is to know that his presentation has not been previously read by the fact finder. And so I do have that practice now and I would continue that practice, although I can't represent to this Body that I would read every page of every transcript.
Q. You sort of alluded to what your schedule might be like now and -- for court. What's a typical week for you?
A. Typical week.
Q. Work week.
A. Hours-wise, I get up at 5:15, I go to the Y. I get -- and run. I get to my office about 7:30, quarter of 8:00, and I usually leave about the normal time that anybody leaves, 6:00 o'clock, 6:15. The -- and it goes through
-- I usually stay until 5:00 on Friday and -- even when there's nothing to do, because unfortunately I have this bad habit of answering the phone at 4:00 o'clock on Friday afternoon and it's somebody who needs a TRO.

That's what you get paid to do, so -- and I go in at least one day on each weekend, because I'm a little -- I take on a lot of things. And when you take on a lot of things you have a lot of things that are backlogged.
Q. Well, that sort of leads me to the next question. One of the things that we did is, we've checked, I guess they call it the 30-day report or the report of matters that judges have pending over 30 days. And it doesn't necessarily mean anything, but you did have some matters
-- and the period of time we checked was 1992, '93 and January of '94, and you did have some matters that carried over. If you -- and like I say, it doesn't necessarily mean anything, but could you address that for us, please?
A. Yes, I'd be glad to. When you have 60 cases scheduled for you in one day on nonjury, maybe you decide 58 of them and then you've got two of them that need more attention, and your undivided attention.

I can tell you that last year, for instance, I spent almost six weeks on one case - three weeks in the trial and about three weeks in the motions. That was an extremely complex products liability case. That case, for instance, is still going on because there are post-trial motions. The briefs, the transcripts, the motions in that case fill 72 of the notebooks that you have in front of you there, that size notebook.

I -- when it's something that's that complex, I tend to read it. I tend to be perhaps obsessive-compulsive about reading everything when somebody presents it, and I would think that my 30-day reports would not reflect more than about two or three such matters because --
Q. No, sir, never more than two.
A. Yes. And -- but I think that that probably will always be the case with me because if you've got something that's important, you may put it on the back burner for a while until you get an opportunity to have a lengthy period of time to address it. And it's -- you know, I just -- being thorough, I think.
Q. I'm not sure exactly how you put it a little while ago, but you said something about work seems to find you or matters seem to follow you around --
A. I take things on.
Q. You take things on, that's --
A. Yes. Lawyers come to you. You get paid by the State to be a Circuit Judge. That's what I get paid to do. I think that when I get paid by the State to be a Circuit Judge, if lawyers come to me, and this is not atypical of the Fifth Judicial Circuit Judge, and perhaps it's more common in the larger circuits, you'll have eight to ten minor settlements a week. Those are nothing things, they're no-brainers, in effect.

However, that begins your day, you start at 8:30, doing that because that's the time that the people get in the courthouse. People will seek you out because they know you will take on, for instance, a temporary restraining order at 5:00 o'clock in the afternoon on Friday, or Saturday, you'll go in and do that.

I make myself available. When you make yourself available, people take advantage of your availability and thus, you tend to do as much work as these people have for you. So that's what it is, I just make myself available and people find me.
Q. Do you tend to take on complicated matters or do you like to --
A. I do.
Q. -- handle the complicated matters?
A. Yes, and in point of fact, I mean the products liability case, it was an interesting case. Sometimes you get tired -- even though they're important to the litigants, you get tired of hearing fender bender wreck cases, so -- important and complex products liability case.
Q. You recently lectured at the 1993 State Bar meeting on ex parte communications. What guidance did you offer, what's your personal rule about ex parte communications and were there particular types of situations that you talked about that you felt deserved special attention that are -- don't so easily fall into the black letter law?
A. Well, you know, there are certain permissible ex parte communications. Obviously, they have one built in to our statutory law on death penalty cases. And I can tell you this, on the death penalty cases, I personally have, my practice has been even on the ex parte communication to bring -- the initial one, whether it's an application for funds, as you know, the approval for the expert witnesses, I have -- my practice has been to bring the court reporter into my chambers with the attorney making the ex parte application, ordering that portion of the record sealed, in the event or against the advent that at some point in time an appellant court may wish to scrutinize it. So that's how I handle that particular type of ex parte communication. That's permissible.

I allow -- I get my secretary and law clerk, even though you cannot insulate yourself from ex parte communications by using staff, I generally require people to schedule matters through them for the simple reason that people are not as tempted to pour out their hearts and tell a law clerk or a secretary about their case as they are a judge, and it's usually preceded by something like, "I'm not trying to ex parte you or anything like that," which is, of course, you know, what they're trying to do and it may or may not be innocuous.

I try not to be offensive with people. I try to tell people, look, don't talk to me about the case. If somebody persists, and nobody has, I think that I would have to take the appropriate action, which would be to report it to the Board of Commissioners.

Now, what I do to avoid ex parte communications -- and I've been sensitive to this since the moment that I became a judge because I didn't like the practice of judges communicating with one lawyer relative to the preparation of an order. As I told you earlier, if I have a case that needs, that requires an order after some period of some advisement by me, I would jointly address a letter to the lawyers for each litigant telling which lawyer to -- I want to prepare the proposed order, putting in some detail what proposed findings and conclusions I want in the order and telling the parties that they could consult me by way of a joint telephone conference for clarification, but not for reargument of the case.

Recently our Supreme Court has approved minor refinements or tuning, tune-ups on orders that you've told one party to do. But I don't even do that. I just think it's better to send in the order, and I always put a caveat in the end, so that they don't tell their clients about it, that as always, I reserve the right to make any changes in the order, to include a change in the result. And if you tell them that you're going -- you reserve the right to make a change in the result, the prudent lawyer does not tell his or her client that we've won, we're just waiting for the order to come back.

I try to disarm people more with humor than anything else, than with being overbearing. If somebody comes in, I say, "Look, you know, don't ex parte me about the case." And if they were inclined to do that, they don't do it. If I see one lawyer walking in and I know that, for instance, he got here at 9:30 and the other lawyers, they were supposed to be here at a quarter of 10, to pre-try a case, I just say, you know, wait for the -- you know, so and so to come, and when he gets here, just let me know.

I don't like ex parte communications. I never did and I tend to be perhaps a little more scrupulous about them than maybe even I should be, to the point of being a fault.
Q. It's been a while, but for several years you served in the Public Defender's office. When you hear criminal cases now, is there any tendency or any --
A. Am I a soft-hearted, bleeding heart liberal?
Q. Well, do you have any special sympathies for the criminal defense attorney?
A. I have special sympathies for anybody who's charged with a criminal offense in our state or in any criminal system. The sympathies would extend the -- the extension to them of the Constitutional rights and the procedural rights which they should be afforded.

But in terms of being sympathetic on a personal level, occasionally there will be a case, whether it's a civil case or a criminal case, where you'll be sympathetic to a victim, to an accused person, a plaintiff or a defendant, and you can't divorce yourself from human feelings.

But, you know -- I can't imagine a time that I've let sympathy for a defendant play a -- and I -- probably, stating this truthfully, I need to say a part in the decision, but a significant part in the decision. Certainly, you feel sorry for some people, you know.
Q. But it doesn't affect your objectivity?
A. No, certainly not. I can't allow it to.
Q. In the area of judicial temperament, what's your approach, how do you assure litigants are treated fairly and with respect?
A. I think you've seen my judicial ratings and I think that
-- and I'm very proud of those. I think that I'm generally regarded as according dignity and respect for the lawyers, litigants, jurors. I frankly think that the most important attribute that any judge can have, above and beyond -- you have to obviously be -- have to have personal integrity and you have to have some level of intelligence, but the best thing, the best attribute you can have is a sense of humor, and I don't think you can take yourself too seriously. I mean you take -- you have to take the position seriously. I try to, through a combination of humor and civics lecture when I qualify a jury, the jury panel.

We'll have 150 people in Richland County. I tell them that they'll be some light hearted moments during the course of the qualification, during the course of the voir dire, perhaps during the course of the trial, but once their function begins that the matter is deadly serious to the litigants, it's the most important thing they have.

I try to impress upon the jury the absolute importance of according dignity and respect to all of the litigants, while at the same time, people who come in to court, jurors, litigants, witness, are for the most part intimidated. It's the first time they've been there and they're overwhelmed sometimes, so I try to make them feel as at-home as possible while at the same time maintaining, I think, the decorum of the court. And I immodestly have to state that I think I do an excellent job of doing that.
Q. What tries your judicial temperament the most?
A. Well, I have a three-by-five index card that I put on the bench when I -- I don't know if the word is ascended to the bench, or when I was elected to the bench. I put it out there and it sits there today, and it says, "Remember where you came from."

By that, I try to remind myself that I was once a lawyer and that it's not easy being a lawyer. Being a lawyer is one of the hardest things that there is, particularly a lawyer who litigates frequently. I try not to let anything get to me.

I guess abject stupidity gets to me more than anything, on the part of a lawyer, because I get infuriated if a lawyer is not appropriately representing his or her client's interests through not a well considered strategic approach, but just you didn't read the book. You know, if they don't know what Rule 24 is or Rule 43, and I don't like lawyers who aren't prepared.

But I don't -- you can't hold that against their clients except as may be necessary. Now, obviously, there are tenants of law that if a person selects a certain lawyer, you have to hold the lawyer's mistakes against the client sometimes.

But I guess dumb mistakes. And I don't mean mistakes of inexperience, because you get young lawyers in all the time. Mistakes of inexperience could be strategic judgements. I'm talking about the person that didn't read the book.
Q. On your Personal Data Questionnaire, you reported having an interest in a Hampton Office --
A. I do.
Q. Hampton Street office building and, as I understood it, that was an office building with your former law firm.
A. Uh-huh.
Q. It also indicated that apparently you must have made an attempt to divest your interest in that and there were serious financial consequences if you had done so.
A. Right.
Q. And what do you do when those attorneys appear before you now, the ones that you have in that partnership with you?
A. As you know, the ethical considerations require you to divest yourself of a business interest that may create a potential conflict as soon as practicable and without economical adversity to any party. That particular office building is going to be perhaps forever an economic adversity to divest myself of that interest.

And, as you also noticed on the Personal Data Questionnaire, I have just determined that I will permanently recuse myself from anything involving my old law firm. I don't -- they don't appear before me. Anything that they are involved in -- even if I get rid of the building that I own with them, I'm not going to hear any of their cases, and I'll tell you why. It's simply because I could not -- having practiced law with these people for as long as I did and having the kind of relationship that I had with them, there's no question in my mind that I would be biased in their favor, and I simply won't do it.

It does not create a problem in, thankfully, in Richland County owing to the fact that we have five judges within the Circuit and so although my law firm, my old law firm is all over the docket, they're fairly easy to duck. So that's what I do, I just don't hear their cases.
Q. Just a point of clarification. Your Personal Data Questionnaire reported that you're receiving fees through, I think, 1993 --
A. I did through 1993.
Q. And those were for services prior to your going on the bench?
A. Absolutely, yes.
Q. Well, I say point of clarification.
A. Yes, yes.
Q. You're a member of the American Inn of Court?
A. I was a charter member of the John Belton O'Niell Chapter of the American Inns of Court. I resigned from the organization, I think, shortly after I -- about a year after I got on the bench, frankly, because that membership roles are limited and I felt that somebody else should perhaps have an opportunity to serve on that body, and also because the dues was $500 a year and my old law firm paid them, and now I'm on a fixed income.
Q. You had a couple of lawyers to write you letters of recommendation to this Committee.
A. Uh-huh.
Q. How did you determine what lawyers to ask -- well, how did you determine who was appropriate to ask to write a letter of recommendation?
A. First of all, I read your judicial evaluation criteria and I was also sensitive to the fact that you said that the Committee may consider it to be inappropriate if lawyers who frequently appear before you wrote letters of recommendation.

You will note that of the four people holding law degrees who wrote letters of recommendation for me, one no longer practices law, is a university official, a college official; one has now become a federal judge and was pending that appointment at the time. The other is in Anderson and was a college classmate and fraternity brother of mine. I wanted somebody who had known me for a number of years, yet who had never practiced before me and who likely never will practice before me. That person does not do appellate work and it's very unlikely that he would ever appear before me as a trial lawyer.

The other person is a person likewise who was involved in the judicial selection process at the time that I became a municipal judge. He was on the city council and I felt that it would be beneficial for this committee to have the benefit of that background. That lawyer, to my knowledge, I cannot say for an absolute fact, has never appeared before me, but I don't remember if he ever has.

I know that one of his partners at one time appeared before me in a criminal case, but as I put on my note, the addendum, these people are not likely to appear before me simply because of the nature of their practice.
MR. ELLIOTT: That's all the questions I have, Mr. Chairman.
THE CHAIRMAN: Questions from the Members? Thank you, Judge.

END OF PRIOR TESTIMONY OF JUDGE PLEICONES.
THE CHAIRMAN: Were there any -- Judge Kinard, I got the feeling you wanted to say something when we were talking about --
JUDGE KINARD: Well, no, I don't want to impose on the committee. I recognize ya'll have very serious business to take up at 12:00. Everybody heard one of the complainants against me. It wouldn't take me long to reply. I'm in the middle of a malpractice case that's going to start back at 2:00, an expert witness, in and out. I don't know what this gentleman's complaint is because it wasn't specific. But if it's not lengthy since I just appeared last month, my total testimony wouldn't take but five or six minutes. That's all. Now, I'm perfectly willing to come at 2:00, obviously.
THE CHAIRMAN: Why don't we move into it and just see what kind of time it takes? We'll do that.
J. ERNEST KINARD, JR., having been duly sworn, testified as follows:
THE CHAIRMAN: Your last screening was March 29 of 1994, as you noted. Our plan would be as with the other candidates who appeared before us before to incorporate your testimony into the record from the last hearing.
JUDGE KINARD: That's certainly acceptable to me.
THE CHAIRMAN: Have you had a chance to review your Personal Data Questionnaire?
JUDGE KINARD: I have reviewed it except for a few typos, it's fine. It can be published as --
THE CHAIRMAN: Any corrections, clarifications other than that?
JUDGE KINARD: No, no major corrections.
THE CHAIRMAN: Any objection to our making that a part of the record?
JUDGE KINARD: That can be part of the record.

1. J. Ernest Kinard, Jr.
Home Address: Business Address:
1900 Lyttleton Street Room 310, Kershaw County Courthouse
Camden, SC 29020 1121 Broad Street
Camden, SC 29020

2. He was born in Newberry, South Carolina on October 18, 1939. He is presently 54 years old.

4. He was married to Kay Livingston Davis on July 21, 1963. He has three children: Kay Marie, age 28 (teaches English at Camden High School); Audrey, age 26 (teaches English at Summerville High School); and John, age 23 (Assistant Manager of First Palmetto Savings Bank in Lancaster, SC).

5. Military Service: N/A

6. He attended Clemson University, fall of 1957 until mid-year of 1960, then transferred to the University of South Carolina with plans to subsequently enter USC Law School. He graduated USC in 1961, with a Bachelor of Arts Degree. He entered law school in the fall of 1961. He graduated mid-term of 1964 with a LLB Degree (Wig & Robe while in law school).

8. Legal/Judicial education during the past five years:
4th Annual Criminal Law Review at USC; January 20, 1989; 5 hours JCLE credit
Current Issues in Civil Litigation at USC on April 15, 1989; 5 hours JCLE
National Judicial College at Reno, Nevada; July 9 - August 4, 1989; 126 JCLE hours credit
Items of Interest in Circuit Court at USC; October 26-27, 1989; 7.5 hours JCLE credit
Also attended CLE's at Mid-Year and Annual Meetings of S. C. Bar for 9 hours JCLE credit
Circuit Judges meeting; 6 hours JCLE credit
Circuit Judges Annual Conference; 1989; 7.5 hours JCLE credit
Criminal Law Update in Columbia; January 25-26, 1990 for 10 hours JCLE credit
Charleston Seminar in Charleston; 3/30/90 for 5 hours JCLE credit
In 1990, he also attended CLE's at Mid-Year meeting of the Bar in January, Trial Lawyers in August and Defense Lawyers in October for 10 hours JCLE credit
Circuit Judges Association; 6 hours JCLE credit
Circuit Judges Annual Conference; 7.5 hours JCLE credit
Criminal Law Update in Columbia; January 25, 1991; 5 hours JCLE credit
The Future & the Courts at Greenville, SC; April 4-5, 1991; 10 hours JCLE credit
Also attended CLE's at 1991 Annual Meeting of the South Carolina Bar held in Hilton Head; June 7-8, 1991. Trial Lawyers Annual Meeting at Hilton Head; August 15-17, 1991. Defense Attorneys Annual Meeting at The Cloisters in Sea Island, Georgia; November 8-10, 1991
Attended Circuit Court Judicial Conference; August 21-23, 1991; at the Marriott Hotel in Columbia
Criminal Law Update in Charleston; January 17, 1992; 5 hours JCLE credit
Employment & Labor Law in Asheville, North Carolina; June 20, 1992; 3 hours JCLE
Bench/Bar Update in Columbia; October 9, 1992; 6.25 hours JCLE credit
Environmental Law in Columbia; January 23, 1993; 1 hour JCLE credit
Law and Economics in Columbia; February 27, 1992; 1 hour JCLE credit
Courts, News Media & the Law in Columbia at USC; October 22, 1992; 1.25 hours JCLE credit
Attended on January 8, 1993; 3-224 - 42 USC Sec. 1983; the SC Torts Claims; 6 hours JCLE credit
Attended on January 30, 1993; 3-230; Mid-Year Meeting; 8th Annual Criminal Law Update & S. C. Bar for 6.5 hours JCLE credit
Attended on August 29, 1993; 3-1431; 1993 Annual Convention of SCTLA for 12 hours JCLE credit
Attended on September 19, 1993; 3-1548; Settlement Techniques, ABA; for 11.67 JCLE hours
Attended on September 22, 1992; 3-1547; Significant Developments in Search and Seizure, ABA; 13.33 hours JCLE credit
Attended on August 26, 1993; 3-1251; Judicial Conference, SCCA; 7.5 hours of JCLE credit
Attended February 27-March 5, 1993; Advanced Constitutional Criminal Procedure in Scottsdale, Arizona; 32.5 hours of JCLE credit
Attended February 4, 1994; Practical Aspects of Arbitration & Mediation at Inn of Court; .75 hour of JCLE credit
Attended May 25, 1993; Practical Aspects of Arbitration & Mediation at Inn of Court; 1 hour JCLE credit
November 4, 1993; Opening Arguments and Closing Arguments; 1 hour JCLE credit

9. Taught or Lectured:
Presented Trial and Appellate Advocacy, 1989, CLE
Panelist on Bench Bar 1992 Update - October 9, 1992 JCLE
November, 1992 - presenter at CLE on Automotive Law Materials prepared by Honorable Ralph King Anderson
JCLE material presented jointly with Mike Tighe - Default Matters
- 1991
Moderator and Program Coordinator at October, 1993 JCLE
Panelist at 1994 Criminal Law JCLE
Panelist at 1990 JCLE State Grand Jury Overview
Panelist at various S. C. Defense Lawyers Conferences
Presenter 1992 and 1993 meetings of Circuit Judges of jury charges

10. Published Books and Articles:
Published Trial and Appellate Advocacy for 1989 CLE
Published Workplace Defamation and other Ancillary causes of action in employment claims
Published JCLE material jointly with Mike Tighe - Default Matters -1991

12. Legal experience since graduation from law school:

While in law school he clerked for the old McKay firm performing general duties as well as research and rendering trial preparation assistance and was permitted to sit with the late Gus Black, Eli Walker and the McKays, Doug, Jr. and Jay, during various trials. Upon gradation from law school in January of 1964, he moved to Camden and clerked for Henry Savage, Jr. and Ed Royall until admission to the Bar in April of 1964, when he became an associate.

Henry was a business attorney and tried with his assistance in mid-1964 his only Circuit Court case in his 24 years with the law firm. Mr. Savage successfully caused the reassessment of all Kershaw County realty, which Order for reassessment Judge Kinard assisted in drafting.

The firm was strictly a defense firm when he arrived. Ed Royall generally preferred to handle non-circuit matters; so since he appeared at ease with motions, pleadings and procedure within the court system, most of the litigation was turned over to him, although Ed obviously assisted him where their exposure was great or his experience needed. Domestic cases and equity matters were quickly added to his slot, along with City Court appearances and a few Worker's Compensation hearings. By 1965, when he was made a partner, they had picked up several new carriers as clients and also expanded their representation in commercial litigations, with the addition of several finance companies to their clientele. Several utilities and roads have crossed portions of Kershaw County during his practice years and he has participated in or handled many such cases. Over the years, he has appeared in Social Security Disability, Unemployment Security Commission and zoning type matters as well as appearing in Coroner's inquests.

In trials, his representation of Defendants in personal injury litigation exceeded that of Plaintiffs, but they had fair success representing Plaintiffs and the firm has had at least one settlement exceeding $100,000 per year, fortunately, for the last several years that he practiced with the firm.

As managing partner in charge of personnel and procedure from 1968 until his departure in May of 1988, delegating and assigning various cases and functions to firm members was his responsibility. They added Bob Sheheen in 1968, Bill Byars in 1972, Moultrie Burns in 1974, Doug Robinson in 1979, Dana Morris in 1983, and John Rabb in 1987, and he generally trained Bob, Bill, Doug, Dana and John in trial procedure and tried jury cases with each of them.

On the criminal side, in his early years the firm did not handle criminal matters, but he was immediately court appointed on many cases, which exposure led to his acquiring several fee producing criminal cases. Through the years he has been involved in the defense of virtually all crimes from hunting violations in Magistrate's Court through several murder trials in Circuit Court and trial defense of a bank president on an embezzlement charge in Federal Court. However, he did prefer civil practice, so he generally ceased handling criminal cases in 1975, as Bob Sheheen and Bill Byars of his former law firm handled those cases, and he would not generally participate unless some special circumstances required his input.

The firm handled numerous real estate matters over which he generally supervised the closing, including many commercial projects such as apartment projects, shopping centers, with many realtors and builders as clients, numerous contract and commission controversies he personally handled through litigation. Generally small estates were handled by other firm members, but he did handle a few large estates and prepared estate tax returns for the firm.

Over the years, routine foreclosure, collection suits and claim and delivery actions became his responsibility, which functions he handled as one of his secretaries was quite competent in setting these actions up and following through with minimum attorney input.

Prior to 1979, he filed a few bankruptcies for the firm and studied the changes. Since then bankruptcies with the new changes have mushroomed. While the bankruptcy practice only consumed about 10% of his total law practice, from September of 1987 through December 31, 1987, he filed 21 individual and corporate bankruptcies, consisting of Chapter 13's, Chapter 11's and 7's. From the first of 1988 until his departure in May of 1988, he filed about 5 more. He handled bankruptcies for individuals and corporations in all the surrounding counties, as there was apparently no attorney in the area outside of Columbia who would then handle them. He was fully competent to handle all styles from individual through business reorganizations, and he also represented creditors in bankruptcy matters.

As managing partner, he was cognizant of most of the pending cases, but he had moved toward a business and tax planning role as the firm's representative of local banks. His services at that time as personal attorney for a savings and loan and his representation of various business interests dictated that much of his time be thus spent at roster meetings. Interrogatories, pleadings and depositions required blocks of time he could more profitably spend on other matters. Therefore, as mentioned above, his limited criminal practice had ceased, and he had limited his Family Court practice to a minimum and would have eliminated it entirely if family problems were not interwoven with business relationships. The savings and loan that he represented, First Federal, converted to stock ownership. He prepared proxy statements and obtained their approval for the years 1986 and 1987, and in addition also prepared proxy statements and obtained its approval in 1987 for Palmetto State Savings and Loan. Palmetto State and First Federal merged after he became a judge.

He represented numerous realtors and builders and handled numerous warranty and contract disputes.

After his election to the bench and swearing-in on May 3, 1988, he has presided over numerous civil and criminal trials, heard agency appeals, and non-jury merit and motion matters.

13. Rating in Martindale-Hubbell: "AV" was last rating.

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Mary Whitaker v. Catawba Timber Company; Court of Common Pleas; Kershaw County, South Carolina (81-CP-28-159); decision May 3, 1982; Judge Walter J. Bristow, Jr.
The Plaintiffs in 1947 agreed to accept an increasing yearly rental for a 66-year term for about 260 acres and further executed an option to purchase for $15,000 any time after the 20th year increasing 5% per year from the 21st year through the 66th year of the lease term. Plaintiff filed suit seeking cancellation of the lease and option after he attempted to exercise the option to purchase for the company. Basically, the Plaintiff alleged inadequacy of consideration and that the option violated the rule against perpetuities. He paid the consideration into court and counterclaimed, seeking specific performance. After a trial without a jury before Judge Bristow, Judge Bristow executed an Order granting specific performance, and they immediately closed the purchase. A group of cases do hold such a clause violative of the rule and that issue was novel to South Carolina; however, his research had found the majority rule to hold favorable in similar circumstances, including a then recent Georgia decision involving a landowner, a paper company and a 60-year lease. Catawba Timber is a subsidiary of Bowater and many thousands of acres were under option under similar leases. House counsel for Bowater advised him that based on his research, they ascertained that their options in several states would possibly be held to violate the perpetuities rule in those states. They accordingly exercised all their options to purchase rather than risk litigating the issue again which, of course, is why he, as sole counsel, found the case to be significant.
(b) Foxwood, a Limited Partnership v. Town of Kershaw; 80-CP-20-10; Court of Common Pleas; Lancaster County; decision Judge George Coleman; July 14, 1980.
The Town of Kershaw refused to permit an apartment project to connect to its water and sewer facilities after earlier granting permission. The suit was for a writ of mandamus and also sought injunctive relief alleging basically that the city was estopped, that water hook ups were ministerial functions and could not be arbitrarily withheld, and that quasi-zoning by granting or withholding water taps denied equal protection. Judge Coleman ordered the Town to furnish the services. The Town filed Notice to Appeal, which was eventually dismissed in early 1981. Incidentally, their clients then sought issuance of permits and the Town refused, resulting in their filing suit seeking damages and a contempt order against each council person. Prior to hearing on the contempt matter, the Town agreed to cooperate, and they filed an Order of Dismissal in June of 1982, with the apartment project finally commenced in late 1982, and is now completed. He feels this case to be significant in that it again shows that if you persevere, elected officials will be compelled to perform their legal duty and will acknowledge that they also are under the law.
(c) The State v. McKinley Thomas; Murder Indictment; Trial in Richland County, South Carolina
Criminal case about 20 years ago when Theodore Byrd and associates marched 2 Kershaw County deputies off I-20 near Elgin, killed Officer Potter and severely injured a fellow officer. The case was tried by Solicitor John Foard before Judge Grimball just before the Solicitor's defeat by Jim Anders. The trial was widely publicized and took a week to try. He spent at least one month working on that unpopular court appointed defense, including many trips to Columbia, and never received any compensation, as the defense fund was exhausted when the claim was filed, as he recalls. The trial was complex, many attorneys were involved, including the Richland County defense group. He served as Chief Counsel for this defendant and examined every witness and argued to the jury. They successfully overcame the old "hand of one is hand of all" argument in the face of the previous knowledge brought out in the trial that Byrd had killed another officer the previous night with the defendant and others in attendance and also that all defendants were holding guns on the officers when Byrd started shooting. The jury found the defendants, except Byrd who had pleaded guilty, not guilty of murder and other related charges, finding guilt only of larceny of the officers' pistols, as he recalls. Overcoming the Solicitor's vigorous presentation and the legal issues presented made the case appear significant to him. His jury arguments, since he felt the defendant should be found guilty, against the hand of one theory was his most trying moment in his career. While he did not falter during the argument, he honestly never felt that a not guilty verdict was within the realm of possibility. He took no pride in that verdict when received, but did learn to rethink some of his previous conceptions of how juries arrived at verdicts and feels that his trial skills were helped by participation in that apparent hopeless decision.
(d) Helen Best, et al. v. L. L. DeBruhl, Court of Common Pleas, Kershaw County, South Carolina.
He was chief counsel in this case, ably assisted by the late Judge Clator Arrants and Senator Donald Holland, decided over 20 years ago, which involved suit by the Plaintiff against the then Sheriff of Kershaw County alleging false imprisonment and violation of various civil rights statutes growing out of the Sheriff's arrest of three middle-age ladies from the Bethune area on alleged drug possession. A reliable informant advised the Sheriff that the ladies who were under surveillance had certain drugs in their possession and where they were to be. The Sheriff picked up the ladies and brought them to the jail and asked if his wife could search them (this was before they had any female officers in the County) to which they consented, provided they could first use the bathroom, which consent was then given (their Sheriff was then younger and not as experienced). Obviously, the subsequent search uncovered no controlled substances. The case was difficult to defend as some procedures were not properly followed and the Sheriff refused to identify his informant or permit us to present other drug related evidence damaging to the Plaintiffs, earlier obtained by his force. The case was tried before Judge Wade Weatherford and resulted in a verdict for the Defendant. The case seems significant in that it was widely publicized, and the favorable verdict tended to discourage frivolous suits locally against elected officials. In fairness, they would have been pressed to have won the case had suit been filed in Federal Court due to the minor procedure violations mentioned above. Plaintiffs' attorneys permitted them to paint a damaging portrait of their clients by innuendo, which would probably not have been permitted in Federal Court.
(e) Hovis v. Wright, Fourth Circuit; January 10, 1985; 84-1128.
This was a bankruptcy matter where he filed a school teacher in bankruptcy and claimed as exempt from bankrupt proceedings, the State's retirement contributions of his teacher/debtor, which amount at that time exceeded $8,000. Judge Davis, on motion of the Trustee and hearing, ruled that the Trustee could reach the State retirement fund. He appealed, and Judge Perry for the District Court held that the Trustee could not reach the funds. A subsequent appeal was taken to the Fourth Circuit, where it was held that the funds could not be reached. This case was very important since not only his individual teacher, but all State employees were affected by the outcome. He doesn't know the exact number, but about 40 State employees' retirement benefits were riding on the outcome of this decision at the time of the final adjudication. He did not actually appear before the Fourth Circuit as he asked the Attorney General to intervene since the State's interest appeared great, and they graciously furnished counsel. He did file a brief, but did not appear before the Fourth Circuit.

20. Judicial Office:
Elected to Circuit Court, served from May 3, 1988 continuously. Resident Judge of the Fifth Judicial Circuit

21. Five (5) Significant Orders or Opinions:
(a) Centaur, Inc. v. Richland County, South Carolina; Richland County Court of Common Pleas; 87-CP-40-5320; November 3, 1988.
(b) South Carolina Department of Highways and Public Transportation v. W. Richard McClellion and D. C. Bryson; Newberry County Court of Common Pleas; 91-CP-36-234; July 30, 1992.
(c) State v. Russell Eugene Blankenship; Richland County Court of Common Pleas; 90-1277; January 3, 1991.
(d) Felecia Nadine Belton v. The South Carolina State Housing Authority and the South Carolina Budget and Control Board, Division of Human Resource Management; Richland County Court of Common Pleas; 88-CP-40-4732; March, 1991.
(e) The Murray Properties Partnership of Dallas v. L. P. Cox Company and L. P. Cox Company v. Plantation Oaks Investors, Ltd., a Texas Limited Partnership, and Murray Properties Investors XXIII, Inc., and Crozier Dallas Associates, Ltd., as general partners, The Murray Properties Partnership of Dallas and Interfirst Bank Dallas, N.A., Charleston County Court of Common Pleas; 86-CP-10-2288 and 86-CP-10-3765; February 3, 1989.

22. Public Office:
He was President of the Kershaw County Chamber of Commerce in 1983; elected by the members as President of the Camden Country Club, 2 years from 1981-1982 and 1982-1983; elected as Vice-Chairman of the Wateree Community Actions from 1969 to 1972 by the membership, appointed to the Board by the Kershaw County Council, elected Vice-Chairman by the members; appointed by City Council to serve on the Board of Kershaw County Commission on Drug Abuse from 1970 until 1975.

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

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

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

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

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

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

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

44. Bar Associations and Professional Organizations:
American Bar Association; South Carolina Bar Association; Kershaw County Bar Association, Secretary 1965, President 1967; American Judicature Society; sustaining member of South Carolina Bar Foundation; John Belton O'Neall Inn of Court; National Judicial College Assembly; South Carolina Association of Circuit Judges; Chairman, South Carolina Civil Jury Charge Committee

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

46. He has held court in 26 counties and has always moved dockets without, he feels, unduly pressuring attorneys or litigants. He was head of the first Bar sponsored Settlement Week, which success has assisted the Bar in moving toward ADR in many actions. He was the first Presiding Judge over the State Grand Jury - having qualified three of the State Grand Juries, and served as Presiding Judge of State Grand Jury for 2 years, alternate for 18 months and is currently alternate. Two years of service as Chief Criminal Administrative Judge and over 19 months as Civil Administrative Judge in the Fifth Judicial Circuit has prepared him for virtually any matter. Presiding in a high media area has opened his service to full public scrutiny.

Additionally, while in private practice, he prepared for his clients, his firm and other attorneys untold agreements, including complex wills, trial briefs, complex trust agreements, partnership documents, corporate documents, complex leases, timber sales agreements, proxy statements, shopping center and apartment project leases, restrictive covenants, tax free exchanges, buy and sale agreements, mergers, sale of assets, Chapter 11 and 13 Plans, decrees in virtually every equity and family court type proceeding and is unaware of any problem with any drafted document, many of which served as models for the local bar.

47. Five (5) letters of recommendation:
(a) R. Donald Terrell
NationsBank
1025 Broad Street, Camden, SC 29020
425-7268
(b) Larry H. Parrott, M.D., Pathologist
Kershaw County Memorial Hospital
P. O. Box 7003, Camden, SC 29020-7003
432-4311
(c) Terry M. Hancock, Esquire
Sheheen, Hancock & Godwin
P. O. Drawer 428, Camden, SC 29020
432-1424
(d) Robert A. Carswell, CPA
Carswell, Cantey, Burch & Associates
P. O. Box 862, Camden, SC 29020
432-1436
(e) H. Davis Green, Jr.
H. Davis Green, Jr. Appraisals
1109 Broad Street, Camden, SC 29020
432-6226

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

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

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

We do have two complainants who are here to testify against you. I offer you the same opportunity as all other candidates to either reduce to writing or make an oral statement if you so choose to be entered into the record.
JUDGE KINARD: I'll, of course, waive the opening statement in the interest of time.
THE CHAIRMAN: All right. I turn you over to Ms. McNamee at this time.
JUDGE KINARD: All right. Ms. McNamee.
JUDGE KINARD - EXAMINATION BY MS. MCNAMEE:
Q. Good morning, Judge. Since that screening a very short period of time ago, have there been any changes in your status or anything of that nature that you would like the committee to know of?
A. No changes to my knowledge.
Q. Yes, sir. We have two different amounts in terms of expenditures. One that went to the Senate and the House Ethics Committee and one that was on our PDQ. Will you just make sure that the -- we are updated?
A. Right. I filed the same in the last screening, but apparently I only filed with the House Ethics and Senate Ethics Committees, but I have no other expenditures except for copies that I ran off when I got your call at 5:00 yesterday.
Q. Yes, sir.
A. A quarter to 5:00. I don't know when that was.
Q. Have you sought the pledge of a legislator prior to this screening for this particular seat?
A. I haven't.
Q. And have you asked or otherwise authorized any other person to solicit or seek pledges on your behalf?
A. No, I have not.
MS. MCNAMEE: That is the end of the first questions.
THE CHAIRMAN: All right, let's do this, are there any questions from the members? Let's ask the other complaining witness to step forward. Judge Kinard, if you'd take your seat again and we will hear from that complaining witness and then we'll give you a chance to respond to both complainants.
A. All right.
THE CHAIRMAN: Mr. Juan Ortega. If you'd step forward, please, Mr. Ortega.
JUAN ORTEGA, having been duly sworn, testified as follows:
MR. ORTEGA - EXAMINATION BY MS. MCNAMEE:
Q. Mr. Ortega, would you state your name and your address.
A. Juan Carlos Ortega, 626 Sallie Baxter, Columbia, South Carolina.
Q. Mr. Ortega, we have an affidavit from you which states your desire to testify regarding Judge Kinard's rulings and courtroom statements in two particular cases. Judge Kinard has provided us with his order in the first case, which I believe was settled, and the name of that case is Weston, et al., Plaintiffs, versus Kingfisher Horizontal Property Regime. And it has a Consent Order of Compromise and Settlement.

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

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

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

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

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

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

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

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

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

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

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

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

The Real Estate Commission won't protect you. Steve Hamm says that's not my job. The Attorney General's Office is not interested. I think the only people that are interested in now are the FBI. These people went through all these administrative procedures and expenses to get just treatment. I think the Court of Appeals ruling on the overturning of one ruling that Judge Kinard made showed that he really didn't look into it or didn't care, his mind was made up and I don't blame him. I think he was perfectly justified in doing it.

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

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

Now, have I tied this together or am I totally out of order in this proceeding?
Q. Is it your position that Judge Kinard should not have followed the statute of the state?
A. Absolutely not.
Q. He should not have followed --
A. You've been trying to get out of me anything that Judge Kinard did wrong. I don't think he's done anything wrong. I'm not complaining about him. I'm complaining about the situation he found himself in and the way he ruled.
Q. But the way he ruled, you're not complaining about?
A. Not really, no.
Q. Okay.
A. But I am making you aware of it.
THE CHAIRMAN: Questions from the --
SENATOR SALEEBY: I'd like to say this to you, I have been aware of our weak law that was passed some years ago by a very influential lobbyist and I think it's a disgrace, but we have not had the ability to change it as yet. Okay?
A. May I make a comment about that?
SENATOR SALEEBY: Well, I just wanted -- no. I don't --
A. May I --
SENATOR SALEEBY: I don't want to prolong the hearing, but I know we've got a weak law, and I wouldn't hold that against the judge.
A. I have taken a draft to the Real Estate Commission to revise that law and I have made some other revisions to it reflecting the Florida law and Mexican law and I submitted it to John Courson and it died.
THE CHAIRMAN: Questions? Other questions? Thank you, Mr. Ortega.
A. Thank you.
THE CHAIRMAN: Judge Kinard. You're still under oath.
JUDGE KINARD: Okay.
JUDGE KINARD - EXAMINATION BY MS. MCNAMEE:
Q. Judge, you said you like the complex cases, and I have a feeling this was one of them.
THE CHAIRMAN: Let's take first things first. Let's -- the first -- let's take the first case and then we'll move into Ortega.
A. The first case is quite simple.
Q. The first case was Ms. Hull?
A. Hull's case.
Q. And it --
A. Are you all right, Ms. Hull?
MS. HULL: Am I all right?
A. Sure.
MS. HULL: Uh-huh. Yes.
A. Of course, I have submitted the entire transcript of the proceedings in front of me involving Julie Gates. Julie Gates was not brought before me for a sentencing, but actually was brought before me because she had three weeks earlier pled in front of Judge Baggett who gave her probation. Now, since I have submitted the transcript, the transcript will speak for itself and I am somewhat in jeopardy because there are differing philosophies on sentencing of people who engage in white color crime. Ms. Hull, obviously, has a position.

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

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

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

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

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

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

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

So then, which might have been too severe, I put her in jail for 30 days. I recognize with her health problem. I was running the risk of actually making this a death sentence, so I allowed her to pick the day, as Ms. Hull indicated.

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 doesn't really have that criminal intent to permanently deprive whoever of that money. Beyond that, I see nothing wrong with that. But I'll answer any questions about that. The record will reflect that.
THE CHAIRMAN: Questions of the members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Do I understand correctly you gave a 30-day sentence based upon the health reports and everything that were given to you and the liability to the state?
A. That's exactly right, staggered one day a week because she was awaiting a heart transplant. She had, according to the records, three bypass operations, she was going to need a hysterectomy because of a cancerous condition. She was on massive medication that she had to take on a daily basis. And I felt like a continued period of confinement would, in fact, amount to a death sentence, which it didn't rise to that level from my viewpoint.
THE CHAIRMAN: Other questions? Let's talk about Mr. Ortega's complaint.
A. All right, as far as Mr. Ortega is concerned, as you know -- it's late and ya'll need to go -- a person's strengths, of course, are their weaknesses. Their strengths can be used against them. In 1990, I appeared at a nonjury motion hearing involving one of these cases. I don't know which one. The litigants themselves were present. There was an entourage of individuals who were not party to the litigation. The attorneys were all talking at the same time.

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 lawsuits involved every provision in the bylaws, every corporate action taken and so forth. I'm not drawing this out, but I dealt with it. I culled through it specifically this order dated January the 9th, 1991 on behalf of a major dissident, which you do not have there, an order and writ of mandamus and I directed the homeowners' association to furnish copies of every unit holder, every stockholder, address and whether or not they had paid their dues and do that by a specific date. They kept saying"We've already done that. I took care of that."

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.

A little bit later they appeared in front of me on a motion on -- this motion on interpretation. I addressed it. A copy of my order is there. I felt that since this corporation was formed in 1983, you had five or six thousand stockholders in the meantime who had agreed to stagger the term of election and other provisions, that they contractually had agreed to. The Court of Appeals said no, that was wrong. I honestly thought that they had waived it in the Consent Order. My mistake by not including it at that time. All that would have been over.

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?
A. Well, the work load is ever increasing, of course, as you know. I've been a judge actually about six years come next month. Unfortunately, I've been Chief Administrative judge in Richland for almost four years, two years in criminal and two years civil. I'm in my twentieth month of being the Civil Administrative judge here. The criminal numbers, of course, are staggering.

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.

We are -- we have about 45 mediators who are attorneys with their hourly rate. And we hand select the types of cases -- actually been filed six months, and the letter went out last week asking the attorneys if they would participate. We have the -- they can pick their mediator and if they agree to mediate, it's taken off the trial dockets and so forth.

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 prior crimes in the Federal system, we don't have one in the State, but I try to adhere to that and -- another area of some concern, of course, are the Dole (phonetic) issues -- well, those are the only two real problems. I think there'd be no real changes --
Q. What is your reason for wanting to be on the Supreme Court?
A. All right. I really always wanted to be there and this is an opportunity, but basically we all have gifts. I think I have a fair gift of sight. So far it's been sight of awareness of what's happening around me, some insight and a limited degree of foresight. I'm sure my strongest aspect of sight is hindsight. I've never been able to practice. On the appellate bench, I believe I'll have an opportunity to review mistakes of others.
Q. What are your thoughts about writing dissents?
A. Well, that's a conscious matter as others justices have said. I do feel, though, I'm not directly answering the question. I would write a dissent if there was a matter of conscious involved.

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, B, C, D, E, F and G, I would just pull that out and read that and say yes, a judge needs to excel in all those areas.
Q. How do you deal with the stresses of being a Circuit Court judge? And perhaps, you might want to start by telling us about your workday, or your workweek?
A. Well, I get there about 8:00, I leave before 6:00. I eat lunch maybe once every two weeks. That's basically it. I am a speed reader which helps a lot especially in this circuit. I just whip through it before you get there, I don't have things under advisement. I decide. You have to in this circuit.

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.
Q. Oh, would you, please?
A. Again, I've read all the screening reports and it's just not that easy to say. If I was an associate justice, the answer is never and you can say that absolutely and truthfully. As pure as the driven snow, you can do that. I'm Chief Administrative Judge here, I cannot avoid them. I just deal with them and I will explain.

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 reach the other attorney to ask him if it's okay if I can talk to the other side, if I can't, depending on that, all I want to know is not about the case, what type of case is it, how long will it take to try it and are there any Discovery problems. That's all I want to know. The whole Bar here has no problem with that.

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 of the litigants at any time, I put that on the record. I may or may not recuse. It just depends.
Q. Could you explain your statement on the PDQ that you plan to put your stock holdings in a blind trust if you're elected to the Supreme Court? Why is that different?
A. Well, I didn't say all. I said the majority of them if you read it.
Q. The majority.
A. Because I don't want to have to recuse. I have so much stock that it's -- just shares of stock that I just don't want to have to recuse all the time. And not only on the main companies, but the subsidiaries and you can get in trouble not knowing that this corporation is XYZ is a subsidiary of AB and C. You just don't know that.

You sit on the case, then you come back for screening and you ask me the question, then you write the majority opinions sustaining this whatever, you own the stock in. So if you don't have it, you avoid that problem.
Q. What is your policy about accepting meals or anything of value?
A. Well, I gave up --
Q. Yes, you don't eat lunch.
A. -- eating meals. They don't do that anymore. I mean social hospitality around here, the year that -- who was it? Freeman or somebody. They didn't even have a Christmas party in Richland County. Now, they've started back again. We go to that and other judges are invited and I go to the Bar conventions type activities, but that's about it.

I am in a Supper Club with an attorney in Camden, but his wife went to Winthrop with my wife who is sitting there. We got married the same day and the same time and we've been in the Supper Club 30 years, what am I supposed to do? I put that on the record if he's in front of me, but he rarely --
THE CHAIRMAN: Questions from the Members?
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. I'll have to ask him about his early days at Clemson. Did you and John Lane's paths ever cross?
A. Clemson was, of course, during my very formative years and I had a good time there and I still have a good time there whenever I get back up there a couple times a year. That's right.
THE CHAIRMAN: Let me -- using your analogy about sight, let me test your peripheral vision. Looking around you at the Circuit Court bench and the -- you mentioned the headaches of Richland County. What are some things that you -- as an Associate Justice of the Supreme Court in looking at the entire judicial system, what are the things, some of the things you think we need to do to try to improve the system?
A. Well, you've got to go to alternative dispute resolution. You just have to do that. Justice Harwell was set to implement that on a pilot project in four regions of the state. There is -- around now. We had it all set up and he had his heart attack, that just kind of fell a part. You've got to get the judiciary in the technological age.

We're starting that way. We just have to do that. It's good to be scholarly and knowledgeable, but the law is mushrooming. It's impossible. I heard Judge Baggett mention that he needed a lap top. Now, not pushing his candidacy or anything, just for purposes of illustration, I do not have a lap top although when I was a managing partner of the law firm, I kept state of the art -- every time something came out, I had it. Judge Baggett indicated he took a conference call, the attorneys were talking about defense of economic necessity and so his clerk punched in economic necessity and Judge Baggett reads to them, he said, you know, North Carolina case decided three weeks ago held that you had to establish four propositions. I don't know whether it's four propositions or not. He said the attorneys were totally amazed.

Well, you can do that, you know, if you have access to that. You don't have to be the greatest scholar in the world and retain all that. You can just pull it up on your screen and you're trained legally, all judges are trained legally, you can read the elements of one, two, three and four of various causes of action. But without that -- there are like nine elements of Fraud. All of you attorneys can probably list those. You might have to strain, but it'd be much easier to punch a button, Fraud, nine elements right there, and then you can just discuss it. The same thing with jury charges. All -- they just need to -- a little simplified.
THE CHAIRMAN: Other questions? Thank you, Judge Kinard.
A. Okay.

END OF PRIOR TESTIMONY OF JUDGE KINARD.

(A lunch break was taken)

REPRESENTATIVE ALEXANDER: According to my watch, it's five minutes after 2:00 and we agreed to come back here at 2:00 o'clock today and let me check with staff to make sure that we have sufficient proxies to officially open the meeting. Do we?
MR. ELLIOTT: Yes, sir.
REPRESENTATIVE ALEXANDER: So we can officially open the meeting and our next candidate is Charles B. Simmons for associate justice, South Carolina Supreme Court. Please raise your right hand.
CHARLES BEDFORD SIMMONS, JR., having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: Thank you. Have you had a chance to review the Personal Data Questionnaire Summary?
JUDGE SIMMONS: Yes, I sure have.
REPRESENTATIVE ALEXANDER: Is it correct?
JUDGE SIMMONS: Yes, sir.
REPRESENTATIVE ALEXANDER: Does anything need clarification?
JUDGE SIMMONS: No, sir. Not that I'm aware of.
REPRESENTATIVE ALEXANDER: Is there any objection to making this Summary a part of the record of your sworn testimony?
JUDGE SIMMONS: No, sir. That'd be quite fine.
REPRESENTATIVE ALEXANDER: It shall be done at this point in the transcript.

1. Charles Bedford Simmons, Jr.
Home Address: Business Address:
11 West Hillcrest Drive Suite 208, County Courthouse
Greenville, SC 29609 Greenville, SC 29601

2. He was born in Greenville, South Carolina on December 4, 1956. He is presently 37 years old.

4. He was married on April 26, 1986, to Claudia Elizabeth Spencer. He has two children: Charles B., III, age 5, and Elizabeth Spencer, age 3.

5. Military Service: None

6. He attended Spartanburg Methodist College, 1975-1977, Associate of Arts in Criminal Justice, magna cum laude; East Tennessee State University, 1977-1979, Bachelor of Science in Political Science and Criminal Justice, magna cum laude; and the University of South Carolina School of Law, 1979-1982, Juris Doctorate.

8. Legal/Judicial education during the past five years:
He generally attends more "CLE" courses than required. He has taken several courses at the National Judicial College since he came on the bench. He has also implemented and helped organize the first CLE specifically for Masters in Equity.
9. Courses taught or lectures given:
He has lectured at CLE programs for the Greenville Bar, spoken at the S. C. Bar's "Law School for Non-Lawyers," and will be speaking at the Law School's "Bridge the Gap" program for new lawyers this summer. He has also lectured law school classes at USC and has appeared on television as a panelist to discuss different legal topics. He also teaches part-time in the paralegal program at Greenville Technical College.

12. Legal experience since graduation from law school:
He served as law clerk to the Honorable C. Victor Pyle, Jr., from 1982-1983. He then joined and became a partner in Carter, Smith Law Firm from 1983 through 1985. His practice was general litigation, primarily civil. From 1986 to 1989, he was a partner in Wilkins, Nelson, Kittredge and Simmons. He continued practicing general litigation, while also doing significant amounts of domestic law. In 1989, he became Master in Equity for Greenville County, where he has served up to the present time.

13. Rating in Martindale-Hubbell: While he was in private practice for over six years, he never had the opportunity to be rated.

14. Frequency of appearances in court:
Federal -
State - 100%
Other -

15. Percentage of litigation:
Civil - 55%
Criminal - 5%
Domestic - 40%
(while in private practice)

16. Percentage of cases in trial courts:
Jury - 50%
Non-jury - 50%
(while in private practice)

He would estimate that he was sole or lead counsel in the majority of the cases. He was associate counsel in approximately one-third of the cases.

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Owens v. Ruth Construction Co. This was an unusually complicated Worker's Compensation claim involving a closed head injury received by his client, Bobby Owens. There were significant medical and psychological issues. The case was tried in front of a single Commissioner, the employer then appealed to the full Commission, and later to the Circuit Court. On appeal to the Supreme Court, the case was settled for approximately $150,000.00.
(b) Momani v. Van Surdam, 296 S.C. 409, 373 S.E.2d 691 (App. 1988). The significant nature of this case is that it clarified the exact standards required under Rule 60, of what was, at that time, the new South Carolina Rules of Civil Procedure. The trial court ruled that his client, Mr. Momani, could not file an independent action to attack a prior judgment. On appeal, the trial court was reversed, and his client's action allowed to proceed.
(c) Malone v. Malone, 88-DR-23-32. This was a very complicated and bitterly contested divorce and custody action. It involved extensive economic evaluations and significant amounts of psychological testimony concerning the best interests of the minor children. After two full days of trial, the Family Court Judge rendered what they considered a very favorable decision which was significantly more than the pre-trial settlement proposal.
(d) Bolden v. Dan River, Inc., 88-CP-23-1513. This was a complicated and novel issue concerning post traumatic stress disorder. It required literally hundreds of hours of work on behalf of his client, Jimmie Bolden. After the Circuit Court affirmed the Worker's Compensation Commission's decision finding coverage, the case was settled on appeal in excess of $100,000.00.
(e) Ramella v. Ramella, J. R. #110041. He represented Mrs. Ramella in a divorce action against her husband. It was a substantial case involving millions of dollars in assets, most of which were tied up in closely held corporations. The case required hundreds of hours of working with CPA's and economists in order to determine and value assets. Shortly after trial began, Mr. Ramella agreed to their settlement proposal.

18. Five (5) civil appeals:
(a) Arvai v. Shaw, 286 S.C. 357, 334 S.E.2d 297 (App. 1985).
(b) Momani v. Van Surdam, 296 S.C. 409, 373 S.E.2d 691 (App. 1988).
(c) White v. Snell, 299 S.C. 406, 385 S.E.2d 211 (App. 1989). He handled the case at trial level and through preparation of Appellate Briefs. He became the Master in Equity prior to the case being argued on appeal.

19. Five (5) criminal appeals:
In that his private law practice was primarily civil, he did not handle any criminal appeals. He has experience in criminal law through being a research assistant while in law school to Professor William S. McAninch when he wrote a book entitled, The Criminal Law of South Carolina. He also served as law clerk to the Honorable C. Victor Pyle, Jr., Circuit Court Judge, where a large percentage of cases were criminal. He has been appointed by the S. C. Supreme Court to hear terms of Post Conviction Relief Hearings, where the substantive criminal law must be reviewed and applied.

20. Judicial Office:
Master in Equity, 1989 - present, appointed position
Special Circuit Court Judge in upstate counties, 1990 - present, appointed pursuant to Order of the Chief Justice of the South Carolina Supreme Court

21. Five (5) of the most significant orders or opinions:
(a) First Baptist Church of Mauldin v. City of Mauldin, ___ S.C. ___, 417 S.E.2d 592 (1992). This case involved interpretation of the road closure statute found at
Section 57-9-10. This was a novel and hotly litigated question that took over two full days of trial. The decision to close the road was ultimately affirmed by the Supreme Court.
(b) Culler v. Blue Ridge Electric Co-op, Inc., ___ S.C. ___, 422 S.E.2d 91 (1992). This case involved a wrongful discharge claim by an employee who contended he was terminated for failure to participate in a P.A.C. membership program at Blue Ridge Electric. His ruling that the termination was based upon poor job performance was upheld on appeal to the Supreme Court.
(c) Fort Hill Natural Gas Authority v. City of Easley, et al., Op. No. 23789, (S.C. S.Ct. filed February 1, 1993). This case involved interpretation of the legislative Enabling Act that established the Fort Hill Natural Gas Authority. It was a novel issue involving numerous witnesses, which took two days to try. On appeal, the Supreme Court affirmed the award of $2,000,000.00.
(d) Spinx Oil Co., Inc. v. Federated Mutual Ins., Co., Op. No. 23801, (S.C. S.Ct. filed February 16, 1993). This case involved novel issues concerning interpretation of environmental hazards liability insurance coverage. The ruling on the coverage question, which involved over $350,000.00 was affirmed by the Supreme Court.
(e) ML-Lee Acquisition Fund, L. P. v. Deloitte & Touche, 92-CP-23-4197-R. This case involved novel issues concerning accountants liability to third party investors. This case arose out of a $20,000,000 loan wherein the Defendants were auditors for the company Plaintiff loaned the funds to. After being assigned the case, and handling any and all motions for one year, he recently granted Summary Judgment. The case is currently on appeal to the S. C. Supreme Court.

23. Employment As a Judge Other Than Elected Judicial Office:
Part-time instructor in the paralegal program at Greenville Technical College. He has been teaching at Tech in excess of seven years. He has taught classes in domestic relations, wills and probate, and the South Carolina Legal System. Pursuant to agreement of attorneys, he occasionally hears cases from different circuits as a Special Referee. With these cases, he hears all the evidence and makes decisions.

28. He is not aware of any arrangements or relationships which could result in a conflict of interest. If any conflict should arise, he would recuse himself, with full explanation on the record, from hearing such a case.

39. Expenditures Relating to Candidacy:
Letters and postage stamps - approximately $100
Long distance telephone calls - approximately $50

44. Bar Associations and Professional Organizations:
South Carolina Bar Association; Greenville County Bar Association; Greenville Bar Association's Young Lawyer Division (President, 1988)

45. Civic, charitable, religious, educational, social and fraternal organizations:
First Presbyterian Church, Greenville, SC (Elder, Senior High Advisor, Sunday School teacher); Master in Equity representative to S. C. Supreme Court Bench-Bar Committee; Greenville Zoo Advisory Board; Advisory Board, Big Brothers/Big Sisters (Chairman, 1987-1989); Board of Directors Pendleton Place Home for Abused Children; Kindergarten Board, First Presbyterian Church (Chairman, 1993); Leadership Greenville (Class Speaker); S. C. Equity Court Council (Vice-President, 1992-1993); Advisory Committee, Paralegal Program, Greenville Tech (Chairman, 1992); Greenville Jaycees "Outstanding Young Distinguished Service Award" (1991); S. C. Bar Association's "Outstanding Young Lawyer of the Year" (1989); Wade Hampton Sertoma Club "Outstanding Service to Mankind Award" (1989); Big Brother of the Year, Southeastern United States (1988); Who's Who in American Law

46. He feels very qualified for a seat on the Supreme Court. He was in private law practice for six years and tried hundreds of cases. He also has extensive judicial experience since being Master in Equity and being appointed Special Circuit Court Judge since 1989. When he started on the Bench, he committed to be the best judge he could be in all respects; from legal, to civic, to spiritual. He understands the awesome responsibility of the position he seeks and stands willing and ready to accept it.

47. Five (5) letters of recommendation:
(a) Robert M. Austell, Executive Vice President
Greenville National Bank
P. O. Box 17308, Greenville, SC 29606
233-7989
(b) Dr. Randolph Kowalski
Minister, First Presbyterian Church
200 West Washington Street, Greenville, SC 29601
235-0496
(c) Richard S. Fisher, J.D.
Department Head, Paralegal
Greenville Technical College
P. O. Box 5616, Greenville, SC 29606-5616
250-8255
(d) Cecil H. Nelson, Jr., Esquire
Nelson & Jordan
P. O. Box 1864, Greenville, SC 29602
232-3766
(e) Henri Etta S. Spurgeon, LBSW
Youth Programs Coordinator
S. C. Department of Social Services
P. O. Box 10887, Greenville, SC 29603
467-7700

2. Positions on the Bench:
Master-in-Equity for Greenville County, 1989-present
Special Circuit Court Judge pursuant to Supreme Court designation, 1990-present

10. Extra-Judicial Community Involvement:
(See answer to Question #45 on Personal Data Questionnaire)
He believes it is very important for judges to contribute to the well being of the community. Unfortunately, it seems that they become more and more isolated based upon their job. He has always been, and plans to be, active with community organizations. He simply feels it is his responsibility.

The Board of Commissioners on Grievances and Discipline reports that no formal complaints have ever been filed against you. Judicial Standards Commission has no record of reprimands against you. Records of applicable law enforcement agencies: Greenville County Sheriff's office are negative; Greenville City Police Department are negative; SLED and FBI reports are negative. Judgment Rolls of Greenville County are negative. Federal court records show no judgments or criminal actions against you.

