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, hear the words of St. Paul to the Philippians (NRSV) (2:12-13):
"Therefore, my beloved... work out
your own salvation with fear and trembling;
for it is God who is at work in you, en-
abling you both to will and to work for
His good pleasure."
Let us pray.
Our heavenly Father, as our Governor and his team travel to the Pacific rim to establish goodwill and mutual trade with our global neighbors, we do not hesitate to pray for the success of an "economic mission" because You taught us in Our Lord's Prayer to pray:
"Give us this day our daily bread." So, we pray Your blessing upon our Governor and his team as they lead us to work out our own economic and political as well as spiritual salvation with "fear and trembling" as St. Paul exhorted the Philippians.
You have brought us, O Lord, to this time and place. Enlarge our horizons and equip us for our stewardship in making our world a neighborhood of friends concerned about each other... in the Name and Spirit of Him who said, "Behold, I call you friends."
Amen.
Senator GIESE made the point that a quorum was not present. It was ascertained that a quorum was not present.
Senator GIESE moved that a call of the Senate be made. The following Senators answered the call:
Alexander Bryan Cork Courson Courtney Drummond Elliott Ford Giese Glover Hayes Jackson Land Lander Leatherman Leventis Martin McConnell McGill Mescher Moore Passailaigue Peeler Reese Richter Rose Russell Ryberg Saleeby Short Smith, G. Smith, J.V. Stilwell Thomas Waldrep Washington Williams Wilson
A quorum being present, the Senate resumed.
On motion of Senator McCONNELL, with unanimous consent, the Report of the Judicial Screening Committee was ordered printed in the Journal of Tuesday, March 14, 1995.
Pursuant to Section 2-19-30 copies of the complete transcript shall be permanently retained by the Clerk of the Senate and available to members upon request.
Report of Candidate Qualifications
Date and Time Draft Report Issued: Friday, March 10, 1995 - 4:30 p.m.
Date and Time Final Report Issued: Tuesday, March 14, 1995 - 12:00 noon
Judicial candidates are not free to seek or accept commitments until Tuesday, March 14, 1995, at 12:00 noon.
The Joint Committee found all the candidates included in this report to be legally qualified for judicial office. All other findings are detailed in the attached report. Any candidate with an "*" indicated in the following charts denotes the Joint Committee's expression of concern over that candidate with respect to a particular evaluative criteria.
[1] "Compliance with Canons" is an indication about whether the candidate has complied with the applicable canons of conduct which govern attorneys and judges.
[1] "Compliance with Canons" is an indication about whether the candidate has complied with the applicable canons of conduct which govern attorneys and judges.
[1] "Compliance with Canons" is an indication about whether the candidate has complied with the applicable canons of conduct which govern attorneys and judges.
[2] "Compliance with Canons" is an indication about whether the candidate has complied with the applicable canons of conduct which govern attorneys and judges.
The Joint Legislative Committee for Judicial Screening is charged by law to consider the qualifications of candidates for the judiciary. South Carolina Code Section 2-19-30 provides that the Joint Committee must render findings as to whether each candidate is qualified for service on the bench, but does not permit the Joint Committee to specify degrees of qualification.
The Joint Committee found that all candidates treated in this report are legally qualified for service on the bench. Section 15, Article V of the South Carolina Constitution provides that judges of the appellate and circuit courts must be:
(1) citizens of the United States and of South Carolina;
(2) at least twenty-six years old;
(3) licensed attorneys who have been licensed for at least five years; and
(4) residents of South Carolina for at least five years immediately preceding the election.
South Carolina Code Section 1-23-520 provides that judges of the Administrative Law Judge Division must also meet these eligibility requirements. The Joint Committee's finding that a candidate is legally qualified means that the candidate meets these legal criteria for judicial office. This report details each candidate's qualifications as they relate to the Joint Committee's nine evaluative criteria.
The Joint Committee conducts a thorough investigation of each candidate's professional, personal, and financial affairs, and holds public hearings during which it questions each candidate on a wide variety of issues. The Joint Committee's investigation focuses on nine evaluative criteria. These evaluative criteria are: integrity and impartiality; legal knowledge and ability; professional experience; judicial temperament; diligence and industry; mental and physical capabilities; financial responsibilities; public service; and ethics. The Joint Committee's investigation includes the following:
(1) survey of the bench and bar;
(2) SLED and FBI investigation;
(3) credit investigation;
(4) grievance investigation;
(5) study of application materials;
(6) verification of ethics compliance;
(7) search of newspaper articles;
(8) conflict of interest investigation;
(9) court schedule study;
(10) study of appellate record;
(11) court observation; and
(12) investigation of complaints.
While the law provides that the Joint Committee is to make findings as to qualifications, the Joint Committee views its role as also including an obligation to consider candidates in the context of the judiciary on which, if elected, they will serve and, to some degree, govern. To that end, the Joint Committee inquires as to the quality of justice delivered in the courtrooms of South Carolina and seeks to impart, through its questioning, the view of the public it represents as to matters of legal knowledge and ability, judicial temperament, and the absoluteness of the Judicial Canons as to recusal for conflict of interest, prohibition of ex parte communication, and the disallowance of the acceptance of gifts.
The Joint Committee expects each candidate to possess a basic level of legal knowledge and ability, to have experience that would be applicable to the office sought, and to exhibit a strong adherence to codes of ethical behavior. These expectations are all important and excellence in one category does not make up for deficiencies in another.
The Joint Committee does not expect candidates to know every aspect of the law, but believes that judges must possess a working knowledge of the basic issues of practice and procedure they encounter on the bench each day. Judges naturally make mistakes and encounter law with which they may not be familiar, but judges must have some basic level of knowledge in order to manage their courtrooms and reduce the risk of error. Trial court judges must not rely on appellate courts to correct procedural mistakes; they must do their jobs right the first time so that litigants are not subjected to the costs and delay of appeal.
In addition to possessing a basic level of legal knowledge and ability, candidates should have some experience applicable to the offices they seek. The Joint Committee recognizes that the practice of law today requires many lawyers to specialize or at least focus their practice on a few aspects of the law. With that in mind, the Joint Committee expects that candidates may have much more experience in one area of the law than in others. Therefore, it is not terribly important that a candidate have very broad experience, but is essential that the candidate have practiced in an area of the law with a level of sophistication such that the candidate has experience with the type of issues encountered if elected to the bench.
A sense of fairness and compassion are also important qualities in a judge. The Joint Committee expects candidates to have strictly followed all ethical rules including the Rules of Professional Conduct governing attorneys practicing in South Carolina, the Code of Judicial Conduct regulating the activities of all judges in South Carolina, and the more generally accepted, but unwritten, rules of fairness and respect which should govern interaction among all of this state's citizens.
The Joint Committee's Chairman believed it was also important for candidates to understand separation of powers principles and the role of the judiciary in relationship to the General Assembly. In that regard, he asked candidates questions about the presumption of constitutionality to be afforded the laws of the General Assembly, the validity of the death penalty, whether or not it would be appropriate for the judicial branch to order the General Assembly to appropriate or expend funds, and the political abstention doctrine.
The Joint Committee is constantly seeking to improve its screening process, and towards that end has made four significant changes this year. The first change is that all candidates were asked questions about practice and procedure to ensure that they were conversant in basic principles that judges encounter on the bench every day. The questions were tailored to the seat for which the candidate is offering; for example, administrative law judge candidates were asked questions about the Administrative Law Judge Division procedure and the Administrative Procedures Act.
The Joint Committee has carefully analyzed each candidate's responses to these practice and procedure questions and has scored them as follows:
(1) The candidate received 4 points for each answer that was a clear, concise, correct response that demonstrated knowledge of the general rules and exceptions and was more than a textbook response in that it included citations to the law on point or otherwise demonstrated expansive knowledge of the law.
(2) The candidate received 3 points for each answer that was a clear, concise, correct response that demonstrated knowledge of the general rules and exceptions.
(3) The candidate received 2 points for each answer that was a generally correct and clear response.
(4) The candidate received 1 point for each answer that was a rambling response having some relationship to the general area of the law pertaining to the questions or was a correct response after substantial assistance from the questioner.
(5) The candidate received no points for questions to which there was no response or a response having very little relationship to the general area of law that was the subject of the question.
This report also describes the type of questions each candidate was asked so that the reader can make an independent evaluation of the candidate's performance.
The second change is that candidates and persons affiliated with them were not allowed to be present for the screening of other candidates. This rule was instituted so that candidates could not listen to the questions and prepare their answers ahead of time. It was an effort to ensure that all candidates were treated fairly.
The third change relates to the manner in which the Joint Committee accepts testimony. The Joint Committee accepts testimony in two ways. In both cases the witness must file an affidavit with the Joint Committee forty-eight hours prior to the public hearing so that the candidate and the Joint Committee have advance notice of the nature of the testimony. The first option is for affiants to voluntarily come forward and testify in public session. This is the traditional method, and it balances the need for a thorough investigation with the need to protect each candidate's rights. The second option is for affiants to contact the Joint Committee's legal staff and discuss proposed testimony in confidence. The legal staff knows the identity of the affiant, but conveys the affiant's comments to the Joint Committee, the candidate, and the public in the form of an affidavit identified only by a number. In other words, the confidential affiant's comments are considered in public session, but the affiant's identity is kept confidential except to members of the Joint Committee's legal staff. This method of testimony is used by the U.S. Senate Judiciary Committee in the screening of candidates for the federal bench. This change was instituted to encourage persons with firsthand information to come forward. The Joint Committee received only one confidential affidavit, and the Joint Committee's two attorneys knew the identity of the affiant and relayed certain background information to the Joint Committee and the candidate.
The fourth change is that the Joint Committee has decided that it will not formally issue this report until copies of a draft report have been available for 48 hours. Candidates may not seek commitments until the report is formally issued. The Joint Committee's goal with this new procedure is to ensure that members of the General Assembly have a chance to read and consider the contents of the screening report before they are asked to commit to a candidate. This new procedure will improve the screening process by allowing legislators to make more informed decisions about which candidate to support.
This report is the culmination of several months of investigatory work and four weeks of public hearings. The Joint Committee takes its responsibilities very seriously as it believes that the quality of justice delivered in South Carolina's courtrooms is directly affected by the thoroughness of its screening process. Please carefully consider the contents of this report as we believe it will help you make a more informed decision. If you would like to review portions of the screening transcript or other public information about a candidate before it is printed in the Journal, please contact Michael Couick or Nancy Goodman at 212-6610.
This report conveys the Joint Committee's findings as to the qualifications of the following candidates in the order listed below:
The Honorable Ralph King Anderson, Jr. The Honorable Costa M. Pleicones
The Honorable E. C. Burnett, III The Honorable C. Victor Pyle, Jr.
The Honorable Tom J. Ervin The Honorable Kaye G. Hearn
Ben A. Hagood, Jr., Esquire The Honorable H. Samuel Stilwell
The Honorable C. Tolbert Goolsby, Jr.
James E. Brogdon, Jr., Esquire The Honorable B. Hicks Harwell
The Honorable Tom J. Ervin The Honorable H. Dean Hall
Amie Lois Clifford, Esquire The Honorable Daniel E. Martin, Sr.
Dale L. DuTremble, Esquire
The Honorable J. Derham Cole
The Honorable J. Ernest Kinard, Jr.
Ray Stevens, Esquire V. Lynn Wiggins, Esquire
The Honorable Alison R. Lee
In addition, the Joint Committee has found the Honorable Frank Eppes and the Honorable James B. Stephen qualified for continued service as retired judges and has communicated its findings to the Supreme Court by way of letters to the Chief Justice.
Joint Committee's Finding: Legally Qualified
Judge Anderson was screened on February 2, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Judge Anderson's character, integrity, and reputation are outstanding.
Judge Anderson demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. He testified as to the issue of ex parte communications, that his rule is to be firm but courteous in avoiding such improper conduct. He said that he does not even allow lawyers to line up the hearings or their conferences with him ex parte. Judge Anderson testified that he uses his staff as a buffer and approaches the bench to hear a matter for the first time with every side on a level playing ground.
Judge Anderson testified that he has never failed to recuse himself when so requested by the parties. He also testified that he would not hear a matter in which he held even a de minimis financial interest.
When asked about the acceptance of gifts and social hospitality, Judge Anderson testified that he has personally withdrawn from some social events so as to not have a lot of activities with lawyers who practice before him.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its own survey and from the Bar indicated that Judge Anderson is very intelligent and knowledgeable. The Bar described him as intelligent and as a considerable legal scholar. Judge Anderson has complied with the judicial continuing education requirements and has taught many continuing legal education classes over the last several years. Judge Anderson's book, Nuts and Bolts of South Carolina Substantive and Procedural Law, was published by the Bar and has been extremely well received.
When asked about his mastery of language, Judge Anderson stated that he loves words and is a student of language. He pointed out that he has not used any terms in his opinions that have not appeared in United States Supreme Court opinions. He also testified that he was born in a rural setting and can communicate with people of limited education.
Judge Anderson's score on the Joint Committee's practice and procedure questions was 3.38 out of 4 possible points. Judge Anderson answered questions about how a juror might pose questions on a witness, when a witness can testify out of the defendant's presence, Allen charges, and the use of expert testimony extremely well. He was also familiar with when jeopardy attaches and the standards of appellate review.
In response to the Chairman's questions about separation of powers and the role of the judiciary, Judge Anderson testified that the judiciary's role is to interpret and not make the law. He also stated that acts of the legislature are presumed valid and that the Supreme Court does not have the power to order the legislature to appropriate funds unless the funding of the court itself is at issue. Judge Anderson testified that the death penalty is constitutional and that he is a proponent of the mediation process.
3. Professional Experience:
Judge Anderson has been on the bench for fifteen years. Prior to his election he was in private practice for twenty years.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicates that Judge Anderson's temperament is outstanding.
5. Diligence and Industry:
Judge Anderson was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry. The Bar noted that Judge Anderson has a strong work ethic and those comments were consistent with other input the Joint Committee received.
Judge Anderson testified that he would serve a full term if elected and that he had no immediate plans to return to private practice.
6. Mental and Physical Capabilities:
Judge Anderson appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Anderson has managed his financial affairs responsibly.
8. Public Service:
Judge Anderson has been a circuit court judge since 1979. He was a member of the House of Representatives from 1972 to 1979.
9. Ethics:
Judge Anderson testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or
(c) used his judicial letterhead or the services of his staff to campaign.
Judge Anderson testified that he has not spent any money on his campaign and is, therefore, not required to file a report with the House or Senate Ethics Committees.
Judge Anderson also testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
Last year Judge Anderson campaigned on the House floor in violation of House Rule 10.1. Judge Anderson testified that he made one appearance on the House floor last year which was a mistake that he would not repeat.
Judge Anderson testified that he has not received royalties or other income from the publication of his book, Nuts and Bolts of South Carolina Substantive and Procedural Law.
10. Miscellaneous:
Judge Anderson testified that he desires to be on the Supreme Court where he can write and have some degree of impact with regard to shaping the law. He said that the privilege to serve in this capacity would be the fulfillment of a lifetime dream.
The Joint Committee did not receive any complaints or statements in opposition to Judge Anderson's election.
[3] Representative Donald W. Beatty did not participate in the Joint Committee's investigation, public hearing, deliberations, or voting concerning Judge Burnett.
Joint Committee's Finding: Legally Qualified
Judge Burnett was screened on February 9, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
Judge Burnett demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. The majority of the input the Joint Committee received from its own survey and the report of the Bar was that Judge Burnett's character, integrity, and reputation are good, but a number of anonymous survey respondents questioned Judge Burnett's ability to be impartial and several witnesses who testified before the Joint Committee in public session raised that and other concerns related to Judge Burnett's integrity and impartiality. Judge Burnett has also been reprimanded by the Supreme Court in a matter that tends to raise questions about his objectivity and fairness.
Ms. Kathryn Shelton, a Columbia attorney, filed a public affidavit alleging that Judge Burnett's conduct was improper in a criminal matter in which she represented the defendant. The defendant is currently incarcerated and has an appeal pending, and the Joint Committee, therefore, kept his name confidential throughout its handling of the matter. It did, however, subpoena four members of his family who were present during the course of the trial, the two assistant solicitors who handled the matter for the state, and an attorney who assisted Ms. Shelton during the trial.
Ms. Shelton made three allegations. The first was that Judge Burnett failed to recuse himself when, during the course of the trial, the defendant's brother first arrived and noted that he was related by marriage to Judge Burnett. There had apparently been some arguments and a general pattern of dissention between the defendant and his brother, and it was alleged that the defendant's brother had discussed the matter with Judge Burnett prior to its coming to trial. While Judge Burnett did acknowledge that he is related to the defendant's brother, he testified that he had never discussed the matter with the brother, had met him only once before, and did not realize at the start of the case that he was related to the defendant's family. The defendant's brother also testified before the Joint Committee and supported Judge Burnett's version of the events.
The primary evidence the Joint Committee looked to on this issue, however, was the transcript. The transcript was reviewed in executive session to protect the identity of the defendant, but it clearly reflects a discussion of the relationship on the record and, most importantly, Ms. Shelton's approval for the judge to continue presiding over the matter. The Joint Committee took the added precaution of taking the testimony of the court reporter and reviewing the audio tape of the proceedings to verify that the transcript was accurate. It was indeed a verbatim copy of what occurred and reflects Ms. Shelton's waiver of this issue. The Joint Committee found, on the basis of the testimony and Ms. Shelton's waiver, that Judge Burnett's conduct was appropriate as to this issue. The Canons of Judicial Conduct require a judge to note any potential conflict of interest on the record and obtain the parties' consent to proceed. Judge Burnett did so in this matter and his conduct was, therefore, not inappropriate. Judge Burnett testified in general that he entertains motions for recusal whenever they come up and recuses himself at the request of either party. He also indicated that if he held even a de minimis financial interest in a matter, he would disclose that fact and recuse himself unless both parties agreed that he should hear the matter.
Ms. Shelton's second allegation was that after the jury's verdict Judge Burnett did not allow her leave to prepare pleas in mitigation and made unnecessary disparaging remarks about the defendant during his sentencing. Once again, the Joint Committee relied primarily on the record which indicated that Judge Burnett did allow Ms. Shelton to make general remarks about the defendant and, most importantly, that Ms. Shelton did not request leave to prepare pleas in mitigation. The record reflects that Judge Burnett did inquire as to whether the defendant was entitled to any presentence investigation, but the assistant solicitor responded that he was not so entitled and Ms. Shelton did not object, disagree, or otherwise indicate her desire to submit pleas in mitigation. The Joint Committee, therefore, found, primarily on the basis of the record, that Judge Burnett's conduct was appropriate to the pleas in mitigation issue.
The Joint Committee did question Judge Burnett as to whether his sentencing remarks before the jury tended to indicate he had a preconceived notion that the defendant was guilty. Judge Burnett testified in response that he almost always keeps a jury for the sentencing phase because he wants them to leave believing that they did a good job and that justice was done. He did, however, admit that his remarks could be construed to indicate that he had thought the defendant was guilty since the beginning of the trial.
Ms. Shelton's third allegation was that Judge Burnett engaged in ex parte communication with the assistant solicitor. Ms. Shelton alleged that she overheard Judge Burnett and the assistant solicitor engaged in an ex parte discussion of possible sentences for her client. She testified that she heard this discussion while headed back towards the judge's chambers and through a partially opened door. Ms. Shelton said that she clearly heard the assistant solicitor propose a sentence, but could hear only the sound of Judge Burnett's voice and not the actual words he said in response. The defendant in the matter filed an affidavit with the Joint Committee that corroborated Ms. Shelton's testimony. He said that he saw Judge Burnett and the assistant solicitor engaged in ex parte communication when he was being escorted back to the holding facility.
Solicitors and their assistants are responsible for the scheduling of the criminal docket in this state. It is, therefore, common for assistant solicitors to be discussing scheduling matters with a judge during breaks in a trial. It would, however, be a violation of the Canons of Judicial Conduct for there to be ex parte communication about any substantive part of a matter. However, the Joint Committee cautions judges that ex parte communication about a scheduling matter could give the appearance of impropriety if the solicitor were engaged in a trial at the time and suggests that judges include defense counsel in the conversation or inform them that the conversation is about a scheduling matter.
The assistant solicitor in this matter testified that she might have engaged in ex parte communication with Judge Burnett, but if so, it was about a scheduling matter and not the case Ms. Shelton was handling. The Joint Committee does not believe that the Judge and assistant solicitor would have been talking about a scheduling matter, however, as Judge Burnett testified that this case was handled on a Wednesday, Thursday, and Friday and he was not scheduled to be in Richland County the next week.
Another possible explanation for the alleged ex parte communication was that the assistant solicitor attempted to engage in ex parte communication, but Judge Burnett asked her to stop. Ms. Shelton did in fact testify that she could hear Judge Burnett's voice, but could not make out what he said. Neither Judge Burnett nor the assistant solicitor indicated that was what occurred, however, and the Joint Committee believes that had that occurred, the Canons of Judicial Conduct would have required Judge Burnett to report the incident which he did not.
Judge Burnett testified that he had no recollection of speaking with the assistant solicitor alone in his office and adamantly denied the allegations of improper conduct. He indicated that he does his best to stop any ex parte communication before it gets started because it is his duty to ensure fair treatment for both the defendant and the State.
Two of Ms. Shelton's allegations were clearly refuted by the transcript she had in her possession. The only other direct evidence the Joint Committee had on the ex parte issue was the affidavit of the defendant who is incarcerated and could, therefore, not testify before the Joint Committee. The defendant's affidavit does substantiate Ms. Shelton's testimony, but it is difficult for the Joint Committee to judge his credibility. Both the attorney who assisted Ms. Shelton at trial and the other assistant solicitor who was not the subject of the ex parte communication allegation testified that they did not witness any improper conduct.
The conflicting testimony on this issue and the Joint Committee's inability to assess the defendant's credibility led the Joint Committee to decide that it did not have enough information to support Ms. Shelton's allegation of improper ex parte communication.
Judge Burnett testified that the three attorneys who wrote letters of reference to be included in his application materials do not practice before him. He also testified that he does not accept gifts, but does accept ordinary social hospitality.
The Joint Committee questioned Judge Burnett about a case in which he was reversed by the Supreme Court for entering the jury room during the penalty phase of the trial without counsel and giving the jury a supplemental instruction directed at jurors who were voting against the death penalty. The Supreme Court described Judge Burnett's conduct in the matter as "not only improper but highly prejudicial." Judge Burnett denied wrongdoing in the matter and testified that he simply went to the door of the jury room to answer a question and then put the matter on the record.
The Supreme Court issued a private reprimand finding that Judge Burnett violated the Canons of Judicial Conduct by lending his name to an advertisement supporting a bill pending in the General Assembly and for giving a newspaper interview regarding the matter. The Joint Committee asked for and received the Supreme Court's exemption from the normal rules which afford confidentiality to private reprimands because this matter is already one of wide-spread public knowledge. The Joint Committee believes that Judge Burnett's conduct in this matter reflects poor judgment as members of the judiciary are strictly prohibited from personally advocating various political positions in a public forum. The Joint Committee discussed this issue in Judge Burnett's 1993 and 1994 screenings.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its own survey and from the Bar indicated that Judge Burnett is very intelligent and knowledgeable. Judge Burnett has complied with the judicial continuing education requirements.
Judge Burnett's score on the Joint Committee's practice and procedure questions was 2.76 out of a 4 possible points. Judge Burnett demonstrated a thorough knowledge of a judge's role as the thirteenth juror, use of prior criminal convictions in civil trial, how a juror might pose a question to a witness, the introduction of evidence of insurance, damages recoverable without a hearing in a default judgment, how a witness can testify outside of the defendant's presence, mandatory minimum sentences, the admissibility of expert testimony, the standards of appellate review, amicus curiae briefs, White v. State review, grievance procedure, and the promulgation of rules of procedure. Judge Burnett was familiar with the attachment of jeopardy, the type of matters that may not be referred to the Court of Appeals, writs of supersedeas, and writs of certiorari. Judge Burnett was not familiar with whether it is a necessary prerequisite for the admission of scientific evidence that the theory and general technique be generally accepted in the scientific community.
In response to the Chairman's questions about separation of powers and the role of the judiciary, Judge Burnett testified that acts of the legislature are entitled to a presumption of constitutionality. He also stated that expenditures are within the discretion of the General Assembly and that courts have no role in lawmaking. Judge Burnett testified that the death penalty is constitutional.
3. Professional Experience:
Judge Burnett has been on the bench for fifteen years. He first served as a probate court judge, then as a family court judge, and currently as a circuit court judge. Prior to his election to the probate court bench, he practiced law and focused on criminal law and workers' compensation matters.
4. Judicial Temperament:
The Joint Committee received mixed reviews of Judge Burnett's temperament from its anonymous survey respondents, but the Bar characterized his temperament as excellent. The anonymous input the Joint Committee has received on this issue over the last two years does seem to indicate that if Judge Burnett was lacking in this category at one time his conduct has improved in recent years.
