South Carolina General Assembly
110th Session, 1993-1994
Journal of the Senate

Friday, January 14, 1994

(Local Session)

Indicates Matter Stricken
Indicates New Matter

The Senate assembled at 11:00 A.M., the hour to which it stood adjourned and was called to order by the ACTING PRESIDENT, Senator COURSON.

REPORT RECEIVED

JOINT LEGISLATIVE COMMITTEE

FOR JUDICIAL SCREENING

TO: The Clerk of the Senate

The Clerk of the House
FROM: Glenn F. McConnell, Chairman

Judicial Screening Committee
DATE: January 11, 1994

In compliance with the provisions of Act No. 119, 1975 S.C. Acts 122, it is respectfully requested that the following information be printed in the Journals of the Senate and the House.

Respectfully submitted,
/s/Glenn F. McConnell, Chairman
/s/Rep. James H. Hodges, Vice-Chairman /s/Rep. M. O. Alexander
/s/Senator Thomas L. Moore /s/Rep. Donald W. Beatty
/s/Senator Edward E. Saleeby /s/Rep. C. Lenoir Sturkie
/s/Senator John R. Russell

The Screening Process

Pursuant to Act No. 119 of 1975, this Committee has considered the qualifications of candidates seeking election to the positions of Judge of the Third Judicial Circuit, Judge of the Fourth Judicial Circuit, Judge of the Fifth Judicial Circuit, Judge of the Seventh Judicial Circuit, Judge of the Eighth Judicial Circuit, Judge of the Ninth Judicial Circuit, Judge of the Eleventh Judicial Circuit (two seats), Judge of the Twelfth Judicial Circuit, Judge of the Thirteenth Judicial Circuit, Judge of the Fourteenth Judicial Circuit, and Judge of the Circuit Court At-Large, Seat #2.

The Judicial Screening Committee is charged by law to consider the qualifications of candidates for the Judiciary. When notice is received that an individual intends to seek election or reelection to the Bench, the Committee conducts a thorough investigation of the candidate. The Committee's investigation includes a review of the candidate's scholastic, employment, and financial history and, in particular, focuses on the candidate's adherence to a strong code of ethical behavior, be it to the Rules of Professional Conduct governing the attorneys practicing in South Carolina, the Code of Judicial Conduct regulating the activities of all judges in South Carolina, or the more generally accepted, but unwritten, rules of fairness and respect which should govern interaction between all of this state's citizens.

While Act 119 restricts this Committee to making findings of qualification or non-qualification, the Committee views its role to also include the obligation to consider candidates in the context of the judiciary on which, if they are elected, they will serve and, to some degree, govern. To that end, this Committee has inquired as to the quality of justice delivered in the courtrooms of South Carolina and has sought to impart, through its questioning, the view of the public it represents as to matters of judicial temperament, concern for an informed Bench, and the absoluteness of the Judicial Canons as to recusal for conflict of interest, prohibition on ex parte communication, and the disallowance of the acceptance of gifts. The Committee has also sought to impart its view that good temperament is an essential quality of a judge. Justice can surely prevail when a judge is courteous to litigants and lawyers alike. The Committee reiterates its displeasure with those candidates who strain the no pledging rule so as to come to the Committee with a "lock," albeit an informal one, on a judgeship. The Committee weighs heavily such activity in determining compliance with the 1991 ethics legislation and, hence, the qualification of a candidate.

TRANSCRIPT OF HEARING OF NOVEMBER 17, 1993

THE CHAIRMAN: I am going to call the Committee to order. This Screening Committee is pursuant to Act 119 of 1975 requiring the review of candidates for judicial office. The function of the Committee is not to choose between candidates, but rather to declare whether or not the candidates who offer for positions on the bench are in our judgment qualified to fill the positions.

The inquiry which we undertake is a thorough one. It involves a complete personal and professional background check on every candidate. The candidate is investigated by the South Carolina Law Enforcement Division, including courtroom records. A Statement of Economic interest is required. We receive a credit report. We receive reports from the Board of Commissioners on Grievances and Discipline with respect to attorneys and judges who are offering and from the Board of Commissioners on Judicial Standards with respect to sitting judges. The candidate's Personal Data Questionnaire details the personal history and professional experience and contains five letters of reference.

We are here today for the purpose of screening candidates for the following seats: Circuit Court: Third, Fourth, Seventh, Eight, Ninth, and Eleventh, Twelfth, Thirteenth and Fourteenth; Circuit Court Vacancies: the Fifth, the Eleventh and At Large, Seat Number 2.

We are -- because of certain complications and everything, I would ask the Members to move in their book, we're going to take some of them out of order because of the schedule, if that's okay with you.

We call first on the judge of the Eighth Judicial Circuit, the Honorable James W. Johnson, Jr.
JUDGE JOHNSON: Mr. Chairman, do you want me here?
THE CHAIRMAN: To the left, please, sir.

If you would raise your right hand, sir. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
JUDGE JOHNSON: So help me God.
THE CHAIRMAN: Thank you. I note that your last screening was on December the 5th, 1991. Have you had a chance to review the Personal Data Questionnaire Summary?
JUDGE JOHNSON: Yes, sir.
THE CHAIRMAN: Is it correct or does it need any clarification?
JUDGE JOHNSON: To the best of my knowledge, with the -- there was supplemental information that was submitted last week as a result of a letter for Mr. Couick. It is complete as far as I know, yes.
THE CHAIRMAN: The Staff nods their head, says they agree with you, so is there any objection to us making this summary a part of the record of your sworn testimony?
JUDGE JOHNSON: Not at all.
THE CHAIRMAN: I would direct at this point that that be inserted into the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. James William Johnson, Jr.
Home Address: Business Address:
208 York Street Laurens County Courthouse
Clinton, SC 29325 P. O. Box 367
Laurens, SC 29360

2. He was born in Clinton, South Carolina on August 16, 1951. He is presently 42 years old.

4. He was married to Jean Katherine Mangum on June 16, 1973. He has four children: Ryan William, age 16; Austin Michael, age 14; Katherine Marie, age 12; and Elizabeth Leigh, age 9.

5. Military Service: N/A.

6. He attended the University of South Carolina, 1969-1973, BS Economics; and the University of South Carolina School of Law, 1973-1976, JD.

8. Legal/Judicial education during the past five years:
He has complied with the continuing education requirements as a practicing attorney and as a judge. In addition to attending the requisite CLE seminars in South Carolina, in April-May of 1992 (after becoming a judge), he completed the General Jurisdiction course at the National Judicial College and received 82.5 hours credit for continuing judicial education.

9. Taught or Lectured: In 1981, he spoke at a continuing education seminar sponsored by the South Carolina Bar. The subject was Administrative Law, and his topic was the Administrative Procedures Act.

10. Published Books and Articles: He did issue a number of Attorney General opinions as an Assistant Attorney General on a variety of topics.

12. Legal experience since graduation from law school:

August, 1976 - November, 1981: Assistant Attorney General for State of South Carolina. Consumer fraud, representation of public before Public Service Commission, representation of various state agencies, including Dairy Commission, Department of Consumer Affairs, and Parks, Recreation and Tourism; civil litigation, including tort claims and highway condemnation throughout state.

November, 1981 - February, 1983: Sole practitioner in Clinton, South Carolina, with a general practice, both civil and criminal, in all state courts
February, 1983 - December, 1988: Partner in firm of Blalock & Johnson in Clinton, South Carolina; general practice, both civil and criminal, in all state courts and federal courts

December, 1988 - March, 1992: Sole practitioner in Clinton, South Carolina, with a general practice

March, 1992 - present: Circuit Court Judge, Eighth Judicial Circuit

13. Rating in Martindale-Hubbell: As a member of the judiciary, he is not currently rated. His last rating was BV.

20. Judicial Office:

1983-1984: Appointed Assistant City Recorder by City Council for City of Clinton, South Carolina. Jurisdiction over violations of city ordinances and the penalty could not exceed $200/30 days.

March, 1992 - present: Elected Circuit Court Judge by South Carolina General Assembly to fill unexpired term of Honorable James E. Moore, elected to South Carolina Supreme Court. Trial court of general jurisdiction, civil and criminal, and term expires July 1, 1994.

21. Five (5) Significant Orders or Opinions:
(a) Scott, et al. v. Allison Boats, Inc., et al., 92-CP-36-322
(b) Bookman v. Shakespeare Company, et al., 92-CP-36-100
(c) Linder, et al. v. Campbell, 90-CP-42-2297
(d) Hopkins v. Chickasaw Processing Company, Inc., et al., 93-CP-24-054
(e) State of South Carolina v. Wyatt, Laurens County General Sessions dated September 25, 1992

22. Public Office: He was elected to the South Carolina House of Representatives in November, 1984, District 15, and served in that capacity until March 5, 1992.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
He is a partner in a partnership that owns an apartment. If this partnership became involved in litigation, he would recuse himself.

45. Bar Associations and Professional Organizations:
Laurens County Bar Association, President (January, 1991 - May, 1991), Vice President (1990); South Carolina Bar Association; former member, South Carolina Trial Lawyers Association and American Bar Association

46. Civic, charitable, educational, social and fraternal organizations:
Clinton YMCA, Board of Directors (1990-1992), Chairman of Personnel Committee (1990-1992); First Presbyterian Church, Session (1978-1990, 1991-present)

48. Five (5) letters of recommendation:
(a) Charles T. Copley, Vice President
The Palmetto Bank
P. O. Box 513, Clinton, SC 29325
833-7761
(b) Joe W. B. Brooks, Pastor
First Presbyterian Church
P. O. Box 29, Clinton, SC 29325
833-1062
(c) Kenneth B. Orr, President
Presbyterian College
Clinton, SC 29325
833-2820
(d) A. Milling Blalock, Esquire
P. O. Box 724, Clinton, SC 29325
833-0228
(e) Claude A. Crocker
Clinton Mills
P. O. Drawer 1215, Clinton, SC 29325-1215
833-5500

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
March 6, 1992-present, Circuit Court Judge, Eighth Judicial Circuit

10. Extra-Judicial Community Involvement:
Except for his position as Elder in his church, he has resigned from other advisory boards, etc. To his knowledge, he has never used his judicial office to further any interest.

The Board of Commissioners on Grievances and Discipline reports that there no Formal Complaints of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you.

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 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.

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 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 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 --
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.

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.

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.

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.
(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 Lay Leader for the upcoming year; Member, South Carolina Circuit Judges Association, Secretary of the Association (1991-present); Mason, Concordia Lodge # 50; Jaycees, currently serving as Acting President of the Edgefield Jaycees (formerly served as a state Vice President and Legal Counsel, and has held the office of President and Chairman of the Board on two previous occasions for the local chapter. Received numerous honors, including being designated as a JCI Senator, the highest honor bestowed by Jaycees International); March of Dimes, Chairman of 1990 WalkAmerica; American Cancer Society, Steering Committee for ACS Golf Tournament; Edgefield County Bar Association, Treasurer since 1983; Tri-County Bar Association (Edgefield, McCormick & Saluda); Board Member of the Greenwood, Edgefield, McCormick Commission on Alcohol and Drug Abuse until election to the bench. He is not certain of the dates, but he believes that in the past five years he has served on the local Board of Directors of the Boy Scouts and assisted the local Dixie Youth Baseball organization.

47. He feels that his background as a general practitioner in a rural county, handling a variety of cases for all types of clients has been an advantage in serving on the bench and resolving cases of different types. He also thinks that his service as a Public Defender, Assistant Solicitor and public office holder has been extremely beneficial. The training, education and experience gained over the past two years on the bench has taught him a great deal. He has tried very hard to serve diligently and to treat everyone with patience and respect. It has been his practice to try to establish a professional and courteous relationship with jurors and be very attentive to their time, and to do everything within his power to assist the Clerks of Court in the performance of their duties. It has been a very humbling and gratifying experience, which he hopes to continue.

48. Five (5) letters of recommendation:
(a) John M. Delaughter, Jr., Assistant Vice President
South Carolina National Bank
P. O. Box 528, Edgefield, SC 29824
637-3117
(b) Rev. Neil Malone Yongue, Jr.
Trinity United Methodist Church
P. O. Box 59, Blythewood, SC 29016
786-1637
(c) Honorable C. David Sawyer, Jr.
Judge of the Family Court of the Eleventh Judicial Circuit
P. O. Box 691, Saluda, SC 29138
445-9586

(d) G. W. Rauton, III, DVM
Johnston Animal Hospital
P. O. Box 326, Johnston, SC 29832
(e) Thomas C. Brittain, Esquire
Hearn, Brittain & Martin, P.A.
4614 Oleander Drive, Myrtle Beach, SC 29577
449-8562

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
Resident Judge, Eleventh Judicial Circuit, employed August 13, 1991, to present

10. Extra-Judicial Community Involvement:
He is involved in the Jaycees and the Edgefield United Methodist Church. He is a member of Concordia Lodge #50. While he tries to project a positive image of the judiciary in his community actions, he has never used his judicial office to further any such interests.

The Board of Commissioners on Grievances and Discipline reports no Formal Complaints of any kind have ever been filed against you.

The Judicial Standards Commission has no record of reprimands against you.

The records of the applicable law enforcement agencies: Edgefield County Sheriff's Office, are negative; Edgefield City police department is negative; SLED and FBI records are negative. Judgment Rolls of Edgefield County are negative. Federal court records are negative.

No complaints or statements have been received by the Committee and no witnesses, I understand, are present to testify and with that, I'll turn it over to Mr. Couick and ask him to ask you a few questions.
JUDGE KEESLEY - EXAMINATION BY MR. COUICK:
Q. Good morning, Judge.
A. Good morning.
Q. If you can't hear me or anything, please, let me know. Judge, as with Judge Johnson, the survey results of your circuit, the Eleventh Circuit, were just tremendously positive on your service and this is the completion of a partial term that you've just finished.
A. Yes, but I've been on the bench a little longer than two years.
Q. They have widely endorsed your reelection. One of the -- really the only concern that was raised by these surveys on any consistent pattern was a question that you perhaps were one of the more conscientious judges in the state for the consideration of orders and that perhaps docket did not control as it may in some case -- courtrooms and that the production of orders were drawn and perhaps you were too slow in the production of orders.

I ask that not as a criticism, but I ask how do you approach courtroom management and how does that effect the production of your orders in complying with Court Administration and others for the flow of things through your court?
A. In all honesty, I think that's a legitimate criticism. The problem that -- I have a problem delegating things. I do most of the orders myself, which I think is an exception. We have not been provided computer resources and I've had a great deal of problems with my own computer. I generally do those on my own.

I am changing in that as I -- I know I've learned a lot. The difficulty I had with the attorneys drawing orders is that too often what I would get would be an advocate's order. I wouldn't get an impartial order. I wouldn't get an order from the view of someone who as a judge was sitting there impartially hearing both sides.

What I would get was an order that was too far on one side or the other and so I do a lot of those myself. I have made some changes in that process. I have tried now to streamline what I do. It goes in certain spells.

I must confess to you, I have this strong opinion that if attorneys give me documents that they've prepared to read, I read them and sometimes when you get a series of complex cases, it takes quite awhile to do all that reading, but I have been more attentive to that.

I recognize that as a valid criticism and self-criticism I have made as well. I'm trying now to do orders which just reflect findings of fact and ask the attorneys to pledge those out for me. I think they're more productive in this form. I'm more productive in this form.
Q. I take it, Judge, that you don't necessarily disagree that your approach to this is correct, you still believe strongly from what you've just said that it's appropriate at least in your case to have a heavy participation in the drawing of orders?
A. I certainly do. Of course, it depends on how many nonjury terms you draw. If I don't have many nonjury terms, believe me, I try to rule from the bench as much as I possibly can. I try to take as few of cases under advisement as I possibly can. But if you draw a series of nonjury terms, I don't care who you are, you're going to fall behind if you -- if you read what's given to you. Particularly in metropolitan areas like in the Midlands and other areas, you draw those non jury terms very fairly consistently. You're going to have some problems.

We don't -- I am told that judges in South Carolina sit on the bench more than judges in other states, that we have fewer weeks that we're assigned to our offices and fewer administrative weeks and things of that nature. And when you're on the bench, you can't get a haircut, you can't go to the dentist and you can't be reading things that lawyers have submitted to you.
Q. Judge, have you enjoyed your service for the past couple of years?
A. Very, very much.
Q. I ask the same question I asked Judge Johnson, are you committed to fully serving through this term if you're reelected?
A. Yes, sir. I certainly am.
Q. The Supreme Court Rules for judges require 15 hours of JCLE every year. Have you met that requirement each year?
A. Yes, sir. We -- we generally are required to go through the seminars. I have found many of those to be extremely good. I know we got a little criticism for going to Hickory Knob for a seminar. I thought it was some of best -- the best educational experience I had ever had was at that seminar at Hickory Knob and very practical.

There was a lot of things that we deal with every day about mediation and arbitration which is something I think is critical for us to be able to move dockets. I alluded to that earlier in the question about preparing orders. Just a great many things that we're exposed to there plus we don't have much of an opportunity just to talk with other judges about shared experiences and it's unbelievable how much benefit that gives. So JCLE is essential.

The Bar sent us out to Nevada to a Judges school. It's rigorous. It is extremely good. I benefited from that very much.
Q. Judge, you noted in your Personal Data Questionnaire Addendum, Question Number 11, that you would handle some of the problems inherent in ex parte communications by allowing your law clerk to schedule cases and handle administrative discussions with attorneys. And I'm summarizing your answer and if I have summarized it incorrectly, please tell me. What type of instructions do you give your law clerk to guide him to avoid any problems with bias or -- that may be inherent in ex parte communication and how in turn do you check that?
A. I'm very fortunate in that I have a law clerk that has been a law clerk for three years. He's extremely bright and he knows full well he stands in my shoes. He sets up all the hearings, all the motions.

I really -- we have had conversations, but in all honesty, I don't have to instruct him on anything because he gets instructions himself. He has told me before and I've heard him tell lawyers on the phone, "I can't discuss that with you. I have -- I stand in the shoes of the judge."

If I get a lawyer on the phone who calls and I pick up the phone and answer it, I just tell him I can't discuss that with you. I mean I don't know how practically you can do anymore than just tell somebody no.
Q. Right.
A. We -- I can assure you that every judicial conference we go to to attend, that is on the agenda. Ex parte communications are discussed at every single one of them and we're very much aware of the problem and try to do everything within our power to avoid any appearance of impropriety. Sometimes lawyers will just innocently walk into my office and sometimes I'll just leave. I won't create a confrontation. I just leave. But my law clerk knows what to do.
Q. Judge, how do you handle matters that come before you and there is a motion for recusal? It's the same question I asked Judge Johnson earlier. What's your standard? What's your philosophy on that?
A. I cannot recall having been asked to recuse myself, but I have recused myself a good many times. I have a strong opinion that you have to avoid even the appearance of impropriety. What I will usually do is tell the attorneys what my concern is.

I have recused myself because of votes I made in elections. I have recused myself in cases where I had close personal friends. In one case I knew that the attorneys were from far off and his lawyer lives far off, but he and I were roommates. We were in each others wedding. I knew the other side didn't know that. I called him up and told him that and recused myself. Much to the consternation of my roommate, but it -- anytime I -- the last term of court we had in Edgefield County, Judge Baggett was basically doing recusal cases.

I think I had three that he went in and tried because I had recused myself. If there is an appearance of impropriety or if there is some concern, I try to avoid it and go the extra mile in all honesty.
Q. Lawyer-legislators that appear before you, the question was asked earlier, is that always the time for recusal or is it -- are there special circumstances where a particular type of legislator would be -- you would be called upon to recuse yourself? Have you had that situation or have you been able to apply your philosophy to that situation?
A. I have directed verdicts against lawyer-legislators. I have ruled against them. There may be a situation on an individual case because of a personal relationship or if a favor was ever done for me that I felt was warranted and in the divulging, I would do that, but in all honesty, I don't recall any problem developing.