There was no civil action in which -- Charles B. Simmons was the Plaintiff. This case was a breach -- there is one civil action in which Charles B. Simmons was the plaintiff. This case was a breach of distributor agreement which was ordered dismissed without prejudice in 1988 with leave to file the action in state court.

No complaints or statements were received. No witnesses are present to testify. I'll ask you to -- would you answer questions from our counsel, Steve.
JUDGE SIMMONS: And I did want to take my opportunity to have my brief opening statement.
REPRESENTATIVE ALEXANDER: You certainly may. Yes, sir. Proceed.
JUDGE SIMMONS: For you and the proxy members.
REPRESENTATIVE ALEXANDER: All right, we'll relay it to them.
JUDGE SIMMONS: I'm sure you will. I'm sure you will.

I would suggest, in that this committee must examine each of the candidates, that there are two questions that I need to answer for this committee. First, do I, as well as the other candidates, have the necessary judicial experience? Secondly, should age be an issue?

As relates to the age issue, it's an interesting fact to note that there are almost 8,000 lawyers that belong to the State Bar Association of South Carolina and the average age of these lawyers in the last count was between 35 and 40.

So why is that important in this race? It's important because the very essence, purpose and the need of our Supreme Court is to bring diversity to our judiciary. Were this not the case, there would be no need to have five members on the court. This legislature can simply elect one person they felt can be fair and qualified. But through diversity you bring divergence and a difference of opinion, diversity of experience and diversity of life that is critical to a responsive court in a growing and progressive state.

Much like this legislative body must have diversity to effectively represent our citizens, so must our Supreme Court. And I'm in the fortunate position of having almost six years experience on the bench while also being more representative of the average age lawyer in the State of South Carolina.

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 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.
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 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.
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 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, 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?
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 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.
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?
REPRESENTATIVE ALEXANDER: I don't know.
SENATOR RUSSELL: We're out of Executive Session.
REPRESENTATIVE ALEXANDER: Okay.
SENATOR RUSSELL: You can leave if you like.
REPRESENTATIVE ALEXANDER: Mr. Clark has withdrawn and that only leaves Mr. Wyatt Thomas Saunders. Would you please come forward and take the oath, please, sir.
WYATT THOMAS SAUNDERS, JR., having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: Have you had a chance a review your Personal Data Questionnaire Summary?
MR. SAUNDERS: Yes, I have.
REPRESENTATIVE ALEXANDER: Is it correct? Does anything need clarification?
MR. SAUNDERS: There is one amendment to Number 13, my rating in Martindale-Hubbell is AV.
REPRESENTATIVE ALEXANDER: Is what?
MR. SAUNDERS: AV.
REPRESENTATIVE ALEXANDER: Would ya'll -- they'll make a note of that, yes, sir.
MR. SAUNDERS: Thank you.
REPRESENTATIVE ALEXANDER: Is there any objection to making this Summary a part of the record of your sworn testimony?
MR. SAUNDERS: No, sir.
REPRESENTATIVE ALEXANDER: It shall be done at this point in the transcript.

1. Wyatt Thomas Saunders, Jr.
Home Address: Business Address:
511 Academy Street 102 Church Street, P. O. Box 731
Laurens, SC 29360 Laurens, SC 29360

2. He was born in Forsyth County, North Carolina on September 20, 1942. He is presently 51 years old.

4. He was previously divorced on November 15, 1973; Wyatt Thomas Saunders, Jr. (moving party); Civil & Family Court, Laurens County; desertion for one year (grounds). He was also previously divorced on March 2, 1978; Kathleen Marek Saunders (moving party); Circuit Court, 12th Judicial Circuit; Florida, Sarasota County; marriage was irretrievably broken. He was married to Laura Holland Uzzell on July 3, 1978. He has three children: Laura McCall, age 14; Lillie Dupre, age 12; and Leigh Holland, age 12.

5. Military Service: None

6. He attended Millsaps College in Jackson, Mississippi, 1960-1962; transferred to Presbyterian College, Clinton, South Carolina, 1962-1965, B.A.; Erskine College in Due West, South Carolina, 1964, transferred from and to Presbyterian College; Wake Forest University, School of Law, 1965-1968, J.D.

8. Legal/Judicial education during the past five years:
He has complied with the CLE requirements by attending approved seminars and reporting annually on his attendance. The seminars have been on various subjects relating to his interests and intellectual needs.

12. Legal experience since graduation from law school:
He has been in general practice in Laurens since 1968, always as a sole practitioner.

13. Rating in Martindale-Hubbell: AV

14. Frequency of appearances in court:
Federal - occasionally
State - frequently
Other - federal and state administrative agencies, often

15. Percentage of litigation:
Civil - 40%
Criminal - 25%
Domestic - 35%

16. Percentage of cases in trial courts:
Jury - 20%
Non-Jury - 80%
Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) James Calvin Davenport v. Reigel Textile Corporation (WCC File No: unknown). This was a worker's compensation claim for total permanent disability to a textile worker because of byssinosis or "cotton dust disease." The case was settled in December, 1981, for $47,500, and he believes it contributed substantially to improved working conditions in textile mills.
(b) Paul Kochen v. Spartan Grain and Feed, Inc. This was a civil action for damages to a cattle herd allegedly caused by molded feed or cattle feed which had allegedly become adulterated by aflatoxins. In December, 1984, the case was tried before a court and jury in Laurens County and resulted in a verdict for the Defendant. Nevertheless, he feels that the case had a significant effect on improving the quality of cattle feed and controls for molds and other potential carcinogens.
(c) The Estate of Noree Garlington v. Seaboard Coastline Railroad. This was a third-party suit against the railroad by an employee who was compensated by the State Fund for an on-the-job injury. The Plaintiff was a passenger in an automobile driven by a co-worker. The Plaintiff alleged that the driver of the automobile and the railroad were negligent. The case is significant because the jury found the driver contributorily negligent but did not impute contributory negligence to the passenger and returned a verdict for the Plaintiff.
(d) Kerr v. State Farm Fire and Casualty Company, 731 F2d 229 (1984). This is significant because it reaffirmed the South Carolina law that a policy of insurance is severable, and fraud for the claim of personal property loss will not forfeit the entire policy if there was no fraud in the claim for the loss of the structure. The case was tried before a court and jury in the United States District Court by the applicant. He was lead counsel in the appeal.
(e) Walton v. Stewart, 289 S.E.2d 403, 277 S.C. 436 (1982). This is significant because this case established that the abolition of parental immunity by the South Carolina Supreme Court in 1980 was prospective only.

18. Five (5) civil appeals:
(a) Lurey v. City of Laurens, 217 S.E.2d 226, 265 S.C. 217 (1975).
(b) Garlington v. South Carolina Department of Mental Retardation, et al., 81-CP-30-182, wherein a consent order of dismissal was entered by acting Justice William Rhodes.
(c) Walton v. Stewart, 289 S.E.2d 403, 277 S.C. 436 (1982).
(d) Kerr v. State Farm Fire and Casualty Company, 731 F.2d 229 (1984).
(e) Saluda Motor Lines, Inc. v. Crouch, S. C. App., 386 S.E.2d 290, 300 S. C. 43 (1989).
Domestic Appeals: One appeal was filed and remanded without a hearing. Rita M. Stewart v. John M. Stewart (1984), Case No. 83-DR-30-212. No other domestic appeals are presently recalled.

22. Public Office:
City Attorney, City of Laurens, 1972 to 1992; appointed Counsel to the Commission of Public Works, Laurens, South Carolina, 1993 to present, appointed
40. Contributions Made to Members of the General Assembly:
$1,000 to James Bryan, Senator from Laurens, toward his Congressional Campaign expenses

44. Bar Associations and Professional Organizations:
Laurens County Bar Association (President, 1982); South Carolina Bar, Committee on Fee Disputes (1990 to present)

45. Civic, charitable, educational, social and fraternal organizations:
The First United Methodist Church, Laurens, South Carolina; Laurens County Chamber of Commerce; Laurens Cotillion Club; Laurens Carolean Club; Laurens Supper Club; The Commerce Club, Greenville, South Carolina; Hejaz Shrine Temple, Greenville; Laurens Palmetto Lodge #19, AFM; Laurens County Shrine Club; Sherlock Holmes Society, Greenville, South Carolina

47. Five (5) letters of recommendation:
(a) Leon Patterson, Chairman and CEO
The Palmetto Bank
P. O. Box 49, Laurens, SC 29360
984-4551
(b) James M. Barrett, Chief of Police, City of Laurens, Retired
300 Owings Street, Laurens, SC 29360
984-6473
(c) Joe H. Kirby
State Farm Insurance
P. O. Box 14, Laurens, SC 29360
984-6538
(d) Coleman F. Smoak, Jr., General Manager
Laurens Commission of Public Works
P. O. Box 349, Laurens, SC 29360
984-0481
(e) Eben Taylor
109 Edgewood Drive, Laurens, SC 29360
984-6147

The Board of Commissioners on Grievances and Discipline reports that no formal complaints have ever been filed against you. Records of the applicable law enforcement agencies: Laurens County Sheriff's Office are negative; Laurens City Police Department are negative; SLED and FBI records are negative. The Judgement Rolls of Laurens County are negative. Federal court records are negative.

No complaints or statements were received. No witnesses are present to testify. Do you wish to make a statement before we ask counsel to ask you questions.
MR. SAUNDERS: No, sir. Thank you.
REPRESENTATIVE ALEXANDER: All right.
MR. SAUNDERS - EXAMINATION BY MR. ELLIOTT:
Q. Good morning. Good afternoon, I guess it is now. I've lost track of time. From your Personal Data Questionnaire, it appears you've been practicing -- a practicing attorney since 1968 and I think that's, what, approximately 26 years; is that correct?
A. Almost.
Q. Almost. You've also always been a sole practitioner engaging in a general practice; is that correct?
A. That's correct.
Q. What is your role on Bar Committee's Fee Dispute on -- Committee on Fee Disputes?
A. I've been involved in two resolutions as a committee member. And that's been my participation in that committee.
Q. And that's a committee that actually resolves disputes?
A. Yes.
Q. Regarding fees being charged by an attorney?
A. (Witness nods in the affirmative).
Q. You reported 35 percent of your practice as domestic. On the average in a month, how many times do you appear in Family Court?
A. Seven.
Q. Seven?
A. Maybe ten.
Q. How much of your family court practice is as a guardian or an attorney for a guardian ad litem?
A. A percentage of 35 percent. Probably five to ten percent. And most of that, if not all of that, would be appointed.
Q. Please give the committee some indication of how much of your practice in Family Court is contested cases?
A. A third of it.
Q. About a third of it. And we're going to ask, and we do this of all candidates, going to ask a series of things
-- of the issues that would arise in the Family Court and if you would, if you would give me some indication of what your experience is in each of those areas. How much experience have you had handling cases involving matters of equitable distribution of marital property?
A. Extensive.
Q. Have you handled any cases concerning equitable distribution of marital assets which include equitable distribution of retirement funds?
A. Yes.
Q. Is that extensive as well?
A. Fairly. The Qualified Domestic Relations Orders have become fairly standard in the practice in order that they be accepted by the administrator of the retirement plan. That has come about in the last 10 to 12, 15 years, I would think, and I've handled a number of those cases.
Q. Have you had much experience handling child custody cases?
A. Yes.
Q. What about removal of children from parental care?
A. Most of those cases I have become involved with when DSS would institute the cases and I would either be appointed in one of those capacities as guardian or attorney for the guardian or on occasions somewhat rarely, I would be retained. Most of the time indirectly retained by perhaps the parents of the parent. The grandparents would come into play in that kind of case typically.
Q. Have you had any experience handling cases of delinquency?
A. Yes.
Q. Is that substantial experience or just a case or two?
A. It is not substantial. By that, I mean that it's not ordinary and usual that a parent -- parents would obtain an attorney to represent a juvenile. There have been cases, numbers of cases where I have been retained to represent a juvenile, but it's not very common. I'd say maybe three times a year, twice a year or something like that.
Q. Have you had any experience handling abuse and neglect cases?
A. Yes. And I've been appointed on some of those cases.
Q. There are a lot of appointments in these areas, aren't there?
A. Yes.
Q. And I'm sure you must have handled some contested divorces without question, I'm not --
A. Numerous ones.
Q. Do you personally engage in any fund-raising activities for any of the organizations for which you're a member? You listed several on your Personal Data Questionnaire.
A. No, I don't.
Q. And do you understand the ethical obligations in that regard if you become a Family Court judge?
A. Yes.
Q. You list a Laurens Supper Club as one of the organizations you belong to in the last five years. Do you still belong to that supper club?
A. Yes.
Q. Are attorneys members of the supper club?
A. Yes.
Q. If you become a Family Court judge, what will be your practice about the Laurens Supper Club?
A. I would like to think that a judge would not remove himself from society and, therefore, become somewhat alienated from the real world. I would like to continue my activity socially, but I would be careful not to have any discussion about any matters involving the court.
Q. Would it make any difference to you if -- I guess that's a club where it rotates, the meals rotate among various members' homes, is that the case?
A. Either there or at some public place.
Q. Would it make any difference if one of the attorneys or the attorney whose home the meal -- who's hosting the meal has a case before you the next week or during that week?
A. It may. It would depend on the character of the case. I possibly would go anyway. In that particular club, we pay. It is not free. So when we do have a meeting, we ante up, so to speak. Everybody pays his fair share. It's not a hosted -- and you probably didn't mean it that way, but it's not a free meal, so to speak.
Q. No, sir. I did not understand that, so --
A. But I would tend not to discuss any matters of a legal nature. I tend not to do that anyway when I'm not working.
Q. In the area of work ethic, what's your workweek like now and how would you envision it if you're elected to the Family Court?
A. My workweek generally starts at or about 8:30 to 9:00 o'clock and generally ends at about 7:00 o'clock, 6:30 to 7:30. I generally do not take a lunch hour. I do not leave the building unless I'm going to court.

I would expect that for the convenience of the attorneys that I would go to the office, to the court office and look at my mail as I do now at 8:30 or 9:00 o'clock, but I wouldn't have anything before the court if it's not absolutely necessary before 9:30. It being my thought that most lawyers like to go to their office and attend to their business, answer some mail, perhaps look at the day's calendar before they have to be somewhere, so 9:00 o'clock is a little bit early for most people because of office work they have to do, so I would probably start the court business, 9:30 or so, lunch break and start back at 2:00 or 2:30.
Q. Have you given any thought about how you might organize court to run efficiently?
A. Some. I have -- as most attorneys have, I've seen courts that I thought could be run more efficient and I think that the conservation of judicial effort is very important at all, all levels and I think that would be important to try to make it run efficiently. As to the actual steps that one could take to achieve a more efficient court, I do not have a list to give you. But I would certainly make that a priority.
Q. And you touched on this a little bit, as a judge, how would you balance being courteous and humble and at the same time presenting yourself in a way that maintains the decorum of the courtroom?
A. I think both of those characteristics are important, courtesy and humility. And the balance of them, I think is a somewhat natural thing. One who is humble is of consequence naturally courteous, I would think. But at the same time, you can't -- one could go overboard in a judicial capacity in that way.

I would prefer for the court to move on and the business of the court to be handled in an expeditious manner. But at the same time, I would want to be fair and let every one have ample time to be heard. I would want to be courteous in allowing them to be heard, but I don't want to hear the same thing three or four times as some lawyers want to do. I would want to move on, but I would not want to be discourteous to anybody, either a witness or a litigant.
Q. How would you move things along?
A. When I personally felt that a point had been properly covered, I would ask that another subject be brought up.
Q. How would you implement the judicial canons about ex parte communications?
A. I've always been conscious of the dangers of ex parte communications with the court. I would frown upon anyone trying to discuss the case with me. I don't think it's necessary and I don't think it's a good on idea any front. I would refrain from doing that.
Q. How do you plan to produce your orders? Will you ask other attorneys to submit orders to you?
A. Probably. I don't think it would be possible to write all the orders myself. The numbers of cases that are being decided currently in the Family Courts would prohibit one's writing all the orders. I would foresee an outline stating the facts that I felt should be put in the order, but not limiting the attorney's saying that other factors maybe salient and need to be in the order, but I would list those in a letter that would go to both attorneys and the conclusions of law that I felt were important and the ultimate decision and I would ask one of the attorneys to draft the order and send it to the other attorney for his remarks, additions or whatever and then to me.

Once it came to me, if I felt that it was in proper form after studying and reading it and perhaps even reviewing any citations that were contained therein, I would execute the order. I would retain the right as most judges would, I think, absolutely to -- to tear it up and start all over again if I felt it was necessary.
Q. What do you consider to be the proper standard for recusal and would you bring that up yourself or wait for the attorneys to do that?
A. At first, I think that there will be times that if I'm elected, I will have to recuse myself from hearing the case. I'm from a small county and there will be people whom I know to such an extent that I won't feel comfortable hearing a case wherein they're involved and I would not hear it.

On other occasions, I may feel myself capable and qualified to hear that case, but recognize that someone before the court may have a question. In that case, I would make my feelings known that I have known this person, he's worked on my car or he's done whatever or however, I may feel the pressure toward recusal and if both parties agree that I should continue to hear the matter, then I should do that. I would do that.

But if any party expressed any degree of concern about my impartiality, I would recuse myself.
Q. But you used the example of a mechanic who's worked on your car, is that a fairly realistic example for you of something that you have a personal relationship in that regard that you might bring it up?
A. I'm not particularly close friends with the mechanics who work on my car, but I might know them and I think that would be an important point if such a person or his wife or his child were to come before the court, and if I were aware of that relationship, I think it incumbent upon me to alert everyone to it. So that if -- and if I felt that it was such a relationship indeed that would disqualify me in my own mind, I would recuse myself. Otherwise, I would alert people to that relationship, so they can make that decision.
Q. Have you sought the pledge of a legislator prior to this screening?
A. I have not.
Q. Have you even if there was one conditioned upon you're further advancement through -- successfully through the screening process?
A. No.
Q. Have you asked or otherwise authorized any person to solicit a pledge on your behalf?
A. I have not.
Q. Do you know of any solicitations or pledges on your behalf?
A. None.
Q. Excluding travel expenses and room and board, have you or anyone else expended any funds on behalf of your candidacy?
A. I probably have 10 to 12 dollars in telephone calls, if you count coming down here and calling back to the office.
MR. ELLIOTT: That's all the question I have, Mr. Chairman.
REPRESENTATIVE ALEXANDER: Does any member of the committee have a question to ask? Yes, sir.
EXAMINATION BY SENATOR RUSSELL:
Q. Mr. Saunders, without being expansive, and you'll understand from the nature of the question I'm going to ask, you can be expansive, if you're going to be expansive, just say, "I don't want to answer it," because we have a lot of other people. Are the laws of the State of South Carolina as pertaining to our domestic court system, domestic system, gender biased in your opinion?
A. An example of gender bias does not come to mind off hand. There may be an example in your notes that I could discuss, but I can't think of one at the moment.
Q. Okay. That's good enough.
REPRESENTATIVE ALEXANDER: Yes, sir?
REPRESENTATIVE BEATTY: No.
REPRESENTATIVE ALEXANDER: Anyone else? Thank you so much.
A. Thank you.
REPRESENTATIVE ALEXANDER: Our next candidate is Richard W. Chewning, III.
RICHARD W. CHEWNING, III, having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. CHEWNING: Yes, I have, sir.
REPRESENTATIVE ALEXANDER: Is it correct? Does anything need clarification?
MR. CHEWNING: No, sir. It is correct.
REPRESENTATIVE ALEXANDER: Is there any objection to making the Summary a part of the record of your sworn testimony?
MR. CHEWNING: No, sir, there is not.
REPRESENTATIVE ALEXANDER: It shall be done at this point.

1. Richard W. Chewning, III
Home Address: Business Address:
365 Walter Rawl Road 1708 Augusta Road
Lexington, SC 29072 West Columbia, SC 29169

2. He was born in Columbia, South Carolina on February 12, 1942. He is presently 52 years old.

4. He was married to Ruth "Dee Dee" Davis on September 8, 1962. He has two children: Andrea C. Hite, age 30 (school teacher), and Richard W., IV, age 28 (S. C. Department of Probation, Pardon and Parole).

5. Military Service: None

6. He attended Newberry College, 1960-1964, BS in Business Administration; and the University of South Carolina School of Law, 1969-1972, Juris Doctor.

8. Legal/Judicial education during the past five years:
1993 Divorce Mediation Training for Professionals; SCCMDR; Columbia, South Carolina; June 4, 5, 6, 7 and 8, 1993 - 33.25 hours
Searches Under South Carolina Law; SCCJA; Columbia, South Carolina; June 23, 1993 - 6.00 hours
From the Judge's Perspective: DUI; SCCJA; Beaufort, South Carolina; November 17, 1993 - 6.00 hours
1992 Ethical Consideration Relating to Judicial Conduct and the Court; CJA; Columbia, South Carolina; April 24, 1992 - 2.00 hours
Traffic Law and Procedure; CJA; Columbia, South Carolina; June 17, 1992 - 6.00 hours
Traffic Court Seminar; ABB; Atlanta, Georgia; October 14, 1992 through October 16, 1992 - 12.00 hours
1991 Elements of Common Criminal Offenses; CJA; Columbia, South Carolina; March 20, 1991 - 6.00 hours
Judicial Ethics and Appeals Court Automation; SCCA; Columbia, South Carolina - 3.00 hours
Evidence; CJA; Columbia, South Carolina; November 20, 1991 - 6.00 hours
1990 Adoptions; SCBA; Columbia, South Carolina; April 6, 1990 - 5.00 hours
Domestic Relations; SCBA; Myrtle Beach, South Carolina; June 8, 1990 - 3.00 hours
Liability Training/Traffic Laws; SCCJA; Columbia, South Carolina; August 31, 1990 - 6.00 hours
Criminal Domestic Violence and Orders; SCCJA; Columbia, South Carolina; November 28, 1990 - 3.00 hours
1989 Judicial Writing; SCCJA; Columbia, South Carolina; September 1, 1989 - 6.00 hours
Jury Selection and Trial Procedures; SCCJA; Columbia, South Carolina; September 13, 1989 - 6.00 hours

12. Legal experience since graduation from law school:
Having clerked for a law firm in Columbia, South Carolina while he was attending law school and upon graduation being offered a job, he remained there for approximately nine months (Kennedy and Price). During this almost three-year period of time, he became well trained in real estate work including abstracting titles, setting up subdivisions for developer, closing loans and etc. He also handled collections, (set up a firm procedure and oversaw it with secretarial help), foreclosures, wills, estates, help investigate and set up files regarding bodily injury, assisted in some defense work and adoptions. His first exposure to the practice of law was basically a general one.

In 1973, he opened his own practice of law in West Columbia, South Carolina (his home) and began a general practice of law primarily in Richland and Lexington Counties. It was definitely a general practice which involved criminal, wills, estates, real estate, civil cases (primarily accident claims), defense of individuals being sued, family court (divorces, adoptions and serving as guardian ad litem), bankruptcy, foreclosures, workmen compensation and work in magistrate court and city traffic court.

In 1977, Nikki G. Setzler, E. Danny Scott and he joined their three solo practices into the firm of Setzler, Chewning and Scott, P.A. They have grown from three attorneys and two secretaries to six attorneys, six secretaries, full-time bookkeeper, law clerk and abstractor.

During the 70's, because Lexington County did not have a standing Master-in-Equity and this type work was steadily increasing, many attorneys agreed for him to serve as Special Referee. This particular area grew and for many years approximately 50% of his annual income came from serving as Special Referee. This primarily dealt with foreclosures but included many other actions such as property line disputes, complex corporate and business disputes.
1986 referred over 95 cases
1987 referred over 115 cases
1988 referred over 130 cases
1989 referred over 100 cases

These were the latest records he could find regarding cases referred to him as Special Referee immediately prior to Lexington County providing a full-time Master-in-Equity in July, 1989.

Through the middle years of his practice, Special Referee work and foreclosure work were his primary sources of income. He continued doing real estate work, wills and domestic type work. Their firm gradually developed specialty areas in that Mr. Scott primarily handled the real estate and Mr. Setzler handled the civil litigation, with him doing the foreclosures, bank work and special referring.

Finally, the County of Lexington set up a full time Master-in-Equity, and he simply redirected his efforts in the other areas of law.

During the past 10 or 12 years, as the Family Courts began to utilize the GAL (he had always had a special interest in children and worked in this area of the Family Court since law school), he developed a sizable practice in this area and continues to do so today.

It is difficult to arrive at exact dates since 1972, regarding areas of practice because of the time span. It is even more difficult because all of the areas of change were slow in developing and ending. An exception is the Special Referee work ceasing abruptly with the appointment of a standing Master-in-Equity.

He has always practiced a general practice of law. In the first years he could effectively cover many areas of law, many different courts in many different counties. He has tried cases (limited number) in Federal Court in his early years of practice.

His main volume area throughout the years were family court, guardian ad litem work, foreclosure work and special referee work.

He has also served as the Judge for the City of Cayce from December, 1976 to present, handling regular traffic court weekly, preliminary hearings, jury trials, execution of warrants and search warrants, bond hearings and the appeals from this court.

He was appointed by the Supreme Court to serve as the temporary family judge when their County was without a sitting judge. He cannot recall the date nor can he locate the Order issued by the Supreme Court. It was in the late 70's or early 80's and was only for a week or two. Several attorneys were appointed during the interim when they did not have a judge.

13. Rating in Martindale-Hubbell: AV

14. Frequency of appearances in court:
Federal - none
State - as Judge and Attorney estimated 200 per year or 1,000 in 5 years
Other -

15. Percentage of litigation:
Civil: 38% in 1991; 8% in 1992; 23% in past 5 years
Criminal: 3% in 1991; 3% in 1992; 3% in past 5 years
Domestic: 15% in 1991; 23% in 1992; 19% in past 5 years
Foreclosure: 28% in 1991; 34% in 1992; 31% in past 5 years

Figures for 1991 and 1992 are fairly accurate. Figures used for the past 5 years are derived from averages of 1991 and 1992. This does not include pro bono work. Their office keeps no record on pro bono work.

16. Percentage of cases in trial courts:
Jury - none
Non-Jury - about 50%
Sole counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) He was given 110 foreclosures at one time by a single mortgage company to process immediately. These cases were in four different counties, totalling close to a million dollars, and all were timely handled including a period in Bankruptcy Court.
(b) He was recently court appointed as the attorney for a lay guardian ad litem involving sexual abuse to three minor brothers. The trial last 4 days (some nights to 7:30 and 11 p.m.). He had a total of 41 hours in court. Based on the GAL's work and the testimony of one of the minors, the court determined there had been sexual abuse and issued its order preventing contact in the future with these minor children and the perpetrator, their father.
(c) He was appointed the GAL's for four minor boys and served as their attorney in an action brought by a basic stranger (no relation to the boys) against State DSS. They wanted to force an adoption which the minors nor DSS wanted. After days of testimony and hearings in three counties, the Court ruled in their favor.
(d) He was court appointed to represent a minor female teenager accused of strangling her small brother to death with a sock in a creek behind the family home. The parents were divorced and prominently known in the community. It was a sensational type of case for the news media, and he had numerous run-ins (including legal hearings) with the local sheriff over giving the name of the minor to the news media as well as keeping the incident in the news. Because of his position in protecting his client's rights he had to transport his client to the hearings (sheriff refused) under court order and until this day has to avoid direct contact with the sheriff. He managed to get a court order housing the child in a private treatment center until the trial, and later assisted in arranging for her to serve her sentence in a special facility for juveniles requiring special evaluation and treatment. Said facility was located out of the State of South Carolina.
(e) He has had many opportunities as the Judge in the City of Cayce since 1976 to experience, as well as apply, the law in its ever changing character. He has signed warrants in murder cases, conducted bond hearings, search warrants, and preliminary hearings, all of which were closely examined and reexamined by the Circuit Courts and Supreme Courts.

He has under our new law, conducted a bond hearing which involved T.V. cameras in the courtroom under our new guidelines permitting such coverage. Admittedly, city courts are lesser courts in the eyes of most people, but the necessity of complying with the court rules and the law are just as important as in any other court.

He has literally conducted hundreds of jury trials and preliminary hearings over 17 years as well as hundreds of bench trials.

18. Five (5) civil appeals:
None. He has never handled appeals from Circuit Court or Family Court. As a general rule, their firm associates an attorney to process all of their clients' appeals.

He has prepared Return to Appeals from matters that he has heard as the Judge in Cayce Traffic Court.

20. Judicial Office:

Served as Judge for the City of Cayce from December, 1976 to present:
Appointed by City Council; Regular traffic court once a week every week; Jury trials; Execution of arrest warrants and search warrants; Preliminary hearings; Bond hearings

Served as Special Family Court Judge in Lexington County by Order of the Supreme Court. Cannot locate Order, was in the late 70's or early 80's for a 1 or 2-week period of time.

Served as Special Referee (primarily in Lexington County - has heard cases from other counties at the request of attorneys and court) from approximately 1977 to July, 1989, referred by Circuit Court.

21. Five (5) Significant Orders or Opinions:

On one hand the answer to this question is basically "no or I have none." On the other hand, everything he has ever ruled on as a traffic court judge, special referee or special family court judge is most significant to the individuals that are affected. The rulings are most significant to him, because he is always concerned that his rulings and decisions are accurate, based on the law and the facts, and are applicable.

He does not have any specific orders or opinions available because of the nature of the City Court system and Special Referee system. He has been appealed both to the Circuit Court and Supreme Court but does not have the cases available in that he does not participate in the actual appeal process.

23. Employment As a Judge Other Than Elected Judicial Office:

Served as Judge for the City of Cayce from December, 1976 to present:

Appointed by City Council; Regular traffic court once a week every week; Jury trials; Execution of arrest warrants and search warrants; Preliminary hearings; Bond hearings

Served as Special Family Court Judge in Lexington County by Order of the Supreme Court. Cannot locate Order, was in the late 70's or early 80's for a 1 or 2-week period of time.

Served as Special Referee (primarily in Lexington County - has heard cases from other counties at the request of attorneys and court) from approximately 1977 to July, 1989, referred by Circuit Court.

25. Occupation, business or profession other than the practice of law:
He graduated from Newberry College in May, 1964, and went to work for General Adjustment Bureau, Inc. in June, 1964, and worked as an insurance adjuster and investigator for 5 years until he resigned in order to enter law school in September, 1969. Their company represented, at that time, 485 insurance companies as well as large self insurers and handled claims against their companies. He was made manager of the office in Virginia one year prior to his resignation to return to South Carolina to attend law school.

26. Officer/director or management of business enterprise:
Greenhill Limited: A corporation which owns the land, buildings and equipment rented by Setzler, Chewning and Scott, P.A. Mr. Setzler, Mr. Scott and Mr. Chewning own a 1/3 interest. Mr. Chewning serves as secretary/treasurer.
Congaree Title Agency: A corporation owned by Mr. Setzler, Mr. Scott and Mr. Chewning from which to operate their title insurance agency. They write for Old Republic. They each own a 1/3 interest.
Setzler, Chewning & Their firm in which each of the three of
Scott, P.A. them own a 1/3 interest.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
All of the corporations listed in Question #26 herein deal with the practice of law with his partners, Mr. Setzler and Mr. Scott. He will have to divest himself of any interest he has in these corporations before anyone from that firm could appear in a court in which he is presiding.

44. Bar Associations and Professional Organizations:
Richland County Bar (1972-1973); Lexington County Bar (1973 to present), President (1980), Secretary/Treasurer for a number of years prior to 1980; South Carolina Bar Association (1972 to present), South Carolina Supreme Court Committee for Discipline and Grievance (1985-1988), House of Delegates (1990-1992), Judicial Moderazation Committee (1981-1982); American Bar Association (1972 to present); has voluntarily served the South Carolina Pro Bono Program since 1988

45. Civic, charitable, educational, social and fraternal organizations:
Task Force - Fighting Back Lexington; U.S.C. Gamecock Club; U.S.C. Alumni Association; Newberry College Alumni Association; Shiloh United Methodist Church, Sunday School teacher, Church Choir member, Chairman of the Finance Committee, Member of Administrative Council; Volunteer Fireman with Hollow Creek Fire Department; Lexington County Election Commission - Poll Manager; Lexington County Selective Service Board (1982 to present), presently Chairman

46. He has done volunteer motivational as well as awareness public speaking to church and school groups in the areas of: child abuse and neglect prevention and identification; legal careers; youthful offenses; laws relating to youthful offenders.

47. Five (5) letters of recommendation:
(a) Steve P. Nivens, Regional Vice President
The Lexington State Bank
1220 Blanding Street, Columbia, SC 29201
739-4330
(b) James Randall Davis, Esquire
Bouknight, Nicholson, Davis, Frawley & Anderson
P. O. Box 489, Lexington, SC 29071
359-2512
(c) Nancy K. Perry, Executive Director
The Lexington County Children's Shelter, Inc.
P. O. Box 344, Lexington, SC 29071
253-6272
(d) Evelyn Blackwelder Berry, Ph.D., Executive Director
South Carolina School Boards Association
1027 Barnwell Street, Columbia, SC 29201
799-6607
(e) A. G. Dantzler, Director
Cayce Department of Public Safety
P. O. Box 2004, Cayce, SC 29171-2004
794-0456

2. Positions on the Bench:
(a) Began being appointed Special Referee about 1975, and served as Special Referee on numerous occasions until July, 1989, when Lexington County provided a full-time Master-in-Equity. As an example, he had 95 cases referred to him in 1986, 115 cases in 1987, 130 cases in 1988, and 100 cases in 1989.
(b) Served as Special Family Court Judge in Lexington County, by Order of the Supreme Court sometime in the late 1970's or early 1980's. It was for only a couple weeks as well as he remembers.
(c) Has been serving as the Judge for the City of Cayce from December, 1976 to present.

10. Extra-Judicial Community Involvement:

Task Force - Fighting Back Lexington; U.S.C. Gamecock Club; U.S.C. Alumni Association; Newberry College Alumni Association; Shiloh United Methodist Church, Sunday School teacher, Church Choir member, Chairman of the Finance Committee, Member of Administrative Council; Volunteer Fireman with Hollow Creek Fire Department; Lexington County Election Commission - Poll Manager; Lexington County Selective Service Board (1982 to present), presently Chairman; Richland County Bar (1972-1973); Lexington County Bar (1973 to present), President (1980), Secretary/Treasurer for a number of years prior to 1980; South Carolina Bar Association (1972 to present), South Carolina Supreme Court Committee for Discipline and Grievance (1985-1988), House of Delegates (1990-1992), Judicial Moderazation Committee (1981-1982); American Bar Association (1972 to present); has voluntarily served the South Carolina Pro Bono Program since 1988.

He does not use his judicial office to further the above interests. He has done volunteer motivational as well as awareness public speaking to church and school groups in the areas of: child abuse and neglect prevention and identification; legal careers; youthful offenses; laws relating to youthful offenders. His experience in the judicial office has increased his knowledge, thus better preparing him to do public speaking such as described in the above paragraph.
The Board of Commissioners on Grievances and Discipline report that no formal complaints or charges of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. Records of the applicable law enforcement agencies: Lexington County Sheriff's Office are negative; Lexington City Police Department are negative; SLED and FBI records are negative. The Judgment Rolls of Lexington County are negative. Federal court records are negative.

No complaints or statements were received. No witnesses are here to testify. Would you like to make a statement before counsel asks --
MR. CHEWNING: No, sir.
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?
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.
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.

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 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 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 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 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. 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.
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?
MR. KOTTI: That's correct.
SENATOR MCCONNELL: Would you please raise your right hand.
DOUGLAS K. KOTTI, having been duly sworn, testified as follows:
SENATOR MCCONNELL: There is your first screening, correct, sir?
MR. KOTTI: Yes, sir. That's correct. Except for the Bar screening. This is my first screening with this committee.
SENATOR MCCONNELL: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. KOTTI: Yes.
SENATOR MCCONNELL: Is it correct or does it need any changes?
MR. KOTTI: The only changes I would have, Senator, would be there is one question where there is -- it asked you to go into your experience as a lecturer or a preparer of materials for the Continuing Legal Education seminars and that I had -- this is my fault probably. I didn't supply all that because I had done so many. I've probably done 30 of them, but that's the only thing that's lacking. And I don't think that makes that much difference to the substance of the questionnaire really. So that -- I have no objection to it going in as it is in its current form.
SENATOR MCCONNELL: Staff is shaking their heads with approval, so -- is there any objection to our making the Summary a part of the record of your sworn testimony?
MR. KOTTI: No, sir.
SENATOR MCCONNELL: It be shall be done at this point in the transcript.

1. Douglas K. Kotti
Home Address: Business Address:
116 Spartan Drive 6326 St. Andrews Road
Columbia, SC 29212 Columbia, SC 29212

2. He was born in Augusta, Georgia on December 25, 1955. He is presently 38 years old.

4. He was married to Linda Gayle Pooser on May 26, 1984. He has three children: Laura Gayle, age 9; Burton Douglas, age 7; and Rachel Leigh, age 7.

5. Military Service: None

6. He attended the University of South Carolina, August, 1974 - May, 1978, Bachelor of Arts (magna cum laude) political science; and the University of South Carolina School of Law, August, 1978 - May, 1981, Juris Doctor.

8. Legal/Judicial education during the past five years:
During the last five years, he has participated in more than the minimum requirement for CLE hours, as lecturer, author and panelist, as well as an attendant at various seminars. Nearly all of the seminars he has attended or in which he has appeared as a lecturer or panelist has concerned Family Law topics.

9. Taught or Lectured:
Research Coordinator, Family Law CLE, "Alimony," 1982
Research Coordinator; Seminars for New Family Court Judges; 1983, 1985 and 1988
Law School for Nonlawyers - Family Law; Lecturer; February, 1990
1981 Law School Class Reunion CLE Seminar on Ethics; Moderator and lecturer; October, 1991

10. Published Books and Articles:

For each of the seminars in which he appeared as a lecturer or panelist, such as Continuing Legal Education publications for the South Carolina Bar, he prepared an outline or other instruction materials.
Additional Publications:

Outline on Child Custody and Visitation and Outline on Child Support (1983 and updates thereafter) which were presented and are used to instruct new Family Court Judges.

Law School for Nonlawyers - Family Law outline, February, 1990. The sponsoring body was the Young Lawyers Division of the S. C. Bar.

"Ethics in the Domestic Relations Practice," Class of 1981 Reunion CLE Seminar, October, 1991

While affiliated with Harvey Golden, Esquire, he wrote many outlines and other CLE materials for Mr. Golden's lectures over the years for which he was given credit.

12. Legal experience since graduation from law school:
April, 1982 - August, 1990 Affiliated with the Law Offices of Harvey L. Golden, P.A., Columbia, South Carolina
August, 1990 - Present Sole practitioner with his office located in Lexington, South Carolina, from August, 1990 until January, 1993, when he moved his office near his home in the Irmo-St. Andrews area
His practice has always been limited primarily to domestic relations and matrimonial law, including but not limited to divorce, child custody and visitation, property division, alimony, child support, contempt of court, adoption, abused and neglected children, juvenile delinquents' defense, child abduction, termination of parental rights, service as guardian ad litem for minor children and name changes. Approximately five to ten percent of his practice has involved criminal and other civil litigation and occasionally the preparation of wills and other legal documents.

13. Rating in Martindale-Hubbell: He is not rated in Martindale-Hubbell, and he has not sought a rating by that publication.

14. Frequency of appearances in court:
Federal - two
State - at least three times weekly
Other - once before the Juvenile Probation Board

15. Percentage of litigation:
Civil - 2%
Criminal - 2%
Domestic - 96%

16. Percentage of cases in trial courts:
Jury - 2%
Non-Jury - 98%
(nearly all of which was in Family Court where there is never a jury, and the Judge is always trier of fact and the law)
He has been chief or sole counsel in nearly all of these cases.
17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Donahue v. Donahue, ___ S.C. ___, 384 S.E.2d 741 (1989). This is a well known landmark case in the development of domestic relations law in this state, particularly in the areas of alimony and property apportionment.
(b) Casey v. Casey, ___ S.C. ___, 346 S.E.2d 726 (Ct. App. 1986), rev'd, ___ S.C. ___, 362 S.E.2d 6 (Sup. Ct. 1987). Another well known landmark case. This decision has had a significant impact upon the development of the domestic relations law, particularly in the property apportionment area.
(c) Bradley Ayers v. Jennifer Ayers, Fairfield County Family Court. This ongoing case has generated much publicity. He represents the mother, and DSS is a party, along with both parents. The principal issue concerns whether the parties' young daughters were sexually abused by the father. In August, 1993, his client was incarcerated by a Family Court Judge for contempt of court as she would not turn over the children for visitation. A final hearing is presently pending. The case is significant for the issues involved and because it entails the protection of his client's daughters from some of the worse abuse children suffer. This has been one of the most emotional, contentious and compelling cases of his career.
(d) Robert Koon, et al. v. Robert Bell, M.D., et al., Federal District Court, South Carolina, 1983-1984. He served as guardian ad litem for eight boys who had been mistreated at a State mental institution. All of them had been housed at a Youth Services facility when they were hospitalized for "observation" following discovery of an alleged "suicide impact." The case was settled out of Court, with his clients, the Plaintiffs, receiving money damages. The case is significant as the settlement mandated adoption of sorely needed reforms by the Department of Youth Services and the Department of Mental Health.
(e) State v. Goodwin, et al., Richland County Family Court and General Sessions Court, 1984-1985. (See In Re Goodwin, 333 S.E.2d 337 (1985).) Juvenile twin brothers were charged for murdering their mother. He served as court-appointed attorney for Willie. For his career this was a very significant case. He represented Willie throughout the Family Court proceedings and continued on as the case moved to General Sessions where the boys were tried as adults. He was present when Willie was evaluated for his fitness to stand trial, and he met with him many times to confer and to console him. When the Circuit Judge was about to sentence Willie, he pled on Willie's behalf. This case presented many complicated legal issues: for examples, voluntariness of the "confessions"; the concept of "friendly adult" during juvenile interrogations; and sufficiency of evidence. Unlike most court-appointed attorneys in the Family Court, he requested to and was able to stay with this case every step of the way from the initial detention hearing in Family Court through the trial and sentencing in General Sessions Court.

18. Five (5) civil appeals:
(a) In Re Goodwin, ___ S.C. ___, 333 S.E.2d 337 (1985).
(b) Casey v. Casey, ___ S.C. ___, 346 S.E.2d 726 (Ct. App. 1986), rev'd, ___ S.C. ___, 362 S.E.2d 6 (Sup. Ct. 1987).
(c) Haas v. Timmons, unreported decision of the Court of Appeals, 1987, in which the Family Court was affirmed.
(d) Donahue v. Donahue, ___ S.C. ___, 384 S.E.2d 741 (1989).
(e) Terry v. Lee, ___ S.C. ___, 419 S.E.2d 213 (1992). NOTE: This case was filed in the Family Court in 1992, after the Supreme Court's ruling, has been appealed again, and is scheduled for oral argument during the Court's April, 1994 term.

25. Occupation, business or profession other than the practice of law:
After admission to the Bar, he has not been engaged in any occupation, business or profession other than the practice of law.

32. Sued: He has been sued twice, both times in Magistrate's Court, by stenographers for payment of deposition transcripts which his clients had failed to pay. He settled both cases out of court soon after being sued, so that no trial was necessary, by paying for the transcripts out of his own pocket.
(1) Charlene Baskin, Plaintiff (Richland County)
Filed: July 25, 1989
Dismissed: October 3, 1989
Amount of Settlement: $294.00 including costs
(2) Katie H. Bailey of Hanwell Court Reporting, Plaintiff
Filed: January 21, 1994
Dismissed: March 21, 1994
Amount of Settlement: $580.69 including costs

36. Lodging, Transportation, Entertainment, Food, Meals, Beverages, Money or Any Other Thing of Value From a Lobbyist or Lobbyist Principal:
He has not received anything of value from any lobbyist in his or her capacity as a lobbyist. As an attorney, he has represented lobbyists only in their private, personal legal affairs which had nothing to do with their employment as lobbyists. These individuals paid him for his legal services rendered to them in these private, personal legal matters. He has no relationship of any kind with either of these individuals or their principals involving their employment as lobbyists.

Lobbyist: Gregory Kergosien
Service: Legal
Fees Paid to Him: April, 1992 ($120.00); March, 1993 ($156.00)

Lobbyist: Robert Kay
Service: Legal
Fees Paid to Him: May, 1991 ($750.00); June, 1992 ($250.00); May, 1993 ($500.00)

44. Bar Associations and Professional Organizations:
South Carolina Bar (1982 to present); S. C. Bar Pro Bono Program; Family Law Section, S. C. Bar (1982 to present); Lexington County Bar (1990 to present); Richland County Bar (1983 to present)

45. Civic, charitable, educational, social and fraternal organizations:
Phi Beta Kappa; Omicron Delta Kappa; Phi Alpha Delta Law Fraternity; USC Alumni Association; Kiwanis Club of Lexington (Charter member, President); Cub Scout Den Leader; St. Mary's Episcopal Church (Sunday School teacher); Albanian - American National Organization; Harbison West Elementary School Improvement Council; Murraywood Swim and Racquet Club

46. For his entire legal career, he has limited his practice primarily to matrimonial and family law. He has represented people in Family Court from just about every socio-economic status: millionaire, middle class and poor; uneducated and doctors, lawyers and professors; the unemployed. Children frequently are his clients: juveniles charged with all sorts of crimes, even murder; abused and neglected children; and children who are the subject of private custody and visitation disputes. He has handled nearly every type of Family Court case and issue: adoptions; contempt of court; child support determination and collection; alimony; apportionment of marital property; juveniles; abused and neglected children; abducted children; child custody and visitation disputes; post-decree modification matters; antenuptial agreements; preparation of marital settlement agreements; income tax matters; termination of parental rights; health and life insurance concerns; admissibility of taped telephone conversations; paternity; obtaining temporary restraining orders properly, in accordance with the rules of civil procedure; grandparent visitation; attorney fees; post-trial motions; appeals; disqualification of counsel for conflict of interest; and many other disputes and issues.

In addition to his very concentrated domestic relations practice, he has also been very interested in substantive and procedural law in Family Court matters and has extensive experience as a lecturer in continuing legal education programs. Other attorneys frequently consult him for his opinion and advice on their cases.

Beginning with his admission to the Bar, he has readily represented indigents, almost always for no fee. Some of these cases have been complicated and protracted, involving child custody, paternity, debt allocation, and juvenile defense. Every since its inception, he has been very active in the Bar's Pro Bono Program.

He is not seeking this position as a "stepping stone" to some other "higher" Court. He simply wants to serve as a Family Court Judge. This has been his goal for quite some time. He is prepared and willing to serve. Fortunately, he has worked independently as a sole practitioner for nearly four years and is politically beholden to no one. His candidacy is based solely on merit.

47. Five (5) letters of recommendation:
(a) Raymond S. Caughman, Chairman and CEO
Lexington State Bank
P. O. Box 8, Lexington, SC 29071-0008
359-5111
(b) The Reverend Robert C. Wisnewski, Jr.
St. Mary's Episcopal Church
115 Tram Road, Columbia, SC 29210
798-2776
(c) Harvey L. Golden, Esquire
1712-1714 Main Street, Columbia, SC 29201
779-3700
(d) John Arnold, M.Ed.
CEAP, LMFT, LPC, NCAC II
Vice President for Program Operations
First Sun EAP Alliance, Inc.
P. O. Box 11408, Columbia, SC 29211
376-2668
(e) Stephen A. Spitz, Esquire
225 Hampton's Grant Court, Columbia, SC 29209
783-8863

The Board of Grievances Discipline reports that no formal complaints have ever been filed against you. Records of the applicable law enforcement agencies, the Lexington/Richland County Sheriff's Office are negative; Columbia/Lexington City Police Departments are negative; SLED and FBI records are negative. The Judgement Rolls of Richland and Lexington County are negative. Federal court records are negative. No complaints or statements have been received. No witnesses are present to testify and nothing else has been received, correct?
MS. MCNAMEE: No, sir. Nothing else.
SENATOR MCCONNELL: I turn you over to Ms. McNamee for some questioning.
MR. KOTTI: Okay, Senator. Thank you.
MR. KOTTI- EXAMINATION BY MS. MCNAMEE:
Q. Good afternoon --
A. Good afternoon.
Q. -- Mr. Kotti?
A. Good to see you, ma'am.
Q. It's good to see you, too. Mr. Kotti, you probably have the most experience according to your questionnaire of anyone we have interviewed this afternoon. You say you have 96 percent of your practice --
A. Actually, it's about 98 percent. It's a hair --
Q. 98 percent?
A. -- under a hundred percent really throughout my career. That's correct.
Q. Is in the family law?
A. Yes, ma'am.
Q. Does this qualify you almost to be a family law specialist in any way?
A. If we can use the term specialist. Of course, we cannot as we all know. I wish the Supreme Court would let us. I concentrate my practice in family law and always have since I was admitted some 11, 12 years ago.
Q. Are you a member -- some members of the Bar are members of the Association of Matrimonial Lawyers, that's a national organization?
A. That's a national -- it's creme de la creme. I've never applied for membership in that group. Frankly, I've always felt that that was a group that catered towards well asseted people -- am I saying that right -- people who are wealthier than -- I represent all economic strata, every level. And I've never sought membership in that group. I probably should.

Of course, over the years, of course, I've practiced law with Harvey Golden for nine years who is one of the prominent members nationally in that association. Ken Lester is. He's associated with Mr. Golden. A lot of my friends and a lot of opponents are, regular opponents, I might add, are members of the AAML, but I am not.
Q. For four years you have been a solo practitioner; is that correct?
A. Yes, ma'am.
Q. How -- can you characterize what it's like to be a solo practitioner for us? We've heard one version of it and I'd like to hear yours.
A. Sure. It's very hectic. I've had to adopt my work habits to the demands of a father because I'm an involved father. I can say that with impunity. My wife is sitting right there. I wouldn't say it if weren't true and she was sitting there. And we have three children and I'm involved in their activities rather directly, almost daily.

I've purposely moved my office about a year and a half ago to within a mile of my home to give me shorter traveling, commuting time to work. And I now have changed my work habits. They're kind of similar to Jake -- what's his name? The guy in the book, A Time to Kill, if you've read it. It's one of John Grisham's. It's probably his best book.

What I do is I frequently go to work at 5:00 in the morning and then -- I just roll out of bed and drive on over to the office and wake up there and then work for a couple, three hours, go home and shower, take my children to school and then go back to work. That's pretty much what I usually do and I usually work until, oh, Lord, usually 8:00 o'clock every night. Last night I had to go back and work until midnight which is all too frequent, I'm afraid. But that's what you have to do.

Also I work seven days a week. I reserve Saturday mornings for office work from about 9:00 o'clock to about noon or 1:00. Sundays, I work between church and Cub Scouts for a couple of hours usually and then I have to go back -- if I have a trial the next day like I did yesterday, I go back to work at 6:00, 7:00 o'clock at night when my kids' homework has been done and then I do more work and then come home whenever and go to bed.

That's basically how I live and I think that's probably a common experience for most solo practitioners. It's a very hectic way to make a living, but I kind of enjoy the excitement. There is never a dull moment, that's for sure.
Q. Being a solo practitioner and being a father of young children sounds like a double whammy.
A. I wouldn't have it any other way, actually, unless I got elected to the bench, then it would be a little bit different.
Q. Well, would that change this routine of yours in any way?
A. The only thing I think I would change is I wouldn't go to work at 5:00 in the morning. I'd go to work about 8:00. I don't believe that it's fair to litigants and attorneys and to court reporters, people forget about them, and the witness to hold court until midnight or 11:00 o'clock at night. I'll try not to do that.

I've been -- I've tried cases where I've been kept in court until 2:00 in the morning before and by about 10:00 everybody is so punchy, the Rules of Evidence have been completely thrown out the window, all decorum had been lost and I think the system suffered a little bit at that hour those particular times I had to do that, so I would never -- I would avoid holding court -- I can't say never. I would avoid holding court certainly beyond 6:00 or 7:00 in the evening and that would be only in the rarest of circumstances hopefully.
Q. Would you just tell us is it difficult as a solo practitioner to meet those deadlines? Have you -- and I asked the other gentleman this, too. Is it often that you find yourself in a tight spot because of being a solo practitioner and finding these deadlines coming up on you?
A. Sure. This is what I've had to do.
Q. What happens?
A. I've had to adjust my skills such as they are as a typist to compensate that. When I went out on my own in 1990, I learned Word Perfect. I bought an extra computer. I bought a lap top computer. I have a computer everywhere I go just about and have learned how to two finger type my way through a lot of my documents. Last night, for example, I typed a Motion to Reconsider which had very few spelling errors, I'm happy to report, but Word Perfect makes it a lot easier. That's what I've had to do.

Sure, there is deadline pressure for any attorney especially as one as busy as I, and, fortunately, I am busy, i'm lucky, and I often find myself sure running into some deadlines, but I always meet them and that's what counts. And I always do the best job I can and that's what counts, too.
Q. Have you found yourself able to develop some self-discipline about all this?
A. Sure. I would think that my rather bizarre working hours would maybe attest to that. I stick with it the best I can. I take very little time off unfortunately, but that's okay. I don't mind. I chose this career and I'm willing to accept what I chose and I stay as disciplined as I can.

In fact, it's hard -- it's not easy to get up 5:00 in the morning and go to work and it's not easy after getting home after a trial all day long to go back at 9:00 o'clock and stay until midnight. It is not easy. It takes some measure of discipline, and I hate to sound like I'm bragging -- my parents taught me never to do that, but I guess it's what you want to hear -- that's my philosophy, I work as hard as I have to and sometimes even a little harder.
Q. Would you say that your clients are generally satisfied with the progress of their cases?
A. I think so. Domestic relations cases are unique to the law. They are the most emotional. I deal with people who are usually emotionally crippled from the get-go. They are usually angry at authority figures, a lot of those people are, understandably. And they view lawyers as part of the system.

Judge Mendenhall's travesty has created problems for me in my practice because for years I told my clients this doesn't really happen, you just see this in -- on movies and television or read it in books and, of course, it happened right here in South Carolina which distresses me to no end, so my clients have enjoyed this last week or two telling me, I told you so, aren't you naive, Mr. Lawyer, but I hope that's the only time we'll ever see that. I think it is. I've never seen anything like that in my career.

But, anyway, the best measure I think of a divorce lawyer or a matrimonial lawyer's client satisfaction ratio is when they come back to you when there is trouble in the future. And generally when their cases involving children, the law, of course, as we all know allows for the Family Court to have continuing jurisdiction based upon a change of circumstances where there is child custody, child support, health insurance benefits, social security support obligations or whatever and most of my clients come back to me and that makes me feel pretty good.
Q. Just to go through this litany, if you don't mind, Mr. Kotti. How much of your experience is handling equitable distribution of marital property?
A. Daily.
Q. Daily?
A. Every day. Sure. I'm in court about every day. I tried a case all day yesterday on that.
Q. Does it include the division of retirement plans?
A. Yes, ma'am. Usually every case now. If I represent anybody who's been in -- and in Columbia, you see a lot of this. My practice generally orbits the Columbia area. You deal with a lot of State employees, a lot of people at Fort Jackson, a lot of teachers and others who have civil service type pensions and then, of course, contribution plans like the 401K. So I deal with those in almost all my cases now. Very frequently.
Q. Your experience in handling cases with -- about custody?
A. I don't know anybody who tries more child custody cases than I do. I have -- for some reason I think everybody who has a bizarre child custody case in this area comes to me.

One has generated a lot of publicity. You may have heard about a lady named Jennifer Ayers up in Winnsboro who was locked up in jail for three months for allegedly not turning over her children for visitation she claims that her children were sexually abused by her ex-husband, and that's all I can say about it because I'm now under a gag order and that's all I want to say about it, but that case and others -- well, in 1993, I probably tried civil custody cases, seven or eight for more than one day each in 1993 alone. I don't know lawyers who do that in their whole career. I do a lot of custody work, God awful custody work.
Q. Well, let me --
A. Very contentious.
Q. Let me ask you, you did testify, I think, before the Judiciary Committee subcommittee on custody matters.
A. Yes, ma'am.
Q. Could you discuss that for a minute and were you -- did you consider yourself a lobbyist in doing that or not?
A. No, I was not a lobbyist and I'm -- I'd love to answer Senator Russell's question because it was on a gender bias law. I feel it's gender biased. I was called by Representative Neilson, whose brother I had represented in a child custody action in 1993. It was one of the seven or eight I mentioned a moment ago.

I was asked by Representative Neilson to come in and testify about -- in support of, I should say, a bill to abolish the Tender Years Doctrine or the Maternal Preference Rule, which I believe is outmoded and kind of archaic or anachronistic really law and I hope that -- I know it's now pending in the Senate and I hope they see fit to pass that legislation.

But, anyway, she asked me to come testify for that in support of that particular legislation which I believe she is sponsoring in the House, and so I had no objection to doing that, and I came on in. While I was there, there was a slew of other bills that I felt I had something to say about that involved domestic relations including some grandparent visitation which is a very misunderstood statute in my opinion, involving some -- abolishing the prohibition -- the case law prohibition against joint custody and also statutory abolition of the case law which seems to abolish -- it seems to bar, I should say, extensive visitation because it smells like or looks like joint custody, so I spoke on those bills while I was there.

I'd never seen them before and didn't even -- Representative Neilson handed me a copy of them, so I testified -- well, you may have been there, Ms. McNamee. I don't remember. But I testified probably too long about those, but I was not there as a lobbyist. I have never been a lobbyist. I don't want to be a lobbyist.
Q. Would you describe for the gentlemen here, and the ladies, too, your feelings on judicial temperament and what you think makes a good Family Court judge? What are those qualities?
A. Family Court judges must be patient. Must be patient to people. They must be slow to anger. They must be courteous people and conscientious people. Once again, I'm violating my parents' brag rule, but I think I meet those criteria.

There is no more trying practice of law than being a domestic relations lawyer as I've been now for 12 years or whatever. And yet usually, usually, I hold my temper in check and it gets -- often gets personal with other lawyers unfortunately, but it does, and I try to remain above that fray.

I'm kind of an easygoing person by nature. I remember in law school, I didn't know whether to take this as an insult or a compliment, but a classmate of mine once remarked to me, she said, "Doug, you ought to be in the sales business because you're so easygoing." Well, anyway, I didn't quit law school and here I am, but I'm just kind of an easygoing fellow and always have been.

And I don't think -- I hope and I pray, and I don't believe I would ever change. I know in my heart I wouldn't change just because I donned a black robe. In fact, I would be -- feel more obligated to remain that way because it's so important.