Mr. Thomas McDow filed an affidavit and testified that Judge Burnett made him and another attorney sit and wait all day when another judge had already continued their case and it had appeared on Judge Burnett's docket by mistake. Mr. McDow alleged that Judge Burnett exhibited poor temperament by requiring the lawyers to wait when he could have taken a minute to listen and understand that they were there by mistake. Another attorney in the matter filed an affidavit, but did not testify, to the effect that Judge Burnett did not make them wait and did not exhibit poor temperament. Judge Burnett also testified that he did not make the attorneys wait unnecessarily. The Joint Committee was, therefore, faced with testimony in direct contradiction.
The Joint Committee did not receive other testimony or direct evidence of a problem with Judge Burnett's temperament and is satisfied that he is exhibiting good judicial temperament.
5. Diligence and Industry:
Judge Burnett was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
Judge Burnett testified that he would serve a full term if elected and that he had no plans to return to private practice.
6. Mental and Physical Capabilities:
Judge Burnett appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Burnett has managed his financial affairs responsibly.
8. Public Service:
Judge Burnett has been a judge since 1980. He was a member of the House of Representatives from 1973 to 1974.
9. Ethics:
Judge Burnett testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening;
(c) asked third persons to contact members of the General Assembly on his behalf prior to screening; or
(d) used his judicial letterhead or the services of his staff to campaign.
Judge Burnett testified that he has spent $155.80 on his campaign and that he would file the required campaign expenditure reports with the House and Senate Ethics Committees.
Judge Burnett also testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
Last year Judge Burnett campaigned in the House antechamber, but testified that he did so before he knew that was a problem and would not do so again.
The Joint Committee asked Judge Burnett about allegations reported in the newspaper and elsewhere to the effect that Justice Waller campaigned for Judge Burnett during his last run for the Supreme Court. Judge Burnett denied those allegations, saying that Justice Waller did not campaign on his behalf.
10. Miscellaneous:
Ms. Kathryn Shelton and Mr. Thomas McDow filed affidavits in opposition to Judge Burnett's election. The allegations contained in those affidavits are discussed above.
Mr. Charles Hodge, Mr. John White, and Mr. Ben Harrison all filed affidavits and testified on Judge Burnett's behalf. Mr. Hodge testified that Judge Burnett runs an extremely efficient courtroom and praised Judge Burnett's use of computers. Mr. White testified that Judge Burnett conducts his courtroom in a fair and administratively efficient manner and that he disposes of matters promptly. Mr. Harrison testified that Judge Burnett understands the judicial system better than anyone he knows. All three men testified that Judge Burnett has excellent judicial temperament.
Joint Committee's Finding: Legally Qualified
Judge Pleicones was screened on February 9, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Judge Pleicones's character, integrity, and reputation are outstanding.
Judge Pleicones demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. He testified as to the issue of ex parte communications, that he does not discuss substantive matters relating to anything in an adversarial situation with only one side, but will discuss procedural and scheduling matters ex parte. Judge Pleicones testified that his practice for handling orders is to draft a jointly addressed letter instructing the prevailing party to prepare an order in consonance with the instructions detailed in the letter and serve a copy of the proposed order on the other party so that the other party will have an opportunity to comment.
Judge Pleicones testified that if there is any articuable reason why he could not be impartial in a matter he recuses himself. He said that in criminal cases he allows himself to be voir dired about his impartiality. Judge Pleicones is involved in a partnership that owns a building which houses a law firm of which he was a partner before going on the bench. He testified that he always recuses himself when current or former members of that firm are to appear before him.
Judge Pleicones testified that he does not accept gifts and accepts ordinary social hospitality only from persons who do not appear before him.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its own survey and from the Bar indicated that Judge Pleicones is very intelligent and knowledgeable. The Bar said he "is able to grasp issues quickly and makes rulings that the law requires, even when he may personally disagree with the outcome of such results." Judge Pleicones has attended all judicial continuing education since going on the bench and has given several presentations on ex parte communications and other aspects of the law.
As a practicing attorney, Judge Pleicones's Martindale-Hubbell rating was AV, their highest rating.
Judge Pleicones's score on the Joint Committee's practice and procedure questions was 3.06 out of 4 possible points. He demonstrated a very thorough knowledge of the standard of appeal from the Workers' Compensation Commission, peremptory strikes, damages awardable without a hearing in a default judgment, court witnesses, when jeopardy attaches, the admissibility of expert testimony, and writs of certiorari. He was also familiar with circumstances in which a witness may testify outside of the defendant's presence, Allen charges, writs of supersedeas, and arbitration.
In response to the Chairman's questions about separation of powers and the role of the judiciary, Judge Pleicones testified that acts of the legislature are entitled to a presumption of constitutionality and that the courts have no role in lawmaking. He also said that the death penalty is constitutional and that courts cannot order the General Assembly to appropriate or expend funds.
Judge Pleicones describes himself as a strong advocate of alternative sentencing.
3. Professional Experience:
Judge Pleicones was elected to the circuit court bench in 1991. He has since that time served as an Acting Associate Justice of the Supreme Court on ten different occasions.
At the time of his election to the circuit court bench, he had been in private practice since 1977 and had worked mainly on general civil litigation. During his period of private practice, he also served as a municipal judge from 1982 to 1988. His jurisdiction as a municipal judge was for criminal matters with a limit of $200 or 30 days.
Judge Pleicones worked as a deputy public defender from 1973 to 1977 and from 1968 to 1973 he was on active duty in the army serving as Chief of Miliary Justice and trial counsel.
He has been a reserve officer (Colonel) in the United States Army since 1973. He has served as Emergency Preparedness Liaison Officer from the Second United States Army to the South Carolina National Guard and Militia since 1993. Prior to that he was commander of the 12th Military Law Center.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicates that Judge Pleicones's temperament is outstanding.
Judge Pleicones testified that he envisions himself as a consensus builder on the Supreme Court, but will not subvert his intellectual independence.
Judge Pleicones reported to the Joint Committee an incident in which an attorney criticized him for saying "don't bug me" in response to her questions during a hearing. Judge Pleicones testified that he regretted the remark and wished that he had come up with a more gentle admonition. The attorney involved did not file a complaint with Judicial Standards or otherwise pursue the matter, and the Joint Committee does not find cause for concern in the incident.
5. Diligence and Industry:
Judge Pleicones was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
Judge Pleicones testified that he would serve a full term if elected and that he had no immediate plans to return to private practice.
6. Mental and Physical Capabilities:
Judge Pleicones appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Pleicones has managed his financial affairs responsibly.
8. Public Service:
Judge Pleicones has been either an active or reserve member of the Army for most of his adult life.
9. Ethics:
Judge Pleicones testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening;
(c) asked third persons to contact members of the General Assembly prior to screening; or
(d) used his judicial letterhead or the services of his staff to campaign.
Judge Pleicones testified that he has spent $371.57 on his campaign and has reported his expenditures to the House and Senate Ethics Committees.
Judge Pleicones also testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
10. Miscellaneous:
The Joint Committee did not receive any complaints or statements in opposition to Judge Pleicones's election. The Joint Committee did receive a statement in support from Marjorie L. Heggie who said that she had been a victim of violent crime and that through the ordeal of her assailant's trial, her "ultimate comfort was the confidence that any matters with which Judge Pleicones was associated would be handled appropriately and fairly . . . because Judge Pleicones and integrity are synonymous." Ms. Heggie also said that the election of Judge Pleicones to the Supreme Court would affirm the prodigious standards of our legislature, our community, and our state.
Joint Committee's Finding: Legally Qualified
Judge Pyle was screened on February 2, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Judge Pyle's character, integrity, and reputation are outstanding.
Judge Pyle demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. He testified as to the issue of ex parte communications, that he does his best to avoid such communications at all times.
Judge Pyle testified that as a general rule he does not accept gifts from lawyers, but that he has friends who are attorneys and they exchange gifts of nominal value for Christmas. Judge Pyle does socialize with lawyers at times and accepts their ordinary social hospitality, but if he goes out to dinner or lunch with an attorney, he does not allow the attorney to pay for any food or beverages.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its own survey and from the Bar indicated that Judge Pyle is very intelligent and knowledgeable. The Bar said that a "substantial majority of the members contacted respected his legal ability and the industry and promptness with which he handles his work." Judge Pyle has complied with the requirements for continuing judicial education and has taught several continuing legal education courses and served as a faculty advisor at the National Judicial College.
Judge Pyle's score on the Joint Committee's practice and procedure questions was 3.0 out of 4 possible points. He was familiar with how jurors may ask questions of witnesses, when a witness may testify out of the defendant's presence, the types of cases that are not referred to the Court of Appeals, and White v. State review.
The Joint Committee questioned Judge Pyle about a case in which he offered several men convicted of rape the option of castration and probation instead of the maximum prison term of thirty years. Judge Pyle testified that the matter involved the most brutal case of rape and torture that he had ever tried. Judge Pyle's sentence was appealed and reversed by the Supreme Court. Judge Pyle testified that in retrospect, he would not again give that alternative in a similar situation, but he feels that two positive things came out of the case: it alerted people to the problem of rape and also that the defendants will serve more time than they probably would have had there been no publicity.
In response to the Chairman's questions about separation of powers and the role of the judiciary, Judge Pyle testified that acts of the General Assembly are presumed constitutional, the Supreme Court has no role in law reform or lawmaking, and the death penalty is constitutional. Judge Pyle said that the judiciary probably could not force the General Assembly to appropriate funds, except perhaps if it refused to fund the judicial branch. Judge Pyle also testified that the best way to improve the cost effectiveness of litigation is to institute the rules of arbitration and mediation and that he is familiar with the rules now pending before the General Assembly. Judge Pyle was not familiar with the political abstention doctrine.
3. Professional Experience:
Judge Pyle practiced law and enjoyed a general civil and criminal practice from 1959 until 1976 when he was elected to the Greenville County Court. He served on the county court until elected circuit court judge in 1979.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicates that Judge Pyle's temperament is outstanding.
5. Diligence and Industry:
Judge Pyle was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
Judge Pyle testified that he would serve a full term if elected and that he had no plans to return to private practice.
6. Mental and Physical Capabilities:
Judge Pyle appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Pyle has managed his financial affairs responsibly.
8. Public Service:
Judge Pyle has been a judge for approximately twenty-three years. He served as director of the American Judicature Society from 1966 to 1970 and he chaired the Advisory Committee on Standards of Judicial Conduct from 1980 to 1993. He is currently a member of the Judicial Council, the Circuit Judges Advisory Committee, and the S.C. Association of Circuit Judges. He currently chairs the Judicial Standards Commission and is a delegate to the National Conference of State Trial Judges.
Judge Pyle served as a member of the House of Representatives from 1969 to 1974.
9. Ethics:
Judge Pyle testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening;
(c) asked third persons to contact members of the General Assembly prior to screening; or
(d) used his judicial letterhead or the services of his staff to campaign.
Judge Pyle testified that he has spent $208.71 on his campaign and that he is aware of his obligation to report these expenditures to the House and Senate Ethics Committees.
Judge Pyle also testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
10. Miscellaneous:
Judge Pyle testified that he seeks elevation to the Supreme Court because he feels that now is the time for a change in direction. Instead of the challenge and excitement in trial court, he would enjoy the luxury of having time to read briefs, listen to oral arguments, and prepare well-reasoned opinions.
The Joint Committee did not receive any complaints or statements in opposition to Judge Pyle's election.
Joint Committee's Finding: Legally Qualified
Judge Ervin was screened on February 1, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Judge Ervin's character, integrity, and reputation are outstanding.
Judge Ervin demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. He testified as to the issue of ex parte communications, that he has always been very careful to avoid ex parte communications because they are prohibited by the Canons of Judicial Conduct.
Dr. Walter Herron, D.V.M. of Anderson filed an affidavit and testified about Judge Ervin's handling of an action to enforce a non-compete agreement in which Dr. Herron was the defendant. Dr. Herron alleged that there was ex parte communication in the drafting of the order and that he received no notice of Judge Ervin's order until it was served on him by an employee of the plaintiff in an embarrassing manner.
The Joint Committee investigated Dr. Herron's complaint thoroughly. It obtained the transcript, a copy of the order, a copy of the amended order, and affidavits from both attorneys in the matter and from the attorney who was Judge Ervin's law clerk at the time. The affidavits from the two attorneys and from Judge Ervin's law clerk supported Judge Ervin's testimony that there was no ex parte communication in the drafting of either the original or amended order and that Judge Ervin did not act improperly in the issuance of his orders.
The matter was a non-jury action in which the attorneys submitted briefs and argued on stipulated facts. Judge Ervin testified that the order was in a format he uses to draft orders and that he did so himself without communication with counsel other than what was on the record at the oral argument stage. Both Dr. Herron's attorney, the attorney for the plaintiff, and Judge Ervin's law clerk submitted affidavits stating that there was no ex parte communication in the matter and that Judge Ervin drafted the order himself. Judge Ervin issued an amended order several days later changing the date on which the non-compete agreement would expire because of a scrivener's error in the original order. Judge Ervin testified that he or his law clerk caught the mistake and issued the amended order without contact from either attorney. The affidavits from the two attorneys and his law clerk support this testimony as well.
Dr. Herron's complaint about the service of the order was that the plaintiff received it several days before he did and one of the plaintiff's employees delivered it to Dr. Herron in a manner that embarrassed him publicly. Judge Ervin testified that he believed that the plaintiff's attorney received the order first because his office was in Anderson and since Dr. Herron's attorney is located in Columbia, he received the order several days later because of the mail service. Dr. Herron did not allege any specific wrongdoing in Judge Ervin's issuance of his order and the affidavits from the two attorneys tend to support Judge Ervin's view of what happened.
The Joint Committee found no evidence of ex parte communication or other inappropriate conduct in Judge Ervin's handling of this matter. Dr. Herron withdrew his allegation about ex parte communication after reading the affidavits on the matter, but still felt that the order was issued improperly. There is no evidence or even any specific allegation that Judge Ervin did anything wrong or out of the ordinary when he issued the order in this matter. The Joint Committee understands and regrets that Dr. Herron received notice of the order in a way that embarrassed him in front of his customers, but does not believe that Judge Ervin caused the unfortunate turn of events or otherwise acted improperly.
Judge Ervin testified that he does not accept gifts, but will occasionally accept ordinary social hospitality depending on the situation.
On the issue of recusal, Judge Ervin testified that he gives both sides an opportunity to be heard and if they want him to recuse himself, he will do so after full disclosure of the reasons for the motion. There are situations in which he would recuse himself right up front without further discussion, but he noted that it is a matter within the judge's discretion.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its own survey and from the Bar indicated that Judge Ervin is very intelligent and knowledgeable. He has complied with all continuing judicial education requirements and has lectured at five continuing legal education programs. His books, Ervin's South Carolina Requests to Charge -- Civil and Ervin's South Carolina Requests to Charge -- Criminal, have been very well received. He has also published an article, "What Does 'Beyond a Reasonable Doubt' Really Mean?" in the South Carolina Lawyer.
Judge Ervin's score on the Joint Committee's practice and procedure questions was a 2.4 out of a possible 4 points. He demonstrated a thorough understanding of the standards of appellate review, en banc hearings, and writs of certiorari. He was less well versed about writs of supersedeas and which matters may not be referred to the Court of Appeals.
Judge Ervin testified that he has experience with alternative dispute resolution measures as he held the first settlement week in Anderson county.
3. Professional Experience:
Judge Ervin has been a circuit court judge since 1985. Prior to his election, he was an administrative law judge with the South Carolina Industrial Commission (now the Workers' Compensation Commission) for almost one year. Prior to his appointment to the Industrial Commission he was engaged in the general practice of law from 1977 to 1984. His practice involved both criminal trial work and civil litigation as well as workers' compensation, employment security, social security, and domestic matters. He served as the town attorney for Honea Path, an assistant solicitor for the Tenth Judicial Circuit, and as Special Prosecutor for the Eighth Judicial Circuit.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicates that Judge Ervin's temperament is outstanding.
5. Diligence and Industry:
Judge Ervin was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
Judge Ervin testified that he would serve a full term if elected and that he had no plans to return to private practice.
When the Court of Appeals receives a case it assigns the matter to one particular judge who is responsible for drafting an opinion after oral argument. There are normally three judges on the panel that hears the oral argument, but only one of the three judges has been pre-assigned the task of writing the opinion. The Joint Committee asked Judge Ervin if he would prepare for all matters that came before his panel, or just those to which he has been pre-assigned to write the opinion. Judge Ervin testified that he has always been a consensus builder and would consult with other members of the court to see what their practices are and work with them in that regard.
6. Mental and Physical Capabilities:
Judge Ervin appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Ervin has managed his financial affairs responsibly.
8. Public Service:
Judge Ervin has been a circuit court judge for ten years and was an administrative judge for one year. He also served as a member of the House of Representatives from 1980 to 1984. He is a member of various professional organizations such as the National Conference of State Trial Judges, the Association of Circuit Court Judges, and the Federal Court Relations Committee of the American Bar Association. He is currently on the national board of directors of the American Judicature Society.
9. Ethics:
Judge Ervin testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening;
(c) asked third persons to contact members of the General Assembly prior to screening; or
(d) used his judicial letterhead or the services of his staff to campaign.
Judge Ervin testified that he has spent $2,150 on his campaign and that he has reported these expenditures to the House and Senate Ethics Committees. Judge Ervin indicated that most of his expenditures were for dinner meetings he held with friends around the state to discuss the viability of his candidacy and for typing, postage, and copying costs.
Judge Ervin also testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
Judge Ervin reported that he has not received royalties or other income from the sale or publication of his books, Ervin's South Carolina Requests to Charge -- Civil and Ervin's South Carolina Requests to Charge -- Criminal.
10. Miscellaneous:
Judge Ervin testified that he seeks elevation to the Court of Appeals because he sees it as the natural progression from his current position. He testified that he does not want to rule out other options, but has no plans to ever return to private practice.
The Joint Committee received one statement in support of and one statement in opposition to Judge Ervin's candidacy. Mr. Christopher Wellborn an attorney practicing in Rock Hill filed an affidavit with the Joint Committee stating that Judge Ervin is very well qualified and capable of service on the Court of Appeals. Mr. Walter K. Herron, D.V.M. of Anderson filed an affidavit in opposition to Judge Ervin's election. Mr. Herron's affidavit is discussed above.
Joint Committee's Finding: Legally Qualified
Mr. Hagood was screened on February 1, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Mr. Hagood's character, integrity, and reputation are outstanding.
Mr. Hagood demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. He testified as to the issue of ex parte communications, that he understands the rule as strictly prohibiting ex parte communication on all substantive matters and that he would comply with both the letter and spirit of the rule.
Mr. Hagood testified as to the issue of recusal that he is not aware of any general class of matters that he would disqualify himself from, but that he is a stockholder in a closely held corporation in which his family members are the other stockholders and he would not hear a case that could affect that company.
An anonymous survey respondent told the Joint Committee about an incident in which Mr. Hagood allegedly prejudiced a witness in a grand jury investigation. The Joint Committee thoroughly investigated the matter and obtained an affidavit from the witness's attorney describing Mr. Hagood's conduct.
Mr. Hagood was working as an Assistant United States Attorney and was investigating a corporation for possible environmental law violations. He told corporate counsel that the employees of the corporation were not targets of the investigation. Several weeks later, on the night before presentment to the grand jury, Mr. Hagood received documents that made one of the employees a target. Mr. Hagood proceeded with presentment to the grand jury without informing corporate counsel of the employee's change in status. The employee was called to testify before the grand jury and Mr. Hagood advised him of his rights before he began. Corporate counsel learned of the employee's change in status at the next break in the proceedings and immediately obtained separate counsel for the employee. The employee later became a defendant and pled guilty.
The employee's attorney responded to the Joint Committee's request for information by filing an affidavit stating that Mr. Hagood was under no obligation to inform corporate counsel of the employee's change in status and while such action might have been a good idea, he believes Mr. Hagood's failure to do so was simply an oversight and not improper conduct. Mr. Hagood was not sanctioned by the United States Attorney or Justice Department, and both he and the employee's attorney contend that he complied with the law and Justice Department policy.
The Joint Committee believes that, while Mr. Hagood perhaps should have told corporate counsel about the employee's change in status, he was under no legal obligation to do so and his conduct was not unethical or improper.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its own survey and from the Bar indicated that Mr. Hagood is very intelligent and knowledgeable. Mr. Hagood's law school record included service on law review and work as a legal writing instructor and consultant to the State Reorganization Commission.
Mr. Hagood has complied with all continuing legal education requirements and has lectured on approximately sixteen different occasions over the last several years. Most of his lectures were on environmental law topics.
Mr. Hagood's score on the Joint Committee's practice and procedure questions was a 2.6 out of a possible 4 points. He demonstrated a clear understanding of the 1990 changes in the appellate court rules and whether experts could testify to matters of common knowledge. He also did well on questions about what type of cases can be assigned to the Court of Appeals, circumstances in which the Court of Appeals can hear a matter en banc, when the Supreme Court may issue a writ of certiorari to review a decision of the Court of Appeals, writs of supersedeas, the role of an amicus, and the admissibility of a prior conviction of a crime of moral turpitude. Mr. Hagood was not as well versed in the standards of appellate review or whether it is a necessary prerequisite for the admission of scientific evidence that the theory and general technique are generally accepted in the scientific community.
3. Professional Experience:
Mr. Hagood has experience that would relate well to service on the Court of Appeals. He worked as law clerk to the Honorable Randall T. Bell from 1983 to 1984 and has handled four civil appeals and many criminal appeals. He has experience in both state and federal appeals courts and has attended and taught courses on appellate advocacy. He has also enjoyed a practice in which he has gained experience with varied aspects of the law. Mr. Hagood's practice has been approximately 39% civil, 60% criminal, and 1% domestic over the past five years.
Mr. Hagood has been an Assistant United States Attorney since 1990 when he joined the civil division and began handling various matters involving federal agencies in bankruptcy and district court. In 1991, he moved to the criminal division in which he investigated and prosecuted various criminal cases that included drug, organized crime, federal murder, and environmental enforcement matters. He has served as chief of the Environmental Enforcement Section since 1993 and has investigated and prosecuted criminal and civil environmental enforcement cases and other general criminal cases.
Mr. Hagood was with Buist, Moore, Smythe, and McGee from 1987 to 1990, first as an associate and then as a partner. His work at the firm involved personal injury, commercial, insurance, construction, environmental, and other civil matters as well as a few court-appointed domestic cases. Mr. Hagood testified that he tried approximately a dozen cases to verdict during this period of time.
Prior to his association with Buist, Moore, Smythe, and McGee, Mr. Hagood was first law clerk to the Honorable Randall T. Bell (1983-84) and then counsel in the United States Marine Corps (1985-87).
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicates that Mr. Hagood's temperament is outstanding. A very small number of anonymous survey respondents indicated that because of his prosecutorial background, Mr. Hagood might lack compassion, but the Joint Committee found Mr. Hagood's testimony that he finds personal gratification in his work and has been active in church and community charitable activities to be very persuasive.
5. Diligence and Industry:
Mr. Hagood was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
Mr. Hagood testified that he would serve a full term if elected and that he had no plans to return to private practice. Mr. Hagood also testified that his responsibilities to his wife and two young children would not limit his service on the bench.
6. Mental and Physical Capabilities:
Mr. Hagood appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Mr. Hagood has managed his financial affairs responsibly.
8. Public Service:
Mr. Hagood has worked in the public sector since 1990 and was a Marine Corps JAG officer after graduation from law school. He is also active in his church and Habitat for Humanity.
9. Ethics:
Mr. Hagood testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or
(c) asked third persons to contact members of the General Assembly prior to screening.
Mr. Hagood also testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
Mr. Hagood testified that he has spent $175.67 on his campaign and has filed reports of such expenditures with the House and Senate Ethics Committees.
10. Miscellaneous:
The Joint Committee did not receive any complaints or statements in opposition to Mr. Hagood's election.
Joint Committee's Finding: Legally Qualified
Judge Hearn was screened on February 1, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Judge Hearn's character, integrity, and reputation are outstanding.
Judge Hearn demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. On the issue of ex parte communications, Judge Hearn stated that while she does not like to engage in ex parte communications, there are in the family law context situations that require the signing of ex parte orders. She indicated that she prefers to have an emergency hearing rather than sign an ex parte order.
On the issue of recusal, Judge Hearn stated that if a lawyer or litigant felt that she could not be fair she would recuse herself. She also testified that she does not accept gifts from lawyers and will typically not have lunch with lawyers except for her husband or close friends who do not have cases before her.
One of Judge Hearn's letters of reference was from a member of the family court bench. The Joint Committee does not feel that Judge Hearn's conduct was improper in this instance, but cautions future candidates that this situation might violate the Canons of Judicial Conduct.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its survey and from the Bar indicated that Judge Hearn is intelligent and scholarly. She has taught numerous continuing legal education courses for both attorneys and judges. Several of these courses have focused on appellate practice and brief writing.