I never remember sitting up there thinking if I rule against this person, they're going to vote against me. It just doesn't cross my mind. I try to treat those people fairly and the other side fairly and it just comes down, the way it comes down.
Q. Judge, you have not filed with the Senate or House Ethics Committees any report of campaign expenditures that you know on your form. The reason for that is that you've not spent any money other than for travel. Does that continue to be the case through today?
A. I haven't done any campaigning. The only thing I've done was have the expenses and complete the form. I will note that I did those at my own expense on my own typewriter and went to Kinko's and made copies.
Q. And, Judge, also for the record, I would note that you had originally noted significant involvement with various charitable and civic organizations in your community including the Jaycees and March of Dimes and the American Cancer Society, Boy Scouts and Dixie Baseball. You note that you continue to have involvement with some of those organizations, but you're not involved in fund-raising; is that correct?
A. I've never done any fund-raising since coming on the bench and the Jaycees, I'm still active in the Jaycees, but I told them several times in the meetings that I cannot do any fund-raising and have not done any. All of the stuff with the American Cancer Society, March of Dimes and all of that was prior to my election to the bench.
Q. And finally, Judge Keesley, the question is pledging in your compliance with the law. We're mainly focusing on have you sought any pledge from any member of the General Assembly to this day or have you asked any other person to ask a Member of the General Assembly to consider you to this day?
A. No, sir.
Q. Thank you. No questions, Mr. Chairman.
THE CHAIRMAN: Any Members of the Committee have any questions? I just have one I should have asked earlier and kind of question the Senator Pope instituted and I thought it was a good question. It's the old term of Robitis and judicial manners and everything. What's your feeling about judicial temperament?
A. The last time I went through Screening in all honesty, I thought that was the focus was trying to make sure you didn't get someone on the bench who was going to develop Robitis.

I will tell you that sometimes it is difficult to be patient, but I have done everything within my power to treat everybody fairly and honestly. The Screening Committee of the Bar asked me the question about what judges may have influenced me and why and I had Judge Timmerman who was a former governor of this state do the ceremonial swearing in for me and the reason I chose him was because Mr. Timmerman, he just treated particularly young lawyers fairly.

When you're young and you're in a courtroom and you know you're making gobs of mistakes, he didn't jump on you and dress you down in front of your client and everybody else. He would tell you privately back in chambers or what have you. I have tried to adhere to that the best I can.

Sometimes you have to be the heavy. Sometimes people will push you. But I've done everything in my power to not develop Robitis and as a matter of fact when I was sworn in, that was sort of the theme of my speech and I told them making an analogous to threads in the robe and if anybody ever saw a loose thread in my robe to just come and tell me about it. So I invited that criticism. I've gotten very favorable comments. Hopefully, they're telling me to my face what they're saying behind my back.
THE CHAIRMAN: I appreciate your candor and your attitude. Being no further --
SENATOR SALEEBY: Mr. Chairman?
THE CHAIRMAN: Senator?
SENATOR SALEEBY: Of course, the Bar report was published in the newspaper. Are we going to make their report a part of our record here?
MR. COUICK: Mr. Chairman, one of the concerns of the Staff and we had some administrative matters, that was one of them, if you'll defer them until Mr. Hodges is here.
SENATOR SALEEBY: Okay.
MR. COUICK: There was some question because it was Summary as to whether it would be appropriate to include that in the actual report. I understand the Bar has released that to the press. They've released it to the candidates. They've released it to all Members of the General Assembly.

I -- it was very, very positive this time and again I'm not broad brushing against all candidates, but I don't know if the candidates would have a chance to ask any more questions about the findings of the Bar. And your counsel had some concern about including it in the record for that reason.
THE CHAIRMAN: Thank you, sir. It's a matter we're probably going to have to take a look at. Does that answer your question --
SENATOR SALEEBY: Yes, sir.
THE CHAIRMAN: -- without answering it?
A. In my instance, if that's the desire, I have absolutely no reservations whatsoever and they did tell me that if there were criticisms, they would contact me and give me an opportunity to respond.
SENATOR SALEEBY: I don't think there is any criticism. That's why I thought it might be good for the record to have the Bar's recommendation.
THE CHAIRMAN: All right. Any further comments? I want to thank you for coming.
A. Thank you very much.
THE CHAIRMAN: And we appreciate your time and you and Judge Johnson, ya'll are free to go if you need to --
JUDGE JOHNSON: Thank ya'll --
THE CHAIRMAN: -- to your schedule. I should have told you that earlier.
JUDGE JOHNSON: Thank you very much.
JUDGE KEESLEY: Thank you.
THE CHAIRMAN: Thank you. We appreciate it. We'll revert, go back to the normal agenda that appears in the booklets and go back to the At Large, Seat Number 2 and just at point -- and I'm advised by staff, when you go looking, you need to go back toward the back of the book to find where we are. But we'll start with At Large Seat Number 2, Robert S. Armstrong. Mr. Armstrong, if you'd come forward, please, sir. Ya'll will find that on the third to the last in your book, tabs. Good morning, sir.
MR. ARMSTRONG: Good morning.
THE CHAIRMAN: 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.
MR. ARMSTRONG: I do.
THE CHAIRMAN: Thank you, sir. Have a seat. Have you had a chance to review the Personal Data Questionnaire Summary?
MR. ARMSTRONG: I have.
THE CHAIRMAN: Is it correct or does it need any clarification that you know of at this time?
MR. ARMSTRONG: It is correct with the additions to Question Number 16 which it wanted a percentage of cases that went to the jury and nonjury. I provided a written response to that with the breakdown.
THE CHAIRMAN: The staff informs me that they have that and that will be included. Is there any objection then to making this Summary with that addition a part of your record of your sworn testimony?
MR. ARMSTRONG: No objection.
THE CHAIRMAN: At this point, I'd ask that be put into the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Robert S. Armstrong
Home Address: Business Address:
P. O. Box 346 P. O. Box 2226
Seabrook, SC 29940 Beaufort, SC 29901

2. He was born in Laurens, South Carolina on August 12, 1956. He is presently 37 years old.

4. He was previously divorced on September 19, 1990; Robert S. Armstrong moving party; Family Court; Hampton, South Carolina; one year separation. He was married to Becky Williamson on May 25, 1991. He has two children: Christa Woodlief, age 13; and Matthew Woodlief, age 12.

5. Military Service: N/A

6. He attended the University of South Carolina, B.A., 1974-1978; and the University of South Carolina School of Law, J.D., 1979-1982.

8. Legal/Judicial education during the past five years:
He has attended continuing legal education classes regularly during the past five years. These courses have focused primarily on evidence, criminal and constitutional law.

9. Taught or Lectured: He has participated in the training programs of the Guardian ad Litem Volunteers and Rape Crisis. He has also spoken at various schools to students in his circuit.

10. Published Books and Articles: He has written an article for the South Carolina Trial Lawyer Bulletin on the Honorable William T. Howell to be published in October or November, 1993.

12. Legal experience since graduation from law school:

Law Clerk - The Honorable William T. Howell, 1982-1983
Public Defender - Allendale, Hampton and Jasper Counties, 1983-1985
Assistant Solicitor - 14th Judicial Circuit Solicitor's Office, 1985-1990
Deputy Solicitor - 14th Judicial Circuit Solicitor's Office, 1990-present

13. Rating in Martindale-Hubbell: Not rated

14. Frequency of appearances in court:
Federal - none
State - He has been in court almost every day that criminal court has been in session taking pleas, arguing motions or trying cases
Other -

15. Percentage of litigation:
Civil - 0%
Criminal - 90%
Domestic - 10%

16. Percentage of cases in trial courts:
Jury - 50%
Non-Jury - 50%

During his nine years of practice as a public defender and prosecutor he has, as chief counsel, tried at least 200 cases to completion before a jury.

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) State v. Emiah Anderson (Jasper County - Judge Floyd). This case was challenging to prove that a father killed his son then raped his daughter because the proof relied on the testimony of a young girl and circumstantial evidence.
(b) State v. Solomon Anderson (Beaufort County - Judge Brown). There was a mistrial because of a hung jury the first time that he tried this case. The case was especially important to law enforcement because a deputy's wife was raped. He was able to prove the Defendant's guilt by the wife's testimony and forensic evidence.
(c) State v. Ernest Williams, Darryl Oliver, Alvin Johnson (Beaufort County - Judge Howard). The Defendants were convicted of safecracking, burglary and drugs. The case was difficult because the defense had four lawyers and many constitutional and evidentiary questions were involved.
(d) State v. Wendell Crosby (Colleton County - Judge Howard). In this case the Defendant was convicted of Felony DUI. It was difficult to prove as there were no eyewitnesses, and the Defendant was paralyzed and had no memory of the wreck.
(e) State v. James McConnell (Dorchester County - Judge Fields). This case was significant to him, because he acted as a special prosecutor outside of his circuit. The Defendant was convicted of reckless homicide.

18. Five (5) civil appeals:
(a) Jasper County Department of Social Services v. William Bostic and Jackie Bostic, In Re: Jack Bostic and Daniel Bostic, Juveniles Under the Age of Seventeen
Ex Parte: Darrell Thomas Johnson, Jr.

The Supreme Court affirmed the lower court in Memorandum Opinion, No. 92-MO-181, filed July 6, 1992.

22. Public Office:
Assistant Solicitor, 14th Judicial Circuit, appointed 1985-1990
Deputy Solicitor, 14th Judicial Circuit, appointed 1990-present
40. Expenditures Relating to Candidacy:
$224.70; Budget Print; July 1, 1993
This expense was for the printing of resumes, a letter of introduction, and addressed envelopes, which he mailed to each member of the General Assembly announcing his intent to run for judge.

45. Bar Associations and Professional Organizations:
South Carolina Bar Association; American Bar Association; South Carolina Trial Lawyers Association; National District Attorneys Association; Beaufort County Bar Association

46. Civic, charitable, educational, social and fraternal organizations:
USC Alumni Association; Beaufort Yacht and Sailing Club
He has been the Stewardship Chairman, member of the Vestry and Lay Reader at All Saints Episcopal Church in Hampton.

47. His entire professional career has been spent in the courtroom. During this time, he has learned a great deal about trying cases and dealing with people. A part of this was developing the ability to listen well and communicate with others. He has learned that one can command respect without being arrogant. He believes that his ability to treat witnesses, bailiffs, court reporters, spectators, law enforcement officers and lawyers fairly would be his greatest asset as judge.

48. Five (5) letters of recommendation:
(a) Charles A. Laffitte, Jr., President
Palmetto State Bank
P. O. Box 158, Hampton, SC 29924
943-2671
(b) John E. Parker, Esquire
Peters, Murdaugh, Parker, Eltzroth & Detrick
P. O. Box 457, Hampton, SC 29924
943-2111
(c) Randolph Murdaugh, Jr., Esquire
Peters, Murdaugh, Parker, Eltzroth & Detrick
P. O. Box 457, Hampton, SC 29924
943-2111
(d) James H. Moss, Esquire
Moss & Kuhn
P. O. Drawer 507, Beaufort, SC 29901-0507
524-3373
(e) Perry M. Buckner, Esquire
P. O. Drawer 470, Walterboro, SC 29488
549-9544

The Board of Grievances and Discipline reports that no Formal Complaints have ever been filed against you.

Records of the applicable law enforcement agencies: Beaufort County Sheriff's Office, a negative; the Beaufort City Police Department is a negative; SLED and FBI records are negative.

Judgement Rolls of Beaufort County, a negative. Federal Court Records are negative. No complaints or statements have been received. To the best of my information, no witnesses are present to testify.

With that, I would ask you if you would answer any questions that Mr. Couick has for you at this time. Mr. Couick.
MR. ARMSTRONG - EXAMINATION BY MR. COUICK:
Q. Thank you. Mr. Armstrong, if you can't hear me, if you need anything, please let me know. Do you have a copy of your Personal Data Questionnaire with you?
A. Yes, I do.
Q. You may need to refer to that for a couple of questions that I have. Please briefly describe for the Committee, and I know you've described it in your PDQ, your work experience as an attorney kind of going through the positions that you've held since graduation from law school.
A. Right. Upon graduation from law school, I became a law clerk to the Honorable William T. Howell. I spent a year with him. After that, I became the first Public Defender for Allendale, Hampton and Jasper Counties. They handed me a budget and said here, start it from the ground up and I valued my experience with Judge Howell and working for that year getting to know the people in the Circuit otherwise there is no way I could have set it up.

After that, I had a chance to go with the Solicitor's office arose to work with Buster Murdaugh and I took that advance. I became an Assistant Solicitor with him and I am still with the Solicitor's Office and now serving as deputy solicitor with his son Randolph Murdaugh.
Q. In your experience since graduation from law school, just from listening to your description and from also reading through your Personal Data Questionnaire, I would imagine that an overwhelming percentage of your time has been put into the study and practice of criminal law?
A. That's correct.
Q. Obviously, as a Circuit judge, you're called upon to do a number of things that -- while some judges handle more criminal than others, you're called upon to know both civil and criminal law and to deal with such cases of both types. Could you tell the Committee how you would go about equipping yourself to handle both types of cases in the court?
A. I told the people at the South Carolina Bar when they questioned me that initially I would be as good as the other lawyers allowed me to be. If they come into court and they are prepared with pretrial briefs, then I'm going to be a good judge right off the bat. Otherwise, it's going to take a lot of hard work on my part which I'm willing to do.

During my time in the court, I had the opportunity as clerk for Judge Howell to observe a number of civil trials. During the criminal trials, I had to become familiar with all the Rules of Evidence, so I don't think it would be that difficult a transition.

Obviously, I'm not going to be as comfortable right off the bat in civil court as I am in criminal because I have been doing it for a number of years and I don't think there are any basic differences in the running of a trial in criminal court as it is in civil court. You're going to be bound by basically the same rules of evidence and I don't believe there would be any problem in my handling it.
Q. Have you tried -- give me, if you could, just kind of briefly describe the number of civil cases you have tried. You note a civil appeal in your --
A. That's an appeal from Family Court. I have not tried any actual civil cases. I've briefly worked on some forfeiture cases when that came to our office. I have done a number of cases for Family Court and DSS. Until recently, the Solicitor's Office had to represent the Department of Social Services and that's what that appeal is from.
Q. You note on your survey I believe that you have two children?
A. Yes.
Q. And they are, I believe, what, 12 and 14?
A. That's correct.
Q. And I take it that you have some responsibility from time to time for their maintenance and upkeep and just taking care of them?
A. Yes.
Q. I'd like to know would this interfere with your ability to perform the duties of this job?
A. No, it wouldn't. My wife is a professional. She's a nurse. We share responsibilities real well. On the days that I can't be there to do something for the kids, she is there. On the days she can't be there, I'm there and it's something here in the Solicitor's Office and the Fourteenth Circuit, we have five counties. Until just recently, I covered all those five counties, so traveling and being away and arranging a schedule isn't anything new. It's something that we have worked with.
Q. You heard Judge -- excuse me, Senator McConnell speak earlier to judicial temperament. For the folks that have sat on the bench, there is some way to gauge their pattern, their approach to this because of past performance and through the questionnaires we received comments back and from the two judges that just appeared, they were overwhelmingly positive about their approach to being a judge and the robes didn't weigh too heavily upon them.

It's hard to do that with a person who's a private practitioner because obviously they have to be a zealous advocate. It often brings them into confrontation with other attorneys. Compare your role as an attorney and the things you've had to do as a solicitor and some of the hard approaches you take, but how you would make that transition to being a judge and what you would -- and it might be a different way, to do a different manner?
A. I think being in a Solicitor's Office is very good preparation for being a judge for the simple reason that you're invested with a great deal of discretion and you've got to use that discretion wisely and if you wanted to, you could jerk around witnesses, police officers, defendants.

You have victims' rights groups you must deal with and you have plenty of opportunities to exhibit traits that wouldn't be good for a judge, so you have to learn to balance the interest of everybody you deal with in court whether it'd be scheduling times for witnesses to appear and scheduling time for police officers to appear, whether a bench warrant should be issued, whether a case should be continued.

I think that my strongest asset is being comfortable in court being able to deal fairly with people as they come into court.

I've been fortunate during my time in court to observe some very good judges who did not have Robitis. Judges that come to mind that I would love to model myself after is probably the top would be Richard Field. He's one of the best judges I know for showing that you don't have to be arrogant to command respect. I've worked with other real good judges---Judge Howard. Judge Howard, a new judge relatively new in Charleston. These are all judges that I would like to pattern myself from that you just do not have to be overbearing, arrogant to be a good judge and to command respect.
Q. One thing that the Committee and I guess the General Assembly looks for is compassion among judges. They certainly want justice in this day and time when there is so much violence and everything. They certainly want a judge that's going to be tough enough on lawbreakers, but you also want a sense of compassion in a judge.

As a Solicitor or Deputy Solicitor, Assistant Solicitor, you have probably been more often than not on a different side of that issue with a person that's a defendant. How will you approach this issue as a judge? What kind of past experiences have given you an opportunity to develop your sense of compassion?
A. Well, I've seen it from both sides. I've been a public defender representing the interest of people accused of a crime. Of course, now, I'm with the Solicitor's Office. In each side, I've been an advocate, but during my 11 years in court, I've seen pain and human suffering on both sides whether it be the defendants and especially their families as the family members have always suffered and now on this side seeing the pain of victims.

Also in my capacity of representing DSS, I've been in the Family Court seeing families ripped apart for many reasons. So I don't think that anybody cannot develop some compassion to deal with the people that come to court. It's just got to be something within you.

Either you harden your heart and you become a cynic or else you try to go into court every day and at least try to meet the standards of justice, take the considerations of all the parties and you just hope that you are strong enough to meet a reasonable, just standard.
Q. How would you handle the problems inherent in ex parte communications if you were on the bench?
A. Well, I have the advantage of working for Judge Howell and I think it should be a policy that you just do not have ex parte communications with lawyers. If it's on the telephone, like I believe it's Judge Johnson said, you have to arrange a conference call. I just don't believe that it's proper for lawyers to do that.
Q. Let's say I'm practicing law and I come down and really am not in the process of practicing, but I've moved to your area with -- I believe you belong to a sailing club down there?
A. Right.
Q. And you're on the bench and I'm an attorney and we're down there one afternoon watching a football game together or getting ready to go sailing and I just happen to mention, not even a case that I'm involved with, but I've got a friend involved in it. What's your response going to be?
A. I'd tell you that I may be hearing that case and I don't want you to say anything about it. I just don't -- you know, flat out tell you. It's just not proper for you to talk about it. Even if it wouldn't influence me, you have to avoid the appearance of impropriety, so I would just ask you to quit.
Q. You've heard me ask the judges earlier what their term of commitment to being a judge. I would take it since you're running for the first time that you probably are committed to filling out this term. Is that the case if you're elected, you plan on serving the full term?
A. That's correct.
Q. How would you manage the docket in your courtroom? How would you make sure that you met the deadlines that seem to get harsher and harsher?
A. We have some experience with that in that we have to deal or I have to deal with criminal court. In our Circuit, our Chief Administrative judge allows the Solicitor's Office to manage the docket of criminal court and now I'm assigned to Beaufort County, we have taken steps to alleviate overcrowding at the roll call to try to space the meetings out so that all the defendants don't come jammed up where we don't have enough space.

I've given them with Solicitor Murdaugh's approval assigned court dates to come back, so they don't have to come sit around in the courtroom the whole time, especially, you know, people who have jobs and, you know, it's tough to get jobs especially down in our counties. We want them to keep them if possible, so we do work with the people down there and we try to come up with a better system.

We're always asking other solicitors, especially other judges. You've been somewhere they do it better. How do they do it? We're not routed to one system. And as a judge, I would not be routed to one particular system.

I would like to ask other judges, you know, how do you do it, how can I make this better, how can we be more efficient. So I would have an open mind and try to meet any problems that arose in that manner.
Q. Not to put you on the spot, but is it -- working with the Solicitor's Office, I would imagine that from time to time, you arrange pleas and then take those pleas before the judge for his sanction before going into court or working things out. What's the proper role of a judge in a case of a negotiated plea and what's the proper role of the solicitor? It seems like at some point, there could be a tendency for those folks to clash because there would be some disagreement. How much leeway or leniency are you going to give the Solicitor to establish pleas? I mean what's your role going to be?
A. My role is really to be the final arbitrator, the referee and hopefully impose justice. If someone comes to me and proposes a plea that I don't think is just either to the defense or to the State of South Carolina, I will tell them flat out that I can't accept that plea, that you have to do something else.

