Journal of the House of Representatives
of the Second Session of the 110th General Assembly
of the State of South Carolina
being the Regular Session Beginning Tuesday, January 11, 1994

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Printed Page 90 . . . . . Thursday, January 13, 1994
The records of the applicable law enforcement agencies: The Laurens County Sheriff's Office, a negative; Clinton City Police Department is negative; SLED and FBI records are negative; the Judgment Rolls of Laurens County are negative. I understand that even the Judgment Rolls of Edgefield County have been checked. We find that the Federal Court records are negative.

No complaints or statements to my knowledge have been received and no witness are present to testify. At this point, I'm going to turn the proceedings over to Mr. Couick for questioning.
JUDGE JOHNSON - EXAMINATION BY MR. COUICK:
Q. Thank you. Judge Johnson, if you can't hear me or if you need anything or whatever documentation, just let me know. We'll be glad to stop and get that for you.
A. All right.
Q. Judge, before we proceed with your particular questioning, I would like to point out for the Committee's benefit for those assembled that the Committee began a new process this year by questioning Members of the Bar across the state about the election of both incumbent judges and those folks who are running for open seats.

We mailed questionnaires to 6,100 members of the Bar which is the total membership of the South Carolina Bar in the state. Of those 6100 mailed out, approximately 2,000 were returned for a response rate for the Bar of about 34 percent. The Committee used those responses to gauge if there were any concerns on the part of the Bar about members of the judiciary and also a member about -- persons that were running for open seats.

Staff receiving those responses on the questionnaires have followed up on those and in many cases have developed questions that we'll be asking today.

In your case, Judge Johnson, the responses were very, very favorable and indicated a high level of commitment on your part for your continued service on the bench and I would congratulate you on the Bar's perception of your service so far.

I would ask you -- like to ask you a couple of questions about your commitment to serving on the bench now that you're here for rescreening, I believe, for the first time since you were initially elected?
A. That's correct.
Q. Do you anticipate that you will continue to serve throughout this term if you are reelected?
A. There is no question in my mind. I made the comment a week or two ago -- no, I guess it was two or three weeks ago with the Bar

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Qualification Committee that's been established by the South Carolina Bar Association that at least for the first time since I first entered politics back in the mid eighties -- politically, I always felt like you were looking for the next step, looking for something different, looking to progress. For the first time that I can recall since getting through with college, I feel like the glove fits and I'm not looking to go anywhere else. I'm perfectly happy doing what I'm doing right now.
Q. Judge, tell the Committee a little bit about your work ethic. I know you were roundly endorsed by the Bar for how you approach it, but for the benefit of the Committee and those assembled, if you could tell a little bit how you meet deadlines, how you handle the discipline of your courtroom in terms of meeting the objectives of your work. How do you handle that?
A. Well, I think the first thing that you have to keep in mind -- and I will address that primarily to when we've got jury going on. Obviously, nonjury, you've got the attorneys and a very fixed schedule, there is no problem.

When you're in the middle of a jury trial, you've got a number of factors to take into consideration. Of course, the jury, that's the public. That's their exposure to the judicial system.

I think the courts are much more aware -- I know that I am -- in trying to make the best use of their time and not keep them tied up when they don't need to be there. We do the best we can. We've instituted a system in some of the counties in Laurens County a phone system where you're on call-in rather than have to check in or come into court every morning and see if they're needed and missing a day of work or a part of a day of work, things of that nature.

The attorneys I think understand that with the backlog of cases that we have. When we have a roster meeting -- we had a roster meeting on Monday of this week in Laurens County. We set a trial schedule and we do our best to stick to that schedule, so that the attorneys are put on notice that they -- if they're fourth on the list and three cases fall through, they need to be prepared to go ahead.

There are always emergencies that are -- or maybe not emergencies, but circumstances that arise where you have to work the problems out and I guess the best example I can give of that is this week when Screening was set for this week and we got the call yesterday because you do have so many judges to screen that some in order to keep judges from having to be here all day would be rescheduled for tomorrow which was fine.

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But when we got our roster meeting on Monday, we had scheduled the entire week around my being out Wednesday and the Committee was kind enough to work me in this morning. I appreciate that.

But those things, you know, you -- with your juries, you try to use reasonable hours, maybe 9:00 in the morning to 5:30 or 6:00 in the evening. Sometimes, you know, I've been with the jury out until 9:00, 10:00, even midnight. I had a criminal jury that was out until midnight.