You deal with such an array of upset people from all walks of life and they are so upset when they come in there and the last thing they need is to have some judge bark at them and treat them rudely. I would never do that.
Q. Do you see becoming a Family Court judge as the pinnacle of your career?
A. To me, it would be. I don't seek this job for any other reason. I'm not using this as a stepping stone, which I've seen too often from some people who get the position I'm seeking, not the one in particular, but Family Court judge.

I have been a scholar of the law ever since I became an attorney. In fact, when I was in law school, I never would have dreamed I would become a matrimonial lawyer. I just kind of fell into it when I finished law school and Harvey Golden offered me a clerkship job, it was somebody I knew and I knew he was a reputable attorney and took the chance and then later when I passed the Bar, he asked me to stay on as an affiliate with his firm. He has no associates, he has affiliates. And I did, it was an honor.

I stayed there for -- toughed it out for nine years when I started looking like him, bald, I left, but -- just kidding. I shouldn't say that about Harvey, but, anyway, I would love nothing more than to have the chance to serve in this capacity. I was raised by parents who are compassionate and civic minded individuals, and now I'm going to start sounding like a Kennedy. I don't mean to do that, but -- especially with so many Republicans in the room.

But, anyway, I was raised by civic minded, compassionate people who always instilled in all five of their children -- I'm the oldest -- to serve as best you could in whatever career you choose, serve the public, give something back to the society or country that's given you so much as I've been fortunate enough to receive in my life, so it would be the pinnacle of my career.

I don't long to get on the Circuit Court bench. I have no interest in doing that. I don't long to get on the Supreme Court because I think the Supreme Court justices miss the day to day byplay with lawyers. I think -- I've talked to some of them who have told me that. They really miss that. They feel kind of isolated, so I just would love to be a Family Court judge for the rest of my career. I'd love it.
Q. Going back, if you will, to that question about your strongest quality, let me ask you on the other side, what's your weak link in all this?
A. That's a very good question and a fair one and I'll answer it.
Q. Okay.
A. My weakest problem -- my personality problem probably is the inability to say no. I have -- in my career, I'd say -- this sounds terrible. It sounds like I have no financial motivation at all which may or may not be good, but I take a lot of people I feel very sorry for. It's the bleeding heart in me, I guess, who never can pay me, who never intend to pay me probably, but I stick it out with them, sometimes for several years. That's my -- that's my biggest problem, I think as an attorney. Just as a person, I can't say no enough and I've been told that all my life and that's something I probably ought to control better, but --
Q. How --
A. -- I'm trying to.
Q. How will that effect you if you're a Family Court judge? I mean you're going to have to make those decisions.
A. Well, one thing that -- let me temper that inability to say no by saying this, and anyone who knows me will tell you this, I'm extremely ethical. Extremely ethical. I avoid anything that remotely smells or looks like something improper. I overdo it, I've been told. I've probably lost some clients that way. They insist on doing certain things that I don't do. If I feel they're unethical or even immoral, if not unethical within the law, let's say, I don't do it and I won't do it, so I can say no rather firmly and it's gotten some clients mad at me maybe a few times in the last few years, but that's something I strongly believe that I must do.

And I know you're going to ask me about ex parte communications. I can address that now. It's germane. If you don't mind, I'll go right into it because I've heard you ask those -- Mr. Elliott ask those questions. Ex parte -- and also about recusals.

Ex parte communications are only proper in my opinion, and they happen a lot in Family Court, when somebody presents a TRO, a request for a temporary restraining order ex parte. In my practice, I've lectured on it in Continuing Legal Education Seminars at least two occasions I can think of off the top of my head on how you go about getting an ex parte TRO with completely no verbal communication with the judge except hello, how are you, I'll leave now. I follow Rule 65 down the line. I prepare affidavits. I prepare written requests which is part of the record for an ex parte Temporary Restraining Order and my pleadings are always verified by my client. Rule 65 requires it.

If -- usually, of course, the judges want you to have a proposed TRO with your pleadings. I do that. But it charts Rule 65 down the line, so I have been abundantly careful about that. Other than that, I think there is no other appropriate ex parte communication period. That's just the way it is. And that's the way I'll be.

As far as recusals go, I was in Family Court the other day and I was in a judge's office with a bunch of lawyers and we were talking about some cases we had handled against each other over the years and the judge's secretary who was listening remarked, "Doug, I think you're going to know about every case that comes before you in Lexington County whenever it comes up for modification." Here's the way I'm going to approach it in general terms, if I ever represented a litigant before me, I won't hear their case and I think it would be improper, even if it's a new marriage, a new custody, even if it has nothing to do with the action I may have represented them in years gone by because there'll be a lot of people.

I have a hundred open files at any given moment, so I've got to be very careful about that. If it's a new marriage and it's a different child they're seeking custody of or they're seeking alimony from an ex-spouse or a new spouse, whatever, if it's going to appear that I might favor this former client against the new party, although I would not, but I won't hear that case.

If it's someone who is a close friend, I won't hear that case. If it's someone with whom I've been associated in my political -- little political dabbings I've had over the years in one of the parties over in Lexington, I won't hear that case. If it's a -- somebody I know over at church, I'll be reluctant to hear the case and probably won't.

I just am very -- I would be very careful about that. I may end up turning away a lot of the clients and giving them to my bench mates, but I think it's -- I can't think of a more important thing for a judge to do then get out of cases that he or she should not be hearing and I will be very, very careful about that.
Q. Mr. Kotti, you have a lot of experience, obviously, and a lot of experience in custody and divorce, et cetera, how about juvenile delinquency?
A. Yes. A good bit for a sole practitioner who's never been a public defender or prosecutor. Throughout my career, I've been appointed many times to defend juveniles. I've never prosecuted any, but I've defended many. One who was charged with murder, he killed his mother. That went to the Supreme Court. It's listed in my PDQ as one of the more significant cases I've ever handled.

Also, it has some precedential value in South Carolina, Ex Parte Goodwin or In Re State Newspaper, whatever name you want to call it. The newspaper refers to In Re State Newspaper. I prefer the name of my client. But I represented that child who blew his mother away with a shotgun allegedly for about a year and a half to two years both in Family Court and then I wrote -- when he got waived up to be tried as an adult which surprised no one, I wrote a letter to Judge Anderson who was chief judge for administrative purposes in General Sessions here in Richland County at that time to have my appointment continue on into General Sessions because I had watched my client be evaluated, et cetera, et cetera, and he did and so I got to try that case in General Sessions as well.

I've also been appointed to represent crack cocaine dealers. There are a lot of them, that's something I'd like to talk about, by the way, juvenile problem. I've been appointed to represent juveniles who have assaulted and battered people, who have raped people, who have missed school, who have broken and entered and done about everything, and a lot of it -- gun charges, I represent a lot of kids. I have a pending waiver hearing probably in two weeks they're telling me. That's how much notice they give us for one of my crack cocaine dealers who -- excuse me, alleged crack cocaine dealer, 15 years old, selling at an elementary school allegedly.
Q. Could we get into that then?
A. Sure.
Q. What are your ideas on treating and dealing with the growing juvenile crime problem in this state?
A. The last four or five years there has been a completely unforeseen, I believe unforeseen in its magnitude, explosion of juvenile crime. It's unbelievable.

I don't believe that the average lay person or the average -- maybe people in the legislature, present company excluded, of course, because you're on the Judiciary Committee, but a lot of people really don't understand how bad it is.

Kids are taking Uzis to school with four clips of ammunition. Kids are raping each other, killing each other, beating each other to death with baseball bats every day. And it's a tremendous problem. It's one that troubles me personally and one of the reasons, and I hate to sound altruistic, but it's one of the reasons I'd like to be Family Court judge, I want to get in there and help some of these kids and get them squared away because I -- we all know what the root problems are. It's become a cliche -- fatherless homes, coke, completely absent parents, no supervision, don't go to school, you know economic problems, whatever, down the line.

We saw it coming, I think. This generation right behind us folks is a very scary bunch of people for a lot of reasons because I don't think they've had the attention they should have. What I foresee myself doing, getting to your point -- that was my preamble -- preamble to my answer.

Family Court judges have a unique opportunity and unique responsibility to address this problem in new ways. I think that all too often I've seen cases I've handled that become rote and routine. What they do is well, can he go to the Marine Institute, nah, no, they won't let him in because he's got two convictions. Let's see, John G. Richards? He's been there once before.

What are we going to do with this child? There needs to be -- and I think that Family Court judges have pretty far reaching statutory powers that they haven't utilized in my opinion. One Judge used to always do it, I know that, to bring in and make parties to juvenile actions various state agencies, not just DJJ, Department of Juvenile Justice, but Department of Mental Health.

I've done this before, ordered -- I guess, it's Department of Mental Retardation, the Department of Social Services. In 1983, I was appointed to represent a child who had held his mother's DSS caseworker at scissors' point in her office. He was brought in on a juvenile delinquency petition for assault and some other charges. They really -- the Solicitor's Office really beefed it up. I moved to make parties to that action, because he had some retardation problems, he had some -- he was schizophrenic, and none of his needs were being addressed by anybody and there are a lot of kids who fall in those cracks unfortunately. It's a great tragedy in this state or throughout the country now.

What I did was I brought a motion to make parties to that action the Department of Mental Health, the Department of Mental Retardation and DSS who was involved in the juvenile actions and the judge granted my motion surprisingly enough and we worked out a very unique treatment plan for that child and today he's doing pretty well because I hear from him once in a while. And he couldn't even -- he was six when this happened, seven years old. He had an identical twin brother.

They couldn't even speak English. They had been locked in closets for hours on end by their just -- well, poor excuse for a mother who later went to jail, I believe, on some other charges, thank goodness. But I think that taught me a lessen.

It's something I remembered studying in Civil Procedure, you know, bring a motion to add people as necessary parties and so I did it. Baby lawyers know things that some people get trapped into a routine forget often and I did that. It taught me a lesson. So Family Court judges do have the statutory power to do that. They had mandamus power and I would employ that to a liberality to help some of these kids out and not let them fall through administrative cracks as much.
Q. Thank you. About writing orders, what is your philosophy and how will you go about writing orders if you become a Family Court judge?
A. Family Court judges hear in our Circuit, I believe, the last statistics I saw in excess of 2,000 cases a year. That's a lot. Of course, many of those may be child support when the hearing on child support is a rule to show cause by an attorney or brought by the Attorney General's Office or whatever, but still that's a lot of cases.

Family Court judges don't have clerks and I don't think they're enough Family Court judges to go around as it is. Consequently, I foresee myself if I'm fortunate enough to be elected to appoint or ask lawyers to write orders.

Now, it depends what kind of case, you've got. Let's say, the case is settled and there is a rather extensive involved decree which needs to be incorporated in the terms of the order, well, I would ask the lawyer to do that. If the case were contested and were somewhat complicated involving a lot of marital assets, extensive marital fault involving cocaine abuse and things that I've handled many -- probably a hundred times or more in my practice, I might ask the -- if the case were tried to conclusion without a settlement, I would like to ask the lawyers perhaps to submit proposed orders to me. Then I would pick from those and ask the -- following the equitable guidelines announced by the Judicial Standards Commission five years ago -- and I'll go over those in a minute if you want me to, but following those guidelines would either draft my own order or ask the lawyer whose order most closely resembles my decision to go ahead and write the order in accordance with my rulings. That's the way I would do it and there are so many permutations of what comes before a Family Court judge.

It's kind of mind boggling, but I've done -- as an attorney, I'm usually appointed to write orders because -- I'll brag again. I hate to do it -- I write pretty good orders. They're pretty appellate proof. They're pretty extensive. I follow Rule 27 very carefully. I follow the case law beginning with Anderson versus Anderson, 1983 very carefully because I don't want my orders remanded for lack of Conclusions of Law or Findings of Fact or whatever. They're all in there usually citing jurisdiction and venue on through to the issues at hand.
Q. When you're asked to write an order and you do, who sees it first, the judge or the other side?
A. It depends on how I was asked to do it. If the case were decided, ruled upon by the judge and I got his or her written notes in the mail or -- let's strike that. I know how to answer that. I talk too much like a lawyer, forgive me, ma'am. .

This is what I would do, the other lawyer always sees it. Now, if the judge tells me to send it to the other lawyer first, I'll do that. If the judge says just get it to me. I'll copy the lawyer, otherwise that'd be an ex parte communication in my opinion.

The ethical rules that were designed by what I call Judge Pyle's Commission, or the three -- I think there were two judge -- lawyers -- strike that. I'm sorry. Two judges and one lawyer as a committee several years ago said this is what judge -- Family Court judges are to do, the developed the Equitable Guidelines of a case because it became such a problem. The judge can announce his or her decision on the record by either doing it at the conclusion of the testimony that particular day or calling the lawyers back in and announcing the decision and then asking one of the lawyers to draft the order.

The judge can ask for proposed orders as I outlined before and then pick and choose from those and then ask the other lawyer to go ahead and make these changes for me in accordance with my rulings and how I've corrected the order and send that back to me.

So, I guess I'm straying from the point of your question. I don't mean to do that, forgive me. But the point is that the procedures that I would follow would be certainly within the ethical guidelines established by the Family -- by that Commission, perhaps even more so, because I'm very fearful of any client feeling that there was some ex parte communications between the lawyer and
-- I'm sorry, between the judge and only one of the lawyers.

Everything would be aboveboard. Everybody would get a courtesy copy of my letters and there would be telephone conference calls rather than one -- calling just the one lawyer and so forth.
Q. Would it ever arise that when you file a settlement agreement and you have both parties signing it and you file it, would it ever arise that the document filed is not the same document as the one that you send to the parties?
A. A settlement agreement?
Q. Yes. Particularly with a settlement agreement.
A. You mean an order with the settlement agreement in it?
Q. Yes.
A. I've never had one go so far as to be signed that was -- that was -- it turned out to be wrong.
Q. It turned out to be different than the one that was in the court?
A. No, I've never done -- I wouldn't do that.
Q. Your political activity, Mr. Kotti?
A. Yes, ma'am.
Q. How extensive is that and what would you --
A. Well, this is --
Q. What would be your plans there?
A. This -- I have no plans there. I have -- and this room is full of Republicans again, Senator McConnell and Senator Russell, but Mr. Alexander, I think you're still a Democrat, aren't you?

But, anyway, I have been in the immediate past Chairman of the Democratic Party in Lexington County. Now, I can't think of a more -- of a more independent political position in American than that. There was just an article in The State newspaper at the conclusion of our County convention last week making fun of us for being such a minority party there. I have -- in that -- since about 1988, I've been involved in the Democratic party in Lexington County in various positions. I was second vice chair, fund-raising chairman which was kind of a ludicrous post. There is no money to raise from Democrats, I assure you. Then chairman and now, of course, I'll resign if I am fortunate enough to get elected to this position I'm seeking, but if I -- right now, I'm second alternate executive state committee and that's it.

And I'm also executive committeeman for my precinct, but I'll resign and get out of all political activity if I'm fortunate to be elected to the bench and, you know what, I'll be happy to do it because I'm tired of arguing. There are too many Republicans over there. They're friends of mine. I represent a lot of them. Some of them are in politics, but they always enjoy teasing me and arguing with me and I won't miss that a bit.
Q. What is your policy about gifts?
A. I don't want any gifts. I don't get gifts, so -- the only people who give me gifts now on occasion are clients at Christmastime and that would have to stop if I got elected to the bench.
Q. In reviewing your financial records, I note that there are some outstanding liens in Lexington County?
A. That's correct. Tax liens.
Q. Could you describe those --
A. Sure. I tell you what the --
Q. Go into that --
A. -- circumstances of those are, I went out on my own in 1990. That is a kind of -- out of my own as an attorney in 1990, I should say. That was a rather bold, quick step made by me, frankly, to gain some independence.

In the back of my mind for many years, I've always thought that if the occasion arose I'd like to run for Family Court judge, so I wanted to get out on my own, out from working with Harvey Golden and his people who are in Family Court every day, so I could have my own independence. Since then, of course, I've had five or six cases against that firm which I relish because I know all their tricks.

But, anyway, when I went out on my own, there was -- because of my bleeding heart nature, there was a problem with getting fees to cover my bills. I had choices to make. So I put off paying taxes to keep my family fed, the lights on and the rent is paid. Fortunately, four years later, I'm pretty much stabilized and making more money than I ever have in my career, but -- so there was a couple year period where I got behind in my taxes regretfully, unfortunately which I'm now striving to pay.

I'm borrowing money and doing what I have to do to erase those liens. Other than that, I have no other financial problems, thank goodness.
Q. I think you said in your statement that you had a plan worked out with the income tax?
A. Yes, I've been working with our friends at the Internal Revenue Service and State Tax Commission. I meet with them regularly. I'm not about to let me be served with one of those warrants one day -- one day when they come in there and they're going to auction off all my property such as it is. So I'm working with them. I meet with them every so often and we've got everything worked out.

In fact, I've been able to negotiate with them quite well. They've been very kind and considerate. I told the lady from the IRS that she puts the term service back in IRS. So we've been -- maybe that helped a little. I don't know. It's the salesman in me once again. It's worked out pretty well.
Q. Are you current with your 1993 taxes?
A. Yes, I just paid a lot of money on April 15th. I should be current. I got an extension to file my tax return because I've been kind of busy this spring. I don't know if I owe any more. I hope not. I sent a lot -- about all the money I had available to the Internal Revenue Service and the State Tax Commission -- or the Department of Revenue now. Excuse me.
Q. Are you current in paying your withholding taxes?
A. I believe that I am, yes, ma'am.
Q. And I will finish up by asking you if you have expended any money in this campaign?
A. None.
Q. And if you do, will you please --
A. Absolutely.
Q. -- notify us of --
A. Sure.
Q. A judicial candidate must not seek the pledge of a legislator's vote prior to the completion of the screening process, and so I must ask you, have you either sought anyone's pledge, directly or --
A. Absolutely not.
Q. -- indirectly?
A. Absolutely not. And I won't do it until after ya'll finish the report. Frankly, I'm way behind on getting my name out because I'm a solo practitioner. I'm in court almost every day, so it's hard to get down here and campaign.
SENATOR MCCONNELL: Any members of the committee have any question? The Senator from Spartanburg.
EXAMINATION BY SENATOR RUSSELL:
Q. What time do you go to bed at night? He gets up at 5:00 o'clock and goes to the office. I don't know if you heard that.
SENATOR MCCONNELL: He and Senator Rose.
SENATOR RUSSELL: Senator Rose does that.
A. I probably go to bed, Senator Russell, midnight, 1:00 o'clock in the morning usually.
Q. Through your testimony, that's just overpowering to me. I'm just curious. I don't have any questions.
A. Do you want me to address that Tender Years Doctrine to you? I'd love to --
Q. No. I'm not going to delay us. The reason I asked that, there's a Judiciary Committee going on --
A. I'm supposed to be testifying on that.
Q. Well, it's up. It's on the agenda.
A. That's all. I was going to go over there if there was still anything to testify about.
EXAMINATION BY SENATOR MCCONNELL:
Q. I just have one question to follow up and --
A. Yes.
Q. -- you pretty much answered it, but to reinforce, you talked about judicial temperament?
A. Yes, sir.
Q. And about necessity in Family Court for evenness and not having -- having the ability not to boil over?
A. Yes, sir.
Q. What do you think you could do as a judge to prevent robitis from setting in, short patience, the robe is getting too heavy and scrambling your brain?
A. A lot of things, some personal, some professional. If you'll indulge me, I'll answer it. One thing is professional. I don't believe in rebuking lawyers on the record unnecessarily. I think that's a sign of poor temperament. It makes the system look bad. If there has been some procedural snafu, if a lawyer has done something improper or not within the rules, I will call a recess and we'll go back in chambers, go talk about it and go back out, and deal with it without -- I don't believe in embarrassing lawyers in front of their clients.

Also one thing I think is important is keeping your mind free like you said, Senator, from getting it all gummed up, I try to get some exercise every now and then. Not as much as I should, but it's hard to, but that's real important to me. It keeps your mind fresh and Lord knows it improves your attitude and this may sound corny, it may sound like Bob Richards and Bruce Jenner, but it's really true. I used to run a lot and I try to run more and I even have the, I guess, the naivete and boldness to play racquetball once in a while. That's kind of a tough game, but I believe in keeping yourself mentally and physically fit.

Another thing is Family Court judge position particularly can be so absorbing emotionally and so absorbing mentally and taxing in those areas probably more than any other level of the bench I can think of because day to day you see only tragedy. That's all you see tragedy over and over again involving sweet little kids, some who aren't so sweet and so little and parents who fight incessantly over them.

The aim and focus of my practice where it's appropriate will be children. A lot of cases don't involve kids, so that's all right, but a lot of them just involve money. That's no problem. I can deal with figures as well as anyone else, but I've kind of grown upset with parents who use their children as just toys or mere pawns to get back at the parents.

Now, this may sound like a cliche, but, folks, it goes on more than I've ever seen it in the 12 years I've been an attorney. It's very distressing to me, but that not withstanding, you still have to deal with that with a measure of patience and self-control. Lord knows, if I can -- some of the scenarios I've been exposed to as an attorney at the trial level, if I can handle them without losing my temper, I can probably handle anything the judges have to handle.

So to answer your question, I just have to remember the goals and keep set in my mind certain polestars and just try to go about it as courteously as I possibly can. I think I can -- I really believe in my heart I can do that. Some people come to me when they heard I was seeking this job and said I can't think of anybody better suited for what you're going for. You're kind of -- you're a nice guy, you're easygoing, you like people, you're genuine with people, you work hard and you know the law, I can't think of any -- I'm proud to have it. I'm bragging again, but now is the time, I guess, it's the last time, I hope I can do it, but people have told me that and that's very gratifying to me and that's one of the reasons I'm really going for this job. I think I can do it very well.
SENATOR MCCONNELL: Any other questions? The Senator from Spartanburg wants to know when do you work in the time for exercising?
A. Weekends usually.
SENATOR MCCONNELL: All right. Any other questions? Thank you, sir. Appreciate you coming.
A. Thank you. Appreciate it.
(There being nothing further, the proceedings concluded at 4:45 p.m.)

THE CHAIRMAN: We'll go ahead and get started on the Family Court seat for the Sixteenth Judicial Circuit, Seat 1. We have four candidates, Thomas C. Dillard, J.S. Flynn, Robert E. Guess and Nora B. Lewis. Mr. Dillard, you'll be first. If you'll come forward, please. Raise your right hand.
THOMAS C. DILLARD, having been duly sworn, testified as follows:
THE CHAIRMAN: Mr. Dillard, your last screening was April 2, 1992. You were a candidate for the Circuit Judge or Circuit Court At Large, Seat 5 that's currently held by Judge Clary. Have you had a chance to review your Personal Data Questionnaire Summary?
MR. DILLARD: Yes, sir.
THE CHAIRMAN: Any need for changes, amendments?
MR. DILLARD: Not that I see.
THE CHAIRMAN: All right. Do you have any objection to our making the Summary a part of the transcript of record?
MR. DILLARD: No, sir.
THE CHAIRMAN: That will be done at this time.

1. Thomas C. Dillard
Home Address: Business Address:
Route 2, Highway #9 180 Magnolia Street
Jonesville, SC 29353 Spartanburg, SC 29301

2. He was born in Whitmire, South Carolina on October 23, 1942. He is presently 51 years old.

4. He was married to Brenda R. Dillard on October 19, 1986. He was previously divorced on July 14, 1984; Thomas C. Dillard (moving party); grounds of one year's separation. He has three children: Anna Ruth, (R. N., Baptist Hospice); Deborah S. Maness; and Hope S. Davis, age 27, (purchasing agent, Cone Mills).

5. Military Service: None.

6. He attended Newberry College, l961-1963 and 1968-1970, B.A. in 1970 (left school in 1963 to work and returned in 1968); and the University of South Carolina School of Law, 1971-1973, J.D.

8. Legal/Judicial education during the past five years:
He has attended Trial Lawyers Association Convention Seminars since 1986. Prior to 1986, he attended regular CLE Seminars at the University of South Carolina Law School.

12. Legal Experience since graduation from law school:
1973-1981 Associate with Robert C. Lake, Jr. - General Civil and Criminal Practice and Domestic
1981-1986 Sole Practitioner in Union, South Carolina - General Civil and Criminal Practice and Domestic
1986-present Spartanburg County Assistant Public Defender, Criminal Practice

13. Rating in Martindale-Hubbell: CV

14. Frequency of appearances in court:
Federal -
State - weekly
Other -

15. Percentage of litigation:
Civil -
Criminal - 100%
Domestic - represented juvenile defendants in Family Court for approximately two years

16. Percentage of cases in trial courts:
Jury - 20%
Nonjury - 80%
Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) State v. Sole Dowlinton - Tried for murder. After two days, the trial jury returned a verdict of guilty of voluntary manslaughter. He was sentenced to three years. It was significant, because he was able to convince a jury that the Defendant had no malice.
(b) State v. Margarito Guiterrez - Tried for murder. He was able to have most of the State's evidence excluded during the trial. After the State rested its case, they agreed to let the Defendant plead to involuntary manslaughter which reduced the Defendant's sentence from life to three years.
(c) Nickey B. Toby v. Secretary of Health and Human Services. This is a case which he carried from the Administrative Level to the U. S. District Court on Appeal. This case was significant because of the time involved to secure the Claimant's retroactive benefits. From the time of filing to the last appeal was seven years.
(d) State v. Jerry Wood - Tried for murder. This case was significant as it gave him more experience in trying felony cases.
(e) State v. Richard Longworth - Tried for capital murder. This case was significant in giving him experience in trying death penalty cases.

18. Five (5) civil appeals:
As a Public Defender, all appeals are handled by the Office of Appellate Defense. The last appeal in which he participated was more than ten years ago when he was an associate with Robert C. Lake, Jr.

20. Judicial Office:
1981-1986 Judge, Town of Whitmire Municipal Court. He was appointed by the Town Council. It was limited to crimes which carried maximum penalty of 30 days or $200.

24. Unsuccessful Candidate:
1990 Circuit Court Judge at Large, Seat #9 (withdrew)
1992 Circuit Court Judge, Seventh Judicial Circuit (withdrew)
1992 Circuit Court Judge, Seventh Judicial Circuit (withdrew)

25. Occupation, business or profession other than the practice of law:
He worked for the City of Newberry as a water plant operator while attending college from 1968-1970. He also worked for the City of Newberry, 1965-1968. He worked as a page in the South Carolina State Senate while attending law school, 1971-1973.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
He is not aware of any financial arrangements or business relationships which would constitute or result in a possible conflict of interest in the position he seeks. In the event of any such conflict, he would recuse himself if sitting Judge.

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

45. Civic, charitable, educational, social and fraternal organizations:
Masons, Amity Lodge #87, Newberry, SC, and York Rite Bodies, Newberry, SC; Shrine, Hejaz Shrine Temple, Greenville, SC; Union Elk Lodge, Union, SC

46. He has been placed on the Register to be eligible for an appointment to an Administrative Law Judge position with the Federal Government. To be placed on the registry, he was rated on experience, references, written exam, personal interview and FBI check for security clearance.

47. Five (5) letters of recommendation:
(a) Joel Moore, Branch Manager
American Federal
P. O. Box 727, Union, SC 29379
(b) Charles W. Jones, Esquire
The Whiteside-Smith Firm
P. O. Box 1144, Spartanburg, SC 29304
582-4569
(c) Gerald G. Wilson, Esquire
P. O. Box 6189, Spartanburg, SC 29304
573-7850
(d) David E. Turnipseed, Esquire
Turnipseed and Associates
P. O. Box 1904, Spartanburg, SC 29304
573-0048
(e) H. Carlisle Bean, Esquire
Bean and Bean
P. O. Drawer 81, Spartanburg, SC 29304
582-3341

2. Positions on the Bench:
Town of Whitmire Municipal Court, 1981-1986

The Board of Commissioners on Grievances and Discipline reports no formal complaints or charges. The Judicial Standards Commission has no record of reprimands against you in your former capacity as a City Judge for the Town of Whitmire. The records of the applicable enforcement agencies: Union County Sheriff's, Union City Police, SLED and FBI are all negative. The Judgement Rolls of Union County are negative. Federal Court records show no judgements or criminal actions.

There was a civil action in which you were named as a defendant in your capacity as a member of the Board of Trustees of the hospital in Newberry. The suit was filed in 1978 and, apparently, Judge Perry found in favor of the defendants including yourself in 1982. Does that sound correct?
MR. DILLARD: That's correct.
THE CHAIRMAN: We have no complaints or statements that have been received against you. No witnesses are present to testify. At this time you will be given a chance, if you so choose, to issue a brief opening statement or if you would prefer, you can reduce one to writing and we'll put it in the transcript of record. Do you wish to do that?
MR. DILLARD: No, sir. As in the past, as you noted, I was screened in the '92. I think most of everything that the committee has requested, the information is all correct and, you know, I wouldn't have anything to add other than what I put on my application.
THE CHAIRMAN: All right, sir.
MR. DILLARD: Thank you.
THE CHAIRMAN: Thank you very much. I'm going to turn you over at this time to Ms. McNamee for questioning.
MR. DILLARD - EXAMINATION BY MS. MCNAMEE:
Q. Good morning, Mr. Dillard.
A. Good morning.
Q. Mr. Dillard, I'd like to talk with you a little bit right now about your experience in Family Court matters. I understand that you have 20 years of experience being a lawyer, but right now since 1986 all your cases are criminal cases; is that correct?
A. That's correct.
Q. Before 1986 you were in a practice. Did it include family law?
A. Yes, ma'am.
Q. And also is it true that two years of the practice with the Public Defender's Office included representing juveniles?
A. Yes, ma'am. I would say approximately two years.
Q. Is that current? Is that your current practice right now or are you just a Circuit Court --
A. No, I'm not doing juveniles right now. It's kind of -- we have a part-time employee doing juveniles at the present time. This was created after I did juveniles.
Q. You did not list any significant domestic matters as -- in your litigation list; is that correct? They were all criminal matters?
A. No, ma'am. Well, as you say, it's been eight years since I've done any domestic work. Nothing that I can't -- most of what I did was not earth shattering. It was every day type domestic matters of divorces, custody and that sort of thing. Nothing really out of the ordinary that you wouldn't see in most domestic matters.
Q. Before then 1986, did you handle any cases that included equitable distribution of marital property? Was there equitable distribution of marital property before 1986?
A. That -- if I recall, I think that is about the time that equitable distribution was starting up.
Q. Uh-huh.
A. Most of the judges that I appeared before did some type of equitable distribution. And, of course, we always asked for equitable distribution of marital assets.
Q. Then, have you done any work with the division of retirement plans?
A. No, ma'am.
Q. How much experience have you had handling cases involving child custody?
A. Well, in those 13 years that I practiced, I would say probably at least fully half of them would involve custody in some -- they involve children and custody of children.
Q. Were these usually contested divorces?
A. Normally, yes, ma'am, at that -- especially with -- if custody was involved, of course, it was contested.
Q. Are you familiar with the DSS child support guidelines?
A. I'm not real familiar now. I mean, I'm familiar with them, but not enough to tell you that I can sit here and talk to you and talk to you intelligently about them, no, ma'am.
Q. When you were in practice, private practice, did you handle termination of parental rights cases?
A. Some.
Q. Or any cases of -- involving the removal of children from the home?
A. I've handled some in termination of a parental rights.
Q. And what is your experience in handling matters of juvenile delinquency? Could you go into the two years when you were defending juveniles?
A. Those were, of course, not only criminal offenses that were charged, I also represented juveniles charged with status offenses, but they were involved, you know, working up the whole defense of the juvenile whether it was a status offense or whether it was a criminal matter and, of course, we represented a good many because the juveniles were considered to be indigent.

Very -- very few were either -- some would retain private lawyers and occasionally the judge would appoint or tell the parents that they needed to hire a private attorney for their child. But we considered the juvenile as being the client and those being indigent, so we represented, I guess, the majority of juvenile cases that came up in Family Court.
Q. What is your experience with child abuse and neglect cases?
A. Now, that would go more, I guess, into my criminal practice. Of course, I have been exposed to that over -- and on a regular basis, I've had to deal with child abuse cases from the defense standpoint. I never prosecuted. But I have had to do deal with them from the defense standpoint even -- and deal with some now in the -- in my capacity as a public defender.
Q. In the past few years when you have taken CLE's, have you taken CLE's about domestic law or family law? Do you have credits in that, in those areas?
A. I've taken -- most of my CLE's have been through the Trial Lawyers, which is about all areas and it covers all areas, criminal law, domestic, some administrative law. It's just a general hodge podge of fields.
Q. And if they offered a selection of seminars, three-hour seminars involving family law or criminal law or environmental law, did you go to the family law ones?
A. I would -- I have gone to some family law to try to keep up with family law. The -- fortunately, during the Trial Lawyers, the criminal law would be on the agenda first and then the others did not conflict with them. They would have something, administrative law, usually at the same time that they had the criminal matters, so it was usually not any conflict between the domestic seminars and criminal.
Q. So you -- does that mean that you've been to the -- attended the seminars?
A. Yes, ma'am.
Q. Would you go through briefly your community activities in your community? You mentioned some associations that you belong to, Elks. Are you active in these associations?
A. Not as active as I have -- as I have been. I guess as we all get older, we're not as active in organizations as we were. Yes, ma'am. I am an active member of the Elks Club. I go to the Elks Club not frequently, but, of course, I am a Mason.

And I was active with the Shrine for many years and have not been in recent years, but other than that, most of my time is spent with my family. I have a couple of grandchildren that I spend as much time with as possible.
Q. Do these activities involve actively your participation with children in the community?
A. Nothing other than the Shrine. Of course, the Shrine was
-- is child oriented and it's for crippled and burned children. And that's what they do.

It's always been something that's been dear to my heart are children and I guess that -- maybe that's the reason I spend as much time with my grandchildren as I can. I spent as much time with my own growing up until they got to the point to where they didn't want to spend time with me as --
Q. That always --
A. -- teenagers do.
Q. That always happens.
A. But now I spend as much time as possible with my grandchildren.
Q. You have been screened three times or so for Circuit Court judge and I would like to you ask what your strong interest is in being a Family Court judge at this point?
A. I guess maybe just what you alluded to awhile ago about representing juveniles, that I have a very strong interest in children and in families. I think probably that is our biggest root problem today is the family unit is sliding by the wayside and it appears from what I see every day and I used to tell people that I had juveniles that I now represent in General Sessions court that have graduated. Somewhere along the line, somebody has failed them, those children, and I think that is my biggest input.

I can see my grandchild now and I know what he's got to have. And I say he because he lives with me, and he is going to have to have guidance and I think that's something that is sorely lacking through our society today for whatever reason. I don't have all the answers. I don't -- in fact, I wish I did.

I have, as I say, a great interest in kids and particularly kids and old folks are, I guess, are my weaknesses because they're pretty much at the mercy of everyone else.
Q. Could you tell the committee what your impressions are of the Family Court system and the way that it can deal with juvenile problems? What would you hope to contribute as a Family Court judge?
A. I think probably the biggest thing that Family Court can do now is to try to look at juveniles as having a problem, not as just being mean and needing to be incarcerated. There needs to be something to help these children because they are children and they do not have the discretion as adults have. A lot of choices, I think they -- well, most of them, they're not equipped to make the choices that they're faced with.

Things, I guess, are a whole lot more complicated than when I was growing up and you were growing up. Kids are bombarded by so many different things now that it's -- I would say that compassion, guidance for those children when they're not getting any at home.
Q. What would you offer as a, I guess, sentence for a -- or a treatment plan for someone who came to you who you felt was lacking this guidance? Let's just say it was a status offense.
A. I think all of those when you get at it, and I recall one particular juvenile that I represented that was about -- a 13-year-old female who was obese. The reason that she would not go to school is because of kids making fun of her. That went before Judge Lane.

And I think he handled it pretty well and later in talking with that child, she had changed her attitude a great deal because of what he had said on the bench and he kind of made fun of his -- she had mentioned that she didn't like to do to school because the kids made fun of her being obese and he said, "Well, that's nothing. People -- you know, I've got a big nose." And he kind of put it down on her level, something that she could understand without -- I mean he was firm, but he was down to where she could understand what he was talking about. That he was sitting up there talking with her. She could do whatever she wanted to, and it was more her perception of herself rather than other people's perception of it. I think that's -- to approach things that way rather than trying to treat juveniles as adults and have them judged by adult standards on status offenses. Kids see things in different ways.
Q. What about the violent, very violent juvenile --
A. I think again -- I think the violence goes back to the lack of supervision at home more than anything else. That's what I have seen in my handling of juvenile cases that the kids were not that hard to reach. It was the parents that were hard to reach because they had a mind-set that either I can't do anything with him, you know, mainly because they haven't tried or my child can do no wrong, I don't care what you say. There was either one way or the other.

And I think that's a lot of what perpetuates the violence, that kids are left to their own devices to make decisions about things that they don't have any expertise in making decisions about. They don't think about the consequences of their actions. And there is nobody that's telling them what the consequences of their actions are.
Q. Would you then be treating the entire family or --
A. I think --
Q. -- handing down some recommendations that involve them in that?
A. I think in certain cases that would certainly be appropriate and I realize -- and I have had clients to where it was really a juvenile could not be handled. They just would not do any way no matter what anyone tried to do for them. But I think there are some cases where it would be appropriate that there should be a lot more family counseling or family involvement. I don't think you'll ever change it until the family wants to change it. It's kind of like an alcoholic or a drug addict, until that person wants to change and wants to help themselves, I don't know if there is a great deal you can do.

You can put it there, but whether they take advantage of it or not, it's -- it's kind of like going from high school to college. If you recall you were kind of spoon-fed in high school and they pushed you to do it and threatened and cajoled and everything else. When you get into college, they say there it is, if you want it, get it. If you don't, I'm going to be paid anyway. So it's kind of a shock to a lot of people going from high school to college.
Q. Mr. Dillard, I think you touched on this a bit, but let's go back to it. What do you think are the qualities that make up a good Family Court judge? What kind of temperament does a good Family Court judge need to have?
A. I think say an even one. Like I say, even temperament, open-mind, certainly compassionate. You're dealing with the most volatile, the most important thing in people's lives, their family, their property. And I think it takes an even keel in order -- you're never going to make everybody happy. Probably 90 percent of the time, you're not going to make anybody happy, but it's not a happy situation to have to do things like that, dissolve marriages, change custody, terminate parental rights. But I think it requires an even temperament, some compassion and generally open-minded about --
Q. Which of these is your strongest quality?
A. I think probably open-minded. I think I'm -- and temperament. I'm not prone to get real angry. In fact, my wife says I don't get angry about things that I should, that I take -- and she often says that my brother and I are a lot alike, we're always trying to find the good in everybody instead of the bad. And I have a tendency to do that. Let things slide that other people would get real outraged about.
Q. And which of those qualities would you need to work on the most to be a good family court judge?
A. Probably in some cases compassion. There is -- there are some things that -- as you mentioned child abuse and things like that I've seen so much of, that it's hard for me at times to represent the defendant charged with these when the evidence is pretty much that they have committed what they are charged with and it's hard for me to have to summon up compassion for that. I had one -- I have compassion, more compassion, for the victims who are innocent, cannot help themselves. As I said, they're helpless.
Q. Could you please describe your work habits? Describe a workday, if you want.
A. Well, right at the present time, I'm -- of course, I work in the Seventh Circuit and we have court just about every week, so it's constantly from 8:30 in the office until court breaks down, preparing cases, preparing pleas, talking with clients. It's pretty much constant. You don't have a whole lot of leisure time. Right now we have two weeks off, but that is a rarity with our docket the way it is now.
Q. Are you mainly stationed in Union or do you work in Spartanburg?
A. No, I work in the Public Defender's office in Spartanburg.
Q. Spartanburg. So it's mostly Spartanburg as opposed to Cherokee?
A. It's strictly Spartanburg. I work for Spartanburg County. I live in Union County, but I work for Spartanburg.
Q. I understand that you -- from your questionnaire, that you are seeking -- or you are qualified to be a federal court -- federal ALJ?
A. That --
Q. Is anything happening with that? Are you actively seeking --
A. No, ma'am. That came up before -- they sent out another offer for renewal and I did not pursue that. After that you have to renew every two years, I believe it is, or something.

And the way they were going to do it, you had to go back through the whole written test. Everything. You know, just de novo so to speak and I just decided not to do that. To -- I would not be on the register now, I'm sure.
Q. And when you were on the register, you did not really serve as one?
A. No, ma'am. They qualify you and put you on a register and, of course, those positions are so limited that there -- it's just when something comes up and it would be where you were on the register --
Q. Okay.
A. -- at that particular time.
Q. What was your Martindale-Hubbell rating?
A. The last that I was rated was CV.
Q. And what does that mean in your mind?
A. Ma'am?
Q. In your -- how do you evaluate that rating?
A. Oh, I don't know. Well, I mean, I don't -- I've never really understood Martindale-Hubbell ratings, to tell you the truth. They used to have a period of practice before you could get any rating and then another period before you could be rated a notch on up and I think they did away with that, but there is -- supposedly, they rate you on legal ability and then ethical considerations and things of that sort.

I don't know often -- when I was in private practice I would get questionnaires from Martindale wanting me to rate other lawyers, but I haven't done that in years and I don't know that -- I may not even be listed in Martindale at the present time. I'm not sure.
Q. How you will go about if you are elected making the decision in your case? Will you ask for proposed orders from each side? Will you write your own orders? What will be your practice?
A. I don't -- well, I think time constraints would prohibit drawing your own orders except in maybe some unique type of case. Normally, make a ruling and ask the prevailing party, I guess if you want to put it that way, to draw a proposed order and make sure that it coincides with what the ruling was, what the order really was. If it is a complex -- that could go either way maybe, ask for proposed orders from both parties. But I think that time constraints would prohibit drawing your own orders and drawing each and every one of our own orders.
Q. If you asked a party to draw an order for you, would you ask them to share it with the other side before submitting it to you?
A. I think that any proposed order that would be requested by me, both parties would have -- should have an opportunity to see it before I sign it.
Q. Have you ever been found in contempt or sanctioned by any court that you appeared before?
A. No, ma'am. Not to my knowledge.
Q. What do you believe constitutes ex parte communications?
A. I think it would be anything that would touch upon a pending case or a case that might be coming up, in particular, facts about a case, not general law discussions but, you know, a particular fact situation. Anything touching that, I think, would be ex parte unless it was qualifying something particular maybe that didn't -- that one attorney did not understand exactly what you said. This is, as I said, in drawing a proposed orders or drawing an order upon your own oral ruling, maybe the person who is going to draw the order did not understand one particular point of what you ruled. And they ask about that, I don't think that would be -- I guess in the strictest sense it would be ex parte, but, I mean, I don't think there would be any problem with explaining exactly what you mean.
Q. Has there ever been an occasion when you have engaged in ex parte communication with a judge, say, in family court?
A. Not to my knowledge.
Q. What is your standard for recusal if you were a judge?
A. It would be anything that I would have knowledge of the parties, maybe some type of relationship, maybe a former client, something of that nature or I knew the parties personally, or knew one of the parties personally. Something like that.
Q. Would you automatically recuse yourself?
A. I think I would. Well, if it came down to close personal acquaintances, yes, ma'am. I think I would in that situation. If it were just people that I knew or had represented in the past and knew I had represented in the past, of course, I would make the lawyers aware of that fact and, you know, if they wanted somebody else to hear it, that would be fine.

As I said, I don't -- I would not be biased, but that would be -- I would not want any appearance that I were biased one way or the other.
Q. And to talk a bit about your philosophy about gifts versus social hospitality, how do you distinguish between the two and how does that affect you? What is your philosophy to that as it relates to the Judicial Canons?
A. My philosophy?
Q. Yes. Your understanding of it.
A. Well, maybe I'm not quite understanding. Would you repeat that because I'm not sure I understand exactly what --
Q. Well, there are several aspects to it. You finish up a case and the lawyers say, "Judge, let's go to lunch," or
"Judge, there is a good movie and I'll treat you to it," and I'm just thinking, would you go to a movie, something like that?
A. Well, of course, my policy has always been pay my own way as far as anything like that goes. Inevitably over time, you form friendships among the Bar. I'm not sure it's realistic to think that you can just totally ignore, you know, those friendships or associates as long as it is there and you're personal friends and not just lawyer comes in from out of town and is going to curry a favor with the judge, then, no, I mean I don't see that.

But it was -- all of the lawyers in this particular race are friends. Have been for years. I do not see anything wrong with sitting down and drinking a cup of coffee with them as long as you don't discuss any cases that are -- and I think they're aware of that. I think they would be aware of that, too. It would be strictly on a personal basis and not for any type of ex parte communication. I don't think you can cut yourself off entirely from the Bar because that -- you know, that's mainly where your friends are.
Q. Do you have any bright line tests if you had some -- if they had some case before you?
A. I think if it was a pending case and a case going on and it had not been ruled on, then I think all -- at that particular point, all social contact would -- any social contact really would be inappropriate as showing -- providing an appearance of maybe that there might be some impropriety. But once a ruling is made, you're back to square one as far as I'm concerned and you know, you're -- just friends among the Bar, one sits on the bench and one practices before that Bar.
Q. Mr. Dillard, have you sought the pledge of any legislator for this seat?
A. No, ma'am.
Q. Either directly or indirectly?
A. No, ma'am.
Q. Do you know of anyone soliciting pledges on your behalf --
A. No.
Q. -- in this --
A. Not to my knowledge.
Q. In what ways have you sought this office of Family Court judge?
A. Well, mainly, what I have done is contacted legislators, tell them who I am and what I'm running for, that I'm interested in it and try to preface, you know, this is all I can do now. I have a bio sheet that I have handed out to some. And that's about it. Just basically mingling among and speaking to as many legislators as possible.
Q. We do not show that you have spent any money on this race; is that correct? If you have, would you -- if you have, would you please notice Ms. --
A. Nothing other than spending money for gas riding from Union down to the legislature.
Q. Travel is not counted.
A. Yes, ma'am.
Q. But when you do, will you please notify Ms. Satterwhite and file the appropriate letter. Thank you. That's all I have.
THE CHAIRMAN: Let me ask you a couple of questions, one, I note you were town attorney for the town of Whitmire from 1981 -- I'm sorry, you were town judge for the town of Whitmire from 1981 to 1986?
A. Yes.
THE CHAIRMAN: What was the circumstance under which you left as town judge?
A. When I went to work at Spartanburg at the Public Defender's Office, they felt like they wanted somebody closer who would be near at hand to issue warrants or whatever they need.
THE CHAIRMAN: Was it something you wished to continue to do and they just -- they told you they'd rather have somebody who was closer at hand? Or was it a voluntary -- was it a mutual agreement?
A. It really would -- at the time that I went to work at Spartanburg, it became a chore for me because I had to go
-- I had to hold court, you know, once a week. I'd have to drive back to hold court at least one night week or write up tickets or whatever. And it's kind of mutual thing. They --
THE CHAIRMAN: So they didn't fire you?
A. No. Uh-huh.
THE CHAIRMAN: Okay.
A. It was just mutually, and, like I say, they felt like -- and I didn't really argue to stay because it was getting to be kind of a hassle for me trying to do both things.
THE CHAIRMAN: Did they replace you with another lawyer or was it a layman?
A. I'm not really sure. I believe it was a layman.
THE CHAIRMAN: Let me ask you about the CV in Martindale-Hubbell, too. My understanding of Martindale-Hubbell is it is a peer review process where they consult with your brethren at the Bar and ask them their general opinion, and to be candid with you, my understanding, a CV has always been that your colleagues rate you as below average. Is that -- did you ever challenge that rating of you or do you know when it was administered by the Martindale-Hubbell Group?
A. No, sir. As I say, I'm not -- I don't even know whether I'm listed in Martindale-Hubbell now.
THE CHAIRMAN: All right. Do you quarrel with my assessment that that's what CV means or what C means, or do you have any knowledge of the Martindale-Hubbell rating system?
A. I don't -- other than what the front of Martindale-Hubbell says, I don't really have any knowledge of it.
THE CHAIRMAN: Do you recall what it says in the front of that?
A. Well, I think as I told her that the -- the first letter was supposed to be legal ability and the next was the ethical --
THE CHAIRMAN: The V is the ethics; C is the legal ability. I think that's correct. All right.
A. I couldn't tell you when that last -- that rating was and --
THE CHAIRMAN: All right. You have not requested a review of that rating by Martindale?
A. No, sir, because, like I say, for the last -- last eight years, I've been in the public sector and --
THE CHAIRMAN: Okay.
A. -- not really been concerned about that rating because I was not out in private practice.
THE CHAIRMAN: Okay. Mr. Alexander, any questions?
REPRESENTATIVE ALEXANDER: No, sir.
THE CHAIRMAN: Thank you, Mr. Dillard. The next candidate is J.S. Flynn. Mr. Flynn, if you'd come forward please.
JOHN SARTOR FLYNN, having been duly sworn, testified as follows:
THE CHAIRMAN: Mr. Flynn, have you had a chance to review the Personal Data Questionnaire?
MR. FLYNN: Yes.
THE CHAIRMAN: Is it correct?
MR. FLYNN: As far as I can determine.
THE CHAIRMAN: Any amendments or changes that need to be made?
MR. FLYNN: No.
THE CHAIRMAN: Do you have any objection to our making that a part of the record at this point?
MR. FLYNN: No objection.
THE CHAIRMAN: That will be done.

1. J. S. (John Sartor) Flynn
Home Address: Business Address:
217 S. Mountain Street 127 W. Main Street
Union, SC 29379 Union, SC 29379

2. He was born in Union, South Carolina on February 14, 1932. He is presently 62 years old.

4. He was married to Nora Grant Alston on February 23, 1963. He has two children: Alston Flynn Lippert, age 29 (Assistant Professor of Economics at Villanova University, Villanova, PA), and Anne Macon Flynn, age 26 (lawyer at Richardson, Plowden, Grier & Howser, Columbia, SC).

5. Military Service: October 1, 1952 - October 2, 1954; US Army; Sgt. (E-5): RA 14 465 433; Honorable Release by DD-214: October 2, 1954; Honorable Discharge July 20, 1961.

6. He attended the University of South Carolina, 1950-1952 (entered US Army) and 1954-1956, B.S. in Business Administration; and the University of South Carolina Law School, 1955-1958 (Bachelor of Laws), 1970 (Juris Doctor).

8. Legal/Judicial education during the past five years:
Since CLE requirements were started, he has met all until he was determined exempt therefrom; and since then he has attended CLE programs sponsored at meetings for solicitors and for county attorneys.

9. Taught or Lectured:
Spring semester 1976, he taught a course in Business Law at USC-Union.

12. Legal experience since graduation from law school:
General practice of law since 1958 in Union County, South Carolina. During this period of time he served as City Recorder, 1960-1962; Public Defender, 1969-1978; Assistant Solicitor, 1978-1993; and he is presently Union County Attorney.

13. Rating in Martindale-Hubbell: BV

14. Frequency of appearances in court:
Federal - none
State - at least monthly
Other - none

15. Percentage of litigation:
Civil - 10
Criminal - 75
Domestic - 15

16. Percentage of cases in trial courts:
Jury - 15
Non-jury -85
Sole counsel (although Solicitor exercised the discretion)

17. Five (5) of the most significant litigated matters in either trial or appellate court:
He believes that the significance of the cases he has handled in his 35 years of practicing law belongs to his clients individually, but not to society as a whole. Particularly, the cases he has handled regarding the protection of neglected and abused children, and the representation of persons accused of violating criminal laws, are profoundly significant to all individuals involved because their lives are changed by the Court's involvement and decisions. In turn, the increasing number of these cases in the court system and how they are handled is significant to society as a whole.
(a) Stewart v. Stewart (Watts); Union County Judgment Roll: AA-397.

He represented the Plaintiff who had previously married a North Carolina woman about 50 years prior to this court proceeding. He was still married to her when he participated in a marriage ceremony with the Defendant, with whom he fathered and reared four children, all of whom were emancipated before this action was commenced. Plaintiff divorced the North Carolina woman and continued living with this Defendant, although only sporadically at times, until about 1990 when she married a man named Watts. Plaintiff and Defendant owned one house together, and a second house, used by Plaintiff as his home, was titled only in Defendant, having been conveyed to her by Plaintiff some years previously. Plaintiff and Defendant maintained a joint bank account and filed joint income tax returns through 1989. Defendant wrote Plaintiff and told him to vacate the home because she intended to sell it.

This action to determine the relationship of Plaintiff and Defendant as one of husband and wife under Common Law, for divorce on the ground of separation for over one year, and an equitable division of property, was instituted, and a Lis Pendens was filed concerning both properties. Needless to say, the matter was contested. The Court ruled that a Common Law marriage had been established when the North Carolina woman was divorced, that the property was transmuted into marital property, and that each of the parties was entitled to 50% of the net value of both houses as an equitable division of the marital property.

The significance here is that without taking action, the Plaintiff could have lost all of his possessions and his home.
(b) State v. Unnamed Juvenile; Union County.
The juvenile in this proceeding was alleged to have committed a trespass after notice. The juvenile involved was attempting to get to game preserve land that did not have a decent access to the public road. There were homes in the sparsely settled area that were adjacent to the north of the game preserve lands. The juvenile, with another, went from the public road on a bicycle and passed a "no trespassing" sign and a locked gate onto privately owned lands crossing them to the rear of the dwelling house and approaching the game preserve property when he was accosted by the landowner and resident.

A prosecution was necessary due to the insistence of the homeowner. The juvenile appeared and was represented by appointed counsel, the public defender. At the conclusion of the evidence, the court ruled that the case had been proved against the juvenile beyond reasonable doubt, but the court determined that the best interest of the juvenile and society required that the child be warned that what he had done was a violation of law and that the case would be dismissed with no attendant punishment.

The significance here was that all juveniles who violate the law are not necessarily punished for their indiscretions. This case also demonstrates the importance of the Family Court as a device for warning juveniles and a deterrent to juveniles from committing more serious and more personally harmful acts in the future.
(c) Union County DSS v. Gray, et al.; Union County Judgment Roll: V-437.
This was a child abuse/neglect matter. Four children, all under ten years of age, were found together but without any responsible person to care for them. They were taken into Emergency Protective Custody by a law enforcement officer and turned over to a child protective service worker with Union County DSS, who put the children in foster care and contacted him as Assistant Solicitor to bring the matter to the attention of Family Court. The action, as do all such, required a Summons, Complaint, Notice of Hearings (Emergency and Removal) as to time and dates, Petition for Appointment of Guardian ad Litem and Attorney for the children, Order appointing someone as Guardian ad Litem, and someone else as attorney for the children, and Notice to parent of right to counsel.

The Emergency Hearing must be held within ten days of the taking of the children, and it was. The purpose of the Emergency Hearing is for the Court to determine whether the law enforcement officer acted appropriately in taking the children into emergency protective custody, and to determine whether the children should be continued in foster care under DSS supervision or returned to the parent pending the Removal Hearing. In this case, the mother appeared without shoes or counsel, and otherwise appeared unconcerned.

The Court ruled that the law enforcement officer acted appropriately, appointed counsel for the mother, and continued custody with DSS until the Removal Hearing, which had already been scheduled for a time within 30 days of the Emergency Hearing.

The primary goal of the Family Court in situations such as this is to determine what the best interests of the children requires and try to see that it is carried out. Such was the significance here.
(d) Union County DSS v. Williams, et al; Union County Judgment Roll: R-5.
This also was a child abuse/neglect matter. The child was under one year of age, and the stepfather of the child broke the leg of the child by twisting it. The matter was reported to DSS by the doctor who treated the child. After the stepfather was confined in prison for what he had done to the child, the mother and child were reunited with assistance from the Court and DSS. This matter, as do all child abuse/neglect matters, involved several persons and more than one court appearance by several attorneys including:
Judges: Wilburn and Mendenhall
Attorneys: J. S. Flynn - DSS
Nora Lewis - Stepfather
Barbara Machell - Natural Mother
Richard Steele - Abused Child
Thomas H. White - Guardian ad Litem for Abused Child
The significance here shows that the court sought the child's best interest, which in this case reunited the child with the mother.
(e) Owings v. Roper; Union County Judgment Roll: W-375.
He became involved in this matter several years after the parties had been divorced. The action was instituted by a Petition for Contempt and a Rule to Show Cause against the mother of a child, age about six years. The Petition alleged the mother was refusing weekday visitation without justification and that she should be required to pay costs and counsel fees and be sanctioned by the court.

He represented the mother of the child and procured an Affidavit about the child from the child's teacher and filed on behalf of the mother an Answer, Return to Rule and Counterclaim.

Prior to the time for hearing, the parties, through their respective counsel, negotiated a settlement of their differences with increased child support benefits for the mother, who continued to have custody and with spelled out visitation times, and with each to pay their respective counsel. At the designated time for hearing the agreement was presented to the Court with all present. The Court determined the agreement was fair, just and equitable under the circumstances and adopted it as the Order of the Court.

The significance of this is that sometimes people don't realize they would be better off leaving well enough alone.

18. Five (5) civil appeals:
He has never personally handled a domestic appeal.

20. Judicial Office:
For approximately two years he served as City of Union Recorder with only criminal (minor misdemeanor) jurisdiction of $100 or 30 days.

24. Unsuccessful Candidate:
S. C. House of Representatives, 1960 (came in fourth out of six vying for two seats)
Probate Judge, Union County, 1964
Sixteenth Circuit Solicitor, 1988

25. Occupation, business or profession other than the practice of law:
For about ten years he taught part time at USC-Union. He was allowed to have 8 a.m. classes in Accounting and Economics. This did not interfere with his law practice.

39. Expenditures Relating to Candidacy:
Postage, $58, 3/3/94

44. Bar Associations and Professional Organizations:
South Carolina Bar Association; Union County Bar Association (past President, 1975)

45. Civic, charitable, educational, social and fraternal organizations:
Union Rotary Club (past director, Paul Harris Fellow); Masons; Hejaz Shrine; Elks (past Esquire); Grace United Methodist Church (Pastor-Parish Committee, Sunday School teacher, Administrative Board); American Legion; Union Country Club

46. Union County Chamber of Commerce (past President, 1984-1985)

47. Five (5) letters of recommendation:
(a) J. Carlisle Oxner, Jr., Chairman & President
Arthur State Bank
P. O. Drawer 869, Union, SC 29379
427-1213
(b) Larry F. Grant, Esquire
Gatlin Law Firm
P. O. Drawer 964, Rock Hill, SC 29731-6964
327-7171
(c) James M. Arthur, Esquire
P. O. Box 705, Union, SC 29379
427-8662
(d) B. G. (Bob) Waddell, Minister
Grace United Methodist Church
201 South Church Street, Union, SC 29379
427-1266
(e) William L. Ferguson, Esquire
Spencer & Spencer
P. O. Box 790, Rock Hill, SC 29731-6790
327-7191

2. Positions on the Bench:
City of Union Recorder's Court; 11-14-60 to 6-29-62
This was part-time employment; the jurisdiction was only criminal, with maximum punishment of $100 or 30 days.