You either try the case or come up with a better plea agreement and that is something that we deal with every day. It's -- that's not a very unique situation.
Q. Let's say that that happens on a recurring basis that the Solicitor has made proposals to you and they're consistently too light or too heavy and you're disappointed with the Solicitor's approach to bringing pleas to you, how do you handle that?
A. I don't think it would get to a situation where I would be disappointed. A solicitor is an advocate for the State of South Carolina. The defense is an advocate for his client. They're trying to work out the best deal possible to serve each of their respective needs.

My job is to represent the system of justice and accept a sentence that I think meets what justice demands, so -- because a particular solicitor or defense attorneys keep on coming up with a proposal that I don't agree with, that isn't going to disappoint me. It's just each of our particular roles that we work with. So it's not that I'd be frustrated with them, it'd just be what I could live with.
Q. Would it ever be appropriate for you if there was a consistent pattern of that to be publicly critical of the Solicitor?
A. My policy in my job has always been that I don't try cases in the newspaper. I'm not critical of judges in the newspaper. If I disagree with a judge, I can appeal it, so I -- you don't gain anything by criticizing anybody in the newspaper. That would be my policy as a judge.

If I have a problem with a particular person, I'd call them into my office and talk about it, but I'm not going to go to the newspaper and air out a grievance I have. I just don't believe that's right.
Q. I believe you mentioned in your PDQ that you've not been rated by Martindale-Hubbell; is that correct?
A. That's correct.
Q. There is a -- the Canons are fairly broad in South Carolina in terms of what type of social hospitality a judge can accept from an attorney, but there has been a good bit of legal scholarship written on it particularly by a number of professors at the law school most recently about what a judge can accept from an attorney and there are several classes of attorney.

They've distinguished one being an attorney that you know on a personal basis that does not appear before you or rarely appears before you. Another is an attorney that appears before you on a regular basis. How are you going to handle that? Where do you drawn the line? Is a lunch okay? Is dinner okay? Is a trip to the beach or sharing a beach house okay? Where does it stop with Judge Armstrong?
A. I think it depends on an individual, personal basis. I don't think you can set a hard and fast rule. If you've been friends all your life or from college or from law school and you have annually made a beach retreat somewhere, I don't believe there is any applicable prohibition in doing that. I think obviously that if you came into court and that person came before you, you would have to disclose it and should disclose it to any other lawyer that came before you. I think that's how you should deal with it, but I don't -- you know, if a lawyer out of the blue that you've never had any social connection with came and wanted to give you a gift, I think it would be improper and I don't think you should take it. So I think you have to judge it on a case by case basis.
Q. Let's say I'm from your county and I appear fairly often, at least once a term, and tend to handle fairly important, substantial cases before you. We've gone to the beach together for years. I own a beach house on Edisto Island and it's my beach house. You come down traditionally even before you go on the bench, once you go on the bench, do you still come or do you still hear my case when it comes up once a term?
A. You're saying I have a -- one of your cases that is coming before me --
Q. Suppose I just practice on a regular basis. I'm -- at least once a term I'm in your courtroom on a fairly important, substantial case and I live there in the county and we've been friends for a while and you've always gone to the beach with me, but now there is a little bit of a change in circumstances?
A. Right. I think you have to make that disclosure and if anybody raises a question about it or if I think deep down in my heart I couldn't be fair, then I think I would have to recuse myself just to avoid the appearance of any impropriety.
Q. What kind of burden does that put on the other attorney to have to raise that issue in your courtroom of recusal?
A. I don't think it places an undue burden on an attorney. I mean when lawyers come into your courtroom, they're advocates and they're representing their client's interest and they have to do what they think is right for their client.

After full disclosure, if I think deep in my heart that I can adequately give both sides a fair trial, you know, the other side doesn't, then I think you would have
to to avoid the appearance of impropriety. You would have to recuse yourself, but I don't think that puts an undue burden on an attorney. Nothing that they don't have to deal with every day.
Q. Have you made a motion for recusal in your practice?
A. No, sir.
Q. I just wonder -- just wondering aloud with you, not that there is any hard and fast approach to it, but an attorney comes in, makes a motion for recusal and then has a substantive case that obviously has to follow that motion, aren't you somehow questioning whether that judge is approaching this case in the right manner and that he somehow doesn't carry an additional burden with him that might impede his decision?
A. I don't think so because I think I would just recognize that it's his role. I mean he has to do it especially in these days and times, you have to cover all your bases, satisfy your client that you're adequately looking out for your client's interest, so that's just part of the job. I don't think you would hold it against that lawyer for making a motion for recusal. I mean it's not personal, it's business.
Q. I'm reading from an article that a Professor John Freeman. You may even know Professor Freeman. And he had three rules. He suggested that the ethical problem of conflict and conduct when accepting a gift ought to be determined by a judge answering three questions. Would I do it in front of my mother? How would this look on the front of the daily news -- front page of the daily newspaper? And his last one is, if I'm nominated for a high federal position and scrutinized by the Senate Judiciary Committee, what will any Senators who oppose my nomination be able to make of it.

With those same three questions in front of you, assuming that your mother is not bothered by it and that The State paper doesn't circulate down in Colleton County, what is the answer to the third one? I mean what's likely to happen? I mean is it something that can be made of that, you would go to the beach during the summer with an attorney that practiced before you on a regular basis?
A. I don't think so. I think as long as you take it on a case by case basis, that you're honest with yourself and you're honest with the people that appear before you in court, then I wouldn't be ashamed to tell any screening committee. You know, I don't think it would be a problem. If it was, I certainly wouldn't do it.
Q. I note in your expenditure filings for the House and Senate Ethics Committee that you've expended $224.70. Is that still fairly correct for --
A. That is correct. I haven't spent any more other than money for travel.
Q. You've heard me ask earlier the other two candidates about seeking pledges directly or indirectly from Members of the General Assembly. You've indicated in your form, Question Number 43 -- you might turn to that -- that "two friends have introduced me to two members of the Legislature -- no request for support or pledges were made."

Can you tell me what were the dates of that contact with Members of the General Assembly and a little bit of the details in terms of how it occurred.
A. I can give you the dates of one because it was during the last death penalty case we were doing. In both situations, I haven't been involved in politics and I was just talking to friends. I was just talking to friends and they were asking me, you know, "How is the race going? What are you doing." And I said, "Well, I'm trying to get around and introduce myself to all the legislators." In both instances my friends say, "Well, do you want me to introduce you to this legislator? Would it help?" I said sure. You know, I didn't know them, so in both situations, I was introduced to the legislators and that was it. You know, nobody asked for anything.
Q. Did they introduce you as being a candidate for the Circuit Judge seat?
A. I don't believe so. I think it was, you know, this is Bob Armstrong. You know, that type thing.
Q. And please understand, I'm not trying to fill your shoes as being Assistant Solicitor. I'm not trying to unfeather criminal behavior in any case. It doesn't arise to that. I just want to make sure the Committee has a complete record.
A. Right. I understand.
Q. Once you raised the issue, I need to follow up on it.
A. That's fine.
Q. Tell me a little bit about how you would handle extra judicial activities. You've been fairly active in civic activities from the time you were in college, I believe. How would you handle those under the compliance with the Canons of Ethics?
A. Right. I have to abide by the Judicial Code of Conduct. I don't believe that there are any activities that I have done maybe with the exception of being stewardship chairman in my church where I did solicit money on behalf of the church. That I couldn't do as a judge.

Obviously, I would not be asking for money if I was a judge, but other than that, I cannot think of any contact I engaged in that wouldn't be appropriate.
Q. Thank you. That's all, Mr. Chairman.
THE CHAIRMAN: Thank you. Do any members have any questions? Representative -- whichever one of you want to go?
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. When this Member of the General Assembly introduced you to other members of the General Assembly, where did this occur? Was it in the State House or was it back home?
A. No, sir, it was at Shoney's restaurant in Hardeeville.
THE CHAIRMAN: Representative Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q. One question. Your record indicates that you spent most of your legal career as a prosecutor; is that correct?
A. Yes, sir.
REPRESENTATIVE BEATTY: Have you any preconceived notions about the guilt or innocence of defendants?
A. No, sir.
REPRESENTATIVE BEATTY: Do you commonly nonpros cases?
A. When I feel they should be nonpros, yes, sir, I do.
Q. What is the percentage and how often?
A. I do -- probably if I give you a percentage maybe five, ten -- five percent of the cases I've handled and when I get them, my standard is do I think I have a case that a jury could convict? Do I -- can I prove all my elements beyond a reasonable doubt?

Before I ever nonpros a case, I go and talk to the victim and a lot of times the victim will understand and lot of times, they won't and I explain to them, you know, this is what's going to happen. Should we take this case to trial? You're going to get hammered and you're going to look bad.

I might just say, you know, I just don't think it's in the best interest of justice to take this to trial. I just can't prove it. You know, I have to tell policeman that. It's hard to give you, you know, a percentage because I handle a large volume of cases, but if the situation is there, I do it. I can't say that I don't hesitate because I don't like to do it, but I mean I do what's required.
Q. That's all.
THE CHAIRMAN: Any other Members have any questions? You're satisfied. They have no further questions. We appreciate you coming and thank you, sir.
A. Thank you.
MR. COUICK: I think he is free to leave --
THE CHAIRMAN: You are free to leave, sir, if you wish to --
A. Thank you.
THE CHAIRMAN: -- go on back.
MR. COUICK: Mr. Chairman, Counsel would like to ask at this point in time not directly relating to this candidate or any particular candidate that the record be left open on all candidates at the conclusion of today and -- today and tomorrow's hearings or however long it would take, so that Staff could continue some investigations of some matters that may come up during the hearing.

This was what was done at the last round of hearings back in the spring and we just ask that that be made a part of the record, that request, and whatever action, if any, you would like to take on that request now or later?
THE CHAIRMAN: Is there any objection at this point to leaving the record open? Hearing none, so sustained. The record will remain open. We now call the next one in the judge of the Circuit Court, At Large, Seat Number 2, R. Markley Dennis, Jr. Would you come forward? If you would 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?
MR. DENNIS: Yes, sir, I do.
THE CHAIRMAN: Have a seat. Have you had a chance to review the Personal Data Questionnaire Summary?
MR. DENNIS: Yes, I have. And there is one correction that arose and I've supplemented it as well. That should be with you. And it's probably -- I think now I understand where the confusion came in. I'd like to change the word. I chose the word Formal Complaint. That needs to be deleted. There has been no such Formal Complaint ever filed.

Now, I think Appellant Court Rule 430, Paragraph 9 deals with what I was referring to.
THE CHAIRMAN: The Staff informs me that we have that. Other than that, is there any other thing that needs clarification?
MR. DENNIS: No, sir.
THE CHAIRMAN: Is there any objection to us making this summary a part of your sworn testimony here today?
MR. DENNIS: No, sir.
THE CHAIRMAN: All right, sir. I ask at this point that that be inserted into the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Rupert Markley Dennis, Jr.
Home Address: Business Address:
P. O. Box 4673 P.O. Drawer 1174
Pinopolis, SC 29469 Moncks Corner, SC 29461
2. He was born in Charleston, South Carolina on December 2, 1947. He is presently 45 years old.

4. He was married to Janis Sherrell Galbreaith on January 16, 1971. He has three children: Rupert Markley, III, age 20 (student at Georgia-Tech in the Coop Program; works with Allied Signal; on alternating quarters); Molly Allexum, age 18 (student at College of Charleston); and Andrew Paul, age 12 (student at Berkeley Middle School).

5. Military Service: N/A

6. He attended the University of South Carolina, September, 1966 - June, 1970, obtained a Bachelor of Science Degree in Business Administration (banking, finance, real estate and insurance); and the University of South Carolina School of Law, September, 1970 - May, 1973, obtained J.D.

8. Legal/Judicial education during the past five years:
For the past five years, he has attended courses involving trial advocacy, both civil and criminal courts. He has attended courses dealing with topics in employment law. Also, he has attended seminars dealing with issues in the Family Courts. With the exception of 1990, he has averaged approximately 19 hours per year continuing education in the period courses.

9. Taught or Lectured: He has taught a School Law Class for The Citadel for three separate semesters.

12. Legal experience since graduation from law school:
Upon graduation from law school in 1973 and admission to the Bar in November, 1973, he has practiced law in Moncks Corner, South Carolina. His practice has been of a general nature, dealing primarily in litigation in family court, civil and criminal court, probate court and some administrative agencies, primarily Workers' Compensation. He has, for in excess of ten years, represented the Berkeley County School District, and for the past seven years has been retained counsel for it. His representation has resulted in his having to handle various legal matters including issues involving school law and employment law. He has handled several matters in the Court of Appeals in this State and was associate counsel in a matter heard by the South Carolina Supreme Court. During his practice in Moncks Corner, he has also had occasions to handle several matters in the Federal Court, including an association in a case which resulted in an appeal to the Fourth Circuit Court of Appeals. In addition to litigation, he has been involved in real estate work, ranging from suits to remove clouds on title to simple loan closing. His practice has also involved some occasions for minor estate planning as well as some corporate work.

13. Rating in Martindale-Hubbell: BV Rating

14. Frequency of appearances in court:
Federal - Rarely in Federal Court
State - Frequently appear in Circuit Court and Family Court
Other -

15. Percentage of litigation:
Civil - 45%
Criminal - 10%
Domestic - 45%

16. Percentage of cases in trial courts:
Jury - 65%
Non-Jury - 40%

In the last five years, he has served mainly as sole counsel.

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) He personally handled Harriett P. Mizzell, as Executrix of the Estate of Glenn O. Mizzell, deceased v. Berkeley Electric Cooperative, Inc., which was a wrongful death action brought in the Court of Common Pleas for Berkeley County, in Case No. 82-CP-08-22. This case involved a suit to recover damages for the wife and children of Glenn O. Mizzell, who was electrocuted when a metal pole he was holding came in contact with an electrical line maintained by the Berkeley Electric Cooperative. This suit was tried by jury, and a verdict was rendered in the amount of $300,000. The case was unusual because of the action of the deceased, who was in the tree knocking down pecans with a metal pole which he had been using for that purpose for years. The Plaintiff's position was that the guy wire on one of the poles crossing Plaintiff's deceased father's land was in disrepair and had caused the line to move towards the tree which permitted the pole to come in contact with the wire. The case involved the expert testimony of Roy Martin who was able to assist in establishing the probable cause of the guy wires breaking with the injuries sustained by Mr. Mizzell.
(b) William E. Poston, employee v. Robert O. Collins, employer and Northern Insurance Company of New York, carrier, was a Worker's Compensation case which he handled on behalf of Mr. Poston. This action was brought to recover benefits for the total disability of Mr. Poston as a result of the injury. This matter was filed and argued before a single commissioner in Worker's Compensation File No. 8507619, which resulted in a finding by the commissioner of 100% leg. The injury had occurred initially to Mr. Poston's leg, but it involved damages to his vein in the leg resulting in extreme cases of phlebitis. The Defendants' position was that since it was a scheduled member they were limited to compensation for the loss of that member. The Plaintiff's position in the unique nature of this case was that because of the injury to the vein, it involved his entire body and therefore the whole person was affected. On Appeal to the Full Commission, they were successful in reversing the Single Commission's Hearing. The case was subsequently appealed to the Court of Common Pleas where the Circuit Court sustained the ruling of the Full Commission. Thereafter, the employer paid the claim without further appeal. The uniqueness of this case involved overcoming the case law which provides that a person is limited to compensation for loss of scheduled member.
(c) The case of Martha A. Rose, Plaintiff v. Calvitt Bradwell, Delinquent Tax Collector for Berkeley County, et al., Defendants. This case involved an action brought in the Court of Common Pleas for Berkeley County, in Case No. 85-CP-08-1135 on a non-jury matter to recover property which was taken for delinquent taxes. The Plaintiff was a resident and citizen of Connecticut and hired the undersigned to handle this matter through her brother who lived in Berkeley County. This matter was argued on a Summary Judgment Motion by the Plaintiff before The Honorable Bruce Littlejohn, retired Supreme Court Justice. The Plaintiff prevailed on its Motion for Summary Judgment, and the case was subsequently appealed to the Court of Appeals for South Carolina, where the decision of Judge Littlejohn was sustained. This case was unique in the sense that he handled this matter for a client whom he had never had the pleasure of meeting. He also handled it through Appeal without any payment except for the initial retainer fee of $700. It was also unique in that they established law to date that the tax collector must comply specifically with the Tax Code when taking property from an individual. In this case, the delinquent tax collector, in advertising the property for sale, used in his description the TMS No. and in so doing, transposed some of the numbers in the TMS No.
(d) He was associate counsel with Coming Gibbs and Terry Rickson in the case of Herman Ransome, Plaintiff v. Alumax of South Carolina and Al Majors, Defendants. This case involved a suit against Alumax for breach of alleged employment contract, which was alleged to arise out of the employment handbook as established by Small v. Springs Industries, Inc., 357 S.E.2d 452 (1987). This case resulted in a jury verdict of $540,000 for the Plaintiff, Herman Ransome, on his cause of action for breach of contract. The case was subsequently appealed to the South Carolina Supreme Court, Docket No. 88764, but the matter was settled prior to oral argument. The unique nature of this case involved establishing employment contract arising out of a handbook and also resulted, in the undersigned's opinion, of some modifications in the management procedure and approach of Alumax.
(e) The State of South Carolina v. Robert Bennett. This was a criminal matter in the Court of General Sessions for the Ninth Judicial Circuit involving a charge of murder. Just prior to trial an "alford plea" was negotiated to the charge of involuntary manslaughter. This matter was unique in that it involved from the beginning to the end a denial of guilt by Mr. Bennett. There were potential issues involving the time of death as established by the pathologist and there were issues involving polygraph usage as well. The significance of this case was the negotiated result for his client in view of the evidence against him.

18. Five (5) civil appeals:
(a) He associated in the appeal of Richard H. Freidberg, et al. v. Charlotte Barker Goudea. It was reported in 309 S.E.2d 758 (S.C. 1983). The decision was rendered on December 5, 1983, by the South Carolina Supreme Court.
(b) He handled personally the appeal of Martha A. Rose v. W. Calvitt Bradwell, Delinquent Tax Collector for Berkeley County, et al. It was reported at 367 S.E.2d 443 (S.C. App. 1988). This decision was rendered on March 14, 1988, by the South Carolina Court of Appeals.
(c) He personally handled the appeal of Gethers v. William L. Bailey, et al. This decision is reported in 410 S.E.2d 586 (S.C. App. 1991). The decision was reached on October 14, 1991, by the Court of Appeals, South Carolina.

22. Public Office: He presently serves on the Berkeley County Alcohol & Drug Abuse Commission. He is appointed by the Council Member for the District in which he resides. He has served since 1974.

23. Employment As a Judge Other Than Elected Judicial Office:
He is a Special-Referee in a case presently pending.

26. Officer or Director: He is presently a director for the Farmers & Merchants Bank of South Carolina, having served in that capacity since 1978. His role as a director is to make policy decisions of the Bank and to assist in any way in promoting and developing the Bank as a financial institution serving the Lowcountry. He is also a director for the Lowcountry YMCA which operates a facility in Moncks Corner and conducts programs for the benefit of the citizens in Berkeley and Charleston Counties. The purpose of his involvement in this business is to adopt policies for the YMCA and provide oversight for its operation.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
A joint venture with Charles W. Bounds, M.D., Gordon B. Wilhoit, M.D., and Jackie C. Mims involving the purchase of land and lease properties. These individuals are business persons in Moncks Corner and certainly as such could be the subject of litigation in the future. If such should arise and they or any of them were a party-plaintiff or defendant in a lawsuit to be tried before him, he would advise all parties of this relationship and offer to recuse himself should they or any of them desire.

32. Sued: He has been sued twice being named personally in lawsuits arising out of a business venture known as Palmetto Wellness & Fitness Center, Inc. One involved a suit filed by a disgruntled stockholder alleging fraud against him and the other stockholders of the corporation. This suit was settled with the purchase of the Plaintiff's stock and his interest in the real property used by the corporation.

He was also named as a party-defendant in a suit against Palmetto Wellness & Fitness Center, Inc. when the former director of the Fitness Center sued for breach of contract and attempted to pierce a corporate veil. This suit was settled prior to trial.

40. Expenditures Relating to Candidacy:
He has spent no money other than travel.

41. Contributions Made to Members of the General Assembly:
He has made through his law firm a contribution of $100 to Senator Robert Ford's debt retirement campaign. He has also purchased a ticket for $100 to attend a reception honoring Marshall B. Williams given by the Democratic Caucus.