Judge Hearn testified that since her first year in practice she has read every published appellate court decision, dictated notes on each of them, and stored them in a computer which serves as her library of legal decisions.
Judge Hearn's score on the Joint Committee's practice and procedure questions was a 2.1 out of a possible 4 points. Judge Hearn demonstrated a thorough knowledge of the standards of appellate review, amicus briefs, the procedure for filing an appeal, writs of certiorari, and the admissibility of a prior conviction. She was less familiar with what types of matters may not be referred to the Court of Appeals, writs of supersedeas, the use of expert testimony, and en banc hearings.
3. Professional Experience:
Judge Hearn's appellate experience and her previous service as a law clerk to the Honorable J.B. Ness and as a family court judge has prepared her to serve on the Court of Appeals. Judge Hearn has served on the family court since 1986. She was an associate and then partner from 1979 to 1986 with the firm of Stevens, Stevens, Thomas, Hearn, & Hearn. Her work with the firm involved general civil trial litigation and an active appellate practice. Judge Hearn testified that her appellate practice included the appeal of domestic matters, civil cases such as contract disputes and tort actions, and criminal convictions. From 1977 to 1979 she was law clerk to the Honorable J.B. Ness and gained valuable experience working for the Supreme Court.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicate that Judge Hearn's temperament is excellent.
She has been the subject of three letters to Judicial Standards, two of which involved issues of temperament, but the Judicial Standards Commission dismissed all three inquiries. The Joint Committee likewise did not find cause of concern in these matters.
5. Diligence and Industry:
Judge Hearn was punctual and attentive in her dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with her diligence and industry.
6. Mental and Physical Capabilities:
Judge Hearn appears to be mentally and physically capable of performing the duties of the office she seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Hearn has managed her financial affairs responsibly.
8. Public Service:
Judge Hearn is an active member of a number of committees dealing with criminal justice, domestic violence in the family court system, court automation, the University of South Carolina Law School Partnership Board, and the American Law Institute's Children Code Committee.
9. Ethics:
Judge Hearn testified that she has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening;
(c) asked third persons to contact members of the General Assembly prior to screening; or
(d) used her judicial letterhead or the services of her staff to campaign.
Judge Hearn also testified that she understood the new Joint Committee rule requiring her to wait forty-eight hours after the draft report is released before she may begin seeking commitments.
10. Miscellaneous:
The Joint Committee did not receive any complaints or statements in opposition to Judge Hearn's election.
Joint Committee's Finding: Legally Qualified
Mr. Stilwell was screened on February 7, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Mr. Stilwell's character, integrity, and reputation are outstanding.
Mr. Stilwell demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. He testified as to the issue of ex parte communications, that he would not entertain any ex parte communications from a person who had a matter pending in the court on which he sits.
Mr. Stilwell testified that he would continue to accept gifts of nominal value from friends, such as gag gifts over athletic events of competing schools. He said that the value of the gift and the circumstances under which it was given would determine whether he would consider it acceptable or not. On the issue of the acceptance of social hospitality, Mr. Stilwell said that most of his social connections are with neighbors and close personal friends and that the other social functions he now attends are requirements of his current elected office. Mr. Stilwell testified that if elected to the bench he would attend bar functions where all members of the bar were invited.
Mr. Stilwell testified that there would be several circumstances in which he would recuse himself. He stated that he would recuse himself if he had an economic interest in the matter. Mr. Stilwell has two sons who are practicing attorneys, and he testified that he would recuse himself on any matter in which either son was directly involved or in which there were any question as to whether the matter would affect his son's income or remuneration. Mr. Stilwell testified that in cases of potential conflict of interest where he did not feel there was an actual conflict, he would seek the advice of the chief judge. He indicated that he would recuse himself in questionable circumstances, particularly since there are other judges on the court who could hear the matter.
Mr. Stilwell currently owns 100% of the interests in his law firm which is organized as a professional association. He testified that if he is elected, he would divest himself of any interest in ongoing cases and would dissolve the professional association as soon as possible. Mr. Stilwell also owns a one-half interest in a building which is currently rented to an engineering firm. He testified that he does not plan to divest himself of this interest, but would recuse himself on any matter involving a tenant or his partner who owns the other one-half interest.
Mr. Stilwell is the secretary and a member of the board of directors in a closely-held corporation which owns, manages, and rents residential property in Greenville. Mr. Stilwell testified that he is not active in the management of this property, and the company is in the process of winding up its affairs.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its own survey and from the Bar indicated that Mr. Stilwell is very intelligent and knowledgeable. Mr. Stilwell's law school record was outstanding, as he was an associate editor of the Law Quarterly and chief justice of the Society of Wig and Robe.
Mr. Stilwell has been exempt from the requirements of continuing legal education for the last two years because he has been a member of the Bar for thirty years. He testified that he keeps up with changes in the law by reading continuing legal education materials and by virtue of his service in the Senate. He has also presented several continuing legal education and other seminars on real estate, new developments in the law, and the 1991 Ethics Act.
Mr. Stilwell's Martindale-Hubbell rating is AV, their highest rating.
Mr. Stilwell's score on the Joint Committee's practice and procedure questions was 2.73 out of 4 possible points. He was very familiar with what damages may be recovered without a hearing in a default judgment, res gestae, the admissibility of expert testimony, writs of supersedeas, and those matters over which the Supreme Court has original jurisdiction. Mr. Stilwell was also familiar with when jeopardy attaches, limitations on the admissibility of prior convictions, and those types of matters that are not referred to the Court of Appeals. Mr. Stilwell was somewhat familiar with the standard of review on appeal from the Workers' Compensation Commission, but was not familiar with Allen charges.
In response to the Chairman's questions about separation of powers and the role of the judiciary, Mr. Stilwell testified that acts of the General Assembly are presumed constitutional and that the death penalty is constitutional. He also testified that it is the role of the judicial branch to interpret the laws passed by the legislature. He favors the adoption of alternative dispute resolution procedures.
3. Professional Experience:
The Joint Committee found Mr. Stilwell to have handled sophisticated legal matters and to have the experience he would need for service on the Court of Appeals.
Mr. Stilwell's practice has been approximately 50% civil, 10% criminal, and 40% domestic over the past five years. He has appeared in state court approximately thirty to forty times a year for the past several years. In response to the Joint Committee's request for a list of matters he actually took to trial over the past several years, Mr. Stilwell provided the Joint Committee with a list of fifteen matters which included three family court appearances, eight appearances in the court of common pleas, two appearances in probate court, one appearance before a master in equity, and one South Carolina Supreme Court appeal.
Mr. Stilwell has handled a number of civil appeals and two criminal appeals.
Mr. Stilwell testified that he chose to limit his criminal practice because he could not have practiced criminal law and devoted time to his service in the Senate and to the practice of other types of law. Mr. Stilwell said that he prefers the general practice of law and did not want to specialize.
The Joint Committee also recognized Mr. Stilwell's willingness while in the Senate to lend his experience and leadership to very complex legal matters. For example, Mr. Stilwell has in recent years served as a conferee on the 1991 Ethics Act and government restructuring. He also served on the reapportionment subcommittee.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicates that Mr. Stilwell's temperament is outstanding.
5. Diligence and Industry:
Mr. Stilwell was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
Mr. Stilwell testified that he would serve a full term if elected and that he has no plans to return to private practice.
6. Mental and Physical Capabilities:
Mr. Stilwell appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Mr. Stilwell has managed his financial affairs responsibly.
8. Public Service:
Mr. Stilwell has been a member of the Senate for eight years. He has served on the Correctional System Study Commission and the Greenville County Court Library Commission. He is currently a member of the Greenville County Bar Grievance Committee, the South Carolina Bar Resolution of Fee Disputes Committee, and the South Carolina Bar Ethics Advisory Committee.
The Joint Committee questioned Mr. Stilwell on his plans for political activity once elected to the bench. Mr. Stilwell testified that if elected, the only political activity he would be involved in after his election but before his swearing in would be voting in the General Assembly. He testified that he would no longer be active in local or statewide political affairs once sworn in.
9. Ethics:
Mr. Stilwell testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening;
(c) asked third persons to contact members of the General Assembly prior to screening; or
(d) used Senate staff or other resources to campaign or prepare his application materials.
Mr. Stilwell testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
Mr. Stilwell also testified that he has not spent more than $100 on his campaign and has, therefore, not been required to file campaign expenditure reports with the House or Senate Ethics Committee.
10. Miscellaneous:
Mr. Stilwell testified that if elected he would seek to be included on various panels such as the committee on mediation and arbitration.
The Joint Committee did not receive any complaints or statements in opposition to Mr. Stilwell's election.
Joint Committee's Finding: Legally Qualified
Judge Goolsby was screened on February 1, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
Judge Goolsby enjoys an outstanding reputation for honesty and integrity. The Bar described his integrity as "beyond question" and that description is consistent with other input the Joint Committee received. The Joint Committee's investigation did not reveal any evidence of unethical conduct.
Judge Goolsby demonstrated a through understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. He testified as to the issue of ex parte communications, that he does not have much of a problem with that on the Court of Appeals, but that he has procedures in place to ensure that improper communications do not occur. Judge Goolsby also testified that he does not accept gifts, unless they are from family or friends who are not lawyers and whose interests would not likely come before him.
2. Legal Knowledge and Ability:
Judge Goolsby graduated from the University of South Carolina School of Law cum laude and was a member of the Order of Wig and Robe. He also received an LL.M. in Judicial Process from the University of Virginia Law School in 1992. He has met all continuing judicial education requirements and has lectured at such programs for the bench and bar. He attended the National Judicial College in Reno, Nevada in 1994.
As a practicing attorney, Judge Goolsby's Martindale-Hubbell rating was AV, their highest rating.
The input the Joint Committee received from its own survey and from the Bar also indicated that Judge Goolsby has excellent legal knowledge and ability. The Bar described him as "intelligent, progressive, and resourceful" and his opinions as "well-reasoned and scholarly."
Judge Goolsby's score on the Joint Committee's practice and procedure questions was 3.6 out of a possible 4 points and was the highest score of all candidates currently running for judicial office. Judge Goolsby answered all the questions extremely well and demonstrated a thorough understanding of the standards of appellate review, the type of matters that may not be referred to the Court of Appeals, hearings en banc, writs of certiorari, and writs of supersedeas.
3. Professional Experience:
Judge Goolsby has been on the Court of Appeals for over eleven years and was a practicing attorney for over twenty years before his election to the bench. His legal experience before election to the bench involved work for the Attorney General and a short period of private practice.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicates that Judge Goolsby's temperament is exemplary. Judge Goolsby was described as consistently patient, openminded, courteous, tactful, and understanding.
5. Diligence and Industry:
Judge Goolsby was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
Judge Goolsby testified that he would serve a full term if elected and that he had no plans to return to private practice.
Judge Goolsby is computer literate and has two law clerks to assist him with his responsibilities. Also, after being on the bench for eleven years, the candidate stated that he has learned the "short cuts" to take that he did not know before.
When the Court of Appeals receives a case, it assigns the matter to one particular judge who is responsible for drafting an opinion after oral argument. There are normally three judges on the panel that hears the oral argument, but only one of the three judges has been pre-assigned the task of writing the opinion. The Joint Committee asked Judge Goolsby if he reads and prepares for all matters that come before his panel, or just those to which he has been pre-assigned to write the opinion. Judge Goolsby testified that he reads, prepares, and actively participates in the oral argument of all matters that come before his panel and not just those to which he has been pre-assigned.
6. Mental and Physical Capabilities:
Judge Goolsby appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Goolsby has managed his financial affairs responsibly.
8. Public Service:
Judge Goolsby has worked in the public sector for almost all of his professional career and has served with distinction.
9. Ethics:
Judge Goolsby testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening;
(c) asked third persons to contact members of the General Assembly prior to screening; or
(d) used his judicial letterhead or the services of his staff to campaign.
Judge Goolsby was extremely conscientious about not using state resources such as pages or secretarial staff during his dealings with the Joint Committee.
Judge Goolsby testified that he has not made campaign expenditures in excess of $100 and has, therefore, not been required to report expenditures to the House or Senate Ethics Committees.
Judge Goolsby also testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
10. Miscellaneous:
The Joint Committee did not receive any complaints or statements in opposition to Judge Goolsby's re-election.
Joint Committee's Finding: Legally Qualified
Mr. Brogdon was screened on February 2, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. In fact, the input the Joint Committee received from its own survey and the report of the Bar was that Mr. Brogdon's character, integrity, and reputation are outstanding.
Mr. Brogdon demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. On the issue of ex parte communications, Mr. Brogdon stated that he is aware of the impropriety surrounding such communications and that he would avoid them at all costs. He promised to implement procedures to ensure that no one felt like someone else had an advantage because they had talked with him on anything that might be pending.
On the issue of recusal, Mr. Brogdon stated that if the chance of impropriety existed, he would disclose that to the parties and look at the situation very closely. If an appearance of impropriety did exist, he said he would recuse himself. Mr. Brogdon stated that if he had a de minimis financial interest in the litigation, he would disclose that to the parties, but would not automatically recuse himself. The Joint Committee reminds Mr. Brogdon and other judicial candidates that if a party objects after full disclosure of the potential conflict of interest, the judge is required by the Canons to recuse himself. The Joint Committee believes that Mr. Brogdon understands this aspect of the rule, but cautions all candidates to strictly abide by it.
Mr. Brogdon said that he would not accept gifts and would not accept social hospitality if the host seemed to be singling him out because of his service on the bench.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its survey and from the Bar indicated that Mr. Brogdon is intelligent and knowledgeable. He has complied with the requirements for continuing legal education.
Mr. Brogdon's score on the Joint Committee's practice and procedure questions was 2.0 out of 4 possible points. Mr. Brogdon was knowledgeable about when motions for a new trial are appropriate, what factors a judge should consider when accepting a guilty plea, what factors a judge should consider when setting bond, res gestae, and when jeopardy attaches. He was somewhat knowledgeable about the rules governing the introduction of the existence of insurance, damages recoverable without a hearing in a default judgment, the factors to consider when granting a temporary restraining order, and Allen charges. Mr. Brogdon had very limited knowledge of the standard of review in an appeal from the Workers' Compensation Commission and had no knowledge about how a juror may pose questions to a witness and whether it is a necessary prerequisite for the admission of scientific evidence that the theory and general technique are generally accepted in the scientific community.
Mr. Brogdon has a Martindale-Hubbell rating of BV, which is their middle rating and indicates that his legal ability is considered to be "high to very high."
In response to the Chairman's questions about separation of powers and the role of the judiciary, Mr. Brogdon stated that he believes that acts of the General Assembly are presumed constitutional and given great deference. He also believes that the South Carolina death penalty law has been deemed constitutional and was familiar with the political abstention doctrine.
3. Professional Experience:
The Joint Committee believes that Mr. Brogdon has sufficient experience for service on the circuit court bench. The Joint Committee is somewhat troubled that Mr. Brogdon's practice seems not to have been very broad, but believes that it has been sophisticated enough to give him experience with the types of issues that would confront him on the bench.
Mr. Brogdon has been a practicing attorney for over seventeen years. Our research indicates that Mr. Brogdon has enjoyed a general practice that has been approximately 90% civil and 10% criminal over the past five years.
Mr. Brogdon described his criminal experience as involving appearances in magistrate's and general sessions court for matters relating mostly to DUI and traffic violations. He said he has also handled a number of pleas in criminal court. This is certainly not practice of a very sophisticated nature, but has given him some experience with criminal matters.
Mr. Brogdon's civil experience has been more sophisticated than his criminal work and has involved work in diverse areas of the law. Mr. Brogdon described his civil experience as involving appearances in circuit court, family court, probate court, magistrate's court, and before the Workers' Compensation Commission. His civil cases have involved complex trial matters such as libel and slander and an action to set aside a deed. The Joint Committee placed particular importance on the fact that many of these matters involved an extensive discovery and motion practice and were often marked by complex trial preparation. He has represented both plaintiffs and defendants in the matters he has handled, and has also done a good deal of real estate work. He currently represents, among many other clients, several automobile insurance companies and is also the Marion County Attorney.
Mr. Brogdon provided the Joint Committee with a list of five cases that he took to trial during the last several years. These five cases involved two workers' compensation matters in which he represented the claimant, two automobile accident cases in which he represented the defendants, and a driving under the influence, second offense charge tried in general sessions court.
Mr. Brogdon has never handled a civil or criminal appeal, but the Joint Committee does not consider appellate experience to be critical for service on the trial court bench.
4. Judicial Temperament:
The Joint Committee's investigation did not reveal anything that would indicate a potential problem with judicial temperament. Throughout the Joint Committee's work with Mr. Brogdon, he demonstrated the qualities and character required for a judge of outstanding judicial temperament. Furthermore, the input the Joint Committee received from its own survey and from the Bar's investigation indicated that Mr. Brogdon has the temperament required for service on the bench.
Mr. Brogdon also has the skills required for facilitating conflict resolution, an important element of service on the bench. Mr. Brogdon stated that he has not participated in any alternative dispute resolutions, but he did attend a week-long seminar on mediation and is certified as a mediator.
5. Diligence and Industry:
Mr. Brogdon was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
Mr. Brogdon's wife and two of his three children were present for his screening. His family appears to fully support his decision to seek this position, and he does not foresee that his family responsibilities would conflict with his service on the bench.
Mr. Brogdon testified that he would serve a full term if elected and that he had no plans to return to private practice.
6. Mental and Physical Capabilities:
Mr. Brogdon appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Mr. Brogdon has managed his financial affairs responsibly.
8. Public Service:
Mr. Brogdon serves as the Marion County Attorney and is also chairman of the Marion Transportation Commission.
9. Ethics:
Mr. Brogdon testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or
(c) asked third persons to contact members of the General Assembly prior to screening.
Mr. Brogdon also testified that he has not made campaign expenditures in excess of $100 and has, therefore, not been required to report expenditures to the House or Senate Ethics Committees.
Mr. Brogdon testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
The Joint Committee asked Mr. Brogdon if he participated in or was aware of any orchestrated effort to prove deficiencies in his opponent's experience or character. He testified that he had not participated in and was not aware that any such effort existed.
10. Miscellaneous:
The Joint Committee did not receive any complaints or statements in opposition to Mr. Brogdon's election.
Joint Committee's Finding: Legally Qualified
Mr. Harwell was screened on February 14, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
Mr. Harwell demonstrated a somewhat limited understanding of the Canons of Judicial Conduct. The Joint Committee was primarily troubled by Mr. Harwell's comments on the issue of recusal. Mr. Harwell stated that he would make a full disclosure of any interest he had and then allow the parties to comment, but the decision on recusal would be his. Mr. Harwell also stated that if he held a de minimis financial interest in a matter before him he would disclose that interest on the record even though he thinks the rules do not require such broad disclosure. The Joint Committee cautions Mr. Harwell that the Canons of Judicial Conduct would require him to disclose any economic interest he had in a matter, even if it were de minimis, and that if a party objects to his hearing a matter in which he has a de minimis financial interest or some other potential conflict of interest, the Canons of Judicial Conduct would require him to recuse himself. Mr. Harwell did say that he would recuse himself if there was any inference or appearance that he may be influenced in a particular case. Mr. Harwell also said that it would be a very long time, if ever, before he could hear a case that involved one of his law partners. He also testified that if elected to the bench he would surrender to his firm any contingent fees due on pending cases.
On the issue of ex parte communications, Mr. Harwell stated that he believes them to be prohibited by the Supreme Court rules. He did, however, recognize that some proceedings, such as temporary restraining orders, must be conducted ex parte.
Mr. Harwell testified that he does not plan to accept gifts and that he would be very careful to prevent a conflict of interest when accepting ordinary social hospitality.
An anonymous letter was recently circulated amongst members of the General Assembly alleging that Mr. Harwell does not live in the district he represents in the House of Representatives. The Joint Committee investigated this matter thoroughly and found that, while Mr. Harwell spends much of his time at a house he owns outside of his district, he considers a house he owns inside his district to be his residence. He testified that he lists his address as being at the house in his district, receives his mail there, and has living quarters in the house. The house in his district is an ante-bellum plantation house currently open for tours and rented for parties, but he testified that visitors are not allowed in his living quarters. The Joint Committee stressed that the House of Representatives is the judge of its members' qualifications, but, based on the candidate's testimony, was satisfied that Mr. Harwell met the constitutional residency requirements for elected office.
A newspaper article published in 1989 intimated that Mr. Harwell had the Florence County Election Commission Chairman replaced because the Chairman had attempted to collect a $5,600 debt owed the Commission by the Florence County Democratic Party. Mr. Harwell claimed that the Chairman was dismissed by the Florence County Legislative Delegation of which Mr. Harwell was only one member, and that the dismissal was due to the Chairman's partisan activities. The Joint Committee had only the newspaper article and Mr. Harwell's testimony to consider in this matter, but did not find any evidence of wrongdoing on Mr. Harwell's behalf.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its survey and from the Bar indicated that Mr. Harwell has enjoyed a successful law practice. He has complied with the requirements for continuing legal education. Mr. Harwell has a Martindale-Hubbell rating of BV, which is their middle rating and indicates that his legal ability is considered to be "high to very high."
Mr. Harwell took the bar examination twice. He testified that when he took the bar examination the first time he finished all but the last section on the third and final day. He said that he was worried about the health of his critically ill father, however, and did not finish the examination. He took the bar examination again several months later and passed.
Mr. Harwell's score on the Joint Committee's practice and procedure questions was 1.4 out of 4 possible points. Mr. Harwell's score was poor and his answers were on average rambling and had little relationship to the precise question that was asked. His responses often included legal terms and concepts that did not always relate to the questions that were asked. Mr. Harwell was familiar with some of the practice and procedure concepts such as the factors a judge must look at in determining whether a child witness is competent to testify, Allen charges, mandatory minimum sentences, and whether an expert may testify about a legal conclusion. He was somewhat familiar with election of remedies, appeals from magistrate's court, when a witness can testify outside of the defendant's presence, and whether it is a necessary prerequisite for the admission of scientific evidence that the theory and general technique are generally accepted in the scientific community. Mr. Harwell was only passingly familiar with when a case can be removed from the docket because of inactivity, damages recoverable without a hearing in a default judgment, how a juror might pose questions of a witness, and whether experts can testify on matters of common knowledge or ultimate issues. Mr. Harwell was completely unfamiliar with the standard of review in a matter on appeal from the Workers' Compensation Commission, court witnesses, res gestae, and when jeopardy attaches. The Joint Committee was concerned by Mr. Harwell's overall low score on these questions and the fact that he did not demonstrate knowledge of rather basic issues of practice and procedure.
Mr. Harwell testified that he considered Judge Ralph King Anderson to be a role model and would adopt Judge Anderson's system of using a notebook to supplement his knowledge on matters with which he is not fully acquainted. He also indicated that he would use the law library in the Florence County Courthouse to do his research. The Joint Committee applauds Mr. Harwell's plans for legal research, but does not consider these efforts to be a substitute for his lack of basic familiarity with common issues of practice and procedure.
In response to the Chairman's questions about separation of powers and the role of the judiciary, Mr. Harwell stated that a circuit court may not order the General Assembly to expend funds. He also testified that he believes the death penalty to be constitutional.
3. Professional Experience:
The Joint Committee found that Mr. Harwell has enjoyed a successful law practice, but expressed concern about his trial court experience. The Joint Committee received input from its survey and from the Bar which indicated that Mr. Harwell's practice has not been sophisticated in that he has in recent years tried only driving under the influence and similar criminal cases and that he has appeared infrequently in circuit court. The Bar found Mr. Harwell not qualified, primarily because of an alleged lack of trial experience.
The Joint Committee researched Mr. Harwell's experience extensively and requested that he provide the Joint Committee with documentation of his experience. Mr. Harwell did so, and the Joint Committee found that Mr. Harwell has had little trial experience and a practice consisting mostly of driving under the influence matters. The Joint Committee did not necessarily expect Mr. Harwell to have broad experience with both civil and criminal matters, but it does expect all candidates to have practiced with a level of sophistication that would prepare them for the judicial office they seek.
The Joint Committee was troubled by the fact that Mr. Harwell has tried only four matters in general sessions court in the last seven years and has not, according to the information Mr. Harwell provided the Joint Committee, ever tried more than a few cases (he provided the Joint Committee with only two) in the court of common pleas. Most importantly, the Joint Committee was also concerned by Mr. Harwell's lack of experience with sophisticated legal matters; his practice has consisted almost entirely of driving under the influence defense work and the settlement of automobile accident cases.