10. Extra-Judicial Community Involvement:
He has been actively involved with community matters for a long time, but he has never used any job to further his interests. If the community benefitted, it was good.

The Board of Commissioners on Grievances and Discipline reports no formal complaints or charges of any kind. The Judicial Standards Commission has no record of reprimands against you in your former capacity as City Recorder. The records of the applicable law enforcement agencies: Union County Sheriff's, Union City Police, SLED and FBI are all negative. The Judgement Rolls of Union County are all negative. The Federal Court records are negative as well. We have no complainants who are here to testify against you. There are no witnesses that have asked to be heard in your case.

At this time, you have the opportunity, if you choose, to either make an opening statement or we allow the candidates, if they wish, to have some statement regarding their candidacy entered into the record. They can reduce that to writing and provide that to us in a reasonable period of time after this hearing. So you've got that opportunity, if you so choose.
MR. FLYNN: I choose the latter.
THE CHAIRMAN: So if you will in the next few days, if you can, if you have something you'd like for us to reduce to writing included in the record, we'll be happy to do it.
MR. FLYNN: Thank you.
STATEMENT OF MR. FLYNN:

Please let this written statement accompany my testimony given on Wednesday morning, 4/27/94.

My name is John S. Flynn, but I prefer Jack. I am a lifelong resident of Union County where I have maintained a law office and an active practice for over 35 years, which included extensive work in the Family Court since its inception in 1977. My experience includes having been involved in juvenile and child abuse matters both as Public Defender and as Assistant Solicitor, and domestic matters as private counsel.

My family includes my wife, Nonie, and our two grown daughters.

I am a member of the S. C. Bar, and am a past president of the Union County Bar Association. I am active in Grace United Methodist Church, its Pastor-Parish Committee, and Mens' Sunday School Class where I am one of its teachers. I am also involved in my community with memberships including Rotary, Masons, Shrine, Elks, Country Club and American Legion.

My experience includes 2 years in the U. S. Army, and 3 years in the 412th Military Government Group Active Reserve; 35 years active law practice in Union County; City Judge; Public Defender; Assistant Solicitor; County Attorney; Instructor of USC-Union; and former President of the Chamber of Commerce.

I believe that I have the experience, the ability and the maturity to handle the responsibilities of a Judgeship in the Family Court System.

Thank you for your kindness in this matter.

Yours very truly,
/s/John Sartor Flynn

THE CHAIRMAN: At this time, I'll turn you over to Ms. McNamee for questioning.
MR. FLYNN - EXAMINATION BY MS. MCNAMEE:
Q. Good morning, Mr. Flynn.
A. Good morning.
Q. Mr. Flynn, you've been a lawyer for 35 distinguished years, I understand?
A. Yes, thank you.
Q. And you have been, as I understand it, a general practitioner and a solicitor?
A. I have been -- I have maintained a general practice of law for over 35 years. During that 35 years for about a year and a half to two years, I was City Recorder for the City of Union; for several years, I was public defender in Union County; for 15 years, I was an assistant solicitor, and now I'm the County Attorney for Union County.
Q. Is being the County Attorney for Union County a full-time job?
A. No, ma'am.
Q. Approximately how much of your workday is -- or workweek is that part?
A. Not very much. It varies. Sometimes it would take a little more time than others. It's depending on what -- what's in the works.
Q. You say that you are in court on a monthly basis; is that correct?
A. Well, I think the way I interpreted that question was over the past five years -- and I don't go to court much anymore. I go some, but I don't look for work and I go when I'm called and I take -- I limit the cases that I take. I take the ones that interest me.
Q. What kinds of cases are those usually?
A. Different types. I expect most of them are Family Court.
Q. Like what kinds of Family Court cases, sir?
A. I gave reference to the -- the first one that I gave was the Stewart case. And I -- that case interested me and I got involved in it.
Q. What year was that, sir?
A. It started in '92, I believe.
Q. So it's a very recent case?
A. Yes, ma'am, that was my most recent -- well, one of my more recent ones.
Q. I see. All right. I guess you said it was 15 -- you did 15 percent of your work was domestic work; is that correct?
A. That is just out of the air. I figured again for the last five years about 15 percent.
Q. How many of those cases are contested cases?
A. In family court?
Q. Yes, sir.
A. Probably about all of them.
Q. Uh-huh.
A. I guess maybe not all of them. Maybe 85 percent.
Q. Have you handled cases that involve equitable distribution of marital property?
A. Yes, ma'am.
Q. And then also the distribution or the division of the retirement benefits?
A. I have not been involved in one of those. I intend to go to the seminar, I believe, it's May the 6th or May the 5th, whenever. It's the first week of May that has that on the agenda.
Q. I see.
A. That I find that that may be something that would be interesting to find out about.
Q. Have you handled child custody cases?
A. Yes, ma'am.
Q. How many in the last year?
A. In the last year?
Q. Yes, sir.
A. I don't know that I've been in a contested child custody case in the last year.
Q. Okay.
A. If I had, it would only probably be -- well, no, I think I -- I handled one recently, very recently. And it was determined at the temporary hearing, so then the matter was settled and my client ended up with custody.
Q. Did that case also involve child support guidelines?
A. Yes, ma'am.
Q. Are you then familiar with them?
A. Yes, ma'am. I don't ever compute them according to the way other people do, but I get within the dollar range very close. I use the form.
Q. Yes, sir. Have you much experience in cases that involve the removal of children from their homes?
A. Yes, ma'am. And that is a very sad part of Family Court law.
Q. How much experience would you say?
A. More than I would like to have had. I don't remember how much it was. It was -- there's a procedure. If the determination is made that a child is allegedly abused or neglected that there is a procedure for that and you have to have at least two court appearances for a temporary hearing and then a removal hearing. And you are limited in time, I believe, it's ten days within which you have the temporary hearing and then within 30 days of that to have the removal hearing.

And I find it very sad to see children having to be removed from their homes, but there are times when the person who is in charge of them is not proper or appropriate to continue with the custody until they get their act straightened out.
Q. Mr. Flynn, have you been appointed in any cases in Family Court to represent any parties?
A. I received a call to be either an attorney or a guardian ad litem recently and I asked them to please check and if find out if I might have a conflict for having been involved in the same case previously and it was DSS and they checked and found out that I had been involved previously and so I was not involved in that particular one. But I have no hesitancy about accepting an appointment.
Q. Your Personal Data Questionnaire, Mr. Flynn, showed that you are not required to attend CLE's any longer?
A. I have been determined exempt after 30 years active participation, but -- well, it was all of the time that the CLE program was in effect and after I had been practicing law 30 years, I was determined exempt there from.

However, I have continued to attend certain seminars that were available at the SCAC meeting concerning counties -- County Attorney and as long as I was with the Solicitor's Office, I would attend the CLE's programs at the Solicitor's Conventions.
Q. And you just --
A. I did not file my -- excuse me, please. Pardon me for interrupting. I did not file any report thereabout, but I attended. And I also read my Advance Sheets.
Q. And you just made reference to the fact that you will be going to one in the next month or so and I guess it deals mainly with domestic issues. How else do you expect to bring yourself up to speed on some domestic issue that may have arisen in the last few years that you have not handled before?
A. I don't think I'm far behind.
Q. Good.
A. I have maintained a pretty good reading relationship with my Advance Sheets.
Q. Do you do much writing in your practice, sir?
A. Writing?
Q. Writing. Yes, and legal research and analysis and then writing?
A. No, ma'am. In fact, the only writing I do is to prepare a Complaint or an Answer to Counterclaim or whatever is appropriate or what's ordered.
Q. Well, that gets into my next question, what do you expect will be your procedure if you're elected to this job and the writing of orders? Will you write your own orders, sir? Will you have the attorneys write your orders?
A. I think it would be rare for me to write my own order. I think I would choose the prevailing attorney and designate that individual to prepare the order.
Q. And after you have asked him to do that, what is your next step? Does he --
A. He mails it to me or brings it to me.
Q. Has he already shown it -- have you instructed him to show it to the other side?
A. I would -- no, ma'am. I would attempt to make my ruling at the end of the evidence while the parties and their attorneys are present.
Q. Uh-huh.
A. With everybody present, I would announce my ruling unless there was something unusual about the case that may require or may indicate that I would ask them to file some -- something in writing to support a position that I was not clear on and then I would designate an individual to -- that I consider the prevailing party to prepare the order.
Q. Okay.
A. That would be in the presence of the prevailing party, that party's client, the losing attorney and the losing attorney's clients. And while everybody feels that they lose in a Family Court contested matter, sometimes each party may win something. It may not be a total win, but it may not be a total loss.

And I would feel like the party -- I feel like it would be the responsibility of one of -- the individual who generally prevailed, or prevailed to the greater degree, to prepare the order.
Q. Mr. Flynn, you have had many years of experience with many different judges, in the courtrooms of many different judges. What would you say are the components of a good judicial temperament for Family Court?
A. Patience, good listener.
Q. Okay.
A. Firm, firmness. I think those would be the main ones.
Q. Uh-huh. And what is your strongest quality of those three?
A. My strongest quality?
Q. Yes, sir.
A. I think I'm a good listener.
Q. Good listener. Great. Which one would you want to work on more than any of the others?
A. Possibly patience.
Q. Mr. Flynn, being a Family Court judge may be a stressful job, and I want to ask you how you deal with stress.
A. I take it as it comes. I've had stressful situations in the past and I've always managed to come out. I don't have any problem with more stressful situations.
Q. Could you please describe your normal workday and how this may be different from the day you envision you would have as a Family Court judge?
A. Well, if I'm successful in becoming a Family Court judge, my day will be full of more work than I'm doing now.
Q. Fuller, sir?
A. It would be more full.
Q. More full, yes, sir.
A. And I'm sort of semiretired, you might say now.
Q. I see.
A. But you if become -- if I'm successful and become a Family Court judge, then I would be full time.
Q. What is your strong interest in becoming a Family Court judge?
A. I think I've had a fairly decent legal career for a lot of number of years and I think it would be nice to cap it off with a judgeship.
Q. Which aspect of being a Family Court judge is the most exciting to you?
A. Which aspect?
Q. Yes, sir.
A. I think every aspect of family law deals with sad situations. The family unit is the basic unit in our society or in any society and I'm afraid that we have seen our family unit breaking down especially in this country and I find it to be a very sad situation. And if I can do anything to improve that, I shall attempt to. I don't know that I'll be able to.

It seems like most people who get married nowadays find that it's sort of a trial situation and that's not fair and not right. It's not -- it's especially not fair to the children. And I find that the children in our society today especially children from broken home present about as sad a situation as one can find.
Q. Without getting into specifics -- well, let me just ask you, how would you deal with the more violent juveniles?
A. I would not hesitate to try to get them some help, to get them pointed in the right direction.

I think that the individual who has come up with a proposal for boot camp may have a good suggestion. I think that a little discipline and a boot training and those type things, I think carries a great weight in -- toward turning the individual around and getting him from a wayward way to a straight way.
Q. With your community activities, Mr. Flynn, do you involve yourself with the children of your community?
A. Well, not really. Generally speaking, we have -- my wife and I have two children of our own that we are very closely related with and dealt with for a number of years, but they are both grown now and out of our home. But sometimes they come back and we're always happy for them to come back and my wife is very anxious for someone to award her with some grandchildren. They have not done that yet.

We have -- I'm an active member of our Rotary Club in Union. We have programs that deal with the students, the high school students, and the program yesterday was for the benefit of the children or the young people in our community who have shown accomplishments and attainments and have expressed certain indications that they may be going on to higher education. And they -- some of them, they get scholarships. And I think that that is a worthy, worthwhile program and I fully participate in it.

Our church is instrumental in dealing with young people. And we have a good youth program. And we are going to have a change in our youth minister right away or pretty soon. I hope that we can get a good replacement for the good one that is leaving. And I support all the children's causes. I don't know that I'm all that generally in a participatory deal with the activities that's for the children.
Q. You live in a relatively rural area of South Carolina. Does that make a difference in terms of juvenile crime? Is it any different there than it is in Spartanburg --
A. Well, some people --
Q. -- Greenville, Columbia?
A. Union is not as progressive as some areas of the state and, hopefully, we will see some pick up in our economic activity. I think one of the sad things in our community has been the fact that we don't have sufficient industry and job availability for people who, for instance, graduate from high school there and go on to get a college degree and then they want to come back home.
Q. Uh-huh.
A. There is very little opportunity for those people in our county.
Q. And how does that relate to, say, the juvenile crime?
A. I don't know that that has any direct relationship, but it may because you are in essence excluding those people who have gone on and obtained higher education from our youth that are growing up in the area.

I think they would be better off or the children would be better off if they had more influence from people who are possibly a little higher on the educational scale.
Q. What do you believe constitutes ex parte communication?
A. Ex parte communication is contact by a lawyer with a judge concerning the merits of a matter that is either pending or about to be pending.
Q. And what is your philosophy about that as it relates to Family Court?
A. Don't do it. Don't do it in any kind of a situation. Don't allow it.
Q. Are there any instances when a Family Court judge would allow ex parte communication?
A. Well, I think on -- if you call ex parte as I defined it, I don't think so.
Q. If you were the guardian of the children in a case, would that be the same situation?
A. A guardian, as I understand, it is supposed to make the report to the Court in the presence of the other people or at the request of the judge in possibly some other way, but the judge may allow the counsel for the opposing party to be present, probably would not allow the party or parties to be present.
Q. Mr. Flynn, you have been a member of your community for all your life. How is that going to affect any situations where you need to recuse yourself in a case if you were elected to Family Court judge? What are you --
A. Well--
Q. What's your standard for that, sir?
A. If I did, if I determine that I should recuse myself, I shall. I would think that what I would probably do would
-- if some person came before me whom I had represented during my practice of law, I would make that announcement, so that everybody would be aware of it. If anyone chose to request my recusal, I would recuse myself.

I would not automatically recuse myself unless it dealt with something that I had been actively involved with as a particular matter. I don't think that that -- that's my understanding of the time that a judge should recuse himself.
Q. What is your understanding of the Judicial Canons as they relate to gifts?
A. As they deal with what?
Q. Gifts?
A. I don't think people have ever attempted to give me gifts and I cannot think that anybody would ever attempt to give me a gift. I think that if someone attempted to give me a gift, I would decline the gift.
Q. We show Mr. Flynn that you have spent a minimal amount of money on this candidacy. Has anything changed from your PDQ, sir?
A. No, ma'am. I have bought 200 postage stamps and I mailed a letter to every member of the legislature. I still have, I think, 30 stamps left that I intend to use later.
Q. And if -- whatever expenditures you make in the future, would you please notify Ms. Satterwhite of those?
A. I'll be happy to notify Ms. Satterwhite or any other person you designate what I should report and to whom I should report. I don't anticipate any other expenses, however, except as I understand it, the travel and lodging is -- and food is exempt.
Q. That's true. It's not included. Have you asked for any pledges from any legislators?
A. No, ma'am. I have expressed --
Q. Indirectly?
A. -- an interest.
Q. Yes, sir.
A. I've made, I think, three trips to Columbia. I think today is the fourth trip and I have been fortunate in meeting some of the members of the legislature and all I've done is express an interest in the Family Court judgeship in my county.
Q. Thank you very much.
EXAMINATION BY SENATOR MCCONNELL:
Q. Let me ask you, how do you -- would you propose to deal with judicial temperament from the standpoint of the pressures of the job, the fact that day after day you hear case after case, request after request, pressure to get the files through and still maintain a courteous, congenial attitude toward the litigants and the lawyers?

How would you deal with the stress of the job and maintaining that and do you consider it important to maintain that sort of presence in the courtroom?
A. I believe that it is very important to maintain that presence in the courtroom. And I have dealt with stressful situations on a number of occasions in the past. I think that I have been able to successfully deal with them. I don't anticipate any stressful situation that I would not be able to handle. I may be wrong. If I determine that I'm wrong, then I will certainly either straighten myself out or do something.
Q. Well, to coin a phrase of a previous member of this committee, he called it robitis where the robes become too heavy for the judge. It tends to scramble their brains somewhat and create a position where they're just short on patience and I ask that question because that's one of the complaints you hear from lawyers and from -- and sometimes from litigants that -- and I was always told, you know, you can get things done just as fast with a smile and being nice as you can with being, you know, some other manner of operating, so it, to me, as a member of this committee is an important ingredient of judicial temperament. And that's why I asked you the question.

I'm interested in -- also in your awareness. I mean that any of us potentially can get worn down by stress and how do you deal with stress?
A. I read a lot. I really have found that stress does not bother me much. And I'm -- I know that stress bothers some people more than it does others. I think that you were told absolutely correctly that when judges have no patience, it creates an impossible situation for themselves and their litigants and the lawyers. But I don't anticipate any problem of that type.
SENATOR MCCONNELL: Okay. Thank you. I think Ms. McNamee has one more question for you.
RE-EXAMINATION BY MS. MCNAMEE:
Q. Just one more, Mr. Flynn. Is there any reason why you could not fulfill the day-to-day duties of a Family Court judge?
A. Not that I'm aware of.
Q. Okay.
A. I have had a health problem in the past, but it is not bothering me now. I have a checkup once a year, but I intend to continue having my checkups, but I don't anticipate that being a problem.
Q. Thank you very much.
A. Thank you.
SENATOR MCCONNELL: Further questions? Thank you, sir. We appreciate you coming.
A. Am I free to leave?
SENATOR MCCONNELL: Yes, sir.
A. Thank you.
SENATOR MCCONNELL: You sure are. Thank you. I understand you are going to be putting a statement in?
A. Yes, sir.
SENATOR MCCONNELL: All right. Thank you, sir. Mr. Robert E. Guess. Mr. Guess, if you'd come forward, please, sir, to be -- I understand you're seeking the position of judge of the Family Court of the Sixteenth Judicial Circuit Seat, Number 1; is that correct, sir?
MR. GUESS: That's correct.
SENATOR MCCONNELL: All right, if you'd raise your right hand, please, sir.
ROBERT E. GUESS, having been duly sworn, testified as follows:
SENATOR MCCONNELL: Good morning.
MR. GUESS: Good morning.
SENATOR MCCONNELL: I understand this is your first screening; is that correct?
MR. GUESS: Yes, sir.
SENATOR MCCONNELL: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. GUESS: I have.
SENATOR MCCONNELL: Is it correct or does it need any clarification or alterations to it?
MR. GUESS: It's correct as written.
SENATOR MCCONNELL: All right, sir. Do you have any objection to our making this summary a part of your record of your sworn testimony?
MR. GUESS: No.
SENATOR MCCONNELL: It shall be done at this point in the transcript.

1. Robert E. Guess
Home Address: Business Address:
1034 Peach Orchard Road 108 W. South Street, P. O. Box 278
Union, SC 29379 Union, SC 29379

2. He was born in Union, South Carolina on June 19, 1948. He is presently 45 years old.

4. He was married to Vanda Lee McLeod on July 16, 1983. He has two children: Carolyn Hunter, age 8, and Julia McLeod, age 6.

5. Military Service: Completed 6 year enlistment; South Carolina National Guard;
January 20, 1970 - January 20, 1976; Headquarters and Headquarters Company; 118th Infantry (MECH); Union, South Carolina; Rank of Specialist 5; Honorable Discharge; Obligation Completed

6. He attended Presbyterian College, September, 1966 to May, 1970, B.A. Degree in English; and the University of South Carolina School of Law, August, 1971 to May, 1974, J.D. Degree.

8. Legal/Judicial education during the past five years:
He has attended South Carolina Bar seminars on various topics:
11/5/93 Serving the Best Interests of Children
4/16/93 Winning Trial Techniques
12/4-5/92 Auto Torts Seminar, S. C. Trial Lawyers Assn.
10/30/92 Probate and Estate Planning Issues
11/1/91 Negotiation and Settlement in the 90's
11/15/91 Judicial CLE, Family Law Fall Update
11/30/90-12/1/90 Auto Torts Seminar, S. C. Trial Lawyers Assn.
9/2/90 Legal Ethics and Lawyer Malpractice
12/15/89 S. C. Corporate Manual Seminar
12/9/89 General Practice Update and Hugo Related Issues

9. Taught or Lectured:
Taught business law, school years 1983-1984 and 1984-1985, USC-Union campus.
General business law for sophomore level students.

12. Legal experience since graduation from law school:
March, 1975 - November 1977 Private practice in Charleston, primarily real estate and criminal practice
November, 1977 - July, 1979 Firm of Wilburn & Guess; Greenville, South Carolina; general civil and criminal practice
July, 1979 - October, 1986 Solo practice; Union, South Carolina; real estate, domestic, criminal
October, 1986 - October, 1988 Firm of Phillips, Guess & Diamaduros; practice in real estate, probate, domestic and general civil practice
October, 1988 to present Solo practice; Union, South Carolina; general civil practice, including real estate, domestic, estate planning and probate, criminal practice by Court appointment only

13. Rating in Martindale-Hubbell: listed but not rated

14. Frequency of appearances in court:
Federal - 0
State - approximately 185 appearances over 5 years
Other - administrative bodies, magistrate and municipal, 20 over 5 years

15. Percentage of litigation:
Civil - 10
Criminal - 5
Domestic - 20

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 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
(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

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.
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.
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 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 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 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.
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 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.
Q. I see. But it has nothing to do with your relationship with --
A. No, no.
Q. -- the Bar, it's just merely the size?
A. It's just the number of lawyers over there, York and Union.
Q. On your Personal Data Questionnaire, you indicated that some of the times you served as a special referee. It was in mortgage foreclosure actions, some of which involved Union Federal Savings and Loan Association and apparently, you have some stock in that particular association. How did you decide that you felt comfortable hearing those cases?
A. Well, all those cases were uncontested cases. That's really all I can say. The issue didn't come up. Union Federal certainly -- I guess they knew I was involved. The lawyers picked me and I agreed to serve.

To the extent there were some conflict there, I'll have to admit that it did not occur to me as I was hearing those cases that I would have bias one way or the other because of my interest and my stock ownership.
Q. I know it's unlikely in a Family Court situation for something to come before you which you might have a financial interest in, but just in generally speaking as a judge, do you have any problem following a rule where if there was any financial interest of yours involved that you would not hear the case?
A. Well, certainly, I don't have any problem following it and I think it would go without saying that a judge should make that known and recuse himself if he does have a financial interest. I'll have to say that I believe that somebody who was an acting and sitting judge is much more cognizant of those types of things than someone who is a practicing attorney. It seems to come then on a special basis.

That Union Federal thing really just kind of -- just did not occur to me, but I will say with certainty, again under oath, if it came up and I was a sitting judge that I would know about it and I would at least state it and give everybody an opportunity to ask me to recuse myself or to recuse myself on my own motion if I felt like it was something that I would have a -- that would bias my decision.
Q. Have you ever sought the pledge of a legislator prior to this screening?
A. No, I have not.
Q. Have you sought a pledge that was conditioned upon your further advancement through screening?
A. No, I don't think I have. I have had very little contact with legislators although I have talked to some.
Q. And when you talked to them, what's the nature of that conversation?
A. Well, I came down when the Session first began and made an attempt to familiarize myself with the names and faces of the legislators and ones whom I was able to engage in conversation and tell them who I was and why I was here and what I would tell them was there is a judgeship coming open and I will be a candidate and at the appropriate time, I'd like to talk to you about my qualifications and they all understood that. And that was the extent of what I said to anybody.
Q. Have you asked or otherwise authorized anyone else to seek pledges on your behalf?
A. I have not. And I have -- as part of the process, I contacted a number of my friends in other parts of this state -- of the state in an information gathering process for myself to find out what legislators they may personally know and to tell my friends that I was running for the legislature (sic), but I have not asked them to seek any pledges on my behalf. If they did so, it was not at my request and it was no authorized.
Q. Do you know of any solicitations?
A. I don't know of any.
Q. You list campaign expenditures with this committee as being in excess of $100, but we don't have any indication that you filed a report with the House and Senate Ethics Committees and that's required and if you'd attend to that at your earlier convenience, we'd appreciate it.
A. Well, I will. I didn't put -- I didn't know it was required, but I will do that.
Q. Thank you.
MR. ELLIOTT: That's all the questions I have.
SENATOR MCCONNELL: Thank you, sir.
EXAMINATION BY SENATOR MCCONNELL:
Q. I have a couple for you myself. First of all, you heard my earlier questions about stress, and how do you deal with stress on the job?
A. Well, I feel it and my best way of dealing with it when it gets to a fever pitch is to just kind of move on to something else or, you know, just take a break. I feel like I need to pull back from whatever it is that's causing all that.

I understand you can't do that in Family Court because it's just goes on and on and I expect the way I would deal with it is to make a conscious effort to -- when a case is handled and a case is over and when a conflict with a lawyer is over with, it's done. I may try to forget about it.

I find that in my own practice, the more experience I get, the more cases I have, the easier it is to forget the details of one that's in the drawer. And I think it's the buildup of these little things is what causes you to have a breakdown or an explosion as a result of stress and what I would want to do is try to hear a case, handle a case and forget a case and just let what I'm dealing with at the moment be the thing that concerns me.

It's always -- if you get too worked up in a courtroom situation, you can always take a break. And if there is an outburst or an evidentiary argument between a lawyer and myself I felt like you got me on edge, I would want to take a five-minute or ten-minute break, just to let that pass. I think that the judges have enough free time to allow some of these pressures to blow off, and as I've told you, my way of dealing with stress is just kind of change directions, even if it's for a few minutes to cause somebody else to look at another file and think about something other than what's got me worked up like that. That's really the only way I would know how to handle it.
Q. What do you consider to be an adequate judicial temperament?
A. Well, I think the even temper is probably the most important thing and I think you've got to know -- you've got to have a turn to handle people who are not always happy with what you do and say. I think those are the two things. Courtesy to the litigants.

As I explained to you a minute ago, I feel like that firmness and courtesy in the courtroom, it carries over to the people on the other side of the bar. I think those are the two most important things in judicial temperament.
Q. You heard me refer, to coin an old phrase, robitis. Do you know of any steps you could take to avoid that and what I mean by that is where the robes just get so heavy that --
A. Well, you mean the pressures of the job --
Q. Yes, sir.
A. -- is what you're talking out? Well, as I say you've got to have some relief from it every now and then, and I think I'm good at putting things behind me. I try not to think of myself as being so important and think of myself even now, and I think I'd carry this into the judgeship, thinking that this whole Family Court is dependent on what I do and what I say.

I believe that -- I think now that there are other people involved. The lawyers have got to do things right. The litigants have got to be cooperative, the clerks and the court reporters. It takes a whole group to move that thing forward and if I have the attitude that I'm not the only one in charge of it and that any mistake is made is not always mine, then I think that I can avoid that -- my doing that, by kind of trying to spread the responsibility, of course, keeping in mind at all times that the ultimate decision that has to be made would be made by me.
SENATOR MCCONNELL: Any other questions from the panel? Thank you, sir. We appreciate you coming.
A. Thank you.
SENATOR MCCONNELL: You're free to go, if you wish, and the record will -- as I understand, the Chairman is leaving all of the records open until we've completed everything.
A. Thank you, sir.
SENATOR MCCONNELL: The record will remain open as all records will remain open. I'm informed this completes the morning session. We meet at 2:00 p.m. at the Blatt Building.
(A lunch break was taken)
REPRESENTATIVE ALEXANDER: Good evening way back there. We're a far piece from you, if you'll -- but, we'll try to communicate with you. We're going to rearrange the schedule as listed just a little bit. Steve needs to go back over to the House. The Floor of the House is in session this afternoon. And many of you have appeared before us before, so really, it shouldn't take an extended length of time for us to do this. And we'll start with Clay Carruth. Would you come to the podium, please, sir, to be sworn again, please.
HERBERT CLAY CARRUTH, JR., having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: I would ask you to be seated, but that won't work today. Over yonder, we could ask you to be seated, but you can't do that in here, so I'm sorry you're going to have to stand. Have you had chance to review the Personal Data Questionnaire Summary?
MR. CARRUTH: I have.
REPRESENTATIVE ALEXANDER: Is it correct?
MR. CARRUTH: It is.
REPRESENTATIVE ALEXANDER: Does anything need clarification?
MR. CARRUTH: Not that I'm aware of at this time.
REPRESENTATIVE ALEXANDER: Is there any objection to making this Summary a part of the record of your sworn testimony?
MR. CARRUTH: No objection.
REPRESENTATIVE ALEXANDER: It shall be done at this point in the transcript.

1. Herbert Clay Carruth, Jr.
Home Address: Business Address:
1603 Lyttleton Street 305 Gressette Building
Camden, SC 29020 Columbia, SC 29202

2. He was born in Athens, Georgia on August 15, 1948. He is presently 45 years old.

4. He was married to Anne West on December 16, 1978. He has three children: Herbert Clay, III, age 9; George West, age 6; and Carl West "Cotton," age 3.

5. Military Service: 2/28/69 - 2/22/71; U. S. Army; Sp/4; RA12816944; Honorable Discharge; Present status - civilian

6. He attended the University of South Carolina and Presbyterian College, 1966-1968, courses in Business Administration and Arts and Sciences; service in the U.S. Army, 1969-1971; the University of South Carolina, 1971-1973, B.A. in Philosophy, Art History Cognate; the University of South Carolina Graduate School, 1973-1976, Comparative Literature (Ph.D. Candidate, by-passed M.A.); the University of Tennessee School of Law, 1977-1979, transferred to the University of South Carolina School of Law in June of 1979; and the University of South Carolina School of Law, 1979-1980, J.D. in December of 1980.

8. Legal/Judicial education during the past five years:
8/27/93 S. C. Bar "6th Annual Hospital and Health Law Seminar" (6.5 hours)
8/6/93 S. C. Bar "Restructured State Government and The State of Administrative Law" (6.0 hours)
4/16/93 S. C. Bar "Winning Trial Techniques" (6.0 hours)
1/8/93 S. C. Bar "42 U.S.C. Section 1983, The S. C. Tort Claims Act and Government Liability" (6.0 hours)
9/11/92 S. C. Bar "5th Annual Hospital and Health Law Seminar" (6.5 hours)
8/14/92 S. C. Bar "Important Developments in Environmental Law" (6.0 hours)
12/20/91 S. C. Bar "This was the Year That Was" (6.5 hours)
12/6/91 S. C. Bar "Legal Ethics and Professional Responsibility" (6.0 hours)
10/19/90 S. C. Bar "Criminal Practice in South Carolina" (6.0 hours)
5/11/90 S. C. Bar "Appellate Practice in South Carolina" (6.5 hours)

3/9/90 S.C.C.J.A. "Mock DUI Trial" (6.0 hours)
2/21/90 S.C.C.J.A. "Update on the Law" (6.0 hours)
12/8/89 S. C. Bar "General Practice Update and Hugo-Related Insurance Issues" (6.0 hours)
12/1/89 S.C. Bar "Bankruptcy: Recent Developments on Important Issues for 1990 and Beyond" (6.0 hours)

9. Taught or Lectured:
He has delivered lectures on recently passed legislation and currently pending bills and regulations which concern health care to the following groups on the dates indicated:
8/29/92 Rock Hill, SC Chapter of American Association of Retired Persons
11/17/92 Legislative Monitoring Task Force, SC Allied Health Alliance
1/21/93 SC State Legislative Committee of the American Association of Retired Persons
2/17/93 USC College of Nursing, NURS 720 Class ("Community Nursing and Health Services: Planning and Delivery")
7/12/93 USC College of Nursing, NURS 403 Class ("Policies and Politics")
9/16/93 SC Anesthesiology Office Managers
9/30/93 USC College of Nursing, NURS 720 Class ("Community Nursing and Health Services")
10/8/93 SC Association of Rehabilitation Facilities 1st Annual Conference
3/2/94 USC College of Nursing, NURS 770 Class ("Role Development and Professional Issues")

12. Legal experience since graduation from law school:
12/90-Present DIRECTOR OF RESEARCH AND ATTORNEY TO THE S. C. SENATE MEDICAL AFFAIRS COMMITTEE. Responsibilities include constituent assistance for Committee members and other members of the General Assembly; research on bills, regulations, statewide appointments, and other matters referred to the Committee, as well as coordinating the scheduling of Committee and subcommittee meetings and the setting of agendas for same.
5/85-12/90 STAFF COUNSEL - PUBLIC SERVICE COMMISSION OF SOUTH CAROLINA.
Responsibilities included working with accountants, economists, and other staff members to prepare Commission Staff's cases in rate and other application proceedings. Utility rate cases involved application to per book figures of accounting and pro forma adjustments to determine rate base, as well as application of different models and methodologies (primarily DCF and CAPM) to determine cost of debt and equity capital; also, use of regulatory legal principles to determine reasonable rates of return overall and on various components.

Transportation cases involved use of motor carriers' operating ratios and various other factors to determine reasonable rates, determination of public convenience and necessity, as well as fitness and ability to perform motor carrier services for hire, and construction and application of the Commission's Statutes and Regulations regarding its economic and safety jurisdiction, prosecuting cases as warranted; also, railroad abandonments and bus route and schedule changes.

General legal duties included composition and preparation of Commission Orders, Briefs and Memoranda, rendering of advice to the Commission and Commission Staff; and representation of the Commission and Staff in agency proceedings and in appellate practice before the State's Circuit Courts, Court of Appeals and Supreme Court.
6/84-4/85 ASSISTANT ATTORNEY GENERAL, CHILD SUPPORT ENFORCEMENT DIVISION, OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA. Responsibilities included representation of South Carolina Department of Social Services in paternity, support and contempt hearings in the Family Courts of South Carolina, as well as drafting all necessary pleadings and orders.
4/82-6/84 STAFF ATTORNEY, OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA. Attorney for the State's Division of General Services, assigned to the South Carolina Insurance Reserve Fund. Responsibilities included general contract negotiation and approval of lease/purchase agreements, personal service contracts, leases of property and easements, requests for proposals, bid solicitations, specifications preparation and other procurement procedures under the State's Consolidated Procurement Code; advice to State agencies and political subdivisions relative to liability of the State, its agencies and political subdivisions as well as officers, employees and volunteers to suit in tort in State and Federal Courts, as well as advice as to availability of comprehensive general liability, fire and extended coverage insurance, drafting of policies and endorsements, negotiation and settlement of claims, legislative research, interpretation of statutes and regulations, and drafting of proposed legislation. Also served as Hearing Examiner for the South Carolina Manufactured Housing Board and the Pyrotechnic Safety Board.

13. Rating in Martindale-Hubbell: He is listed in Martindale-Hubbell as a Staff Counsel for the Public Service Commission. He is not rated as his experience has been in state government service.

14. Frequency of appearances in court:
Federal - None
State - Since he became Research Director and Attorney to the Senate Medical Affairs Committee in January of 1991, his duties have not involved court appearances. From 1985 through 1990, as Staff Counsel to the Public Service Commission, he occasionally appeared in Magistrate's Court, Circuit Court, the Court of Appeals and the Supreme Court. Most of his practice at the Public Service Commission involved administrative law and participation in agency contested case hearings as described below.
Other - From 1985 through 1990, he appeared before the Public Service Commission in agency contested case hearings approximately twice a week. These administrative law cases and hearings concerned applications for certificates of public convenience and necessity, regulation promulgation, rate cases, rules to show cause involving utilities and motor carriers for violations of statutory and regulatory standards, and generic proceedings.

15. Percentage of litigation:
Civil - 98%
Criminal - 2%
Domestic - None

16. Percentage of cases in trial courts:
Jury - 2%
Non-Jury - 98%
Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Application of Williston Telephone Company, Inc. for Authority to Change Certain of its Intrastate Rates and Charges and for Changes in Depreciation Rates. Public Service Commission Docket No. 85-182-C (SCPSC Order No. 85-1108).

This case represents a fairly typical example of the application of rate-making principles to a small to medium-sized telephone utility in South Carolina. The process involves the application of accounting and pro forma adjustments to test year financial and operating figures which have been normalized, as appropriate. An appropriate rate base is figured based on the net value of utility's tangible and intangible property and capital devoted to provision of telephone service. Rate of return on rate base is the general methodology for determining reasonable and fair rates and charges to enable the utility to realize sufficient revenue to achieve a certain permitted overall rate of return, given the utility's capital structure.
(b) Application of United Cities Gas Company for an Increase in its Rates and Charges. Public Service Commission Docket No. 86-199-G (SCPSC Order No. 86-1114).

This case represents the application of rate-making principles to a gas utility in South Carolina. Determination is made of a fair and reasonable overall rate of return on rate base and the required additional revenue to enable the utility to achieve this overall rate of return. The revenue is allocated. The capital structure of the utility is determined, based on the amount and ratio of debt and equity. Cost of equity capital is figured using Capital Asset Pricing Model and Discounted Cash Flow Methodology. The Public Service Commission determined, among other things, that the utility's proposed rates and charges would generate an excessive amount of revenue, indicating an unreasonable return on common equity. Therefore, the Commission declined to approve the proposed schedule of rates and charges filed by the utility and made its own determination of fair and reasonable rates based on its finding of a fair and reasonable return on common equity.

This case illustrates the importance of return on common equity in the ratemaking scheme, since the other components of the overall rate of return, such as the cost of debt and the dividends on preferred stock, are fixed.

(c) Petition of the Commission Staff for a Rule to Show Cause Against Howard Lisk, Inc. ... Concerning Failure to Comply with the Statutes and Regulations Pertaining to Motor Carriers Enforced and Administered by this Commission. Public Service Commission Docket No. 88-694-T (SCPSC Orders No. 89-206 and No. 90-973).

This cases involves the intervention of a competing motor carrier in a Rule to Show Cause (RTSC) proceeding against a motor carrier for undercharges and operations exceeding the scope of its authority. Intervention in an RTSC is highly unusual. The case illustrates the very competitive conditions within certain segments of the motor carrier industry, the economic power of shippers to dictate rates within these segments, and South Carolina's adherence to the "filed rate doctrine" in its regulation of motor carriers.
(d) Application of Vale Service Co., Inc. for Approval to Operate a Water System and Approval of a Schedule of Rates and Charges for Water Service Provided to Customers in Aiken County, South Carolina. Public Service Commission Docket No. 89-336-W (SCPSC Order No. 90-716).

In this "establishment" case, approval of rates and charges is based on certain estimates and projections as to which the Intervenor Consumer Advocate took exception and offered alternatives as "Proposed Findings" after the conclusion of a hearing at which he presented no testimony or exhibit.

The Commission concluded that the proposed findings lacked an evidentiary basis in the record and therefore did not require a separate ruling upon each as a "proposed finding of fact" pursuant to S.C. Code Ann. Section 1-23-350 (Law. Co-op. Revised 1986). Nonetheless, the Commission considered the points raised by the Consumer Advocate and disposed of them in its order approving the utilities' proposed rates and charges.
(e) Application of Huckabee Hound, Inc. ... to Transfer Class E Certification Nos. 133-D and 211-G to Con-Way Southern Express, Inc. ...Public Service Commission Docket No. 880-655-T (SCPSC Order No. 89-333).

This hotly contested case involving a proposed transfer of Class E motor carrier authority to operate as a common carrier of general commodities illustrates the resistance of certificated carriers in this market segment to market entry by another carrier, particularly when that carrier is a large, nationwide, well-capitalized entity.

The Intervenors in this case opposed the transfer on the ground that the transferor of the motor carrier authority at issue had not been actively engaged in operations within the full scope of that authority sufficient to qualify the authority for transfer under the Commission's Regulations.

The Intervenor also asserted that the nature of the intrastate South Carolina statewide general commodities carriage market at that time was such that entry of a new carrier such as Con-Way Southern into that market would be destructive of competition and would adversely affect the general public interest in accessible quality motor carrier service. This case involved the videotape deposition of a nationally-recognized authority on the market economics of motor carrier operations.

The Commission found substantial compliance with its regulations and determined that the motor carrier authority at issue was not "dormant" and that its transfer would not adversely affect the public interest in a competition market.
18. Five (5) civil appeals:
(a) Anderson Armored Car Service, Inc. v. S.C. Public Service Commission, 366 S.E.2d 444 (S.C. App. 1988). Opinion No. 1117, heard 11-16-87, filed 3-14-88.
(b) Welch Moving & Storage Co., Inc. v. The Public Service Commission of S.C., 377 S.E.2d 133 (S.C. App. 1989). Opinion No. 1289, heard 12-12-88, filed 2-6-89.
(c) Welch Moving & Storage Co., Inc. v. The Public Service Commission of S.C., 391 S.E.2d 556 (S.C. 1990). Opinion No. 23188, heard 1-22-90, filed 4-2-90.
(d) Hilton Head Center of S.C., Inc. v. The Public Service Commission of S.C. and Hilton Head Plantation Utilities, Inc., 362 S.E.2d 176 (S.C. 1987). Opinion No. 22793, heard 9-23-87, filed 11-9-87.
(e) Red Bus Systems, Inc. d/b/a Kannapolis Transit Co. v. S.C. Public Service Commission, et al. Docket No. 87-CP-40-2995, Order of Judge Kinon dated 9-17-87.

25. Occupation, business or profession other than the practice of law:
Carpenter's Helper, M&N Construction Co., 1981-1982

39. Expenditures Relating to Candidacy:
None

44. Bar Associations and Professional Organizations:
South Carolina Bar

45. Civic, charitable, educational, social and fraternal organizations:
Transportation Lawyers Association; Springdale Hall Club; Camden Country Club; Friends of Kershaw County Library; National Conference of State Transportation Specialists - Education Committee and Rails Committee; Camden K-5 PTA; Buckley School of Public Speaking - Orator's Award; Tennessee Squire

46. During his professional development, he has worked to acquire knowledge and skill concerning administrative law practice and pertinent regulatory precepts. For example, while working at the Public Service Commission, he attended three national seminars concerning utility and transportation regulation. In addition, he sought an understanding not only of the law, but also of the subject matter involved.

In his service as staff counsel to several governmental agencies, he has sought to discharge matters assigned to him promptly. It has also been important to him to treat with respect co-workers, opposing counsel and all persons having business before or contacts with the agency.

47. Five (5) letters of recommendation:
(a) Kenneth L. Lannigan, Vice President
Merrill Lynch
P. O. Box 11269, Columbia, SC 29211
733-2152
(b) Robert T. Bockman, Esquire
McNair & Sanford, P.A.
P. O. Box 11390, Columbia, SC 29211
799-9800
(c) Sarena D. Burch, Esquire
P. O. Box 102407, Columbia, SC 29224-2407
699-3182
(d) Arthur G. Fusco, Esquire
Sherrill and Rogers, PC
P. O. Box 100200, Columbia, SC 29202-3200
771-7900
(e) Susan A. Lake, Esquire
Nexsen Pruet Jacobs & Pollard
P. O. Drawer 2426, Columbia, SC 29202
253-8257

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have ever been filed against you. The records of the applicable law enforcement agencies: Kershaw County Sheriff's Office are negative; Camden City Police Department are negative; SLED and FBI records are negative. The Judgment Rolls of Kershaw County are negative. Federal court records are negative. No complaints or statements were received. No witnesses are present to testify.

So do you have a statement, opening statement you want to make before Steve asks you a few questions.
MR. CARRUTH: No, sir, Representative Alexander. I have none.
REPRESENTATIVE ALEXANDER: All right. Steve, would you proceed, please.
MR. ELLIOTT: Thank you, Mr. Chairman.
MR. CARRUTH - EXAMINATION BY MR. ELLIOTT:
Q. What the committee plans to do is incorporate testimony from the previous times since you're running for still an Administrative Law judge position; so the questioning doesn't plan to be extensive, but there are a couple of areas we want to cover that we didn't do, take care of the first time.

First of all, how do you think it's important for a judge to act toward both litigants and attorneys?
A. Well, I think it's important for a judge to act dignified and to be courteous. I think he should by his demeanor command the respect which the offices do, but at the same time provide a convenient forum to all who must come before him and to show proper respect to those individuals as well.
Q. All right, sir. In the area of gifts, what is going to be your measure of impropriety?
A. Well, my measure would be, I guess, a bright line standard. And I would say that gifts, when it comes to anybody who would come before me, anybody who is before me or anybody who is likely to come before me, gifts would be out of the picture. That's just something that I wouldn't consider.

When you get into the area of ordinary social hospitality, that historically has been problematical, I would say that my general conception is that anything that anybody would do on the basis of friendship and long-standing acquaintance would pose that issue. Anything as to which I could rule that out as a motivation, I would just reject out of hand.
Q. The committee has over time sort of taken the position that almost anything of value possibly constitutes a gift, even business lunches, and you've just talked about social hospitality. How would a business lunch fit in between social hospitality and gift?
A. Well, I would say that a business lunch when you're talking about the business of the judiciary is one as to which if it's just not outright prohibited, clearly according to your conception, you should err on the side of abstaining from it and I think you should not participate generally or encourage it at all, not to be generally receptive to it.

There are some nuances to be considered that according to the burden of legal standard might be applicable, but I would say, as I did, I believe, before in testimony, that without trying to make a difficult subject out of it, if you have to think about it, you probably shouldn't do it and you should probably be generally mindful of the need to appear free of influence and that the appearance of propriety is the most important. That's the benchmark, the hallmark, the uppermost consideration and it should be maintained.
Q. What will be your standard for recusal?
A. Well, as I indicated to you in the previous testimony, the Canons are fairly specific and somewhat elaborate on the matter of disqualification and for what basis, everything from personal reasons whether it might be a personal bias or it might be some familiarity with the facts in evidence, to some financial arrangement or some potential for some financial effect upon you or a member of your household or whether it might be something else.

There are about four specific matters and as to two of them, I think remittal of disqualification is possible, but that's only after you go on the record and you inform the parties and their attorneys of any kind of a personal relationship or financial relationship that you might have or anything which might bear. And without your participation in it, if they do agree that you should hear it and they desire that you hear it and they put it in writing and you incorporate it in the record, then there is that provision for remittal of disqualification.

But as far as disqualification itself is concerned, that should be a hair trigger and I -- here again, to err on the side of maintaining the appearance of propriety and that you cannot be effected and that you cannot be bought, that you cannot be swayed, that you're impartial and unbiased and not subject to influence.

I think that you should be quick to take stock of yourself as the Canons require you to do, financially, and to be conscious of conflicts of interest which might arise, and to do everything you can to minimize the potential for conflicts, so that you will not have to disqualify yourself and that where this looms as a possibility, you be quick to disqualify yourself.
Q. Since your last screening, have there been any changes in your status or anything of that nature that the committee might need to know about?
A. I cannot conceive of any at this time. I have -- my stock portfolio, such as it has been, is different from what I reported earlier. I sold one stock which promptly went up. I've retained the ones that were going down and they've kept on going down. If you want to be a profitably invested contrarian, you might find out what I intend to do. There may be some potential represented there. I've already indicated that by letter.
Q. Yes, sir. We have that. Have you sought the pledge of a legislator for this particular position prior to this screening?
A. I have not.
Q. Have you sought a pledge even if it's conditioned upon your further advancement through the screening process?
A. I have not.
Q. Do you know of any solicitation or pledges on your behalf?
A. I do not know of any.
Q. Our -- we don't have any record of campaign expenditures by you, but you have apparently filed with the House and the Senate Ethics Committees. Are those -- are the records with those committees current and accurate?
A. Yes, because after the expenses I incurred initially when I ran last time, I have not spent any money. Not one red cent.
MR. ELLIOTT: That's all the questions I have, Mr. Chairman.
REPRESENTATIVE ALEXANDER: Thank you, sir. I don't believe I have any questions, so we thank you for appearing.
A. Thank you, Representative.
REPRESENTATIVE ALEXANDER: If you care to leave or if you want to stay with us, we'll be glad to have you.
A. That's interesting. I may stay around for a while.

TRANSCRIPT OF TESTIMONY OF MR. CARRUTH AT PUBLIC HEARING OF JANUARY 12, 1994:

MR. CARRUTH - EXAMINATION BY MR. ELLIOTT:
Q. From looking at your Personal Data Questionnaire, it looks like you have a fair amount of experience in administrative contested case proceedings through your work with the Public Service Commission and I see that you even served as a hearing officer on occasion from '92 -- 1982 to 1984. However, most of your experience is with the Public Service Commission. What do you know about the substantive and procedure of administrative law that relates to other agencies?
A. Well, to the extent that you can universalize because whatever your experience has been, if it's not unlike that other places, what you learn in specific circumstances, you can import. It's kind of hard to tell how to articulate it except that as far as what the courts have said -- what the Court of Appeals and what the Supreme Court have said, these matters are generally applicable and I think everybody who keeps up with administrative law, every practitioner is aware of what the case law is and I think it's generally applicable as far as construction and application of the APA. And as far as the regulations and procedural regulations of the agencies, there is a great deal of similarity agency to agency.

The two with which I'm most familiar with, the PSCs and DHECs, and they track pretty much the general provisions of the law as are reflected in the statutory law and the case law which is developed. And I think other than that, I'm not sure how to answer that.
Q. We -- yes, I think you have, but I would say you don't have experience with ABC licensing and you might not know much about that at this time?
A. That's true except what I read in the paper. I don't know a lot about it. Never have had a case over there.
Q. How would you propose to go about learning that given that ALJs take office March 1 and are supposed to be up and running? What would you do to get yourself ready?
A. Read and talk to people. Talk to some people who have had experience there. I would try to ascertain just what particulars I need to know about procedures and what the substances involved in their licensure procedures and their violation hearings and things like that.

You can pick up some things and especially if you've been at this for a while in any particular area you can intuit rather easily and rather quickly right much from just reading a few printed words and I think first of all, I'd have recourse to that part of the code which pertains to it. I think part of it's recently been redone. I have glanced at that and I haven't seen anything in there that strikes me as strange or surprises me given what my experience in other areas has been.
Q. While you were at the Public Service Commission, and I think that was five and a half years you were there; is that correct?
A. That's correct.
Q. I believe you said you appeared about -- approximately two times a week before the Commission during that period of time or in court in some fashion during that period of time?
A. (Witness nods in the affirmative).
Q. So you do have some litigation type experience?
A. (Witness nods in the affirmative).
Q. How will that benefit you as an ALJ and would it make any difference if you did not have that?
A. I appreciate the question. Having that experience, I think it's a plus. People have the tendency to play their trumps if they've got something they tend to value greatly. If they don't have it, especially if a rival does have it, they tend to denigrate it.

It's possible to look at this much the same way. People who don't have much of it say for a position like this it's not essential and according to the paperwork the official paperwork, it's not as a practical matter and as a substantive matter, I think some of it helps.

When it comes to the fine points of qualification, you know, when somebody is well qualified, super qualified based on how much of this particular thing he has as a criterion, I wouldn't fight you for the difference and I think it might even be fair to say it's like beauty in the eyes of the beholder, but I do think it's been a big help to me and I think that a certain amount of it is essential for your understanding.

You can't get away from procedure no matter what else is supposed to be involved and substantive in the proposition and I think a familiarization with the procedure is essential, having undergone it yourself, having dealt with all kinds of people, having dealt before tribunals and having taken that and gone before appellate courts and accounted for it and having some experience to make you aware of how they view these matters, I would think is a very important qualification, but I wouldn't set myself as any great arbitrator of how much of it is necessary.
Q. You have some stock. What would be your ethical considerations, for example, if you owned stock in a hospital and a question of the certificate of need for that particular hospital came before you as an ALJ?
A. That would in my mind put forth a rather stark set of circumstances dictating disqualification. That's -- as to that particular matter, we don't have a delineating standard in my regard and that's a conflict that requires you to disqualify yourself.

There is a narrow provision I think in the Judicial Canons for some sort of remittal of disqualification and I think that that can be applicable generally in the area of a financial conflict of interest if I'm not mistaken.

But what you've just described to me seems so stark that the important thing is first the disqualification and then if you get down the road after the disqualification, you shouldn't -- should there be a desire of the parties and their attorney for you to go on for any reason, then the remittal procedure is provided for in the Canons of Ethics.
Q. You're a Senate staff member. You have been, I think, since 1990 --
A. That's correct.
Q. -- if I remember correctly. If you're elected as an ALJ, what's your responsibility if legislators seek your support in political campaigns or your counsel in other political matters?
A. Well, the same as would be the case for any other judge and we would be governed according to the statute by the Canons that are applicable to judicial members and that is politics in general is verboten, strictly out of bounds. It's just not to indicate any participation in any fashion. I would think that if a straight up person possessed a modicum of sophistication wouldn't really broach the subject with you and I hope that would be the case.

Most cases, it can be turned away gently. If gently doesn't work, it needs to be turned away nonetheless. There is no participation.
Q. What have you done and what do you plan to do to avoid any kind of conflict between your public duties as a member of the staff and your efforts to become an ALJ?
A. I have not campaigned.
Q. Well, for example --
A. Except for sending around a letter toward the end of the summer to all the members of the General Assembly telling them who I was, in general terms what I had done and tell them I was interested in running for ALJ. I haven't campaigned.
Q. Well, for example, members of the Senate will come to you for -- to have bills drafted or to seek some assistance with constituent matters, what will be your approach to that?
A. Do my job the way I always have. I'm paid by the taxpayers to do a certain job and the way I do the job if you'll forgive this and I hope it doesn't seem full of presumption, but it's an important job and I take it seriously and instead of leaving it and leaving some folks in the lurch to go do something else like campaigning, if it got to be something for which campaigning in my mind was in order and was required, go on annual leave, do something like that to do that. That's one matter.

But as far as doing the job, you not only can do the job without campaigning, you should do it. You're required to do it, morally, ethically, legally without campaigning and if you do it that way, that should not present a problem not withstanding the appearance it might have to some people and what some people might read into the situation.

And in my regard it's not ethically required that somebody in a position like mine interested in running for a position like this quit his job, but I can envision circumstances in the race where that might be required, where it would be required and upon reaching that bridge, I certainly would cross it in the right direction.
Q. What criteria did you use to select your -- the cases you listed as the most significant cases that you've personally handled that you listed on your Personal Data Questionnaire, what criteria did you use and what do those cases tell the Committee about you?
A. They tell what kind of cases I had over the run of years at the Commission. I started out just taking a proportional share. There were four lawyers on the staff and had a lot of work to do and each just took about a fourth of everything there was out there. After a few years, we began to specialize a little bit and I became among other things the lawyer for the Transportation Division out there.

Before that, I had done some electric cases and water and sewer cases and some telecommunications cases, gas utility cases and what I tried to do was choose some cases that were not particularly significant to me in that they were unusual given the run of cases out there, but were fairly exemplary of the work out there and illustrated the peculiarity of that work, what there is about it that makes it different than work at DHEC or ABC or the Real Estate Commission or anything else and illustrate some of the concepts that you deal with there.
Q. And they're fairly representative of the kind of issues you handled at the PSC?
A. Pretty much.
Q. You did have some familiarity with the APA as I understand it. Have you given any thought to what kind of discovery is available under the APA in a contested case?
A. Well, historically, discovery in lots of agency practice around here has been a matter pursued according to the agency regulations for procedures. These have reflected to some extent what civil practice takes, generally.

There are some references in the APA which are pertinent and might help perhaps, but for the most the discovery matters have depended upon what people import from civil practice frankly to the particular agency arena that might set law apart from say domestic law or criminal law or something like that and I think a knowledge of that is very important and I would rely heavily upon it.

In my experience, the rules that we have used have been derived substantially -- you know, the various discovery devices come from requests for admission, interrogatories, things like that, data request in the case of the Public Service Commission. You know, matters peculiar to public utilities, things that have to do with cost accounting rendering and things like that, you know, subpoena duces tecum. You come bring the books, this is what we want is one way to get at it an agency data request just requires you to bring the books. We want you to give us the pertinent data.
Q. Have you ever been held in contempt or sanctioned by a court for any reason?
A. No.
Q. Have you ever been the subject of a disciplinary action as a state employee?
A. No.
Q. That's all the questions I have, Mr. Chairman.
REPRESENTATIVE BEATTY: Just one question.
THE CHAIRMAN: Representative Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q. Looking to your employment history, it appears that you have spent most of your legal life defending the governmental decisions. Do you feel you can be fair to folk on the other side?
A. Yes, I do. And I've had words from time to time with some of my government lawyers colleagues because some of them are a little more inclined to view the agencies as just doing the Lord's work. I think that that's the way for them to feel and they should and they should do their work like that's what it is. But I've always been conscious that the general public interest might well lie somewhere else, not withstanding the part I might have to play in particular proceedings and, frankly, I've been able to do my job pretty much cognizant of that.

I've been lucky enough not to be put in situations where I had to take an agency's side and advance an agency's interest in circumstances that I thought were clearly inconsistent with the general public interest. I'm aware that that's a luxury not every public servant has experienced.
THE CHAIRMAN: Other questions? Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q. Just one simple scenario. You've finished your hearing
-- this is assuming that you have concluded your hearing and the attorneys that appear before you one or both or all, if more, came to you and invited you to lunch, what would you do?
A. The easiest thing to do, and any time you have to think about it, you ought to say no. It would be easy for me just to say no, thank you and just not go with them.

Trying to figure out whether everybody is involved and if I pay for my own, everything would be okay or something like that, to me, would kill too many brain cells in an unworthy cause. It's just easier to have -- a judge doesn't have to be a hermit, but a judge shouldn't be looking for something to fly up and hit him in the face. He shouldn't invite it.

It can make you a lonely person, but like the Canons or the commentary to the Canons clearly puts forth, there are certain ascriptions put on your conduct that an ordinary person in any other walk of life would justly bridle at, but it's part of being a judge and if you don't understand that, you really shouldn't apply.
Q. Are you a golfer?
A. No.
Q. I don't need to ask the next one.
THE CHAIRMAN: Further questions? If not, thank you, Mr. Carruth.
A. Thank you.

END OF PRIOR TESTIMONY OF MR. CARRUTH.

REPRESENTATIVE ALEXANDER: All right. John D. Geathers. Mr. Geathers, would you please raise your right hand.
JOHN D. GEATHERS, having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. GEATHERS: Yes, sir.
REPRESENTATIVE ALEXANDER: Is it correct?
MR. GEATHERS: Yes, sir.
REPRESENTATIVE ALEXANDER: Does anything need clarification?
MR. GEATHERS: No, sir.
REPRESENTATIVE ALEXANDER: Is there any objection to our making this Summary a part of the record of your sworn testimony?
MR. GEATHERS: No, sir.
REPRESENTATIVE ALEXANDER: It shall be done at this point in the transcript.

1. John D. Geathers
Home Address: Business Address:
P. O. Box 3221 Office of Senate Research
Columbia, SC 29230 P. O. Box 142
Columbia, SC 29202

2. He was born in Georgetown, South Carolina on April 10, 1961. He is presently 33 years old.

4. He was married to Doris Williams on September 12, 1987. He has one child: Lydia Kaden, age 8 1/2 months.

5. Military Service: N/A

6. He attended the University of South Carolina, B.A. Degree in Political Science, 1979-1983; and the University of South Carolina School of Law, 1983-1986, J.D. Degree.