There are always exceptions, but I think as long as you keep the attorneys, the problems they have in being in different courts, you work with them, you work with the victims in criminal cases, the parties in the civil cases and then the juries. You've got to take all of those factors in consideration and try to be fair, but at the same time remember that the system has to work and we have to keep it moving and as long as everybody understands those things.

I haven't had any major problems along those lines. You know, you've always got things that would come up that you have to work through.
Q. Judge, one of the major things addressed by the Judicial Canons of Ethics is avoiding the appearance of impropriety, avoiding ex parte communication, avoiding the impression that there is bias in the courtroom. Those are all different subjects, but they seem to be interrelated at least to some degree. How do you handle that? How do you avoid those pitfalls?
A. I guess where it arises most frequently is if an attorney simply gets on the phone and calls the court, advises me of a problem, a scheduling problem or something like that. I have now developed a policy in my office that I normally will not take a phone call from one attorney. I simply require a conference call be made, so that nobody can complain that somebody has called.

If the attorney in talking to my secretary or law clerk has already communicated with another attorney and in a county like Laurens or Newberry or Greenwood where you pretty much know the members of the bar, if they communicated to another attorney and he had no objection that lawyer calling and saying that we've agreed on this, is that okay, I will talk with that one, but normally I will require a conference call or simply will not take it. Preferrably letter or something in writing or fax, copies to everyone.

That's how I normally communicate within the County. And I don't think anybody would complain about that.
Q. In the area of avoiding the impression that there might be bias on your part -- I have not gone back and looked and seen if there were occasions where you may have been called on to recuse yourself, so I'm

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speaking of no specific example, but more of a question of your philosophy. If someone were to come before you and ask you to recuse yourself, what is your general standard and approach to that? And if you care to relate a specific example, that's fine, but mainly it's just a question of philosophy.
A. I'll give you two, one where I did recuse myself and where I did not and I think it depends on the circumstances of each case. If I've got any hesitancy at all, then I'm going to recuse myself. There is no sense -- I mean the problems you create by doing that, the impression that you give those litigants of the judicial system, it's not worth the problems you create.

One, when I first went on the bench and I held a good bit of court in generally the Pee Dee area and one of the counties there, I don't remember which one it was, interestingly enough, Thornwell Home which is a local institution in Clinton was involved in -- I think it was a will contest. The attorneys arrived, the motion was made that I recuse myself. I have no financial interest nor never represented them when I practiced, but they've got a program where families sort of take one of the children there under their wing. My wife and I participate in that. I recused myself.

There was an occasion in Greenwood County where I was the Post Conviction Release judge and granted a petition for -- allowed a new trial. That decision was appealed and affirmed and a new trial was granted. The victim in the case, the Solicitor at her insistence asked that I recuse myself from being the trial judge. I could find absolutely no reason.

Now, there is a rule on a case -- I think it's by case -- that if you are the trial judge, you cannot be the Post Conviction Release judge. The Rule does not work in reverse. I did not recuse myself. He had another trial. He was convicted again. But, anyway, two specifics examples of that having come up.
Q. Judge, in the case of electing judges in South Carolina, there has been some criticism made that there -- it sets itself up for lawyer-legislator to somehow receive preferential treatment in their trail of cases before judges.

I have listened to many attorneys here in the General Assembly and they say it's quite the opposite. Sometimes folks tend to go too far the other way in trying to avoid that appearance of impropriety.

I ask this as a general question and, once again, you're the first person I've come to and folks will see it repeated throughout the day. If someone had been instrumental in your being elected to a judge -- judgeship, whether they had, call it, managed your election or were one of your key

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supporters or sponsors or perhaps had been a political sponsor before you ran for a judgeship and they were an attorney, how would you handle that situation if they were a litigant -- an attorney -- a litigant's attorney before you and someone made that motion?
A. If someone actually made a motion that I recuse myself because of that relationship?
Q. Right.
A. I, again, depending on the circumstances of the case, if the person was insistent, if I had any hesitancy at all, I would recuse myself simply because a lawyer-legislator appears in front of me, no. And I had that motion made as -- I think it's in Florence County. Or in that circuit. There is one attorney I think who --
Q. It's a standard --
A. -- customarily makes that motion when a lawyer-legislator is involved on other side. I think what few lawyer-legislators have appeared before me would indicate that I have been very evenhanded. They aren't treated any better or any worse.

We do -- my local senator is a lawyer also. I have no idea how he would respond, but I do not feel like I have given him any preferential treatment. It simply would not be proper.

