| Printed Page 850, Mar. 9 | Printed Page 870, Mar. 14 |

(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

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:

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

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.

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.

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.

Joint Committee's Finding: Legally Qualified

[3] Representative Donald W. Beatty did not participate in the Joint Committee's investigation, public hearing, deliberations, or voting concerning Judge Burnett.

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

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

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

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.

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

| Printed Page 850, Mar. 9 | Printed Page 870, Mar. 14 |

This web page was last updated on Monday, June 29, 2009 at 2:12 P.M.