8. Legal/Judicial education during the past five years:
He has complied with the requisite CLE hours as prescribed by the South Carolina Bar Association.
9. Taught or Lectured: He has had the opportunity to prepare materials and give an update on the 1991 Solid Waste Management Act to the government section at the 1991 Annual Bar Meeting.

12. Legal experience since graduation from law school:
Attorney for the Department of Labor; September, 1986 - January, 1987
Responsibilities: Resolved cases involving large and small corporations and businesses in violation of Occupational Safety and Health standards.
Attorney for the Office of Senate Research; 1987 - present
Responsibilities: Researching and writing memoranda of law; drafting legislation; staffing committee meetings; advising Senators; supervising law clerks; serving as Senate Staff appointee to the Southern Legislative Conference on Environmental Quality and Natural Resources Committee; experience with federal environmental laws.

13. Rating in Martindale-Hubbell: Inapplicable

14. Frequency of appearances in court:
Federal -
State -
Other -
None.

15. Percentage of litigation:
Civil -
Criminal -
Domestic -
Inapplicable. However, during his experience with the Senate, he has had an opportunity to work on projects involving each of these subject areas.

16. Percentage of cases in trial courts:
Jury -
Non-jury -
Inapplicable.

17. Five (5) of the most significant litigated matters in either trial or appellate court:
Inapplicable.

18. Five (5) civil appeals:
Inapplicable.

39. Expenditures Relating to Candidacy:
Postage: $ 36.00
Stationery: $ 80.00

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

45. Civic, charitable, educational, social and fraternal organizations:
United Way Big Brothers Volunteer

46. STATEMENT BY JOHN D. GEATHERS: "As a candidate for a position as an Administrative Law Judge, I want the Committee to know a few of the following things about me. My wife Doris and I have been married just over six years and are the proud parents of Lydia Kaden who is nearly nine months old. I graduated with honors from a defacto segregated public high school in Georgetown County. My parents do not have a formal education, but they have always been people who have worked hard and have understood the importance of an education in today's society. They have put three children through the University of South Carolina and now have a fourth in college. They instilled within me a work ethic. As a teenager, I worked in the tobacco fields of Georgetown and the surrounding counties. I also worked in Myrtle Beach restaurants washing dishes and busing tables to earn money for upcoming school terms. I was told and taught that people may often help you but rarely do they give you anything. My parents instilled Christian values in me and taught me to live by certain virtues including integrity (which meant doing the right thing even when no one else was looking or no one would find out) and striving for honesty in all my dealings. They taught me to respect other people regardless of the status or station those people had in life.

These virtues carried me through the University of South Carolina undergraduate program and the School of Law and they continue to direct me in my professional career. I entered the University of South Carolina in 1979 and graduated in 1983 with a Bachelor of Arts degree in Political Science. During my studies at the University of South Carolina, I made the Dean's List many of the semesters of my attendance. I was inducted into the Phi Sigma Alpha Honorary Political Science Society. I was selected through competitive application process as a governmental intern to serve in Lieutenant Governor Nancy Stevenson's office where I had occasion to meet my current employer Frank Caggiano, Clerk of the South Carolina Senate.

I entered law school in 1983 and graduated in 1986 with a Juris Doctor degree and was admitted to the South Carolina Bar that same year. During that year I became employed with the South Carolina Department of Labor as a staff attorney. My responsibilities involved contested case resolution concerning large and small corporations and businesses alleged to be in violation of Occupational, Safety, and Health Standards.

My tenure at the Department of Labor was short lived as Frank Caggiano of the Senate invited me to work as a full time staff attorney for the Office of Senate Research, where I had previously clerked during law school.

I currently serve as Senior Staff Counsel for the Office of Senate Research. I have served continuously in this position since 1987. My responsibilities include, among other things, researching and writing memoranda of law, drafting legislation, staffing committee meetings, advising Senators, supervising law clerks, and serving as Senate staff appointee to the Southern Legislative Conference on Environmental Quality and Natural Resource Committee. I have had the opportunity to serve as Senate point person on a number of pivotal issues confronting the General Assembly. Chief among these issues were the following:

Infectious Waste Management Act of 1989, Act No. 134. Prior to the passage of this act, the Senate sent Senator Peden McLeod, myself, and another staff person to a seminar in Boston, Massachusetts, to familiarize ourselves with all of the issues concerning the management of infectious waste. As you will recall, there was public concern over infectious waste as many hypodermic needles were found floating on beaches across the country. This act promoted the proper handling, treatment and disposal of infectious waste.

Hazardous Waste Landfill Restrictions Act of 1990, Act No. 590, in which the General Assembly attempted to reduce the amount of hazardous waste landfilled in South Carolina.

The Solid Waste Management Act of 1991, Act No. 63, which established a coordinated statewide solid waste program in order to protect public health and safety, protect and preserve the quality of the environment, conserve and recycle natural resources, and to promote reduction and recycling goals for solid waste being received at municipal solid waste landfills and solid waste incinerators in the State of South Carolina.

The Offender Management System Act of 1992, Act No. 461. This act sought to identify qualified non-violent offenders and place them in communities in controlled settings in order to alleviate prison overcrowding.

Barnwell Low-Level Radioactive Waste Site Act of 1992. This act extended the operation of the Barnwell Low Level Radioactive Waste site for the Southeast Interstate Compact until January 1, 1996, subject to a number of conditions.

And most recently, the Restructuring Act of 1993, Act No. 181 in which state government was restructured by the consolidation of numerous agencies, boards, and commissions into 19 departments within the executive branch of state government. I was one of two Senate staff persons appointed to study and draft the changes necessary for the consolidation of the environmental agencies.

On all of these legislative enactments, I worked closely with the sponsors of the legislation and with various interest groups and state agencies in reaching compromises and composing amendments. I also served as staff to the Conference Committees in forging compromises between the House and Senate.

These tasks required long and arduous work hours on many occasions. I am accustomed to working at a job until it is done right and I am very aware of the need to give due consideration to all sides of an issue. I feel these are important qualities for a judge, particularly in the administrative law area where so many interests are affected. On some occasions these tasks required that I work independently and on other occasions that I provide supervision of support staff.

I chronicle or detail my work at the Senate to merely indicate that I have gained the respect and admiration, if not of all, of many of the Senators for competence, diligence, and devotion to excellence. This is evidenced by Senator Moore in the Senate Journal on Tuesday, May 14, 1991, who commended me for my work on the Solid Waste Bill: "Senator Moore asked that the record reflect that he paid special tribute to the efforts and support of Mr. John Geathers, Senior Staff Counsel, with the Office of Senate Research." Most recently, with the Restructuring Bill, along with other members of the Senate staff, I was commended for my efforts in working very diligent and long hours and in a short period of time producing a quality work product. This bill was over 1200 pages. Again, Senator Marshall Williams, Senate President Pro Tempore, appointed me to serve as Senate staff appointee to the Southern Legislative Conference on Environmental Quality and Natural Resources Committee.

I would also like the Committee to know that on my own initiative, I became a member of the North Carolina Bar Association in 1992. I ordered the study materials and studied during the evening after work. And I should mention this was during the Barnwell debate, so many nights I was studying until midnight for the bar exam. This was not always a pleasant experience but I wanted to achieve my goal. North Carolina currently has jurisdictional reciprocity with 23 other states and I saw this as an avenue to broaden my career options given the interstate nature of many legal questions.

The last seven years as Senior Staff Counsel for the Office of Senate Research and my tenure as an attorney for the OSHA Division of the South Carolina Department of Labor have prepared me, for all of the various reasons I have indicated, to serve as an Administrative Law Judge, along with my familiarity with the Administrative Procedures Act. Recently, I have further prepared myself by studying and outlining the most current and comprehensive materials on South Carolina administrative law.

I have prided myself on being able and committed to working hard and presenting myself as a person of integrity and as a person qualified on his merits. I look to the perseverance, determination and achievement of my predecessors and forefathers as inspiration and incentive to advance myself and build upon my heritage. In offering for the position as Administrative Law Judge, I respectfully request that the Committee consider my entire record and background. I offer myself as a qualified candidate, regardless of race, gender, political philosophy or affiliation, who will do a job that the General Assembly, the State and my family can be proud of."

47. Five (5) letters of recommendation:
(a) Joseph H. Stone, Assistant Vice President
Nationsbank
2095 Beltline Boulevard, Columbia, SC 29204
765-4940
(b) Frank Caggiano
Clerk of the Senate
P. O. Box 142, Columbia, SC 29202
734-2806
(c) Carl E. Lancaster
Northeast Church of Christ
3506 Edwards Road, Taylors, SC 29687
244-7622
(d) Christopher G. Isgett, Esquire
P. O. Box 1505, Columbia, SC 29202
799-9811
(e) Hogan Brown
Assistant Clerk of the Senate
P. O. Box 142, Columbia, SC 29202
734-2774

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have ever been filed against you. The records of the applicable law enforcement agencies: Richland County Sheriff's Department are negative; Columbia City Police Department are negative; SLED and FBI records are negative. The Judgment Rolls of Richland County are negative. Federal court records are negative. No complaints or statements were received. No witnesses are present to testify. Would you care to make a statement before you ask counsel to question you.
MR. GEATHERS: I don't have a verbal statement. I do have a written statement, the same statement that I submitted the last time.
REPRESENTATIVE ALEXANDER: All right. Would the Page please get that for us. All right. Proceed, please.
MR. ELLIOTT: Thank you, Mr. Chairman.
MR. GEATHERS - EXAMINATION BY MR. ELLIOTT:
Q. Good afternoon.
A. Good afternoon.
Q. What will be your bright line test about gifts and social hospitality?
A. I do not intend to accept any gifts from any lawyers who would likely appear before me in an administrative proceeding. Of course, if -- I do have certain friends naturally who are lawyers, a long-standing friendships and I would continue to accept gifts from them, of course, if they were not likely to appear before me. And even if they were likely to appear before me, I would probably recuse myself.
Q. Among those attorneys who might appear before you, what would you call a gift?
A. Anything of value.
Q. What would be your rule about recusal?
A. Well, pretty much as it's outlined in Canon 3. As far as impartiality when it relates to relatives, you would have to note that on the record and, of course, you would be able to remit that as provided there. Or in a financial type situation where you have some financial interest, that's subject to remittal. Otherwise, of course, there are instances in which one could not -- a judge in that situation could not recuse -- remit himself -- remit that disqualification and, therefore, you should recuse yourself.
Q. As an administrative law judge, there will be occasions when the nonagency party will not be represented by an attorney and there might be that occasion where they come to you and they're kind of lost about what's going on and they come to you in chambers and they say, "What do I do? How do I proceed?" How will you handle that?
A. I think you have to, as the saying goes, nip it in the bud in the sense that you inform that party that you're not allowed to communicate with him while the other side is not present and inform that individual that he or she may wish to seek legal counsel and leave it at that.
Q. Besides the change in your daughter's age, is there anything --
A. She's still growing and getting older.
Q. What, five months?
A. Ten months now.
Q. Five months older?
A. Yes.
Q. Have there been any changes in your status or anything of that nature that the committee might need to know about?
A. Not that I'm aware of.
Q. Have you sought the pledge of a legislator prior to this screening?
A. No, I have not.
Q. Even if that -- if conditioned upon your further advancement through the screening process?
A. That's correct.
Q. And do you know of any solicitation or pledges on your behalf?
A. No, I do not.
Q. Our records, and correct me if I'm wrong, but our records show that you have filed with us and you do have some expenditures --
A. Yes.
Q. -- that meet the threshold where you need to file with the Senate and House Ethics Committees and I don't -- our records don't show that you've filed there.
A. I intend to. As I did file with those particular committees last time and I intend to file this time as well.
Q. Thank you.
MR. ELLIOTT: That's all the questions I have, Mr. Chairman.
REPRESENTATIVE ALEXANDER: Thank you, sir. I don't have any questions.
A. Thank you.
REPRESENTATIVE ALEXANDER: You can stay with us or you're free to leave, whatever you choose.
A. Thank you.

TRANSCRIPT OF TESTIMONY OF MR. GEATHERS AT PUBLIC HEARING OF JANUARY 13, 1994:

MR. GEATHERS: Thank you, Mr. Chairman, I do have a brief statement. The role of the judge is special, whether it be at the lowest level of adjudication or in the highest court of our state deciding issues of great moment. It is special because a public trust has been imparted to the one holding the office of judge. What society and this committee and the General Assembly expect and at a minimum deserve from one who holds the office is integrity, competence and diligence. Not only do I humbly submit that I am qualified on these points, but I would call the committee's attention to my specific work experiences which indicate the aforementioned qualities.

I have worked in the Office of Senate Research for over seven years as senior staff counsel and daily researching and writing memoranda of law on a multiplicity of issues. I'm responsible for researching and drafting legislation, staffing standing committee and conference committee meetings and supervising certain support staff.

I have been the Senate point person on a number of pivotal issues which have come before the General Assembly. Chief among these were the Infectious Waste Management Act of 1989, the Hazardous Waste Landfill Act of 1990, the Solid Waste Management Act of 1991, the Offender Management Act of 1992, the Barnwell Low Level Radioactive Waste Site Act of 1992, and natural resources and environmental components of the Restructuring Act of 1993. And more specifically, to prepare myself to assume the position of administrative law judge, I have reviewed and outlined Professor Shipley's treatise on administrative law. I have revisited an outline of Professor Reizer's fifth edition on Rules of Evidence in South Carolina.

I have reviewed CLE materials on administrative law and I have reviewed and briefed case law covering the last five years on both administrative law and the Canons of Judicial Ethics. I have great confidence that the committee will find my experience and background compelling as to the fact that I possess the qualities and attributes necessary to hold the office and exercise the duties and responsibilities of an administrative law judge.

I have previously submitted a statement, which I think is part of my Personal Data Questionnaire, and I would invite the committee to review it as well. Thank you.
THE CHAIRMAN: Thank you, Mr. Geathers. Mr. Elliott, questions?
MR. ELLIOTT: Yes, sir. Thank you.
MR. GEATHERS- EXAMINATION BY MR. ELLIOTT:
Q. On your Personal Data Questionnaire, it shows that you were an attorney for the Department of Labor, and I guess that was the South Carolina Department of Labor, when you first got out of law school?
A. That's correct.
Q. For a brief period of time?
A. That's correct.
Q. I guess I was interested in it because it mentioned that you resolved cases, and that was the term you used, resolved, involving businesses in violation of occupational, safety and health standards. What did resolve mean?
A. Basically, it was our position to try to settle cases prior to hearings, and that's what I meant by resolve. I was there such a short period of time, I did not get to actually participate in any hearings. But I did write a brief for one particular hearing that Chief Counsel Sharon Dantzler had been lead counsel on, had been working on, but she was out on sick leave at that particular time, so I did have to fill in the gap in that regard.
Q. You've done a lot of study, but it appears that you have not been involved in any litigation; is that correct?
A. That's correct.
Q. Do you think that poses a problem for you, being dropped into an ALJ position on March 1st and immediately having to hear cases, contested cases?
A. Not at all. If I felt as though my lack of trial experience would serve as a detriment to performing the functions of an administrative law judge, out of respect for myself and for the committee and for the General Assembly, I would not have offered for the position.
Q. What do you tell the chief judge is the best way to make immediate use of you?
A. I'm not sure I understand the question, but I would imagine the same way that he would any other ALJ.
Q. Are you prepared to immediately go, be ready to go and hear cases?
A. I'm sorry?
Q. I'm sorry. Are you prepared to immediately go and hear cases?
A. Yes, I believe I am.
Q. Tell me about the activity you've been engaged in, in outlining the administrative law, Professor Shipley's book and so on. Have you completed that task?
A. Yes, I have. As you know, this is not Professor Shipley's treatise but it's about this thick, and it's heavily supplemented with case citations and various citations of articles and other treatises. I have read that over the last several months and I can say that I entirely outlined the entire document. And I have also supplemented that outline by doing my own research, as I've said, by reviewing case law over the last five years on administrative law in South Carolina and reading various CLE articles on administrative law and supplemented this material as well with that.
Q. Do you find any areas of special concern? All this is probably pretty fresh on your mind, having gone through that. Any areas of special concern meshing administrative law with the Administrative Law Division provisions that were passed in the Restructuring Act?
A. No, I don't.
Q. Do you share your outline?
A. Certainly.
Q. You've worked for the Senate for seven years and you mentioned it's with Senate Research. During that time you've come to know both senators and house members. What do you do if any of these officials seek your support in a political campaign or in advancing some issue in the political arena?
A. As you know, Canon Seven expressly prohibits any political activity on the part of a judge, and so I would not participate in any manner. Whether it be contributions or endorsing a candidate at all, you don't
-- once you have refrained from any political participation.
Q. As an ALJ you'll be presiding over hearings of contested cases. What are the considerations that underlie your determination whether you have a contested case before you?
A. Well, I think you have to look at the definition of a contested case and basically that would be prescribed by regulation, and, of course, a contested case being one in which a party has a right to present their testimony or have their rights determined after an opportunity for a hearing. So in order to make that determination one would have to look to the rights of the particular agency in question. And also there are due process considerations that would be considered if such a hearing is not expressly prescribed by the regulation.
Q. Required by law, that portion of the definition of contested case, do you think that includes due process, when a hearing is required by due process?
A. I'm sorry, I didn't hear the first part of your question.
Q. Excuse me. In the definition of contested case in the APA where it says required by law, a hearing is required by law, how do you take required by law? Would that include when a hearing is required by procedural due process?
A. That includes case law as well as statutory law, of course, if that's what you're asking me.
Q. What have you done to avoid conflicts between your public duties working for the Senate and your efforts to seek the position of an ALJ?
A. I have taken annual leave during any times that I've made contact with specific members.
Q. Years and years from now, if you serve as an administrative law judge for a lengthy period of time, how do you want people to look back and describe your judicial temperament?
A. To be -- to look back and see that I was fair, that I was courteous, that I was patient, and also that I was deliberate and firm in my rulings and decisions but, at the same time, not arrogant; that I executed the functions and duties of an administrative law judge while maintaining humility.
Q. Have you ever been held in contempt or sanctioned by a court for any reason?
A. No, sir.
Q. Have you ever been the subject of any disciplinary action arising out of your employment?
A. No.
THE CHAIRMAN: Further questions? Thank you, Mr. Geathers.
MR. GEATHERS: Thank you.

END OF PRIOR TESTIMONY OF MR. GEATHERS.

REPRESENTATIVE ALEXANDER: John Fantry, please. If you'd raise your right hand, sir.
JOHN JOSEPH FANTRY, JR., having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. FANTRY: Yes, I have.
REPRESENTATIVE ALEXANDER: Is it correct?
MR. FANTRY: It is correct to my knowledge. The only change that I would make would be my expenditures in this campaign since filing in March. At this particular time, I've spent $800 on this campaign.
REPRESENTATIVE ALEXANDER: Would you submit a list of that to us?
MR. FANTRY: It has already been submitted --
REPRESENTATIVE ALEXANDER: It's already been submitted.
MR. FANTRY: -- to the committees.
REPRESENTATIVE ALEXANDER: Is there any objection to making this Summary a part of the record of your sworn testimony?
MR. FANTRY: I have no objection.
REPRESENTATIVE ALEXANDER: It shall be done.

1. John Joseph Fantry, Jr.
Home Address: Business Address:
102 Marion Avenue 1310 Lady Street, #600
Winnsboro, SC 29180 Columbia, SC 29201

2. He was born in New York, New York on August 28, 1949. He is presently 44 years old.

4. He was married to Catherine H. Fantry on December 26, 1970. He has one child: Regan Christine, age 13.

5. Military Service: N/A

6. He attended Mount St. Mary's College, 1967-1971, B.S. in History; and the University of South Carolina School of Law, 1971-1974, J.D.

8. Legal/Judicial education during the past five years:
In the past five years he has attended in excess of 12 hours per year of CLE courses as well as non-certified courses. These have covered such topics as legal ethics, personnel and employment law, rules of court, jury trials, environmental law, utility law, and economic development and municipal government.

9. Taught or Lectured: He has taught courses in Trustee Liability and Directors' and Officers' Liability under the Business Corporation Act.

12. Legal experience since graduation from law school:
After graduation in 1974, he served as staff attorney to the SC Electric Cooperatives Association until 1979, when he became General Counsel, working primarily on matters relating to state and federal regulatory law and analysis, and drafting and interpretation of legislation. In 1985, he went into private practice and in 1986, he joined the law firm with which he is now associated. His practice primarily deals with civil and administrative and regulatory law.

13. Rating in Martindale-Hubbell: He is not rated, but he is listed as of 1992 in that the law firm he is associated with chose not to list until 1992.

14. Frequency of appearances in court:
Federal - None
State - Approximately every 60-90 days
Other - Appearance on an as-needed basis before the SC Tax Commission, DHEC, PSC, WCC, Labor Department, Coastal Council, and Ethics Commission

15. Percentage of litigation:
Civil - 90%
Criminal - 10%
Domestic - 0%

16. Percentage of cases in trial court:
Jury - 20%
Non-jury - 80%
Associate Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Duke Power Co. v. PSC, Bd. of Public Works of the City of Gaffney, and Broad River Electric Coop., 387 S.E.2d 241 (1989), clarified the principles of the requirement of a Certificate of Necessity and Convenience under SC Code Section 58-27-1230.
(b) Broad River Electric Coop. v. PSC, Bd. of Public Works of the City of Gaffney, Duke Power Co., Saluda River Electric Coop., Thomas R. Lipscomb, and the SC Dept. of Consumer Affairs, established the right of the PSC to order the removal of lines built by a municipality without a Certificate of Necessity and Convenience. This case was the first time the PSC was not able to certify electric lines after construction and the municipality was ordered to disassemble the lines.
(c) Miles v. Town of Ridgeway, 92-CP-20-90, pending Supreme Court, challenged the statutory at-will employment powers of a mayor under SC Code Section 5-9-30.
(d) Hamilton v. Oswego Water Co., 92-CP-43-349, was the first South Carolina case testing the 1988 Business Corporation Act's inclusion of a non-profit corporation, or more specifically, the interpretation of SC Code Section 33-20-103 (1988).
(e) Chambers of SC v. City Council of Lee County and Mid American Waste Systems, Inc., 434 S.E.2d 279 (1993), tested the applicability of the SC Procurement Code to a county which failed to adopt a code within the prescribed statutory period, and its effect on contracts negotiated without such a code.

18. Five (5) civil appeals:
(a) Broad River Electric Coop. v. PSC, Bd. of Public Works of the City of Gaffney, Duke Power Co., Saluda River Electric Coop., Thomas R. Lipscomb, and the SC Dept. of Consumer Affairs, appealed to Supreme Court, appeal dropped, presently in Circuit Court for contempt.
(b) Chambers of SC v. City Council of Lee County and Mid American Waste Systems, Inc., Supreme Court, 7/12/93, 434 S.E.2d 279 (1993).
(c) Miles v. Town of Ridgeway, Supreme Court, pending.

20. Judicial Office: He was appointed a hearing officer for the SC Department of Revenue and Taxation Alcoholic Beverage Licensing Division to serve in the interim period from 7/1/93 to 2/28/94.

21. Significant Orders or Opinions:

In light of the short time which he has served and the limited scope of authority, he does not feel any of his rulings warrant elaboration.

20. Public Office:
Gubernatorial appointment to SC Rural Water & Sewer Grants Advisory Commission, 1980-1986
Presidential appointment, board member, District 50 Selective Service System, 1986-present; elected Board Chairman 1988-present
Lexington County Council appointment, board member, Richland/Lexington Council on Aging, 1979-1983
Lexington County Council appointment, Chairman, Lexington County Economic Advisory Council, 1977-1983

28. Financial Arrangements or Business Relationships (Conflict of Interest):
With the exception of his ownership interest in Lewis, Rogers & Lark, P.A., he is not aware of any financial arrangement or business relationship which in any way would constitute or create a possible conflict of interest in the position he seeks. This would be corrected by the sale of his interest in the firm. He has represented certain electric cooperatives, municipalities, and water companies before DHEC, PSC, Tax Commission, and the Labor Department. For one year, he would recuse himself from cases involving a former client; thereafter, he would recuse himself from any matter he had worked on involving a former client.

35. Lobbyist or Lobbyist Principal:
He was registered as a lobbyist for the Electric Cooperatives of South Carolina, Inc. from 1975 through 1984.

36. Lodging, Transportation, Entertainment, Food, Meals, Beverages, Money or Any Other Thing of Value From a Lobbyist or Lobbyist Principal
The law firm with which he is associated presently performs legal services for the Electric Cooperatives of South Carolina, Inc., a lobbyist's principal, for which they bill on an hourly basis. He has not received anything from any lobbyist or lobbyist's principal.

39. Expenditures Relating to Candidacy:
3/3/94 Three long distance calls to references; $ 3.60
3/4/94 Printing letters and envelopes announcing candidacy to legislators; $158.00
3/8/94 Postage, folding, stuffing and labeling letters; $ 84.30

TOTAL: $245.90

44. Bar Associations and Professional Organizations:
South Carolina Bar Association; American Bar Association; Richland County Bar Association; Fairfield County Bar Association

45. Civic, charitable, educational, social and fraternal organizations:
Toastmasters International - Area Governor for SC; Fairfield Country Club - Board of Directors, 1987-1989; Fairfield County Education Foundation - Vice President, 1989-1990

47. Five (5) letters of recommendation:
(a) Lisa M. Shoemaker, Branch Manager
Columbia Teacher's Federal Credit Union
2320 Washington Street, Columbia, SC 29201
252-5700
(b) Honorable Marion C. Smith
Magistrate - District 2
Fairfield County Summary Court
P. O. Box 423, Winnsboro, SC 29180
635-4525
(c) C. Pinckney Roberts, Esquire
P. O. Box 694, Columbia, SC 29202
779-4975
(d) Charles L. Compton, Esquire
Vice President of Corp. Relations and General Counsel
Saluda River Electric Cooperative, Inc.
P. O. Box 929, Laurens, SC 29360
682-3169
(e) John Jacques
667 Ferry Street, Mt. Pleasant, SC 29464
884-9556

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have ever been filed against. The records of the applicable law enforcement agencies: Fairfield County Sheriff's Office are negative; Winnsboro City Police Department are negative; SLED and FBI records are negative. The Judgment Rolls of Fairfield County are negative. Federal court records are negative. No complaints or statements were received and no witnesses are present to testified. Would you like to make a statement before we proceed?
MR. FANTRY: At this particular time, I would choose not to make a statement and rely on my previous statement. Thank you.
REPRESENTATIVE ALEXANDER: Thank you, sir. Go, ahead, Steve.
MR. FANTRY - EXAMINATION BY MR. ELLIOTT:
Q. We're going to incorporate the testimony, so we haven't really thought about it, but is it your intent that we incorporate your statement from the previous time?
A. That's quite all right. No, it is. Not to --
Q. If you're elected as an Administrative Law Judge, what will be your policy about taking something of value from an attorney?
A. In taking something of value, you have to take a look at the ethics procedure itself and it says anything of value, no matter how de minimis, if there is an inference that it might be given for the purposes of influence in some nature. And, therefore, the first, as people have used before me, bright line test would be as to my perceived intent of the giver.

There are some other distinctions as to things of value which might be calendars, of business items, things that you may receive through contacts with individuals of a de minimis value. I believe $10 is what they're talking about that depending on the circumstances and the appearance as long as it's not judicial in nature that I might receive. There, again, it would depend upon my perception of the reason for the gift and the fact that the item -- any item was less than $10 in value.

Of course, gifts from daughter or family members would be for love and affection and they probably wouldn't reach $10 anyhow, so I'd accept those.
Q. And let me be clear about it, I mean is your test that if it's an attorney who is appearing before you, they can give you something with less than a $10 value? I apologize if I misunderstood that, but straighten me out if that's --
A. No, not in a judicial sense at all, but maybe -- you may be at a social event or you may be doing a speaking appearance on a nonjudicial matter in which there are calendars given out. They have a diminimus value. They really are not there for influence. I might accept something like that as a memento of -- or award of that nature.
Q. And just to be clear, what about the attorney who might be appearing before you or have a case pending before you?
A. No. I would not accept any gift from anyone who practices before me.
Q. You had a letter of reference in your packet. It's a very flattering letter of reference. It was from the magistrate in Winnsboro. But he said there were things like that you were real helpful in helping him find a statute and clearing him up on what the law was in some situations; and if for some reason, if it wasn't exactly like you thought it was, you went back and did the research, you would call him up and clarify or correct whatever you had told him before. In what context does that happen?
A. I think that has often happened when the process -- when I was handling a case against a nonlawyer in which there may be an item that came up to where it was procedural in nature. In that respect, I would advise the Court as I would advise that opponent at this particular time as to the statute that we were involved in and perhaps the standard that had been applied, so that we would be able to be more equally balanced on the facts of the case.

In magistrate matters, so many times it is the application of the law rather than the constitutional interpretation of it. And for that particular reason, I have felt very comfortable in working with the citizens and magistrate to lay the best foundation should either side decide to appeal that decision.
Q. Well, I ask it mostly in the context of the ex parte communication situation, and I wasn't clear from your answer. Then, for example, when you call back to say I think I told you incorrectly about this and you're talking to the judge. How do you view that?
A. Oh, in that particular context, the communication, the statute that I used, a copy of that was provided to the counsel on the other side along with the contact to the judge to advise that there had been an error, so there had not been an ex parte communication with the judge. There had been contact with the other side as to what took place.
Q. Thank you. It just wasn't clear --
A. Thank you.
Q. -- from the letter of reference. Since your last screening, has there been any change in your status or anything of that nature that the committee might need to know about?
A. No, there has not been.
Q. Have you sought the pledge of a legislator prior to this screening?
A. No, I have not.
Q. Have you sought a conditional pledge?
A. No, I have not.
Q. And do you know of any solicitation or pledges on your behalf?
A. I know of none.
Q. All right. You were straightening out your campaign expenditures early on and we do have a discrepancy between ours and the House and Senate Ethics committees and I think theirs includes the money you spent on both races; is that correct?
A. That is correct.
Q. And is that the explanation for the discrepancy?
A. Yes. There is $811 on this particular race and there was approximately $856 on the other. I filed the quarterly report which showed both campaigns and my understanding of the question was what has been spent in regard to this particular Administrative Law Judge race.
Q. Thank you.
MR. ELLIOTT: That'll all the questions I have, Mr. Chairman.
REPRESENTATIVE ALEXANDER: Do you have a question?
SENATOR RUSSELL: No, Mr. Chairman.
A. Thank you.
REPRESENTATIVE ALEXANDER: I don't have one either, so we thank you for coming.
A. Thank you, Mr. Chairman.

TRANSCRIPT OF TESTIMONY OF MR. FANTRY AT PUBLIC HEARING OF JANUARY 12, 1994:

STATEMENT BY MR. FANTRY:

Mr. Chairman, Members of the Committee, health, safety and public welfare is the constitutional foundation which the General Assembly uses in prescribing duties and responsibilities for the individual.

It is for health, safety and the public welfare that South Carolina requires the licensing of lawyers, cosmetologists, water system operators and a host other professionals. It is for health, safety and general welfare that South Carolina assigns electric, gas, telephone services. It permits water and waste water facilities. It protects navigable and scenic rivers. It oversees the opening and closing of landfills and establishes sediment control standards for construction.

It is for health, safety and general welfare that South Carolina issues permits for beer and wine sales, licenses underground gas tanks and promotes economic development and when the men and the women of the General Assembly have completed their task of prescribing the duties and responsibilities of the individual and the governor has signed that into law, it is the job of the state agency to implement and enforce those duties with a reasonable and equal hand.

To enhance the equity in application and the public perception of that equity, the roles of the fact finder and the regulator have been separated through the creation of the Administrative Law Judge Division. These judges are persons not assigned to any one agency who with knowledge of the Rules of Evidence and existing South Carolina case law serve as the preliminary tester of agency actions.

Whether that test be in the role of a hearing officer when public hearings are requested for development of new regulations, hearing officer for appeal an agency decision and when that agency has no Board of Commission or hearing officer for an appeal from a Board of Commission which is denied professional certificate, it is the responsibility of the Administrative Law judge to see that the actions of the agency and the individuals appearing before them are appropriately documented with findings of facts and conclusions of law which will protect the party's right for judicial review.

It's my understanding and belief that the role of the administrative law judge is to assist the departments of government to which they are assigned to carry out the activities and directive of the law by seeing that the departments follow their own regulations, to assist the citizens by bringing clarity and uniformity to the proceedings in which the citizens so infrequently participate and to ease the burden of the judiciary by providing a record suitable for review.

In November of this year I will celebrate my 20th year as having the privilege of representing individuals before courts and tribunals in South Carolina. I consider myself fortunate during these years to be involved with clients who provide public services within South Carolina.

My involvement with services such as electricity, water, telephone, fire and, yes, even police protection has educated me in the process of reading and applying administrative regulations including the permitting, licensing and enforcement proceedings. It has also provided me the opportunity for petitioning the General Assembly to create or modify laws that better define the duties, rights and public obligations of those responsibilities and the people that are providing those services.

The restructuring of the South Carolina government last year created the opportunity to be a part of bringing to life the vision of the General Assembly through development of the first set of regulations for the Administrative Law Judge Division and the testing of that plan through service as a judge.

This is an intellectual challenge. A challenge that a student such as myself of law and government couldn't pass up and that's why I sit before you today.

MR. FANTRY - EXAMINATION BY MR. ELLIOTT:
Q. You have pretty extensive administrative law experience or it appears to be so from your statement -- in your PDQ, but it looks like most of that is in the area of utilities and the Public Service Commission; is that corrects?
A. No. I have appeared before the South Carolina Tax Commission --
Q. Well --
A. -- doing -- dealing with abandoned property.
Q. I was going to say, if you would, if you would develop that. I was going to mention that --
A. I'll be glad to do that.
Q. -- but if you'd develop that a little bit for us.
A. In 19, approximately, seventy -- 70 attached to the Appropriations Bill, there was an abandoned property tax law that was introduced in the South Carolina. In this area, the South Carolina Tax Commission would identify properties and accounts that were left in banks or interest in property, it would be reported and collected by the South Carolina Tax Commission after being held for seven years.

In representing the South Carolina Electric Cooperative Association, there came to be an interest in equity called Capital Credit in which it's accrued over a number of years and because of their rotating cycles, at that time it was 12 to 15 years, you would find that some individuals had moved out of the area and couldn't be located.

There was some questions for the South Carolina Tax Commission dealing with, first of all, when that amount became payable because the time period ran. They also questioned about -- there was a question of whether or not an individual had the right by bylaw to donate that to the corporation rather than leave it a -- to the state, a similar process that was used.

We appeared before hearings before the Tax Commission as to, first of all the constitutionality of the act, where it was attached to the Appropriation Bill and we felt at that particular time that the law had been implemented in violation of the South Carolina Constitution as far as not being in the title correctly.

South Carolina Supreme Court ruled --
Q. I think you -- if you want, don't develop it on a case by case basis, but if you'd give some overview. I mean I know your serving as an interim -- as an ABC hearing officer --
A. I will be glad to do that.
Q. -- and how many have you -- hearing cases have you had, that sort of thing. Not a case by case basis. Thank you?
A. And I appreciate that because it's a long and arduous trip we were about to take.
THE CHAIRMAN: We don't want to take quite that long a trip.
A. I have represented individuals before the Residential Homebuilders Commission. I have represented the water companies in applying for environmental permits such as the 208 plan. I have worked with volunteer fire departments in, first of all, obtaining federal and state funding and also the permitting process and training process that deal with it and general counsel for the Electric Cooperative Association.

I was involved in developing that legal department which handled training for job safety and treatment -- safety instructors and worked with the Labor Department as far as safety rules and regulation and implementation to business.

I am a City attorney for the town of Ridgeway and have dealt with interchange at the police department in personnel, employment problems, ethical applications and from time to time have worked with members of the Legislatures in responding to specific questions as to new laws and regulations and applications to companies that I have represented.
Q. Thank you. It looks like you have some litigation experience, but it's not extensive and I believe you indicated that you appear in court four to six times a year and apparently it's usually, it's as associate counsel; is that correct?
A. Yes, for many years my responsibility has been second seat, I guess is the way to -- as general counsel for South Carolina Electric Cooperative Association, though, there were a number of pieces of legislation that were first passed and then challenged, the constitutional cases.

My responsibility was to develop the case and hire the law firm that would try the case and be -- participate with them in the development of the pleadings.

Since going into private practice in 1986, I have been working with -- or my particular law firm, again, in that area of a regulation and constitutional challenges. Generally, there are five to six attorneys dealing with the case.

My responsibility has been involved in interpreting the law, especially research, regarding the constitutional application and writing memorandum and briefs for -- in support of the trial counsel's presentation.
Q. Sitting as an ABC hearing officer, have you found that it would have been any different if you had had any more litigation experience or would it matter if you had any at all?
A. I think it's been very help to me sitting as an ABC hearing officer this year to get a feel for what the law judges are going to experience because you sit in both capacities. One, you're hearing as an initial fact finder for a license -- a beer and wine license in which you are trying to establish the record, so that the agency can appeal.

In the law enforcement area, you are actually I would consider it the tribunal looking for whether or not there is any rational basis in fact for the application of the citing and understanding that you are not actually making the initial decision, but supporting the application of the agency. So it gives you both sides of what I think the ALJ will be doing with all of the agencies which they have been assigned to.
Q. If you're elected as an ALJ, what do you understand to be your ethical considerations about extrajudicial activities?
A. Extrajudicial activities will -- it will be an interesting application because there are two codes of ethics that apply as I understand it. There will be the South Carolina Ethics Acts, which deals with the State employees and other departments, and since the ALJs will not be attached to the judiciary per se, but under the Governor's office that I think those will very applicable to review. The other will be the judicial standards to apply as far as conflicts are concerned, public participation in elections, anything that would draw attention or notoriety to you outside of the area of law.

And as the judicial standards say that they encourage your participation so long as it's not in a legal capacity and so long as it does not discredit or draw attention to the judiciary in an improper way.
Q. Did the cases -- your most significant cases that you listed in answer to the Question 17 on the PDQ, do they say anything special to this committee about you? What criteria did you use to select your cases?
A. Well, I think that one of the criteria that I used in this was a case -- the cases which would indicate the bringing together of the legislative intent in an Act and in the application of that intent by the agency or body that was supposed to carry that out. The Legal Chambers Development Corporation, which appears as Lee County is one that I remember from my report, dealt with whether or not a municipality that had not adopted a procurement code had, in fact, acted in accordance with the Procurement Code standard which is only applied to municipal and county governments through a one provision section in that area.

I had to review that town's -- I had to review how they administer their procurement. I had to determine and review how the council had acted historically and I think it required the idea to be able to translate, apply regulations and then balance the equities of the situation. It's a very interesting case.

I lost that case on laches which is very surprising, but it's still out there and you have to -- you need to know and advise your clients about that at all times.
THE CHAIRMAN: That's the landfill case; is that right?
A. That is the landfill case.
Q. You mentioned legislative intent. As an ALJ, what would be your deference to the interpretation of a statute by an agency?
A. I think you have to give large -- in fact, the case law says that you give deference to the interpretation of the statute by the -- an agency when there is reasonable application. You apply that statute and the agency's interpretation.

It will not be the ALJ's position to make law. That will be for the judiciary and ultimately for the Supreme Court and the Legislature to change any principles and precedents. That's something I think an ALJ will have to resist sometimes to do something you really like to in your heart and understand that you are administering the regulations and that's the process that we're dealing with.
Q. You mention in your PDQ recusal regarding former clients and that you would do so. What would be your understanding of other situations where you would need to disqualify yourself?
A. I think that there is a specific -- a very good outline in the Ethics Bill in the qualifications ask you what would be the reasons to recuse yourself and that is whether you've had any -- if there is any economic interest other than an interest which is greater than the general public, whether or not a member of your immediate family has a interest in it.

I believe that if you worked on that matter specifically or you have access to information through your previous contacts that would or even give the appearance that there would -- could be some information coming out other than through the hearing process, those things I would waive.

It is my belief that that is a decision that the hearing officer and the judge should make. This is the Circuit Court judge makes and that would be reviewed by other bodies if they felt that the process was improper.
Q. Have you ever been held in contempt or sanctioned by a court for any reason?
A. No, I have not.
Q. That's all the questions I have.
THE CHAIRMAN: Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q. Your hearing has just concluded. The attorneys that appeared before you ask you to go to lunch, what would you do?
A. I would -- depending on what the case load are, I would probably accept an invitation to lunch from fellow attorneys. One of the things that would be in there the fact, that we may have lunch together is I don't think a bad view.

If they offer to buy me a lunch, I believe that can be done, but it would be reported on my economic interest statement declared as something that I've received. There is question in my mind if the attorney happened to be a registered lobbyist how would I treat them because that's -- they have a very different procedure and they would not be able if I was a House Member or Senator to buy me lunch, but I think the Judiciary is exempt in that area and I'd have to double check it, so I'd apply the standards of the South Carolina Code and the rulings of the South Carolina Commission as I know them to those situations.
THE CHAIRMAN: Further questions? If not, thank you, Mr. Fantry.
A. Thank you.

END OF PRIOR TESTIMONY OF MR. FANTRY.

REPRESENTATIVE ALEXANDER: Yes, sir.
SENATOR RUSSELL: Mr. Chairman, where are we? I'm sorry.
REPRESENTATIVE ALEXANDER: That was Mr. Fantry.
SENATOR RUSSELL: I know that. Was he just --
REPRESENTATIVE ALEXANDER: We're moving around because Steve and Sue need to split the time and I think we're going to lose Steve, so they're dividing up, so let's stand and take a break or sit and take a break for a few minutes until Sue -- Sue has just arrived. I tell you that's perfect timing. You can't beat that timing, can you?
SENATOR RUSSELL: Mr. Chairman.
REPRESENTATIVE ALEXANDER: Yes, sir.
SENATOR RUSSELL: Just for the record, the Senate is involved in a rather large vote right now and that's why the absence of the senators. I was -- I drew the short straw, so to speak, and was sent.
REPRESENTATIVE ALEXANDER: You got to come?
SENATOR RUSSELL: I got to come.
REPRESENTATIVE ALEXANDER: Well, we welcome you and we're proud to have you.
SENATOR RUSSELL: They'll be here shortly.
REPRESENTATIVE ALEXANDER: We are legally assembled because we have proxy votes to legally assemble us, so --
SENATOR RUSSELL: My next question was, you've got those?
REPRESENTATIVE ALEXANDER: Yes, sir.
SENATOR RUSSELL: Okay.
REPRESENTATIVE ALEXANDER: Yes, sir. Let's still take a minute, so we're still in sort of a --
(Off the record)
REPRESENTATIVE ALEXANDER: Next is William Kenneth Moore. All right, raise your right hand, please.
WILLIAM KENNETH MOORE, having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. MOORE: Yes, sir.
REPRESENTATIVE ALEXANDER: Is it correct?
MR. MOORE: Yes, sir.
REPRESENTATIVE ALEXANDER: Does anything need clarification?
MR. MOORE: No, sir.
REPRESENTATIVE ALEXANDER: Is there any objection to this Summary being made a part of the record of your sworn testimony?
MR. MOORE: No, sir.
REPRESENTATIVE ALEXANDER: It shall be done at this point in the transcript.

1. William Kenneth Moore
Home Address: Business Address:
54 Doe Drive S. C. Attorney General
Little Mountain, SC 29075 P. O. Box 11549
Columbia, SC 29211

2. He was born in Augusta, Georgia on October 5, 1949. He is presently 44 years old.

4. He was married to Patricia Deleon on October 23, 1971. He has three children: Jessica Lauren, age 10; Alexzandra Jordan, age 8; and Eric Mitchell, age 5.

5. Military Service: November, 1971 - September, 1973; U.S. Army; Specialist 4th Class; ***-**-****; Honorable Discharge

6. He attended Augusta College in Augusta, Georgia, September, 1967 - August, 1971, B.A. Degree; the University of Alaska in Anchorage, Alaska, September, 1973 - May, 1974 (left to attend law school); and the University of South Carolina School of Law, June, 1974 - December, 1976, J.D.

8. Legal/Judicial education during the past five years:
He has attended at least 12 hours of continuing legal education approved by the Commission on Continuing Lawyer Competence during the last five years. The general courses of study have included professional responsibility, criminal law, civil law updates and others.

9. Taught or Lectured: He has taught the subject of Code of Judicial Conduct at orientation courses for new magistrates and municipal judges. He has lectured at the Bridge the Gap program on the subject of Professional Responsibility.

12. Legal experience since graduation from law school:
In May, 1977, he began employment at the Attorney General's office. He was assigned to the post conviction section in the Criminal Division. In 1979, he became chief of the section. His primary duties included post conviction cases and prosecution of criminal cases. In 1982, he moved to the Consumer Fraud section of the office. Since 1982, he has become Assistant Director of the Criminal Division with his primary duties in the area of consumer fraud, antitrust, criminal appeals, prosecution of judicial standards cases and attorney grievance cases. He has also represented state agencies in various matters, including contested cases.

13. Rating in Martindale-Hubbell: He has not been listed in Martindale-Hubbell since he has not been engaged in private practice.

14. Frequency of appearances in court:
Federal - rarely
State - often (includes Question 17(c) below
Other - He has prosecuted a number of judicial standards and attorney grievance matters before hearing panels during that time.

15. Percentage of litigation:
Civil - 75%
Criminal - 25%
Domestic - 0%

16. Percentage of cases in trial courts:
Jury - 5%
Non-jury - 95%
Sole Counsel or Associate Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Matter of Johnson, 302 S.C. 532. A judicial standards case in which the S. C. Supreme Court held that funds collected by a probate judge for having conducted hearings for the DMH should have been turned over to the county treasurer.
(b) Matter of Bowers, 400 S.E.2d 483. An attorney grievance matter in which the S. C. Supreme Court held that compulsive gambling was no defense to conduct which otherwise warranted disbarment.
(c) Shaw v. State of S.C., 276 S.C. 190. A post conviction case by which Shaw unsuccessfully challenged his death sentence. Shaw and a co-defendant had been the first persons sentenced to the death penalty under S. C.'s present death penalty statute.
(d) Matter of Dobson, 427 S.E.2d 166 (1993). An attorney grievance case in which the S. C. Supreme Court found misconduct and rejected arguments for a statute of limitations in attorney grievance cases.
(e) Matter of Rollins, 281 S.C. 467. An attorney grievance case in which the S. C. Supreme Court reaffirmed that conduct which does not involve actual practice of law is subject to scrutiny and discipline.

18. Five (5) civil appeals:
(a) Matter of Johnson, S. C. Supreme Court (see, #17a).
(b) Matter of Bruner, S. C. Supreme Court (attorney grievance case), 283 S.C. 114 (1984).
(c) Matter of Dobson, S. C. Supreme Court (see #17d), 427 S.E.2d 166 (1993).
(d) State of S. C. ex rel McLeod v. Coates, et al., S. C. Court of Appeals, 281 S.C. 86.
(e) Hayden v. State of S.C., S. C. Supreme Court, 278 S.C. 610 (1983).

25. Occupation, business or profession other than the practice of law:
None he graduated from law school in 1977.

44. Bar Associations and Professional Organizations:
He is a member of the South Carolina Bar.

45. Civic, charitable, educational, social and fraternal organizations:
He is an active member of Our Lady of the Lake Catholic Church. He has held the office, member of Parish Council, for a two-year term, serving as Secretary and Vice-Chairman.

46. He has practiced law for almost 17 years. During that time he has handled cases in all 16 judicial circuits of our state. He has handled jury and non-jury cases. He has briefed and argued cases before the S. C. Supreme Court, the S. C. Court of Appeals and the U. S. Court of Appeals for the Fourth Circuit. He has also represented state agencies in administrative matters, including contested cases. He has conducted extradition hearings for the state.

For the past several years he has handled many cases on behalf of the Board of Commissioners on Attorney Grievances and Discipline. He has presented the cases to the hearing panels and has briefed and argued the cases before the S. C. Supreme Court.

During the past six years he has handled a number of cases on behalf of the S. C. Judicial Standards Commission. He has prosecuted Judicial Standards cases before the Commission and the S. C. Supreme Court. Additionally, he has taught courses on the subject of the Code of Judicial Conduct and has recently taught the subject of "Judicial Ethics" to the judges attending the course given by the Board of Magistrate Certification.

47. Five (5) letters of recommendation:
(a) Dru H. Carter, Branch Manager
State Credit Union, Main Street Office
Columbia, SC 29201
343-0300
(b) Charles H. Richardson
365 Big Timber Drive, Lexington, SC
734-3685
(c) Scott Elliott, Esquire
P. O. Box 1960, Columbia, SC 29202
771-0555
(d) Donald J. Zelenka
P. O. Box 11549, Columbia, SC 29211
781-0185
(e) James G. Bogle, Jr.
Assistant Attorney General
6523 Olde Knight Parkway, Columbia, SC 29209

The Board of Commissioners on Grievances and Discipline reports no formal complaints or charges of any kind have ever been filed against you. The records of the applicable law enforcement agencies: Richland County Sheriff's Office are negative; Columbia City Police Department are negative; SLED and FBI records are negative. The Judgment Rolls of Richland County are negative. Federal court records are negative. No complaints or statements were received. No witnesses are present to testify. Would you like to make a statement before we proceed?
MR. MOORE: No thank you, Mr. Chairman.
REPRESENTATIVE ALEXANDER: Okay, Sue.
MS. MCNAMEE: Thank you, Mr. Chairman.
MR. MOORE - EXAMINATION BY MS. MCNAMEE:
Q. Hello, Mr. Moore.
A. Thank you, how are you?
Q. As with the other candidates, we would like to incorporate your last screening testimony in the record --
A. Certainly.
Q. -- at this point. Thank you. And in reviewing the testimony from last time, I would like to ask you a few questions that I don't think I asked you sufficiently before.
A. Okay.
Q. We'd like to ask you about your philosophy on recusal as you understand it.
A. My philosophy on recusal is, number one, I think it's discussed and there are some specific rules in the Code of Judicial Conduct on recusal, but I got some advice one time from a judge who I respect a lot and even if it's not covered in the Code of Judicial conduct as a very specific matter, I think his advice was if it causes you to hesitate, if you have to think about it, then you ought to recuse yourself. And it's that simple, and that would be my philosophy.

I'm sure that there are plenty of other cases to be heard and so my philosophy would generally be, one, if it's covered by the Code of Judicial Conduct, absolutely. Also even if it's not covered, but if it causes you to hesitate, that's grounds enough to recuse yourself.
Q. Would you automatically recuse yourself at that point or bring it up as a motion on your part?
A. My tendency would be to automatically recuse myself.
Q. The question of gifts and your understanding of that in the Judicial Canons?
A. I think that judges ought not to accept gifts, period.
Q. What is your definition of a gift?
A. Anything of value, and that includes lunch, dinner. It includes anything. I don't think judges ought to go to lunch with lawyers or people who may be appearing before them and I just think it's a bad practice. And I think it creates a terrible appearance on the public who see it. Even in the circumstances where nothing is intended by the buying of lunch, I still think it looks bad and I would not do it.
Q. Thank you. And finally a question that I feel I need to get a little more information on and that's ex parte communication?
A. Okay. I think the rule is simple on that, too. You don't do it. You don't do it with lawyers because they're prohibited from doing it, but the Code of Judicial Conduct also prohibits judges from doing it. And that means from not only lawyers, but also litigants who are not represented by lawyers. And as an Administrative Law judge, I assume they're going to be a number of those. I think you've got to handle that diplomatically and courteously, but on the other hand, I think you've got to very firmly advise those individuals that you are prohibited, it's improper for you to talk with them and they either need to go get a lawyer or they need to get it resolved otherwise, but you cannot have any communications, any ex parte communications with them.
Q. Thank you. Since your last screening, have there been any changes in your status or anything of that nature that this committee might need to know?
A. No.
Q. It was so short a time ago.
A. Very short time. It seems like only yesterday.
Q. It was the same room, too. Have you sought the pledge of a legislator prior to the completion of this screening process?
A. No, ma'am.
Q. Even if that pledge was conditional -- rather the pledge sought was conditional upon you being found qualified by the committee?
A. No, ma'am.
Q. Have you asked or otherwise authorized any other person to solicit or seek a pledge of a legislator's vote on your behalf?
A. Absolutely not.
Q. And do you know of any solicitations or pledges?
A. No, I do not.
Q. Have you had anyone say to you something to the effect of, "Well, you didn't win last time, but you got my vote this next round"?
A. No, ma'am, I sure hadn't.
Q. And, finally, Mr. Moore, we show you have filed a statement with the Ethics Committee's legislative -- Ethics Committees of spending slightly over $100; is that correct?
A. For last time, yes, ma'am.
Q. That was for last time?
A. Yes, ma'am. Nothing for this time. I have spent less, way less than $100 this time. That last report was for the last campaign.
Q. Oh, I see. Okay. All right. So if you -- when you do file, or when you do expend some money on this campaign, you'll file with Ms. Satterwhite?
A. Absolutely.
Q. Thank you very much.
A. Thank you.
REPRESENTATIVE ALEXANDER: You have a question, Senator?
SENATOR RUSSELL: No, Mr. Chairman.
A. Thank you.
REPRESENTATIVE ALEXANDER: Thank you, sir, for --
A. Thank you, Mr. Chairman.

TRANSCRIPT OF TESTIMONY OF MR. MOORE AT PUBLIC HEARING OF JANUARY 13, 1994:

MR. MOORE - EXAMINATION BY MS. MCNAMEE:
Q. Mr. Moore, would you please tell the committee the most important thing that everyone here needs to know about you and your candidacy for an administrative law judge?
A. I think the most important thing that you need to know are actually two or three things. Number one is I think I have a broad base of experience that qualifies me for this job. I've been working for sixteen and a half years at the Attorney General's Office, so I obviously don't move from job to job very easily or very quickly.

I've handled cases in all sixteen judicial circuits in the state and I've handled judicial standards matters. I've handled the complex and the mundane. I've been in Magistrate's Court, the Supreme Court, Court of Appeals, so I think I have a broad -- extraordinarily broad base of experience.

The other thing, I think, is my ability and my understanding of the need to be fair, because I think that's what determines whether or not a judge is a good judge, is whether the person is fair. And I think I have -- if you talk to people that I've been associated with over the past sixteen and a half years, they will uniformly say, I hope, that Ken Moore is a fair person.
Q. That goes right into my next question. In those sixteen and a half years you've had a chance to observe many judges, and I wondered if you would share with the committee what you thought were the other qualities, aside from being fair and that's most important as I understand your testimony, the other qualities that are very important for a judge and for an administrative law judge?
A. Well, I think the most important thing not only for a judge but I think for just about anybody is to understand
-- you have to understand my general philosophy of life, which is basically treat people like you would like to be treated. That means honestly, sincerely, fairly and with respect and courtesy, and I think those are the hearts of not only a good judge but basically a good legislator or a good person in general.
Q. You have experience most recently, I guess, in criminal -- more experience, let me say, in criminal appeals and the attorney grievance and judicial standards areas. You also say, though, in your PDQ that you represented the state in various other matters in contested cases. Could you give us an example of some of those?
A. Well, several years ago I handled matters for the Board of Penal Services, contested cases before that board. I presently handle matters for the Auctioneers Commission. I'm their AG's representative so I advise them and appear at hearings if they need me to appear. Those are the two agencies that I've had the most contact with.

The Board of Commissioners on Judicial Standards and the Attorney Grievance section, those are not purely, I don't think, administrative law related work, but I've done a lot of work for them also.
Q. How will the Auctioneer's Commission use you? What do you do for them?
A. I generally -- I give them legal advice when they need legal advice. If they have a contested hearing I will appear at the hearing to advise the board. I will assist them in drafting orders, preparing final orders. I represent them, of course, on appeal. We have at least one case right now. In fact, I think we have only one case right now. It's on appeal to the Circuit Court and I, of course, will represent them in that proceeding.
Q. What is your understanding of why the Administrative Law Judge Division was established?
A. Well, I think it was established and I believe that the motivation was simply to bring about what I perceive is going to be a substantial improvement in the administrative law system in this state. I think the Administrative Procedures Act itself went a long way to doing that, but I don't think it's complete, that the system would be completely in place until you have professional administrative law judges who are trained in the law to hear these cases. And I think that will substantially improve the administration of that whole system, and I believe that was the motivation.
Q. What is your opinion, your estimation, of the work load of these three administrative law judges?
A. I think for the -- in the beginning, I think it's going to be an enormous work load. I think there are going to be many, many cases that will need to be heard. There are some 40 agencies, occupational licensing boards, that will be affected and I'm certain they must have plenty of cases sitting over there that will be waiting to be heard on March 1st. And I think it's going to be very important, then, for the Legislature to elect people who are well qualified to handle these cases, because I really think it's going to be an enormous work load the first -- initially, especially for the first three people elected. I think it will continue to be, but I think this breaking in period, trying to get it organized, trying to get it up and rolling and actually rolling, I think are going to be an enormous project for the administrative law judges.
Q. What is your understanding of your -- the participation of the administrative law judge in the rule- making proceedings?
A. As I understand it, they'll preside at the hearings, the public hearings at least, on rules. Of course, they have to develop their own rules and regulations for the Administrative Law Division and I assume that those would be -- that will be another thing that the administrative law judges will obviously need to devote themselves to quickly because I think we'll need some rules and regulations in place for the operation of the court itself.
Q. And, though, I was talking, you know, about the hearings that you would be presiding over.
A. Right.
Q. How would you decide the standard of reasonableness and need, how do you expect to go about looking at that?
A. Well, I think you've got to go about it on a case by case basis, obviously. You've got to look at the needs of the agency, what are the needs of the agency. And the reasonable, I think, is -- you know, obviously, if it's arbitrary and capricious on its face, that's an easy case.

Hopefully, agencies won't submit that type of a regulation. So you're going to have to examine them to determine based on the needs of the agency vis-a-vis the needs of the public and the needs of those people that are licensed under those -- for example, under those occupational licensing boards.
Q. Do you see that as an arduous task?
A. Arduous? I think it will be involved. I don't think it will be -- certainly, it wouldn't be anything I couldn't handle. Yeah, it could be arduous. Like, there could be a lot of regulations out there that need to be enacted on behalf of a lot of different agencies, sure.
Q. What would you say has been your most difficult administrative law case experience in life?
A. I'm not sure I can easily identify one. I think they all have had with them some -- if you're talking about purely contested hearings, I suppose that we have one now with the Auctioneer's Commission that involves a simple question of -- although it seems simple on it's face, it's on appeal to the Circuit Court on just the interpretation of the statute itself and it's going to be a question that's going to require some extensive research, I think, to try to reach a position I think that's favorable to the agency. I think they're right and I'm sure that it'll be interesting on appeal.
Q. Could you please describe your method of separating your work as a state employee from your effort at obtaining this position?
A. Well, what I intend to do, of course, is take annual leave, like I did today, whenever I do anything that relates to either appearing at a hearing like this or, for example, I appeared before the Bar the other day, I took annual leave, and I expect I'll certainly continue to do that. I'm committed to do that.
Q. Have you ever been held in contempt?
A. No, ma'am.
Q. Or sanctioned by a court for any reason?
A. No, ma'am.
Q. Have you ever been the subject of a disciplinary action arising out of your employment?
A. No, ma'am.
THE CHAIRMAN: Questions from the members? Thank you.