45. Bar Associations and Professional Organizations:
South Carolina Bar Association; American Bar Association; American Trial Lawyers Association; South Carolina Trial Lawyers Association; S. C. Council of School Attorneys; S. C. Criminal Defense Lawyers

46. Civic, charitable, educational, social and fraternal organizations:
Moncks Corner Lion Club (past president, vice-president and director); Moncks Corner Rotary Club (director); Berkeley County Chamber of Commerce (vice president); Berkeley County Advisory Board Trident United Way; Board of Trident United Way; Berkeley Country Club; University of South Carolina Gamecock Club; Trident Technical College Foundation Board (Board of Directors); Trident Chamber of Commerce (Board of Directors); Lowcountry YMCA (Board of Directors); Berkeley County Economic Development Board (present chairman); member of Capital City Club; Coach, Berkeley High School Mock Trial Team (1982 to present)

48. Five (5) letters of recommendation:
(a) R. Michael Holcombe, Vice President and City Executive
Farmers & Merchants Bank of S. C.
P. O. Box 578, Moncks Corner, SC 29461
761-8888
(b) Paul G. Campbell, Jr., Senior Vice President
Alumax of South Carolina, Inc.
P. O. Box 1000, Goose Creek, SC 29445
572-3700
(c) Gaines W. Smith, Esquire
Legare, Hare & Smith
P. O. Box 578, Charleston, SC 29402
722-7773
(d) Robert E. Watson, Esquire
116 Railroad Avenue, Moncks Corner, SC 29461
761-4888
(e) James H. Rozier, Jr.
Berkeley County Supervisor
223 North Live Oak Drive, Moncks Corner, SC 29461-3707
761-6900

The Board of Commissioners on Grievances and Discipline reports that no Formal Complaints have ever been filed against you.

Records of the applicable law enforcement agencies: Berkeley County Sheriff's Office, a negative; Moncks Corner City Police Department, a negative; SLED and FBI records, a negative.

The Judgment Rolls of Berkeley County are negative. It also indicates that Judgment Rolls of Edgefield County have been checked. And I understand that's a typographical error. Everything is negative.

Federal Court records are negative. No complaints, statements have been received. To my knowledge, there are no witnesses here to testify, so with that, I would ask you to answer any questions that Mr. Couick has, please, sir.
MR. DENNIS: Very well.
MR. DENNIS - EXAMINATION BY MR. COUICK:
Q. Thank you, Mr. Chairman. Mr. Dennis, if you can't hear me, if you need anything, let me know. I will ask you up front, do you have a copy of your Personal Data Questionnaire with you?
A. Yes, sir.
Q. We may need to refer to that a couple of times.
A. Yes, sir.
Q. Please briefly tell the Committee about your legal experience since graduation from law school.
A. I graduated from law school in 1973 and returned to Moncks Corner to my father and uncle's firm in Moncks Corner, which had been established for a number of years and began to practice in general law in Moncks Corner.

And when I say general, that's really what it amounted to. In a rural area, you deal with a multitude of questions. And I have continued that practice since 1973. I think I've practiced in every court that I can think of and many administrative proceedings as well. So that's --
Q. You do indicate a fairly balanced approached to your practice. You've done some domestic, some criminal and some civil. I do note that you indicate that probably your criminal is the least percentage of the practice that you have.

Just to satisfy my curiosity, would you mind telling the Committee about a couple of the more complex criminal matters that you perhaps have handled during your practice.
A. Okay. Of course, initially when I first started practicing, we didn't have a Public Defender system in Berkeley County and that was later implemented and certainly that's the reason I think the majority of the sole practitioners like my office and private practice -- it probably subsided for all of us.

I've handled drug cases. I've handled some serious drug cases. Negotiated plea drug cases. I've never tried a drug case. I handled a matter -- probably one of the most complicated criminal matters was case, a murder trial, that I handled that the result --
Q. Was this the Bennett matter?
A. Sir?
Q. The Bennett matter?
A. Yes. And as a result of numerous work on the part of the Solicitor and everyone else involved, we ended up negotiating an "alford plea" to involuntarily manslaughter and resulting in I think a favorable result for my client. And I think justice was served.
Q. Mr. Dennis, one of the things that you mentioned in your Personal Data Questionnaire is on page 10, Item 31 which asks, "Has a tax lien or other collection procedures ever been instituted against you by Federal, State or local authorities?" And you mentioned here as well as in other places throughout your Personal Data Questionnaire of your involvement with the Palmetto Wellness and Fitness Center which was at Moncks Corner and --
A. Yes.
Q. -- which seemed to be not quite as profitable as your law practice?
A. No.
Q. Just some basic questions. I'd appreciate you just generally discussing what went wrong, who lost money, did any -- were any of your clients involved, did you -- what capacities did you serve in this company, where did your -- did you have any fiduciary obligation as an attorney as well as a director or an officer, have you been sued in any of those capacities and how has this matter been resolved and also as it relates to the tax lien, what's happened to any kind of liens or whatever the government, Federal and State, has on the property?
A. Thinking about my financial statement which I've submitted as well, probably hindsight is always 20-20. If I had not gone to lunch with a friend of mine and agreed to be a part of this venture, I'd probably be -- my wife and children will say that, too, that they would be happy that I hadn't done it. Unfortunately, I did it. And when you're faced with that situation, you try to work through it and that's what we proceeded to do. It's been a long, arduous task and its not over yet. We're much better than we have been.

With respect to what went wrong, we probably built a facility that was about five years ahead of its time in Moncks Corner in that area. Moncks Corner has now grown. To give you an example, we now are leasing the facility to the YMCA. The YMCA is growing and expanding and I'm delighted that it's being utilized for that purpose. There was some bad things that happened in the sense of having to admit you made a mistake and you close the doors. That's not a very pleasant thing to do.

With respect to the tax liens, those have all been resolved and were filed. I personally met with the IRS representatives. In fact, we discovered that there were -- one of them that was incorrectly filed and we, in fact, were refunded monies that had been paid as a result of that meeting.

To tell you my capacity, I certainly came -- I served as a member. It was a group of people -- citizens, clients I represented from time to time, several of them that I'm involved with --
Q. Let me --
A. That I served as a lawyer to it, no, sir.
Q. Let me ask in this capacity, did you go to any of your clients and raise money for the venture in the sense of going out and getting the --
A. Did I go to any of my clients?
Q. Right.
A. And ask for money? No, sir, I did not.
Q. What role did you play in this? The start up end? The administration of it once it was up?
A. I was a member of a group of people. There were about six or seven of us that met on a regular basis.
Q. Was it organized on a partnership basis or was it a corporation?
A. When it started, a group of people getting together and we had agreed that we probably should incorporate and sold stock, yes, sir. Or issued stock.
Q. Were you perceived as a managing partner or managing officer, vis-a-vis, these other people or -- there seem to be two classes of folks that usually lose money in a venture, folks that are in the inside and folks that are on the outside. How would you characterize yourself, vis-a-vis, everybody else, or was everybody in the area?
A. Everybody was involved in this process. Everybody who was a stockholder was involved with the exception of one person who ultimately -- you asked about lawsuits and, yes, it did result in two, one of them by a disgruntled stockholder and the other by a person who we handled -- we hired to manage the business after we chose a different route.

The disgruntled stockholder probably was not as active. He attended all board meetings. He was not involved initially. He was a doctor that some of the doctors knew.
Q. What was the theory of his action against you?
A. That he had been defrauded.
Q. Against you?
A. Well, he named all of us.
Q. Right.
A. I met the gentleman when he came to the first meeting. I didn't know him before and never saw him before that meeting. He had already agreed to buy and he'd met with two of the persons who were physicians.
Q. Did he see you in any special capacity as an attorney for the group?
A. No, sir.
Q. What was the resolution of that case?
A. We settled it. We simply bought his stock back and he also had an interest in the property and he conveyed his interest in the property.
Q. You received very high marks from the Bar in Charleston for your reputation. We did the survey across the state for the At Large judges. I'm going to tell you not too many folks know you in Oconee County. We got a lot of folks, "I do not know this person. Why are you sending this to me?"

One question that I have is one that I asked earlier. You're an attorney and you've certainly benefitted by sitting on this side of the bench and seeing a number of judges. How are you going to approach that? What's going to be your role? Who is going to be your role model as to temperament and what do you hope to accomplish as a judge other than just disposing cases?
A. Now, I think first of all one of the things and I was thinking how -- when you asked the question earlier about that, I've been fortunate to have my practice primarily in the Ninth Judicial Circuit, but also deal with -- dealing with some cases in Dorchester. And I think we've been blessed. I know a couple of years ago that things were -- Judge Richter, but by and large, we've been very blessed and I think very fortunate.

I certainly have had I think good role models. It started with Judge Singletary, but Judge Fields has certainly been a person that I've made the comment to several people, he's sort of like my father to me. He's taken me when he was on the bench in the domestic court. He called me to task one day and we reminisced about that. I appreciated that.

He noticed something about my demeanor in the courtroom and he asked me after the case was over to step back in chambers and he reprimanded me. He said don't ever do that again. I said yes, sir. But I think he's probably one.

I think Judge Smith, I think he was an incredibly good judge. He was even tempered, evenhanded and fair. And I think that's all anybody can -- I think there has to be a mutual respect in that courtroom. I think we're all in that courtroom officers of the court and there has to be a commonality with -- in that venture and I think to that extent, that's what I would hope to accomplish. I think that there are things -- or things that are being done now that need to be done desperately and I think that type of attitude to promote it such as mediation route, finding alternatives to resolutions of this dispute.
Q. You heard me ask Mr. Armstrong a question about the relationship between a solicitor and particularly a Resident Circuit judge and in this case, you would be At Large as opposed to Resident, but it seems historically some judges have taken a paternalistic approach to solicitors.

They are of that Judge's office, they somehow manage the affairs of the docket. Whether they do it privately or publicly and to some degree how they do it gets to be more of a problem than what's done. How would you approach it and what would be your role if a solicitor was consistently either unprepared or you thought was presenting pleas that were not appropriate? How would you handle that matter?
A. Well, you say unprepared or not handling pleas properly?
Q. Either one.
A. When you say not handling pleas, you mean that I disagree with the Bar -- the plea arrangements or not ready to move?
Q. You think they are either extremely too lenient or that the person has somehow taken advantage of the situation consistently and extracted a plea that is not appropriate for the circumstances?
A. Well, let me share with you, and I would pray this would never happen. I'm a firm believer if you talk to each other and we bring people together when you've got a problem and you sit down and discuss it, I think you can resolve of lot of those problems. I had it happen. It wasn't pleasant as a defense attorney, but I had a Circuit judge refuse the agreement. He heard it and he came before me and he said I'm not going to take it. And I guess ultimately that's where the buck stops and if it has to be done, then it would have to be done. I'd have to refuse --
Q. But -- and I'm not really talking about a single incident where you would certainly be well within your rights to refuse a plea, but if you notice there is a pattern that you disagree with, with particularly someone that appears on a regular basis who has another public position such as the Solicitor, would it ever be appropriate to publicly criticize the Solicitor over his performance?
A. No, sir. I don't believe that's the time and place for that sort of thing. I think the time and place for that is in the privacy and again respect for his position as well.
Q. I take it that you're running for this for the long term?
A. Yes, sir.
Q. That you're not going to bug out before the six years?
A. No, sir.
Q. You have children. They're not necessarily as young as Mr. Armstrong's, but you do have commitments to them. Would you anticipate that they would in any way interfere with your ability to perform the duties of this office?
A. I know of no reason that it would have any conflict.
Q. Ex parte communication, tell me about your approach to it, how you would handle it.
A. Absolutely, it's just inappropriate. I think there is no question about it. I think like probably most practitioners, I think sometimes we do it to extremes and I must be with you. I think there are times that we bounced too far. But I think you've made a comment and I agree with you, I think that's where we are in the practice of law on both sides that the appearance -- perception is something that we really have to deal with today and I think we have to answer to that and I think to avoid the appearance is necessary and so to do it, it's just to omit it. Conference calls is what's been utilized, what I'm experiencing with doing it and I think that's certainly an effective way of handling it.
Q. So the Rules that Judge Keesley and Judge Johnson talked about are ones that are comfortable and --
A. Absolutely. That's what I've encountered as a practitioner.
Q. In the areas of gifts, and when I use the word gifts folks think of a box that's wrapped up with a bow on it and I don't necessarily mean that. I mean also the lunch or the dinner or the trip. How would you handle that? What's the -- what type of broad line test if you could develop one would you use that you could share with the Committee now.
A. I guess that's one I've thought about a great deal. In fact, it's one I asked Judge Peeples about as well because I like people. People have been my life and certainly I was concerned if I pursued this, I'd have to disassociate myself with that and I don't want to do that.

I'm led to believe that you don't have to do that. I think you have to do it on a case by case situation. I think it has -- again, if I have a person that I normally have associations with -- I'll give you one. I played bridge with a fellow attorney in Moncks Corner. Played bridge with him this past Saturday. We were in a group. Probably if a case was coming up that term that he had a case on the docket or potentially, I probably wouldn't have. I couldn't do that. Not that we would ever talk about it but because somebody could say you could have talked about it, so that would have to be one thing that would be done.

If somebody was an ongoing friend, I think you just simply have to do it and if the case came up and they were appearing, then I think you have to -- I'd have to disclose that to counsel and if they felt that that was something that their client perceived as being a problem, then I'd probably have to honor that.
Q. You indicate that you're a member of the Berkeley County Alcohol and Drug Abuse Commission, that you're director of Farmers & Merchants and director of the YMCA. What are your plans for the future in terms of the these positions if you're elected?
A. That's the second thing that's probably been the toughest. I would probably have to -- I'm going to have to give up the majority of those things.
Q. Tell me which of those would you give up?
A. All of them. I don't think the YMCA Board is -- in reading the Canons, I think I could serve on that, but because of potential for some problem originating that could result in some lawsuit, I think I'd have just to to protect the bench.
Q. You mentioned in your Personal Data Questionnaire that you have expended no monies campaigning and you have filed no reports with the Senate or House Ethics Committees. Does that continue to be the case?
A. That is correct.
Q. You have heard the question earlier about pledges and, obviously, reading the two major parts of it, but one is have you sought a pledge from any Member of the General Assembly and, two, have you asked anyone to ask for your consideration by any Member of the General Assembly --
A. No, sir.
Q. -- prior to today's hearing?
A. No, sir. I have not.
Q. Mr. Chairman, that's it.
THE CHAIRMAN: Sir. Do members have any questions? No questions. Thank you, sir. We appreciate your coming and you are free to leave if you also wish to get on back down there.
MR. DENNIS: Thank you, sir. I appreciate it.
THE CHAIRMAN: Thank you, sir. Move to the next one in the At Large Seat, Number 2, John Sinclaire, III. Mr. Sinclaire, good morning, sir.
MR. SINCLAIRE: Good morning.
THE CHAIRMAN: Why don't we take about a ten-minute break and give everybody a chance to -- take a ten-minute break before we get started. Thank you, sir.

(A break was taken)

THE CHAIRMAN: We'll resume the hearing at this point. And Mr. Sinclaire, I don't believe I've sworn you in. Have I, sir?
MR. SINCLAIRE: No, sir.
THE CHAIRMAN: All right. John Sinclaire, III, would you raise your right hand. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
MR. SINCLAIRE: I do.
THE CHAIRMAN: Thank you, sir. You may have a seat. Have you had a chance to review the Personal Data Questionnaire Summary?
MR. SINCLAIRE: Yes, sir I have.
THE CHAIRMAN: Is it correct? Does it need any clarification?
MR. SINCLAIRE: I did send one addendum to Number 14, I believe last week, about my expenditures.
THE CHAIRMAN: Let me check and make sure that we have it. I'm advised that we do have it. Nothing else?
MR. SINCLAIRE: No, sir.
THE CHAIRMAN: All right, sir, I would ask if you have any objection to us making this summary a part of the record of your sworn testimony?
MR. SINCLAIRE: No objection, sir.
THE CHAIRMAN: All right. At this point it will be done.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. John Sinclaire, III
Home Address: Business Address:
867 Colony Drive #107 P. O. Box 70100
Charleston, SC 29407 2144 Melbourne Avenue
North Charleston, SC 29415

2. He was born in Wurtzburg, Germany on August 19, 1959. He is presently 34 years old.

4. He was married to Kelly Christine Bodell on June 29, 1991. He has no children.

5. Military Service: N/A

6. He attended the University of Georgia, 1977-1981, Bachelor of Business Administration; and the University of South Carolina School of Law, 1981-1984, J.D.

8. Legal/Judicial education during the past five years:

1988 Solicitor's Conference on Criminal Law, Bench/Bar Conference on Criminal Law
1989 National College of District Attorneys Forensic Evidence Seminar
1990 Fifth Annual Criminal Law Update
1991 Solicitor's Conference on Criminal Law, Forensic and Legal Application of DNA Technology
1992 Solicitor's Conference on Criminal Law, Conference on White Collar Crime

9. Taught or Lectured:

Instructor of "The Rules of Evidence" for the Charleston County Sheriff's Department Basic Law Enforcement Training Program

Guest Lecturer, Charleston Trident Chamber of Commerce Leadership Trident 1992-1993 - "The Criminal Justice System"

Guest Lecturer, Hugh O'Brian Youth Foundation Charleston, South Carolina 1990 - "The Criminal Justice System"

Guest Speaker, Charleston County Association of Paralegals - "The Criminal Justice System"

Guest Speaker, College of Charleston Delta Delta Delta Sorority - "The Dangers of Drinking and Driving"

Guest Speaker, R. D. Schroder Middle School - "The Criminal Justice System"

Guest Speaker, Courtenay Middle School - "The Criminal Justice System"

Guest Speaker, Consumer Credit Association - "Paper Crimes"

Guest Speaker, Charleston Trident Chamber of Commerce Board of Realtors - "Paper Crimes"

Guest Speaker, Rotary Club of Charleston - "Pornography"

12. Legal experience since graduation from law school:

1983-Present, Ninth Circuit Solicitor's Office, Charleston, South Carolina

Assistant Solicitor in charge of Magistrate's Appeals: Represented the State of South Carolina in all appeals from convictions in Charleston County Magistrate's Court.

Assistant Solicitor in charge of Bond Estreatments: Revamped the system for estreating bonds, thereby eliminating hundreds of hours of Circuit Court judges' workload; Estreated over $1.16 million in bonds and collected over $214,000.

Career Criminal Prosecutor: Graduated from the National College of District Attorneys Career Prosecutor Course; Organized the targeting of Habitual Offenders and sought maximum incarceration for all identified Career Criminals since 1986.

Obscenity Prosecutor: Organized Circuit Wide Task Force for the uniform prosecution of all obscenity cases; Authored "The Quick Reference Guide to Pornography Prosecution," and secured the only obscenity conviction in the 9th Circuit in the last decade.

Senior Prosecuting Attorney in charge of the preparation, investigation and prosecution of major felony offenders and violent criminals.