In response to the Joint Committee's request for a list of all civil and criminal matters that actually went to trial, Mr. Harwell responded with a list of trials from 1987 to present. Mr. Harwell gave the Joint Committee documentation of fifty-seven matters that actually went to trial during that period of time, forty-nine of which were in magistrate's court, four of which were in city court, and four of which were in general sessions court. Of the fifty-seven matters, fifty-two were driving under the influence trials, two were leaving the scene trials, one was an open container trial, one was an assault and battery trial, and one was a murder trial.
The Joint Committee adopted a new procedure for the taking of testimony this year by which individuals may file an affidavit with the Joint Committee's legal staff but choose to keep their identities confidential. The Joint Committee received such an affidavit concerning Mr. Harwell. A staff attorney who knew the identity of the affiant presented the affidavit in public session, informed the Joint Committee of certain background information, but did not reveal the affiant's identity. The confidential affidavit indicated that the affiant had known Mr. Harwell for over thirty years and believed him to have a successful but limited criminal practice and virtually no civil experience. The confidential affiant said that Mr. Harwell is a driving under the influence lawyer who does not have the experience to be a trial court judge. The Joint Committee regretted that Mr. Harwell could not question the affiant in public session, but considered the affiant's comments in its deliberations. The Joint Committee did so because it believes that it must encourage individuals with firsthand information about judicial candidates to come forward and because it trusted staff to investigate and determine whether the affiant was making honest representations. Mr. Harwell speculated as to the confidential affiant's identity and said he thought the comments were politically motivated.
Mr. Harwell did, however, agree with the confidential affiant's assertion that he has had a very limited trial practice. He offered his active experience with criminal pleas and his service as a senior partner advising other lawyers as substitutions for his lack of trial experience.
Mr. Harwell testified that much of his practice has involved pleas and civil work that never went to trial. Criminal plea negotiations are important, but do not prepare candidates for service on the trial court bench because the acceptance of pleas constitutes a very narrow part of a judge's job. As to civil matters that never went to trial, the documentation Mr. Harwell provided the Joint Committee consisted entirely of automobile accident settlements.
Mr. Harwell stressed that the Joint Committee should not look solely at his practice over the last few years, but also at his long history of success. He indicated that he regularly advises younger lawyers in his firm and around the state and that this experience has prepared him to serve on the trial court bench. Two Columbia attorneys, Mr. David Massey and Mr. David Fedor, and a retired circuit court judge and member of the House of Representatives, Judge Marion Kinon, filed affidavits and testified on Mr. Harwell's behalf. Judge Kinon testified that he had known Mr. Harwell for thirty years and knew of few attorneys who could rival his legal skill and ability. Mr. Fedor testified that Mr. Harwell is an experienced trial lawyer in both civil and criminal cases and is qualified to be a circuit court judge. When asked whether legal knowledge and ability were important, Mr. Fedor responded that Mr. Harwell already knew everything he needed to know, but could remedy any defects he might have with ten days of study. Mr. Massey testified that Mr. Harwell is an experienced trial lawyer and qualified to serve as a circuit court judge. The Joint Committee considered this testimony and respects the opinions of the witnesses, but found the testimony to be in conflict with the documentation of the experience Mr. Harwell provided the Joint Committee and his performance on the Joint Committee's practice and procedure questions.
As evidence of his long history of success, Mr. Harwell testified that he had never had a civil appeal and that he had won 90% of his criminal cases. The Joint Committee was impressed by Mr. Harwell's success rate, but it establishes only that he has been successful in the area in which he practices which is a fact of which the Joint Committee had no doubt.
As evidence that he has worked on sophisticated criminal matters, Mr. Harwell provided the Joint Committee with a list of five murder trials with which he was involved. These trials were, however, conducted in the early to mid-1970's, more than twenty years ago, and Mr. Harwell did not provide the Joint Committee with evidence of any sophisticated criminal matter he has handled since then.
4. Judicial Temperament:
The Joint Committee's investigation did not reveal anything that would indicate a potential problem with judicial temperament. Most of the input the Joint Committee received from its own survey and from the Bar's investigation indicated that Mr. Harwell has the temperament required for service on the bench. The Bar noted that Mr. Harwell is well-liked, compassionate, and would have good judicial temperament.
Mr. Harwell testified that he thought it would be important for him to retain his sense of humor if elected, but that he might have to rein his humor in some. He said that he thought humor helps to relieve tension and put people at ease.
5. Diligence and Industry:
Mr. Harwell was punctual and attentive in his dealings with the Joint Committee.
Mr. Harwell testified that he would serve a full term if elected and that he had no plans to return to private practice.
6. Mental and Physical Capabilities:
Mr. Harwell appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Mr. Harwell has managed his financial affairs responsibly.
8. Public Service:
Mr. Harwell served in the House of Representatives from 1979 to 1980 and from 1989 to the present. He has also served on the U.S. Congressional AdHoc Committee for Expansion of the Florence National Cemetery, the Commission on Aging, the Florence Jail Commission, and the State Reorganization Commission.
Mr. Harwell testified that if elected he would seek to avoid the appearance of partisanship in his activities as a legislator before his swearing in as a judge.
9. Ethics:
Mr. Harwell testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or
(c) asked third persons to contact members of the General Assembly prior to screening.
Mr. Harwell also testified that he has not made campaign expenditures in excess of $100 and has, therefore, not been required to report expenditures to the House or Senate Ethics Committees.
Mr. Harwell testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
10. Miscellaneous:
The Joint Committee received one statement in opposition to Mr. Harwell's election and three affidavits in support. All four affidavits are discussed above.
Joint Committee's Finding: Legally Qualified
Judge Hall was screened on February 8, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Judge Hall's character, integrity, and reputation are outstanding.
Judge Hall demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. On the issue of ex parte communications, Judge Hall testified that he does not engage in ex parte communications and does everything in the courtroom on the record. He says he will only meet when all parties, including pro se parties, have been given proper notice.
On the issue of recusal, Judge Hall testified that he recuses himself if a lawyer or litigant has a valid reason for asking him to do so. He also testified that he does not accept gifts of any kind and avoids attending functions that would bring embarrassment to the bench or would indicate that he advocates or supports a particular cause. Judge Hall does not "do lunch," but will accept invitations from groups that invite all of the judges, such as the Bar or the Solicitors' Association.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its survey and from the Bar indicated that Judge Hall is intelligent and knowledgeable. He has complied with all continuing judicial education requirements and has taught orientation school for new circuit court judges, made a presentation on our court system at York Technical College, and made a presentation on recent United States Supreme Court decisions at the South Carolina Solicitors Conference.
Judge Hall's score on the Joint Committee's practice and procedure questions was 3.0 out of 4 possible points. He was well versed on the damages that can be recovered without a hearing in a default judgment, when counsel can ask leading questions in a child sexual abuse case, Allen charges, when jeopardy attaches, and the admissibility of expert testimony. He was also familiar with the standard of review in an appeal from the Workers' Compensation Commission and when a witness may testify outside of the defendant's presence.
Judge Hall took the South Carolina bar examination twice.
Judge Hall has been sued twice in his capacity as a judge. In one matter, he was among a group of judges sued, but the case was resolved in Judge Hall's favor by the Supreme Court. He was also sued in the 1970's in his capacity as a guardian ad litem. The Joint Committee did not find cause for concern in either matter.
In response to the Chairman's questions about separation of powers and the role of the judiciary, Judge Hall testified that acts of the General Assembly are presumed constitutional and that he believes in the death penalty. He also testified that he believes in alternative dispute resolution procedures as they will reduce case loads and help both litigants and the court system. He was not familiar with the political abstention doctrine.
3. Professional Experience:
Judge Hall has been a circuit court judge since 1991 and was on the family court bench from 1986 to 1991. He practiced civil, criminal, and domestic law from 1972 to 1986.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicate that Judge Hall's temperament is excellent.
5. Diligence and Industry:
Judge Hall was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
6. Mental and Physical Capabilities:
Judge Hall appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Hall has managed his financial affairs responsibly.
8. Public Service:
Judge Hall has served on the bench since 1986.
9. Ethics:
Judge Hall testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or
(c) asked third persons to contact members of the General Assembly prior to screening.
Judge Hall also testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
Judge Hall testified that he has not spent any money on his campaign and is, therefore, not required to file campaign expenditure statements with the House or Senate Ethics Committees.
10. Miscellaneous:
Judge Hall is currently an at-large circuit court judge running for a resident seat in the Tenth Judicial Circuit. Judge Hall testified that he wants to be the resident judge because his family is from Anderson and he would consider it an honor to be the resident judge of that circuit. He also testified that he understood that South Carolina Code Section 2-19-80 would require the Joint Committee to delay the elections for this seat and reopen the filing period if the incumbent, Judge Ervin, withdraws from this race.
Judge Hall testified that he plans to serve the full term if elected and has no plans to return to private practice.
The Joint Committee did not receive any complaints or statements in opposition to Judge Hall's election.
Joint Committee's Finding: Legally Qualified
Ms. Clifford was screened on February 2, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. Most of the input the Joint Committee received from its own survey and the report of the Bar was that Ms. Clifford's character, integrity, and reputation are outstanding.
Ms. Clifford demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. On the issue of ex parte communications, Ms. Clifford stated that she would not allow ex parte communications unless it was a matter in which ex parte communications were specifically allowed, such as the issuance of a search warrant.
On the issue of recusal, Ms. Clifford testified that if a party wanted her to recuse herself, she would do so to avoid even the appearance of impropriety. Ms. Clifford also testified that she would not hear a case in which she held a de minimis financial interest.
Ms. Clifford testified that she would never accept gifts and would accept social hospitality only under strict guidelines to avoid the appearance of impropriety.
The Joint Committee questioned Ms. Clifford about her ability to shed her role of advocate, particularly in light of her extensive criminal experience and rather limited civil work. Ms. Clifford testified in response that as a judge she would not advocate either side and would decide cases based on the facts, the evidence, and the law. She indicated that she would not let her past experiences in the criminal arena improperly influence her decisions if elected.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its survey and from the Bar indicated that Ms. Clifford is intelligent and knowledgeable, particularly in the area of criminal law. There was some concern expressed about a perceived lack of civil experience.
Ms. Clifford's score on the Joint Committee's practice and procedure questions was 2.71 out of a possible 4 points. Ms. Clifford was very knowledgeable about circumstances in which a witness can testify outside the defendant's presence, res gestae, when jeopardy attaches, and the admission of expert testimony. She was also familiar with when a defendant can be convicted solely on circumstantial evidence, the standard of review in an appeal from the Workers' Compensation Commission, and Allen charges. She was less familiar with when a judge can grant a new trial notwithstanding the verdict in a civil matter, when a juror may pose questions to a witness, when a motion for directed verdict should be granted, and the standard of appellate review in civil cases. Ms. Clifford did not know what damages are recoverable without a hearing in a default judgment.
Ms. Clifford has given more than twenty-five continuing legal education and other presentations in the last ten years and has written extensively for various professional publications. Most of her courses and publications have been about criminal law.
Ms. Clifford testified that she has had some experience with alternative dispute resolution. She also testified in response to the Chairman's questions about the role of the judiciary, that laws are entitled to a presumption of constitutionality and that she has read the case law concerning the constitutionality of the death penalty.
When asked about her sentencing philosophy for repeat offenders, Ms. Clifford responded that she would look at each case closely and consider such factors as what kind of help the person got the first time. She also testified that she would give juveniles the benefit of the doubt and look at the circumstances of the offense and the character of the offender.
3. Professional Experience:
The Joint Committee found that, while Ms. Clifford has had little experience in the civil law arena, she has extensive criminal experience with sophisticated matters and has the experience to be a knowledgeable and effective circuit court judge.
Ms. Clifford has served as an assistant solicitor for the ninth judicial circuit since 1991. Her work has involved prosecuting criminal charges in general sessions court, handling drug seizure and forfeiture cases in the court of common pleas, and appellate practice. She says that she handles a wide variety of cases, but predominately serious felonies such as burglary, criminal sexual conduct, armed robbery, murder, and drug offenses. She describes her current monthly caseload as between 300 and 400 warrants. She describes her work as approximately 15 to 20% civil over the last five years, with much of her civil experience involving forfeiture cases. Ms. Clifford testified that in the last two years she has taken only one civil case, a forfeiture matter, to trial, but that she has handled numerous civil matters that did not go to trial.
Ms. Clifford worked as an assistant Attorney General from 1984 to 1991. Her responsibilities included handling criminal appeals, representing state agencies and boards, and acting as an administrative hearing officer.
Ms. Clifford worked as a staff attorney with Piedmont Legal Services from 1983 to 1984. Her responsibilities included the representation of clients in adoption, custody, divorce, support, termination of parental rights and child removal matters, as well as employment, food stamp, housing, and social security cases. She testified that she did not appear in the court of common pleas during this time, as much of her work involved administrative matters and appellate practice.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicate that Ms. Clifford's judicial temperament would be good. There was some question raised by anonymous survey respondents as to Ms. Clifford's ability to be open-minded and see both sides of an issue, but no one came forward to testify on this issue and the Joint Committee found no first hand information of any potential problems with temperament. The Joint Committee is satisfied that Ms. Clifford has the qualities required for service on the bench.
5. Diligence and Industry:
Ms. Clifford was punctual and attentive in her dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with her diligence and industry. In fact, the Joint Committee's investigation revealed that Ms. Clifford is clearly a very hard worker who takes her commitments seriously.
6. Mental and Physical Capabilities:
Ms. Clifford appears to be mentally and physically capable of performing the duties of the office she seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Ms. Clifford has managed her financial affairs responsibly.
8. Public Service:
Ms. Clifford has worked in the public sector all her professional career. She belongs to numerous professional organizations and consistently volunteers her time for Bar and other professional endeavors.
9. Ethics:
Ms. Clifford testified that she has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening;
(c) asked third persons to contact members of the General Assembly prior to screening; or
(d) used the resources of the solicitor's office for her campaign.
Ms. Clifford also testified that she understood the new Joint Committee rule requiring her to wait forty-eight hours after the draft report is released before she may begin seeking commitments.
Ms. Clifford testified that she has spent $302.89 on her campaign and has filed reports with both the House and Senate Ethics Committees.
10. Miscellaneous:
The Joint Committee did not receive any complaints or statements in opposition to Ms. Clifford's election.
Joint Committee's Finding: Legally Qualified
Mr. DuTremble was screened on February 2, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Mr. DuTremble's character, integrity, and reputation are outstanding.
Mr. DuTremble demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. On the issue of ex parte communications, Mr. DuTremble stated that ex parte communications are "absolutely inappropriate." He testified that his current practice is to draft a letter to opposing counsel advising them any time he has any communication with the court.
On the issue of recusal, Mr. DuTremble testified that he would have an absolute obligation to look into the matter and would recuse himself if there were any question of impropriety. He said that he believes that judges should take the lead in deciding whether recusal is necessary and that if an attorney asked him to recuse himself he would probably do so. He testified that if the reason a party wanted him to recuse himself was that he was more familiar with one side than the other he would have to take a look at the relationship and the reason for the recusal motion before making a decision. Mr. DuTremble also said that he would not hear a matter in which he held even a de minimis financial interest.
Mr. DuTremble said that there is an absolute prohibition on judges taking gifts and that judges make enough money to buy their own lunches. When questioned about whether he would accept ordinary social hospitality, Mr. DuTremble said that judges should know when to decline such invitations. He said, by way of example, that a judge should not accept an invitation for a golf outing or deep-sea fishing from people who practice before him.
Mr. DuTremble said that if elected he would not retain any interest in cases or property of his law firm and would not continue any other business associations.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its survey and from the Bar indicated that Mr. DuTremble is intelligent and knowledgeable. He has complied with all continuing legal education requirements.
Mr. DuTremble's score on the Joint Committee's practice and procedure questions was a 2.86 out of 4 possible points. Mr. DuTremble was very familiar with when a witness might testify outside the defendant's presence. He also did well on questions about how a juror might ask a question of a witness, Allen charges, the admissibility of expert testimony, and when a judge should declare a mistrial. He was less familiar with the conditions that must exist before a judge issues a temporary restraining order.
Mr. DuTremble's Martindale-Hubbell rating is AV, their highest rating.
In response to the Chairman's questions about separation of powers and the role of the judiciary, Mr. DuTremble testified that courts have no role in lawmaking and the death penalty is constitutional, but its deterrent effect is diluted by the long appellate process. Mr. DuTremble indicated that he has had some experience with alternative dispute resolution and feels that it will have a positive effect on lowering the cost of litigation. Mr. DuTremble was only passingly familiar with the political abstention doctrine.
3. Professional Experience:
The Joint Committee found that, while Mr. DuTremble has focused on the practice of criminal rather than civil law, he has extensive experience with the type of issues he would encounter as a circuit court judge. Mr. DuTremble has specialized in criminal law and has limited civil experience. He does, however, have some civil experience and has extensive experience with complex criminal matters.
Mr. DuTremble has been a solo practitioner since 1991. From 1989 to 1991, he was an Assistant United States Attorney working on Operation Lost Trust. From 1987 to 1989 he was a solo practitioner with a general practice emphasizing criminal trial work and civil litigation. From 1983 to 1987, he was an Assistant United States Attorney responsible for all criminal prosecutions and appeals in the Charleston office. From 1982 to 1983, he was an instructor at the South Carolina Criminal Justice Academy. From 1979 to 1983, he worked for the Eleventh Judicial Circuit, first as an assistant public defender and then as an assistant solicitor. From 1978 to 1979 he was law clerk for the Honorable Julius H. Baggett.
Over the past five years, Mr. DuTremble's practice has been 90% criminal and 10% civil with most of his court appearances in federal court. The Bar indicated that Mr. DuTremble has extensive criminal experience and experience with complex civil litigation. The Joint Committee received other input which also indicated that Mr. DuTremble has extensive criminal experience, but a very small number of people indicated that he lacks civil experience.
In response to the Joint Committee's request for additional information, Mr. DuTremble estimated that he handles approximately ten federal criminal cases per year and five civil trials per year. He provided the Joint Committee with a list of civil cases that he actually took to trial in recent years. These cases included an action for trespass and malicious injury to property, an action for malicious prosecution, a breach of contract action, a legal malpractice suit, and an EPA debarment. Mr. DuTremble added that he has other civil matters, including a trademark infringement case and a Superfund matter, pending, but they have not yet come up for trial. The Joint Committee is satisfied that, while Mr. DuTremble has not had an extensive civil practice, he does have experience with rather complex civil matters. Mr. DuTremble testified that he prefers criminal matters over civil because civil matters tend to move more slowly.
Most of Mr. DuTremble's trial experience has been in federal court, but he testified, and the Joint Committee agrees, that federal practice is very similar to practice in state court. Mr. DuTremble estimated that over the past five years, 10% of his court appearances have been in state court and the other 90% have been in federal court.
4. Judicial Temperament:
The Joint Committee's investigation did not reveal anything that would indicate a potential problem with judicial temperament. Throughout the Joint Committee's work with Mr. DuTremble he demonstrated the qualities and character required for a judge of outstanding judicial temperament. Furthermore, the input the Joint Committee received from its own survey and from the Bar's investigation indicated that Mr. DuTremble has the temperament required for service on the bench.
5. Diligence and Industry:
Mr. DuTremble was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
Mr. DuTremble's wife was present for his screening. His family appears to fully support his decision to seek this position, and he testified that he can balance his career and family life.
Mr. DuTremble testified that he would serve a full term if elected and that he had no plans to return to private practice.
6. Mental and Physical Capabilities:
Mr. DuTremble appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Mr. DuTremble has managed his financial affairs responsibly.
8. Public Service:
Mr. DuTremble has worked in the public sector as an Assistant United States Attorney and for the Eleventh Circuit as an assistant public defender and solicitor.
9. Ethics:
Mr. DuTremble testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or
(c) asked third persons to contact members of the General Assembly prior to screening.
Mr. DuTremble also testified that he has not made campaign expenditures in excess of $100 and has, therefore, not been required to report expenditures to the House or Senate Ethics Committees.
Mr. DuTremble testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
10. Miscellaneous:
The Joint Committee did not receive any complaints or statements in opposition to Mr. DuTremble's election.
Joint Committee's Finding: Legally Qualified
Judge Martin was screened on February 15th, 16th, and 21st, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The input the Joint Committee received from its own survey and the report of the Bar was that Judge Martin is widely perceived to be compassionate and an ardent believer in the protection of constitutional rights. The Bar described Judge Martin's character as "impeccable" and praised his impartiality and judicial independence.
Judge Martin's testimony indicated that he understood the Canons of Judicial Conduct and other ethical considerations of importance to judges. The Joint Committee did, however, learn of one instance in which the Joint Committee found Judge Martin to have violated the prohibition against ex parte communications. Judge Martin stated that he requires all attorneys involved in a matter to be present before he entertains anything pertaining to the matter. He did not do so, however, in one matter brought to the Joint Committee's attention.
Mr. Daniel Norfleet, a Charleston attorney, filed an affidavit and testified before the Joint Committee alleging that Judge Martin had engaged in ex parte communication in a post-conviction relief matter in which Mr. Norfleet represented the defendant. Judge Martin presided over the initial post-conviction relief hearing in which the state was unable to produce a copy of the transcript from the defendant's trial. The transcript was presumed lost in Hurricane Hugo and there was discussion to that effect on the record. Mr. Norfleet left the courtroom at the end of the hearing and the court proceeded to hear other post-conviction relief matters. Later the same day, the attorney for the state and the assistant solicitor who was a witness in the matter produced a copy of the transcript, and Judge Martin accepted it and discussed the contents of the transcript on the record without Mr. Norfleet present. Judge Martin did not instruct the state's attorney to contact Mr. Norfleet and get him to court or otherwise avoid the ex parte nature of the proceedings.
The Joint Committee reviewed the transcript of Judge Martin's handling of this matter. The transcript clearly indicates that the matter was taken up ex parte and that the court discussed both the reasons for the transcript's disappearance and its content.
The Joint Committee subpoenaed two attorneys who handled this matter for the state and the assistant solicitor who was a witness in the matter. The assistant solicitor and one of the two attorneys for the state testified that they were merely attempting to allow the court to reserve jurisdiction when they introduced the transcript ex parte and that the communications were de minimis and, therefore, not a violation of the rules of conduct. Mr. Norfleet testified that, even though Judge Martin eventually granted his client a new trial, his client was still prejudiced by Judge Martin's conduct because the transcript was made a part of the record on appeal without a hearing on whether the state had a good reason for failing to produce the transcript at the original post-conviction relief hearing. The Supreme Court ultimately reversed Judge Martin's order of a new trial because Judge Martin inexplicably failed to consider the transcript after he had accepted it into the record. Judge Martin testified that in hindsight he should have not taken the matter up without Mr. Norfleet present in the courtroom.
The Joint Committee believes that Judge Martin's conduct in this matter likely violated the Canons of Judicial Conduct in that he engaged in ex parte communications about a substantive matter that might have prejudiced the defendant. The Joint Committee recognizes that ex parte communication about a de minimis matter may be appropriate in some circumstances, but in this case the court inquired as to the substance of the transcript and when Judge Martin accepted it for consideration he impaired the defendant's opportunity to require a hearing as to why the transcript had been missing.
On the issue of recusal, Judge Martin testified that if there appears to be a conflict of interest or any suggestion of impropriety he should recuse himself. Judge Martin also testified that he does not accept gifts and does not often accept offers of social hospitality because his presence might be misinterpreted.
Judge Martin testified that none of the six attorneys who wrote letters of reference on his behalf had matters pending before him at the time they wrote the letters.
2. Legal Knowledge and Ability:
The Joint Committee believes that Judge Martin is a man of good character, but has concerns about his level of legal knowledge and ability. The Joint Committee reached this conclusion after listening to Judge Martin's responses to the Joint Committee's practice and procedure questions, analyzing his record on appeal, considering input from the Bar, reading transcripts which reflect his reasoning and the rulings that flowed therefrom, and considering the testimony of witnesses in support of and opposition to his election.
Judge Martin's score on the Joint Committee's practice and procedure questions was 1.0 out of 4 possible points. He failed to demonstrate knowledge of basic practice and procedure and the Joint Committee was disturbed by Judge Martin's poor performance on these questions. Judge Martin was familiar with Allen charges, when jeopardy attaches, whether an expert can testify as to legal conclusions, and the impeachment of witnesses with evidence of bad character. Judge Martin was, however, only vaguely familiar with the rule for removal of matters from the docket because of inactivity, when orders may be appealed, appeals from magistrate court, how a juror might pose a question of a witness, res gestae, whether an expert may testify on matters of common knowledge, and whether an expert may testify on ultimate issues. Judge Martin was completely unfamiliar with whether a party may seek inconsistent remedies, damages recoverable without a hearing in a default judgment, whether a witness may testify outside of the defendant's presence, whether it is a necessary prerequisite for the admission of scientific evidence that the theory and general technique be generally accepted in the scientific community, and the use of prior criminal convictions in a civil trial.