END OF PRIOR TESTIMONY OF MR. MOORE.

REPRESENTATIVE ALEXANDER: Lynn Wiggins. Would you please come forward. Raise your right hand.
VIRGINIA LYNN WIGGINS, having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: Have you had a chance to review your Personal Data Questionnaire Summary?
MS. WIGGINS: Yes, sir.
REPRESENTATIVE ALEXANDER: Is it correct?
MS. WIGGINS: Yes, sir.
REPRESENTATIVE ALEXANDER: Does anything need clarification?
MS. WIGGINS: No, sir.
REPRESENTATIVE ALEXANDER: Is there any objection to making this Summary a part of the record of your sworn testimony?
MS. WIGGINS: No objection.
REPRESENTATIVE ALEXANDER: It shall be done at this point in the transcript.

1. Virginia Lynn Wiggins
Home Address: Business Address:
142 A. B. Frye Road 1328 Blanding Street
Lexington, SC 29073 Columbia, SC 29201

2. She was born in Hazelhurst, Mississippi on August 21, 1951. She is presently 42 years old.

4. She was previously divorced on March 28, 1980; Lynn W. Rickenbaker (moving party); Family Court of the Sixth Judicial Circuit (Winnsboro); habitual drunkenness (grounds). She was married to Donald Edward Jonas on December 7, 1986. She has no children.

5. Military Service: N/A

6. She attended Midlands Technical College, 1971, A.S.; the University of South Carolina, 1984, B.A.; and the University of South Carolina School of Law, December, 1986, J.D.

8. Legal/Judicial education during the past five years:
1992 19.50 hours - Probate, Torts, and Westlaw training
5.00 hours - Ethics
1991 10.25 hours - Real Estate, Probate
3.00 hours - Ethics
1990 12.00 Hours - Real Estate
1989 11.00 hours - Torts
1988 6.00 hours - Worker's Compensation
9. Taught or Lectured:
Midlands Technical College - Paralegal Division - Wills, Trusts and Estates (approximately 5 semesters)
Columbia Junior College - Center for Paralegal Studies - Wills, Trusts and Estates - Introduction to Law (approximately 3 semesters)

12. Legal experience since graduation from law school:
1987-1990 General Practice, including real estate closing, litigation, probate, Social Security Disability, Worker's Compensation and Family Law
1990-1991 Real Estate, Probate, Social Security Disability and Family Law
1991-1994 Probate, Social Security, Family Law and Litigation Support for Partner

13. Rating in Martindale-Hubbell: CV

14. Frequency of appearances in court:
Federal - 4 to 5
State - 10 to 12
Other - Social Security Administration - 15
Worker's Compensation Commission - 5
Family Court - 20 to 25

15. Percentage of litigation:
Civil - 40%
Criminal - 0%
Domestic - 60%

16. Percentage of cases in trial courts:
Jury - 20%
Non-jury - 80%
Jury - Associate Counsel
Non-Jury - Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Action for termination of parental rights of prisoner and adoption by step-parent. Action was contested by prisoner, who was represented, and involved issue of whether incarceration constituted abandonment under South Carolina law. Prisoner appealed order terminating his rights, which appeal he later abandoned.
(b) Action to overturn adoption proceeding for fraud against Department of Social Services and Children's Unlimited. Issued involved non-disclosure of children's histories and intentional concealment. Case of first impression in South Carolina. Case settled by D.S.S. who agreed to take the children back into the system.
(c) Social Security benefits obtained for 36-year-old accountant suffering from torticollis. Significant for the young age of the claimant and rareness of disease.
(d) Social Security benefits obtained for 40-year-old assembly line worker with brain tumor. Significant because of age of claimant and fact she had a history of other kinds of skills which might have been transferrable.
(e) Action by restaurant owners/tenants against landlord for breach of lease, which resulted in judgment against the landlord for tens of thousands of dollars in repairs, renovations and penalties. It was significant for the willful contempt and inaction of the landlord necessitating a hotly contested and lengthy trial before the Master-in-Equity.

18. Five (5) civil appeals:
None.

24. Unsuccessful Candidate:
1990 - Lexington County Probate Judge

25. Occupation, business or profession other than the practice of law:
1987-present Managing Partner, Jonas and Wiggins Law Firm
1984-1987 Law Student
Law Clerk, Donald E. Jonas, Attorney at Law; Research Assistant/Managing Editor of Journal of Law and Education, Edited by Professor Eldon D. Wedlock
1982-1984 Legal Secretary/Office Manager; Donald E. Jonas, Attorney at Law
1981-1982 Legal Secretary/Office Manager; Jerrie J. Mealing, Attorney at Law; and Southbridge Properties
1/81-5/81 Executive Secretary; Intertec Data Systems; Columbia, South Carolina
9/80-12/81 Construction Loan Administrator; South Carolina National Bank; Columbia, South Carolina
5/79-9/80 Real Estate Secretary; Ratchford, Cooper and Jonas, Attorneys at Law; Columbia, South Carolina
11/78-5/79 Personal Injury Assistant; Lourie, Draine, Curlee & Swerling, Attorneys at Law; Columbia, South Carolina
5/76-11/78 Legal Secretary; Carl L. Holloway, Jr., and Russell W. Templeton, Attorneys at Law; Columbia, South Carolina
5/75-5/76 Bartender/Waitress, Paddlewheel Queen, Fort Lauderdale, Florida; and Legal Secretary, Tiballi, Schroeder, Truesdale, Sartory and Beyer, Attorneys at Law; Fort Lauderdale, Florida
11/74-5/75 Bartender; Ground Round Restaurant; Fort Lauderdale, Florida
4/74-11/74 Bartender/Assistant Manager; Italian House Restaurant; Columbia, South Carolina
1/74-4/74 Bartender; Ramada Inn; West Columbia, South Carolina
11/72-11/74 Legal Secretary; Lester and Lester, Attorneys at Law; Columbia, South Carolina
9/71-11/72 Legal Secretary; Rentz, Anders and DeBerry, Attorneys at Law; Columbia, South Carolina
6/71-9/71 Legal Secretary/Receptionist; Burnside and Roof, Attorneys at Law; Columbia, South Carolina
11/70-6/71 Legal Secretary; Kenneth H. Lester, Attorney at Law; Columbia, South Carolina
9/69-6/71 Student; Midlands TEC; Columbia, South Carolina
4/68-8/69 Cashier; Atlantic Twin Theatres; Columbia, South Carolina

26. Officer or Director:
Managing Partner; Jonas and Wiggins, Attorneys at Law - responsible for all day-to-day operations of law firm, including employment, training, financial matters, purchasing, scheduling, etc.

29. Arrested or Charged:
She was arrested on April 7, 1976, for possession of marijuana. The case was dismissed without legal intervention or trial.

30. Federal, State or Local Investigation:
Other than No. 29 above, no.

32. Sued: Danny and Donna Bryant v. V. Lynn Wiggins, et al.; Docket No. 93-CP-32-2051; relates to loan closing she handled

44. Bar Associations and Professional Organizations:
Richland County Bar Association; Lexington County Bar Association; South Carolina Bar Association; South Carolina Trial Lawyers Association; South Carolina Women Lawyers Association

45. Civic, charitable, educational, social and fraternal organizations:
Member, South Carolina Bar Pro Bono Program, 1988 to present; Am. Jur., Constitutional Law, 1985

46. The majority of her practice since leaving law school has been before administrative agencies, including the Social Security Administration and Worker's Compensation Commission or in non-jury matters before Circuit Judges, Masters-in-Equity and Family Court Judges. She is very familiar through her practice, with the Administrative Procedures Act and the South Carolina Rules of Evidence and Procedure.

47. Five (5) letters of recommendation:
(a) G. B. Brazell, III, Vice President
SouthTrust Bank
P. O. Box 12106, Columbia, SC 29211-2106
376-2000
(b) Ken H. Lester, Esquire
1712-1714 Main Street, Columbia, SC 29201
779-3700
(c) Carolyn B. Steigner, Esquire
Hendrix & Steigner, P.A.
P. O. Box 1263, Lexington, SC 29072
359-7009
(d) Thomas K. Fowler, Jr., Esquire
P. O. Box 2364, Columbia, SC 29202
254-1570
(e) G. Richardson Wieters, Esquire
Hughes & Wieters, P.A.
P. O. Drawer 6067, Hilton Head Island, SC 29938
785-8040

The Board of Commissioners on Grievances and Discipline report no formal complaints have ever been filed again you. The records of the applicable law enforcement agencies: Lexington County Sheriff's Office are negative; Lexington City Police Department are negative; SLED and FBI reports are negative. The Judgement Rolls of Lexington County are negative. The federal court records are negative. No complaints or statements were received and no witnesses are present to testify. Would you care to make a statement before we proceed?
MS. WIGGINS: Yes, sir, just briefly. Thank you.
REPRESENTATIVE ALEXANDER: Proceed.
MS. WIGGINS: The conferring of a law degree does not give an individual an innate ability to become a good judge. As this committee knows from my last screening, I have been in the legal profession for 24 years, the last seven of which have been as a private practicing attorney in a litigation firm. I've worked for, litigated with and litigated against some of the most respected and able trial lawyers in this state in front of some our best judges in this state. I'm familiar with the Rules of Evidence and the Administrative Procedures Act through practice.

What I would like for every member of the committee to consider and every member of the General Assembly when they're trying to decide who to vote for ALJ 4 is if it was their personal tax case, if it was their personal ABC permit or if it was their personal DHEC matter that was being litigated on their behalf, who would they like presiding over the bench, someone who has been in the trenches or not? Thank you.
MS. WIGGINS - EXAMINATION BY MS. MCNAMEE:.
Q. Thank you. Good afternoon, Ms. Wiggins.
A. Good afternoon, Sue.
Q. As with the others, we would like at this point to incorporate your last screening into the transcript of this one; is that all right with you?
A. That's fine.
Q. Thank you. I understand there were some minor changes made in your PDQ this time. Minor, changing some dates to 1994 and changing a reference and then you did list a Martindale-Hubbell rating.
A. Right. That came in.
Q. Is that correct?
A. That came in since the last screening.
Q. And that was what?
A. CV.
Q. And what is your understanding of that?
A. C is from Good to, I think, Very Good. And the V, I think is your reputation in the community, is what my understanding is.
Q. Do you understand or do you know how you get that kind of rating?
A. No, it just came in the mail. I had never asked for it or understood how it got rated.
Q. You didn't ask for it?
A. No.
Q. And in looking at your expenditures, you listed expenditures, or filed expenditures in February of 1993. I imagine that was for the last race?
A. It was.
Q. And this time it was the minimal amount; is that correct?
A. I have spent nothing on this time.
Q. And then -- so, then, when you do spend some money, you will please make the appropriate filings?
A. Yes, I will.
Q. Have there been since your last screening any changes in your status or anything of that nature besides your statement that you would like this committee to know?
A. No, I haven't.
Q. Have you sought the pledge of a legislator prior to the completion of this screening process?
A. The simple answer is no, I haven't. Of course, I ran hard all the way to the end of the last race. I did have supporters, many of whom came to me immediately after the race and encouraged me to run again. That has been the extent of my conversations.
Q. Did they -- did you, then, seek any pledges conditional for this race --
A. No, I have not.
Q. -- upon being found qualified? Okay. Has anybody else offered or have you authorized any other person to solicit or seek pledges on your behalf --
A. No, I have not.
Q. -- before the end of this screening?
A. No, I have not.
Q. Do you know of any other pledges on your behalf that have been made?
A. No, I do not.
Q. And you did say that some conversations were had. Did anyone say to you, "Well, you didn't win this time and -- but you got my vote next time"?
A. No. I wish they had.
MS. MCNAMEE: That's all I have.
REPRESENTATIVE ALEXANDER: Senator, do you have a question?
SENATOR RUSSELL: No, sir.
REPRESENTATIVE ALEXANDER: Thank you so much for coming.
A. Thank you.

TRANSCRIPT OF TESTIMONY OF MS. WIGGINS AT PUBLIC HEARING OF JANUARY 13, 1994:

MS. WIGGINS- EXAMINATION BY MS. MCNAMEE:
Q. Ms. Wiggins, I bet about this time you'd like to have a name that started earlier in the alphabet.
A. It's been my whole life.
Q. You have already done this and I think you did it very well, and I'll just ask you a few questions to clarify -- what is the most important one or two things that you want this committee to know about you and your candidacy?
A. My experience, litigation experience. I have been in private practice since leaving law school. While I was a legal secretary I also worked for litigation attorneys. I had been in courtrooms prior to law school. I think I have extensive litigation experience that I can take to this job that will help in getting on my feet right away in hearing cases.
Q. The experiences of being an advocate, of being one of the attorneys in the courtroom, would be different than the demeanor, et cetera, that you would need to be a judge. Could you go into how you would make that transition?
A. Well, as a guardian I've had more of the compromise, mediation aspect. I prefer to be a mediator rather than an advocate. Adversarial, I've done a lot of years of adversarial positions and I really prefer compromise, I prefer settling cases, I prefer working things out.

I think most of the judges that I admire are very good at making attorneys work together, narrowing the issues that are going be before them. And I have had to do that as a guardian, I have had to make the attorneys on both sides work together.
Q. What are the most important qualities for an administrative law judge, as you see it?
A. Open-mindedness, fairness, courtesy in the courtroom. I believe that everyone deserves to be heard, and I think also the demeanor on the bench is very important as to how you are perceived from the bench.
Q. What is your best quality?
A. Sense of humor.
Q. Okay, and how will that help in you being an administrative law judge?
A. I think you have to keep a sense of humor in any job. With those of us who have been in private practice, you have to have a great sense of humor some days. But it, I think, makes you a real person. Every day of my career I have worked with people, and there's going to be people coming before you in this job, and I think I have enough ability to deal with a person -- I image that we will have a lot of pro se people that will appear before the administrative law judges and I think I have the ability to deal with them, to give them their day in court and to be fair with them.
Q. You have a lot of experience, it said in your PDQ, in Social Security matters and in Workers' Comp areas. Are there any other areas of administrative law that you --
A. I have been co-counsel in a couple of employee grievances for the state system.
Q. It sounds like in being an advocate, as you have been for so many years, you have -- and working in Family Court, as you have, you have come up with some -- up against some stressful situations and everyday probably an amount of stress. As we've been talking around here, we think that the administrative law judges are going to be stressed by the amount of work that they have, and I wanted to know how you deal with stress?
A. As you know, you may know, I practice with my husband and some days that puts some stress in your life. But we deal with it together a lot. That has helped, actually, in dealing with a stressful situation. I try to -- we try to leave it at the office.

I think as an administrative law judge, I don't think you can take all of this home with you. I think the first year of this court is going to be terribly stressful. I think that it's going to take a lot longer than a year to get this up and running totally efficiently, and -- but I think that in private practice I have dealt with about as much stress as this is probably going to be.
Q. Do you consider you have any weaknesses in the area, procedural or substantive, in administrative law and, if you do, how will you deal with that?
A. There's not a possibility of knowing all of the different regulatory matters that are going to come before this court. I don't think any candidate could possibly have dealt with every agency that's going to be before this court. I have the ability, I think, though, to read the law, to apply the law; I've been doing that every day over the past seven years. I don't think that it's a problem.
Q. I think I did read in your PDQ that you Am. Jured in Con Law.
A. I did.
Q. I admire that. Could you tell us a little bit about your philosophy about ex parte communication? Even now, even these days as an attorney, have you ever engaged in any ex parte communication with a judge on a case that was pending before that judge?
A. As a guardian, we are allowed ex parte communication when I represent children. That is absolutely allowed. The judges invite you into their chambers to discuss a particularly difficult case. As an attorney and an advocate, no, it's absolutely barred. I don't even attempt it and I don't appreciate it being attempted.
Q. How will you deal with that if you become an administrative law judge?
A. I would stop it immediately if it was in my presence or if someone tried to approach me about a pending matter. I think sometimes, especially if you have inexperienced attorneys, it could be inadvertent. I would cut it off. If it continued or they tried to press on with it then I would feel I had to report it.
Q. And if you just finished a hearing at lunchtime and the attorneys wanted to take you out to lunch, what would you say?
A. Although I love to go out to lunch, I'd have to say no.
Q. Have to say no?
A. Yes.
Q. You will be required to meet a lot of deadlines, discipline is going to be important for it, and I just wanted you to speak to that.
A. I have a problem that probably drives my husband crazy. I come back from a hearing, if I have been told to draft the order I have to do it then because I can't stand to have something hanging over my head. If at all possible, I try to draft it within a couple of days of the hearing. I don't like things that are hanging undone. I am too organized, I can't stand disorganization.
Q. What if it's been a two month hearing?
A. I agree with one of the other candidates that said the notes are going to be important. You're going to have to have notes. There's no way to recreate a two month hearing. I think I would take as good of notes as I could, that I thought would help me in the decision process. Obviously, if you have a two month hearing and the issues are complex, you're probably going to have a complex order to write. In that situation, I might ask the attorneys involved, if there were attorneys on both sides, to submit proposed orders to help with that situation.
Q. Have you ever been found in contempt or sanctioned by any court that you've appeared before?
A. No, I haven't.
Q. Are there any outstanding actions that you are a party to?
A. Yes, there is. In my PDQ, there is a lawsuit against me for a loan closing I handled.
Q. How far along is that?
A. It's just -- we've just answered. It's in the initial stages, it was just filed.
Q. You were just one of the attorneys --
A. I was the attorney who handled the loan closing. Also named were the Realtor and several other entities.
Q. What guidelines will you operate under to avoid impropriety or the appearance of impropriety?
A. I don't have any agency connections at this point that I think are going to be conflicts for me. I don't see many cases where I would have to recuse myself from a case, unless it involved the parties or the litigants, perhaps, were personal friends or family members, and, of course, it's an absolute recusal. Full disclosure I think is warranted even if there is a question that someone might object, and I would offer myself to be recused if there was an objection.
THE CHAIRMAN: Thank you, Ms. McNamee.
THE CHAIRMAN: Ms. Wiggins, your husband practices -- well, you both practice in Columbia. Do you think the presence of that practice or the nature of that practice would create any problems with you being an administrative law judge?
A. Absolutely not. My husband doesn't do that type of practice at all.
THE CHAIRMAN: Does anybody in your firm do substantial administrative law work?
A. My husband and I are the only members of my firm.
THE CHAIRMAN: Thank you. Any further questions from the Members? Ms. McNamee? All right, thank you very much.

END OF PRIOR TESTIMONY OF MS. WIGGINS.

REPRESENTATIVE ALEXANDER: Karen Kanes, would you come forward, please.
KAREN LYNN KANES, having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: Have you had a chance to review your Personal Data Questionnaire?
MS. KANES: Yes, sir. I have.
REPRESENTATIVE ALEXANDER: Is it correct?
MS. KANES: Yes, it is, sir.
REPRESENTATIVE ALEXANDER: Does anything need clarification?
MS. KANES: No, sir.
REPRESENTATIVE ALEXANDER: Is there any objection to making this Summary a part of the record of your sworn testimony?
MS. KANES: No, sir.
REPRESENTATIVE ALEXANDER: It shall be done at this point in the transcript.

1. Karen Lynn Kanes
Home Address: Business Address:
1775 Reidville-Sharon Road Spartanburg County Courthouse
Greer, SC 29651 Spartanburg County Magistrate Court
180 Magnolia Street
Spartanburg, SC 29301

2. She was born in Houston, Texas on August 14, 1962. She is presently 31 years old.

4. She was previously divorced on July 20, 1989; Family Court of the Thirteenth Judicial Circuit; James Lafon Rogers (moving party); ground of one year's continuous separation. She was married to Michael Murphy Armor on May 31, 1992. She has no children.

5. Military Service: N/A

6. She attended Goucher College, 1980-1983, Bachelor of Arts in 1983; and the University of South Carolina School of Law, 1983-1986, J.D. in 1986.

8. Legal/Judicial education during the last five years:
Mandatory Continuing Legal Education, 1988-1993, a sundry of classes non-specific ranging from Worker's Compensation to Evidentiary Issues.
Mandatory Judicial Education, 1992 to present, classes attended as incoming Magistrate coupled with mandatory annual magistrate conference.
9. Taught or Lectured: Magistrate's Orientation School (June 16, 1993); Legal Authority and Administrative Procedures Involved in Sentencing Alternatives including Jurisdiction, Venue, Sentencing and Fees

10. Published Books and Articles: THE CONSTITUTION OF SOUTH CAROLINA, Volume I: The Relationship of the Legislative, Executive, and Judicial Branches, by James Lowell Underwood, date of publish 1986 (see pages xiii-xiv Acknowledgments for research)

12. Legal experience since graduation from law school:
Staff Attorney (1986-1987), Office of Senate Research: Drafted and researched legislation. Participated in administrative procedures and hearings. Represented Senators in litigation.
Assistant Circuit Solicitor (1987-1988), Spartanburg Solicitor's Office: Represented State and prosecuted cases in Family and General Sessions Court. Litigated matters including child abuse and rape. Primary litigant for all Protective Service matters.
King, Hray and Kanes (1990-1992), partner King and Hray (1989-1990) associate: Litigated routinely in Probate, Magistrate, Family, Circuit and Appellate Courts. Practiced before administrative boards and commissions specifically the Worker's Compensation Commission and ABC Commission. Researched/drafted appellate briefs, legal memorandum and pleadings.
Magistrate (June, 1992 to January, 1993) Chief Magistrate (January, 1993 to present). Presided over civil and criminal court both jury and non-jury trials. Routinely researched legal issues. Drafted legal memorandum and orders. Presented arguments for and successfully obtained funding from County Council to restructure court system. Researched and prioritized goals to implement restructure. Instituted novel approach to reduce case backlog resulting in reduction of jury trial case load of approximately two thousand to two hundred pending. Developed approaches to deal more efficiently with general public. Managed personnel, including Magistrates in excess forty persons. Prepared and presented budget for FY 1993-1994. Magistrate (June, 1992 to January, 1993). Presided over traffic court bench trials and civil, criminal and traffic jury trials. Implemented Spartanburg County's first centralized Traffic Court System. Developed courtroom procedure and shared training with District Magistrates.
13. Rating in Martindale-Hubbell: Rating prior to Magistrate appointment; Martindale-Hubbell (1992) A rating

14. Frequency of appearances in court:
Federal - N/A
State - regular appearances prior to appointment as Magistrate
Other -

15. Percentage of litigation:
Answers below pertain directly to employment during specified time.
Civil - (1989-1992) one-third of practice with King Hray and Kanes (King Hray and Kanes a/k/a King and Hray [1989])
Criminal - (1987-1988) total practice as assistant solicitor
Domestic - (1989-1992) one third of practice with King Hray and Kanes

16. Percentage of cases in trial courts:
Jury - (1989-1992) estimated five to ten percent
Non-jury - (1989-1992) estimated twenty percent civil non-jury; estimated thirty percent domestic non-jury; estimated twenty percent worker's compensation
Other than appellate work, service was mainly sole in nature. Note, however, much work originated from the earlier year as associate.

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Billy Ray Short, Employee, Claimant v. Peeler Rug Compant, Employer, Kansas City Fire and Marine Insurance Company, Carrier, Defendants. W.C.C. File No. 9005828. Claimant sustained permanent, total disability. Liability was questionable. Appeal upheld lower decision. The case was significant by the complexities in the factual history. Moreover, Claimant's limited mental state (functional illiterate, mild retardation) made the trial challenging. The Claimant was awarded compensation.
(b) In the matter of: Shari L. Whitlow, Pres. S.U.V., Inc. d/b/a Ellite. This matter was the predecessor to a series of cases wherein he represented the City of Spartanburg. The cases all involved requests for alcohol permits in a volatile area of the City. The significance of the case was its impact on the community by restricting permits in questionable/dangerous area. The case was heard before the Alcoholic Beverage Control Commission, order rendered August 27, 1990.
(c) Katherine P. Bridges ("Kippy"), Plaintiff v. Donald E. Bridges, Defendant. Case Number: 91-DR-11-539. The Defendant was the partner in a large insurance company, thus the division of property was extremely complicated. The case was significant in both the results and legal complexities. More than five experts in evaluation of Insurance companies were retained or consulted. This in conjunction with diverse facts made the case unique.
(d) Robert A. Osment, Plaintiff v. Cynthia Phillips and Charles A. Cerney, Case Number: 91-11-16. The significant feature of this case was the convoluted facts. Representing the Plaintiff, the facts represented by the investigating officer were not similar. The case was settled after arguments had begun, and the settlement was one of the few in which all parties were reasonably satisfied.
(e) In the matter of: Alice Pack, Social Security Matter ***-**-****. The Claimant sought benefits after suffering physical impairment. The case was significant in the pleasure she felt personally in the award received to the Claimant.

18. Five (5) civil appeals:
(a) Duke Power Company, Respondent v. David C. Thornton and Vesta L. Thornton, Appellants Case No. 89-CP-42-1273

20. Judicial Office:
Chief Magistrate (January, 1993 until present). Appointed Chief Magistrate by Chief Justice of the South Carolina Supreme Court. Jurisdiction limited to $2,500 in civil matters and a sundry of offenses against property limited to less than $1,000. Remanded cases by consent of both parties also are included in jurisdiction. A majority of cases in Magistrate jurisdiction are defined by penalty of $200 or 30 days in jail for criminal convictions. Appeals from the Highway Department are also heard de novo by the Chief Magistrate.
Magistrate (June, 1992 until January, 1993). Jurisdiction includes all the above with the exception of Appeals from the Highway Department.

21. Five (5) Significant Orders or Opinions:
(a) State of South Carolina v. Brenda Poole (S130871 - Spartanburg Magistrate Court)

(b) The State v. Arthur G. Hopper (Spartanburg Circuit Court).

39. Expenditures Relating to Candidacy:
Individual letters to members of the General Assembly; her personal secretary; $200 total estimated cost

44. Bar Associations and Professional Organizations:
South Carolina Bar Association (1986 until present); Spartanburg County Bar Association (1987 until present); Spartanburg Young Trial Lawyers (1988 until present); Chairperson, Spartanburg County Family Law Committee (1992); Judicial Task Force on Gender Fairness in the Courts (1993 until present); South Carolina Commission on Alternative Dispute Resolution (1993 until present); South Carolina Association of Summary Court Judges (1992 until present)

45. Civic, charitable, educational, social and fraternal organizations:
Board of Trustees: Nominated Spartanburg County YMCA Executive Comm. (October, 1993 until 1996); Spartanburg Little Theatre (1990-1993); Spartanburg County Children's Shelter (1992); SAFE Homes Network for Abused Women (1989-1992); Department of Mental Health; Children's Coalition Against Sexual Abuse (1990-1992); DSS Treatment Team (1988-1992)
Volunteer: Habitat for Humanity (1992 until present); Seeds of Faith Ministries Soup Kitchen (1992 until present); Mobile Meals a/k/a Meals on Wheels (1989 until 1992); Spartanburg Young Running Club (1990 until present)

46. Marathon 26.2 miles: Top seven Female, South Carolina Marathon (1982, 84, 86, 87, 89, 90); Top five Female, Grand Father Mountain Marathon (1989, 90, 93); Boston Marathon (qualified 1982, 83, 84, 86, 88, 89, 90, 91, and 93) (participant 1989)

47. Five (5) letters of recommendation:
(a) Susan B. Gamble, Assistant Vice President
Nationsbank
1000 Pine Street, Spartanburg, SC 29303
594-6472
(b) Andrew N. Poliakoff, Esquire
P. O. Box 3525, Spartanburg, SC 29304
583-8212
(c) Ben Harrison, Esquire
Harrison & Hayes
P. O. Box 5367, Spartanburg, SC 29304
542-2990
(d) Honorable Bruce Littlejohn
Chief Justice-Retired
P. O. Box 2526, Spartanburg, SC 29304-2526
585-3363
(e) Professor James L. Underwood
University of South Carolina School of Law
Columbia, SC 29208
777-4155

2. Positions on the Bench:
Chief Magistrate (January, 1993 to present)
Magistrate (June, 1992 until January, 1993)

The Board of Commissions on Grievances and Discipline report that no formal complaints or charges of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. The records of the applicable law enforcement agencies: Spartanburg County Sheriff's Office are negative; Greer City Police Department are negative; SLED and FBI records are negative. The Judgement Rolls of Spartanburg County are negative. Federal court records are negative. No complaints or statements were received. No witnesses are present to testify. Would you care to make a statement?
MS. KANES: No, sir, I'll waive that.
REPRESENTATIVE ALEXANDER: Go ahead, please.
MS. KANES - EXAMINATION BY MS. MCNAMEE:
Q. Good afternoon, Ms. Kanes.
A. Good afternoon, Ms. McNamee.
Q. Is it all right with you if we use the transcript from the last time as the bulk of --
A. It is.
Q. -- the interview and screening this time? Thank you. Since your last screening, have there been any changes in your status or anything of that nature that you want this committee to know about?
A. No, ma'am. I equivocate. There was something that I did not document on the last, and I will say that for the record, that Chief Justice Harwell had placed me as chairperson of a subcommittee regarding mediation in the magistrate's or summary courts. And other than that, it was not noted on any of the answers, but that is one thing that I've been pretty involved with.
Q. Has that committee met?
A. On several occasions. As a matter of fact, we're -- we will begin three pilot programs in Greenville, Beaufort and Rock Hill very, very soon.
Q. Very interesting. How do you separate your work for Spartanburg County as a magistrate and this candidacy? Is there any -- do you take annual leave? I mean, do you -- are you on an annual leave schedule?
A. There are two things that I've done. The first is I work every Saturday and Sunday, so I am actually working five days a week. I did not feel comfortable drawing salary however. The two days, the two weekend days that I work, I do mostly administrative type work, so what I have done is I've entered into an agreement with the County and this has been approved by the county council whereby I am only paid for the hours that I actually work.

And that's talking about Mondays, Thursdays and Fridays, so they're getting two days basically free each week. But that's happened. The days, the Saturdays and Sundays that I have not been there, I've been traveling on the road, so since November the 8th, I don't believe I've taken one day completely free.
Q. I'm glad we clarified that. I didn't realize that from the last time.
A. Yes, ma'am. But, effectively, I am being compensated only for the hours worked.
Q. So you are on unpaid leave for two days a week?
A. Really, yes. My benefits were also consistent with that. In other words, they weren't totally cut, but they were put probably in the part-time status.
Q. Uh-huh.
A. But I'm still working Saturdays and Sundays.
Q. You have indicated, or it's indicated here that you have spent some money on this campaign for this Seat Number 5, $200, I believe?
A. That's correct.
Q. Is that still current?
A. That's current. I need to look back over the Rules because I have done so much traveling. It's my understanding that that is not expenses that you can tally down there, i.e. gasoline. And if that's correct, then it is current.
Q. Okay. Thank you. And at some point you need to file that with the Senate and the House Ethics committees.
A. Yes, ma'am.
Q. Since your last screening have there been any changes in your status or anything else of that nature that we need to know about?
A. No, ma'am.
Q. I think I asked you that. Sorry. Have you sought the pledge of a legislator prior to the completion of this screening process?
A. No, ma'am.
Q. Even if that pledge, the pledge that was sought might have been conditional upon your being found qualified by this group?
A. No, ma'am, but I think like the candidates before me, if we're all very candid, those of us that left races feel that we have some support just by virtue being in races and having worked closely with people. And I think it's almost hypocritical to stand up here and say we don't feel that we have continuing support through this next race.

Now, in terms of having a person, me, asking a person to support me, that has not happened. I have not asked for any commitment or any pledge. But by the same token, I also feel comfortable that some of the people that supported me in the past will likewise support me in the future.
MS. MCNAMEE: That's all I have.
REPRESENTATIVE ALEXANDER: You have a question for Ms. Kanes, Senator?
SENATOR RUSSELL: No.
REPRESENTATIVE ALEXANDER: Thank you so much.
A. Thank you, sir.

TRANSCRIPT OF MS. KANES AT PUBLIC HEARING OF JANUARY 13, 1994:

MS. KANES - EXAMINATION BY MS. MCNAMEE:
Q. Ms. Kanes, you have been out of law school for seven years; is that correct?
A. That is correct. Is this better now?
Q. Yes. Talk up a little bit. And I read from your Personal Data Questionnaire that you have made several career moves. You have worked for the Senate in the Research office. You have been in the Spartanburg Solicitor's Office. You have been in private practice as an associate and a partner and now a Magistrate and then as now the Chief Magistrate and I ask you as I did one other person, do you see this move -- the desire to be an administrative law judge as a real commitment on your part to be there for the three years? Can you expand on that?
A. I intend to stay there if I am so fortunate to be chosen.
Q. What would you describe was the most important characteristic of judicial temperament of a good judge, one who is -- you have a lot of experience, so you can really speak to this.
A. I think every person deserves to treated with respect and I don't care what the person -- or who the person is or who they know, I think that every person that comes before you should be listened to and they should be given respect.

And I think as a judge sometimes particularly when there is a good bit of stress, the tendency is to move very quickly and forget that and I think having litigated and having tried so many cases, I learned that it is very important to treat people always with integrity and respect.

I think patience is also very important, particularly dependent upon the subject matter. If it is a difficult subject matter, again, and you're moving a lot of cases or you have deadlines, sometimes your -- because you have such a responsibility, you have to constantly fight the trend to cut a person off or to limit them. And I think that you as a judge have an absolute obligation to give every person that right.
Q. What are the skills that you bring to this job?
A. I have -- as I began the Senate Research, I can draft legislation. I can write regulations.
Q. Do you write regulations? Is that research?
A. Well, what I did, I did a little bit of work for one of the Senators, Tom Pope, and he had at that time a good bit of regulatory work that was coming before him and he would send it down to me. I would review them and then send it back and I guess I was not writing them, but I was editing them, so I'm very familiar with regulations from a promulgation standpoint.

With respect to drafting law, though, I did do a good bit of that work. There is one member of your board that I drafted legislation for specifically. The way it was in Senate Research, Senators would find people and they would send -- or it was my experience that they would send a good bit of their work to one person who was familiar with the subject matter.

From there I began litigation. I went directly into the Solicitor's Office. I prosecuted rape cases toward the end of my career. At the onset, I worked with Protective Services and I did primarily child abuse cases and I did a lot of courtroom work and then I went to civil litigation and tried cases before boards and agencies.
Q. Which ones?
A. ABC, Workers' Comp. Board. I did a little bit of regulatory work with DHEC. I worked with Assistant City Attorney Spencer King. He actually was the City Attorney for asbestos cases. They would deem me the Assistant City attorney and I would do some work. I was never the front on that. I was, however, the front on the ABC commission cases.

I tried I would say close to 200 cases before the Workers' Comp. Board. I went all the way appellate -- appellate work, appealed from there to the full Commission and likewise from there to the Circuit Court. I tried cases before the Court of Appeals and I've done two writs of certiorari which were denied at the Supreme Court, so I have done extensive litigation.

And then as Magistrate, when I took over there was a docket of over 2,000 cases. We have at this point 203 cases on the docket. That means that you have 2,000 plus jury trials which we disposed of in less than a year's period of time.

When I was given the position, I was also given the opportunity to go before our county council and they entitled me a certain amount of money and that money enabled me to do a restructure of that court system.

That restructure is what we're working under now and because of that restructure, we have a certain procedure that was not there before and if we can follow that procedure, we'll never have to work as hard as we have this past year.
Q. What is that procedure?
A. Essentially, we centralized both our traffic court as well as our jury dockets. When I say we centralized, we do have not judge shopping. We don't have, for instance -- some judges that people feel are easier on, say, officers, for instance, so they can't go to one area and just try their cases before the judge of their choice. We rotate judges in so that every person is given a fair shot.

Then with respect to the jury trials, what we do is we've had a marathon session, a two-day session, Monday and Tuesday session the last year. We never get a Monday or a Tuesday off. And we just -- what I do is I sit in front and I call -- Monday morning, we do what is called a voir dire, which is a series of questions that we pose to see if anyone has any predispositions on certain types of cases.

I have a gal that takes that and she comes up with a grid and all attorneys now come in and pick this grid up and then we have a session of court at 9:00 o'clock, 1:00 o'clock and 3:00 o'clock. We have three courtrooms functioning at full capacity. Those three courtrooms that are functioning because we are limited by our physical structure, we just hear cases at 9:00 o'clock, 1:00 o'clock and 3:00 o'clock and we don't stop and we go as late as we can, much like you all. We do this for two days.

After that we do Wednesdays, Thursdays and Fridays just bench trials and that's primarily what you would be doing -- or one would be doing as an administrative law judge.
Q. The kinds of cases that you would be hearing as an administrative law judge will probably be quite different than the cases you hear as a magistrate?
A. They will --
Q. How will you prepare?
A. Sure. They will be different, but my experience prior to becoming magistrate is very consistent with that. I think initially when I looked at the statutes under which the administrative law judgeships followed and the breadth of those statutes, I was a little concerned and then I pulled each of those statutes and started really delving as well as some of the regulations, pilotage, for example, taxation law. Those were two of the areas of my primary concern.

What I found is, for instance, with my domestic work, and I did some pretty extensive domestic work toward the end of my practice of litigation, I learned a lot or self-taught a lot because I handled quite a few very complicated cases. So I guess my point is I think that when you delve into something, you can learn it. That was the text.

The pilotage is the one area that I think is not on my forefront, however, I think that I can learn it quickly.
Q. Did you say pilotage?
A. The waterways, the coastal area.
Q. Oh, so you're talking about the Coastal Council kind of --
A. That's right.
Q. You own a good deal of stock, as I understand, for instance, some hospital stock, drug stocks, how will you handle any kind of issues that might come up before you as an administrative law judge?
A. I believe that we have an absolute imperative position of having no appearance of impropriety so much so that I recuse myself if I ever feel that there is a question of anything because I believe that one's integrity is the only thing we are carry.

If I ever thought that what I was handling in terms of my court case would in any way impart any type of impartiality on what I was doing, I would recuse myself. There would be no question.
Q. You have a -- you've lived in Spartanburg for quite a long time now. Does it matter to you that the office of the ALJs would be down here in Columbia? How will you handle that?
A. It does not matter to me.
Q. Will you be down here?
A. Certainly. I'll be wherever I'm sent.
Q. Do you have any tax liens or any other indications of financial trouble?
A. No, ma'am. I do not.
Q. What do you do presently when lawyer legislators appear before you --
A. In terms of what?
Q. -- in Magistrate's Court? Well, I guess --
A. Do I pay them deference, is that the question?
Q. Well --
A. No. No.
Q. Does anything different happen?
A. Absolutely not.
Q. Has it happened? Have you had them?
A. I'll tell you what, when I came there -- there was such a lax atmosphere. The police officers would come back behind our panels and they would sit and chat with our staff and it appalled me because I think this appearance of impropriety is absolutely integral to having people respect the judiciary and so I asked that they remove themselves.

I pay absolutely no preference to any person regardless of their position, regardless of their color, regardless of their sex. I think that every person needs to be treated exactly the same.
Q. Have you ever been found in contempt by a court? Would you go into that quickly.
A. Sure. My second year of private practice, I tried a case before Judge Mendell Rivers. There was at that point a Family judge that had an edict that said if you exceeded 30 minutes, you were to request a pretrial. I went over four minutes. It was 34 minutes and 22 seconds, I believe and, I was cited for contempt.

It was brought to the Supreme Court and it was vacated and in the Supreme Court order, Justice Toal said that you could not adjudicate on a time clock and that it was overly broad and unfair.
Q. Not only did they vacate it, but they sort of created a standard there --
A. There was -- yes, ma'am. There was found to be no wilfulness in it and, frankly, it was -- I think it was an interesting experience.
Q. Especially a couple of years out of law school?
A. Yes.
Q. Have you ever been the subject of a disciplinary action arising out of any public employment?
A. No. I believe this is in the packet and it didn't come out. I was a little surprised in the packet that was -- or what was read initially. There was one gentleman that brought a grievance against me particularly -- specifically against me as a judge.

The case was one where he was suing for malicious prosecution against another person and the -- it was dismissed. They said that there was no merit to it. That it was a legal issue that he had and he never appealed, but that was brought and it was never documented by the Supreme Court.
A. Or by Court Administration, excuse me.
THE CHAIRMAN: Questions from the Members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Have you ever heard of the term Robitis?
A. Robitis?
Q. It's where the robes on a judge become so heavy, it scrambles their brains and --
A. Yes, sir, I actually have heard of that term. Chief Justice Harwell uses it. He says heavy of robe.
Q. Based on that experience you had, it sounds like to me, you've been a victim of it.
A. I can tell you this, I think the best way to treat people very well is to be beaten up yourself. I hate to say it, but I believe that. I think had I not had the experiences that I had, perhaps I would not try so hard to be as clean as I can be.
Q. Thank you.
THE CHAIRMAN: Other questions? Mr. Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. I notice from your resume, you were in private practice prior to becoming a magistrate?
A. Yes, sir.
Q. I'm really interested and I'm not criticizing magistrates, but let me say that up front, but how did you decide to leave a private practice to become a magistrate? I'd like to know that.
A. When I was approached the first time, I laughed. Literally, I laughed. I laughed. And I went back to my office and I began thinking about it and perhaps it's not very wise to say this, but I have always wanted to be a judge.

That's just something -- I think each person has a characteristic or a trait or something that we feel very comfortable with. Some people it's a very traditional home life, some people it's -- I don't know. This was something that I really, really felt comfortable with and -- or wanted to do and I knew likewise that the Magistrate's Court had some problems and it was a challenge. And I thought it would be a new challenge to see if it would -- if it could work.
Q. Have you been happy with the work?
A. Yes, sir, I have. We have -- and I say this not lightly, we have a great group of people. We have four full-time magistrates and eight part-time magistrates. And they are a very, very solid group of people and I can -- there is one thing I'm really proud of, they're just a really great group of people and they've bonded and they work well together.
Q. Would they hate to lose you?
A. I'd hate to lose -- there is a part of me frankly, and I don't know if I'm going to be given that opportunity, sir, but there is a part of me that's a little sad actually, yes.
THE CHAIRMAN: Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q. Judge Kanes, you have just concluded a hearing and one of the attorneys that appeared before you asked you to go to lunch with him, how would you react to that?
A. I don't go to lunch, sir.
Q. What about if it was a friend that you had known for a long time?
A. If it was a nonattorney and they were in town then I would, but I never eat lunch with attorneys.
Q. But you do eat lunch?
A. I --
Q. To correct your statement you never eat lunch?
A. If it was -- Senator Russell, if it was someone from out of town that called in and said, "Karen, I'm coming into town, do you want to go to lunch?" And it didn't conflict, sure, I would, but I really don't as a practice eat with my colleagues.

And that's not to say I don't have friends on the Bar, because I do. I'm crazy about the Spartanburg Bar. I just as a practice don't eat lunch. It takes a very, very special occasion for me to go to lunch with people.
THE CHAIRMAN: Judge, what's the biggest challenge you think the administrative -- the panel of three that we elect of administrative law judges will face in the first 60 days of its practice?
A. I think it's twofold. I think everything that can work effectively revolves around money and I think the first thing that has to be decided is where and how much funding is going to be granted.

I understand the positions themselves have been funded, but I think a lot -- you have to know what your base is in order to start creating something. Secondly, whoever leads this is going to have to be very, very good at molding people because I think if it's not done properly, it will be fragmented and if there is a fragmentation from the onset, I don't know how successful this can be.
THE CHAIRMAN: Thank you very much. Other questions from the members? Thank you, Judge.

END OF PRIOR TESTIMONY OF MS. KANES.

REPRESENTATIVE ALEXANDER: Next is Tripp Anderson. That's good. Right there.
RALPH K."TRIPP" ANDERSON, III, having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: Have you had a chance to review your Personal Data Questionnaire?
MR. ANDERSON: Yes, sir, I have.
REPRESENTATIVE ALEXANDER: Is it correct?
MR. ANDERSON: Yes, sir. There is one minor change.
REPRESENTATIVE ALEXANDER: Okay.
MR. ANDERSON: And one of the minor jobs that I had was prosecutor for the Medical Board. The Medical Board now comes under the auspices and jurisdiction of the LLR, Labor, Licensing and Regulation Board now. So the Attorney General's office is not having part of the staff doing the prosecutions, although I am acting as a hearing officer on occasions now. So I've gone from being prosecutor to being advisor.
REPRESENTATIVE ALEXANDER: Is there any objection to making this Summary and what you just added a part of the record of your sworn testimony?
MR. ANDERSON: No, sir.
REPRESENTATIVE ALEXANDER: It shall be done at this point in the transcript then.

1. Ralph K. "Tripp" Anderson, III
Home Address: Business Address:
321 Fallen Oak Drive P. O. Box 11549
Columbia, SC 29223 Columbia, SC 29211

2. He was born in Florence, South Carolina on October 13, 1959. He is presently 34 years old.

4. He is married to Janet LeVeque Anderson. He has no children.

5. Military Service: N/A

6. He attended Francis Marion College, August, 1976 to August, 1980; Bachelor of Science; and the University of South Carolina School of Law, August, 1981 to May, 1984, J.D.

8. Legal/Judicial education during the past five years:
In the past five years, he has focused his continuing legal education on trial advocacy, administrative law and criminal law.

9. Taught or Lectured:
S.C. Bar CLE - "Hiring and Firing" (lectured on employment law)
S.C. Bar CLE - "Ethics Act" (lectured on the Ethics Act)
Instructed the Supreme Court legal staff on the Ethics Act (January 5, 1993)

12. Legal experience since graduation from law school:

When he began working at the Attorney General's Office, his responsibilities encompassed the full-time extradition functions in the Criminal Division.

In time, and at his request, he was given additional work and transferred to the Prosecution Section, where he handled prosecution duties as well as his extradition duties. Thereafter, he also took on the responsibility as Counsel to The Ethics Commission.

With the passage of the Statewide Grand Jury Act, he occupied two offices, one in the Prosecution Section and one in the Statewide Grand Jury Section.

Afterwards, he left the Grand Jury Section to return to the Government and Civil Litigation Division/Prosecution Section, where he presently performs the following duties:
(1) Criminal Prosecution
(2) Counsel to the Ethics Commission
(3) Committee Attorney for the State Employee Grievance Committee
(4) Extradition
(5) Prosecutor for the Engineering and Land Surveyor's Board
(6) Medical Board Prosecutions, Attorney (General Opinions and Criminal Appeals, on occasion)

13. Rating in Martindale-Hubbell: He does not know if he is listed in Martindale-Hubbell. He has never requested to be evaluated by Martindale-Hubbell since he is a state employee.

14. Frequency of appearances in court:
Federal - none
State - 20 times a year
Other -

15. Percentage of litigation:
Civil - 75%
Criminal - 25%
Domestic - None

16. Percentage of cases in trial courts:\
Jury - 25%
Non-jury -75%

Chief Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) State v. Dwight L. Bennett. This was a felony DUI case in which the victim suffered horrible physical injuries and lost the baby she was carrying. This case was used as an example as to the need to increase felony DUI punishment.
(b) Georgia v. Richard Daniel Starrett - a'ffd., Richard Daniel Starrett v. William C. Wallace. Starrett was convicted of several heinous crimes in South Carolina. Afterwards, George sought his extradition in an attempt to convict him under the death penalty. Starrett challenged the Attorney General's Office authority to hold extradition hearings.
(c) State v. Michael Goings. Goings was a Cayce police officer charged with assault and battery of a high and aggravated nature.
(d) State v. Herbert Pearson and Terrance Singleton. The Defendants in this case were accomplices in the armed robbery, attempted murder and murder of attendants at an Exxon station.
(e) State v. William Keith Victor. After the Defendant was convicted of murder and kidnapping, he was given the death penalty. His case was later reversed on appeal and sent to the Attorney General's Office. This prosecution, under difficult circumstances, resulted in the Defendant's plea to murder and the aggravating circumstances of kidnapping.

18. Five (5) civil appeals:
(a) Bergin Moses Mosteller v. James R. Metts
(b) Dennis G. Mitchell v. State of SC
(c) Ex Parte, Bobby M. Stichert v. Carroll Heath
(d) Patrick C. Lynn, et al. v. State of SC
(e) Paul David Tasker v. M. L. Brown, Jr.

22. Public Office: Assistant Attorney General since 1985.

24. Unsuccessful Candidate: Administrative Law Judge, Seat #3, February 23, 1993

23. Employment As a Judge Other Than Elected Judicial Office:
State Employee Grievance Committee Attorney (quasi-judicial). Since 1989, he has served as a committee attorney for the State Employee Grievance Committee. Section 8-17-340, S.C. Code Ann. (1976) provides that "The committee attorney shall determine the order and relevance of the testimony and the appearance of witnesses, and shall rule on all motions and all legal issues. The parties shall be bound by the decisions of the . . . committee attorney insofar as such hearings are concerned.

25. Occupation, business or profession other than the practice of law:
Self-employed salesman - March 26, 1980 to August, 1980
Florence School District #1 - Summers (1973-1975)

39. Expenditures Relating to Candidacy:
Currently, no expenditures have been made.

44. Bar Associations and Professional Organizations:
South Carolina Bar Association

45. Civic, charitable, educational, social and fraternal organizations:
S. C. Policy Review Committee for S. C. Vocational Rehabilitation
46. Although he lives and works in Columbia, for demographic purposes, he is running as a resident of Florence County.

47. Five (5) letters of recommendation:
(a) Jack Montgomery, Vice President/City Executive
First Union National Bank
P. O. Box 728, Columbia, SC 29202
251-4449
(b) Richard C. Jones, Esquire
Jones & Seth
P. O. Box 1268, Sumter, SC 29151-1268
778-1006
(c) John R. Lincoln, Pastor
Shandon Baptist Church
819 Woodrow Street, Columbia, SC 29205
799-0652
(d) Gary R. Baker, Executive Director
State Ethics Commission
P. O. Box 11926, Columbia, SC 29211
253-4192
(e) Donald J. Zelenka
Chief Deputy Attorney General
P. O. Box 11549, Columbia, SC 29211
734-3660

The Board of Commissioners on Grievances and Discipline reports no formal complaints or charges of any kind have ever been filed against you. The records of the applicable enforcement agencies -- let's see, we have a note here that Mr. Anderson lives in Columbia, but claims Florence as his legal residence. Both counties and cities have been checked. Richland and Florence County Sheriff's Office are negative. Columbia and Florence City Police Department are negative. SLED and FBI records are negative. The Judgement Rolls of Richland and Florence County are negative. Federal court records are negative. No complaints or statements were received. No witnesses are present to testify. Do you care to make any other statement before we proceed?
MR. ANDERSON: No. I waive making a statement.
REPRESENTATIVE ALEXANDER: Thank you, sir. Sue.
MR. ANDERSON - EXAMINATION BY MS. MCNAMEE:
Q. Hello, Mr. Anderson.
A. Hello.
Q. Aside from your statement about the Medical Board, is there anything else or any other changes in your status that you think this committee ought to know about?
A. No. None.
Q. We show a filing -- actually, it was in February with the Ethics Committees of the House and the Senate and none with us. Is that -- it was a minimal amount, $6?
A. Yes.
Q. Have you expended any more money on this campaign?
A. I haven't expended any money on this particular race.
Q. Uh-huh.
A. For Seat 6.
Q. And when you do, you will file it with Ms. Satterwhite?
A. Yes.
Q. Thank you.
A. I certainly will.
Q. Have you sought the pledge of a legislator prior to completion of this screening?
A. No, I haven't.
Q. Have you authorized anyone else to solicit or seek a pledge of a legislator's vote on your behalf?
A. No, I haven't.
Q. Do you know of any other pledges?
A. No.
Q. Or any solicitation or pledges?
A. As Ms. Kanes stated earlier, I certainly think that I have support and the people will support me in this race, but no one that I know of has sought a commitment or a pledge of any kind.
Q. Is there anything else that you would like to tell us?
A. No.
REPRESENTATIVE ALEXANDER: Do you have a question, Senator?
SENATOR RUSSELL: That's all right.
REPRESENTATIVE ALEXANDER: Thank you so much, Tripp.
A. Thank you very much.

TRANSCRIPT OF TESTIMONY OF MR. ANDERSON AT PUBLIC HEARING OF JANUARY 13, 1994:

MR. ANDERSON - EXAMINATION BY MS. MCNAMEE:
Q. Mr. Anderson, this is not a trick question or anything, but who is your role model for a judge who has good judicial temperament, because at least one person will be reading this transcript?
A. I think the obvious answer would be my father, but there is another and I'll address him, and that's John Hamilton Smith. I have a lot of respect for him, his temperament. He's a fair judge who is erudite on the law and I was always impressed by him.
Q. What are the particular qualities that you think an administrative law judge needs to have?
A. Senator Jennings wrote an article on administrative law judges in the, I think it was the South Carolina Trial Lawyers, and in there he described the driving force behind the Administrative Law Division and its enactment, was the need for professionalism, consistency in the rulings and efficiency, the perception of impartiality and independence, and the final one was actual fairness.

And I thought that encompasses real well the need of what an administrative law judge -- of what an administrative law judge needs to be. But it also has, I think, an interesting intellectual type of approach to the way he used each one of those words and what they really mean.
Q. You have, with the Attorney General's Office, been responsible for working with the Ethics Commission; isn't that correct?
A. Yes.
Q. What is your administrative law experience in the AG's office?
A. As counsel for the Ethics Commission would be one, and I've also been a prosecutor for the medical board cases, for engineering and land surveying board cases. I'm the Governor's Extradition Hearing Officer and I'm the committee attorney for employee grievance hearings.
Q. And, on the average, how many hearings every month are you involved in? Or every week?
A. It would be -- it would be about two every other -- or two or three every other week. That would be the easiest way for me to put it.
Q. This position of ALJ Number Three is a bit unique. How would you describe it?
A. By unique you mean --
Q. Well, it's a little different --
A. -- only one year?
Q. Yes.
A. I would think that it would -- obviously, if someone wants this job they would want it for one -- more than one year. So it would be unique in that hopefully you would do a quality service of one year and, therefore, come back before this body of the legislator -- legislators and demonstrate that you've done good work and should be renominated again or be reelected.
Q. How would you prepare yourself for those areas that you are not very familiar with? Let's say DHEC or let's say those kinds of contested cases.
A. Get the law down, read it, research it. Especially when you know a case is coming before you and you know the subject matter, research that particular area, make sure that you're knowledgeable on the law.

I think the best approach would obviously be -- we, the Administrative Law Division needs to get together and develop training that encompasses the whole wide area of all the administrative law judges and -- a CLE type concept. And then for specific matters that come before you, then that's where you need to specifically get the statutes and case law down concerning that particular matter.
Q. Will you tell this committee about your work habits, your work ethics?
A. I think my work habits are, I work long hours, I take very few vacations and I take my work very seriously.
Q. Why do you want to be an ALJ at this point in your career?
A. As a committee attorney for employee grievance cases, I enjoy that. I act as a judge. It equates out in a judicial capacity because I rule on evidence and all the motions, and I enjoy administrative law.
Q. How do you separate your job with the state government from this effort?
A. I have -- anytime that I've worked on the ALJ position I've done it at home. I've even tried to avoid using the phone at the office at all. I may have used it two or three times at the office during a lunch hour type period, but I've even avoided receiving or using the phone at all -- the state phones at all.
Q. Have you ever been held in contempt or sanctioned by any court?
A. No.
Q. Have you ever been the subject of a disciplinary action arising out of your public employment?
A. I had one fellow file a letter against me, a Charles Rouse (phonetic), but that letter was dismissed by Doctor
-- or Dan Byrd (phonetic), as Chairman, before it went any further.
Q. In your work at the Attorney General's Office, has there ever been an occasion for you to be disciplined in that work?
A. No.
THE CHAIRMAN: Thank you.
THE CHAIRMAN: Yes. Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. Have you ever been disciplined by a judge any time during your life?
A. By my father.
THE CHAIRMAN: Other questions? Thank you very much, Mr. Anderson.

END OF PRIOR TESTIMONY OF MR. ANDERSON.

REPRESENTATIVE ALEXANDER: Yes, sir. Ray? Ray Stevens.
RAY NELSON STEVENS, having been duly sworn, testified as follows:
REPRESENTATIVE ALEXANDER: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. STEVENS: Yes, I have.
REPRESENTATIVE ALEXANDER: Is it correct?
MR. STEVENS: Yes, sir.
REPRESENTATIVE ALEXANDER: Does it need any clarification, I don't suspect?
MR. STEVENS: No, sir.
REPRESENTATIVE ALEXANDER: Is there any objection to making this Summary a part of the record of your sworn testimony?
MR. STEVENS: No objection.
REPRESENTATIVE ALEXANDER: It shall be done at this point in the transcript.

1. Ray Nelson Stevens
Home Address: Business Address:
77 Middle Creek Road S. C. Attorney General's Office
Irmo, SC 29063 Tax Division
P. O. Box 125
Columbia, SC 29214

2. He was born in Toccoa, Georgia on October 7, 1949. He is presently 44 years old.

4. He was married to Janice Louise Shapiro on December 22, 1973. He has three children: Ryan Nelson, age 16; Alan Austin, age 12; and Leah Suzanne, age 5.

5. Military Service: N/A

6. He attended the University of South Carolina-Aiken, 1967-1969, Associate Degree in Business; the University of South Carolina, 1969-1971, B.S. in Accounting; the University of South Carolina, Engineering Graduate School, 1971-1972 (left for full-time employment with Internal Revenue Service); the University of South Carolina, graduate school (part-time), 1973-1975, M.B.A.; the University of South Carolina School of Law, 1975-1978, J.D.; and William and Mary School of Law, 1979-1980, Master of Law in Taxation.