13. Rating in Martindale-Hubbell: He is listed but not rated in the government section of Martindale-Hubbell.

14. Frequency of appearances in court:
Federal -
State - Daily
Other - Magistrates Court twice/month for Preliminary Hearing and Bond Hearing

15. Percentage of litigation:
Civil - 1%
Criminal - 99%
Domestic - 0

16. Percentage of cases in trial courts:
Jury - 100%
Non-Jury - 0%
Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) State v. Tellis Edwards. Tellis Edwards wanted to be a pimp like his older brother. Unfortunately, the first girl he tried to make a prostitute was a young girl who was carrying his baby. Two months after Tellis Edwards left the 15-year-old girl's naked, pregnant, hanger-whipped body dead on her living room floor with her hands, feet and throat bound with telephone and extension cords, he robbed another woman with a lock-blade knife that had brass knuckles for a handle and "assassin" engraved on the blade. Tellis Edwards was convicted at trial of the Armed Robbery and subsequently pleaded guilty to the Voluntary Manslaughter of the 15 year old.
(b) State v. Alfred Fickens. Nineteen-year-old Alfred Fickens broke into the home of a sixty-eight year old woman and raped her. This woman and her mother had lived in this home for 50 years, but fear forced them to move. Before the moving process was complete, Alfred Fickens broke into their home twice more. Alfred Fickens went to trial three times, was convicted twice, and is serving life plus 30 years.
(c) State v. Stanley Harley. Stanley Harley and four other men abducted two young girls from the parking lot of an East Bay Street tavern. The men took the girls to an abandoned building on Charleston's east side and repeatedly raped, beat and tortured the two girls for more than four hours. DNA evidence conclusively identified one of the men. That man and three others pleaded guilty. Stanley Harley was convicted at trial.
(d) State v. Roudro Gourdine. Roudro Gourdine was a police officer who arrested a highly intoxicated suspect after the suspect was observed breaking into cars south of Broad Street. When the handcuffs came off at the booking area inside the police station, the suspect sucker-punched Roudro Gourdine. Roudro Gourdine then beat the suspect to death with his bare hands. Roudro Gourdine was indicted and tried for Voluntary Manslaughter. He was acquitted.
(e) State v. Theresa Postell. Theresa Postell and her husband were alcoholics involved in a battering relationship. Theresa Postell told her husband that if he ever hit her again she would kill him. One night when her husband was not drinking, Theresa Postell got so drunk she vomited on herself in the backyard. Her husband slapped her, washed her off with a garden hose and dumped her in the bathtub in the house. When she woke up several hours later, she went to the kitchen, got a gun and shot her husband in the head as he fled the house. This was the second case in the State where expert testimony concerning the Battered Wife Syndrome was admitted. Theresa Postell was convicted of Involuntary Manslaughter and collected over $50,000 in life insurance.

18. Five (5) civil appeals:

N/A

22. Public Office: Appointed Assistant Solicitor in 1984 (serving continuously since then)

40. Expenditures Relating to Candidacy:
Stationery $84.00
Postage $10.00
Telephone Calls $25.00
Annual Leave $720.00

45. Bar Associations and Professional Organizations:
South Carolina Bar; Charleston County Bar; Phi Delta Phi Legal Fraternity - Exchequer of Calhoun Inn (1983-1984)

46. Civic, charitable, educational, social and fraternal organizations:
St. Philip's Episcopal Church; Charleston Interfaith Crisis Ministries; River's Bend Homeowners' Association, President of Board of Directors; Lowcountry Georgia Bulldog Club; Carolina Yacht Club (resigned membership, 1991)

47. For almost ten years he has devoted his life to seeking justice. He has walked thousands of victims and witnesses through what can be a terrifying judicial system, educating most of them along the way, showing them that our system does work and proving to them that it is the best system of justice in the world.
48. Five (5) letters of recommendation:
(a) William R. Cathcart, Vice President
South Carolina National Bank
P. O. Box 700, Charleston, SC 29402
577-8237
(b) Lionel S. Lofton, Esquire
P. O. Box 449, Charleston, SC 29402
722-6319
(c) David P. Schwacke, Solicitor
Ninth Judicial Circuit
P. O. Box 70100, North Charleston, SC 29415-0100
740-5850
(d) Glenn P. Churchill, Esquire
1-D Chalmers Street, Charleston, SC 29401
577-7015
(e) Jay D. Fowler, Assistant Rector
St. Philip's Church
142 Church Street, Charleston, SC 29401
722-7734

The Board of Commissioners on Grievances and Discipline reports that no Formal Complaints have ever been filed against you.

The records of the applicable law enforcement agencies: Charleston County Sheriff's Office, a negative; Charleston City Police Department, a negative; SLED and FBI records are negative.

Judgment Rolls of Charleston County are negative. Federal Court records are negative. No complaints or statements have been received and no witnesses to my knowledge at least to date are present to testify.

With that, I'm going to ask Mr. Couick if he has some questions and would you please answer those, sir.
MR. SINCLAIRE: I would. Would I be able -- be given an opportunity to give a brief statement before we start? I was told by Ms. Satterwhite that I could.
THE CHAIRMAN: Yes, sir. I have no objection. Any member have any objection? Go ahead, sir.
MR. SINCLAIRE: Ten years ago I was sworn in as an Assistant Solicitor. From that day forward, it has been my solemn obligation to seek justice. I have never taken that responsibility lightly. I've always tried to be fair and impartial, color-blind and committed to the fierce pursuit of the intangible we call justice.

Every citizen, in fact, every human being ever confronted with the questions what is justice responds in a different way. But in every answer, the central theme is the same. Justice is doing what is right, doing what is fair, doing what is honorable every time.

In South Carolina, judges are elected by the General Assembly and I believe judges are especially commissioned to do justice, to love kindness and to walk humbly with God.
THE CHAIRMAN: Sir. Mr. Couick?
MR. SINCLAIRE - EXAMINATION BY MR. COUICK:
Q. Good morning. If you can't hear me or if you need anything, let me know.
A. Thank you.
Q. Mr. Sinclaire, briefly describe to the Committee your experiences as an attorney since graduation.
A. I graduated from law school in 1984. I went straight to the Solicitor's office in Charleston County. There, I was given what we the call the normal gamut of cases that first year graduates from law school handle, the driving under the influence cases and driving under suspension.

At that time, I was also given additional responsibility to be in charge of magistrates and appeals. Any cases that were heard in Magistrate's court or appealed to the Circuit Court judge would be assigned to the Assistant Solicitor with that responsibility and I would handle all Magistrate's appeals from convictions from Magistrate's court.

I was also assigned the responsibility of handling bond estreatments. You'll notice on my PDQ, it talks about my one percent in civil court. These would be the two things that I would have done in Civil Court. First, the Magistrate's appeals and second is bond estreatments.

Estreatments are a function of the Solicitor's office whereby we take surety bondsman to task when their people that they have gotten out of jail. We hold them financially responsible, so I've been handling bond estreatments since then.

In 1986, I graduated from the Career Prosecutor course, the National College of District Attorneys and I was at that point appointed the Career Criminal Prosecutor in the Solicitor's Office. It would be my responsibility to target those people then identified as career criminals. There is a belief with empirical data to support it that there is a ten-percent of the criminal population that commits up to 50 percent of the crimes. At least what they teach you at the National College of District Attorneys, if you can target that ten percent then you have greatly reduced the amount of crime in the community.

Since that time, I was also asked to head up a task force for the prosecution of obscenity. Our office worked on a community complaint basis where someone from the community complains about possible distribution of obscene materials. It was asked that I head a circuit wide, which is Charleston and Berkeley Counties, task force, identify what the problem was and then prosecute that. I did that in 1988.

Since that time -- those, of course, are just additional responsibilities to the normal ones that I think you would understand comes with the prosecution in the Solicitor's Office. I currently am the Senior Prosecuting Attorney in charge of the preparation, investigation and prosecution of major felony offenders and violent criminals.
Q. Mr. Sinclaire, you on your PDQ note that you've been in -- that you've worked in the Solicitor's Office since graduation. The questionnaires that came into the committee, the responses were overwhelmingly positive about your work as a Solicitor.

They usually were glowing and there was always a "but" about three-quarters of the way in the sentence. And then the "but," what followed it differed sometimes, but usually it went along these lines: Is he too serious to be a judge? Does he have a sense of humor? Does he perceive a difference between the role of a judge and role of the solicitor? Would he be able to be fair to criminal defendants? Would he be able to put his job as Solicitor behind him?

Those are just some of them and there wasn't anybody that said Mr. Sinclaire is not qualified or I know the answer to this and I say he's not going to be able to do this. There was a "but" that left that question open and I guess it would have to be left open because nobody knows what you're going to do or how well you're going to equip yourself.

Aside from the issue of the limited nature of your civil practice, how would you answer that general concern of making the transition from being a tough, hard solicitor, which I think probably by your own admission that you've been that, to being a judge who has to take into account all viewpoints before him?
A. When I graduated from law school, I was 23 years old and I started in the Solicitor's Office. I was convinced that I could eliminate crime in Charleston County. I worked hard to do that. I have learned through the experience of being in court as much as I have been. The value of the Rules of Evidence and what they're designed to do and who they're designed to protect.

My job as a solicitor, although I like to think that I have been a hard-nosed solicitor, someone who is taking his job very seriously. My job as a solicitor has been to seek justice and justice doesn't mean getting a file in your office. If someone's charged with a forgery and trying to seek seven years incarceration -- that's the maximum penalty for forgery would be -- my job every day has not been maximum incarceration. My job is to seek justice.

A lot of people -- I mean you can tell them that, that sounds pretty hokey, but it -- I don't think it's hokey a bit. In a case like a forgery, that's a first offender of a nonviolent crime, what we want to do is we want to set him straight. We want -- we don't want him to go to the prison population. We don't want him to mingle with people that might cause him to go back out and commit another crime.

The Legislature has enacted Pretrial Intervention. It's for first offenders of nonviolent crimes. To my mind, he's automatically a candidate for that. What you do as a solicitor in your pursuit of justice is you ask the victims and the witness -- and you talk to the witnesses with the -- number one, the victims will say what's fair in your mind, what's just in your mind? And then you temper that with your own feeling, your own beliefs and that's what you seek. You don't seek maximum incarceration.

Now, there are heinous crimes committed in Charleston County particularly every day. It's one of the top three busiest circuits in the state. And there are crimes that I feel would warrant maximum incarceration. I listed a couple of them on my PDQ. I would just be fair.
Q. Tell me a little bit more about -- tell me a little bit about how you would make up for your lack of civil.
A. I think when you talk about civil experience, really you're talking about the Civil Rules of Procedures. The cases that I've been able to look in on in civil court, certainly the ones I've witnessed when I was getting my Rule 5's years ago, I think what judges have to do in civil court is rule on the evidence before him.

Civil court judges shouldn't bring with them a predisposition for a plaintiff's attorney or a big time defense firm. They should rule on the evidence before them. I would know the law of the cases before me. If it wasn't through pretrial briefs submitted by the attorney before me, it would be on my own, so that I would have a working knowledge of the issues in front of me and just take to the bench that which I think I've gleaned from ten years of practicing in Circuit Court and that's thinking on your feet, watching how Circuit judges rule from the bench and then rule on the evidence in front of me. That's what I'd do.
Q. You mentioned awhile ago that you would seek to do justice as a Circuit judge and admittedly it's hard to predict the type of cases that would come before you. If you were sitting in a criminal court, but while a judge cannot preordain how he would handle sentences, what would be your philosophy in sentencing? What would you try to accomplish?
A. I really would try to carry I think the sense of fairness that I've developed in the Solicitor's Office to the bench. You know, I heard you ask a couple of the other candidates earlier what about negotiated plea, what about a, you know, pattern that might disturb you as to whether you could or couldn't. The South Carolina Supreme Court has recognized different forms of pleas.

If you've got a negotiated plea, well, a negotiated plea binds the hands of the judge if he accepts the negotiations. Then there is recommendations from the Solicitor's Office as to what the maximum sentence should be. There has been sort of a slipping away from that. I don't think our focus -- or maybe an understanding because of the youth of the attorneys in practice before the judges, they sort of intermingle the two.

A recommendation from the Solicitor is just that and the defendant is told now you know in advance that as a judge, I'm not bound by any recommendations. And he has to say yes or no to that. He understands that I may go above or below the recommendations and he accepts that. Negotiated pleas, that's where you bind the hands of the judge. A negotiated plea is to the charge.

If it's a criminal sexual conduct, first degree, you may be pleading down to CSC, second, assault and battery high in aggravated nature. A negotiated plea is to charge and to sentence. So you could actually say we have decided -- the State and the Defense have decided the appropriate sentence is and if I go along with it and if I believe that it's fair and just and I would take to the bench an understanding of the litigants before me who know their case far better than I would ever understand from the five or ten or twenty minutes that you are -- have the benefit of the party before you, especially during plea. And I would have to take to the bench that understanding that they know their case better than I do.

When a Solicitor comes in and makes a recommendation, it may be because he's got problems with his case or because the victim has asked him to as well as the defendant's attorney, so I would say that very few times without knowing the exact facts before me would I vary from the recommendations. I just stated, you have to hear the facts and the evidence.

If it's a negotiated plea and I couldn't live with it, just thought it was a slap in the face of justice, then I would just tell the attorneys, hey, I can't take that plea, but there are other judges that might come behind me.
Q. Would it ever be appropriate to criticize that public -- solicitor or his approach?
A. Mr. Couick, you probably know as well as anybody, the citizens of this State, I certainly see it on a daily basis, they -- the attorneys, the judiciary -- we get the worst rap I think than any other profession in the world. And I firmly believe in the Canons of the Ethics Committee, Code of Judicial Conduct that you should never publicly criticize the litigants and the judges for their decisions.

Now I've heard it said before, and I'm glad, you just need to take them aside and you just talk to them, say, hey, is there a problem? What's the situation? I think that when you put on the robe especially that you owe the South Carolina Bar and the judiciary across this nation a responsibility far above what an attorney would -- how he would act on his own publicly or privately and certainly better than just another --
Q. How does pressure work with you? The pressure of a job whether it be solicitor, judge and deadlines and time frames and what kind of impact does that have on you?
A. Well, I think that the pressure that we have had in the Solicitor's Office has been a real, real testing ground for us. You know, one of the judges I admired the most was John Hamilton Smith and John Hamilton Smith moved his cases in an efficient and fair manner with just an encyclopedic knowledge of the law. And there are many the scar on the backs of me and the other assistant solicitors that were up here before him, who weren't prepared, who couldn't handle their case load and we would be ready.

I would take Judge John Hamilton Smith's work ethic to the bench and temper it with I think just a complete understanding of the problems and the situations that can come up on every single case.
Q. You mentioned awhile ago that you didn't think it was imperative for you to have a broad knowledge of I think of civil law, not civil procedure, but civil law, you just -- if I heard you right, you said that one of the things that was one of strengths of John Hamilton Smith was he had encyclopedic knowledge of the law and he could move cases because of that.

I hear -- I sense there is some friction between those two statements. If you're going to be like John Hamilton Smith, you need an encyclopedic knowledge of the law. Can you tell me where I'm missing the boat here?
A. I don't think you're missing the boat other than the fact that that was just one of the things that I admired about him. I think it's a tremendous asset to carry forward to your service to the bench. I don't have an encyclopedic knowledge today of civil law.

We get advance sheets with all the case law handed down by the South Carolina Supreme Court distributed through our office as they come down. But I -- as you're aware, I don't have the working knowledge of those cases right now. I know where to get the law. I know how to find out what it is. I would carry as much knowledge as I possibly could muster into every case that was before me.
Q. What measure of compassion do you owe a litigant rather than an attorney that comes into your courtroom --
A. I'm sorry?
Q. -- or person -- what measure of compassion and understanding do you owe a litigant or any other layperson who comes as a witness into your courtroom?
A. Judge Richard Field -- I mean he's been mentioned twice before. He had the most uncanny ability. He was the epitome of a perfect gentleman on the bench. He didn't care who you were or where you came from. If you came into his courtroom or you came into his chambers, he would treat you just as he would like to be treated. Not as a judge, but just as a human being. And that's the sort of compassion that I would aspire to take with me to the bench.

My job as a solicitor, you know, the victims and the witnesses and they are petrified of what goes on in a courtroom. They haven't seen it except for what is on television. They are afraid. That that's almost uniform.

Every case I get has different witnesses and different victims and different crimes that have been committed and in every case it's a real education process to the victims and the witnesses about how the system of justice works and why it works the way it does and why it's the best system in the world. That's the sort of compassion that I feel. Not just working in the Solicitor's Office, but just by a firm belief in God and the faith it gives me the desire to treat it that way.

I like everybody to like me just like everybody else does. In that sense, you just go out of your way to explain to them until they're comfortable how it works and why.
Q. I assume since this is your first run for the position that if you were elected, you'd serve for the full term?
A. Yes, sir.
Q. I also take it that you mention on your form, you have no Martindale-Hubbell rating. You're not sure why you don't have one, but you don't have one?
A. I've since found out why I didn't have a rating. You have to request one.
Q. Ex parte communication, in that -- it's a little bit different, I take it, from my understanding in the civil practice as it is in the criminal practice because you just have different types of courtrooms being run, but how do you handle it now? What do you do to ensure the rights of that defendant in ex parte communication and how would you handle ex parte communication both in criminal and civil matters if you were a judge?
A. The way I handle it now is I just don't go talk to the judges unless the attorney that's handling the case with me is in there. It's not until you've seen it happen and you see the way -- I mean it just goes back to that fear thing. People don't know what they're not privy to and they're afraid of that.

If an attorney sees another attorney that they're handling a case with coming out of the judge's chambers and hearing them, you know, laughing and having a good time and out comes this attorney and he's got the next case up, you know, they -- that attorney has no idea what's just gone on.

Has any sort of information about the case been submitted? I mean it's a dangerous thing and I think the emphasis that you put on it is why, not necessarily because it's a dangerous thing because you don't know the story until you know both sides of the story I think and you don't want to hear one side of the story first and start forming an opinion about it. So it's a dangerous thing that can happen not only because of those elements, but because -- it's dangerous because the other attorney doesn't know what happened and that's not fair.

So the way we handle it now at least when I handle it and I'm pretty sure the other attorneys in my office handle it, because they're -- they just don't. They find the attorney that -- public affairs office, but there is that ten to twenty percent of the cases where, you know, there's another attorney, just find him and say we need to go talk to the judge. It's as simple as that.

As a judge in civil court, I would be a advocate of that same principle, just use it as far as the conferences go on the telephone. That's about it.
Q. As a member of the Bar now, what is your expectation of a member of the judiciary in terms of recusal? What do you think is a correct statement and why for when a judge should recuse himself?
A. Well, obviously, where there is a conflict of it delineated by the Code of Judicial Conduct. That's a given. As far as a judge goes, if something clicks in you where it just might even have the appearance of impropriety, you would -- I would contact the other attorney.

You had talked about sailing clubs. And I play golf on the weekends. If I played golf with an attorney and it turned out I was -- they had a case before me the following week, well, I would call the attorney who was representing and say, you know, I didn't know he was going to be -- if I knew he was going to be front of me the next week, I wouldn't play golf with him. It's that simple. Or I didn't know and it came up, then I'd call the attorney and explain it to him, explain the situation and just ask them what they want. If he says I don't feel comfortable with that, I want you to recuse yourself, I would consider it.
Q. I might have misheard Judge Keesley earlier, but it seemed like he had adopted a rule that he was more often not the one actually doing the recusing, but rather than being requested, he recused himself. There seems to at least be some value in terms of it takes the burden off of litigating attorneys. What's your sense of that?
A. I think that's a good idea. The point that he brought up I think subsequent to that was, you know, no attorney likes to say, "Hey, Judge, why don't you recuse yourself?" and then have the judge not do it because then -- even though the judge will probably from that point on forward make more mistakes in favor of the attorney who makes that motion. It's just an over avoiding appearance of impropriety.

It's been my experience for the most part, attorneys are afraid to do that, wouldn't want to do that, so I think Judge Keesley's method is the preferred one.
Q. You noted to the Senate Ethics Committee that you had expended $755 in campaigning for this race so far and I jumped immediately to the total and didn't look at the above and when I go back up, you note that you had spent $25 for phone calls and $10 for postage and $720 in annual leave?
A. That's correct.
Q. So I take it the annual leave is actually not an expenditure on your part, but out of an abundance of caution you're listing it just to make sure? I would note that you followed the letter, but since you -- by your own standard have exceeded the $100 limitation, have you filed a copy with the House Ethics Committee?
A. No, sir, I have not. And I --
Q. I would suggest that you would to comply. I'm not sure you need to, but since you defined your own standard, it might be well to give both Committees a copy of the letter and complete the forms.
A. Okay. The rule -- you're right by calling it an abundance of caution. It wasn't any out of pocket -- it's not anything I've actually spent, but my wife will tell you it's vacation time for next year that I'm spending.
Q. Go on to the issue of temperament and one thing the Committee has cautioned me throughout this process is always make sure that it's fair to the person appearing here that he's not responding to something that he has no ability to cross-examine the person that accused him, but in this case, I bring up the issue because it was a fairly consistent concern.

Once again it was not a criticism in the sense that it was disqualifying on your part, but it was concern that perhaps you had a temper and that sometimes that temper tended to keep you from seeing both sides of the issue. And that when you lost your temper, you tended to proceed to the farthest corner of an issue and lock in there.