Judge Martin's record since his election to the circuit court bench in 1992 was criticized by the Bar, anonymous respondents to the Joint Committee's survey, and witnesses who filed affidavits and testified before the Joint Committee. The Joint Committee's attention was drawn to his record of reversals on appeal. Judge Martin's record on appeal is poor as he has been reversed, in whole or in part, in seven of the eight reported appellate opinions appealed from his decisions. He testified that he has been affirmed in eight unpublished opinions, but the Joint Committee does not search for any candidate's unpublished appellate decisions because they are not included in the computer database in which the Joint Committee conducts its research and they are often based on technical grounds such as situations in which the error was not preserved for appeal. The Joint Committee does recognize that its statistics on the appellate record of Judge Martin and all other candidates do not reflect unpublished appellate decisions. The Joint Committee did not consider this information about Judge Martin's appellate record to be determinative of his fitness for further service on the bench, but used it to help direct the Joint Committee's inquiry concerning his legal knowledge and ability.
The Bar found Judge Martin not qualified and said that it found significant concerns about his knowledge of the law and his ability to overcome this deficiency. The Bar's statistical survey on all current members of the judiciary up for re-election or at the mid point in their terms also indicated that there were major concerns with Judge Martin's knowledge and ability. Judge Martin rated the lowest of any judge in the Bar's empirical survey. Some of the witnesses who testified in favor of Judge Martin expressed concern over the number of people who responded to the Bar survey and felt that all of the survey respondents could not have practiced before Judge Martin. The Joint Committee considered the input from the Bar, but recognized that the respondents were anonymous members of the Bar who may or may not have had any direct knowledge of Judge Martin's capabilities. The Joint Committee did, however, note that the number of respondents for Judge Martin were similar to other judges who had been on the bench a similar length of time in a circuit of a similar size. The Joint Committee considered this information from the Bar only to direct the Joint Committee's inquiry and did not believe it to be determinative of Judge Martin's capabilities.
The Charleston County Solicitor, Mr. David Schwacke filed an affidavit and testified before the Joint Committee. Mr. Schwacke testified that he came before the Joint Committee because he considered it his duty to respond to published reports that he had stopped bringing cases with an identifiable victim before Judge Martin. Solicitors are charged by law with setting the criminal docket in South Carolina courts, and the reports stated that Judge Martin had, in Charleston County, been relegated to driving under the influence and similar matters in criminal court. Mr. Schwacke testified that he had not commented publicly on this matter before coming to the Joint Committee as he believed that Judge Martin's screening was the proper forum for his remarks. The Joint Committee reviewed the following matters brought to its attention by Mr. Schwacke:
(1) State v. Myers: Mr. Schwacke testified that in a pretrial hearing Judge Martin ruled that:
(a) a marine vessel could not constitute a habitable dwelling for the purpose of an arson prosecution; and
(b) the arson indictment be amended to burning of crops and other types of property, a lesser non-included offense.
This case was appealed to the South Carolina Supreme Court who reversed both rulings. Judge Martin testified that the definition of a marine vessel as a habitable dwelling was an issue of first impression in South Carolina. The Joint Committee agreed and did not find cause for concern in Judge Martin's ruling on that point. The Supreme Court ruled that Judge Martin had erred when he allowed amendment of the indictment to include a lesser, non-included offense.
(2) State v. Hazelton: Mr. Schwacke testified that Judge Martin:
(a) ruled that the defense could not cross-examine the state's witness who was facing pending criminal charges at the time of his testimony as to any plea offers or promises of leniency; and
(b) precluded the defense attorney from arguing that the jury could not consider the criminal records of the state's witnesses as affecting their credibility.
Judge Martin testified that he did not allow the defense to cross-examine the witness as to plea offers or promises of leniency because he said the solicitor's office is noted for reneging on plea bargains and if they really wanted this witness to testify, and they were going to honor the offer they had made to him, they could have done something more substantial than just make a promise. Judge Martin also noted that the witness had been charged, but had not been convicted of any crime at the time of the trial. On the second issue, the candidate stated that the argument of prior convictions would have had to have been allowed on direct or cross-examination in order for the jury to be exposed to it, but then said that the general notion that anything presented in final argument has to be derivative of the evidence presented at trial is not necessarily always the case. This case is currently on appeal.
(3) McInnis v. Medlock: Mr. Schwacke testified that Judge Martin signed an order to show cause in this matter before the time to answer had run. Mr. Schwacke testified that this was a case involving the seizure of cash and that he was not aware of any exigent circumstances which would have justified immediate injunctive relief to protect the property. Judge Martin testified that he had no memory of signing this order, but that the signature on the order was his. Judge Martin speculated that the order may have been placed on his desk for signing like many orders are throughout the course of the day, but that the matter had not been assigned to him for trial and he should not have received the order because he does not serve as administrative judge. He testified that if the order had been mailed directly to him, he would have read it and taken it to the administrative judge. Judge Martin stated that he is sure he read the order, but that he might not have been aware that the defendants' period of time in which to answer had not yet run. The Joint Committee was very concerned about this matter as it is an instance in which Judge Martin must have signed an order he did not understand. Judge Martin should have forwarded the order to the administrative judge, or at the very least, understood what he was signing.
(4) Mr. Schwacke reported an incident in which he was in the courtroom for jury qualification and heard Judge Martin qualify two jurors who did not live in Charleston County. Mr. Schwacke testified that Judge Martin found the two jurors qualified for service in Charleston County even after they informed Judge Martin that although their driver's licenses indicated they lived in North Charleston, they resided and paid taxes in Dorchester County. Judge Martin responded that he has never made a juror serve if they are not a resident of the county in which the case is being tried, and if this happened, there must be some reason why the juror continued to serve. He also indicated that no one ever brought this problem to his attention. Mr. Schwacke should have perhaps brought the matter to Judge Martin's attention, but the solicitor should be able to presume that every judge understands the fundamentals of juror qualification. The testimony on this issue was in conflict and because the Joint Committee did not have a transcript of the proceedings, it could not determine which version of the events was more accurate.
(5) State v. Whaley: Mr. Schwacke alleged two errors in this trial:
(a) The defendant indicated that, although he wished to be represented by an attorney, he was displeased with his current counsel and wished to have a new attorney appointed. Mr. Schwacke said, and the transcript the Joint Committee reviewed reflected, that instead of appointing another attorney, Judge Martin required the defendant to represent himself and did not warn him about the potential perils of pro se representation.
(b) Judge Martin dismissed the indictment because of inconsistent verdicts. Judge Martin charged the jury on both larceny and burglary. When the jury returned a verdict of guilty on the burglary charge and not guilty on the larceny charge, Judge Martin indicated on the record that he found the verdicts to be inconsistent and was, therefore, dismissing the charges and setting the defendant free. Mr. Schwacke approached the bench and asked to be heard on the issue at that point, but Judge Martin did not allow Mr. Schwacke to state his objection and said that the solicitor was free to appeal.
As to the first alleged error, Judge Martin testified that he was sure that he did not deny the defendant the right to be represented by counsel. After the pertinent part in the transcript had been read to him, however, he stated that he probably did neglect to warn the defendant of the consequences of representing himself and he probably should have warned him or given him another lawyer, but it appeared to him that the defendant was abusing the system and that is why he proceeded. The trial transcript clearly reflected that Judge Martin forced the defendant to represent himself and did not warn him of the consequences.
As to the second alleged error, Judge Martin testified that he set the defendant free not because the verdicts were inconsistent, but because he was sitting as the thirteenth juror and believed the evidence did not support the verdict. He could not recall why the transcript did not reflect this reasoning and could not, even with significant assistance from the Joint Committee's counsel, clearly articulate the standard for a new trial based on the thirteenth juror doctrine. He also testified that the doctrine of double jeopardy has an impact on the thirteenth juror doctrine so as to allow a remedy of dismissal rather than the legally correct remedy of a new trial absolute. Judge Martin testified that he should have allowed the solicitor to put his objection to Judge Martin's dismissal of the matter on the record.
Judge Martin acknowledged that his failure to warn the defendant of the perils of pro se representation was probably reversible error, and the South Carolina Supreme Court recently reversed Judge Martin on both Mr. Schwacke's alleged points of error. The Joint Committee was particularly troubled by Judge Martin's inability to explain his reasoning and his confusing testimony about the thirteenth juror doctrine and the law regarding inconsistent remedies.
(6) State v. Dawson: Mr. Schwacke's first issue in this matter was whether or not the jury should be instructed to not draw inferences from the defendant's failure to perform a field sobriety test. Mr. Schwacke acknowledged that this is an unsettled question of law and, therefore, the Joint Committee could not find fault with Judge Martin's charge on this issue.
The second issue concerned an allegation that Judge Martin incorrectly placed the burden of proof on the defendant in a pre-trial suppression hearing. Judge Martin responded that the state always has the burden of proving the defendant's guilt and that the burden should never be shifted to the defendant, but that he did not know if the solicitor was correct in alleging that he erroneously placed the burden of proof on the defendant. The Joint Committee did not have a trial transcript to refer to on this point.
(7) State v. Reno: Mr. Schwacke alleged Judge Martin erred by charging the jury that it could not consider the defendant's failure to take a Data Master test. Judge Martin testified that he allowed the solicitor to argue that the defendant refused the test and that he believed his charge to be proper. The Joint Committee's research indicated that the propriety of Judge Martin's charge is an unsettled question of law and, therefore, it could find no fault in his charge.
(8) State v. Moore: In this driving under the influence matter, the beginning portion of defendant's breathalyzer video was erased due to an attempt to comply with a court expungement order in an unrelated driving under the influence case recorded on the same videotape. Instead of excluding the videotape as Mr. Schwacke argued would have been proper, Judge Martin dismissed the indictment. Judge Martin testified that he felt that the solicitor's office was guilty of prosecutorial misconduct in this case in that they erased evidence that could have been exculpatory for the defendant or could have led to a defense verdict. The trial transcript reflects a different or perhaps confused reasoning, however, as Judge Martin stated on the record that he was not dismissing the case for prosecutorial misconduct. The law requires a finding of prosecutorial misconduct in order for a judge to dismiss an indictment, and there may have been evidence in the record to support such a finding, but Judge Martin specifically stated on the record that his ruling was not based on such a finding. Appellate courts have great difficulty in reviewing matters in which the record is unclear, causing additional expense for litigants. Judge Martin testified that he probably should have been clearer as to his grounds for dismissal.
(9) State v. Smalls, State v. Tisdale, and State v. Passmore: These were driving under the influence matters in which Judge Martin did not give the mandatory minimum sentence. In State v. Smalls, the statute required a sixty-day mandatory minimum sentence, but Judge Martin suspended incarceration upon two years concurrent probation. Judge Martin testified that the statute does not allow him to reduce a mandatory minimum sentence and that he would stick to the letter of the law if re-elected.
The solicitor also pointed out that immediately before Judge Martin sentenced the defendant in State v. Smalls he discussed on the record the fact that he knew the defendant's father who is a minister. After both Judge Martin and the solicitor testified on this issue, the Joint Committee accepted the solicitor's determination that there was probably no impropriety in Judge Martin's comments.
(10) State v. Foran: This was a driving under the influence, second offense matter in which Judge Martin dismissed the indictment on grounds of double jeopardy. The Charleston Grand Jury originally no billed the offense against the defendant because the original indictment indicated it was a third, instead of second offense. The charge was then presented to another grand jury at a later date with the proper indictment. Judge Martin held that the first grand jury dismissal barred subsequent prosecution based on double jeopardy. The first case did not reach the point where the jury would have been sworn in, and jeopardy would not have attached. In response to the Joint Committee's practice and procedure questions, Judge Martin had answered the question about when jeopardy attaches correctly. He did, however, still maintain that his order was correct in this matter because he believed that the state had manufactured a case against the defendant and was guilty of prosecutorial misconduct. The Joint Committee reviewed the transcript in this matter and it clearly indicates that Judge Martin's dismissal was on the grounds of double jeopardy. Judge Martin testified that his decision was based on prosecutorial misconduct, even though that might not have been clear on the record. He stated that there might not have been double jeopardy in this case. This case concerned the Joint Committee as it was another example of Judge Martin's lack of clarity in some of his rulings.
The Joint Committee is not an appeals court and did not attempt to play that role when reviewing Judge Martin's decisions in the cases listed above. The Joint Committee did, however, attempt to determine whether Judge Martin understood the issues in those cases and whether his reasoning and the rulings that flowed therefrom were logical. A witness who testified on Judge Martin's behalf indicated that Judge Martin ought to be held to the same standards as other judges. The Joint Committee agreed and considered Judge Martin's responses to the solicitor's testimony in conjunction with his performance on the Joint Committee's practice and procedure questions.
Mr. Schwacke testified that he did not approach Judge Martin with his concerns about Judge Martin's performance because he felt it would be fruitless. The Joint Committee believes that such a conversation with Judge Martin might have been a good idea, but understands Mr. Schwacke's reluctance to do so given Judge Martin's general demeanor when criticized (discussed below) and his experience with Judge Martin in State v. Whaley when Judge Martin refused to allow Mr. Schwacke to question his ruling.
Judge Martin testified that he believed the complaints about his service on the bench are driven by the Charleston County Solicitor's office. He testified that it did not appear to be a racial issue, but rather one driven by the solicitor's disdain for some of Judge Martin's rulings and perhaps personal dislike. The Joint Committee offered Judge Martin the opportunity for the Joint Committee to subpoena witnesses and investigate specific allegations, but Judge Martin declined the offer.
The Joint Committee received two transcripts from sources who wished to remain anonymous. The first transcript was from a case in which Judge Martin was reviewing an appeal from a magistrate. There was some question in the case about whether the defendant had waived his right to a six-person jury. Judge Martin reviewed the magistrate's return, but then, even after both attorneys agreed it was not proper, took the testimony of witnesses. The Joint Committee believes that although Judge Martin was seeking to protect the defendant's constitutional rights, he should have followed South Carolina Code Section 18-3-70 which provides that no witnesses may be called when the circuit court is entertaining an appeal from a magistrate.
The second transcript was from a legal malpractice matter in which Judge Martin refused to allow a law school professor to testify on the issue of negligence because the introduction to the Code of Professional Responsibility for attorneys provides that it is not to be the basis of civil liability. The professor testified that he would not be basing his testimony solely on the Code of Professional Responsibility, but Judge Martin nevertheless refused to allow him to testify. No witnesses came forward to testify on this matter and it was, therefore, difficult for the Joint Committee to find fault with Judge Martin's handling of the case.
The Joint Committee subpoenaed a Charleston attorney, Mr. Reese Joye, to discuss Judge Martin's handling of a driving under the influence matter, State v. Terry. Mr. Joye reviewed the transcript of the hearing with the Joint Committee and responded to questions about the proceeding. The Joint Committee was primarily concerned about two aspects of the Terry trial. The first was Judge Martin's apparent reliance on appellate courts to correct his errors. In Terry, Judge Martin often responds to objections by saying "your objection is noted for the record." He apparently intends this to mean that the objection is overruled, but noted for the record. He used the phrase repeatedly in Terry and did not give the objecting attorney an opportunity to articulate the grounds for the objection. Along the same lines, Judge Martin said several times in Terry that if he was wrong the Supreme Court would correct him. Judge Martin testified that he thought he needed to be clearer in his rulings and would do so if re-elected.
The second concern the Joint Committee had with Judge Martin's handling of the Terry matter was his apparent confusion about the fundamental issue of when a defendant is due Miranda warnings. The defendant sought to exclude certain statements he made to the police prior to being advised about his right to counsel. The law essentially provides that the defendant must be given Miranda warnings if he is in custody and the police seek to interrogate him. Both the defendant and the police officer testified that the defendant was not free to leave when he made the statements, which is the classic legal test for when a person is in custody. Judge Martin ruled that the defendant was nevertheless not in custody at the time and that the police would have had to arrest him before he was entitled to Miranda warnings. The Joint Committee did not seek to second-guess Judge Martin's ruling on this matter, but is concerned by the unclear ruling as reflected in the transcript.
The following individuals testified on Judge Martin's behalf:
(1) Mr. Gary Ling stated that Judge Martin has a reputation for integrity and honesty in trying to reach a just and fair result. He also said that Judge Martin has the qualifications to understand legal issues and is also briefed by his clerk and the lawyers appearing before him in their briefs.
(2) Mr. Brent Clinkscale testified that he tried a complicated malpractice case before Judge Martin in which he made numerous rulings on motions and other evidentiary matters both favorable and unfavorable to Mr. Clinkscale's client. He testified that he observed Judge Martin to have a diligent work ethic and competent judicial decision-making ability.
(3) Mr. William Runyon testified that he was surprised at all the talk of Judge Martin not having knowledge of the law and that up until this year, there had been no question concerning Judge Martin's competence. He also said that if circuit judges are always supposed to be right, then we don't need a Court of Appeals or Supreme Court. Mr. Runyon stated that Judge Martin is intelligent and qualified for this position and that many of the negative statements about him were coming from young, inexperienced lawyers.
(4) Mr. Barry Baker testified that Judge Martin can communicate well with people and makes people feel comfortable in his court.
(5) Mr. Brad Riesen testified that he has heard nothing but good things about Judge Martin's competence and the way he handles his courtroom.
(6) Mr. William Hill testified that Judge Martin is not a 4 on a scale of 1 to 4 on knowledge of law, but there is no perfect man or woman on the face of the earth who can meet every qualification. He testified that Judge Martin's skills are more than adequate.
(7) Ms. Tara Anderson testified that the solicitor's office quit bringing cases involving victims in front of Judge Martin because he was not a rubberstamp for them. She said that Judge Martin is ethical, respectful, polite, and courteous.
(8) Mr. Anthony O'Neill testified that Judge Martin is a role model in the African-American community. He also said that Judge Martin has a basic working command of the law, applies the law fairly, is impartial, possesses honesty and integrity, and has a feel for the community.
(9) Mr. John Chalmers testified that he has tried a civil case in front of Judge Martin and that it was refreshing to be in front of a judge without any trepidation or fear of being made to look a fool or to be reprimanded in front of a client or the jury. Mr. Chalmers also testified that although Judge Martin may be weak on his grasp of civil procedure, a good grasp of it will come with time. He suggested that Judge Martin could re-attend the judicial training school in Nevada. He also said the reason we have the Court of Appeals and the Supreme Court is because judges make mistakes and that it is not unusual for a judge to make an error of law or procedure in a courtroom.
3. Professional Experience:
Judge Martin enjoyed a successful law practice before his election to the bench, but did not have experience with sophisticated matters. He practiced with the Honorable Richard Fields from 1966 to 1968. Judge Martin testified that during this time he engaged in a general practice of law, but did not handle any trials on his own with the exception of a master-in-equity matter.
Judge Martin served as the director of the Neighborhood Legal Assistance Program from 1968 to 1973. This program provided free legal services to indigents and Judge Martin had substantial administrative responsibilities, but the responsibility for trying cases was delegated mostly to the chief counsel. Judge Martin did, however, handle cases in circuit court during this time.
From 1974 to 1984, Judge Martin served as a part-time assistant solicitor for the Ninth Judicial Circuit. He prosecuted drug, assault and battery, burglary, and other criminal matters. He was also appointed by the Attorney General as special homicide prosecutor for a controversial case in Spartanburg. Judge Martin also had a private practice during this time, handling mostly civil cases and appearing in court about once or twice a month.
In 1984, Judge Martin was elected to the House of Representatives where he served until his election to the bench in 1992. He maintained his private practice during this period, working primarily on civil matters.
The Joint Committee asked Judge Martin to provide it with examples of cases he had handled over the years that he considered to be complex in nature. Judge Martin testified that he could not recall any complex civil matters and cited only one complex criminal matter. The complex criminal matter he cited was an Operation Lost Trust defense.
4. Judicial Temperament:
The input the Joint Committee received on Judge Martin's temperament was mostly very positive. Judge Martin exhibits compassion and other qualities and character required for a judge of outstanding judicial temperament.
There were, however, two instances in which Judge Martin appeared to have little patience for those who challenged his abilities. The Joint Committee believes that Judge Martin's unwillingness to recognize his mistakes and shortcomings is perhaps a partial explanation for the criticisms he has received. The Joint Committee witnessed what it believes to be three examples of his impatience for criticism. The first such example was Judge Martin's response to the testimony of a former client who had sued him for professional malpractice. Ms. Patricia Schultz sued Judge Martin over a real estate transaction in which he represented her in the purchase of a home. Ms. Schultz filed an affidavit and testified before the Joint Committee alleging that Judge Martin was negligent in not determining the correct flood zone of her property and that she would not have purchased the property had she known the type of flood zone in which the property was located. Judge Martin was granted summary judgment in the malpractice matter and testified that he was not negligent. The Joint Committee does not necessarily believe that Judge Martin was negligent in this matter, but was concerned by his response to Ms. Schultz at the public hearing. He called Ms. Schultz a liar and was very contemptuous in his overall manner towards Ms. Schultz. Judge Martin's conduct is perhaps explained by the tension he was under during the Joint Committee's proceedings, but Ms. Schultz is a retired school teacher who appeared to genuinely feel she was doing her civic duty by testifying.
The second example of Judge Martin's impatience with criticism is a situation in which he refused to grant an attorney's request for a copy of a trial transcript. Judge Martin was criticized in the newspaper for his allegedly lenient sentence in a driving under the influence matter. An attorney who defended a driving under the influence matter Judge Martin heard the next day asked the court reporter for a copy of the case for which Judge Martin was publicly criticized. Court reporters are not permitted to release transcripts to nonparties without the trial judge's approval, so the attorney asked Judge Martin to allow him to obtain a copy. Judge Martin refused, saying that if the attorney could obtain a copy of the transcript without his assistance he was free to do so, but that Judge Martin would not approve the request.
5. Diligence and Industry:
Judge Martin was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
Judge Martin testified that he would serve a full term if elected and that he had no plans to return to private practice.
6. Mental and Physical Capabilities:
Judge Martin appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Martin has managed his financial affairs responsibly.
8. Public Service:
Judge Martin has worked in the public sector as an assistant solicitor and as the director of Neighborhood Legal Assistance. He also served in the House of Representatives from 1984 to 1991.
9. Ethics:
Judge Martin testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or
(c) asked third persons to contact members of the General Assembly prior to screening.
Judge Martin also testified that he has not made any campaign expenditures.
Judge Martin testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
10. Miscellaneous:
The Joint Committee received three statements in opposition to Judge Martin's election, nine affidavits in support of Judge Martin's election, and subpoenaed four witnesses to testify. All of the statements and subpoenaed testimony is discussed above.
Joint Committee's Finding: Legally Qualified
Judge Cole was screened on February 8, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Judge Cole's character, integrity, and reputation are outstanding.
Judge Cole demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. On the issue of ex parte communications, Judge Cole testified that ex parte communications are inappropriate and that he does not discuss anything with anyone unless all parties are present.
On the issue of recusal, Judge Cole testified that he wants parties to feel like they are getting a fair hearing, and if one party thinks he is not impartial, he recuses himself. He also testified that, although he could not think of an instance in which he had been offered a gift, he would not accept gifts. Judge Cole testified that he has accepted social hospitality from friends, but has never allowed an attorney to buy him lunch.
Judge Cole testified that he would not hear a matter in which he or his spouse held a de minimis financial interest.
Judge Cole testified that the three attorneys who wrote letters of reference on his behalf do not practice before him.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its survey and from the Bar indicated that Judge Cole is intelligent and knowledgeable. He has complied with all continuing judicial education requirements.
Judge Cole's score on the Joint Committee's practice and procedure questions was 2.0 out of 4 possible points. He was very familiar with the type of damages recoverable without a hearing in a default judgment, when a witness may testify outside of the defendant's presence, and Allen charges. He was also familiar with when jeopardy attaches and the admissibility of expert testimony. He was somewhat familiar with the standard of review in an appeal from the Workers' Compensation Commission, but did not know whether it is a necessary prerequisite for the admission of scientific evidence that the theory and general technique be generally accepted in the scientific community.
In response to the Chairman's questions about separation of powers and the role of the judiciary, Judge Cole testified that a circuit court should not order the General Assembly to expend or appropriate funds. He also testified that the death penalty is constitutional, but Judge Cole indicated that he has not had an opportunity to expose himself to alternative dispute resolution and was not familiar with the political abstention doctrine.
3. Professional Experience:
Judge Cole has been a circuit court judge since 1992. He enjoyed a general practice of civil and criminal law from 1985 to 1992, and was an assistant circuit solicitor from 1977 to 1984.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicated that Judge Cole's temperament is excellent.
5. Diligence and Industry:
Judge Cole was punctual and attentive in his dealings with the Joint Committee. The Joint Committee did receive input in the form of anonymous survey responses that he was not as prompt as he should be in issuing orders. Judge Cole responded to this criticism by saying that when he was first elected to the bench he was assigned a long stretch of nonjury cases in a large district. He testified that he was scheduled to hear things that were supposed to last fifteen minutes and instead lasted thirty to forty-five minutes. He was without a law clerk at the time and he fell behind. Judge Cole testified that he believes it is very important to be prompt and that he attempts to dispose of matters within thirty days.