8. Legal/Judicial education during the past five years:

June, 1989; Federation of Tax Administrators; General review of state and local tax litigation and legislation; 12.25

October, 1989; National Institute on State and Local Taxation; Review of state and local litigation and legislation; 11.5

January, 1990; Keys to Effective Trial Advocacy; Trial techniques; 6.0

May, 1990; Appellate Practice in South Carolina; Review of appellate practice and techniques; 6.5

January, 1991; Supreme Court Practice Seminar; United States Supreme Court practice and techniques; 9.75

March, 1991; Legal Ethics; Ethics in advertising, solicitation, and conflicts of interest; 6.0

March, 1992; Civil and Criminal Litigation; Review of civil and criminal litigation in state and local taxation; 2.5

August, 1993; Government Duties; Restructured state government and the state of administrative law; 6.0

September, 1993; Civil Law Update; Administrative Procedures update, 1993 Restructuring Act; 3.0

October, 1993; Southeastern Attorneys Conference; Tax cases and legislation of concern for southeastern states; 8.0

9. Taught or Lectured:
A. Law Related Courses Taught
1. Taught Fundamental of Federal Tax at Midlands Technical College for one semester; basic course in taxation of partnerships, corporations, and estates
2. Guest lectures at USC Law School in Professor Quirk's State and Local Tax classes:
a. Duties and functions of county officials in property taxation;
b. Taxation of railroads under Federal A-R Act
B. Lecturer at Bar Associations
Presentations to the Greenville County Tax Bar:
1. Remedies and Procedures for Suits Against State Officials
2. Administrative Procedures Before the South Carolina Tax Commission
C. Continued Legal Education Lectures
1. Federation of Tax Administrators: Lecture on the use of the Civil Rights Statute of 42 USC Section 1983 in state court to recover tax funds
2. Southeastern Association of Tax Attorneys:
a. Lecture on problems with collecting taxes while a party is in bankruptcy under an automatic stay of collection
b. Lecture on nexus and jurisdiction of South Carolina over businesses incorporated as Delaware Holding Companies

10. Published Books and Articles:

"Unwanted Assets Spun Off Prior to Acquisition of Wanted Assets," 1980 South Carolina Bar publication

"The Use of Title 42 USC Section 1983 in State Tax Litigation," 1988 REVENUE ADMINISTRATION, page 63

"Delaware Subsidiaries Can Still Reduce Tax But More Planning Needed," March/April 1992 THE JOURNAL OF MULTISTATE TAXATION, page 4

12. Legal experience since graduation from law school:

1978; Stophel, Caldwell, Heggie (Chattanooga, TN; now known as Caldwell, Heggie & Helton); General corporate practice with emphasis on taxation

1979; United States Internal Revenue Service; Examination of Federal estate and gift tax returns as an Estate and Gift Tax Attorney

1980 to present; Chief Deputy Attorney General, Director of Tax Division of SC Attorney General's Office; Issuance of Attorney General opinions; advise Commissioners of Dept. of Revenue on all administrative hearings in tax and ABC; advise county and municipal officials on budget, school and finance matters; litigation and defense of State at all levels from administrative hearings to trial in state and federal courts including S. C. Supreme Court and U. S. Supreme Court

13. Rating in Martindale-Hubbell: not rated; not in private practice

14. Frequency of appearances in court:
Federal Court Appearances from 1989 to present
1. Federal District Court - two times
2. U. S. Supreme Court - three times; once on brief in chief; twice on brief in Opposition to Petition for Writ of Certiorari
State Court Appearances from 1989 to present
1. Trial Court - 21 times; 10 appearances with case settled before trial; 11 appearances with trial conducted
2. S. C. Court of Appeals - 3 times; once as primary attorney; twice as secondary attorney
3. S. C. Supreme Court - 12 times; 8 times as primary attorney; 4 times as secondary attorney
Other: Administrative Hearings from 1989 to present
1. S. C. Tax Board of Review - twice
2. South Carolina Tax Commission - 75 (average 15 a year) as advisor to the Commissioners; one time representing a party

15. Percentage of litigation:
Civil - 100%
Criminal -
Domestic -

16. Percentage of cases in trial courts:
Jury -
Non-jury - 100%
Sole counsel with other attorneys in office listed in name only on the pleadings

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Spencer v. South Carolina Tax Commission, 316 S.E.2d 386 (South Carolina Supreme Court May 15, 1984). This case determined that 42 USC Section 1983 could not be used in state court to recover taxes paid and correspondingly denied attorney fees normally available under 42 USC Section 1988.
(b) Reyelt v. State of South Carolina (United States District Court 6:93-1491-3). This suit will determine the constitutionality of the regulation of video poker in South Carolina with the attacks based upon vagueness, free speech, involuntary taking, impairment of contract, equal protection, commerce clause and privileges and immunity claims.
(c) Geoffrey v. South Carolina Tax Commission (South Carolina Supreme Court
July 6, 1993). This suit determined that the use of an intangible (trademark) in South Carolina subjected the owner of the intangible to income taxation even though the owner has no physical presence in South Carolina. Further, such taxation does not violate Due Process or the Commerce Clause.
(d) Lowenstein v. South Carolina Tax Commission, 378 S.E.2d 272 (South Carolina Court of Appeals May 12, 1989). This suit determined that the payee of interest income is taxable on such interest income where the income is part of the taxpayer's unitary business. Accordingly, Due Process is not violated by such taxation.
(e) Gaston Copper v. South Carolina Tax Commission (trial level; Lexington County, Case No. 92-DP-32-0503). This case determined that the FOIA does not prevent disclosure of confidential contract documents and pollution investigation documents when such are given to the South Carolina Tax Commission as part of an attempt to reduce a property tax assessment.

18. Five (5) civil appeals:
(a) Geoffrey v. South Carolina Tax Commission, ___ SC ___, ___S.E.2d ___ (South Carolina Supreme Court July 6, 1993)
(b) South Carolina Tax Commission v. South Carolina Tax Board of Review and Collins Music Company, 305 SC 183, 407 S.E.2d 627 (South Carolina Supreme Court May 6, 1991)
(c) Thayer v. South Carolina Tax Commission, 307 SC 6, 413 S.E.2d 810 (South Carolina Supreme Court January 13, 1992)
(d) NCR v. South Carolina Tax Commission, 304 SC 1, 403 S.E.2d 666 (South Carolina Supreme Court May 6, 1991)
(e) Lowenstein v. South Carolina Tax Commission, 298 SC 93, 378 S.E.2d 272 (South Carolina Court of Appeals March 13, 1989)

25. Occupation, business or profession other than the practice of law:
1972-1975; Internal Revenue Service; Revenue Agent; Greenville, South Carolina; examined individual, partnership and corporate tax returns

39. Expenditures Relating to Candidacy:
None to date

44. Bar Associations and Professional Organizations:
Member of Tax Section of South Carolina Bar; Past Chairman of the Attorneys & Appeals Section of the Federation of Tax Administrators, 1989; Member of South Carolina Association of Auditors, Treasurers and Tax Collectors

45. Civic, charitable, educational, social and fraternal organizations:
Past President and past Vice-President of Chapin Elementary PTO; Past Co-Chairman of the Budget Advisory Committee to School District Five of Lexington and Richland Counties; Past Vice-President of Shadowood Cove Civic Association

46. Deacon at First Baptist Church of Columbia, South Carolina; Sunday School teacher of an adult class; service, as an officer and as a member, on numerous committees such as Endowment Committee, Revival Committee, Budget Planning Committee and Stewardship Committee

47. Five (5) letters of recommendation:
(a) Shirley Hightower, Branch Manager
Southern National
P. O. Box 687, Columbia, SC 29202
251-3184
(b) Joe L. Allen, Jr., Esquire
109 Windsor Point Road, Columbia, SC 29223
788-3888
(c) Dr. Wendell R. Estep
First Baptist Church of Columbia
P. O. Box 1000, Columbia, SC 29202
256-4251
(d) S. Hunter Howard, Jr.
South Carolina Chamber of Commerce
Suite 1810, 1201 Main Street, Columbia, SC 29201
799-4601
(e) Honorable Robert E. McNair
McNair & Sanford
P. O. Box 11390, Columbia, SC 29211
799-9800

The Board of Commissioners of Grievances and Discipline reports no formal complaints or charges of any kind have ever been filed against you. The records of the applicable law enforcement agencies: Richland County Sheriff's Office are negative; Columbia City Police Department are negative; SLED and FBI records are negative. The Judgement Rolls of Richland County are negative. Federal court records are negative. No complaints or statements were received. No witnesses are present to testify. Would you care to make a statement?
MR. STEVENS: I'd like to just make a short one.
REPRESENTATIVE ALEXANDER: Proceed, please.
MR. STEVENS: Thank you very much. As this body certainly knows, as the General Assembly is well aware, the Department of Revenue's hearings functions are going to disappear come February, it's the first of next year. It is my intent to offer myself in Seat Number 6 because of that expertise.

I certainly recognize that the Administrative Law judges will carry on other functions in addition to taxes, but with a new entity being created with little or no expertise in the tax area, it would be my belief that it would be beneficial both to the state as well to as to the citizens to have someone with that expertise.

And just by way of example, and I will not belabor this point, we have numerous cases that come before the Department of Revenue that involve some rather complicated tax matters. I will give you only one example as an issue. Recently we've had a matter come before the Department of Revenue which involved a purchase of a -- purchase price of three billion dollars. The transaction involved 90 corporations. The issued turned on the interpretation of some complicated rules dealing with consolidated returns. The taxes that the taxpayer claims it does not owe is around four million dollars. That is for a single transaction. Those are the kinds of cases that the Administrative Law judge is going to be faced with. My background is in that area.

I have a master's degree in Tax Law. I have a master's degree in Business Administration. Obviously, I have my Law degree and I have a bachelor's degree in Accounting. In summary, I think I am a courtroom veteran. I have been in every court almost in this state, in the Federal District Court, Court of Appeals, the South Carolina Supreme Court, our Court of Appeals in our state and have argued in the United States Supreme Court. I think the ALJ needs to have the ability to communicate well.

I hope that I have those attributes and I have argued cases before a lot of judges. We have been fortunate enough to have been successful more often than not. I leave that with you as a summary and am happy to answer any questions that you may have.
REPRESENTATIVE ALEXANDER: Proceed.
MR. STEVENS - EXAMINATION BY MS. MCNAMEE:
Q. Mr. Stevens, good afternoon.
A. How are you?
Q. Is it all right with you if we -- aside from this statement incorporate your transcript from the previous screening --
A. No objection.
Q. -- at this point?
A. No objection.
Q. And to, I guess, elaborate on a couple of points that I don't think I covered with you previously, what is your philosophy of the question of ex parte communication?
A. I think other statements you've heard are accurate today. Ex parte communications are prohibited. It -- even under the best of circumstances -- for instance, when an individual comes in unrepresented by counsel and that individual wishes to get some advice or guidance, even about general procedures, it gives the appearance of impropriety if the judge is discussing an ongoing case with an unrepresented litigant, even if they're talking about procedural matters that could hypothetically be construed as not pertaining to the case that may come before the judge.

I think you have to be very careful about the appearance of impropriety and, therefore, I would think ex parte communications would be prohibited in almost all cases.
Q. Would that carry over into procedural questions as well as substantive questions?
A. So long as it was an ongoing case before that judge, yes, it would. If you had a member of the citizenry to call up who did not have a case, but who, in fact, may have anticipated a case coming and they're wanting to know if I end up before an Administrative Law judge, what procedures do I follow, I think can you answer that question by sending them a copy of the Rules and I don't believe there is any problem with that.

The line that I would draw would be a case which has already begun, no communication should be made with either side without the presence of the other side.
Q. And while we have talked about this previously, let me ask you now since you bought up the case which involves four million dollars worth of income for the state, what would you do in that case if you were elected ALJ and more of those proceedings were before you?
A. All right. Well, if it was matter for which I had substantial involvement in while I was advising the Department of Revenue, obviously, a recusal would be necessary. I do not believe that information that an individual has derived by way of his practice, I do not believe that you should recuse yourself from all cases in which those issues may come before you. That would be tantamount to asking a person to dismiss their knowledge simply on the basis that there may be an improper administration.

In other words, a recusal should not be used to the detriment of the parties. Recusal should be used for the benefit of the parties.
Q. Are you still maintaining the same wall between your work for the State and your campaigning for this?
A. Yes, any opinion requests that come to the Attorney General which I normally would answer, I do not answer those. Those go to other parties.
Q. And what is your knowledge and philosophy about the Judicial Canons as they relate to gifts?
A. I think the best rule is that gifts are prohibited. If you have a party who is before you, I think a gift is adequately defined as anything of value. Judges simply should not accept gifts.

When you come to situations like lunch, again, I think the appearance of impropriety is as important as the impropriety itself. It would be in my view that a judge would be ill-advised to go to lunch with litigants in a case.
Q. Since your last screening and in addition to the statement which you have made to the committee, are there any changes in your status or anything that you would like to tell this committee?
A. No. I think the prior status is accurate.
Q. Have you sought the pledge of a legislator prior to the completion of this screening process?
A. No, I have not.
Q. Even if that pledge which might have been sought was conditional upon being found qualified by the screening committee?
A. I have no such pledge.
Q. Have you authorized anyone else to talk to anyone or to solicit or seek pledges from --
A. I have not authorized anyone. I will echo the comments that others have made. It is quite logical that once having entered a race and certainly having gone down to the actual vote and I have no commitments. I have no reason to believe that those same individuals who vote for me again. There have been no discussions with those individuals about them voting for me again.

I have hopes that when the time comes that I will be able to talk with them and that the same results may occur with those individuals. But I have not solicited any of those votes nor have I received any commitments from any of those individuals.
Q. Thank you. And we do not show that you have expended any money on the campaign for this race?
A. That is correct. I have mailed one letter. I am well below the $100 limitation. When I reach that point, I will be happy to file the necessary documents.
Q. Thank you very much.
REPRESENTATIVE ALEXANDER: Do you have a question?
SENATOR RUSSELL: No.
REPRESENTATIVE ALEXANDER: Thank you, sir. Appreciate that.
A. Thank you.

TRANSCRIPT OF TESTIMONY OF MR. STEVENS AT PUBLIC HEARING OF JANUARY 13, 1994:
MR. STEVENS - EXAMINATION BY MS. MCNAMEE:
Q. Mr. Stevens, your PDQ states that on the average of 15 times a year, you are involved in hearings of the Tax Commission as the advisor to the commission -- to the commissioners, I assume. Would you please explain that role?
A. What we do is when a matter comes before the now Department of Revenue, a hearing is set up and notice is given to the Attorney General. It comes to my section and I will assign an attorney to act as advisor to the commissioners.

The number that you have before you is during a time period where I myself was acting as a advisor to them and on average 15 is probably low. It just depends on how many hearings they have.

During the course of the hearing, once it's concluded and the commissioners begin their deliberations, more often than not we are asked for our thoughts and usually what we do is give pros and cons of each position and they make their decision and we write a finding or what we call a finding for them. And the finding would consist of findings of facts, conclusions of law and then an order of the Department of Revenue.
Q. Who is representing the Tax Commission at this time?
A. Who is representing?
Q. Representing -- yes, the Tax Commission.
A. A division of the Department of Revenue will bring the case. Of course, the taxpayer is either representing himself or an attorney and then the commissioners hear it and then we advise when they ask us.
Q. In your opinion is it important that administrative law judges have a specialty of knowledge --
A. Well, I think the short answer is no because the idea behind the administrative law judge is that they become something of a specialist in an area of administrative law. It's not absolutely critical that they already have a specialty in a particular area of law. I think it is helpful. I think it shows the ability to master at least a designated area of the law.

I think the more important criteria is whether or not the individual has enough exposure to administrative law, has demonstrated the ability to accomplish the mastery of administrative law and then apply that to all types of hearings, whether it's DHEC, Tax Commission or any of the appeals that may come from some of the licensing boards.
Q. How will you prepare yourself in the areas that you're not familiar with?
A. Well, I think the obvious thing to do is that we are fortunate in our state to be a code state and that is most of what we're looking act is statutory law. Most of the rules and regulations are by way of regulations which are annotated in the law.

A party should before you even take on a hearing of a particular type review the statutes, become familiar with the regulations. If there are court cases on it, it would behoove an individual to read them. I think you just have to immerse yourself in a particular area of law that you're going to be having a hearing on.
Q. Would you do that before the hearing --
A. Yes.
Q. -- as the --
A. Yes.
Q. If you were elected, how would you handle the Revenue Department cases that came up?
A. Well, I think initially I would have to recuse myself from any case that I had a substantial part in. As you know, it would be a year from now before tax cases do, in fact, reach the administrative law judge. Hopefully by that time any cases that I have had direct involvement in would either have been resolved or all of the ones that we'll be hearing hopefully would be new.

I think it probably -- initially, again drawing on the strengths of the judges, it probably would behoove the administrative law judges to have a person with expertise hearing those tax cases and that would be with the understanding that there was no conflict of interest.

In fact, probably what I would do is fully disclose at the time the hearing began that I had some input into that agency and if there was an objection to it, we would know that early on and assign another judge to it.
Q. How will you use or be bound by the previous decisions of the agencies in a previous era?
A. Well, those decisions, of course, are made by the agency and I believe the administrative law judges are that, they are administrative law judges. It is not the province of an administrative law judge to dismiss agency findings.

In fact, one of the primary duties of the administrative law judges will be to be sure that agencies do, in fact, apply their policies and procedures in a uniform fashion. If a position is taken which is contrary to their established position, it is the duty of administrative law judge to bring that the attention of the agency and correct them.

It is not a rubber stamp type of approach, but it is certainly a full awareness that administrative agencies do operate by rules and procedures and that is what governs us, all of us, as citizens when we appear before those agencies.
Q. We've haven't used this term yet, but would you say then that there is a role for stare decisis?
A. As you may know, our Supreme Court has told us that stare decisis is not a principle that applies to administrative hearings; however, they were quick to go on to point out that agencies could not on day one make a decision and then day two make a contrary decision, so I think they are bound in the terms of rational and reasonable decisions, but they are not bound by the strict terms of stare decisis.
Q. What was your most valuable administrative law experience and why?
A. My most -- I'm sorry the --
Q. Valuable? Valuable --
A. Yes.
Q. -- administrative law experience and why?
A. I guess initially it would be a matter which ended up in the US Supreme Court. We had what seemed to be a rather innocuous statute that taxed individuals a little differently in North Carolina than it did in South Carolina and while we certainly recognized we had some problems with the statute, the procedural questions overwhelmed the substantive ones.

By the time we finally got to court, the issue was whether or not a taxpayer could sue the state as a violation of civil rights for having taxed the person incorrectly. The reason for that is that the taxpayer, if he won would be able to recover attorney's fees.

When the matter finally resolved itself in the United States Supreme Court, unfortunately or fortunately, depending on how you look at it, that court split four to four and that upheld the lower court which was fortunately was in our favor, so the answer has not been -- the question has not been decided, but at least for South Carolina, we know what the law in our state is. So that was my most interesting one.
Q. Is it also your most difficult?
A. Yes, it was. There's a couple of war stories I could tell you, but I won't in the interest of time.
Q. Would you please describe your method of separating your work for the state and your efforts to obtain this ALJ position?
A. I've done two things. One is the obvious one, anytime I appear here or any place else where I am doing something to further the Administrative Law Judge position, I'm on annual leave. Secondly, we do have occasions where some legislators may need an opinion from our office and I have directed that all of those opinions go to someone else, not to me.
Q. And have you ever been held in contempt or sanctioned by a court?
A. No, I have not.
Q. And have you ever been the subject of a disciplinary action arising out of your public employment?
A. No, I have not.
Q. You have only been in public employment, is that correct, since you --
A. When I got out of law school, I was attracted to a law firm in Chattanooga, Tennessee. I was there for a year and then I was attracted back home to South Carolina.

It was a good firm. It was just a little too far away from parents and grandchild was currently new, so it was time to come back home. But I had been in private practice for -- I think it was right at a year or a little over a year with a Chattanooga law firm.
Q. Thank you.
THE CHAIRMAN: Questions from the members?
THE CHAIRMAN: Senator? Questions? Thank you very much, Mr. Stevens.
A. Thank you.

END OF PRIOR TESTIMONY OF MR. STEVENS.
REPRESENTATIVE ALEXANDER: Well, I believe that completes our candidates for this afternoon, but I think we should make a note that all the records will be kept open and with
the information being relayed to our chairman and should there be a need to get back in touch with you, we will do it.
MS. MCNAMEE: I just wanted to make the statement that -- Mr. Anderson, I wanted to make sure that you agreed that I could keep the -- or use the transcript from the last screening in your screening this time? I'm not sure I asked you that question.
MR. ANDERSON: You asked that.
MS. MCNAMEE: I did?
MR. ANDERSON: And I certainly agreed.
MS. MCNAMEE: Okay.
REPRESENTATIVE ALEXANDER: All right.
SENATOR RUSSELL: Mr. Chairman.
MR. ALEXANDER: Yes, sir.
SENATOR RUSSELL: One thing I want to talk about is, and just out of curiosity, and I'll just put it on the record.
REPRESENTATIVE ALEXANDER: Okay.
SENATOR RUSSELL: When the transcripts are printed into the Journal, are we going -- we're not going -- to create, take the old transcript from the previous hearing and put it in the new one. Can we just reference those back and save printing costs?
MS. MCNAMEE: Well --
REPRESENTATIVE ALEXANDER: I don't --
SENATOR RUSSELL: Have we discussed that matter?
MS. MCNAMEE: I think we have discussed it as staff and I don't think a decision has been made and the reason we thought it would be necessary or it would be helpful to do that is otherwise people are going to have to read two Journals.

They're going to have to have the Journal from February 10th and the Journal from whenever this is done in order to get a complete picture of these people. And it really only is nine, I think, members -- nine people for the ALJ slots and I don't know that it's going to be that much of them.
REPRESENTATIVE ALEXANDER: I really think it ought to be there because for the benefit of the candidate.
SENATOR RUSSELL: That's fine. I was just curious.
MS. MCNAMEE: Actually, there's --
REPRESENTATIVE ALEXANDER: A lot of people lose their Journals. Not me, but a lot of people do. Anything else that you want?
SENATOR RUSSELL: No, sir. I think that's it.
REPRESENTATIVE ALEXANDER: Well, I don't think we're supposed to adjourn. Do we want to go into recess or adjourn? What are we supposed to do? Let's go into recess. The next notice will be from Chairman Hodges at the call of the Chairman.
(There being nothing further, the proceedings concluded at 3:40 p.m.)

Findings of Fact

The Committee in its review and investigation of the candidates for South Carolina Supreme Court, Family Court and Administrative Law Judge seats conducted two full days of screening hearings based, in part, on extensive background research compiled by the Committee's legal and administrative staff. To ensure full public input, the Committee asked for the assistance of all print and electronic media in the state in advertising the judicial vacancies and the Committee's desire for citizens to appear before the Committee and offer testimony regarding any or all of the candidates.

Associate Justice of the Supreme Court.

The Committee was impressed with the dedication and continued service of The Honorable Ralph King Anderson, Jr., who has served as a circuit court judge for the past fourteen and one-half years. Judge Anderson is a frequent lecturer at continuing legal and judicial education programs and has served as an Acting Associate Justice of the South Carolina Supreme Court on several occasions. Judge Anderson is known for his hard work, with ten-hour work days being common. He testified that he reads the briefs and available information in preparation for cases he hears and is committed to staying with a matter, reaching a decision and producing an order. The Committee also appreciates his legal scholarship. Judge Anderson has compiled approximately 50 notebooks of resource material that he uses as a basis for consideration of every case. The Committee believes Judge Anderson holds a deep commitment to fairness and appreciates the decorum he maintains in the courtroom and his understanding of a judge's ethical considerations.

The Committee finds The Honorable Julius H. Baggett has served as a circuit court judge with distinction and honor for the past eighteen years. In his testimony he described several difficult cases over which he presided. In the opinion of the Committee, his experiences as a circuit court judge and occasional acting appellate judge will have prepared him well should he be elected to the Supreme Court. The Committee was impressed that Judge Baggett has faced the challenges posed by increasing case loads and the substantive changes in the law by becoming innovative with the use of computers in his courtroom.

Judge Baggett articulated a clear understanding of the ethical concerns facing a judge. He also demonstrated his concern that the record clearly reflect his thoughts on a question concerning rules of evidence which was asked of him. His letter to the Committee has been incorporated in this record.

At his April 26, 1994 screening, Judge Baggett was given the opportunity to make a statement to the Committee. It appreciates his elaboration on his use of computers and his belief that they are a very necessary tool for use in the court room.

One witness, Ms. Gail Hull, testified against Judge Baggett concerning the sentence he imposed on a defendant who pled guilty to the offense of obtaining property under false pretenses. Judge Baggett sentenced the defendant to three years imprisonment suspended on service of five years probation with six months of house arrest. Ms. Hull testified that this sentence was not sufficient punishment since the defendant had been prosecuted for similar acts many times previously, but imprisoned only once. Judge Baggett responded that as the sentencing judge he had been frustrated because the defendant had been charged with a minor offense for what he viewed as a major crime; that he had not accepted a nolo contendere plea but required her to plead guilty for this offense because of her previous record; and that he had considered as a key factor the medical evidence that the defendant was seriously ill and would require extensive medical treatment in the near future.

The Committee fully accepts Judge Baggett's explanation that he fashioned a sentence which would punish the defendant but not impose substantial liability on the State for the defendant's imminent medical treatment.

For the past ten years, The Honorable Randall T. Bell has served as a Judge of the South Carolina Court of Appeals. In that capacity, he has researched and written hundreds of opinions. Judge Bell has also taught numerous subjects as a law professor at the University of South Carolina. He continues to teach as an adjunct professor at the School of Law and as a lecturer at continuing legal education programs. Judge Bell has experience practicing law in both the public and private sectors, including a period of specialization in complex litigation and appeals.

The Committee considers Judge Bell to be knowledgeable of the law and highly intelligent, with outstanding analytical ability. Judge Bell graduated with honors from demanding legal education programs at Oxford University and Harvard Law School, and he reported that a confidential survey of the Bar in 1985 rated him the highest of all judges on the Court of Appeals with regard to knowledge and application of the substantive law and awareness of recent legal developments. As an attorney, he has successfully handled complex and novel issues, and as a judge he has authored scholarly opinions. The Committee also finds that Judge Bell's ethics are unassailable and his concept of judicial temperament is proper.

The Committee was impressed with the dedication and hard work exhibited by The Honorable E. C. Burnett in his thirteen years on the circuit bench. He has developed an expertise in computers and uses one in many ways to facilitate his work as a circuit judge. In conjunction with the Clerk of Court's office he has facilitated the local Bar's access to the Clerk's office by using a computer bulletin board system for communication concerning schedules and notices. The Committee is satisfied that Judge Burnett understands the precepts of the Judicial Canons and strives to uphold them.

The Committee is very impressed with the record of The Honorable J. Ernest Kinard, Jr. He has practiced law for twenty-four years and has been a circuit court judge for the past six years. Judge Kinard has served admirably as the Chief Administrative Judge for General Sessions court for two years and for Common Pleas court from mid 1992 until now. In these capacities Judge Kinard has experienced added pressure concerning the issue of ex parte communication and has developed an approach to this issue which he shared with the committee. His approach combines respect for the concept of avoiding ex parte communication on the substance of particular cases while maintaining some flexibility for procedural and scheduling issues which arise with great frequency for a chief administrative judge. The Committee appreciates his candor and thoughtful discussion of this issue.

Judge Kinard demonstrated a keen awareness of the rules of recusal and the ethical considerations surrounding social engagements. He thoughtfully discussed issues concerning maintenance of docket control in an urban court such as the use of computers by the judge, the use of one judge for all hearings in complex cases and an expanded role for alternative dispute resolution. He spoke from experience as he has used these techniques himself.

Two witnesses testified concerning Judge Kinard at the April 26, 1994 screening. Gail Hull, the witness who testified against Judge Baggett, also testified against Judge Kinard. Judge Kinard presided over the probation revocation hearing of the same defendant three weeks after Judge Baggett imposed his sentence. The defendant had been on probation in Richland County; the guilty plea before Judge Baggett was a violation of her probation. Judge Kinard sentenced the defendant to thirty days imprisonment to be served one day each week. Judge Kinard elaborated that it was his personal philosophy to sentence defendants found guilty of embezzling to serve time in prison. He stated he balanced that philosophy with the serious medical evidence presented to him that the defendant had had three heart attacks, was on a heart transplant waiting list, needed another serious operation, and was on massive daily medication.

A second witness, Juan Ortega, testified concerning Judge Kinard's rulings and in court statements in a complicated series of legal actions over control of a time share corporation. Mr. Ortega was not a litigant. His testimony was particularly critical of the South Carolina statutes governing horizontal property regimes. Mr. Ortega specifically stated he did not believe Judge Kinard did anything wrong and he was not complaining about the judge's rulings. Judge Kinard responded that he worked with the attorneys in these cases to fashion a consent order from which the horizontal property regime could hold a proxy fight and election of a Board of Directors.

The Committee recognizes that Judge Kinard had a similar difficult sentencing decision to make as Judge Baggett concerning the defendant who pled guilty to obtaining property under false pretenses and whose probation was then revoked. The Committee does not criticize the discretion exercised by Judge Kinard in fashioning an appropriate sentence for her. The Committee recognizes the delicate weighing of factors which went into the judge's sentence for this defendant. It does not believe he abused that discretion in any way. Concerning the second complaint, the Committee finds no fault with the manner in which Judge Kinard handled these complex cases and in no way criticizes the judge for his interpretation of a statute which may require legislative attention.

The Committee found The Honorable Costa M. Pleicones to possess outstanding credentials. He has an extensive twenty-three year career as a practicing attorney, including substantial appellate experience, and presently serves as a circuit court judge. Judge Pleicones has also served as an Acting Associate Justice for the South Carolina Supreme Court on several occasions.

The Committee was impressed with Judge Pleicones' commitment to service as a judge. He prepares for court and is thorough in his approach to decision-making. In addition, Judge Pleicones is industrious, making himself readily available to hear matters even when court is not in session. The Committee appreciates Judge Pleicones' approach to writing orders and believes him to be compassionate and respectful of litigants and lawyers while maintaining decorum in the courtroom. The Committee also found Judge Pleicones to possess a solid understanding of ethical concerns and was particularly impressed with his sensitivity to ex parte communications and conflicts of interest.

The Committee finds that The Honorable Charles B. Simmons, Jr. has experience which has prepared him for service on the Supreme Court. Judge Simmons has been a Master-in-Equity in Greenville County for nearly six years. As a Master-in-Equity, Judge Simmons sits without a jury and is required to function similarly to an appellate court judge. He must analyze the facts, determine and apply the applicable law, and render a written decision. In addition to his service as a Master-in-Equity, Judge Simmons has been a Special Circuit Court Judge since 1989 and has lectured on legal subjects in various programs, including continuing legal education seminars, law school classes, and Greenville Technical College's paralegal program.

The Committee appreciates Judge Simmons' community service and respects his view that judges should not become isolated from the people they serve. The Committee considers Judge Simmons to possess a solid sense of ethics based upon his responses to questions about conflicts of interest, gifts and ex parte communications. Judge Simmons' testimony about judicial temperament demonstrated a commitment to fairness and impartiality as well as respect for and willingness to listen to litigants, witnesses and attorneys. The Committee also appreciates Judge Simmons' preparation for court.

Judge of the Family Court of the Eighth Judicial Circuit, Seat No. 1.

The Committee found that Wyatt T. Saunders, Jr. has actively practiced law as a sole practitioner for nearly twenty-six years. Although he has a general practice, Mr. Saunders has devoted approximately thirty-five percent of his time to domestic cases and has handled a wide range of family court matters.

The Committee appreciated Mr. Saunders' explanation of appropriate judicial temperament and his interest in courtroom efficiency. Mr. Saunders testified that it was important to be fair and courteous and to provide the parties ample opportunity to present their case, but he also stated that a judge could politely curtail repetitious testimony. Mr. Saunders' testimony also revealed an understanding of the ethical considerations confronting a judge and an appropriate approach to producing the court's orders.

Judge of the Family Court of the Eleventh Judicial Circuit, Seat No. 1.

The Honorable Richard W. Chewning III has almost twenty-two years experience as a practicing attorney. Although only nineteen percent of his practice is in domestic and juvenile cases, Mr. Chewning has handled a broad spectrum of family court matters. In addition, Mr. Chewning has experience as a special referee, as a judge for the City of Cayce, and very briefly, as a special family court judge. Mr. Chewning testified that his judicial experience would be an asset in that it afforded him patience and the skill needed to control the courtroom and handle procedure.

The Committee originally had some questions about the nature of Mr. Chewning's family law experience since only ten to twenty percent of that experience involved vigorously contested cases. In response to questioning, Mr. Chewning indicated that his approach is to help his clients understand and solve their problems without litigation, if possible. The Committee respects Mr. Chewning's approach and concludes that the nature of his experience is sufficient.

Mr. Chewning demonstrated an understanding of appropriate judicial temperament and ethical considerations such as ex parte communications and conflicts of interest. The Committee appreciated Mr. Chewning's vision and willingness to expedite less complicated family court cases by handling them in the early morning before usual court hours. Finally, the Committee notes with approval Mr. Chewning's interest in and work with youth.

The Committee is very impressed with Douglas K. Kotti's dedication to his practice in family law and particularly to issues involving children. Mr. Kotti testified that ninety-eight percent of his practice is in family court. He frequently makes presentations on domestic matters for CLE seminars and has testified before legislative subcommittees on bills amending child custody laws.

The Committee recognizes that as a sole practitioner for the past four years, Mr. Kotti's efforts and finances have, at times, been stretched to their outer limits. While it is concerned about this, the Committee appreciates Mr. Kotti's straightforward answer concerning his past financial problems which he states are now being resolved to everyone's satisfaction. The Committee recognizes Mr. Kotti's strong work ethic. In its opinion he has articulated a clear understanding of appropriate judicial temperament and of the Judicial Canons.

Judge of the Family Court of the Sixteenth Judicial Circuit, Seat No. 1.

Thomas C. Dillard has twenty years experience as an attorney, with the past eight years spent working as a public defender. While Mr. Dillard's present work is entirely in general sessions court, he represented juveniles in family court for approximately two of the years he has served as a public defender. The Committee has some concerns about Mr. Dillard's lack of recent experience in other areas of family court, but notes that Mr. Dillard's practice included divorces, custody and termination of parental rights before 1986.

Mr. Dillard has received a CV rating from Martindale-Hubbell which indicates a 'fair to high' evaluation of his experience and qualifications. Mr. Dillard expressed concern over the increasing rate of juvenile crime and developed for the Committee some ideas of what he would do as a family court judge to deal with the problem. The Committee finds that Mr. Dillard understands the parameters established by the Judicial Canons. The Committee finds that while J. S. Flynn has had a distinguished legal career for thirty five years as a general practitioner, public defender, solicitor and county attorney, he is now semi-retired. When his practice was active, he handled family court cases; however, over the last five years, his family court work has been limited to fifteen percent of his practice. He testified that he only takes those family court cases which interest him. Mr. Flynn recognized that, if he were elected family court judge, his workload would increase substantially. He desires a family court judgeship as a means of capping off his career.

The Committee finds that Mr. Flynn has a good understanding of the importance of patience and firmness as components of good judicial temperament. It also finds he understands the ethical principles governing a judge's life.

The Committee finds Robert E. Guess to have nineteen years experience as a practicing attorney. He is a sole practitioner with a general civil practice consisting of approximately twenty percent domestic cases. Mr. Guess has been involved in a wide range of family court matters, including juvenile delinquency proceedings. Additionally, Mr. Guess has experience as a special referee. Most of his experience as a special referee was in default mortgage foreclosures, but he also served as special referee in approximately six contested property cases.

Because Mr. Guess averaged only four to five hotly contested cases a year in family court during the last five years, the Committee questioned him about his enjoyment of courtroom work and his reaction to the vigorously contested case. Mr. Guess testified to the Committee's satisfaction that he enjoys the courtroom experience, but, for economic reasons, the courtroom is not a major part of his practice. Furthermore, Mr. Guess testified that he can be aggressive when necessary, but his nature is to work toward mediation and compromise.

The Committee considers Mr. Guess to have an appropriate perspective on judicial temperament, ex parte communications and preparation of the court's orders. The Committee also believes that Mr. Guess would act properly in cases of conflicts of interest.

Administrative Law Judge, Seat No. 4.

The Committee found that H. Clay Carruth, Jr., has substantial experience in administrative, contested case proceedings. Mr. Carruth served as staff counsel for the South Carolina Public Service Commission (PSC) for five and one-half years, from May 1985 until December 1990. As PSC staff counsel, Mr. Carruth appeared before the Commission in agency contested case hearings on the average of twice a week. The Committee also noted that Mr. Carruth possesses some experience as a hearing examiner, although that experience is not recent.

As with other candidates, Mr. Carruth was examined on ethical issues, including participation in political activities, recusal, and campaigning for office as ALJ. Mr. Carruth's responses revealed a commitment to high ethical standards.

The Committee found in John D. Geathers a strong work ethic. The Committee was impressed with Mr. Geathers' experience as an attorney with the Office of Senate Research and his work on some of the most difficult issues handled by the General Assembly.

Although Mr. Geathers does not have extensive experience in administrative law, the Committee was impressed by his efforts to educate himself regarding administrative law, including the preparation of an outline of a detailed treatise on the subject by Professor David Shipley. Additionally, he has outlined Professor Walter Reiser's book on evidence law in South Carolina and researched the recent case law on the Canons of Judicial Ethics.

Mr. Geathers demonstrated a solid understanding of ethical standards and an appreciation for appropriate judicial temperament.

The Committee noted favorably W. Kenneth Moore's breadth and depth of administrative experience. Mr. Moore has served the state in the Office of Attorney General for sixteen and one half years and has participated in a broad range of cases such as proceedings before state agencies, representing the state in judicial standards hearings, and various trial and appellate hearings. As with other candidates, Mr. Moore was asked by the Committee about the qualities of judicial temperament. The Committee was impressed that Mr. Moore emphasized honesty, fairness, and respect as central to judicial temperament. Mr. Moore stated fairness must be an integral part of any judicial proceeding. The need for uniformity and objectivity were, in his opinion, major components of the impetus for establishing the Administrative Law Judge Division.

The Committee found V. Lynn Wiggins dedicated to the legal profession and experienced in administrative matters such as workers compensation, employee grievance proceedings and Social Security claim proceedings. As with other candidates, Ms. Wiggins was asked by the Committee about judicial temperament. Ms. Wiggins stated that open-mindedness, courtesy and fairness are important qualities and that a sense of humor is of the utmost importance. The Committee was impressed with Ms. Wiggins' firm beliefs about the importance of adhering to ethical principles such as allowing no ex parte communication between judges and attorneys.

Ms. Wiggins updated the Committee on her rating by Martindale Hubbell and emphasized that she has experience working in law offices which predates her law degree. Her Martindale Hubbell rating of CV indicates a 'fair to high' evaluation of her experience and qualifications.

Administrative Law Judge, Seat No. 5.

H. Clay Carruth, Jr. is a candidate for seats number four, five and six of the Administrative Law Judge Division. Because the Committee's findings with regard to Mr. Carruth are reported for seat number four, the findings are not repeated here.

The Committee recognized that The Honorable Karen L. Kanes demonstrated an awareness of the important attributes of respect and patience which a judge must possess. The Committee was impressed with Ms. Kanes' experience in the regulatory process both from the side of the development of regulations and from the contested case hearing side. Also, the Committee was impressed with her management and trial experience and with the innovative methods she has used as Chief Magistrate in Spartanburg County to move cases and reduce that court's docket.

In further questioning, the Committee was satisfied with Ms. Kanes' description of her method of separating her work for Spartanburg County from her efforts at obtaining this administrative law judge position.

Administrative Law Judge, Seat No. 6.

The Committee was impressed with the diligent service of Ralph K. "Tripp" Anderson, III in the Office of Attorney General where he has handled all extradition hearings, been counsel to several boards, handled state employee grievance hearings, been involved in criminal trials and been counsel to the Ethics Commission. Mr. Anderson emphasized to the Committee his strong work ethic as a quality that would make him a good Administrative Law Judge. The Committee appreciated Mr. Anderson's serious approach to the position in that he stressed the importance of researching the specialized areas of administrative law that would come before him and ensuring that he is knowledgeable on the law involved.

H. Clay Carruth, Jr. is a candidate for seats number four, five and six of the Administrative Law Judge Division. Because the Committee's findings with regard to Mr. Carruth are reported for seat number four, the findings are not repeated here.

The Committee found John J. Fantry, Jr. to have substantial administrative law experience. From 1974 until 1985, Mr. Fantry worked for the South Carolina Electric Cooperatives Association on matters relating to state and federal regulatory law. Since 1985, he has been in private practice with an emphasis on administrative and regulatory law. Mr. Fantry has represented clients before the South Carolina Tax Commission, Department of Health and Environmental Control, Workers' Compensation Commission, Coastal Council, Labor Department, Public Service Commission and Ethics Commission. Recently, Mr. Fantry has served as an interim hearing officer for contested alcoholic beverage licensing cases.

Mr. Fantry demonstrated a clear understanding of the ethical considerations about which he was questioned.

The Committee was impressed by the extensive experience of Ray N. Stevens with administrative law and tax matters through his employment at the Office of Attorney General and Department of Revenue and Taxation (South Carolina Tax Commission) for the past fourteen years. He has advised the Commissioners and written proposed orders for them, advised governments on the state and local level concerning financial, tax and budgetary matters, and has represented the state's interest in courts on the state and federal level. Mr. Stevens' replies to questions concerning ethics indicate he has a firm understanding of the Judicial Canons as they relate to ex parte communications, conflicts of interest, and gifts.

Summary

The following persons were unanimously found qualified:

The Honorable Ralph King Anderson, Jr., candidate for Associate Justice of the South Carolina Supreme Court;

The Honorable Julius H. Baggett, candidate for Associate Justice of the South Carolina Supreme Court;

The Honorable Randall Theron Bell, candidate for Associate Justice of the South Carolina Supreme Court;

The Honorable E. C. Burnett, III, candidate for Associate Justice of the South Carolina Supreme Court;

The Honorable J. Ernest Kinard, Jr., candidate for Associate Justice of the South Carolina Supreme Court;

The Honorable Costa M. Pleicones, candidate for Associate Justice of the South Carolina Supreme Court;

The Honorable Charles B. Simmons, Jr., candidate for Associate Justice of the South Carolina Supreme Court;

Wyatt T. Saunders, Jr., candidate for Judge of the Family Court of the Eighth Judicial Circuit, Seat #1;

Richard W. Chewning, III, candidate for Judge of the Family Court of the Eleventh Judicial Circuit, Seat #3;

Douglas K. Kotti, candidate for Judge of the Family Court of the Eleventh Judicial Circuit, Seat #3;

Thomas C. Dillard, candidate for Judge of the Family Court of the Sixteenth Judicial Circuit, Seat #1;

J. S. Flynn, candidate for Judge of the Family Court of the SixteenthJudicial Circuit, Seat #1;

Robert E. Guess, candidate for Judge of the Family Court of the Sixteenth Judicial Circuit, Seat #1;

H. Clay Carruth, Jr., candidate for Administrative Law Judge, Seats #4, #5 and #6;

John D. Geathers, candidate for Administrative Law Judge, Seat #4;

W. Kenneth Moore, candidate for Administrative Law Judge, Seat #4;

V. Lynn Wiggins, candidate for Administrative Law Judge, Seat #4;

Karen L. Kanes, candidate for Administrative Law Judge, Seat #5;

Ralph K. "Tripp" Anderson, III, candidate for Administrative Law Judge, Seat #6;

John J. Fantry, Jr., candidate for Administrative Law Judge, Seat #6;

Ray N. Stevens, candidate for Administrative Law Judge, Seat #6;

Respectfully submitted,
/s/Rep. James H. Hodges, Chairman
/s/Senator Glenn F. McConnell, Vice-Chairman
/s/Senator Thomas L. Moore
/s/Senator Edward E. Saleeby
/s/Senator John R. Russell
/s/Rep. M.O. Alexander
/s/Rep. Donald W. Beatty
/s/Rep. C. Lenoir Sturkie

On motion of Senator McCONNELL, with unanimous consent, ordered printed in the Journal.

The PRESIDENT called for Petitions, Memorials, Presentments of Grand Juries and such like papers.

May 6, 1994
Mr. President and Members of the Senate:

I am transmitting herewith an appointment for confirmation. This appointment is made with the "advice and consent of the Senate," and is, therefore, submitted for your consideration.

Respectfully,
Carroll A. Campbell, Jr.

Reappointment, Member, John De La Howe School Board of Trustees, with term to commence April 1, 1994, and to expire April 1, 1999:

At-Large:

Mrs. Elizabeth B. Davis, Post Office Box 429, Orangeburg, S.C. 29116-0429

Referred to the Committee on Education.

April 20, 1994
Mr. President and Members of the Senate:

I am hereby returning without my signature S. 520, R. 347, an Act:
(R347) S. 520 -- Senators Thomas and Wilson: AN ACT TO AMEND SECTION 7-13-860, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE APPOINTMENT, QUALIFICATIONS, IDENTIFICATION, AND CONDUCT OF POLL WATCHERS, SO AS TO SPECIFY THE MAXIMUM SIZE AND SIZE OF LETTERING ON IDENTIFICATION BADGES AND TO PROHIBIT BADGES IN FLUORESCENT COLORS AND TO AMEND SECTION 7-25-180, AS AMENDED, RELATING TO THE DISTRIBUTION OF CAMPAIGN LITERATURE ON ELECTION DAY WITHIN TWO HUNDRED FEET OF A BUILDING WHERE A POLLING PLACE IS LOCATED, SO AS TO AUTHORIZE A CANDIDATE TO APPEAR AND GREET VOTERS IF HE IS NOT INTIMIDATING, AND TO PROVIDE THAT THE CANDIDATE MAY WEAR A LABEL IDENTIFYING HIMSELF AS A CANDIDATE AND THE OFFICE HE IS SEEKING AND PROVIDE CONDITIONS ON THE WEARING OF THE LABEL.

This well intended legislation contains a provision allowing candidates to greet voters in line as long as the candidate is not "intimidating voters or interfering with the orderly election process." I do not believe that it is necessary or prudent for candidates to be allowed to approach voters at the polling place as they wait in line to receive their ballots. Currently, the law provides a candidate may contact a voter up to 200 feet away from the polling place on election day. I see no sound reason to change this rule. Candidates have months to reach voters with their message before election day. The voters of this State should have an ample opportunity to make a clear and well informed choice without being badgered by a well meaning candidate as they wait in line to receive their ballots.

Additionally, the language "intimidating voters or interfering with the orderly election process" is very subjective and would not provide the State Election Commission or a County Election Commission enough basis to rule consistently on violations of this section. Without an objective standard, complaints would have to be considered on a case by case basis. Rather than create an ambiguous rule, I believe it is best to continue to restrict campaigning on election day to activities outside the immediate polling area.

It is for this reason that I return S. 520, R. 347 without my signature.

Sincerely,
Carroll A. Campbell, Jr.
Governor

The veto by the Governor was taken up for immediate consideration.

Senator THOMAS moved that the veto by the Governor be sustained.

The question was put: Shall the Act become law, the veto by the Governor to the contrary notwithstanding?

The "ayes" and "nays" were demanded and taken, resulting as follows:

Bryan Cork Courson
Courtney Drummond Elliott
Ford Giese Glover
Gregory Hayes Holland
Jackson Land Lander
Leatherman Leventis Macaulay
Martin Matthews McConnell
McGill Mescher Mitchell
Moore O'Dell Passailaigue
Patterson Peeler Rankin
Reese Richter Rose
Russell Ryberg Saleeby
Setzler Short Smith, G.
Smith, J.V. Stilwell Thomas
Waldrep Washington Williams
Wilson

The necessary two-thirds vote not having been received, the veto by the Governor was sustained, and a message was sent to the House accordingly.

May 10, 1994
Mr. President and Members of the Senate:

I am hereby returning without my signature S. 1021, R428, an Act:
(R428) S. 1021 -- Senator Washington: AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 17-13-55 SO AS TO PROVIDE FOR THE RESPONSIBILITY FOR THE COSTS OF MEDICAL CARE FOR AN ARRESTED PERSON AND TO AMEND SECTION 20-7-3230, AS AMENDED, RELATING TO INSTITUTIONAL AND DETENTION SERVICES FOR JUVENILES, SO AS TO FURTHER PROVIDE FOR THE COST OF PROVIDING CERTAIN MEDICAL SERVICES TO JUVENILES IN DEPARTMENT OF JUVENILE JUSTICE FACILITIES.

This veto is based upon serious reservations that I have regarding S. 1021, R-428 and the potential spectre of unforseen liability that this Act may raise for the State of South Carolina.

I understand that S. 1021, R-428 was enacted in response to recent events that created a certain degree of confusion concerning who bears responsibility for medical expenses incurred by individuals who have been arrested and are in the custody of local law enforcement agencies. While I believe the legislature's intentions were understandable in enacting this legislation, I do not believe that this particular bill is the most appropriate response to this situation.

Specifically, S. 1021, R-428 appears to create unknown liability on the part of the State where it is not necessary to do so. As I feel there are certain unresolved questions concerning the potential creation of unnecessary liability by this Act, I cannot give my approval to this legislation at this time.

For this reason, I am returning S. 1021, R-428 to you without my signature.

Sincerely,
Carroll A. Campbell, Jr.
Governor

The veto by the Governor was taken up for immediate consideration.

Senator WASHINGTON moved that the veto by the Governor be sustained.

The question was put: Shall the Act become law, the veto by the Governor to the contrary notwithstanding?

The "ayes" and "nays" were demanded and taken, resulting as follows:

Bryan Cork Courson
Courtney Drummond Elliott
Ford Giese Glover
Gregory Hayes Holland
Jackson Land Lander
Leatherman Leventis Macaulay
Martin Matthews McConnell
McGill Mescher Mitchell
Moore O'Dell Passailaigue
Patterson Peeler Rankin
Reese Richter Rose
Russell Ryberg Saleeby
Setzler Short Smith, G.
Smith, J.V. Stilwell Thomas
Waldrep Washington Williams
Wilson

The necessary two-thirds vote not having been received, the veto by the Governor was sustained, and a message was sent to the House accordingly.

The following were received and referred to the appropriate committees for consideration:

Document No. 1763
Promulgated by Board of Pharmacy, Department of Labor, Licensing and Regulation
Annual License Renewal Fee
Received by Lt. Governor May 13, 1994
Referred to Senate Committee on Labor, Commerce and Industry
120 day review expiration date April 19, 1995

Document No. 1775
Promulgated by Department of Consumer Affairs
Adjustment of Dollar Amounts
Received by Lt. Governor May 16, 1994
Referred to Senate Committee on Banking and Insurance
120 day review expiration date April 22, 1995

Senator GIESE introduced Dr. March Seabrook of West Columbia, S.C., Doctor of the Day.

Columbia, S.C., May 16, 1994

Mr. President and Senators:

The House respectfully informs your Honorable Body that it refuses to concur in the amendments proposed by the Senate to:
H. 4283 -- Reps. Barber, Jennings, Gonzales, Quinn, Harvin, Wells, Wright, Harrison, R. Smith, Fulmer, D. Wilder, Klauber, A. Young and Corning: A BILL TO AMEND TITLE 33, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 43 RELATING TO CORPORATIONS SO AS TO ENACT THE "SOUTH CAROLINA LIMITED LIABILITY COMPANY ACT" WHICH PERMITS A LIMITED LIABILITY COMPANY (LLC) FORMED PURSUANT TO THIS ACT TO BE TREATED AS A PARTNERSHIP FOR TAX PURPOSES TOGETHER WITH THE ABSENCE OF INDIVIDUAL LIABILITY OF THE MEMBERS OF THE LIMITED LIABILITY COMPANY FOR ITS OBLIGATIONS, WHICH PROVIDES FOR THE MANNER IN WHICH LIMITED LIABILITY COMPANIES ARE FORMED, FOR RELATIONS BETWEEN MEMBERS AND MANAGERS TO PERSONS DEALING WITH THE LIMITED LIABILITY COMPANIES, FOR THE RIGHTS AND DUTIES OF MEMBERS AND MANAGERS, FOR FINANCE MATTERS, FOR DISTRIBUTIONS AND WITHDRAWALS, FOR THE OWNERSHIP AND TRANSFER OF PROPERTY, FOR ADMISSION AND WITHDRAWAL OF MEMBERS, FOR DISSOLUTION, FOR THE MANNER IN WHICH FOREIGN LIMITED LIABILITY COMPANIES MAY OPERATE AND ARE GOVERNED, FOR PROFESSIONAL SERVICES LIMITED LIABILITY COMPANIES, FOR SUITS BY AND AGAINST THE LIMITED LIABILITY COMPANIES, FOR THE MERGER OF DOMESTIC OR FOREIGN LIMITED LIABILITY COMPANIES, AND FOR MISCELLANEOUS PROVISIONS AFFECTING THE LIMITED LIABILITY COMPANIES INCLUDING FILING AND OTHER FEES; AND TO AMEND THE 1976 CODE BY ADDING SECTION 12-2-25 SO AS TO PROVIDE FOR CERTAIN DEFINITIONS FOR TAXATION PURPOSES INCORPORATING REFERENCES TO LIMITED LIABILITY COMPANIES.
Very respectfully,
Speaker of the House

On motion of Senator STILWELL, the Senate insisted upon its amendments to H. 4283 and asked for a Committee of Conference.

Whereupon, the PRESIDENT appointed Senators STILWELL, McCONNELL and PASSAILAIGUE of the Committee of Conference on the part of the Senate and a message was sent to the House accordingly.

H. 5120 -- Rep. McAbee: A CONCURRENT RESOLUTION TO REQUEST THE DEPARTMENT OF TRANSPORTATION TO DESIGNATE AND NAME A PORTION OF SOUTH CAROLINA HIGHWAY 23 AS "R. CLARK DUBOSE HIGHWAY".

Senator LAND asked unanimous consent to make a motion to recall the Resolution from the Committee on Transportation.

There was no objection.

On motion of Senator LAND, with unanimous consent, the Resolution was ordered placed on the Calendar.

H. 5122 -- Rep. Keyserling: A CONCURRENT RESOLUTION TO REQUEST THE DEPARTMENT OF TRANSPORTATION TO DESIGNATE AND NAME A CROSSING IN BEAUFORT COUNTY AS THE "MARINE CORPS MEMORIAL CROSSING".

Senator LAND asked unanimous consent to make a motion to recall the Resolution from the Committee on Transportation.

There was no objection.

On motion of Senator LAND, with unanimous consent, the Resolution was ordered placed on the Calendar.

H. 5189 -- Reps. Phillips, McCraw, Farr, Littlejohn, Walker, Wells, Lanford, Allison and D. Smith: A CONCURRENT RESOLUTION MEMORIALIZING THE CONGRESS OF THE UNITED STATES TO DEVELOP AND APPROVE QUICKLY THE NATIONAL HIGHWAY SYSTEM NO LATER THAN SEPTEMBER 30, 1994.

Senator LAND asked unanimous consent to make a motion to recall the Resolution from the Committee on Transportation.

There was no objection.

On motion of Senator LAND, with unanimous consent, the Resolution was ordered placed on the Calendar.

The following were introduced:

S. 1413 -- Senator Holland: A BILL TO DIRECT THE DEPARTMENT OF TRANSPORTATION TO REMOVE FROM THE STATE HIGHWAY SYSTEM A PORTION OF SECONDARY ROAD S28-539 IN KERSHAW COUNTY.

On motion of Senator HOLLAND, S. 1413 was ordered to receive a second and third reading on the next two consecutive legislative days.

Read the first time and ordered placed on the local and uncontested Calendar without reference.

S. 1414 -- Senators Passailaigue, McConnell, Richter, Greg Smith, McGill, Ford, Rose and Washington: A CONCURRENT RESOLUTION TO URGE THE UNITED STATES CONGRESS AND THE PRESIDENT OF THE UNITED STATES TO APPROVE H. R. 4311 WHICH WOULD DELAY THE 1995 MILITARY BASE CLOSURES UNTIL 1997 AND TO URGE THE FEDERAL GOVERNMENT TO DIRECT REMEDIAL EFFORTS TO THE COMMUNITIES NOW STRUGGLING TO RECOVER FROM BASE CLOSURES IN 1988, 1991, AND 1993.

On immediate consideration, the Concurrent Resolution was adopted, ordered sent to the House.

S. 1415 -- Senators Leventis and Land: A CONCURRENT RESOLUTION CONGRATULATING ROSS S. MCKENZIE OF SUMTER ON RECEIVING THE SOUTH CAROLINA FEDERATION OF MUSEUMS' CERTIFICATE OF SPECIAL RECOGNITION.

On immediate consideration, the Concurrent Resolution was adopted, ordered sent to the House.

S. 1416 -- Education Committee: A JOINT RESOLUTION TO DISAPPROVE REGULATIONS OF THE DEPARTMENT OF EDUCATION, RELATING TO PARENTING/FAMILY LITERACY PROGRAMS, DESIGNATED AS REGULATION DOCUMENT NUMBER 1713, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.

Read the first time and ordered placed on the Calendar without reference.

S. 1417 -- Education Committee: A JOINT RESOLUTION TO DISAPPROVE REGULATIONS OF THE DEPARTMENT OF EDUCATION, RELATING TO SCHOOL IMPROVEMENT COUNCILS AND THE ANNUAL SCHOOL AND DISTRICT IMPROVEMENT REPORTS (REPEALED IN ITS ENTIRETY); DISTRICT AND SCHOOL COMPREHENSIVE PLANNING (REPLACES), DESIGNATED AS REGULATION DOCUMENT NUMBER 1712, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.

Read the first time and ordered placed on the Calendar without reference.

H. 5211 -- Reps. Scott, J. Brown, Byrd, Neal, Shissias, Cromer, Rogers, Waites, Corning and Harrison: A CONCURRENT RESOLUTION TO COMMEND MR. J. WILLIAM MARTIN OF COLUMBIA FOR HIS EXEMPLARY SERVICE TO THE STATE OF SOUTH CAROLINA WITH THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL UPON THE OCCASION OF HIS UPCOMING RETIREMENT.

On immediate consideration, the Concurrent Resolution was adopted, ordered returned to the House.

H. 5212 -- Reps. Kelley, Harvin, Keegan, Worley, Snow, Martin and Thomas: A CONCURRENT RESOLUTION CONGRATULATING COASTAL CAROLINA UNIVERSITY ON ITS FORTIETH ANNIVERSARY AS AN INSTITUTION OF HIGHER LEARNING, AND COMMENDING THE UNIVERSITY ON ITS PHENOMENAL SUCCESS AND FOR ITS OUTSTANDING ACHIEVEMENTS IN HIGHER EDUCATION.

On immediate consideration, the Concurrent Resolution was adopted, ordered returned to the House.

H. 5213 -- Rep. Anderson: A CONCURRENT RESOLUTION COMMENDING JOHN A. MCCARROLL OF GREENVILLE FOR HIS MANY ACCOMPLISHMENTS AS THE EXECUTIVE DIRECTOR OF THE PHILLIS WHEATLEY ASSOCIATION IN GREENVILLE, AND SALUTING THE PHILLIS WHEATLEY ASSOCIATION ON ITS SEVENTY-FIFTH ANNIVERSARY.

On immediate consideration, the Concurrent Resolution was adopted, ordered returned to the House.

