Indicates Matter Stricken
Indicates New Matter

The Senate assembled at 10:00 A.M., the hour to which it stood adjourned and was called to order by the ACTING PRESIDENT, Senator RYBERG.

The Joint Committee for Judicial Screening reopened the application filing period for Seat #2 of the Family Court of the Fifth Judicial Circuit (Richland and Kershaw Counties) on Friday, May 19, 1995. The Joint Committee reopened the application filing period pursuant to S.C. Code Section 2-19-80 which requires the Joint Committee to do so when an incumbent judge is found not qualified. The deadline for receipt of additional applications was 12:00 noon on June 2, 1995, but the Joint Committee did not receive any additional applications.

The Joint Committee hereby re-releases the report it issued on May 19, 1995, concerning the qualifications of the two candidates for this seat, the Honorable Abigail R. Rogers and Leslie Kirkland Riddle, Esquire.

Joint Committee's Finding:     Qualified

Ms. Riddle was screened on May 10, 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:

Ms. Riddle demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations important to judges.

Ms. Riddle's husband is an assistant solicitor in the 11th Circuit.

Ms. Riddle indicated that she would recuse herself from matters involving parties to litigation or clients of her current law firm. She said she would also recuse herself from all matters where a lawyer from her firm was or had been involved.
(2)   Legal Knowledge and Ability:

The Joint Committee found Ms. Riddle to be intelligent and knowledgeable. Her performance on the Joint Committee's practice and procedure questions met expectations.

Ms. Riddle's Martindale-Hubbell rating is BV.
(3)   Professional Experience:
Ms. Riddle described her legal experience as follows:
(a)   1988-Present   Partner in the law firm of Kirkland, Dodson, Rush, and Riddle. Primarily involved in the representation of parties in divorce actions (including issues of equitable division of property, alimony, child custody, child support, and visitation), custody litigation, adoption proceedings, and child abuse and neglect matters. Also representing children in child custody cases as their attorney/guardian ad litem. Other areas handled include the preparation of wills, estate work, personal injury, workers' compensation, and criminal defense.
(b)   Summer 1993   Special Assistant Solicitor, 5th Judicial Circuit. Prosecuted child abuse and neglect cases for DSS on a part-time basis. Duties included the preparation and trial of abuse and neglect cases against parents and other individuals accused of physical, emotional, educational, and sexual abuse or neglect of children.
(c)   1988-1990     Volunteer Guardian Ad Litem Project of Richland County. Represented abused and neglected children and their guardians in family court to ensure that the best interests of the children were protected and that all actions taken by DSS and other child protective agencies conformed to the law.
(d)   1986-1988     Associate in the law firm of Kirkland, Aaron, and Alley. Primary emphasis was on divorce, child custody, child support, visitation, and related matters. Other areas handled included the preparation of wills, estate work, personal injury, and criminal defense.
(e)   1985-1986     Family Court Solicitor for the 5th Circuit. Assistant Solicitor assigned exclusively to family court, handling all matters relating to the prosecution of juvenile criminal defendants and the prosecution of individuals accused of physical, emotional, and sexual abuse or neglect of children. Responsibilities included the preparation and trial of cases; decisions regarding the transfer of jurisdiction to General Sessions Court on serious, violent, or repeat offenders; trial of motions to transfer jurisdiction; trial of motions to detain juvenile defendants pending trial on serious, repeat, and violent offenses; and writing briefs and arguing appeals to the Court of General Sessions and the South Carolina Supreme Court.
(f)   1984-1985     Assistant Solicitor for the 5th Circuit. Prosecuted adult criminal defendants in General Sessions and magistrate's court. Responsibilities included the preparation and trial of cases, interviewing witnesses, drafting and arguing legal motions, formulating plea agreements, preparation of indictments, and advising local law enforcement agencies regarding legal issues, charging decisions, and collection of evidence.

Ms. Riddle said that over the past 5 years she has appeared in state court on a daily basis. She estimated that her practice over the past 5 years has been 90% domestic, 5% civil, and 5% criminal.