Judge Cole testified that he plans to serve the full term if elected and has no plans to return to private practice.
6. Mental and Physical Capabilities:
Judge Cole appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Cole has managed his financial affairs responsibly.
8. Public Service:
Judge Cole has served on the bench since 1992. He was a member of the House of Representatives from 1987 to 1992.
9. Ethics:
Judge Cole testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or
(c) asked third persons to contact members of the General Assembly prior to screening.
Judge Cole also testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
Judge Cole testified that he has not spent any money on his re-election and is therefore not required to file campaign expenditure statements with the House or Senate Ethics Committees.
10. Miscellaneous:
The Joint Committee did not receive any complaints or statements in opposition to Judge Cole's election.
Joint Committee's Finding: Legally Qualified
Judge Kinard was screened on February 1, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Judge Kinard's character, integrity, and reputation are outstanding.
Judge Kinard demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its survey and from the Bar indicated that Judge Kinard is intelligent and knowledgeable. He has complied with all continuing judicial education requirements.
Judge Kinard was a member of the Wig and Robe while at the University of South Carolina Law School.
His last Martindale-Hubbell rating was AV, their highest rating.
Judge Kinard's score on the Joint Committee's practice and procedure questions was a 3.5 which was the second highest score of all judicial candidates currently running for office. Judge Kinard answered all the questions very well and demonstrated a thorough understanding of damages in a default judgment, when a witness may testify out of the defendant's presence, Allen charges, and the admissibility of expert testimony.
Judge Kinard headed up the first settlement week sponsored in Richland County and has participated in alternative dispute resolution efforts.
3. Professional Experience:
Judge Kinard has been a circuit court judge since 1988. He practiced law, handling mostly civil matters which included corporate, real estate, and bankruptcy cases as well as general litigation, for twenty-two years before his election to the bench.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicate that Judge Kinard's temperament is excellent.
5. Diligence and Industry:
Judge Kinard was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry. He testified that he plans to serve the full term if elected and has no plans to return to private practice.
6. Mental and Physical Capabilities:
Judge Kinard appears to be mentally and physically capable of performing the duties of his office.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Kinard has managed his financial affairs responsibly.
8. Public Service:
Judge Kinard has served on the bench since 1986.
9. Ethics:
Judge Kinard testified that he has not:
(a) sought or received the pledge of any legislator prior to screening; or
(b) asked third persons to contact members of the General Assembly prior to screening.
Judge Kinard also testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
10. Miscellaneous:
The Joint Committee did not receive any complaints or statements in opposition to Judge Kinard's election.
Joint Committee's Finding: Legally Qualified
Mr. Stevens was screened on February 8, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Mr. Stevens's character, integrity, and reputation are outstanding.
Mr. Stevens demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. On the issue of ex parte communications, Mr. Stevens stated that ex parte communications are strictly prohibited.
On the issue of recusal, Mr. Stevens testified that he would tend to recuse himself in cases where a party requests his recusal unless there was not another judge who could hear the case or the matter had progressed to a point where his withdrawal would be detrimental to justice. Mr. Stevens also said that he would recuse himself from any matter that he had an interest or substantial involvement in. He testified that this would include matters in which an issue that he had previously litigated was being applied. Mr. Stevens said that if he decided he did not need to recuse himself from a matter in which the issue had been raised, he would get written permission from all parties before he proceeded with the matter.
Mr. Stevens said that he would not accept gifts and would prefer not to go to lunch with attorneys who appear before him. He did indicate that he would attend social gatherings as long as the invitation was not from a party or attorney who appeared before him. Mr. Stevens testified that it is just as important to avoid the appearance of impropriety as it is to avoid the impropriety itself.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its survey and from the Bar indicated that Mr. Stevens is intelligent and knowledgeable. He has a Bachelor of Science degree in accounting, a Masters of Business Administration degree, and a law degree from the University of South Carolina and a Master of Law in Taxation degree from the William and Mary School of Law.
Mr. Stevens has complied with all continuing legal education requirements. He has also taught a course in federal tax at Midlands Technical College, lectured at the University of South Carolina School of Law, presented several continuing legal education classes, lectured at a Bar meeting, and participated in Vanderbilt University's Hartman Tax Forum Moot Court presentation.
Mr. Stevens's score on the Joint Committee's practice and procedure questions was 3.33 out of 4. His answers were generally excellent, and he demonstrated a thorough understanding of the Administrative Procedures Act, the rights and powers of agencies, and the rights of parties and protestants in administrative proceedings.
3. Professional Experience:
The Joint Committee found that Mr. Stevens has had a specialized, but very sophisticated practice and excellent experience with the type of matters, particularly those of revenue and taxation, that he would handle as an Administrative Law Judge. Mr. Stevens has specialized in the area of taxation, and the Joint Committee believes that his experience would be of great assistance to the Administrative Law Judge Division.
Mr. Stevens is currently Chief Deputy Attorney General and Director of the Attorney General's Tax Division. He drafts Attorney General opinions, advises the Department of Revenue and Taxation on all hearings on taxation and ABC matters, advises county and municipal officials, and is responsible for state litigation at all levels.
Mr. Stevens has taken eighteen cases to trial in the last two years and has had an extensive appellate practice. In the last five years, he has appeared in federal district court three times, state trial court twenty times, state appellate court fifteen times, before the South Carolina Tax Board twice, and before the South Carolina Tax Commission seventy-five times as an advisor and one time representing a party.
Mr. Stevens has been with the Attorney General's office since 1980. Prior to that time, he spent one year with the Internal Revenue Service as an Estate and Gift Tax Examiner and one year in general corporate practice with emphasis on taxation.
4. Judicial Temperament:
The Joint Committee's investigation did not reveal anything that would indicate a potential problem with judicial temperament. Throughout the Joint Committee's work with Mr. Stevens, he demonstrated the qualities and character required for a judge of outstanding judicial temperament. Furthermore, the input the Joint Committee received from its own survey and from the Bar's investigation indicated that Mr. Stevens has the temperament required for service on the bench.
5. Diligence and Industry:
Mr. Stevens was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.
Mr. Stevens testified that his responsibilities to his wife and three school age children would not detract from or limit his service on the bench.
Mr. Stevens testified that he would serve a full term if elected and that he had no plans to return to private practice. He indicated that, if elected, he would serve in the Division for the rest of his career.
6. Mental and Physical Capabilities:
Mr. Stevens appears to be mentally and physically capable of performing the duties of the office he seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Mr. Stevens has managed his financial affairs responsibly.
8. Public Service:
Mr. Stevens has worked in the public sector since 1978.
9. Ethics:
Mr. Stevens testified that he has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or
(c) asked third persons to contact members of the General Assembly prior to screening.
Mr. Stevens also testified that he has spent $171.80 on his campaign and has reported these expenditures to the House and Senate Ethics Committees.
Mr. Stevens testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.
Members of the General Assembly received a letter signed by several members of the tax bar endorsing Mr. Stevens's candidacy. Mr. Stevens testified that he had not asked those individuals to speak on his behalf and that, to the best of his recollection, none of them had matters pending before him for an Attorney General's opinion or a Department of Revenue and Taxation opinion with which he might be involved.
10. Miscellaneous:
Mr. Stevens testified that he could bring expertise in the tax area to the Administrative Law Judge Division and that he wants to be a part of the Division because he enjoys the give and take of the legal questions, hard arguments and weighing facts in evidence.
The Joint Committee did not receive any complaints or statements in opposition to Mr. Stevens's election.
Joint Committee's Finding: Legally Qualified
Ms. Wiggins was screened on February 9, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct.
Ms. Wiggins demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. On the issue of ex parte communications, Ms. Wiggins stated that she disapproves of such communications and the only time she engaged in such communications was when she was a guardian in family court and was allowed to do so.
On the issue of recusal, Ms. Wiggins testified that if there appeared to be a conflict of interest in a matter she would recuse herself. She also testified that she would not hear a matter in which she held even a de minimis financial interest.
Ms. Wiggins testified that she would never accept gifts and would accept the social hospitality of only those people who are not likely to appear before her.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its survey and from the Bar indicated that Ms. Wiggins is intelligent. As to the issue of whether or not she is knowledgeable in the law, the Joint Committee expressed concern about the depth of Ms. Wiggins's legal knowledge. Ms. Wiggins's Martindale-Hubbell rating is CV. Ms. Wiggins's score on the Joint Committee's practice and procedure questions was a 1.4 out of a possible 4 points. Ms. Wiggins was clearly familiar with some elements of the Administrative Procedures Act such as the definition of substantial evidence and the burden of proof in licensing matters. She was, however, unfamiliar with the legal standard of review for agency regulations, the issue of whether agencies have inherent authority, and the doctrine of collateral estoppel. Ms. Wiggins had some knowledge of the standard of review for agency appeals, the issue of when the Administrative Procedures Act would control over a specific statutory grant, standing, and the application of the rules of evidence in administrative matters. Her overall score was poor, however, and she did not demonstrate knowledge of rather basic issues of practice and procedure.
3. Professional Experience:
Ms. Wiggins has valuable experience in the practice of law, but has practically no experience with the type of matters that come before the Administrative Law Judge Division. The input the Joint Committee received from its survey and from the Bar raised concerns about a lack of applicable experience, and the Joint Committee is somewhat troubled by what it finds to be Ms. Wiggins's lack of experience with the type of matters that come before the Administrative Law Judge Division.
Ms. Wiggins has been in private practice since graduating from law school in 1986. Her practice has been primarily domestic (60%) and civil (40%). Ms. Wiggins testified that she has recently been working on civil matters such as personal injury cases, products liability cases, and construction litigation. The vast majority of her continuing legal education over the past five years has been in the areas of probate, trust, real estate, personal injury, and ethics.
She has practiced some administrative law, but with one exception, this has been strictly in the areas of social security disability and workers' compensation. These matters are handled before federal administrative law judges and Workers' Compensation Commissioners respectively and have but slight similarities to matters handled by the Administrative Law Judge Division. For example, the Administrative Procedures Act does not apply in social security disability matters, but the act is used extensively by judges of the Administrative Law Judge Division. Ms. Wiggins indicated that she has handled fifteen social security cases and five workers' compensation cases in the last five years. The one other type of administrative law case she handled was six or seven years ago and was a employee grievance matter that was likely not a contested case under the Administrative Procedures Act.
Ms. Wiggins did testify that she has served as a hearing officer for the Department of Consumer Affairs which would be somewhat similar to work in the Administrative Law Judge Division. The Joint Committee's research indicates that Ms. Wiggins presided over only three hearings since 1993, and all of the hearings involved pro se matters in which a department staff attorney drafted the orders.
Ms. Wiggins testified that her broad legal experience would transfer easily into the administrative arena and that she could further compensate by study of the Administrative Procedures Act.
4. Judicial Temperament:
The input the Joint Committee received from its surveys, the Bar, a witness who came forward to testify at the public hearing, and, perhaps most importantly, Ms. Wiggins herself indicated that she would need to change her temperament in order to serve on the bench. There were numerous anonymous survey respondents who indicated potential problems with temperament, and the Bar indicated that it received "mixed reports" on the issue. The Joint Committee considered these responses in its decision-making process, but relied primarily on the direct testimony and actions of Ms. Wiggins herself and of Mr. Jose Monge, a witness who testified in public session.
The Joint Committee received an affidavit from Mr. Jose Monge, a Columbia attorney who practices primarily military, international, and civil law. Mr. Monge handled a contested custody matter in which Ms. Wiggins was the opposing counsel. The Joint Committee understands that custody matters can be highly emotional contests, but Mr. Monge raised concerns that Ms. Wiggins's conduct over the course of her representation went beyond the bounds of zealous advocacy. Mr. Monge specifically alleged that Ms. Wiggins made accusations that he was incompetent and had misrepresented facts and committed fraud upon the court. He claimed that she was generally unprofessional, lacked objectivity, and transformed the matter into a personal dispute.
Ms. Wiggins responded to Mr. Monge's affidavit by filing a letter with the Joint Committee accusing him of incompetence and misrepresentation. She denied the allegation that she acted unprofessionally and denied accusing Mr. Monge of committing fraud on the court.
The Joint Committee steadfastly refused to inquire into the merits of the underlying case, but did closely examine both attorneys' conduct in the matter. Mr. Monge reiterated several times that his experience with Ms. Wiggins was limited to this one matter and that her conduct in other situations might be exemplary. During his appearance before the Joint Committee, Mr. Monge was somewhat soft-spoken and did not appear to have the demeanor that might have provoked confrontation.
The Joint Committee believes, based on the written evidence it had in this matter and the testimony of both Mr. Monge and Ms. Wiggins, that Ms. Wiggins probably did overstep the boundaries of zealous advocacy in her handling of this matter and that her response to Mr. Monge's affidavit is further evidence of a possibly poor temperament. Ms. Wiggins claimed in her letter to the Joint Committee that she "never accused Mr. Monge of committing fraud on the court," but the Joint Committee obtained a copy of a letter Ms. Wiggins sent to Mr. Monge in which she said "[t]he Order you submitted is totally erroneous and a fraud on the Court." Both Mr. Monge and Ms. Wiggins also testified to a hearing in this matter in which Ms. Wiggins argued with the court and the judge cleared the courtroom so that she could discuss Ms. Wiggins's conduct with her in private. The Joint Committee is particularly troubled by the fact that Ms. Wiggins chose to attack Mr. Monge's competency in her written response to his affidavit. Mr. Monge's competency has little to do with whether Ms. Wiggins acted in a professional matter. She testified that she is impatient with incompetence and that her reaction "depends on how far [she's] pushed." The Joint Committee is concerned by Ms. Wiggins's testimony in this regard as many of the parties before the Administrative Law Judge Division are pro se and may be very unfamiliar with both law and practice. Ms. Wiggins testified that she has more patience with pro se litigants than she does when in an adversarial relationship and that she thinks the temperament will "come easier" once she is on the bench.
5. Diligence and Industry:
Ms Wiggins was punctual and attentive in her dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with her diligence and industry.
6. Mental and Physical Capabilities:
Ms. Wiggins appears to be mentally and physically capable of performing the duties of the office she seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a current troubled financial status. Ms. Wiggins did, however, declare Chapter Thirteen Bankruptcy in 1985, but has apparently managed her financial affairs responsibly since that time.
8. Public Service:
Ms. Wiggins serves on the Fee Resolution Dispute Board and the Legislative Counsel Committee of the South Carolina Bar. She is also a member of the South Carolina Pro Bono Program.
9. Ethics:
Ms. Wiggins testified that she has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or
(c) asked third persons to contact members of the General Assembly prior to screening.
Ms. Wiggins also testified that she understood the new Joint Committee rule requiring her to wait forty-eight hours after the draft report is released before she may begin seeking commitments.
10. Miscellaneous:
The Joint Committee did receive one statement in opposition to Ms. Wiggins's election. It was filed by Mr. Jose Monge and is discussed above.
Joint Committee's Finding: Legally Qualified
Judge Lee was screened on February 8, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:
1. Integrity and Impartiality:
The Joint Committee's investigation did not reveal any evidence of unethical conduct. The input the Joint Committee received from its own survey and the report of the Bar was that Judge Lee's character, integrity, and reputation are outstanding.
Judge Lee demonstrated an understanding of the Canons of Judicial Conduct and other ethical consideration of importance to judges. On the issue of ex parte communications, Judge Lee stated that she discourages ex parte communications and if there is an inquiry, her administrative assistant takes the call and determines the nature of the matter. If the inquiry can be addressed in a letter, her administrative assistant requests that the caller do so and she gives a copy of the correspondence to all the parties. If the matter cannot be handled by way of a letter, she schedules a conference call. Judge Lee testified that she does answer questions regarding minor administrative matters ex parte.
Judge Lee testified that she does not accept gifts and accepts only those invitations for social hospitality that are extended to all judges on the court.
Judge Lee serves on the St. Peter's Catholic School Board, is a member of Jack and Jill of America, and currently serves as president of The Links, Incorporated. Jack and Jill of America and The Links are organizations designed to help foster educational and civic activities in the community. Judge Lee testified that she lists her name in civic organizations as Alison Lee Summey, her married name, and not as the Honorable Alison R. Lee. Judge Lee also testified that she is aware of the prohibition against fund raising in the Canons of Judicial Conduct and that she does not solicit funds or otherwise involve herself in fundraising activities.
2. Legal Knowledge and Ability:
The input the Joint Committee received from its survey and from the Bar indicated that Judge Lee is intelligent and knowledgeable. She has complied with the judicial continuing legal eduction requirements and has taught three legal education courses.
Judge Lee's score on the Joint Committee's practice and procedure questions was 2.89 out of 4 points. She answered questions about the promulgation of regulations, the burden of proof in licensing cases, and the rights of parties and protestants extremely well. She was also very familiar with whether agencies have inherent authority, conflicts between the Administrative Procedures Act and a specific statutory grant of authority, standards of review, and the definition of substantial evidence. She was less well versed in the application of the rules of evidence in administrative proceedings.
3. Professional Experience:
Judge Lee was elected to the Administrative Law Judge Division in 1994. She was a staff attorney for the Legislative Council from 1989 to 1994 and an associate with the McNair firm from 1984 to 1989. Prior to that, she clerked first for the Honorable Israel M. Augustine of the Fourth Circuit Court of Appeals and then for the Honorable C. Tolbert Goolsby, Jr.
Her work for the Legislative Council involved drafting legislation and amendments for members of the General Assembly. Her practice at the McNair firm focused primarily on litigation in contract and consumer-related issues and labor and employment related litigation.
4. Judicial Temperament:
The input the Joint Committee received from its surveys and from the Bar indicate that Judge Lee's temperament is excellent.
5. Diligence and Industry:
Judge Lee was punctual and attentive in her dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with her diligence and industry.
6. Mental and Physical Capabilities:
Judge Lee appears to be mentally and physically capable of performing the duties of the office she seeks.
7. Financial Responsibility:
The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Lee has managed her financial affairs responsibly.
8. Public Service:
Judge Lee has been on the bench for one year and worked as a state attorney for the preceding five years.
9. Ethics:
Judge Lee testified that she has not:
(a) sought or received the pledge of any legislator prior to screening;
(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or
(c) asked third persons to contact members of the General Assembly prior to screening.
Judge Lee also testified that she understood the new Joint Committee rule requiring her to wait forty-eight hours after the draft report is released before she may begin seeking commitments.
Judge Lee testified that she has spent less than $100 on her campaign and therefore has not filed reports with either the House or Senate Ethics Committees.
10. Miscellaneous:
The Joint Committee did not receive any complaints or statements in opposition to Judge Lee's election.
The following persons were unanimously[4] found legally qualified:
[4] Representative Donald W. Beatty did not participate in the Joint Committee's investigation, public hearing, deliberations, or voting concerning Judge Burnett.
/s/Ralph King Anderson, Jr.
/s/James E. Brogdon, Jr.
/s/E. C. Burnett, III
/s/Amie Lois Clifford
/s/J. Derham Cole
/s/Dale L. DuTremble
/s/Tom J. Ervin
/s/C. Tolbert Goolsby, Jr.
/s/Ben A. Hagood, Jr.
/s/H. Dean Hall
/s/B. Hicks Harwell
/s/Kaye G. Hearn
/s/J. Ernest Kinard, Jr.
/s/Alison R. Lee
/s/Daniel E. Martin, Sr.
/s/Costa M. Pleicones
/s/C. Victor Pyle, Jr.
/s/Ray Stevens
/s/H. Samuel Stilwell
/s/V. Lynn Wiggins
The PRESIDENT called for Petitions, Memorials, Presentments of Grand Juries and such like papers.
February 7, 1995
Mr. President and Members of the Senate:
I am transmitting herewith appointments for confirmation. These appointments are made with the "advice and consent of the Senate," and are, therefore, submitted for your consideration.
Respectfully,
David M. Beasley
Initial Appointment, Jobs Economic Development Authority, for the term which commenced July 27, 1992, and to expire July 27, 1995, service to commence December 14, 1994:
At-Large:
Mr. Charles L. Appleby, III, 216 Genessee Valley Road, Columbia, S.C. 29223-3214 VICE Robert L. Mobley (resigned)
Referred to the Committee on Labor, Commerce and Industry.
Reappointment, Jobs Economic Development Authority, with term to commence July 27, 1995, and to expire July 27, 1998:
At-Large:
Mr. Charles L. Appleby, III, 216 Genessee Valley Road, Columbia, S.C. 29223-3214
Referred to the Committee on Labor, Commerce and Industry.
February 8, 1995
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,
David M. Beasley
Initial Appointment, Juvenile Parole Board, with term to commence June 30, 1993, and to expire June 30, 1997:
At-Large:
Mr. William J. Capers, 3244 Starlette Avenue, North Charleston, S.C. 29420-8847 VICE Robert C. Toomey (resigned)
Referred to the Committee on Corrections and Penology.
February 22, 1995
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,
David M. Beasley
Initial Appointment, Juvenile Parole Board, with term to commence September 30, 1994, and to expire June 30, 1998:
3rd Congressional District:
Ms. Lesley M. White, 419 Ellington Road, Pendleton, S.C. 29670 VICE Marlene McClain
Referred to the Committee on Corrections and Penology.
February 23, 1995
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,
David M. Beasley
Initial Appointment, Board of Health and Environmental Control, with term to commence June 30, 1995, and to expire June 30, 1999:
3rd Congressional District:
Mr. Rodney L. Grandy, 261 Magnolia Lake Road, Aiken, S.C. 29803 VICE Sandra J. Molander
Referred to the Committee on Medical Affairs.
February 24, 1995
Mr. President and Members of the Senate:
I am transmitting herewith appointments for confirmation. These appointments are made with the "advice and consent of the Senate," and are, therefore, submitted for your consideration.
Respectfully,
David M. Beasley
Initial Appointment, State Human Affairs Commission, with term to commence June 30, 1993, and to expire June 30, 1996:
2nd Congressional District:
Mrs. Jo-Anne B. Whitehead, 113 Fifeshire Drive, Columbia, S.C. 29212 VICE Robert D. Hazel (moved to At-Large member)
Referred to the Committee on Judiciary.
Initial Appointment, Commission on Women, with term to commence October 18, 1995, and to expire October 18, 1999:
At-Large:
Mrs. Elizabeth G. Cox, 1217 Hobart Drive, Florence, S.C. 29501 VICE Betty G. Dominick
Referred to the General Committee.
February 27, 1995
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,
David M. Beasley
Reappointment, State Ethics Commission, with term to commence May 31, 1995, and to expire May 31, 2000:
2nd Congressional District:
Mr. Edward E. Duryea, 3 Riverside Lane, Beaufort, S.C. 29902
Referred to the Committee on Judiciary.
February 28, 1995
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,
David M. Beasley
Initial Appointment, State Human Affairs Commission, with term to commence June 30, 1993, and to expire June 30, 1996:
1st Congressional District:
Mr. Darrel W. Givens, 82 Brisbane Drive, Charleston, S.C. 29407 VICE Robert P. Pickering (resigned)
Referred to the Committee on Judiciary.
March 1, 1995
Mr. President and Members of the Senate:
I am transmitting herewith appointments for confirmation. These appointments are made with the "advice and consent of the Senate," and are, therefore, submitted for your consideration.
Respectfully,
David M. Beasley
Initial Appointment, Board of Health and Environmental Control, with term to commence June 30, 1991, and to expire June 30, 1995:
1st Congressional District:
Ms. Cynthia C. Mosteller, 6 Fairway Village Lane, Isle of Palms, S.C. 29451 VICE Burnet R. Maybank, III (resigned)
Referred to the Committee on Medical Affairs.
Reappointment, Board of Health and Environmental Control, with term to commence June 30, 1995, and to expire June 30, 1999:
1st Congressional District:
Ms. Cynthia C. Mosteller, 6 Fairway Village Lane, Isle of Palms, S.C. 29451
Referred to the Committee on Medical Affairs.
March 3, 1995
Mr. President and Members of the Senate:
I am transmitting herewith appointments for confirmation. These appointments are made with the "advice and consent of the Senate," and are, therefore, submitted for your consideration.
Respectfully,
David M. Beasley
Initial Appointment, South Carolina Real Estate Commission, with term to commence September 8, 1994, and to expire June 30, 1995:
Consumer:
Reverend Charles L. Johnson, Sr., 203 Martin Street, Clemson, S.C. 29631 VICE Earl Spain (resigned)
Referred to the Committee on Labor, Commerce and Industry.
Reappointment, State Board of Pharmacy, with term to commence June 30, 1994, and to expire June 30, 2000:
6th Congressional District:
Mr. Robert T. Moss, Jr., Moss Pharmacy, 804-E West Second Loop Road, Florence, S.C. 29505-2825
Referred to the Committee on Medical Affairs.