As far as the system of electing judges, I don't think -- I have had the benefit of going to the National Judicial College in Nevada and having met judges from all over the country, the systems that they have, I don't think that there is any system that is any better than South Carolina's electing the judges.
Q. Could you imagine any circumstance where a lawyer-legislator because of a peculiar or extraordinary personal relationship with you, you would probably be called upon to recuse yourself?
A. Well, if you have any kind of a business relationship with that individual, obviously. If I had any hesitancy because of a close personal relationship or something like that, again, I wouldn't hesitate to recuse myself. I don't foresee that happening, though.

Well, I -- there is one former member of the legislature who does practice law that I would recuse myself from any participation by that attorney simply because of his being a --
SENATOR SALEEBY: Mr. Couick?
MR. COUICK: Yes, sir.
SENATOR SALEEBY: I might mention in the Pee Dee, I very seldom am ever in court now, but that particular lawyer makes that motion in every case if any member of my firm appears in any case that he's involved in, so I mean that's --

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A. As I understand it --
SENATOR SALEEBY: No one has ever granted it.
A. -- it's a standard motion over there.
SENATOR SALEEBY: He tries to keep everybody from practicing law, but -- no one has ever taken -- given that much concern.
Q. You had mentioned in your answer to the Personal Data Questionnaire that you had been substantially involved with the YMCA Board of Directors and the chairman of that. I would note for the record that you've indicated that involvement, particularly any fund-raising involvement was before you were put on the bench?
A. That's correct. And I'm not a member of that board any longer.
Q. Judge Johnson, you have reported no money being spent on your Ethics filings with us or you made no filings with the House and Senate Ethics Committees and that your indication is you've spent no money in this campaign other than the cost of travel or whatever. Does that continue to be the case through today?
A. That is correct. Other than what I've -- gas I put in my car to come down here.
Q. Judge, finally as what we became last spring when this process was somewhat changed, there was a request of all candidates that they pledge that they had not sought a legislator's vote prior to the completion of the Screening Process regardless of whether the pledge sought was conditional or not.

In addition, they asked because of the change of the law that you've not requested any person to contact any members of the General Assembly to even ask for your consideration prior to the Screening Process being complete.

Essentially, what the pledge is is that you've complied with the law as it relates to direct solicitation by yourself or pledges before Screening ended and any type of solicitation or consideration by third parties. I ask you today, have you complied with the law as it relates to the seeking of pledges?
A. Totally and absolutely. Yes, sir.
Q. Thank you, Judge. Mr. Chairman.
THE CHAIRMAN: Any members have any questions? It seems you've answered all the questions for him. As I said earlier to you, we miss having you up here.
A. Well, I miss the people.
THE CHAIRMAN: I'm not going to ask you if you miss us. I mean -- it's good to have you with us today. Thank you.

Printed Page 96 . . . . . Thursday, January 13, 1994
We now move to the judge of the Eleventh Judicial Circuit, the Honorable William Keesley, if you would come forward. Good morning.
JUDGE KEESLEY: Good morning, Mr. Chairman.
THE CHAIRMAN: I won't ask you the question either, do you miss all of us, put you on the record. If you'd raise your right hand, please, sir. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
JUDGE KEESLEY: I do.
THE CHAIRMAN: Thank you. Have a seat. I note that your last screening was on March the 28th, 1991 or thereabouts. Have you had a chance to review the Personal Data Questionnaire Summary?
JUDGE KEESLEY: Yes, sir, I have.
THE CHAIRMAN: Do you know whether or not it's correct? Does it need any clarification or anything?
MR. KEESLEY: The only thing I know this morning -- I had looked at it before and didn't catch it. On Number 25, there is a typographical error. The word "to" inserted before school. I think that needs to be deleted. Other than that, it's fine.
THE CHAIRMAN: We will make that correction for you. Do you have any objection to us making the summary a part of the record of your sworn testimony?
JUDGE KEESLEY: No. I, like Judge Johnson, was asked to clarify a couple of things and I submitted that in written form this morning, so with that clarification, no, sir, I have no objection whatsoever.
THE CHAIRMAN: Thank you, sir. And I understand Staff informs me they have received those clarifications and they will be incorporated therein. And I would ask at this point, his summary be inserted into the record.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. William P. Keesley
Home Address: Business Address:
P. O. Box 75 P. O. Box 75
Stonehenge Circle 129 Courthouse Square
Edgefield, SC 29824 Edgefield, SC 29824

2. He was born in Augusta, Georgia on May 10, 1953. He is presently 40 years old.

Printed Page 97 . . . . . Thursday, January 13, 1994
4. He was married to Linda Faye Black on May 22, 1976. He has one child, Kyliene Lee, age 14.

5. Military Service: None

6. He attended Wofford College, 1971-1975, B.A. in Government; and the University of South Carolina School of Law, 1975-1978, J.D.