Ms. Riddle provided the Joint Committee with 5 of her most significant legal matters which she described as follows:
(a)   Shuler v. Shuler: This was a contested divorce case in which Ms. Riddle represented one of the parties. The most significant issues in this case were purely economic. The couple had amassed more that $75,000 in personal debt on 45 different credit cards and loan accounts. In addition, the marital residence was titled in the husband's father's name, though both husband and wife had contributed to the equity in it. The contested issues involved the setting of alimony, the distribution of the marital debt, the distribution of the equity in the home, and the interrelation between these economic factors.
(b)   Coker v. Coker: This was a contested child custody case involving 2 children, ages 8 and 5. Ms. Riddle was the children's guardian ad litem. One parent had engaged in several adulterous affairs without the children knowing. The other parent, upon learning of the affairs, told the children. The most significant issues involved was the determination of which of these actions was the most detrimental to the children and of the impact of these actions on each parent's fitness in the custody determination.
(c)   In re Dawkins: This was a DSS case involving allegations of physical and sexual abuse on a hearing-impaired teenage girl. The alleged perpetrator was the child's mother. Ms. Riddle represented the guardian ad litem and ultimately the child's best interests. The teenage girl was so attached to her mother as a result of her handicap that she wanted to live with her mother despite the abuse. This resulted in considerable reluctance on the child's part to assist the State in proving the abuse. The entire case had to be tried through the use of an interpreter.
(d)   Berger v. Miller: Ms. Riddle represented a mother attempting to show a material and substantial change in circumstances that would warrant a change in the previously ordered custody provisions. The factors involved included the child's poor performance in school, the father's exposure of the child to his adulterous affairs, verbal abuse by the father, and the allegedly questionable religious affiliations of the mother.
(e)   State v. Napoleon Goodson IV: This case involved the murder of a young man by a 16-year old juvenile. Ms. Riddle was the assistant solicitor assigned to the case. A motion was heard by the family court requesting that the case be waived to the Court of General Sessions and that the juvenile be tried as an adult. The motion was denied and an appeal was brought in circuit court. The juvenile filed a writ of supersedeas in the Supreme Court asserting that the State's appeal should be dismissed. The writ was denied. The appeal was then heard in the circuit court and the court asserted jurisdiction. The juvenile was then tried as an adult and was ultimately convicted of voluntary manslaughter.

Ms. Riddle has handled only 1 appeal, the State v. Napoleon Goodson IV matter discussed above.
(4)   Judicial Temperament:

The Joint Committee believes that Ms. Riddle's temperament would be excellent.
(5)   Diligence and Industry:

Ms. Riddle 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.

Ms. Riddle is married with 3 sons, ages 7, 5, and 3.
(6)   Mental and Physical Capabilities:

Ms. Riddle 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. Riddle has managed her financial affairs responsibly.
(8)   Public Service:

Ms. Riddle ran unsuccessfully for the family court bench in 1994.
(9)   Ethics:

Ms. Riddle reported on her application that her campaign expenditures have totaled $91.04.

Ms. Riddle 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.
(10)   Miscellaneous:

Ms. Riddle meets the constitutional and statutory requirements for the office she seeks.

The Bar found Ms. Riddle qualified and said:

She is a family court practitioner who has handled all aspects of work in that court. She has extensive knowledge in the subject matters addressed by Family Court.

She has an excellent reputation for truthfulness, character, and diligence.

Ms. Riddle is perceived to possess the demeanor and temperament necessary for the bench.

She would be fair and impartial to lawyers and litigants.

Respectfully submitted,
/s/Senator Glenn F. McConnell, Chairman
/s/Rep. F. Greg Delleney, Jr., Vice-Chairman
/s/Senator Edward E. Saleeby
/s/Senator Thomas L. Moore
/s/Senator John R. Russell
/s/Rep. Paula H. Thomas
/s/Rep. Ralph W. Canty
/s/Rep. W. Douglas Smith

Joint Committee's Finding:     Not Qualified

Judge Rogers was screened on May 11, 12, and 16, 1995, after a thorough investigation. The majority's findings as they relate to the nine evaluative criteria are as follows:

(1)   Integrity and Impartiality:

The input the Joint Committee received from the public and from members of the Bar was very divided. Some individuals reported that Judge Rogers' integrity and impartiality are excellent, but the Joint Committee received evidence that Judge Rogers is at times arrogant and attempts to intimidate people by using the power and prestige of her office.