March 6, 1995
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,
David M. Beasley
Initial Appointment, South Carolina Commission for the Blind, with term to commence May 19, 1994, and to expire May 19, 1998:
4th Congressional District:
Mr. Donald K. League, 9 Winthrop Avenue, Greenville, S.C. 29607 VICE Samuel L. Zimmerman, Jr. (resigned)
Referred to the General Committee.
Senator LEATHERMAN introduced Dr. Conyers O'Bryan of Florence, S.C., Doctor of the Day.
On motion of Senator JACKSON, at 12:00 Noon, Senator PATTERSON was granted a leave of absence for today.
On motion of Senator WASHINGTON, at 12:00 Noon, Senator MATTHEWS was granted a leave of absence until 3:00 P.M.
On motion of Senator MOORE, at 12:00 Noon, Senator SETZLER was granted a leave of absence for today due to the fact that Senator SETZLER was ill.
The following were introduced:
S. 634 -- Senator Lander: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, TO ENACT THE "GIFT OF LIFE ORGAN AND TISSUE PROCUREMENT ACT OF 1995" BY ADDING SECTION 12-7-2414 SO AS TO PROVIDE FOR AN INCOME TAX CHECKOFF FOR THE GIFT OF LIFE TRUST FUND; BY ADDING SECTION 44-43-720 SO AS TO REQUIRE CONSENT WHEN AN ORGAN REMOVED DURING AN AUTOPSY IS USED FOR ORGAN DONATION; BY ADDING SECTION 44-43-1012 SO AS TO PROHIBIT THE RELEASE OF THE IDENTITY OF AN ORGAN DONOR OR RECIPIENT WITHOUT CONSENT; BY ADDING SECTION 44-43-1014 SO AS TO REQUIRE THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL TO ANNUALLY REVIEW HOSPITAL DEATH RECORDS TO DETERMINE THE HOSPITALS' COMPLIANCE WITH ORGAN AND TISSUE PROTOCOLS; TO AMEND TITLE 44, CHAPTER 43, RELATING TO DISPOSITION OF HUMAN BODIES BY ADDING ARTICLE 13 SO AS TO ESTABLISH THE GIFT OF LIFE TRUST FUND AND ITS BOARD OF DIRECTORS AND TO PROVIDE FOR ITS PURPOSE, POWERS, AND DUTIES; TO ADD SECTION 56-1-143 SO AS TO REQUIRE THE DEPARTMENT OF REVENUE AND TAXATION TO GIVE PERSONS RENEWING THEIR DRIVER'S LICENSE AN OPPORTUNITY TO CONTRIBUTE ONE DOLLAR TO THE GIFT OF LIFE TRUST FUND; TO AMEND SECTION 17-5-260, RELATING TO NOTIFICATION TO THE MEDICAL EXAMINER OF CERTAIN DEATHS, SO AS TO REQUIRE THE MEDICAL EXAMINER TO PROVIDE THE AUTOPSY REPORT TO THE NEXT OF KIN IF REQUESTED AND TO STATE IF ANY ORGANS WERE REMOVED PERMANENTLY; TO AMEND SECTION 44-43-40, RELATING TO DRIVERS' LICENSES REFLECTING ORGAN DONATIONS, SO AS TO REQUIRE THE DEPARTMENT OF REVENUE AND TAXATION TO PLACE DONOR INFORMATION OBTAINED THROUGH DRIVER'S LICENSE ISSUANCE AND RENEWAL IN THE DEPARTMENT'S DATA BASE AND TO MAKE THIS AVAILABLE TO CERTAIN MEDICAL AND LAW ENFORCEMENT PERSONNEL; TO AMEND SECTION 44-43-320, RELATING TO DEFINITIONS IN THE UNIFORM ANATOMICAL GIFT ACT, SO AS TO REVISE THE DEFINITION OF HOSPITAL; TO AMEND SECTION 44-43-330, AS AMENDED, RELATING TO PERSONS WHO MAY BE ORGAN DONORS, SO AS TO ALLOW SIXTEEN- OR SEVENTEEN-YEAR OLDS TO BE DONORS WITH PARENTAL CONSENT, TO PROVIDE THAT AN ORGAN DONATION GIFT MADE BY A PERSON BEFORE DEATH TAKES PRECEDENCE OVER THE WISHES OF SURVIVING FAMILY AND TO PROVIDE PROCEDURES FOR OBTAINING CONSENT FROM RELATIVES; TO AMEND SECTION 44-43-710, RELATING TO CONSENT TO PERFORM AN AUTOPSY, SO AS TO REQUIRE THAT THE FORM MUST BE WRITTEN IN PLAIN LANGUAGE; TO AMEND SECTION 44-43-910, RELATING TO DEFINITIONS UNDER HOSPITAL PROTOCOLS FOR ORGAN DONATION, SO AS TO REVISE DEFINITIONS; TO AMEND SECTION 44-43-920, RELATING TO HOSPITAL POLICIES FOR ORGAN DONATION, SO AS TO REQUIRE A HOSPITAL TO CONTACT THE SOUTH CAROLINA ORGAN DONOR NETWORK AT THE TIME OF EACH HOSPITAL DEATH TO DETERMINE SUITABILITY OF THE DECEDENT FOR ORGAN DONATION; TO AMEND SECTION 44-43-930, RELATING TO HOSPITAL CONTACT WITH FAMILIES OF POTENTIAL ORGAN DONORS, SO AS TO PROVIDE PROCEDURES FOR OBTAINING ORGAN DONATIONS FROM POTENTIAL DONORS; TO AMEND SECTION 44-43-950, RELATING TO WHO MAY CONSENT TO ORGAN DONATION, SO AS TO PROVIDE PROCEDURES FOR OBTAINING CONSENT; TO AMEND SECTION 44-43-970, RELATING TO AGENCIES WHICH MAY RECEIVE ORGAN REFERRALS AND DONATIONS, SO AS TO FURTHER DEFINE THESE AGENCIES; TO AMEND SECTION 44-43-990, RELATING TO PHYSICIAN NOTIFICATION OF POTENTIAL ORGAN DONATIONS, SO AS TO REVISE THE NOTICE REQUIREMENT; AND TO AMEND SECTION 44-43-1000, RELATING TO MEDICAL RECORDS OF ORGAN DONORS, SO AS TO REVISE THE REQUIRED CONTENTS OF THE RECORDS.
Read the first time and referred to the Committee on Finance.
S. 635 -- Senator Lander: A BILL TO AMEND SECTION 58-15-1625 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO RAILROAD CROSSING CLOSURES, SO AS TO REQUIRE THE DEPARTMENT OF TRANSPORTATION TO REIMBURSE ALL COSTS ASSOCIATED WITH SUCH CLOSURES INCURRED BY A LOCAL GOVERNMENTAL ENTITY.
Read the first time and referred to the Committee on Transportation.
S. 636 -- Senators Washington and Mescher: A BILL TO REPEAL ACT 16 OF 1973 RELATING TO THE ELECTION OF THE COLLETON COUNTY VETERANS AFFAIRS OFFICER.
Read the first time and ordered placed on the local and uncontested Calendar without reference.
S. 637 -- Senator Short: A CONCURRENT RESOLUTION TO EXPRESS THE DEEPEST SYMPATHY OF THE MEMBERS OF THE GENERAL ASSEMBLY TO THE FAMILY AND MANY FRIENDS OF, ONE OF THIS STATE'S FINEST EDUCATORS, ELIZABETH BELL ABERNATHY OF GREAT FALLS, WHO PASSED AWAY THURSDAY, FEBRUARY 16, 1995.
The Concurrent Resolution was adopted, ordered sent to the House.
Senator THOMAS from the Committee on Corrections and Penology submitted a majority favorable with amendment and Senators FORD and PATTERSON a minority unfavorable report on:
S. 95 -- Senators McConnell, Courson, Rose, Gregory and O'Dell: A BILL TO AMEND SECTION 24-13-610, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE EXTENDED WORK RELEASE PROGRAM, SO AS TO PROVIDE THAT NO PERSON CONVICTED OF A VIOLENT CRIME AS DEFINED IN SECTION 16-1-60 MAY PARTICIPATE IN THIS PROGRAM; AND TO REPEAL SECTION 24-13-650 WHICH PROHIBITS A PERSON CONVICTED OF A VIOLENT CRIME FROM BEING RELEASED BACK INTO THE COMMUNITY IN WHICH HE COMMITTED THE OFFENSE UNDER THE WORK RELEASE PROGRAM.
Ordered for consideration tomorrow.
Senator THOMAS from the Committee on Corrections and Penology submitted a favorable with amendment report on:
S. 362 -- Senators Cork and Washington: A BILL TO AMEND CHAPTER 5 OF TITLE 24, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 3, SO AS TO CREATE A RESERVE DETENTION OFFICER PROGRAM, AND TO DESIGNATE SECTIONS 24-5-10 THROUGH 24-5-170 AS ARTICLE 1, CHAPTER 5 OF TITLE 24.
Ordered for consideration tomorrow.
Senator THOMAS from the Committee on Corrections and Penology submitted a favorable with amendment report on:
S. 180 -- Senator Rose: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 24-21-710 SO AS TO REQUIRE THE DIRECTOR OF THE DEPARTMENT OF PROBATION, PAROLE AND PARDON TO DEVELOP WRITTEN POLICIES AND PROCEDURES FOR PAROLE HEARINGS TO BE HELD BY VIDEO CAMERA AND TO PROMULGATE CERTAIN REGULATIONS, ALLOW THE VICTIM OF THE CRIME FOR WHICH A PRISONER HAS BEEN SENTENCED TO SUBMIT ON FILM, VIDEO TAPE, OR OTHER ELECTRONIC MEANS OR IN THE FORM OF A RECORDING OR TESTIMONY AT THE PRISONER'S PAROLE HEARING INFORMATION FOR CONSIDERATION BY THE BOARD OF PROBATION, PAROLE AND PARDON, ALLOW THE SAME PROCEDURE FOR THE PROSECUTING SOLICITOR, REQUIRE THE BOARD TO CONSIDER, IN MAKING ITS DETERMINATION REGARDING PAROLE FOR A PRISONER, MATERIAL ON FILM, VIDEO TAPE, OR OTHER ELECTRONIC MEANS OR IN THE FORM OF A RECORDING SUBMITTED BY THE PERSON WHOSE PAROLE IS BEING CONSIDERED AND MATERIAL ON FILM, VIDEO TAPE, OR OTHER ELECTRONIC MEANS OR IN THE FORM OF A RECORDING OR TESTIMONY SUBMITTED BY THE PROSECUTING SOLICITOR OR THE VICTIM OR BOTH, AND PROVIDE FOR RELATED MATTERS AND DETAILS CONCERNING SUCH FILM, VIDEO TAPE, OTHER ELECTRONIC INSTRUMENT, OR RECORDING ALLOWED BY THIS SECTION; TO REQUIRE THE DEPARTMENT OF CORRECTIONS TO INSTALL AND USE A CLOSED CIRCUIT TELEVISION SYSTEM IN EACH CORRECTIONAL INSTITUTION OF THE DEPARTMENT THAT HAS PERSONS ELIGIBLE FOR PAROLE, AND REQUIRE THE DEPARTMENT OF PROBATION, PAROLE AND PARDON TO INSTALL AND USE THE SAME SYSTEM AT THE PRINCIPAL OFFICE OF THE DEPARTMENT, FOR THE PURPOSE OF THE CONDUCT OF PAROLE HEARINGS BY MEANS OF A TWO-WAY CLOSED CIRCUIT TELEVISION SYSTEM, AND REQUIRE THAT PAROLE HEARINGS BE CONDUCTED BY MEANS OF THIS SYSTEM.
Ordered for consideration tomorrow.
THE SENATE PROCEEDED TO A CALL OF THE UNCONTESTED LOCAL AND STATEWIDE CALENDAR.
The following Bills and Joint Resolutions were read the third time and ordered sent to the House of Representatives:
S. 602 -- Senators Short, Jackson, Gregory and Giese: A BILL TO AMEND SECTION 34-29-100, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO RECORDS AND REPORTS OF RESTRICTED LENDERS, BY ADDING INFORMATION REQUIRED TO BE REPORTED IN THE ANNUAL REPORT MADE BY RESTRICTED LENDERS; TO AMEND SECTION 34-29-140 OF THE 1976 CODE, RELATING TO CHARGES PERMITTED TO RESTRICTED LENDERS, SO AS TO REVISE THE FINANCE CHARGES AND TO PROVIDE LIMITATIONS ON LOAN RENEWALS; TO AMEND SECTION 37-1-301 OF THE 1976 CODE, RELATING TO DEFINITIONS UNDER THE CONSUMER PROTECTION CODE, SO AS TO ADD A DEFINITION FOR "DEBT COLLECTOR"; TO AMEND SECTION 37-1-303 OF THE 1976 CODE, RELATING TO THE INDEX OF DEFINITIONS IN TITLE 37, SO AS TO ADD "DEBT COLLECTOR"; TO AMEND SECTION 37-3-201 OF THE 1976 CODE, RELATING TO LOAN FINANCE CHARGES FOR SUPERVISED LOANS, SO AS TO PROVIDE THAT SUPERVISED LOANS NOT EXCEEDING SIX HUNDRED DOLLARS SHALL BE MADE IN ACCORDANCE WITH SECTION 34-29-140 RELATING TO FINANCE CHARGES FOR RESTRICTED LOANS; TO AMEND SECTION 37-3-305 OF THE 1976 CODE, RELATING TO THE POSTING AND FILING OF MAXIMUM RATE SCHEDULES BY SUPERVISED LENDERS, SO AS TO PROVIDE THAT FOR LOANS NOT EXCEEDING SIX HUNDRED DOLLARS, A RATE MAY NOT BE POSTED WHICH EXCEEDS THE CHARGES IMPOSED IN SECTION 34-29-140; TO AMEND SECTION 37-3-505 OF THE 1976 CODE, RELATING TO RECORDS AND ANNUAL REPORTS FOR SUPERVISED LENDERS, SO AS TO ADD INFORMATION REQUIRED TO BE INCLUDED IN THE ANNUAL REPORT OF SUPERVISED LENDERS; TO AMEND PART 5, CHAPTER 3, TITLE 37 OF THE 1976 CODE, BY ADDING SECTION 37-3-515 SO AS TO PROVIDE A LIMITATION ON LOAN RENEWALS; TO AMEND SECTION 37-5-108 OF THE 1976 CODE, RELATING TO UNCONSCIONABILITY UNDER THE CONSUMER PROTECTION CODE, BY ADDING PARTICULAR CIRCUMSTANCES WHICH CONSTITUTE UNCONSCIONABILITY AND PROVIDING REMEDIES; TO AMEND SECTION 37-6-117 OF THE 1976 CODE, RELATING TO THE ADMINISTRATIVE RESPONSIBILITIES OF THE ADMINISTRATION OF THE DEPARTMENT OF CONSUMER AFFAIRS, SO AS TO REQUIRE THE ADMINISTRATION TO DEVISE A PAMPHLET FOR DISTRIBUTION TO CERTAIN CONSUMERS INFORMING THEM OF THEIR RIGHTS; AND TO AMEND SECTION 37-9-102 OF THE 1976 CODE, RELATING TO THE LICENSURE ELECTION, SO AS TO PROVIDE THAT CERTAIN SUPERVISED LENDERS MAY ELECT TO BE RESTRICTED LENDERS.
S. 272 -- Senators Alexander, Leventis, O'Dell, Hayes, Rose and Giese: A BILL TO AMEND SECTION 7-13-190, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO SPECIAL ELECTIONS, SO AS TO PROVIDE THAT SPECIAL ELECTIONS SHALL NOT BE HELD PRIOR TO THE GENERAL ELECTION IF THE DATE FOR THE SPECIAL ELECTION PROVIDED BY THE STATUTORY FORMULA IS WITHIN THIRTY DAYS OF THE GENERAL ELECTION.
S. 321 -- Senator Washington: A BILL TO AMEND SECTION 7-13-1640, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO VOTING MACHINE REQUIREMENTS, SO AS TO PROVIDE THAT AN ILLUSTRATION OR A MECHANICAL MODEL MAY BE USED TO DEMONSTRATE THE MANNER OF VOTING ON THE MACHINE.
S. 421 -- Senator Rose: A BILL TO AMEND SECTIONS 4-20-20 AND 4-20-40, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE COMMUNITY RECREATION SPECIAL TAX DISTRICT ACT OF 1994, SO AS TO PROVIDE THAT THE REFERENDUM TO CREATE A DISTRICT MAY BE HELD EITHER AT THE TIME OF THE GENERAL ELECTION OR IN A SPECIAL ELECTION AS DETERMINED BY THE COUNTY COUNCIL AND THAT THE COUNTY COUNCIL SHALL APPOINT MEMBERS TO THE COMMISSION IN ACCORDANCE WITH ANY AGREEMENT EXISTING BETWEEN SUCH COUNTY AND A MUNICIPALITY.
S. 623 -- Judiciary Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE PUBLIC SERVICE COMMISSION, RELATING TO THE REMOVAL OF INTRASTATE REGULATION OF THE PRICES, ROUTES, AND SERVICE FOR CERTAIN FOR-HIRE MOTOR CARRIERS OF PROPERTY, DESIGNATED AS REGULATION DOCUMENT NUMBER 1843, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.
S. 625 -- Judiciary Committee: A BILL TO AMEND SECTION 7-13-860, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO POLL WATCHERS, SO AS TO PROVIDE THAT A POLL WATCHER'S BADGE MUST NOT SPECIFY THE CANDIDATE HE REPRESENTS.
S. 626 -- Education Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE BOARD OF EDUCATION, RELATING TO HOMEBOUND INSTRUCTION, DESIGNATED AS REGULATION DOCUMENT NUMBER 1819, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.
S. 627 -- Education Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE BOARD OF EDUCATION, RELATING TO FACILITY SPECIFICATIONS, DESIGNATED AS REGULATION DOCUMENT NUMBER 1765, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.
The following Bill having been read the second time was ordered placed on the third reading Calendar:
S. 207 -- Senator Wilson: A BILL TO AMEND SECTION 7-17-280, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO MANDATORY RECOUNTS IN PRIMARIES AND GENERAL ELECTIONS, SO AS TO PROVIDE THAT THE CANVASSING AGENCY SHALL GIVE PRIORITY IN THE RECOUNT TO SPECIFIC PRECINCTS IF ONE OF THE AFFECTED CANDIDATES FOR REASONABLE CAUSE SO REQUESTS.
S. 46 -- Senators Jackson, Elliott, Rose and Washington: A BILL TO AMEND SECTIONS 20-7-2730, 20-7-2740, 20-7-2800, 20-7-2810, 20-7-2850, AND 20-7-2900, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ISSUANCE OF LICENSES FOR PRIVATE DAY CARE CENTERS AND RENEWAL THEREOF, APPROVAL OF PUBLIC DAY CARE CENTERS AND RENEWAL THEREOF, THE REGISTRATION OF OPERATORS OF FAMILY DAY CARE HOMES, AND THE ISSUANCE OF LICENSES FOR OR THE REGISTERING OF CHURCH DAY CARE CENTERS, SO AS TO REQUIRE THAT ALL PERSONS APPLYING FOR A LICENSE AS AN OPERATOR OF OR AN EMPLOYEE AT DAY CARE FACILITIES MUST UNDERGO A FINGERPRINT REVIEW TO BE CONDUCTED BY THE FEDERAL BUREAU OF INVESTIGATION AND TO PROHIBIT THE ISSUANCE OF DAY CARE LICENSES IF SUCH OPERATORS OR EMPLOYEES HAVE BEEN CONVICTED OF CERTAIN CRIMES AND TO AMEND CHAPTER 7 OF TITLE 20 BY ADDING SECTION 20-7-2720, SO AS TO PROVIDE THAT THE SOUTH CAROLINA LAW ENFORCEMENT DIVISION MAY NOT CHARGE MORE THAN TEN DOLLARS FOR STATE BACKGROUND CHECKS REQUIRED FOR CHILD CARE FACILITIES.
The Senate proceeded to a consideration of the Bill. The question being the adoption of the amendment proposed by the General Committee.
The General Committee proposed the following amendment (46R003.AGW), which was adopted:
Amend the bill, as and if amended, by striking all after the enacting words and inserting in lieu thereof the following:
/SECTION 1. Section 20-7-2730 of the 1976 Code is amended to read:
"Section 20-7-2730. a. Application for license must be made on forms supplied by the department and in the manner it prescribes.
b. Before issuing a license the department shall conduct an investigation of the applicant and the proposed plan of care for children and for operating a private child day care center or group day care home. If the results of the investigation verify that the provisions of this subarticle and the applicable regulations promulgated by the department are satisfied, a license must be issued. The applicant shall cooperate with the investigation and related inspections by providing access to the physical plant, records, excluding financial records, and staff. Failure to comply with the regulations promulgated by the department within the time period specified in this subarticle, provided that adequate notification of deficiencies has been made, is a ground for denial of application. The investigation and inspections may involve consideration of any facts, conditions, or circumstances relevant to the operation of the child day care center or group day care home, including references and other information about the character and quality of the personnel.
c. Each license must be conditioned by stating clearly the name and address of the licensee, the address of the child day care center or group day care home, and the number of children who may be served.
d. Failure of the department, except as provided in Section 20-7-3070, to approve or deny an application within ninety days shall result in the granting of a provisional license.
e. No license may be issued to an operator who has been convicted of a crime listed in Chapter 3 of Title 16, Offenses Against the Person, a crime listed in Chapter 15 of Title 16, Offenses Against Morality and Decency, and for the crime of contributing to the delinquency of a minor, contained in Section 16-17-490, or those felonies classified in Section 16-1-10(A) or the offenses enumerated in Section 16-1-10(D) or for any other criminal offense of a similar nature committed in other jurisdictions or under federal law.
f. No facility may employ or engage the services of a caregiver any person who has been convicted of one of the crimes listed in this paragraph section. A person who has been convicted of one of the crimes listed in this paragraph section who applies for a license as operator, employment with, or is employed by, or who seeks to provide caregiver services with, or is a caregiver at a facility is guilty of a misdemeanor and, upon conviction, must be punished by a fine not exceeding five thousand dollars or imprisonment not exceeding one year, or both.
g. Effective July 1, 1995, all persons applying for a license as an operator under this section or seeking employment or seeking to provide caregiver services at a facility licensed under this section shall undergo a state fingerprint review to be conducted by the State Law Enforcement Division to determine any state criminal history and a fingerprint review to be conducted by the Federal Bureau of Investigation to determine any other criminal history. The State Department of Social Services may charge the licensee a fee for the cost of obtaining criminal history conviction records from the South Carolina Law Enforcement Division."
SECTION 2. Section 20-7-2740 of the 1976 Code is amended to read:
"Section 20-7-2740. a. Regular licenses may be renewed upon application and approval. Notification of a child day care center or group day care home regarding renewal shall be the responsibility of the department.
b. Application for renewal shall be made on forms supplied by the department in the manner it prescribes.
c. Before renewing a license the department shall conduct an investigation of the child day care center or group day care home. If the results of the investigation verify that the provisions of this subarticle and the applicable regulations promulgated by the department are satisfied, the license shall be renewed. The licensee shall cooperate with the investigation and related inspections by providing access to the physical plant, records and staff. Failure to comply with the regulations promulgated by the department within the time period specified in this subarticle provided adequate notification of deficiencies has been made is a ground for revocation of the license. The investigation and inspections may involve consideration of any facts, conditions or circumstances relevant to the operation of the child day care center or group day care home.
d. No license may be renewed for any operator who has been convicted, or who has an employee or caregiver who has been convicted, of any crime listed in Chapter 3 of Title 16, Offenses Against the Person, any crime listed in Chapter 15 of Title 16, Offenses Against Morality and Decency, and for the crime of contributing to the delinquency of a minor, contained in Section 16-17-490, or those felonies classified in Section 16-1-10(A) or the offenses enumerated in Section 16-1-10(D) or for any other criminal offense of a similar nature committed in other jurisdictions or under federal law.
e. Any licensee seeking license renewal under this section, its employees, and its caregivers, who have not done so previously, shall, on the first renewal after June 30, 1995, or by June 30, 1996, whichever is later, undergo a state fingerprint review to be conducted by the State Law Enforcement Division to determine any state criminal history and a fingerprint review to be conducted by the Federal Bureau of Investigation to determine any other criminal history. The fingerprint reviews required by this subsection shall not be required on subsequent renewals.
f. No facility may employ or engage the services of a an employee or caregiver who has been convicted of one of the crimes listed in this paragraph section. The State Department of Social Services may charge the licensee a fee for the cost of criminal history conviction records from the South Carolina Law Enforcement Division."