Realizing what I've laid out, there is nobody here for you to say who did it or whatever, I don't know either. Tell me is that right or wrong. I mean how are you going to handle that if it is right once you're on the bench? What do you intend to do about it?
A. I would be disturbed that I had ever been perceived as someone who refused to see both sides of the issue. That would disturb me.
Q. I can take it, you're not disturbed that somebody thinks you have a temper?
A. I don't think that I have a temper that accordingly different from any other person, to be honest with you. You say you've had a number of responses, I would just refer back to maybe a time frame.

I remember when I first started ten years ago in the Solicitor's Office, the frustration I felt about the Rules of Evidence and how you -- if a defendant didn't take the stand, it wasn't -- you know, the jury would never hear about his two prior armed robberies and I remember the frustration that I felt and I remember a fire in my belly in my effort to stamp out crime in Charleston County. And I think the responses that you got may relate back to that earlier time. I really do because the work that I have been doing and I know a couple of attorneys that told me that they actually sent in -- they sent the responses in -- they told me, hey, I told them, you know, you used to have a problem with, you know, your temper, but I want you to know I told them the truth that, you know, in the last five years you really have, you know, come a long way. And to that, I would only attribute just a maturity, just growing up in the system and being a part of it and seeing the system has the rules that its got and existed for the time that they have because they are there to protect the rights of the people.

And that's -- in that sense, I have been able to over ten years and certainly since my early days in the Solicitor's office to work within the system to fully appreciate what they are there for.
Q. If you were to have the tremendous strength in terms of excellent criminal experience by being a solicitor and that that at least raises the issue, how balanced is your perspective and you've addressed that in terms of the law and to some degree in terms of how would you remedy your lack of experience in that by law or procedure.

There is also the issue of compassion and we talked a little bit about fairness and justice, but from a term of practical experience, things that have helped you develop that compassion or have given you enough experience to understand the problems of folks that may end up before you as defendants. Have you had any experiences that you would like to point to the Committee or that have been enabled you to develop a sense of compassion for the plight of some folks that may, if not cause them to end up in circumstances, may travel along with them as they come to the circumstances?
A. I think -- I do believe that I empathize well with people. I've been working in the job that I've been working at, I've been able to put myself in the shoes of the people that I'm dealing with --
Q. Can you speak up a little bit? We're having a hard time.
A. I think that if you ask the members of the Charleston County Bar that have been working most closely with me, I think above all else they're going to tell you that I'm fair. I think that they're going to say now he -- he's firm in his commitments. He does what he believes is right. He always tempers that with a sense of fairness.

Now, you asked about a specific example, I through St. Philip's Church that I'm an active member of I work down at the homeless shelter. I'm an overnight volunteer down there. We feed the homeless the fourth Monday of every month. I don't say that because that in any way gives me a better sense of knowing where some indigent defendants are coming from, but just a sense that I -- there are problems out there that you deal with on a daily basis. It's just one of them.
Q. Gifts, you've heard the questions before. What's your approach to gifts? What would it be?
A. I think rather than trying to figure out what is a gift and what isn't a gift, the easiest thing is just not take it. Pay for your own lunch. Pay for your own golf. Don't go on extended vacations with attorneys that are going to practice before you.

It's just so much easier to say, hey. They're going to respect that. They know why I'm doing what I'm doing. They'd say I understand. You know, if someone tries to force something on me, that's going to raise a red flag in my book or in my mind and I think the easiest thing to do is just don't accept it. Thanks, but no thanks.
Q. And finally the question about pledging, the two parts, have you sought the pledge of a legislator prior to this process being completed and then have you asked any one to seek consideration of your candidacy by any means before today?
A. No, sir. You asked if I --
Q. First of all, have you sought a pledge from any Member of the General Assembly?
A. No, sir.
Q. And as the second one, have you sought anyone else to go out and ask for consideration of you and that person actually do it?
A. Absolutely not.
Q. Mr. Chairman, that's it.
THE CHAIRMAN: Any Members have any questions?
REPRESENTATIVE BEATTY: Just one.
THE CHAIRMAN: Yes, sir. Representative Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q. Mr. Sinclaire, would you describe yourself as prosecutorial advocate or a zealot?
A. I'd say an advocate, sir.
Q. Thank you.
A. You has asked Mr. Armstrong earlier how many cases he nonprossed. A nonpros is a term of our -- in our profession that means the case has been indicated and I would never send any case to the Grand Jury that I wasn't convinced to a moral certainty about the person's guilt, the person's rapport before it would be sent before the Grand Jury.
THE CHAIRMAN: Any further questions? That completes it. We thank you for coming and you're free to go, if you would, sir.

What is the pleasure of the Committee? We have completed the At Large Seat, Number 2 and I think the next one up will be the Third Judicial Circuit and we've got a full contingent.
REPRESENTATIVE ALEXANDER: I'd like to recede until 2:00.
THE CHAIRMAN: Where is Senator Saleeby?
REPRESENTATIVE ALEXANDER: He just departed until 2:00 o'clock. That's what I would like to do. Recede until 2:00.
THE CHAIRMAN: Recede until 2:00?
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: Do you mind if we go ahead and take one more, so we can kind of stay because I think we've got a little bit more than we got tomorrow.
REPRESENTATIVE ALEXANDER: Okay. I'll withdraw it.
THE CHAIRMAN: And the rest of us can -- have to eat a little bit faster than the Senator. If that's okay with everyone to go forward at this point instead of breaking for lunch? Is that acceptable?
REPRESENTATIVE ALEXANDER: And then we're going to break for lunch?
THE CHAIRMAN: Then we're going to break for lunch.
REPRESENTATIVE ALEXANDER: All right.
THE CHAIRMAN: All right.
REPRESENTATIVE ALEXANDER: I'll stay.
THE CHAIRMAN: I believe you'll have to flip back up in your books to Tab Number 1 and the Judicial Circuit for Clarendon, Lee, Sumter and Williamsburg County, David F. McInnis.
JUDGE MCINNIS: Good afternoon.
THE CHAIRMAN: Glad to have you back. I'm not going to ask you if you miss all of us. If you would, raise your right hand, please, sir. And do you swear to tell the truth, the whole truth and nothing but the truth so help you God?
JUDGE MCINNIS: I do, sir.
THE CHAIRMAN: Thank you, sir. Have a seat. For the record, Judge David F. McInnis, Judge for the Third Judicial Circuit. Have you had -- your last screening I look on the record here was March the 10th, 1988. Is that about correct?
JUDGE MCINNIS: Yes, sir.
THE CHAIRMAN: And have you had a chance do review the Personal Data Questionnaire Summary?
JUDGE MCINNIS: Yes, I have, and there is only two little minor things that I caught was in the five Orders that you requested. I think the caption in two of them said Sumter County. Two of those particular orders were from Lee County, but I don't remember which two they were.
THE CHAIRMAN: Let me see. Do ya'll have that?
MR. COUICK: Yes, sir.
THE CHAIRMAN: Staff informs me that they have made that correction on the record, sir. We have that note. Anything else you wish to add to it?
JUDGE MCINNIS: Your Staff asked that I bring a letter indicating the whereabouts of my children now and what I did between the time I got out of the Air Force and I went back to law school, and I submitted that this morning.
THE CHAIRMAN: Okay.
MR. COUICK: We need to add that to the overall record, Mr. Chairman.
THE CHAIRMAN: I understand that they have that and we will add it to the overall record.
JUDGE MCINNIS: Thank you, sir.
THE CHAIRMAN: All right, sir. If there are no other clarifications, do you have any objection to us making this summary a part of your record of sworn testimony?
JUDGE MCINNIS: Not at all.
THE CHAIRMAN: Then we'll direct that to be put in the record at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. David F. McInnis
Home Address: Business Address:
702 Reynolds Road P. O. Box 10
Sumter, SC 29150 Sumter, SC 29151-0010

2. He was born in Timmonsville, South Carolina on August 5, 1934. He is presently 59 years old.

4. He was married to Barbara Bruce on March 29, 1958. He has three children: Shawn M. Perkins, age 34 (housewife); David F., Jr., age 32 (salesman); and Lee I., age 26 (Airborne Express).

5. Military Service: Air Force; A03074163; September, 1957 - March, 1958; 2nd Lt.; 7 1/2 years reserve; Cpt.; Honorable Discharge

6. He attended the University of North Carolina, 1953-1957, A.B. Degree; and the University of South Carolina, 1962-1965, LLB & JD.

8. Legal/Judicial education during the past five years:
He has met all CLE requirements while practicing law. He has met all JCLE requirements since becoming a Judge in 1985.

9. Taught or Lectured: He lectured at Sumter TEC to community groups and students on scope and jurisdiction of the South Carolina Circuit Court.

12. Legal experience since graduation from law school:
General law practice, trial work

13. Rating in Martindale-Hubbell: To his best recollection he had a "B" rating when he practiced in 1985. He has no publications to verify this information.

20. Judicial Office:

He has served as Circuit Judge for the Third Circuit since July, 1985, elected by the General Assembly of South Carolina. Jurisdiction is unlimited.

Sumter City Recorder, 1966-1970; jurisdiction same as Magistrate; maximum of $200 fine or 30 days incarceration

21. Five (5) Significant Orders or Opinions:
(a) Citizens for Lee County, Inc. v. Lee County, No. 90-CP-31-131 (Lee County, S.C., Court of Common Pleas, June 13, 1991), affirmed Op. No. 23652 (S.C. Sup. Ct. filed April 22, 1992).
(b) Dennis v. Timmons, No. 91-CP-43-731 (Sumter, S.C., Court of Common Pleas, April 21, 1992), affirmed Op. No. 2064 (S.C. Court of Appeals filed August 9, 1993).
(c) Cunningham v. Clark, No. 88-CP-43-971 (Sumter, S.C., Court of Common Pleas, May 24, 1990), affirmed Op. No. 92-UP-118 (S. C. Court of Appeals filed July 2, 1992).
(d) Ardis v. Cox, No. 90-CP-43-703 (Sumter, S.C., Court of Common Pleas, September 30, 1991), affirmed Op. No. 2021 (S. C. Court of Appeals filed June 1, 1993).
(e) Berkeley Electric Cooperative, Inc. v. Town of Mt. Pleasant, 394 S.E.2d 712 (S.C. 1990) (McInnis, acting Associate Justice dissenting).

22. Public Office: South Carolina House of Representatives, 1975-1982, elected from Sumter County

24. Unsuccessful Candidate:
He ran for Lt. Governor of South Carolina in 1982, and was defeated in the Democratic Primary.

25. Occupation, business or profession other than the practice of law:
He was a Chamber of Commerce Executive in Sumter (1958-1959); Conway (1959-1960) and Lancaster (1961-1962).

28. Financial Arrangements or Business Relationships (Conflict of Interest):
He rents his former law office to a local attorney. He states this for the record in any case that comes before him that this attorney is involved in. He would recuse himself if requested. The attorney is not engaged in a trial practice.

He has never been cited or disciplined for unprofessional conduct or a breach of ethics. There have been two instances where formal complaints have been filed with Judicial Standards.

The first complaint was from a Defendant in Criminal Court that represented himself at trial and was convicted. The Defendant complained that Judge McInnis had denied him an attorney. Judge McInnis sent a copy of the trial transcript to the Commission that clearly showed that he had advised the Defendant fully of his right to counsel and his waiver of the same. This complaint was dismissed.

The second complaint was filed by a juror from Georgetown County. When that particular jury panel was being qualified, the juror stated that his religion prevented him from judging others. Since the law that sets out exemptions from jury services does not list religion as a reason for disqualification, Judge McInnis asked the juror if he would volunteer for other courthouse duties sometime during the week of court. The juror volunteered and was given some minor task in the office of the Clerk of Court. The juror filed a complaint with the Judicial Standards Commission alleging that Judge McInnis had violated his rights. The complaint was dismissed.

45. Bar Associations and Professional Organizations:
South Carolina Bar; Sumter County Bar Association; American Bar Association; South Carolina Circuit Judges' Association

46. Civic, charitable, educational, social and fraternal organizations:
Phi Delta Phi Legal Fraternity; Sunset Country Club; BPOE #855 Sumter

48. Five (5) letters of recommendation:
(a) John M. Graham, Regional President/Sumter
The First Savings Bank
P. O. Box 1178, Sumter, SC 29151-1178
775-9323
(b) Rex L. Carter, Esquire
Carter, Smith, Merriam, Rogers & Traxler, P.A.
P. O. Box 10828, Greenville, SC 29603
242-3566
(c) Ramon Schwartz, Jr., Esquire
Schwartz, McLeod, DuRant & Burchstead
10 Law Range, Sumter, SC 29150
775-9000
(d) George C. James, Esquire
Richardson, James and Player
P. O. Box 1716, Sumter, SC 29151
775-7815
(e) O. V. Player, Jr., Clerk of Court
Sumter County Courthouse
Sumter, SC 29150
436-2227

BAR RESOLUTIONS: Lee County, Sumter County, Clarendon County, Williamsburg County

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
July, 1985 to present; Circuit Court Judge; Third Judicial Circuit

The Board of Commissioners on Grievances and Discipline reports that no Formal Complaints of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. Records of the applicable law enforcement agencies: the Sumter County Sheriff's Office are negative; the Sumter City Police Department are negative; SLED and FBI records are negative.

The Judgement Rolls of Sumter County are negative. The Federal Court Records show no judgements or criminal against you. There was one civil rights action brought against you and 175 other individuals, including the South Carolina Legislature, former Governors West, McNair, Riley and the Members of the State PRT. The suit was dismissed in 1982. No complaints or statements were received.

My notes indicate there are no witnesses here today to testify, so at this point, I would turn the matter over to Mr. Couick and ask you to please answer any questions he's got, sir.
JUDGE MCINNIS: Be glad to.
JUDGE MCINNIS - EXAMINATION BY MR. COUICK:
Q. Good morning, Judge. Judge, if you need anything or if you can't hear me, just let me know, if you would.
A. Thank you very much.
Q. Judge, in the area of judicial temperament, we'll start there because it's kind of the easiest one to start with, what's your approach? How do you ensure that a litigant gets a fair trial and the attorneys that appear before you if not have an enjoyable experience, they at least have one that they -- it's not to their detriment?
A. Well, after having a fairly active private practice for 25 years before I got on the bench, I can remember very well how I expected to be treated as an attorney and judicial temperament has been defined in many ways. I think it's not -- it's showing some restraint there.

As Judge Keesley said, there are times when attorneys will try your patience either by accident and sometimes on purpose. And you don't have to -- you can't let that get under your skin. You try to be evenhanded, don't talk too soon, compose yourself, try to treat them like I wanted to be treated while I was practicing.
Q. What circumstances are appropriate for an attorney to be dressed down, critiqued, given some instruction in the courtroom versus those that are appropriate for the Judge Field's approach where you ask them back in the back afterwards? What's the dividing line in your mind?
A. That's been my experience is if you -- it's only happened twice and the lawyer was getting a little too vigorous, a little too aggressive, I just asked him to step back into chambers. Bring your court reporter back there. I usually have my clerk there as witnessing this and tell him what you have -- that he's a little bit out of line, you know, gone beyond the bounds, restrain himself or you're going to have to do something about that. I try not to embarrass attorneys in open court regardless of how aggressively.
Q. So generally in terms of critique, one would never really fall ever on the other side of the line where you would do it in open court?
A. The most I'll ever do is -- of course, we have a rule that says once a judge has ruled, you don't argue with the judge after the rulings. Some attorneys will attempt to pursue the matter after you ruled and I just remind them of the rule just as discreetly as I can and then if they persist, I might bring them back into chambers.
Q. I think you may have heard the question that I asked earlier of the two persons that were either assistant solicitors now or deputy solicitors about the relationship between judges and solicitors, which in this state seems to be one that either is very, very successful or there seems to be some rub between the two because they don't match either personality wise or ideas of how cases ought to be treated, don't match up or there are some circumstances where there has publicly been friction, perhaps friction between a solicitor and a resident judge. How do you handle that? How -- when you ever have an occasion to disagree, has it been public or how do you handle your sense of frustration from time to time if you have one with your solicitor?
A. As far as I'm aware there have never been any public disagreement. If something comes up that I want to discuss with him and tell him that I disagree with him, we'll do that in chambers and my solicitor knows me well enough to know that he can tell me what he thinks and he knows I'm going to tell him what I think, but we can either settle our differences there or -- you know, he's the prosecutor. I might disagree with him, but I can't tell him how to do his job.
Q. Laypersons and witnesses and folks that are litigants in your courtroom, what's your approach to those folks? Not just attorneys, how do you treat folks that come in our courtroom, lay people?
A. Of course, lay people are inexperienced. They don't know what they're facing. I try to put them at ease. Witnesses are naturally nervous and I often tell them that I recognize they're nervous. Nobody is there to take advantage of them and certainly not the Court and try to smooth things over as best you can. Lay people that come in to testify as witnesses, I try to -- if you have an expert witness, I try to get them in, accommodate them by having their testimony heard even if we have to take it out of order, so we don't impose on their time anymore than necessary.
Q. The docket in a court, I guess, would have as much to do with the flow of things as anything else, particularly when there is pressure being brought from somewhere to move things along. How do you balance the interests that you just discussed with the pressure from Court Administration or from the Supreme Court or just your own sense of pressure you have about you making sure you get through with some things?
A. Well, under Justice Ness' court, we had a pretty firm rule that when a case got to be -- let's say, a civil case got to be 365 days old, it was time to dispose of that case. And I imagine that when an attorney appeared before me with a case that was over a year old, I probably wasn't as accommodating with continuances and putting things off. Since that time, of course, under Justice Gregory and Justice Harwell things have eased off a little bit. It's not that quite a firm a rule, you can be a little more accommodating.
Q. Judge, I had asked each of the earlier persons their term of commitment to being a judge. If you're reelected, do you expect to stay through the completion of this term?
A. Yes, I do. I almost cried when Judge Keesley said he was still in the Jaycees. This is the first time that my age will allow me to think about some type of retirement in the future. I could retire during this term of my tenure on the bench. I don't anticipate retiring.

Of course, the longer a judge stays on, the greater his retirement benefits up until the time he reaches mandatory retirement. I will not reach mandatory retirement during this term.
Q. How do you handle the problems inherent to ex parte communication?
A. Ex parte communication, the potential comes up most often in nonjury matters. I generally rule from the bench. I'm a firm believer that I'm never going to know more about that case than I know right then after I've just heard from the attorney, so I try to rule from the bench.

If you have a complicated issue with extensive briefs and they present cases to you that they want you to read, I will do it one of two ways. Once I make up my mind, I will call the attorneys that I rule for, tell him I've ruled for him, ask him to prepare an order if I'm not going to prepare it myself. I immediately thereafter call the other attorney, tell him I have ruled and how I ruled and he can participate in receiving it in an order.

Sometimes, I'll call both of them simultaneously and tell them both to prepare orders as if they had prevailed, then I will sign the one I'm going to sign.
Q. And the question of gifts, I think you've heard enough of my questioning earlier. What's appropriate to take? What kind of gift do you take whether it be lunch, dinner trip, some other item? What do you -- what's your measure of comfort?
A. Well, I don't have a measure. I think it's more of a feeling than anything else. Certainly, you don't want to do anything that would appear any type of impropriety. For example, we judges used to get a lot of cakes and pecans, cheeses around Christmastime from various attorneys. I never accept those anymore. We have an orphanage in Sumter and I take everything out and give it to them. I thank the attorneys for the gift and I tell them what I've done with it.

If I'm down at the beach playing golf and two or three attorneys happen to be on the trip, and one says I'll pick up the drinks, if it's not expensive, I might go along with that. Sometimes I pick them up myself.
Q. Would it ever be appropriate to accept a gift of a trip or something of that nature, do you think?
A. I don't think so, no. I've never had the opportunity to turn that down yet, but...
Q. You note in our Personal Data Questionnaire that you rent an office, I believe, to a lawyer and I also understand that attorney is not engaged in a trial practice?
A. He is not a regular trial attorney. He has had one or two matters before me. I've put on the record that relationship that he rents my old office and if there is any question there the attorneys have as far as recusal if the motion were made, I would recuse myself and it -- that motion has never been made.
Q. You ran unsuccessfully for Lieutenant Governor in 1982, I believe?
A. Correct.
Q. And you were first screened in 1985, you made note that there was some campaign debt left over from your Lieutenant Governor's race at that point. You went on to say that you were at that point trying to retire the debt before you went on the bench?
A. That was retired.
Q. You were able to take -- retire it?
A. Yes.
Q. You also note in your Personal Data Questionnaire that you've not expended any monies other than the cost of travel perhaps in this campaign. Does that continue to be true today?
A. Yes, sir.
Q. As it relates to pledges being sought from the Members of the General Assembly either directly by you or requesting a Member -- some other person to contact a Member of the General Assembly, have you engaged in any of those?
A. No, sir. That issue came up in my mind and, you know, we always are very conscious to stay in times of conflicts. I wanted to get the Bars for the four counties in my Circuit to endorse my candidacy if I could, so I contacted the president of each bar association and asked them if there were no -- if I had no opposition, would they be inclined to do that. All of them say they do.