The majority is particularly concerned by evidence of a situation in which Judge Rogers attempted to use her judicial office to intimidate her former secretary. The majority believes that Judge Rogers threatened to issue a bench warrant for the arrest of her former secretary after the secretary took another job. The majority is aware of inconsistencies in the testimony on this issue, particularly with respect to when telephone calls were made, how many telephone calls were made, and whether the secretary had given Judge Rogers notice of her intent to resign, but the majority believes that these inconsistencies were not material and actually help to corroborate the secretary and her employer because they tend to indicate that the witnesses had not rehearsed their testimony. The secretary and her employer were subpoenaed late at night to immediately appear before the Joint Committee, had not previously contacted the Joint Committee, and reluctantly testified. Their testimony was corroborated by a family court judge and several other witnesses who appeared only after being subpoenaed. For these and other reasons, the majority believes that Judge Rogers threatened to issue a bench warrant for the secretary's arrest and was not truthful about this issue in her testimony under oath before the Joint Committee. The majority believes that they cannot, in view of the evidence, find a judge who abused her power and did not tell the truth under oath to the General Assembly's screening committee qualified for further service on the bench.

The majority was also very troubled by testimony that Judge Rogers issued an invalid subpoena to Southern Bell and then attempted to intimidate a Southern Bell employee into complying with the subpoena. Southern Bell's custodian of records testified that she was served with a subpoena duces tecum which Judge Rogers had signed and which attempted to compel her to produce the records of incoming local telephone calls to Judge Rogers' residence. The custodian of records contacted Judge Rogers about the subpoena because she believed it to be invalid. The custodian of records testified that Judge Rogers' tone was harsh and that Judge Rogers used her judicial office in an attempt to intimidate the custodian of records into complying with an invalid subpoena. Judge Rogers admitted issuing the subpoena, but said she did so at the suggestion of a Southern Bell employee whom she could not name. Judge Rogers denied attempting to intimidate the custodian of records. The majority is troubled by this incident because it believes that Judge Rogers abused her judicial power by issuing the subpoena and, most importantly, by attempting to intimidate the custodian of records.
(2)   Legal Knowledge and Ability:

The majority believes that Judge Rogers is intelligent and knowledgeable. Her performance on the Joint Committee's practice and procedure questions met expectations.

Judge Rogers' record on appeal since her election in 1991 has been good as she has been appealed in two reported appellate decisions and was affirmed in both of those matters. She was, however, reversed in several unreported appellate decisions. These matters concern the majority as they dealt with situations in which the appellate court believed that Judge Rogers improperly incarcerated juveniles. In June of 1992 the Supreme Court granted a habeas corpus petition in the matter of In re Christopher B. in part because Judge Rogers had ordered a 17-year old confined to DYS custody for a status offense. In this matter the status offense was truancy and the minor had been charged with only one such offense. In March of 1993, Judge Rogers' order in In re Stacey R. incarcerating a 15-year old female for incorrigibility was vacated by a per curiam order of the Supreme Court. The court stated that it must "again remind family court judges that mere status offenders are not to be placed in detention facilities." In April of 1994 in In re Beatrice N., the Supreme Court issued another per curiam order reversing Judge Rogers' detention of a 15 year old female for a status offense, this time for the offenses of incorrigibility and truancy. The majority understand that judges make mistakes of law and are reversed from time-to-time, but the majority is troubled that Judge Rogers has been repeatedly reversed on the very important issue of when juveniles are to be incarcerated.
(3)   Professional Experience:

Judge Rogers was admitted to the Bar in 1983. She described her legal experience as follows:
(a)   1982-1985     Fifth Circuit Assistant Solicitor. Tried cases in both Family and General Sessions Court.
(b)   1985-1991     Assistant Chief counsel, S.C. Highway Department. Judge Rogers did some criminal work, but the main focus of her practice was in civil litigation, workers' compensation, and appellate practice.
(c)   1991-Present   Family Court Judge, Fifth Judicial Circuit