SECTION 3. Section 20-7-2800 of the 1976 Code is amended to read:
"Section 20-7-2800. a. Application for a statement of standard conformity or approval shall be made on forms supplied by the department and in the manner it prescribes.
b. Before issuing approval the department shall conduct an investigation of the applicant and the proposed plan of care for children and for operating a public child day care center or group day care home. If the results of the investigation verify that the provisions of the subarticle and the applicable regulations promulgated by the department are satisfied, approval shall be issued. The applicant shall cooperate with the investigation and inspections by providing access to the physical plant, records and staff. The investigation and related inspections may involve consideration of any facts, conditions or circumstances relevant to the operation of the child day care center or group day care home, including references and other information about the character and quality of the personnel. If the child day care center or group day care home fails to comply with the regulations promulgated by the department within the time period specified in this subarticle provided adequate notification regarding deficiencies has been given, the appropriate public officials of the state and local government shall be notified.
c. Effective July 1, 1995, all persons applying for approval under this section and such persons who will operate such a facility and persons seeking employment or to provide caregiver services at a facility licensed under this section shall undergo a state fingerprint review to be conducted by the State Law Enforcement Division to determine any state criminal history and a fingerprint review to be conducted by the Federal Bureau of Investigation to determine any other criminal history.
d. No approval may be granted under this section if the person applying for approval, the operator of the facility, or any employee or caregiver has been convicted of any crime listed in Chapter 3 of Title 16, Offenses Against the Person, any crime listed in Chapter 15 of Title 16, Offenses Against Morality and Decency, and for the crime of contributing to the delinquency of a minor, contained in Section 16-17-490, or those felonies classified in Section 16-1-10(A) or the offenses enumerated in Section 16-1-10(D) or for any other criminal offense of a similar nature committed in other jurisdictions or under federal law.
e. No facility may employ or engage the services of any operator, employee, or caregiver who has been convicted of one of the crimes listed in this section. A person who has been convicted of one of the crimes listed in this section who applies for approval as an operator at, seeks employment with, or is employed by, or who seeks to provide caregiver services with, or is caregiver at a facility licensed under this section is guilty of a misdemeanor and, upon conviction, must be punished by a fine not exceeding five thousand dollars or imprisonment not exceeding one year, or both."
SECTION 4. Section 20-7-2810 of the 1976 Code is amended to read:
"Section 20-7-2810. a. Regular approvals may be renewed upon application and approval. Notification of a child day care center or group day care home regarding renewal shall be the responsibility of the department.
b. Application for renewal shall be made on forms supplied by the department and in the manner it prescribes.
c. Before renewing an approval the department shall conduct an investigation of the child day care center or group day care home. If the results of the investigation verify that the provisions of this subarticle and the applicable regulations promulgated by the department are satisfied, the approval shall be renewed. The operator shall cooperate with the investigation and related inspections by providing access to the physical plant, records and staff. If the operator's statement of approval cannot be renewed, the appropriate public officials shall be notified.
d. All persons applying for approval renewal under this section, persons who will operate such a facility, and its employees and caregivers, who have not done so previously, shall, on the first approval renewal after June 30, 1995, or by June 30, 1996, whichever is later, undergo a state fingerprint review to be conducted by the State Law Enforcement Division to determine any state criminal history and a fingerprint review to be conducted by the Federal Bureau of Investigation to determine any other criminal history. The fingerprint reviews required by this subsection shall not be required on subsequent renewals.
e. No approval may be granted under this section if the person applying for approval, the operator of the facility, or any employee or caregiver has been convicted of any crime listed in Chapter 3 of Title 16, Offenses Against the Person, any crime listed in Chapter 15 of Title 16, Offenses Against Morality and Decency, and for the crime of contributing to the delinquency of a minor, contained in Section 16-17-490, or those felonies classified in Section 16-1-10(A) or the offenses enumerated in Section 16-1-10(D) or for any other criminal offense of a similar nature committed in other jurisdictions or under federal law. No facility may employ or engage the services of any employee or caregiver who has been convicted of one of the crimes listed in this section."
SECTION 5. Section 20-7-2850 of the 1976 Code is amended to read:
"Section 20-7-2850. a. Registration shall be completed on forms supplied by the department and in the manner it prescribes.
b. Prior to becoming a registered operator, the applicant shall:
(1) sign a statement that he has read the suggested standards developed by the department under Section 20-7-2980;
(2) furnish the department with a signed statement by each consumer parent verifying that the operator has provided each consumer parent with a copy of the suggested standards for family day care homes and the procedures for filing complaints;
(3) upon request provide the department with any facts, conditions, or circumstances relevant to the operation of the family day care home, including references and other information regarding the character of the family day care home operator.
c. Effective July 1, 1995, all persons applying to become a registered operator of a family day care home under this chapter or seeking employment or seeking to provide caregiver services at a family day care home registered under this chapter shall undergo a state fingerprint review to be conducted by the State Law Enforcement Division to determine any state criminal history and a fingerprint review to be conducted by the Federal Bureau of Investigation to determine any other criminal history.
No applicant shall be registered as an operator if such person, any person in his employ, or any caregiver has been convicted of any crime listed in Chapter 3 of Title 16, Offenses Against the Person, any crime listed in Chapter 15 of Title 16, Offenses Against Morality and Decency, and for the crime of contributing to the delinquency of a minor, contained in Section 16-17-490, or those felonies classified in Section 16-1-10(A) or the offenses enumerated in Section 16-1-10(D) or for any other criminal offense of a similar nature committed in other jurisdictions or under federal law or if such person has an employee or caregiver who has been convicted of any of the offenses enumerated in this section."
SECTION 6. Section 20-7-2860 of the 1976 Code is amended to read:
"Section 20-7-2860. a. A statement of registration shall be issued when the family day care operator satisfactorily completes the procedures prescribed by this subarticle. The current statement shall be displayed in a prominent place in the facility at all times.
b. Registration expires at the end of one year from the date of issuance of the statement of registration. Registration may be renewed according to the procedures developed by the department. All persons applying for renewal of registration as an operator of a family day care home registered under this chapter, persons employed, and persons providing caregiver services at a family day care home registered under this chapter, who have not done so previously, shall, on the first renewal after June 30, 1995, or by June 30, 1996, whichever is later, undergo a state fingerprint review to be conducted by the State Law Enforcement Division to determine any state criminal history and a fingerprint review to be conducted by the Federal Bureau of Investigation to determine any other criminal history. The fingerprint reviews required by this subsection shall not be required on subsequent renewals.
c. The department shall have the power to withdraw the statement of registration if the health and safety of the children so require, if the facility has enrolled children beyond the limits defined in this subarticle, or if the operator fails to comply with the registration procedures provided in this subarticle."
SECTION 7. Section 20-7-2900 of the 1976 Code is amended to read:
"Section 20-7-2900. a. No local church congregation or established religious denomination or religious college or university which does not receive state or federal financial assistance for day care services may operate a child day care center or group day care home unless it complies with the requirements for registration, inspection, and the regulations for health and fire safety as set forth in Sections 20-7-2910 through 20-7-2970. Registration expires at the end of one year from the date of issuance of the statement of registration. Registration may be renewed according to the procedures developed by the department.
b. No license or registration may be issued to a church congregation, or established religious denomination or religious college or university if a person who provides service as an operator, caregiver, or employee at the child care facility has been convicted of a crime listed in Chapter 3 of Title 16, Offenses Against the Person, a crime listed in Chapter 15 of Title 16, Offenses Against Morality and Decency, and for the crime of contributing to the delinquency of a minor, contained in Section 16-17-490, or those felonies classified in Section 16-1-10(A) or the offenses enumerated in Section 16-1-10(D) or for any other criminal offense of a similar nature committed in other jurisdictions or under federal law. No facility may employ or engage the services of an operator or any person who has been convicted of one of the crimes listed in this section.
c. A person who has been convicted of one of the crimes listed in this section who seeks to provide services as an operator, applies for employment with, or is employed by, or who seeks to provide caregiver services with, or is a caregiver at a church or religious day care center is guilty of a misdemeanor and, upon conviction, must be punished by a fine not exceeding five thousand dollars or imprisonment not exceeding one year, or both.
d. Effective July 1, 1995, all persons applying for a license or registration as an operator of a church or religious day care center or seeking employment or seeking to provide caregiver services at a church or religious day care center shall undergo a state fingerprint review to be conducted by the State Law Enforcement Division to determine any state criminal history and a fingerprint review to be conducted by the Federal Bureau of Investigation to determine any other criminal history.
e. All persons applying for renewal of a license or registration as an operator of a church or religious day care center licensed or registered under this chapter, persons employed, and persons providing caregiver services at a church or religious day care center licensed or registered under this chapter, who have not done so previously, shall, on the first renewal after June 30, 1995, or by June 30, 1996, whichever is later, undergo a state fingerprint review to be conducted by the State Law Enforcement Division to determine any state criminal history and a fingerprint review to be conducted by the Federal Bureau of Investigation to determine any other criminal history. The fingerprint reviews required by this subsection shall not be required on subsequent renewals."
SECTION 8. Chapter 7, Title 20 of the 1976 Code is amended by adding:
"Section 20-7-2720. The State Law Enforcement Division shall not impose a fee to exceed twenty-five dollars to conduct any state criminal history review, as required by the provisions of Subarticle 11."
SECTION 9. This act takes effect July 1, 1995./
Amend title to conform.
Senator JACKSON explained the amendment.
There being no further amendments, the Bill was read the second time and ordered placed on the third reading Calendar.
H. 3534 -- Reps. Wilkins, Tripp, Knotts, Whatley, Harrell, Wofford, A. Young, Hutson, Sandifer, Walker, Littlejohn, Herdklotz, Jaskwhich, Meacham, Fleming, Cain, Kelley, Simrill, Law, Mason, Jennings, Kennedy, Cato, Rice, Klauber, Stuart, Gamble, J. Young, Cotty, Shissias, Haskins, Harrison, Riser, Huff, Robinson, Marchbanks, H. Brown, Witherspoon, Baxley, Lanford, Waldrop and Easterday: A BILL TO AMEND TITLE 12, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO TAXATION, BY ADDING CHAPTER 10 ENACTING THE ENTERPRISE ZONE ACT OF 1995 SO AS TO PROVIDE FOR THE ESTABLISHMENT OF ENTERPRISE ZONES IN WHICH VARIOUS TAX INCENTIVES MAY APPLY FOR BUSINESSES, TO PROVIDE THE CRITERIA FOR AREAS TO QUALIFY AS ENTERPRISE ZONES, TO PROVIDE THAT BUSINESSES QUALIFY FOR ENTERPRISE ZONE INCENTIVES BY MEANS OF ENTERING INTO A REVITALIZATION AGREEMENT WITH THE COORDINATING COUNCIL FOR ECONOMIC DEVELOPMENT, TO PROVIDE INCENTIVES, DEPENDING ON ELIGIBILITY, THAT INCLUDE THE MAXIMUM CREDIT ALLOWED UNDER THE TARGETED JOBS TAX CREDIT AND AN ADDITIONAL CREDIT FOR EMPLOYEES FORMERLY RECEIVING AFDC, FEE IN LIEU OF TAXES FOR PROPERTY TAXES, RETAINING AN AMOUNT OF EMPLOYEE WAGES NOT TO EXCEED FIVE PERCENT FOR FIFTEEN YEARS FOR DEVELOPMENT EXPENSES AND ALLOWING INDIVIDUAL INCOME TAX CREDITS FOR EMPLOYEES AND WITHHOLDING TAX CREDITS FOR EMPLOYERS AND EMPLOYEES EQUAL TO THE RETAINED AMOUNT, AND TO PROVIDE THE CRITERIA FOR SELECTING OF QUALIFYING BUSINESSES AND PROJECTS.
On motion of Senator LEATHERMAN, the Bill was carried over.
The PRESIDENT appointed Senators DRUMMOND, STILWELL and WASHINGTON to escort the Honorable Ernest A. Finney, Jr., Chief Justice of the South Carolina Supreme Court, and his distinguished party to the rostrum of the House of Representatives for the Joint Assembly.
At 12:35 P.M., the Senate receded from business for the purpose of attending the Joint Assembly.
At 12:35 P.M., the Senate appeared in the Hall of the House.
The PRESIDENT of the Senate called the Joint Assembly to order and announced that it had convened under the terms of a Concurrent Resolution adopted by both Houses:
H. 3700 -- Reps. Harrison and Wilkins: A CONCURRENT RESOLUTION TO INVITE THE CHIEF JUSTICE OF THE SOUTH CAROLINA SUPREME COURT, THE HONORABLE ERNEST A. FINNEY, JR., TO ADDRESS THE GENERAL ASSEMBLY IN JOINT SESSION ON THE STATE OF THE JUDICIARY AT 12:30 P.M. ON TUESDAY, MARCH 14, 1995.
The Honorable Ernest A. Finney, Jr., Chief Justice of the South Carolina Supreme Court, and members of his party, were escorted to the rostrum by Senators DRUMMOND, STILWELL and WASHINGTON and Reps. Harrison, Canty, J. Young and Delleney.
The PRESIDENT introduced the Honorable Ernest A. Finney, Jr., Chief Justice of the South Carolina Supreme Court.
Chief Justice Finney addressed the Joint Assembly, as follows:
"Thank you ladies and gentlemen, I hope that the reception will be as warm after I conclude my remarks on the state of the Judiciary as it is now... Mr. President, Mr. Speaker, Members of the General Assembly of South Carolina, Justices of the Supreme Court, Judges of the Court of Appeals, other officials, honored guests, ladies and gentlemen... I stand before you today, not as a former legislator - though I draw upon the experience gained from my service in this chamber. The last time that I had the privilege of speaking here was probably 18 years ago and we were debating the tax measure and talking about beer and whether Coors beer was an imported beer or not because it went over the border and came back. So, I understand fully your problems and I understand the problems with which you are constantly confronted. Neither do I voice the alarm of a concerned citizen - though I am gravely apprehensive about the plight of my fellow South Carolinians. But I address this Assembly as the Constitutional head of and on behalf of the Judiciary, a separate and co-equal, integral branch of the government which you and I have sworn to preserve, protect and defend. Despite criticism, factual distortions, and waning support for your judiciary, your justice system has remained viable. As you are aware, your courts are overextended, understaffed, and overwhelmed by the sheer volume of the caseload. You may or may not be aware of the fact that the judicial branch of South Carolina government is severely underfunded. But despite the longstanding existence of these conditions, judges, attorneys, law clerks, court reporters, court officials, administrators, and a legion of support personnel continue to discharge their duties in the highest and best tradition of american jurisprudence. Because of their belief that our system of justice is the best defense against anarchy and is worthy of their allegiance, year after year dedicated legislators devote endless hours in this chamber and tireless efforts across the hall to provide the funding, legislation, and overall backing that is the underpinning of the system's strength. I take this opportunity to express our appreciation for your loyalty. Because of your diligence, the task we face at this juncture is one of shoring-up the justice system instead of salvaging the remnants of a government devastated due to benign neglect. Like everywhere in society, the changing tides of time have swept in upon the judicial system the resource-eroding forces of crime, violence, and litigation mania that affects, either directly or indirectly, all segments of the population. Your judicial system has effected fiscal austerity and extended itself to combat the explosive growth of its workload. We have realigned resources for maximum efficiency. Wherever feasible, we have implemented cutbacks, freezes, and shifted court terms to reduce expenditures. Judges have been restricted in their rotation to conserve travel funds. We are currently integrating automated technology into the branch's operations to increase productivity without hiring additional personnel. Likewise, we are attempting to increase our efficiency. I have been your Chief Justice since December 17, 1994, and in December, the Supreme Court conducted a survey of judges, solicitors and public defenders. Their responses were insightful, enlightening and will be helpful in formulating goals for the improvement of our court system. In January, we initiated an in-house study of job descriptions and employee performance as part of a structure, efficiency and compensation review. Hopefully, this will have the immediate effect of improving employee morale and retaining experienced employees. Presently under consideration is a plan to broaden the scope of the commission created for review of judicial compensation. Under the proposed plan, the judicial compensation commission would be revamped as a judicial study commission composed of a broad cross section of citizens. These commissioners would be authorized to conduct a comprehensive study of the judicial branch and make recommendations pursuant to their findings. However, these steps are in the preliminary stages and they cannot quell the cumulative effect of years of financial deficiencies. Unlike the executive and legislative branches, the diverse components of the judicial system - and particularly the court structure -are driven by outside forces that will not readily adapt to revenue fluctuations and calls for downsizing. Despite our best efforts, the problems continue to mushroom. A recent study by the South Carolina Bar Task Force on Justice for All found that for each day that court was in operation in 1994, on average, 560 criminal cases were filed. An average of 263 civil cases were filed daily. Four thousand eight hundred and twenty-five was the average daily filing in our Summary Court. Considering the fact that a guilty plea can take from 30 minutes to several hours, and a trial from 3/4 of a day to several weeks, and we are not in California, it would be virtually impossible to dispose of such a volume of cases. Just to keep up with new filings, the major trial courts would have had to dispose of a case every 23 seconds. Adding to the existing backlog in General Sessions, during 1994 alone, 102,705 new cases were filed. This figure reflects in 1994 a decline in general sessions filings that is attributable to the Sentencing Guidelines Commission's classification bill. Still at year's end 63,757 cases were pending in General Sessions Court - for disposition by 40 circuit judges. Fifty-one percent of these pending criminal cases were more than six months old. The consequence: justice delayed for accused and justice denied to victims. The sad state of too many of South Carolina's families is reflected in the case load of our Family Courts, which received 100,000 new cases in 1994. On December 31st, approximately 46 Family Court judges were facing 35,208 cases with which to begin the new year. Equally disturbing is the fact that in this court, which adjudicates such sensitive and emotionally charged issues as child custody, divorce, division of marital property, and juvenile offenders, a record number of these cases had been pending for more than six months. Probate, Magistrate and Municipal Courts complete the schematic: every court at all levels of the system experienced greater activity and larger backlogs during 1994 - a trend expected to become more pronounced as new legislation is implemented. For instance, the 1994 Crime Bill is expected to generate an additional 2,500 post conviction relief applications within the next year. The ensuing groundswell of appeals from the trial courts combine with appeals from administrative decisions to form a bottleneck at the appellate level. On December 31, 1994, there were 190 cases ending (475 disposed of) in the six-judge Court of Appeals, which has provided significant relief in speeding up the appellate process by hearing appeals that would have been decided by the Supreme Court. The Supreme Court has continued to hear the appellate cases not transferred to the Court of Appeals. In addition, we perform the administrative duties of the judicial branch, hear motions (4,346 in 1994; 138 pending as of December 31, 1994), attorney discipline matters (received 75; disposed of 73; 2 pending at year's end), judicial grievances (received 9; disposed of 7; 2 pending at end of 1994), petitions for certiorari in post conviction relief (acted on 308; 206 pending at year's end), and original jurisdiction cases, certified questions of law from federal courts (received 6; heard 2; 4 pending at end of 1994), certiorari from Court of Appeals (acted on 140; 71 pending as of December 31, 1994), as well as petitions for mandamus and certiorari. There was a backlog of 1,185 cases pending on the Supreme Court docket at the end of 1994. The onus of this dilemma rests upon judges and other court personnel who are charged with the responsibility of managing the system. But there is also a substantial negative impact upon the lives of litigants and citizens whose cases are held hostage by a court system in crisis. A two-year study of the task force on justice and detailed research by other experts on crime, violence, and the courts support the empirical data advanced by those who work within the court system on a daily basis. Today, there is a consensus that the success of the current initiative requires a three-prong approach. First: funding in amounts and in a manner adequate to meet the current level of operations; Second: appropriating additional revenue specifically to rectify the effects of past budgetary constraints upon the courts; Third: fostering a better understanding of the vital role that the justice system performs in addressing problems in society. With regard to the first prong of maintenance level funding, threshold funding should be balanced and ought to be allocated on a recurring basis for fixed expenditures. Overcrowded dockets, outdated facilities, obsolete equipment, and insufficient personnel require balanced funding to simultaneously upgrade all segments of the system. With regard to recurring appropriations: salaries, lease obligations and other fixed expenses should be allocated on a recurring basis. Addressing the adequacy of allocations, the system has actually regressed in some aspects due to lack of funds. One such area is scheduling adequate court time. After being forced to restrict judicial assignments to reduce travel expenses, we now find a direct correlation between the availability of travel funds, the age of cases, and the size of case backlogs. Clearly, adequate travel funds for judges, court reporters, and law clerks is essential for the state's 46 counties and is the only means by which to place judges in counties where the caseloads are heaviest. Second: appropriating revenue to rectify the effects of past budgetary constraints upon the judicial system. The court system has long functioned in excess of maximum operating capacity. Once sufficient funds are budgeted to maintain constitutionally mandated court functions, it is vital that the effects of prolonged years of underfunding be rectified. One startling example of underfunding is that for fiscal year 1984-85, the judicial share of the state budget was .82%. Today - ten years later - our share has declined to .74% for fiscal year 1994-95. Net decreases in appropriations from fiscal years 1986-87 through 1993-94, inclusive, have continued to the point where the allocation for judicial travel for the current year is 25% less than in fiscal year 1986-87. So with full funding for current operations only, the judicial branch will still be burdened throughout by the effects of past underfunding. I am fully aware of fiscal constraints on other vital areas of state government, but I am equally aware of the degree to which the plethora of social ills that emanate from malfunctions within the court system pervades society. I am, therefore, compelled to request that this 111th General Assembly provide for the citizens of South Carolina nine (9) judges and corresponding funding for support personnel and facilities as follows: an additional panel of three (3) judges for the Court of Appeals; three (3) additional Circuit Court judges; and three (3) more Family Court judges. These judges would enable us to work on the backlogs systemwide and help manage the current caseload. Third, and equally important: promote a better understanding of the fundamental role of the justice system in addressing the problems of society. In theory and in practice, the justice system is interwoven with the entire fabric of life. From infancy, Family Courts are called upon for orders of protection and asked to decide with whom and under what conditions a child may live. During adolescence, courts are required to pick up where parents leave off in providing guidance, correction and detention for troubled teens. Probate Courts safeguard the rights of minors and adults unable to direct their own lives or business affairs. The Civil Court is the one forum in which citizens may civilly and lawfully settle controversies and seek redress for wrongs committed against them. The criminal courts strive to protect society while punishing offenders. This becomes virtually impossible when the numbers overwhelm our ability to dispose of cases within a reasonable period of time. Swift and sure punishment should be the rule, not the exception. On the criminal side, society looks to the Judiciary to dispense justice in the form of punishment and restoration; retribution and restitution; incarceration and rehabilitation - and that is our constitutional function. But in order to effectively discharge that duty, the Judiciary must be knowledgeable and adequately equipped. I believe that our common goal is to see that the impediments to an effective justice system are removed. Such a goal requires cooperation among - and leadership from - the legislative, executive and judicial branches. The present state of your Judiciary is but a culmination of past events; and absent courageous, insightful, bipartisan leadership, the present will represent a microcosm of the future state of our Judiciary. It is imperative that these bodies receive data that is sufficiently current, accurate, and comprehensive to allow each of you to make informed decisions on the amounts and classifications of appropriations needed to pull your judicial system out of its present quagmire. I, and the other members of the Supreme Court, stand ready to supplement our submitted budget with whatever data, explanations, or other material you deem necessary for further clarification of our budget request. Additionally, I have had placed on your desks this morning a schedule of dates and times that I am available to meet with legislators in groups or individually to answer questions or address any concerns about our judicial system. We feel that your knowledge and personal experiences in the areas of crime, violence, and the court system, together with the need that we are prepared to demonstrate, will show fully the necessity of budgetary appropriations adequate to enable the judicial system to function effectively. We, as state officials, can ill afford to withhold the resources that are necessary to earn for our court system the trust and confidence of the South Carolinians whom we are sworn to serve. I call upon you, the legislative branch, to join hands with us, the judicial branch, in a concerted effort to give to the figure of the lady justice new meaning and substance in the eyes of our fellow South Carolinians. Again, thank you for allowing me to be here with you today."
The purposes of the Joint Assembly having been accomplished, the PRESIDENT declared it duly and regularly adjourned; whereupon, the Senate returned to its Chamber, and was called to order by its PRESIDENT.
MOTION ADOPTED
On motion of Senators JACKSON, WILLIAMS, ALEXANDER, BRYAN, CORK, COURSON, COURTNEY, DRUMMOND, ELLIOTT, FORD, GIESE, GLOVER, GREGORY, HAYES, HOLLAND, LAND, LANDER, LEATHERMAN, LEVENTIS, MARTIN, MATTHEWS, McCONNELL, McGILL, MESCHER, MOORE, O'DELL, PASSAILAIGUE, PEELER, RANKIN, REESE, RICHTER, ROSE, RUSSELL, RYBERG, SALEEBY, SETZLER, SHORT, GREG SMITH, J. VERNE SMITH, STILWELL, THOMAS, WALDREP, WASHINGTON and WILSON, with unanimous consent, the Senate stood adjourned out of respect to the memory of Mr. James H. Patterson, of Sumter, S.C., beloved father of Senator PATTERSON.
At 1:05 P.M., on motion of Senator DRUMMOND, the Senate adjourned to meet tomorrow at 11:00 A.M.
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