8. Legal/Judicial education during the past five years:
Continuing legal or judicial education over the past five years has included programs on ethics, alternative methods of resolving disputes, computerization, updates on various aspects of law, completion of a four- week intensive general jurisdiction course at the National Judicial College, completion of the new judges' course coordinated by Justice Chandler and held at the South Carolina Bar, and courses in specific fields of torts.

9. Courses taught or lectures given:
(a) Panel member at Continuing Legal Education program sponsored by the South Carolina Solicitors' Association Convention at Myrtle Beach, South Carolina in the fall of 1989, regarding proposals/new legislation in the area of criminal law;
(b) Panel member at Pre-Trial Intervention Seminar in Destin, Florida, 1989.

12. Legal experience since graduation from law school:

11/78 - 10/80 Associate with John F. Byrd, Jr., Esquire, Edgefield, South Carolina. Practice was general in nature, primarily real estate law.

10/78 - 6/83 Associate with J. Roy Berry, Esquire, Johnston, South Carolina. Practice was very general in nature, from 1982-1983, mainly domestic relations.

6/83 - 8/91 Sole practitioner in Johnston, South Carolina. General practice.

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1983-1987 Served as part-time Public Defender for Edgefield, McCormick and Saluda Counties
1988-1989 Served as part-time Solicitor for the Eleventh Judicial Circuit. Served as Town Attorney for the Town of Johnston (1983-1989).

13. Rating in Martindale-Hubbell: He has never requested a rating from Martindale-Hubbell. During the time that he practiced law, he stopped subscribing to it before 1983, because they used it so infrequently in their practice.

20. Judicial Office: Resident Judge of the Eleventh Judicial Circuit of South Carolina since August 13, 1991. Elected by the South Carolina General Assembly. The position is a court of general jurisdiction.

21. Five (5) Significant Orders or Opinions:
(a) S. C. Tax Commission v. Gaston Copper Recycling Corp., et al., 92-CP-32-0503.
Case dealing with disclosure of documents under Freedom of Information Act. Gaston Copper sought reduction of property tax valuation from $58 million to $7.8 million. The county, school district, and newspapers sought documents. On appeal.
(b) Orangeburg Sausage Company v. Cincinnati Insurance Co., et al., 90-CP-38-480.
Involved bad faith failure to pay insurance benefits under casualty policy for business which suffered losses in Hurricane Hugo. Verdict of $2.4 million. On appeal.
(c) Calcaterra v. City of Columbia, Opinion No. 2034, S. C. Court of Appeals, Filed June 21, 1993.
Property owners challenged the authority of the City of Columbia to charge higher water rates to locations which were outside the city limits. Affirmed on appeal.
(d) Parrish v. Koontz, 92-CP-23-209 & 210. Appealed to the S. C. Supreme Court as Ex Parte: The South Carolina Farm Bureau Mutual Insurance Company, ___ SC ___, 413 S.E.2d 252 (1993).
Case decided a novel issue in this state as to whether Section 38-77- 160, dealing with underinsurance coverage, was a notice statute or a statute of limitations.

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(e) Oglesby v. Burhenne, 91-CP-10-5242.
He felt this case was significant because the Court was faced with a situation in which the parties had created a factual nightmare, and it was a situation where the Court had to use common sense to force a resolution of the dispute.

22. Public Office: He has been a member of the South Carolina House of Representatives, District 82, November, 1988 through August 12, 1991.

24. Unsuccessful candidate: He was defeated in a special primary election in February, 1987, for the South Carolina House of Representatives, District 82, seeking to fill the unexpired term of the Honorable Joe F. Anderson, Jr.

25. Occupation, business or profession other than the practice of law:
None other than part-time or summer employment while attending school.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
None known. If any should arise, he intends to disclose the conflict of interest and recuse himself from the matter.

37. Lodging, Transportation, Entertainment, Food, Meals, Beverages, Money or Any Other Thing of Value From a Lobbyist or Lobbyist Principal
No (Since having been elected Judge in 1991, he has attended conventions of the South Carolina Trial Lawyers, and he has attended functions of the South Carolina Bar and attended school at the Bar's expense.)

45. Bar Associations and Professional Organizations:
South Carolina Bar; Edgefield County Bar Association, President (1985), Treasurer (1983- present); Tri-County Bar Association (Edgefield, McCormick, Saluda Counties)

46. Civic, charitable, educational, social and fraternal organizations:
Member of the Edgefield United Methodist Church, Sunday School Teacher and Associate Lay Leader, having been designated as the

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