Judge Rogers had little family court experience prior to her election to the bench in 1991. She testified that she attempted to compensate for that lack of experience by studying the law and attending CLE forums.
(4)   Judicial Temperament:

The majority believes that Judge Rogers is capable of exhibiting good judicial temperament and often does so. The majority also believes, however, that Judge Rogers tends to lose her temper and sometimes treats individuals who appear before her very poorly. The majority believes that judges should be stern and that it is often appropriate for a family court judge to be firm with litigants and lawyers in the courtroom. However, the majority believes that Judge Rogers' demeanor can be imperious instead of merely stern.
(5)   Diligence and Industry:

Judge Rogers testified that she was late and had to take frequent breaks during the period in which she was pregnant and nursing her child. Others, including courtroom personnel, litigants, lawyers, family court judges, and witnesses who testified on Judge Rogers' behalf, testified that she was frequently very late in the morning and returning from lunch and from breaks. The majority is not persuaded by the excuses Judge Rogers offered for her tardiness. The majority also believes, on the basis of testimony from a retired family court judge and other evidence, that the problem was not confined strictly to that time period during which Judge Rogers was pregnant and nursing. The majority views such problems of punctuality as very serious because they demonstrate a lack of respect for litigants, lawyers, and other courtroom participants.

The majority is also very concerned about evidence that Judge Rogers does not pay attention to affidavits and other documents she is to consider. The majority was moved by the testimony of one father who appeared before Judge Rogers in a custody matter. The father and his attorney testified that they submitted affidavits for Judge Rogers to consider, but the lengthy affidavits were clocked-in at 8:59 a.m. and the hearing began at 9:00 a.m. Judge Rogers testified that she had read the affidavits, but was concerned that the father did not understand that she had done so. Judge Rogers testified that she learned from this incident and would be more careful to ensure that litigants understood she had read their materials. The majority appreciates Judge Rogers testimony on this issue, but is not convinced that Judge Rogers could have read the affidavits under the circumstances of this case. Furthermore, there was also testimony about another matter in which Judge Rogers asked a couple if they could be reconciled when they had been divorced for many years. The majority believes that Judge Rogers' failure to read materials presented for her consideration is further evidence of her lack of respect for litigants and lawyers and a very serious failure in her performance on the bench.

In the early period of Judge Rogers' service on the bench, she was slow in the production of orders and in one situation did not report all the matters she had under advisement to Court Administration as judges are required to do. The majority is troubled by Judge Rogers' problems in this regard, but believes that she has improved in this area.
(6)   Mental and Physical Capabilities:

Judge Rogers 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.
(8)   Public Service:

Judge Rogers has been a Family Court Judge since 1991.

Judge Rogers was very active in undergraduate and law school activities.

Judge Rogers is very active in professional and community activities. She has been the recipient of several awards including:

(a)   ABA "Outstanding Young Jurist" (1994);
(b)   U.S.C. 1994 Distinguished Black Alumni;

(c)   Woman of Achievement, S.C. Commission on Women (1992); and

(d)   University of South Carolina's 1992 Distinguished Young Alumni.
(9)   Ethics:

Judge Rogers reported on her application materials that she has spent $1,395.22 on her campaign.

Judge Rogers 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.
(10)   Miscellaneous:

Judge Rogers meets the constitutional and statutory requirements for the offices she seeks.

While the Bar found Judge Rogers qualified, it noted a number of concerns. The Bar's report is as follows:

Most of those interviewed feel that she is of good character and integrity.

Opinions as to the extent of her knowledge of the law were mixed. Initially, Judge Rogers had very little experience in Family Court. Of grave concern were a series of incarcerations of status offenders. It is generally conceded that she has improved in her knowledge of the law.

Concerns were expressed by some of those interviewed as to her judicial temperament. Some lawyers felt that she was fair and courteous; others felt that she was discourteous to both lawyers and litigants.