Now in Sumter, we hold a meeting and you vote and the president signs some sort of resolution. In the smaller counties, they get up a resolution and they send it around to the various attorneys for their signatures. Some of those attorneys happen to be Members of the General Assembly. I didn't want this Committee or anybody else to think that that signature on a Bar resolution was an endorsement. But that's the only way that county -- those particular counties know how to handle it, but the issue could I guess be raised, is that some sort of an commitment.
Q. Yes, sir. And, in fact, Counsel had spoken with the Chairman and Vice Chairman not as to your particular issue, but about Bar Resolutions in general and I think this Committee will probably have to be faced with determining for in the future how to handle that matter because it -- under the terms of the law, it certainly comes close to the line referring -- depending on the involvement of the candidate in terms of whether it complies with the law and that was one of the things I think the Committee will need to look at.

You had three letters of reference from practicing members of the Bar and as did a number of other candidates, both incumbents and challengers. Would it ever be appropriate to ask a member of the Bar to write a letter of recommendation while they had a case that you were actively considering?
A. I would have to think about that because nobody knows more about a sitting judge than a member of the Bar and I could get letters of reference from any number of people, but I really don't know who would know more about performance as a judge as a member of the Bar.

From time to time all of them have cases on my roster. I had not thought about that frankly, but I would hope that it would have no bearing on any ruling that I would make. No more so than the question you asked about a member of the General Assembly appearing before a judge.
Q. Has anyone ever made a motion to you to recuse yourself in those circumstances --
A. No, sir.
Q. -- when there has been a Member of the General Assembly before you?
A. No, sir. I hadn't had that particular situation in Florence apparently.
Q. I have no other questions, Mr. Chairman.
THE CHAIRMAN: Thank you. Any members of the committee have any questions?
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: Yes, sir. Representative Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. This endorsement by these -- those Bar Associations?
A. Yes, sir.
Q. Did you wonder why those Members of the General Assembly didn't excuse themselves from signing this endorsement since they are all aware that no endorsements are to be made until you've cleared screening?
A. The rule doesn't say endorsement. It says commitment.
Q. Commitment.
A. Have two or three people running and a member of this committee, for example, could endorse all three of them, but that's not a commitment to vote for them, so I did not think about that frankly.
Q. And what use was made of this commitment?
A. They were sent to this Committee and you have them.
Q. Do you have that?
A. I have four counties in my circuit.
Q. I'm aware of that, but I don't see the names of the Members of the General Assembly on it. Maybe I didn't read it close enough, but I just see the president's names on it.
A. Well, that would be from Sumter County. If you look at the one from Clarendon County and the one from -- well, I guess the one from Clarendon County would be the only one that applies, but I know that Members of the General Assembly with -- were at the Bar meeting in Sumter and I assumed that they voted. I did not hear that they abstained, so I don't know.
Q. But they didn't sign any paper or anything you said?
A. No, sir.
THE CHAIRMAN: Any other members have any questions? It seems to complete it. Able to get through it.
A. Thank you very much.
THE CHAIRMAN: We thank you for coming and I don't see any -- as far as I'm concerned, you're free to go?
A. Thank you very much. I've got a hundred jurors coming at 2:30.
THE CHAIRMAN: All right. It's good to see you.
MR. COUICK: Mr. Chairman --
A. Thank you. Nice to see you.
MR. COUICK: -- perhaps before we move to anything else, Counsel would like to request again that the record remain open for this candidate as well as all the candidates previously treated.
THE CHAIRMAN: Yes, sir, they -- and I hope that the transcript will reflect that at this point that the earlier motion made that all records open and that all hearings that we have this afternoon, all records will remain open until this Committee takes some action to close the record.

Is that -- is everybody interested in the motion? We will at this point entertain a motion I guess that we recede until 2:00 if that's fine with ya'll for lunch? I'm advised that 2:15 is a better time. I would ask everybody to please be here at 2:15 because we will go -- we'll probably go into Executive Session to take up some administrative matters and we need a full contingent here for that before we come and break out and come back for the hearings, so Representative Alexander has moved that we recede until 2:15. Representative Beatty has seconded the motion. Is there any discussion? There being no discussion, all in favor signify by saying aye, all opposed by nay. The Ayes have it.

(A lunch break was taken)

THE CHAIRMAN: Call the meeting back to order. Since we're on House time, we allowed a few extra minutes. I believe there are a few administrative matters that we need to take up and hear from our attorneys before we proceed forward and see if there is anything.

We normally do that at the start of the meetings, but we didn't this morning, so I ask at this moment to entertain a motion that we go into Executive Session for the purpose of taking care of some administrative matters.
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: It's now been moved and seconded. Moved and seconded, the floor is now open for discussion. There being no discussion, we'll vote. All in favor signify by saying aye. Opposed by nay. The ayes have it. So ordered. We would ask ya'll -- we hate to ask ya'll -- I guess it might be easier for us to go somewhere. Not a room large enough for us? If there was a room large enough for us, we would just ourselves move, but we have to ask you for a moment if you don't mind stepping out. We'll be quickly back with you.

(Executive Session)

THE CHAIRMAN: After a brief meeting on administrative matters being over -- for lawyers I think it's pretty brief -- we will move forward with the Screening and I believe the next position we have up is the Fourth Judicial Circuit and that would be the Honorable Edward B. Cottingham. Judge Cottingham, if you would come forward, sir. Over here. I think they're using over here on the left side.
JUDGE COTTINGHAM: Over here, sir?
THE CHAIRMAN: Yes, sir. Raise your right hand, sir. And do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
JUDGE COTTINGHAM: I do.
THE CHAIRMAN: Thank you, sir.
JUDGE COTTINGHAM: Mr. Chairman, prior to beginning, if you would permit me, I would like to introduce to you my wife and companion of some 38 years, Iris; my daughter, Jeannie, and her friend, Mary Staples. I would like to say, too, if I may that I've been here on two prior occasions. I am delighted to have this opportunity. I'm privileged to participate in the process and thank you so much.
THE CHAIRMAN: Thank you, sir. We're delighted to have you and delighted that your family is here joining us today. I see where your last screening was on March the 10th, 1988?
JUDGE COTTINGHAM: Yes, sir.
THE CHAIRMAN: Time flies, I tell you. Have you had a chance to review the Personal Data Questionnaire Summary?
JUDGE COTTINGHAM: I have, sir, and I find it basically correct.
THE CHAIRMAN: Does it need any clarification that you know of or any changes at this particular time?
JUDGE COTTINGHAM: Mr. Chairman, I think not, sir.
THE CHAIRMAN: All right, sir, if you don't have any objection, we're going to make that summary a part of the record of your sworn testimony and have that put into the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Edward B. Cottingham
Home Address: Business Address:
602 Lakeshore Drive Marlboro County Courthouse
Bennettsville, SC 29512 P. O. Drawer 1114
Bennettsville, SC 29512

2. He was born in Bennettsville, South Carolina on June 27, 1928. He is presently 65 years old.

4. He was married to Iris Evans on June 10, 1955. He has two children: Iris Jean Cottingham Clifton, age 36 (housewife) and Edward B., Jr., age 34 (attorney, Ness Motley Firm).

5. Military Service: U. S. Navy; June 10, 1946 to April 9, 1948; Honorable Discharge; Seaman 1st Class Svc. No. 582-59-92; U. S. Air Force Reserve A92245345; Commissioned 2nd Lt. May 26, 1950 (ROTC, University of S.C.); Transferred to Inactive Status List - Reserve Section 1961

6. He attended the University of Virginia, September, 1948 - January, 1949. After one semester he transferred to the University of South Carolina for financial reasons and the desire to graduate from a South Carolina institution. University of South Carolina, 1949 through January 26, 1953 - L.L.B.

8. Legal/Judicial education during the past five years:

1/15/88 Criminal Law Update S. C. Bar
5/6/88 Current Issues in Circuit Court S. C. Bar
10/20-21/88 Eminent Domain Procedure Act S. C. Bar
1/20/89 Criminal Law Update S. C. Bar
4/19/89 Issues in Civil Litigation S. C. Bar
10/26-27/89 Items of Interest S. C. Bar
1/25-26/90 Criminal Law Update S. C. Bar
3/30/90 Charleston Seminar-Circuit & Family
Courts S. C. Bar
2/1/91 Criminal Law Update S. C. Bar
4/4-5/91 The Future & The Courts S. C. Bar
10/12-18/91 Judicial Productivity Seminar Nat. Jud.
College
1/17/91 Criminal Law Update S. C. Bar
10/9/92 Circuit Court Bench/Bar Update S. C. Bar
4/18-5/7/93 Faculty Advisor, General Jurisdiction Nat.

Jud. Col.

9. Taught or Lectured: Faculty Advisor; National Judicial College; Reno, Nevada; 4/18/93-5/7/93.

12. Legal experience since graduation from law school:

Associated with the Law Office of Russell D. Miller, January, 1953 through January, 1954, general practice including trials in all courts. Joined with W. C. Goldberg, in the formation of the firm of Goldberg and Cottingham, with a general practice with particular emphasis on the trial of civil and criminal cases. Continued practice with Goldberg, Cottingham & Easterling in 1970 and with Goldberg, Cottingham, Easterling and Napier in February, 1984. He was senior member of the firm after the death of W. C. Goldberg in 1972. He has participated in numerous civil and criminal trials in the state's court as well as being local counsel for the following:

LOCAL COUNSEL FOR: J. P. Stevens Co., Inc.; Mohasco Industries; Boise-Cascade Corp; Crown Cork and Seal Corp; Marnat Packing Co.; Emerson Electric Co.; Essex Wire Corp; Powell Manufacturing Co., Inc.; Hanes Corp.; Security Federal Savings and Loan Assoc.; Carolina Power & Light Co.; South Carolina National Bank; Canal Industries, Inc.; Carolina Forest Industries, Inc.; Stora Kopparberg

Circuit Judge, Fourth Judicial Circuit, from June 29, 1984 to present.
13. Rating in Martindale-Hubbell: A

20. Judicial Office:
He was elected in 1984 to serve unexpired term; Circuit Judge, Fourth Judicial Circuit; June, 1984 to June, 1988; reelected to same seat for term July, 1988 to June, 1994

21. Five (5) Significant Orders or Opinions:
(a) William J. Quirk v. Governor Carroll A. Campbell, The South Carolina Tax Commission, Richland County and Union Camp Corporation, 394 S.E.2d 320, 302 SC 148 (1990).
(b) Irvin D. Parker, Consumer Advocate of the State of S. C. v. S. C. Public Service Commission and Duke Power Company, 342 S.E.2d 403, 285 SC 304 (1986).
(c) Joseph J. Connor, et al. v. The City of North Myrtle Beach, by and through its elected officials, Henry C. Hester, in his official capacity as Mayor of North Myrtle Beach, et al.
(d) Charleston Associates v. Provident Life and Accident Insurance Company and East Cooper Associates, through East Cooper Mall, Inc., its General Partner.
(e) Multimedia Publishing of South Carolina, Inc., d/b/a Greenville News-Piedmont Company v. J. R. Mullins, et al.

22. Public Office:
Elected to House of Representatives, 1955-1956, 1957-1958, 1967-1968, 1969-1970, 1971-1972; appointed to Board of Trustees of the University of South Carolina to fill the unexpired term of Russell D. Miller, 1960-1961; Highway Commissioner, 1972-1976, Chairman 1975-1976

32. Sued: Lillian Goldberg v. Lakeside, Inc., a Corporation, Edward B. Cottingham, individually and as shareholder in Lakeside, Inc. and William L. Kinney, Jr., individually and as shareholder of Lakeside, Inc. Action upon option on lot given by Lakeside, Inc. Settled by conveyance of lot upon agreed price. Suit filed March 31, 1983. Settled September 21, 1983.

37. Lodging, Transportation, Entertainment, Food, Meals, Beverages, Money or Any Other Thing of Value From a Lobbyist or Lobbyist Principal:
Each year, Judge Cottingham and one of his guests are invited to attend the spring and fall races at Darlington Speedway as their guests.

45. Bar Associations and Professional Organizations:
South Carolina Bar; American Bar

46. Civic, charitable, educational, social and fraternal organizations:
Member of Masons & Shriners; Member, Marlboro Area Players

48. Five (5) letters of recommendation:
(a) Tracy Kea, Jr., Vice President
South Carolina National Bank
P. O. Box 637, Bennettsville, SC 29512
479-6221
(b) Douglas Jennings, M.D.
132 Marlboro Street, Bennettsville, SC 29512
479-2341
(c) George C. McIntyre
N. Liberty Street, Bennettsville, SC 29512
479-4215
(d) William Light Kinney, Jr., Editor-Publisher
MARLBORO HERALD-ADVOCATE
Drawer 656, Bennettsville, SC 29512
479-3815
(e) Charles P. Midgley, President
Midgley Agency, Inc.
P. O. Box 494, Bennettsville, SC 29512
479-6821

BAR RESOLUTIONS: Dillon County, Chesterfield County, Marlboro County, Darlington County

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
Circuit Judge, Fourth Judicial Circuit; elected to term beginning June, 1984 to June, 1988; reelected to term beginning July, 1988 to June, 1994

The Board of Commissioners on Grievances and Discipline reports that no Formal Complaints of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. The records of the applicable law enforcement agencies: the Marlboro County Sheriff's Office, a negative; Bennettsville City Police Department, a negative; SLED and FBI records are negative.

The Judgment Rolls of Marlboro County are negative. Federal court records show no judgments or criminal actions against you. There was one civil rights action brought against you and others. Our information is that that was dismissed in 1993. That may be one of those class actions or something. You may not even know you were a part.
JUDGE COTTINGHAM: It was. It was one of the class actions with several hundred involved.
THE CHAIRMAN: All right, sir. I understand that we have some witnesses to testify and we have -- correct me if I'm wrong, we have three complaints or statements were received, Mr. Couick.
MR. COUICK: Yes, sir.
THE CHAIRMAN: All right. At this point, Judge, I'm going to turn to it over to Mr. Couick. He's got some questions for you, sir.
JUDGE COTTINGHAM: All right, sir. Yes, sir.
JUDGE COTTINGHAM - EXAMINATION BY MR. COUICK:
Q. Judge, if you can't hear me or if you need any information, let me know, we'll be glad to either speak up or provide it to you.
A. All right, sir.
Q. Judge, you have served on the bench for some how many years now?
A. Nine and a half, sir.
Q. And you have not been a stranger to controversial cases?
A. No, sir, I've had some difficult cases.
Q. In going through our research, one thing that we have done is used some of the computer resources of the law school and pulled every newspaper article that mentions your name. And going back through that, we see that you've been involved in some of the more notorious or infamous cases depending from a perspective that have been decided in the last several years.

Part of what has come out of that is this general sense that some folks think that -- and I say some folks. Folks that are quoted in newspapers or whatever think that for whatever reason you have a special relationship with a particular class of folks in South Carolina, public officials namely, that causes you to be called to sit on these cases for some special reason. And that because of that you are either directed by some higher authority or by some higher calling that you have to take care of their interest.

And I say that because I know that it comes up in some complaints that we're going to hear later, but it also comes from many of these newspaper articles.

What can you tell this Committee about your impression of why you are -- is it just an inordinate amount of times you're called upon to handle these cases or is it just that yours tend to be treated more in the newspapers than anybody else? What's caused this level of notoriety about the cases that you handle?
A. Well, given the number, I think the reason that I've handled quite a number of them is that a lot of them have arisen in Horry County and the judges there for obvious reasons have recused themselves and I can understand that.

As a result of that, I'm one of the judges close to there and I've been sent there to handle these cases. And I -- most of the cases to which you refer arose in Horry County and the basis for that is the judges there frankly recuse themselves.
Q. For what reason do they recuse themselves? What is your understanding of the reasons they recuse themselves?
A. Well, for instance, I tried and convicted -- a jury convicted an auditor there of 37 years. I would suggest probably that a resident judge has had a friendship with that individual for many years.

I was a trial judge when the detention center man was charged there. I could understand why the resident judge would not have done that. And those sort of cases where there was some personal or professional reason or whether they were in the court house would be the reason that I would suggest that.

For instance, in my county when my supervisor was recently charged with a matter, I recused myself. And that's the basis, I think.

With regards to the public officials that have been before me, I have given some probation. I have fined some, I have put some on public service. I've done all three. I've incarcerated some. As a trial judge, some have been found not guilty by the jury, and as trial judge, some have been found guilty.

Just recently, I directed a verdict of not guilty because I concluded under the facts of the law that that direction was warranted, so I guess I've had some significance cases.
Q. Judge, I'm not attempting to give more attention to this off base -- I mean off the bat because there are other things I'd like to address, but one thing that comes through in the complaints is this sense that there is some improper behavior on either your part or someone else's part in your participation in these cases.

I've tried to in my own way analyze it and I come up with one of three things is happening and I need your help. These folks either say it's bad because you go there with some nefarious purpose, that you've got some special relationship with these folks that are to be sentenced and that you're either instructed to handle it by some higher authority or you have some special reason for handling it.

Or perhaps you're just weak on public officials in terms of your sentencing and there is no real ethical problem that you have with that, but just like some judges, particularly Judge Epps is known for being fairly lenient on first offenders when he sentences them, but he's very strict if they ever appear back before him again. And the third is that there is just nothing wrong at all.

I'm trying to figure out where in that -- one of those three camps we end up and I'm looking for you to assist me. I mean do you have any special sentencing philosophy that applies to public officials that puts you in that second camp that would --
A. Well, I appreciate your concerns. I really do. First let me say that with regards to the public officials that I've sentenced in Horry County and we must discuss Magistrate Archie Lee, to my knowledge, I'd never seen him at that time. I have never seen him since. Again, I sentenced Mr. Ball who was the auditor there. I sentenced him to three years in jail. I never knew him before and never seen him since.

The judge does not call the cases in this state. The Solicitor calls the cases and when I'm assigned by the Chief Justice of this State, I accept cases that the Solicitor calls and why the Solicitor calls them before me, I don't know. But I accept my responsibility when the case is called. Does that answer your question?
Q. Part of it. And that's -- I'm glad you went into that aspect of it because it certainly helps me break it down. When you were in those cases, when the Solicitor called that case and you're sitting there on the bench and one judge as you said earlier has probably already recused himself, did anyone make a motion including the Solicitor that you should be recused from hearing this case because of some special relationship with --
A. No motion has ever been made by any solicitor for me to recuse myself. And I say to you categorically upon my honor that no special relationship ever existed and in most instances, I didn't even know the individuals until I got to court. I assure you of that, sir.
Q. So as I said I've got three things I'm trying to figure out. One is that you fall into Camp 1, one in Camp 2, one in Camp 3 --
A. If you take them one at a time, I'll be glad to answer.
Q. And --
A. I'm frankly glad that you raised these issues.
Q. Right. And Camp 1 is that you have a special relationship and for that reason that's why these things happen and you addressed that. You said that you had no special relationship in terms of knowing them or some other connection and that no motion for recusal was made?
A. Yes, sir.
Q. Secondly would be that there is a -- you have a general philosophy of sentencing public officials such that their sentences would be somewhat lighter than other --
A. I would hope that I'm the presiding judge and that the Solicitor elected to call the case before me because I'm fair. I would hope that. I can't address why the cases are called before me, but I hope that I have a reputation of being fair to the litigants, fair to the victims. Let me say that Mr. --
Q. Couick?
A. Mr. Couick, I have a sentencing philosophy that attempts to let the sentence fit the crime, to let sentence fit the victim, to hope that it meets public expectations, but in the final analysis to apply the facts to the law as I understand it in accordance with my conscience and to render a judgment and I don't -- I'll be glad to enlarge upon that if you care.
Q. Yes, sir, and that's where I was heading, Judge, is if have you a judge like Judge Epps who believes that a first time offender is entitled to be able to repair his life and get it back together, that's his sentencing philosophy for first time offenders.