H. 5215 -- Rep. Davenport: A CONCURRENT RESOLUTION EXTENDING CONGRATULATIONS AND BEST WISHES OF THE MEMBERS OF THE GENERAL ASSEMBLY TO THE ONE HUNDRED TEN YEAR OLD FIRST BAPTIST CHURCH OF NORTH SPARTANBURG.

On immediate consideration, the Concurrent Resolution was adopted, ordered returned to the House.

H. 3840 -- Reps. Kennedy, Jaskwhich and Phillips: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 59-25-25 SO AS TO PROVIDE THAT A PERSON WHO WAS EMPLOYED AND CERTIFIED AS A TEACHER IN THE PUBLIC SCHOOLS OF THIS STATE AT THE TIME OF HIS RETIREMENT UNDER THE SOUTH CAROLINA RETIREMENT SYSTEM MAY RETURN TO COVERED EMPLOYMENT UNDER CERTAIN CONDITIONS WHETHER OR NOT HIS TEACHING CERTIFICATE HAS BEEN RENEWED.

Read the first time and referred to the Committee on Education.

H. 4142 -- Reps. Quinn, Wright and Riser: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 15 TO CHAPTER 25, TITLE 50, SO AS TO PROVIDE FOR RESTRICTIONS, NO WAKE ZONES, PENALTIES, AND FINE DISBURSEMENTS FOR WATERCRAFT ON LAKE MURRAY.

Read the first time and referred to the Committee on Fish, Game and Forestry.

H. 4349 -- Reps. Wilkins, Wright, Harrell, Fulmer, Corning, Simrill, Hallman, H. Brown, Clyborne, Vaughn, Allison, Gamble, Marchbanks, Trotter, Stuart, Walker, Hutson, Littlejohn, Wells, Huff, D. Smith, Gonzales, Witherspoon, Haskins, Shissias, Thomas, Kelley, Harrison, Stone, Fair, Richardson, Riser, R. Smith, Graham, Law, Davenport, A. Young, Sharpe and Robinson: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 2-1-25 SO AS TO ESTABLISH THE ELECTION DISTRICTS FROM WHICH MEMBERS OF THE HOUSE OF REPRESENTATIVES ARE ELECTED COMMENCING WITH THE 1994 GENERAL ELECTION, TO DESIGNATE THE HOUSE OF REPRESENTATIVES AS THE SUBMITTING AUTHORITY TO MAKE THE REQUIRED SUBMISSION OF THE HOUSE REAPPORTIONMENT PLAN CONTAINED IN THIS ACT TO THE UNITED STATES DEPARTMENT OF JUSTICE UNDER THE VOTING RIGHTS ACT, AND TO REPEAL SECTION 2-1-10, RELATING TO ELECTION DISTRICTS FROM WHICH MEMBERS OF THE HOUSE OF REPRESENTATIVES WERE FORMERLY ELECTED.

Read the first time and on motion of Senator HOLLAND, with unanimous consent, ordered placed on the Calendar without reference.

On motion of Senator HOLLAND, with unanimous consent, H. 4349 was ordered to receive a second reading on Wednesday, May 18, 1994.

H. 5084 -- Reps. Wilkins and McTeer: A BILL TO AMEND SECTION 3-1-120, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO AGREEMENTS AND RELATIONS WITH THE UNITED STATES GOVERNMENT, JURISDICTION OVER LANDS ACQUIRED BY THE UNITED STATES, AND SERVICE OF PROCESS, SO AS TO PROVIDE FOR CONCURRENT JURISDICTION IN AND OVER LAND ACQUIRED BY THE UNITED STATES, AS AN ALTERNATIVE TO THE ALREADY-EXISTING EXCLUSIVE JURISDICTION.

Read the first time and referred to the Committee on Judiciary.

H. 5086 -- Reps. D. Smith and Tucker: A BILL TO AMEND SECTION 59-47-70, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THOSE PERSONS WHO MUST BE ADMITTED TO RECEIVE SERVICES FROM THE SCHOOL FOR THE DEAF AND BLIND, SO AS TO INCLUDE HARD OF HEARING AND VISUALLY IMPAIRED PERSONS

Read the first time and referred to the Committee on Education.

H. 5148 -- Education and Public Works Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE BOARD OF EDUCATION, RELATING TO BASIC SKILLS ASSESSMENT PROGRAM - WRITING TEST: MINIMUM STANDARDS OF STUDENT ACHIEVEMENT; SCORING CRITERIA, DESIGNATED AS REGULATION DOCUMENT NUMBER 1753, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.

Read the first time and referred to the Committee on Education.

H. 5149 -- Education and Public Works Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE DEPARTMENT OF EDUCATION, RELATING TO DEFINED MINIMUM PROGRAM FOR SOUTH CAROLINA SCHOOL DISTRICTS, GRADES 9-12, PROVISIONS FOR GRANTING HIGH SCHOOL CREDIT, DESIGNATED AS REGULATION DOCUMENT NUMBER 1754, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.

Read the first time and referred to the Committee on Education.

H. 5150 -- Education and Public Works Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE DEPARTMENT OF TRANSPORTATION, RELATING TO OUTDOOR ADVERTISING AND THE HIGHWAY ADVERTISING CONTROL ACT, DESIGNATED AS REGULATION DOCUMENT NUMBER 1764, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.

Read the first time and referred to the Committee on Transportation.

H. 5151 -- Education and Public Works Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE DEPARTMENT OF TRANSPORTATION, RELATING TO SPECIFIC INFORMATION SERVICE SIGNING, DESIGNATED AS REGULATION DOCUMENT NUMBER 1767, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.

Read the first time and referred to the Committee on Transportation.

H. 5205 -- Reps. Tucker and Chamblee: A BILL TO AMEND ACT 509 OF 1982, AS AMENDED, RELATING TO THE BOARDS OF TRUSTEES OF THE SCHOOL DISTRICTS IN ANDERSON COUNTY, SO AS TO REVISE THE AREAS OR DISTRICTS FROM WHICH TRUSTEES OF SCHOOL DISTRICT 4 ARE ELECTED AND PROVIDE THAT THE TRUSTEES MUST BE ELECTED FROM THE ELECTION DISTRICTS IN WHICH THEY RESIDE.

Read the first time and ordered placed on the local and uncontested Calendar without reference.

On motion of Senator WALDREP, H. 5205 was ordered to receive a second reading with notice of general amendments on Wednesday, May 18, 1994.

S. 674 -- Senator Land: A BILL TO AMEND SECTION 12-36-90, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEFINITION OF GROSS PROCEEDS OF SALES FOR PURPOSES OF THE SALES AND USE TAX, SO AS TO PROVIDE THAT GROSS PROCEEDS DO NOT INCLUDE THAT PORTION OF A CHARGE SUBJECT TO AND USE TAX ATTRIBUTABLE TO THE COST SET BY STATUTE FOR A GOVERNMENTAL LICENSE OR PERMIT.

The House returned the Bill with amendments.

On motion of Senator SALEEBY, the Senate concurred in the House amendments and a message was sent to the House accordingly. Ordered that the title be changed to that of an Act and the Act enrolled for Ratification.

S. 992 -- Senator Land: A BILL TO AMEND SECTION 50-9-1020, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE POINT SYSTEM FOR SUSPENDING HUNTING AND FISHING PRIVILEGES, SO AS TO PROVIDE FOR AN ADDITIONAL HUNTING VIOLATION PERTAINING TO RACCOONS; TO AMEND SECTION 50-11-120, AS AMENDED, RELATING TO THE HUNTING SEASONS FOR SMALL GAME, SO AS TO REVISE THE SEASON FOR RACCOON AND OPOSSUM IN GAME ZONE 9; TO AMEND SECTION 50-11-140, AS AMENDED, RELATING TO REQUIREMENTS FOR HUNTING RACCOONS AND OPOSSUMS, SO AS TO INCLUDE FOX AND PROVIDE FOR ADDITIONAL REQUIREMENTS AND PENALTIES; AND TO AMEND SECTION 50-11-2500, AS AMENDED, RELATING TO PERMITS TO HOLD FUR AFTER THE SEASON FOR TAKING FURBEARERS, SO AS TO INCLUDE FURBEARERS AND THEIR PELTS WITHIN THE PERMIT APPLICATION AND RELATED REQUIREMENTS.

The House returned the Bill with amendments.

On motion of Senator LAND, the Senate concurred in the House amendments and a message was sent to the House accordingly. Ordered that the title be changed to that of an Act and the Act enrolled for Ratification.

S. 1410 -- Senators McConnell, Saleeby, Moore and Russell: A CONCURRENT RESOLUTION TO FIX 12:00 NOON ON WEDNESDAY, MAY 25, 1994, AS THE TIME TO ELECT AN ASSOCIATE JUSTICE OF THE SOUTH CAROLINA SUPREME COURT TO FILL THE UNEXPIRED TERM AS AN ASSOCIATE JUSTICE OF THE HONORABLE ERNEST A. FINNEY, JR., UPON HIS ELECTION AS CHIEF JUSTICE OF THE SOUTH CAROLINA SUPREME COURT, TO ELECT A FAMILY COURT JUDGE FROM THE EIGHTH JUDICIAL CIRCUIT, SEAT 1, TO FILL THE UNEXPIRED TERM OF THE HONORABLE WILLIAM J. CRAINE, JR., WHOSE TERM EXPIRES JUNE 30, 1995, TO ELECT A FAMILY COURT JUDGE FROM THE ELEVENTH JUDICIAL CIRCUIT, SEAT 3, TO FILL THE UNEXPIRED TERM OF THE HONORABLE MARC H. WESTBROOK, WHOSE TERM EXPIRES JUNE 30, 1995, TO ELECT A FAMILY COURT JUDGE FROM THE SIXTEENTH JUDICIAL CIRCUIT, SEAT 1, TO FILL THE UNEXPIRED TERM OF THE HONORABLE DAVID N. WILBURN, JR., WHOSE TERM EXPIRES JUNE 30, 1998, TO ELECT A JUDGE OF THE ADMINISTRATIVE LAW JUDGE DIVISION, SEAT 4, TO SERVE FOR A FIVE-YEAR TERM TO BEGIN FEBRUARY 1, 1995, TO ELECT A JUDGE OF THE ADMINISTRATIVE LAW JUDGE DIVISION, SEAT 5, TO SERVE FOR A THREE-YEAR TERM TO BEGIN FEBRUARY 1, 1995, AND TO ELECT A JUDGE OF THE ADMINISTRATIVE LAW JUDGE DIVISION, SEAT 6, TO SERVE FOR A ONE-YEAR TERM TO BEGIN FEBRUARY 1, 1995.

The House returned the Resolution with amendments.

On motion of Senator COURTNEY, the Senate concurred in the House amendments and a message was sent to the House accordingly. Ordered that the title be changed to that of an Act and the Act enrolled for Ratification.

H. 3141 -- Reps. McLeod, G. Brown, Farr, H. Brown, Holt, Houck, McCraw, Hines, Walker, Neal, M.O. Alexander, McMahand, Breeland, Shissias, J. Harris, Phillips, Byrd and R. Young: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 57-25-15 SO AS TO PROVIDE THAT THE PROHIBITION ON CERTAIN SIGNS IN THE HIGHWAY RIGHT-OF-WAY DOES NOT EXTEND TO A WELCOME SIGN ERECTED BY THE GOVERNING BODY OF A MUNICIPALITY OR COUNTY IF THE SIGN PRESENTS NO TRAFFIC HAZARD.

The House returned the Bill with amendments.

On motion of Senator LEVENTIS, the Senate concurred in the House amendments and a message was sent to the House accordingly. Ordered that the title be changed to that of an Act and the Act enrolled for Ratification.

The House returned the Bill with amendments.

On motion of Senator DRUMMOND, the Senate nonconcurred in the House amendments and a message was sent to the House accordingly.

S. 1412 -- Senators Macaulay and Giese: A CONCURRENT RESOLUTION TO COMMEND ALL OF THOSE WHO ARE INVOLVED IN PROVIDING EMERGENCY MEDICAL SERVICES TO THE CITIZENS IN THIS STATE AND TO REQUEST THE GOVERNOR TO PROCLAIM THE WEEK OF MAY 15-21, 1994, AS EMERGENCY MEDICAL SERVICES WEEK IN SOUTH CAROLINA IN THEIR HONOR.

Returned with concurrence.

Received as information.

S. 88 -- Senators McConnell and Rose: A BILL TO AMEND SECTION 44-41-10, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS CONCERNING ABORTIONS, SO AS TO CHANGE A REFERENCE IN THE DEFINITION OF HOSPITAL; TO AMEND SECTION 44-41-70, RELATING TO REGULATIONS FOR CERTIFICATION OF HOSPITALS AND OTHER FACILITIES, SO AS TO INCLUDE FACILITIES IN WHICH FIRST TRIMESTER ABORTIONS ARE PERFORMED; TO AMEND SECTION 44-93-100, RELATING TO EXCEPTIONS TO THE EXEMPTION OF SMALL QUANTITY GENERATORS FROM THE INFECTIOUS WASTE MANAGEMENT ACT, SO AS TO REQUIRE THESE GENERATORS TO MANAGE FETAL REMAINS IN ACCORDANCE WITH THE REQUIREMENTS FOR PATHOLOGICAL WASTE.

The House returned the Bill with amendments.

Senator HAYES proposed the following Amendment No. 1 (CYY\16284HC.94), which was adopted:

Amend the bill, as and if amended, by striking Section 44-41-350 and inserting:

/Section 44-41-350. It is unlawful for a person who performs an abortion when the person knows or should know that the provisions of this article have not been complied with before the abortion and, upon conviction for a violation of this section, must be fined not less than one thousand dollars and not more than five thousand dollars. If a person has been previously convicted under this section, the person, upon a second and any subsequent conviction under this section, must be imprisoned not less than one year and not more than three years or fined not less than one thousand dollars or more than five thousand dollars, or both./

Renumber sections to conform.

Amend title to conform.

Senator HAYES explained the amendment.

Senator HAYES moved that the amendment be adopted.

The amendment was adopted.

Senator HOLLAND moved to commit the Bill to the Committee on Judiciary.

Senator McCONNELL spoke on the motion.

Senator HAYES raised a Point of Order that when a Bill is before the Senate returned from the House with amendments and is amended by the Senate and there appear to be no further amendments on the desk, then the Bill is disposed of and must be returned to the House; and, therefore, the Bill was not before the body for consideration.

The PRESIDENT overruled the Point of Order and stated that, when a matter is before the Senate, any of the motions provided in Rule 14 may be made and Senator HOLLAND had timely made the motion to commit.

Senator McCONNELL continued arguing contra to the motion.

Senator J. VERNE SMITH made a Parliamentary Inquiry as to whether or not consideration of this Bill was out of order inasmuch as the Senate had agreed on Thursday, May 12, 1994, to proceed to a consideration of H. 4821 and H. 4822 to the exclusion of all other matters.

The PRESIDENT stated that according to the motion which was adopted last Thursday, the Senate would treat H. 4821 (Capital Reserve Fund) and H. 4822 (Supplemental Appropriation Bill) in the same manner as the annual General Appropriation Bill, which would mean that the Senate would proceed to the Morning Hour, have a call of the uncontested local and statewide Calendar and then take up H. 4821 and H. 4822.

Senator McCONNELL argued contra to the motion to commit.

On motion of Senator J. VERNE SMITH, with unanimous consent, the Bill was carried over with Senator McCONNELL retaining the floor.

THE SENATE PROCEEDED TO A CALL OF THE UNCONTESTED LOCAL AND STATEWIDE CALENDAR.

At 1:05 P.M., Senator LEATHERMAN assumed the Chair.

The following Bills and Joint Resolution were read the third time and having received three readings in both Houses, it was ordered that the titles be changed to that of Acts and enrolled for Ratification:

H. 3692 -- Reps. Vaughn, Waldrop, J. Bailey, Hines, Farr, Kirsh, Stone, Walker, Littlejohn, Gamble, Richardson, Cobb-Hunter, Allison, Wells, Wofford, Chamblee, Corning, Cato, Holt, Harrelson, Davenport, Moody-Lawrence, P. Harris, Gonzales, Witherspoon, Cooper, Byrd, Riser, Wright, D. Wilder, Mattos, Houck, Jaskwhich and Klauber: A BILL TO AMEND SECTION 20-7-1650, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS IN REGARD TO ADOPTIONS, SO AS TO REVISE THE DEFINITION OF CHILD PLACING AGENCY.

H. 4763 -- Rep. Kirsh: A BILL TO AMEND SECTION 40-33-50, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO APPLICATIONS OF CHAPTER 33, TITLE 40, THE NURSE PRACTICE ACT, SO AS TO PROVIDE THAT THE CHAPTER MAY NOT PROHIBIT THE PRACTICE OF NURSING BY GRADUATES OF NURSING SCHOOLS AWAITING LICENSING EXAMINATION RESULTS, AND TO AMEND SECTION 40-33-920, AS AMENDED, RELATING TO LICENSING REEXAMINATION, SO AS TO REVISE THE REQUIREMENTS FOR REEXAMINATION.

H. 3603 -- Reps. P. Harris, Sturkie, Carnell, Harrison, Corning, Shissias, Cooper, Stille, Tucker, Neal, McAbee, Snow, Townsend, Riser, Byrd, J. Bailey, J. Brown and Thomas: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 10-1-175 SO AS TO AUTHORIZE THE DIVISION OF GENERAL SERVICES TO ENACT A MEMORIAL ON THE STATE HOUSE GROUNDS TO HONOR STATE OR LOCAL LAW ENFORCEMENT OFFICERS WHO HAVE LOST THEIR LIVES IN THE LINE OF DUTY.

H. 5076 -- Medical, Military, Public and Municipal Affairs Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE BOARD OF NURSING, DEPARTMENT OF LABOR, LICENSING AND REGULATION, RELATING TO EXAMINATION AND RE-EXAMINATION, DESIGNATED AS REGULATION DOCUMENT NUMBER 1750, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.

H. 4494 -- Reps. J. Bailey, Corning, McElveen, Quinn and Scott: A BILL TO AMEND SECTION 38-31-60, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE POWERS AND DUTIES OF THE SOUTH CAROLINA PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION, SO AS TO PROVIDE THAT A COVERED CLAIM DOES NOT INCLUDE ANY CLAIM FILED WITH THE ASSOCIATION AFTER THE FINAL DATE SET BY A COURT FOR THE FILING OF CLAIMS AGAINST THE LIQUIDATOR OR RECEIVER OF AN INSOLVENT INSURER OR ANY CLAIM FILED WITH THE ASSOCIATION MORE THAN EIGHTEEN MONTHS AFTER THE DECLARATION OF INSOLVENCY, WHICHEVER DATE OCCURS FIRST.

The Senate proceeded to a consideration of the Bill. The question being the third reading of the Bill.

Senator MACAULAY proposed the following amendment (4494R001.ASM), which was adopted:

Amend the bill, as and if amended, SECTION 1, page 2, line 2, after the word

/ first / and before the / . / by adding:

/ ; provided, however, that this provision shall be without prejudice to the filing of a claim with the liquidator or receiver of an insolvent insurer or the filing of a claim with any other Guaranty Association or similar organization in another state /

Amend title to conform.

Senator MACAULAY explained the amendment.

There being no further amendments, the Bill was read the third time and ordered returned to the House of Representatives with amendments.

H. 4497 -- Reps. J. Bailey, Corning, McElveen, Quinn and Scott: A BILL TO AMEND SECTION 38-77-30, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEFINITION OF "AUTOMOBILE INSURANCE", SO AS TO DELETE CERTAIN LANGUAGE AND PROVIDE THAT AN AUTOMOBILE INSURANCE POLICY INCLUDES A MOTOR VEHICLE LIABILITY POLICY DEFINED IN SECTION 56-9-20 AND ANY NAMED NONOWNER AUTOMOBILE INSURANCE POLICY.

The Senate proceeded to a consideration of the Bill. The question being the third reading of the Bill.

Senator SALEEBY proposed the following amendment (BBM\9245JM.94), which was adopted:

Amend the bill, as and if amended, by adding the following appropriately-numbered SECTIONS to read:

/SECTION . Section 38-73-1420 of the 1976 Code, as added by Act 148 of 1989, is amended to read:

"Section 38-73-1420. After June 30, 1989 1994, and annually thereafter, the Board of Governors of the South Carolina Reinsurance Facility shall authorize a licensed rating organization approved by the commissioner to file with the commissioner an expense component for private passenger automobile insurance rate or premium charges and after the rating organization with the largest number of members or subscribers has filed a pure loss component for private passenger automobile insurance written by those automobile insurers designated pursuant to Section 38-77-590(a), for risks written by them through producers designated pursuant to that same section with the commissioner. Upon the approval of such component the components, those automobile insurers designated pursuant to Section 38-77-590(A)(a), for risks written by them through producers designated pursuant to that same section, shall utilize these final rate or premium charges, provided that the final rate or premium charges must be discounted from the actuarially indicated rates so that the projected combined loss ratio for risks subject to the final rate or premium charges is one hundred fifteen percent. This rate adjustment must occur evenly over a four-year period. Pursuant to Section 38-77-610, reinsurance facility recoupment charges must be reduced to the extent of resulting reductions in facility operating losses. Automobile insurers designated pursuant to Section 38-77-590(A)(a) are not required to use those same final rates or premium charges for risks written through their agents not appointed pursuant to Section 38-77-590."

SECTION . Section 38-77-30(7) of the 1976 Code is amended to read:

"(7) `Motor vehicle' means every self-propelled vehicle which is designed for use upon a highway, including trailers and semitrailers designed for use with these vehicles, and also including farm tractors or other self-propelled farm implements used upon a highway, but excepting traction engines, road rollers, farm trailers, tractor cranes, power shovels, and well-drillers, and every vehicle which is propelled by electric power obtained from overhead wires but not operated upon rails. For purposes of this chapter, the term automobile has the same meaning as motor vehicle."

SECTION . Section 38-77-350(C) of the 1976 Code, as added by Act 148 of 1989, is amended to read:

"(C) An automobile insurer is not required to make a new offer of coverage on any automobile insurance policy which renews, extends, changes, supersedes, or replaces an existing policy. However, the first renewal notices for existing policies after December 1, 1989, must include the form provided in subsection (A). A policy of automobile insurance offered or issued by a new servicing carrier for the South Carolina Reinsurance Facility to replace a policy previously issued by a former servicing carrier and containing the same coverage limits as the former policy constitutes a valid replacement policy that does not require the new servicing carrier or agent to make a new offer of coverage or to obtain a new application from the insured."/

Renumber sections to conform.

Amend title to conform.

Senator SALEEBY explained the amendment.

There being no further amendments, the Bill was read the third time and ordered returned to the House of Representatives with amendments.

The following Bills were read the third time and ordered sent to the House of Representatives:

S. 1409 -- Senators McConnell and Passailaigue: A BILL TO RELOCATE THE FOLLY BEACH PUBLIC OYSTER GROUND.

S. 1325 -- Senators Moore, Short and Jackson: A BILL TO AMEND SECTION 20-7-5910, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE CHILD FATALITY ADVISORY COMMITTEE, SO AS TO ADD A FORENSIC PATHOLOGIST AND TWO MEMBERS AT LARGE; TO AMEND SECTION 20-7-5915, RELATING TO DUTIES OF THE STATE LAW ENFORCEMENT DIVISION, DEPARTMENT OF CHILD FATALITIES, SO AS TO PROVIDE THAT AN AUTOPSY MUST BE PERFORMED BY A PATHOLOGIST WITH FORENSIC TRAINING RATHER THAN BY A FORENSIC PATHOLOGIST; AND TO AMEND SECTION 17-5-275, RELATING TO AN INSPECTION OF A HOME IN WHICH A CHILD FATALITY OCCURRED SO AS TO PROVIDE THAT THE PETITION MAY BE MADE TO AND AN INSPECTION WARRANT ISSUED BY A LOCAL MAGISTRATE RATHER THAN THE CIRCUIT COURT.

The following Bill having been read the second time with notice of general amendments was ordered placed on the third reading Calendar:

H. 4756 -- Reps. Waites, Inabinett, Moody-Lawrence, Graham, Whipper, Waldrop, Neilson, Scott, Snow, Shissias, Harrelson, Breeland, Govan, Neal, Corning, Rudnick, Rogers, Thomas, Riser and T.C. Alexander: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 8 TO TITLE 32 SO AS TO ENACT THE "SAFE CREMATION ACT" AND TO PROVIDE FOR THE AUTHORIZATION OF, THE PROCEDURES FOR, AND REGULATION OF CREMATION; BY ADDING SECTION 17-5-305 SO AS TO REQUIRE THAT THE REMAINS OF AN UNIDENTIFIED DEAD PERSON MAY NOT BE CREMATED BUT MUST BE BURIED; TO AMEND SECTION 17-5-310, RELATING TO CREMATION PERMITS, SO AS TO PROVIDE THAT A CORONER MAY ISSUE SUCH PERMIT; AND TO AMEND SECTION 17-5-320, RELATING TO REPORTING THE ABSENCE OF AN INVESTIGATION OF VIOLENT OR SUSPICIOUS DEATHS, SO AS TO PROVIDE THAT THE REPORT MAY BE MADE TO A CORONER.

H. 4093 -- Reps. Harwell, G. Bailey, Sharpe, Kinon, Spearman and Jennings: A BILL TO AMEND SECTION 22-3-10, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO MAGISTRATES' CIVIL JURISDICTION IN CERTAIN CASES, SO AS TO INCREASE THIS JURISDICTION FROM TWO THOUSAND FIVE HUNDRED DOLLARS TO FIVE THOUSAND DOLLARS.

The Senate proceeded to a consideration of the Bill. The question being the second reading of the Bill.

Senator WILLIAMS proposed the following amendment (JUD4093.001), which was adopted:

Amend the bill, as and if amended, page 2, line 29, by striking SECTION 2 in its entirety.

Renumber sections to conform.

Amend title to conform.

Senator PASSAILAIGUE explained the amendment.

There being no further amendments, the Bill was read the second time and ordered placed on the third reading Calendar with notice of general amendments.

The following Bill having been read the second time was ordered placed on the third reading Calendar:

H. 5033 -- Rep. Phillips: A BILL TO AMEND SECTION 8-11-640, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CREDIT FOR PRIOR STATE SERVICE IN COMPUTING BONUS, LEAVE EARNINGS, AND THE TRANSFER OF AN EMPLOYEE'S ANNUAL LEAVE BALANCES FROM ONE STATE AGENCY TO ANOTHER, SO AS TO PROVIDE THAT ANY PERMANENT FULL-TIME EMPLOYEE OF A STATE AGENCY OR DEPARTMENT SHALL BE GIVEN FULL STATE SERVICE CREDIT FOR PRIOR SERVICE AS A CERTIFIED EMPLOYEE OF A SCHOOL DISTRICT OF THIS STATE FOR PURPOSES OF COMPUTING BONUS EARNINGS, AND TO PROVIDE THAT THE ABOVE PROVISIONS ONLY APPLY IF THERE IS NOT A BREAK IN SERVICE.

S. 1289 -- Senator McConnell: A JOINT RESOLUTION PROPOSING AN AMENDMENT TO SECTION 3 OF ARTICLE XVII OF THE CONSTITUTION OF SOUTH CAROLINA, 1895, RELATING TO THE GROUNDS FOR DIVORCE, SO AS TO PROVIDE THAT SEPARATION, FOR PURPOSES OF WHEN A HUSBAND AND WIFE HAVE LIVED SEPARATE AND APART WITHOUT COHABITATION FOR A PERIOD OF ONE YEAR, MAY BE VOLUNTARY OR INVOLUNTARY.

On motion of Senator McCONNELL, the Resolution was carried over.

THE CALL OF THE UNCONTESTED CALENDAR HAVING BEEN COMPLETED, THE SENATE PROCEEDED TO A CONSIDERATION OF H. 4821 (CAPITAL RESERVE FUND) AND H. 4822 (SUPPLEMENTAL APPROPRIATION BILL).

H. 4821 -- Ways and Means Committee: A JOINT RESOLUTION TO APPROPRIATE MONIES FROM THE CAPITAL RESERVE FUND FOR FISCAL YEAR 1993-94.

The Senate proceeded to a consideration of the Joint Resolution. The question being the adoption of the amendment proposed by the Committee on Finance.

Senator DRUMMOND asked unanimous consent to make a motion that the following amendment (JIC\6001HTC.94) proposed by the Committee on Finance be withdrawn.

There was no objection.

The Finance Committee proposed the following amendment (JIC\6001HTC.94):

Amend the joint resolution, as and if amended, by striking all after the enacting words and inserting:

/SECTION 1. In accordance with the provisions of Article III, Section 36(B)(2) and (3), Constitution of South Carolina, 1895, and Section 11-11-320(C) and (D) of the 1976 Code, there is appropriated from the monies available in the Capital Reserve Fund for fiscal year 1993-94 the following amounts:

(1) Bass and Perri Lawsuit Settlement $48,000,000

(2) 1994 General Election Expenses 1,200,000

(3) Catawba Indian Settlement 3,000,000

(4) State House Renovation 500,000

(5) Department of Education

Textbooks and Instructional Materials 12,500,000

(6) Department of Education

Bus Maintenance and Fuel 1,500,000

(7) Governor's Office-Executive Control

Transition Costs 50,000

(8) B & C Bd-Office of Human Resources

Agency Head Salary Study 65,000

Total Capital Reserve Fund

Appropriation $66,815,000

Unexpended Balance 16,374

SECTION 2. This joint resolution takes effect thirty days after the completion of the 1993-94 fiscal year in accordance with the provisions of Article III, Section 36(B)(3)(a), Constitution of South Carolina, 1895, and Section 11-11-320(D)(1) of the 1976 Code./

Amend title to conform.

Senators DRUMMOND, J. VERNE SMITH, LAND, SETZLER, LEATHERMAN and LEVENTIS proposed the following Amendment No. 1 (JIC\6093HTC.94), which was adopted:

Amend the Joint Resolution, as and if amended, by striking all after the enacting words and inserting:

/SECTION 1. In accordance with the provisions of Article III, Section 36(B)(2) and (3), Constitution of South Carolina, 1895, and Section 11-11-320(C) and (D) of the 1976 Code, there is appropriated from the monies available in the Capital Reserve Fund for fiscal year 1993-94 the following amounts:
(1) Bass and Perri Lawsuit Settlement $1,486,191
(2) 1994 General Election Expenses 1,200,000
(3a) Catawba Indian Settlement 2,500,000
(3b) Budget & Control-Office of Local Government

Local Government Funds 425,000
(4) State House Renovation 500,000
(5) Department of Education

Textbooks and Instructional Materials 12,500,000
(6) Department of Education

Bus Maintenance and Fuel 1,500,000
(7) Governor's Office-Executive Control

Transition Costs 50,000
(8) B & C Board-Office of Human Resources

Agency Head Salary Study 65,000
(9) House of Representatives

Staff Reclassifications 25,000
(10) Judicial Department

Judges Travel 435,000
(11) Judicial Department

Automation 300,000
(12) State Treasurer

Mini-Bond Program 64,137
(13) Attorney General

Medicaid Fraud Unit 33,000
(14) Prosecution Coordination Commission

State Support Judicial Circuits 291,320
(15) Office of Appellate Defense

Personal Services & Other Operating 200,000
(16) Election Commission

Board Members Compensation Restoration 3,260
(17) B & C Board - Executive Director

Public Service Partnership 100,000
(18) Commission on Higher Education

Formula 5,371,000

Any formula funds for higher education appropriated in excess of the Fiscal Year 1993-94 total state appropriation must be allocated to the institutions of higher education for the funding of the formula for in-state students only.
(19) Higher Education Tuition Grants

Grants 500,000
(20) S. C. State University

Felton Lab 650,000
(21) Department of Education

School Bus Drivers 5,000,000
(22) Department of Education

Bus Maintenance and Gasoline 1,000,000
(23) Educational Television Commission

Expansion of Satellite System 350,000
(24) Vocational Rehabilitation

Shortfall Avoidance 850,000
(25) Vocational Rehabilitation

Case Services 100,000
(26) School for the Deaf & Blind

BabyNet 50,000
(27) School for the Deaf & Blind

Conway Project 100,000
(28) Confederate Relic Room

Personal Services and Operating 4,529
(29) State Library

Public School Service 90,000
(30) State Library

State Aid (to $1.05 per capita) 211,632

The amount appropriated in this section for "Aid to County Libraries" shall be allotted to each county on a per capita basis according to the official United States Census for 1990.
(31) Arts Commission

Rent Increase 4,500
(32) Museum Commission

Restaurant Rent 81,900
(33) Museum Commission

Operating Expenses 50,000
(34) Department of Health & Environmental Control

BabyNet 250,000
(35) Department of Mental Health

BabyNet 50,000
(36) Department of Disabilities & Special Needs

BabyNet 400,000
(37) Department of Disabilities & Special Needs

Spinal Cord/Head Injury Program 1,000,000
(38) Department of Social Services

Emotionally Disturbed Children Deficit 13,675,737
(39) Department of Corrections

Turbeville 8,000,000
(40) Department of Corrections

Dutchman/Coastal Additions 1,000,000
(41) Department of Corrections

Lee County Annualization 1,000,000
(42) Department of Probation, Parole & Pardon

Community Control System Expansion 1,561,538
(43) Department of Probation, Parole & Pardon

Two Community Control Centers 1,500,000
(44) Department of Juvenile Justice

Group Home 60,000
(45) Department of Juvenile Justice

Intensive Care Management 450,000
(46) Department of Juvenile Justice

Therapeutic Foster Care 130,000
(47) Department of Juvenile Justice

Temporary Hold Beds 200,000
(48) Department of Juvenile Justice

Classification System 97,990
(49) Clemson Public Service Activities

Turfgrass 400,000
(50) Clemson Public Service Activities

Ornamental Horticulture 300,000
(51) Clemson Public Service Activities

Water Quality 140,000
(52) Department of Natural Resources

Law Enforcement 300,000
(53) Department of Natural Resources

Aid to Conservation Districts 150,000
(54) Department of Insurance

Rate Section Increase 75,000

Total Capital Reserve Fund Appropriation $66,831,734

SECTION 2. This joint resolution takes effect thirty days after the completion of the 1993-94 fiscal year in accordance with the provisions of Article III, Section 36(B)(3)(a), Constitution of South Carolina, 1895, and Section 11-11-320(D)(1) of the 1976 Code./

Renumber sections to conform.

Amend totals and title to conform.

Senator DRUMMOND explained the amendment.

Senator DRUMMOND moved that the amendment be adopted.

The amendment was adopted.

There being no further amendments, the Bill was read the third time, passed and ordered and ordered returned to the House of Representatives with amendments.

The PRESIDENT assumed the Chair.

H. 4822 -- Ways and Means Committee: A JOINT RESOLUTION TO MAKE SUPPLEMENTAL APPROPRIATIONS FROM FISCAL YEAR 1993-94 SURPLUS REVENUES.

The Senate proceeded to a consideration of the Resolution. The question being the adoption of the amendment proposed by the Committee on Finance.

Senator DRUMMOND asked unanimous consent to make a motion that the following amendment (JIC\6004HTC.94) proposed by the Committee on Finance be withdrawn.

There was no objection.

The Finance Committee proposed the following amendment (JIC\6004HTC.94):

Amend the joint resolution, as and if amended, by striking all after the enacting words and inserting:

/SECTION 1. At the end of fiscal year 1993-94, the Comptroller General shall determine the amount of available surplus. No appropriation may be paid pursuant to this joint resolution until:

(1) the Comptroller General funds agency general fund operating deficits recognized by the State Budget and Control Board, and

(2) the Comptroller General determines the amount of outstanding obligations to the Superb Account, created pursuant to Chapter 2, Title 44 of the 1976 Code and funds the outstanding financial obligation of the Superb program in an amount not to exceed $13 million.

SECTION 2. (A) The appropriations contained in this section are ranked in order of priority and each appropriation beginning with item (1) must be fully funded from the available surplus revenues before the next appropriation is funded.

(B) To the extent that fiscal year 1993-94 general fund surplus revenues are available, the following sums are appropriated from the general fund of the State:
(1) General Reserve Fund Transfer $ 9,930,206
(2) Aid to Subdivisions - Comptroller General

Homestead Exemption 1,996,885
(3) Department of Education

Teacher Fringe Benefits - Hold Harmless 8,500,000

The funds allocated for Teacher Fringe Benefits - Hold Harmless must be distributed to those districts that receive less funding from the employer contributions distribution on the EFA formula as compared to the weighted pupil unit method. From the available funds, the districts shall receive their proportionate share based on their reduced amount to the total reduction, provided no district shall receive more than it would under the weighted pupil method.
(4) Forestry Commission

Fire Control Equipment 4,600,000
(5) Commission on Higher Education

Formula 20,000,000

Any formula funds for higher education appropriated in excess of the Fiscal Year 1993-94 total state appropriation must be allocated to the institutions of higher education for the funding of the formula for in-state students only.
(6) Dept. of Social Services

Child Support Computer 4,182,000
(7) Legislative Dept.-Legislative Council

Printing of Code 238,123
(8) Judicial Department

Automation 1,100,000
(9) Higher Education Tuition Grants

Grants 1,000,000
(10) Budget & Control Board - Office of Human Resources

Total Quality Management 582,669

The Office of Human Resource Management of the Budget and Control Board will be responsible for coordinating the quality training effort for state government agency heads, managers, and employees for the purpose of strategic planning, leadership skills, team facilitator, supervision and customer service training. The funds provided for quality training must not be transferred to any other program or used for other purposes. Funds allocated for this purpose not expended in the prior fiscal year may be carried forward to be expended in the current fiscal year.
(11) Department of Juvenile Justice

Classification System 42,010
(12) ETV

Schools-Receiving Units 1,000,000
(13) ETV

Television Reception/Matching 1,000,000
(14) Health & Human Services Finance Comm.

Managed Care Waiver 2,000,000
(15) Commission on Higher Education

Matching Funds/SCAMP 600,000
(16) Commission on Higher Education

Matching Funds/EPSCOR 2,000,000
(17) USC - Columbia Campus

Southeast Manufacturing Technology Center 1,800,000
(18) Department of Education

Matching Funds NSF/Math & Science 1,800,000
(19) School for the Deaf & the Blind

Vans and Buses 100,000
(20) Department of Archives & History

Mold Treatment 300,000
(21) DHEC - Coastal Council

Grand Strand Renourishment Project 5,250,000

The funds allocated for the Grand Strand Renourishment Project cannot be expended until the U. S. Army Corps of Engineers certifies to the department that the federal funds for the Grand Strand Renourishment Project have been appropriated and are available for expenditure.
(22) DHEC - Coastal Council

Edisto Beach Renourishment Project 1,000,000

The funds allocated for the Edisto Beach Renourishment Project must be matched by the Town of Edisto Beach in the amount of $500,000. Local funds expended by the Town of Edisto Beach on the Edisto Beach Renourishment Project after December 31, 1993, must be used in calculating the local match of $500,000.
(23) DHEC - Coastal Council

Developers Handbook 20,000
(24) DHEC - Coastal Council

Coastal Zone Management Plan 25,000
(25) DHEC - Coastal Council

Public School Curriculum 30,000
(26) Dept. of Natural Resources

Law Enforcement Equipment 735,000
(27) Adjutant General

Maintenance 409,000
(28) Dept. of Commerce

Georgetown Airport Repairs 600,000
(29) Dept. of Commerce

Kingstree Airport Repairs 400,000
(30) Dept. of Commerce

Aircraft Engine Change 250,000
(31) Dept. of Commerce

Matching Funds/Airport Improvements 250,000
(32) Department of Education

Strom Thurmond Institute 40,000
(33) Department of Education

Tugaloo Environmental Education 150,000
(34) Wil Lou Gray Opportunity School

Replacement Vehicles 30,000
(35) Wil Lou Gray Opportunity School

Heating & Air Conditioning 45,000
(36) Wil Lou Gray Opportunity School

Furnishings for Dormitories 75,000
(37) Clemson PSA

Livestock Arena 2,400,000
(38) Clemson PSA

Outdoor Lab 547,680
(39) Department of Agriculture

Lab Equipment 50,000
(40) Department of Agriculture

Gas Chromatograph 42,000
(41) Arts Commission

Community Match 95,000
(42) Arts Commission

Project Grants 35,000
(43) Arts Commission

Rural Community Grants 30,000
(44) Museum Commission

Marketing & Promotion 50,000
(45) Senate

Vehicle - Sergeant at Arms 13,000
(46) Old Exchange Building Commission

Maintenance Costs 15,000

It is the intent of the General Assembly that funds allocated for the Old Exchange Building are to be used by the exchange for maintenance and minor repair costs only.
(47) Sea Grant Consortium

Development Partnership 55,000
(48) Parks, Recreation & Tourism

US Youth Games 50,000

SECTION 3. In the manner provided in Section 2(A) of this joint resolution, fiscal year 1993-94 surplus revenues remaining after the appropriations in Section 2(B) of this joint resolution are appropriated from the general fund of the State as follows:

(1) Budget & Control Board - Office of Local Government

Infrastructure Grant Revolving Fund 5,000,000

The funds provided for the Infrastructure Grant Revolving Fund may be used only as grants for infrastructure projects in economically distressed areas as provided for in Section 41-43-180 of the 1976 Code.

SECTION 4. This joint resolution takes effect upon approval by the Governor./

Renumber sections to conform.

Amend totals and title to conform.

Senators DRUMMOND, J. VERNE SMITH, LAND, SETZLER, LEVENTIS and LEATHERMAN proposed the following Amendment No. 1 (JIC\6092HTC.94), which was adopted:

Amend the Joint Resolution, as and if amended, by striking all after the enacting words and inserting:

/SECTION 1. At the end of fiscal year 1993-94, the Comptroller General shall determine the amount of available surplus. No appropriation may be paid pursuant to this joint resolution until the Comptroller General funds agency general fund operating deficits recognized by the State Budget and Control Board.

SECTION 2. (A) The appropriations contained in this section are ranked in order of priority and each appropriation, beginning with item (1) must be fully funded from the available surplus revenues before the next appropriation is funded.

(B) To the extent that fiscal year 1993-94 general fund surplus revenues are available, the following sums are appropriated from the general fund of the State:
(1) General Reserve Fund Transfer $ 9,930,206
(2) Bass and Perri Lawsuit Settlement 46,513,809
(3) Aid to Subdivisions - Comptroller General

Homestead Exemption 1,996,885
(4) Department of Education

Teacher Fringe Benefits - Hold Harmless 8,500,000

The funds allocated for Teacher Fringe Benefits - Hold Harmless must be distributed to those districts that receive less funding from the employer contributions distribution on the EFA formula as compared to the weighted pupil unit method. From the available funds, the districts shall receive their proportionate share based on their reduced amount to the total reduction, provided no district shall receive more than it would under the weighted pupil method.
(5) Forestry Commission

Fire Control Equipment 4,600,000
(6) Commission on Higher Education

Formula 20,000,000

Any formula funds for higher education appropriated in excess of the Fiscal Year 1993-94 total state appropriation must be allocated to the institutions of higher education for the funding of the formula for in-state students only.
(7) Dept. of Social Services

Child Support Computer 4,182,000
(8) Legislative Dept.-Legislative Council

Printing of Code 238,123
(9) Judicial Department

Automation 1,100,000
(10) Higher Education Tuition Grants

Grants 1,000,000
(11) Budget & Control Board - Office of Human Resources

Total Quality Management 582,669

The Office of Human Resource Management of the Budget and Control Board will be responsible for coordinating the quality training effort for state government agency heads, managers, and employees for the purpose of strategic planning, leadership skills, team facilitator, supervision and customer service training. The funds provided for quality training must not be transferred to any other program or used for other purposes. Funds allocated for this purpose not expended in the prior fiscal year may be carried forward to be expended in the current fiscal year.
(12) Department of Juvenile Justice

Classification System 42,010
(13) ETV

Schools-Receiving Units 1,000,000
(14) ETV

Television Reception/Matching 1,000,000
(15) Health & Human Services Finance Comm.

Managed Care Waiver 2,000,000
(16) Commission on Higher Education

Matching Funds/SCAMP 600,000
(17) Commission on Higher Education

Matching Funds/EPSCOR 2,000,000
(18) USC - Columbia Campus

Southeast Manufacturing Technology Center 1,800,000
(19) Department of Education

Matching Funds NSF/Math & Science 1,800,000
(20) School for the Deaf & the Blind

Vans and Buses 100,000
(21) Department of Archives & History

Mold Treatment 300,000
(22) DHEC - Coastal Council

Grand Strand Renourishment Project 5,250,000

The funds allocated for the Grand Strand Renourishment Project cannot be expended until the U. S. Army Corps of Engineers certifies to the department that the federal funds for the Grand Strand Renourishment Project have been appropriated and are available for expenditure.
(23) DHEC - Coastal Council

Edisto Beach Renourishment Project 1,000,000

The funds allocated for the Edisto Beach Renourishment Project must be matched by the Town of Edisto Beach in the amount of $500,000. Local funds expended by the Town of Edisto Beach on the Edisto Beach Renourishment Project after December 31, 1993, must be used in calculating the local match of $500,000.
(24) DHEC - Coastal Council

Developers Handbook 20,000
(25) DHEC - Coastal Council

Coastal Zone Management Plan 25,000
(26) DHEC - Coastal Council

Public School Curriculum 30,000
(27) Dept. of Natural Resources

Law Enforcement Equipment 735,000
(28) Adjutant General

Maintenance 409,000
(29) Dept. of Commerce

Georgetown Airport Repairs 600,000
(30) Dept. of Commerce

Kingstree Airport Repairs 400,000
(31) Dept. of Commerce

Aircraft Engine Change 250,000
(32) Dept. of Commerce

Matching Funds/Airport Improvements 250,000
(33) Department of Education

Strom Thurmond Institute 40,000
(34) Department of Education

Tugaloo Environmental Education 150,000
(35) Wil Lou Gray Opportunity School

Replacement Vehicles 30,000
(36) Wil Lou Gray Opportunity School

Heating & Air Conditioning 45,000
(37) Wil Lou Gray Opportunity School

Furnishings for Dormitories 75,000
(38) Clemson PSA

Livestock Arena 2,400,000
(39) Clemson PSA

Outdoor Lab 547,680
(40) Department of Agriculture

Lab Equipment 50,000
(41) Department of Agriculture

Gas Chromatograph 42,000
(42) Arts Commission

Community Match 95,000
(43) Arts Commission

Project Grants 35,000
(44) Arts Commission

Rural Community Grants 30,000
(45) Museum Commission

Marketing & Promotion 50,000
(46) Senate

Vehicle - Sergeant at Arms 13,000
(47) Old Exchange Building Commission

Maintenance Costs 15,000

It is the intent of the General Assembly that funds allocated for the Old Exchange Building are to be used by the exchange for maintenance and minor repair costs only.
(48) Sea Grant Consortium

Development Partnership 55,000
(49) Parks, Recreation & Tourism

US Youth Games 50,000
(50) Budget & Control Board - Office of Local Government

Infrastructure Grant Revolving Fund 5,000,000

The funds provided for the Infrastructure Grant Revolving Fund may be used only as grants for infrastructure projects in economically distressed areas as provided for in Section 41-43-180 of the 1976 Code.
(51) Comptroller General

Comprehensive Performance Audit 2,000,000

SECTION 3. This joint resolution takes effect upon approval by the Governor./

Renumber sections to conform.

Amend totals and title to conform.

Senator DRUMMOND explained the amendment.

Senator DRUMMOND moved that the amendment be adopted.

The amendment was adopted.

Senators DRUMMOND, J. VERNE SMITH, LAND, LEATHERMAN, FORD, McCONNELL, PASSAILAIGUE, RICHTER, ROSE, GREG SMITH and WASHINGTON proposed the following Amendment No. 30 (061.BBH), which was adopted:

Amend the amendment, as and if amended, Section 2, page 2, after line 20 by inserting item:

/(10B) Department of Health & Human Services

Other Medicaid Services 445,000

Of the funds allocated for Other Medicaid Services, the department shall expend $445,000 to provide additional reimbursement to the Federally Qualified Health Centers in excess of the Medicare Rural Health Clinic rate cap.
(3C) University of Charleston

Center for Entrepreneurship 1,300,000
(3D) Budget & Control Board-Local Government

Community Development Block Grant 125,000

The funds appropriated herein for Community Development Block Grant are to provide funds for meeting federal matching requirements for administrative costs incurred by the State in administering program income funds received from federally funded economic development grants.
(3E) Dept. of Health and Human Services

Nursing Homes 746,316

The funds allocated for nursing homes in the amount of $746,316 shall be used to provide an additional 100 nursing home beds for FY1994-95.

Amend sections, totals and title to conform.

Senator DRUMMOND explained the amendment.

Senator DRUMMOND moved that the amendment be adopted.

The amendment was adopted.

Senator SETZLER proposed the following Amendment No. 1A (050.bbh), which was adopted:

Amend the amendment, as and if amended, Section 2, page 6, after line 24 by adding an appropriately numbered item to read:
( ) Department of Education
Aid to Subdivisions $18,419,843

The funds provided for the Aid to Subdivisions shall be distributed to the local school districts under the EFA formula.

Amend sections, totals and title to conform.

Senator SETZLER explained the amendment.

Senator SETZLER moved that the amendment be adopted.

The amendment was adopted.

Senators RANKIN, GREG SMITH and ELLIOTT proposed the following Amendment No. 4A (4822R001.LAR), which was adopted:

Amend the amendment, as and if amended, Section 2, page 6, after line 24 by adding an appropriately numbered item to read:

/( ) Parks, Recreation and Tourism

Horry County Air Show 25,000/

Amend sections, totals and title to conform.

Senator RANKIN explained the amendment.

The amendment was adopted.

Senator GIESE desired to be recorded as voting against the adoption of the amendment.

Having voted on the prevailing side, Senator LEVENTIS moved to reconsider the vote whereby Amendment No. 4A (4822R001.LAR), proposed by Senators RANKIN, GREG SMITH and ELLIOTT was adopted.

The motion to reconsider was adopted.

The question then was the adoption of Amendment No. 4A.

Senator LEVENTIS spoke on the amendment.

The amendment was adopted.

Senator GIESE desired to be recorded as voting against the adoption of the amendment.

Senators DRUMMOND, J. VERNE SMITH and GIESE proposed the following Amendment No. 14A (054.BBH), which was adopted:

Amend the amendment, as and if amended, Section 2, page 6, after line 24 by adding an appropriately numbered item to read:

( ) South Carolina Research Authority $8,000,000

The funds provided for the South Carolina Research Authority which shall be used for the purchase and related land development costs for approximately 350 acres of land near an intersection with an interstate highway. This appropriation is specifically contingent upon the receipt of a binding commitment no later than March 31, 1995, from a company which will invest no less than $150,000,000 in the construction of a manufacturing and/or research facility on approximately one third of the property.

This acreage shall be leased for a nominal amount to the company with a purchase option. If the company exercises the purchase option before or at the expiration of the lease, the net proceeds from the sale shall be returned to the general fund of the State of South Carolina.

The remaining acreage not required by the company will be held by the South Carolina Research Authority for development as a research park. Upon the future sale or sales of such property, the net proceeds of sale shall be returned to the general fund in an amount equal to the purchase and development costs of the property which were funded through this appropriation.

Amend sections, totals and title to conform.

Senator DRUMMOND explained the amendment.

Senator DRUMMOND moved that the amendment be adopted.

The amendment was adopted.

Senator SETZLER proposed the following Amendment No. 24 (115.SD), which was adopted:

Amend the bill, as and if amended, Section 2, page 3, after line 8, by striking:

/School-Receiving Units $1,000,000

and inserting:

/School-Receiving Units $1,750,000

Further amendment the bill, as and if amended, SECTION 2, page 3, line 10, by striking:

/Television Reception/Matching $1,000,000

and inserting:

/Television Reception/Matching $250,000

Amend sections, totals and title to conform.

Senator SETZLER explained the amendment.

Senator SETZLER moved that the amendment be adopted.

The amendment was adopted.

Senator REESE proposed the following Amendment No. 6A (052.BBH), which was tabled:

Amend the amendment, as and if amended, Section 2, page 3, Item 20, lines 21-22, by striking:

/(20) School for the Deaf and the Blind
Vans and Buses 100,000/

and inserting:

/(20) School for the Deaf and the Blind
Vans and Buses 248,000/.

Amend sections, totals and title to conform.

Senator REESE explained the amendment.

Senator REESE moved that the amendment be adopted.

Senator DRUMMOND moved to lay the amendment on the table.

The amendment was laid on the table.

Senator MARTIN proposed the following Amendment No. 7A (103.DLR), which was tabled:

Amend the amendment, as and if amended, Section 2, page 6, line 24 by adding an appropriately numbered item to read:

( ) Department of Natural Resources

Cooperative Wildlife Facility 500,000

Amend sections, totals and title to conform.

Senator MARTIN explained the amendment.

Senator DRUMMOND moved to lay the amendment on the table.

The amendment was laid on the table.

Senator GIESE proposed the following Amendment No. 8A (106.dlr), which was tabled:

Amend the amendment, as and if amended, Section 2, page 5, line 16 by striking item (38) in its entirety.

Amend sections, totals and title to conform.

Senator GIESE explained the amendment.

Senator GIESE moved that the amendment be adopted.

Senator DRUMMOND moved to lay the amendment on the table.

The amendment was laid on the table.

At 2:12 P.M., Senator PEELER assumed the Chair.

At 2:45 P.M., Senator MITCHELL requested a leave of absence until 11:00 A.M., Wednesday.

At 2:45 P.M., Senator REESE requested a leave of absence beginning at 3:00 P.M., for the balance of the day.

Senator GIESE proposed the following Amendment No. 9B (107.DLR), which was tabled:

Amend the amendment, as and if amended, Section 2, page 4, line 1 by striking item (22) in its entirety.

Amend sections, totals and title to conform.

Senator GIESE argued in favor of the adoption of the amendment.

Senator LEATHERMAN raised a Point of Order that the Senator was our of order inasmuch as he was filibustering his own amendment.

The ACTING PRESIDENT informed the Senator at the podium that he would be monitoring the speaker's remarks.

Senator GIESE continued arguing in favor of the adoption of the amendment and Senators RANKIN, ELLIOTT, GREG SMITH, WASHINGTON and ROSE argued contra.

Senator GREG SMITH moved to lay the amendment on the table.

The amendment was laid on the table.

Senator ROSE desired to be recorded as voting in favor of the motion to table the amendment.

Senator GIESE proposed the following Amendment No. 13A (108.DLR), which was tabled:

Amend the amendment, as and if amended, Section 2, page 5, line 19 by striking line 19 and inserting:

/Emergency Repairs 200,000/.

Amend sections, totals and title to conform.

Senator GIESE explained the amendment.

Senator DRUMMOND moved to lay the amendment on the table.

The amendment was laid on the table.

At 3:25 P.M., the PRESIDENT assumed the Chair.

Senator LAND proposed the following Amendment No. 33 (JIC\6095HTC.94), which was adopted:

Amend the joint resolution, as and if amended, by adding an appropriately numbered SECTION to read:

/SECTION ___(A) Section 1-11-710(A)(7) of the 1976 Code, as added by Act 364 of 1992, is amended to read:

"(7) special purpose districts created by act of the General Assembly that provide gas, water, or sewer, recreation, or hospital service, or any combination of such these services;

(8) municipalities."

(B) This section takes effect upon approval by the Governor./

Renumber sections to conform.

Amend totals and title to conform.

Senator LAND explained the amendment.

The amendment was adopted.

Senators MATTHEWS, WASHINGTON, PATTERSON, FORD and GLOVER proposed the following Amendment No. 15A (4822R002.JWM), which was adopted:

Amend the amendment, as and if amended, Section 2, page 6, after line 24 by adding an appropriately numbered item to read:

/( ) Denmark Technical College

Equipment and Repairs 305,500/

Amend sections, totals and title to conform.

Senator WASHINGTON explained the amendment.

Senator WASHINGTON moved that the amendment be adopted.

The amendment was adopted.

Senator MATTHEWS proposed the following Amendment No. 31 (200.DLR), which was adopted:

Amend the amendment, as and if amended, Section 2, page 2, after line 20 by inserting an appropriately numbered item to read:

/( ) S. C. State College

Engineering School 250,000/

Amend sections, totals and title to conform.

Senator MATTHEWS explained the amendment.

Senator MATTHEWS moved to lay the amendment on the table.

The amendment was adopted.

Senator REESE proposed the following Amendment No. 18A (056.BBH), which was tabled:

Amend the amendment, as and if amended, Section 2, page 6, after line 24 by adding an appropriately numbered item to read:
( ) School for the Deaf and Blind
Student Transport Vehicles 175,000

Amend sections, totals and title to conform.

Senator DRUMMOND moved to lay the amendment on the table.

The amendment was laid on the table.

Senator REESE proposed the following Amendment No. 19A (057.BBH), which was tabled:

Amend the amendment, as and if amended, Section 2, page 6, after line 24 by adding an appropriately numbered item to read:

( ) School for the Deaf and Blind

Student Transportation Vehicles 100,000

Amend sections, totals and title to conform.

The amendment was laid on the table.

At 3:40 P.M., Senator MARTIN assumed the Chair.

Senator REESE proposed the following Amendment No. 20A (058.BBH), which was tabled:

Amend the amendment, as and if amended, Section 2, page 6, after line 24 by adding an appropriately numbered item to read:

( ) Department of Education
Spartanburg School Dental Program 152,000

Amend sections, totals and title to conform.

Senator DRUMMOND moved to lay the amendment on the table.

The amendment was laid on the table.

Senator REESE proposed the following Amendment No. 21A (059.BBH), which was tabled:

Amend the amendment, as and if amended, Section 2, page 6, after line 24 by adding an appropriately numbered item to read:

( ) Department of Mental Health

New Day Club House 60,000

Amend sections, totals and title to conform.

Senator REESE explained the amendment.

Senator DRUMMOND moved to lay the amendment on the table.

The amendment was laid on the table.

Senators WASHINGTON, MATTHEWS and PATTERSON proposed the following Amendment No. 22 (104.SD), which was tabled:

Amend the bill, as and if amended, SECTION 2, page 6, by adding an appropriately numbered item immediately after line 24 to read:

/USC - Salkehatchie Campus

Completion of Library 445,00/

Senator DRUMMOND moved to lay the amendment on the table.

The amendment was laid on the table.

Senator MACAULAY proposed the following Amendment No. 25 (060.BBH), which was adopted:

Amend the amendment, as and if amended, Section 2, page 5, lines 6-9 by striking Item 33 and Item 34.

Amend the bill further, as and if amended, Section 2, page 2, after line 5 by adding appropriately numbered items to read:
(4B) Department of Education
Strom Thurmond Institute 40,000
(4C) Department of Education
Tugaloo Environmental Education 150,000

Senator DRUMMOND explained the amendment.

Senator DRUMMOND moved that the amendment be adopted.

The amendment was adopted.