The greatest number of concerns were expressed about her consistent failure to be on the bench when court was scheduled to start (usually being very late) and her frequent absences from the bench during times when matters were scheduled. This behavior is perceived as disrespectful of litigants, witnesses, and lawyers (particularly because explanations were not offered) and is disruptive to efficient disposition of matters and movement of the docket. It was described by some as a failure to manage her courtroom.

Numerous concerns were expressed as to her tardiness in deciding cases and producing orders. In one instance the South Carolina Supreme Court ordered her to file an order in a case; Judge Rogers complied immediately.

There was testimony that Judge Rogers has been the victim of a conspiracy to defeat her bid for re-election, but these allegations lacked specificity and substance and the majority found no evidence of such a conspiracy. There were certainly conversations amongst members of the Bar and public about Judge Rogers' qualifications for judicial office. Such conversations do not constitute a conspiracy, however, because they do not involve plans for illegal or improper activity.

The majority feels that Judge Rogers is not the first judge to be tardy, late with matters under advisement, or to have lost her temper and acted imprudently. However, in its collective memory, the majority has no recollection of any candidate who when confronted with a substantial body of evidence in contradiction, including testimony from a number of disinterested witnesses, either always shifted the blame or failed to account for her own behavior. This presents problems to a committee called upon to administer oaths and prepare accurate accounts of qualifications, and the majority believes that such behavior is repugnant to public service in general and service on the bench or as a role model in particular. Based on the totality of the circumstances, including the evidence herein, the admissions, and the veracity of Judge Rogers under oath, the majority has no option other than to find her not qualified and re-open the Joint Committee's process for the acceptance of applications.

MAJORITY REPORT:
/s/Senator Glenn F. McConnell, Chairman
/s/Senator John R. Russell
/s/Rep. F. Greg Delleney, Jr., Vice-Chairman
/s/Rep. Paula H. Thomas
/s/Rep. W. Douglas Smith

We, the undersigned minority of the Judicial Screening Committee, would find that Judge Abigail R. Rogers is qualified for continued service on the Family Court bench for the Fifth Judicial Circuit. While we are concerned by testimony that she has not always been punctual in her service on the bench, we are not prepared to find her unqualified on this issue as lack of punctuality plagues many of the members of the bench as a whole. In view of the majority's insistence on Judge Rogers' adherence to punctuality, we would expect the Committee, as a whole, to insist upon punctuality of all judges who will be screened in the future, and by copy of our opinion, serve notice upon members of the bench that punctuality is expected of all judges. We are also aware of testimony given to the Committee that at times Judge Rogers appeared to make decisions without benefit or resort to pleadings or affidavits filed with her court. In our opinion, we would find that this seeming lack of attention is more a matter of appearance than reality, and would encourage all judges to ensure that litigants understand that the court has given their cases careful attention, whether such attention is given in the courtroom or in chambers. The majority of the Committee appear to be most troubled by inconsistencies in Judge Rogers' testimony and testimony of those who alleged that she threatened arrest and/or service of a bench warrant if her former secretary did not return to her employ. We would find that many of the witnesses who testified before the Committee have diminished recollections of events which occurred nearly two years ago. We also would find that many of these witnesses appeared to have interconnecting interests which leads us to believe that their testimony was geared more toward unseating Judge Rogers than assisting the Committee in determining a true account of what occurred two years ago.

Each of us has wrangled with the substantial amount of testimony presented to the Committee on the number of issues presented regarding Judge Rogers' qualifications. In our opinion, Judge Rogers' tremendous talents and proven success in dealing with our state's substantial juvenile delinquency and justice problems deserve recognition. In view of this and of the lack of any clear evidence of misconduct on her part, we would, therefore, find her qualified.

MINORITY REPORT:
/s/Senator Edward E. Saleeby
/s/Senator Thomas L. Moore
/s/Rep. Ralph W. Canty

(On motion of Senator McCONNELL, ordered printed in the Journal)

At 10:05 A.M., on motion of Senator COURSON, the Senate adjourned to meet in statewide session on Monday, June 12, 1995, at 11:00 A.M., in accordance with the provisions of the Sine Die Resolution, H. 4239.

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