| Printed Page 890, Mar. 14 | Printed Page 910, Mar. 14 |

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

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

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

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

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

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.

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

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.

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

| Printed Page 890, Mar. 14 | Printed Page 910, Mar. 14 |

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