Does your sentencing philosophy for whether it be first time offenders or second time offenders or third time offenders who happen to be public officials differ at all from your sentencing philosophy for a first, second or third time offender if they were not a public official?
A. It does not. I apply the same criteria. Perhaps I'm a little more harsh with the public officials in that where they violated a public trust, I look at it very seriously. For instance, the auditor there of 38 years, the gentleman I think was maybe 66 or 67 years old, I incarcerated that gentlemen for three years. I was criticized very heavily by his friends. I felt it appropriate.

On another case, I sentenced a SLED agent to three years. That sentence was subsequently reversed by the Supreme Court, but I felt that justice dictated that. So I -- that -- I have no special philosophy about it except I generally hold a public official to a higher accountability.
Q. And, Judge, so if you don't fit in the first camp or the second camp -- and I'm not trying to reach a result.
A. I understand.
Q. I'm just trying to understand. It would be then that these folks are not given any special treatment because of a relationship you have with them nor are they are given a special treatment because of your status, they're treated just the way anybody else is? That's --
A. There is no question about that. You've got to let the sentence fit the crime, you've got to let it fit the defendant and we've got to look at alternative sentencing -- and I looked at alternative sentencing because while it is a legislative matter, we as a judiciary have to be concerned with prison overcrowding and I tell you that I look at alternative sentencing, but I always, too, hope that the sentence I impose will meet the public expectations. I think that that's important. It doesn't always do that.

Let me say this to you, if I may during the course of nine and a half years, I suspect that I have sentenced and do sentence about 1500 people a year, which would equate to something like ten to fifteen thousand during the nine and a half years and I would suggest to you that of that number, few victims and no defendants agreed with me. I'm sure of that. But I did my best using the judgment and applying that judgment to the law of the case, walked out of that courtroom with a clear conscious. I didn't always maybe do the right thing, but I did what I thought was right and I accept responsibility for those judgments.
Q. Judge, I'm from the country and I'm kind of simple minded, but I want to keep my three camps going. What I want to do is not only get you to address it in this format because it makes it easy for me to understand, but also the witnesses that come before this Committee?
A. Yes, sir.
Q. If we -- if you don't -- if Number 1 doesn't apply because there's no special relationship and you didn't go down there with a purpose in mind and Number 2 doesn't apply because --
A. Let me correct you, I didn't go down there. I was sent there on a regular scheduling order by the Chief Justice.
Q. Right. Yes, sir. And Number 2 doesn't apply because you don't treat public officials more leniently as a class than anybody else, then we end up in this third which is what you called fair that everybody is treated the same. If that is the case, it would seem then that if we would look at your overall sentencing pattern for everyone else as compared to these folks, it should fairly well approximate each other?
A. I think so.
Q. If the facts of the situation are roughly the same?
A. I believe that you will find that that's the case.
Q. What I would like for you to do, if you could, at this moment, and particularly with the Archie Lee situation is without -- I know that a judge's discretion is sacrosanct and I do not mean to question you. If you could briefly tell me once again, though, what's been reported widely the reasons for your sentencing of Judge Lee at this level and if you could roughly compare it without even giving a name of another defendant or if -- or with some type of guideline that may be out there that you would think would show that it was a fair sentence?
A. Well, first, let me say that there were numerous victims in that courtroom. All of them emotionally involved and I certainly understand that. Let there be no question about it.

On the other hand, the courtroom was full of people who were urging leniency for Magistrate Archie Lee. Among those urging leniency was the former sheriff of Horry County, Junior Brown; the present chief deputy, all of his female employees, a niece of his wife, a former magistrate, a former municipal judge and all his neighborhood urging leniency and why were they urging leniency? First, he was 65 years of old -- of age, suffering from glaucoma and heart problems. He had immediately resigned when this unfortunate incident came to light and thusly had been publicly humiliated and ridiculed. He stood before me a broken man.

Testimony was that his wife had been invalid for 14 years and she couldn't even drive a car. It was uncontradicted that while his conduct was bad in other areas that as to that good lady, he was the only one to stay with her at night. He did the cooking and he did the grocery shopping. And his -- and that lady's niece stood before me in tears and said to me, Judge, there is nobody to take care of my aunt if you put Archie Lee in jail.

Now, I considered these factors and I considered what he did. I also considered alternative sentencing. I concluded that if we believe truly in the concept of alternative sentence, here was a man who posed no danger to anybody in his lifetime, had been publicly humiliated. I then came gave him three years. I suspended it. I placed him on probation for one year. I gave him 400 hours of public service. I fined him $500 and I ordered that he accept mental health counseling. My judgment was on the facts before me that that was fair to the victims, it was fair to the defendant, it was fair to society.

Permit me to add one further thing, since that sentence, I have examined it in the context of the sentencing guidelines that this Legislature will be considering in January. The sentence that I gave would have been indicated under those guidelines. Knowledgeable people tell me under the federal guidelines that probation would have been indicated. I can assure you without equivocation that the present presentencing guidelines would have mandated probation. I have no qualm with anyone who feels different. It was a judgment call made with the best judgment that I had and I stand by it quite frankly. Understanding that these people have an emotional involvement, I understand their opinion, I accept their judgment. I have no fault with it whatsoever. I just respectfully disagree under the facts of that case.
Q. Judge, making sure --
A. Now may I add one further thing?
Q. All right.
A. With regards to the newspapers criticizing that decision, I have heretofore forwarded and would like to make it a part of the record, the contra media who say the decision was correct. There is no right or wrong answer, Gentlemen of this Committee, in sentencing. There is none. You just do what you think is right after you get a feeling on it. I just refuse to put that broken down old man in jail and when his mother -- when his wife of 67 years of age needed him home.

Now if I may say one further thing, I strongly considered giving him 90 days at the Detention Center and letting him go home at night. I was concerned about his safety. Many of those people out there would have been before him and sentenced by him and I just wasn't going to put that 65-year-old man in that situation. That was another consideration, I'd have to tell you. I was concerned about the safety of a former judge incarcerated in the system. And I apologize for talking too long.
Q. No problem. I'm glad to hear what you had say. Judge, have you ever had occasion to sentence someone in a similar situation where there was a repeated pattern of this type of conduct and the person was not a public official?
A. I have never had a case like this, Mr. Couick.
Q. So there is no way that we could draw an analogy --
A. No, sir.
Q. -- of your sentencing?
A. Let me say this and the record will reflect, now I was appalled at his conduct and embarrassed for him and the judiciary. I was. And the record will reflect that. I never had this situation before. No, sir, I have not confronted that sort of thing.
Q. Judge, making sure I understand, you mentioned the sentencing guidelines. It's my understanding that there are certain factors that you take into account when you locate on the grid where a person would fall?
A. Yes, sir.
Q. I want to make sure I understand how you would go through your reasoning. If -- is it true or not true that Judge Lee would have not had any previous convictions?
A. Yes, sir. Thank you. First, let me say that while as to these victims, this would have been a violent imposition upon them, these were nonviolent cases. Judge Lee had never had a prior conviction. He had an exemplary civic reputation. He was chairman of the Democratic Party.

I wish I could say, Mr. Chairman, he was also the chairman of the Republican Party, but he was not. Never had he had a prior conviction. I concluded that in the sentencing guidelines, first, they were for our purposes nonviolent. There was no prior history. He did not pose a significant risk in the future to anyone, so I applied these factors and I frankly have asked other lawyers to look at it, too. And we conclude and I conclude that probation would have been indicated.
Q. Judge, in the case that -- and this is -- I want to make sure I understand, under the sentencing guidelines previous convictions are different than a pattern of recurring behavior and I wanted to see how you treated, though, there was, I'm not sure how many instances. I don't recall. Were there 15 incidents --
A. Yes.
Q. -- alleged incidents where he had sexually molested some person in the courtroom or near the courtroom, those were not convictions for the purposes of sentencing consideration, is that true?
A. No, sir. All of this came forward at one time, some of the incidents going back as many as eight years. The victims can address why they all came forward at that time.
Q. So you had one case before you, I guess. There was not several convictions that all added up together?
A. No. It all came to light simultaneously, and in that connection, I do wish that it had come to light before. I had been assigned down to Horry County as the Chief Administrative judge in 1987 and this -- that's why I got a lot of these cases. I was then assigned as the Chief Administrative Judge in 1990. Had any indication of this sort of conduct came before me as a presiding judge or administrative judge, I can assure this Committee that I would have reported it immediately to Court Administration. I can assure you that never -- I wish it had been. I would have stopped it at that point.
Q. Judge, The State newspaper in a December, 1991 article reported that there was some criticism of you by black community leaders?
A. Of what, sir?
Q. By black community leaders with regard to your sentencing of the Thrift Brothers and it went on to say that there was a State editorial that was supportive of your sentencing?
A. Criticism of The State newspaper approved of my sentencing --
Q. Right. But --
A. -- effort.
Q. But the report was in The State newspaper of black community leaders being hostile to your sentencing of the Thrift Brothers.
A. It would be the first indication I ever had of that sir.
Q. Let's share a copy of that with the judge.
A. I'd like to see that. I can tell you that The State newspaper later came out in an editorial indicating that the alternative sentence there imposed was appropriate. I can tell you that. I'm not aware of that criticism --
Q. I'll share it with you.
A. I haven't had --
Q. And the reason I bring it up is to ask you how you handle not necessarily this particular criticism, but how does this factor in your continuing to sit in cases? Are you oblivious to public criticism or how do you factor it in? The persons that are going to appear today, these complainants, how does that factor in your continued service on the bench? What effect does public comment have?
A. Well, you know, I welcome public comment. I have found from years of experience, 31 of which was at the bar, and I've been criticized justly and unjustly and regardless, it causes you to take another look at yourself.

Criticism has made me a better person, I think, and I think it will make me a better judge. I have no problem with that, but I am not going to skirt my duty as a judge of this state because of criticism. It's what I do.

It's a judgment call and I made it and you know, as I have indicated, I don't call these cases. I hope that they call them because someone thinks I'm competent to handle them. I can only hope. But that's the basis for it.
Q. Judge, I had noted for the other candidates that were here today that we had sent questionnaires to your home circuit and asked the members of the bar there to respond to several questions. We did receive some commentary back from members of your Circuit and I will say that some of those did say that you were too harsh in sentencing as opposed to too lenient.
SENATOR SALEEBY: I'll ditto that.
Q. You'll ditto that.
A. I've been criticized for that, too.
SENATOR SALEEBY: My boys say he puts them away too long, but I don't reckon it disqualifies him.
Q. Judge, what is your continued commitment to serving on the bench? How much longer do you plan to serve if you're reelected?
A. I fully intend health permitting, and I'm in excellent health, to serve my entire time. My mandatory date of retirement ends at the end of this coming six-year term, so Mr. Saleeby and his friends hopefully will have to look at me for the next six years. I enjoy my work and I love it and I'm dedicated to it.
Q. It was my understanding that when you left the practice of law in 1984, you had AV rating with Martindale-Hubbell; is that correct?
A. Yes, sir.
Q. We have been asking all of the candidates including incumbent members of the bench or judges on the bench about the Canons of Ethics and in particular ex parte communication. What is your approach to handling ex parte communication?
A. I don't indulge in them and I do not permit them. Now, administratively when I need to get on the phone and call an attorney about his case, I have no problem dealing ex parte on administrative matters. In a small county, that's the only way we can do that.

Other than that, I do not permit them and the attorneys in my circuit and where I preside understand that. I'm just not going to engage in it.
Q. In terms of accepting gifts whether a gift is not necessarily defined as a present, but also lunches and dinner, trips and other things, what are your rules on that?
A. I would not accept a gift or a trip. As an example, however, if I went to Charleston, South Carolina or Lancaster or wherever and some old friends of mine who were lawyers who were then not appearing before me asked me to dinner, I would go with the expectations of their hospitality would be returned by me, but I will not accept even a luncheon engagement during a week when that individual is appearing before me.

I think it gives the appearance of impropriety and that's my -- if a group of lawyers in Charleston and they're very courteous down there asked me to go out for dinner, I would -- as long as they're not appearing before me and I would to the same in Lancaster.
Q. You report that you spent no money on campaigning for reelection and that you've not -- because of that you have not filed any filings with the Senate or House Ethics Committees. Does that continue to be true today?
A. Yes.
Q. You've spent no money?
A. It's absolutely true. I have no opposition, but, no, sir, I adhere to that.
Q. And then finally, judge, in the issue of pledges, the Committee has sought for the past year a oath from each candidate appearing before it that that person has not sought the pledge of any one legislator prior to the completion of the screening process?
A. I assure you that I have complied fully and faithfully with that mandate.
Q. In addition, the new rule and the new law that came down in July that you have not sought the assistance of any third party to go out and seek consideration by you by any Member of the General Assembly?
A. I assure you that this is so.
Q. And finally, Judge, and I note this only for the record, you had sent in several Bar Resolutions noting for the Committee's benefit that this is an issue for the Committee to consider, there is nothing at this time improper about that.

This Committee is trying to determine, though, if in the future Bar Resolutions would be appropriate or not until after the screening process was over with. And I'll include that for the record. In fact, I think our application said that that was permissible.
A. Am I asked to comment on that?
Q. Yes, sir.
A. Well, yes, sir, I think it's appropriate quite candidly that the Bar Associations have input into it for they are more directly effected by what we do than anybody else. In my instance, I called the president of the Marlboro, Dillon and Chesterfield Bar and asked that they get a majority resolution approving my candidacy if they thought it appropriate. In Darlington, I asked Mr. Jack Gardner, Jr. to do that. I fully intended that he just get a majority vote and instead of that, he got some signatures. I trust that Senator Saleeby or Mr. Baxley are not on that list, but --
Q. At least one of those persons is. I'm not going to tell you --
A. Sir?
Q. At least one of those people are on the list.
A. All right. It's not with my knowledge --
Q. I'm not going to tell you.
A. -- or consent, but inadvertence, but again I don't consider that an endorsement or commitment quite frankly.
Q. And, Judge, that's the reason why there is some concern. There are many practicing lawyer-legislators in trying to avoid them making that type of commitment --
A. Had I been taking the list around, I would not have done that, but the individual who did elected -- is Mr. Baxter's name on that?
Q. Some of the handwriting is pretty bad. I don't recognize any legislators.
A. I know specifically not to see Mr. Saleeby or some members of the firm. Mr. Saleeby, I trust you're not on there.
SENATOR SALEEBY: No. Being on this committee --
A. Well, it would be improper and I would not do that.
MR. SALEEBY: -- would make me more aware of it than probably if I were not on the Committee.
MR. COUICK: Mr. Chairman, we have three witnesses who sought to appear before the Committee. At this time, I don't know if the Committee had any general questions that they might wish to ask, otherwise Counsel is through questioning Judge Cottingham at this time with the caveat that I would like to have the opportunity to recall him to testify after the witnesses have testified?
THE CHAIRMAN: All right. Do any Members of the Committee have any questions at this time? All Members, of course, reserving their right to ask any questions later. None.
A. Would you like me to remain here or return to my seat, sir?
Q. Judge, you may wish to go back to your seat to save room for the witnesses?
A. Mr. Chairman, let me say this to you, I appreciate the opportunity to have participated today in the process. Thank you, sir.
MR. COUICK: Mr. Chairman, the three witnesses during the luncheon break, I met with two of the witnesses. I offered them the opportunity to chose that person that they wish to come forward initially in hopes that there could be some consolidation of what they wish to testify to and I would like to offer again on the Committee's behalf that opportunity for those persons to chose that one person they'd like to begin the testimony.
THE CHAIRMAN: All right. In other words, of the three of them, one of them --
MR. COUICK: To begin.
THE CHAIRMAN: Whoever wishes to begin, if ya'll would --
REPRESENTATIVE HODGES: They're all going to be allowed to testify?
MR. COUICK: Yes, sir.
THE CHAIRMAN: Yes, they'll all be allowed to testify. It'll just be the order.
REPRESENTATIVE HODGES: Okay.
THE CHAIRMAN: Come on up to the chair right there. Would you raise your right hand, please, ma'am? Would you identify yourself for the record?
MS. PALMER: Sheri Palmer.
THE CHAIRMAN: Could you speak into that microphone, too, because we're recording and the lady up here -- would you say it again because the court reporter didn't get it please.
MS. PALMER: Sheri Palmer.
THE CHAIRMAN: Ms. Palmer, please raise your right hand. Do you swear to tell the truth, the whole truth and nothing but the truth so help you God.
MS. PALMER: Yes, I do.
THE CHAIRMAN: Thank you, ma'am. Would you please have a seat and please answer the questions that Mr. Couick has for you.
MS. PALMER - EXAMINATION BY MR. COUICK:
Q. Ms. Palmer, in just a moment I'm going to give you an opportunity --
THE CHAIRMAN: I'm sorry, Mr. Couick. Please pull that microphone closer up to you and make sure that the switch is on because the court reporter is having trouble hearing.
Q. The switch will be pulled towards you if it's on.
A. Okay.
THE CHAIRMAN: Speak down into it, if you can.
A. Okay.
THE CHAIRMAN: All right. Thank you.
A. Is that better?
THE CHAIRMAN: Yes, ma'am.
Q. Yes, ma'am. Ms. Palmer, in just a moment I'm going to give you a fairly broad opportunity to explain the gravamen of your complaint, but I would like to do for the record initially is establish where you live, a little bit about you and how you came to be here today, so I'm going to go through some routine questions.
A. Okay.
Q. Would you please state your full name for the record?
A. My full name is Sheryl Ann Palmer. I go by Sheri.
Q. And that Sheryl, please spell that.
A. Sheryl, S-h-e-r-y-l.
Q. And your address is?
A. 233 Manor Circle, Myrtle Beach, South Carolina.
Q. And how long have you been a resident of Myrtle Beach, South Carolina?
A. 13 and a half years.
Q. Would you indicate your occupation, please?
A. Yes, I'm a sales representative for an industrial firm.
Q. You have asked to appear today in the matter of Judge Edward Cottingham as a complainant. I have received a copy of your witness affidavit form. Do you have a copy available for your use?
A. Yes, I do.
Q. You have a sent of form in which you have answered several questions, in addition, you have attached a petition signed by numerous persons. It looks apparently to be -- mostly to be in the Horry/Georgetown area?
A. Yes, sir. That's correct.
Q. I have not counted the number, but those will be on the record, but will be made a part of the broader record. You have also attached a Sun News account of an article on Judge Cottingham dated November 7th, 1993?
A. Yes, sir. I have several articles. I hope you reviewed them.
Q. Right. You also have a -- and that's why I'm going through and make sure I have everything. I have an article out of the Sun News Regional Section dated April 4th, 1993. I've got a Letter to the Editor. It's not apparent which newspaper it's out of, then apparently handwritten March 25th apparently 1993. Also one dated March 23rd, 1993. One is from a Mr. and Mrs. Jean Lewis and the other is from a Mr. and Mrs. J.M. Leffler, I believe.
A. All these articles did come from it.
Q. The next article has a headline called "Community Reacts," but there is no date or attribution. That is a several page article. Then there is a Sun News article called "Ex-magistrate Will Sort Books." And finally -- we have a 3/9/93 article, March the 9th of 1993,
"Former Judge Admits No Fault." And then an article after March 12th, 1993, "Outraged Women Target Judge for Molester Sentence." And an editorial apparently from the Sun News again of March 27th, 1993. And then March 11th, newspaper article, "Lee Might have been Protected While Serving Time." A transcript of Lee's sentencing supplied out of the Sun News and finally several Letters to the Editor including an inserted bubble dealing with the sentencing and those were dated around April, 1993, I believe. Is that all the articles that were forwarded in?
A. That is all the articles that I sent in, yes.
Q. Ms. Palmer, one thing that I would ask you to do as you go through your testimony in a fairness to you and to Judge Cottingham and to the Committee at least from a Counsel's perspective, it's important to distinguish between things that you have firsthand knowledge of versus things that you have seen reported in newspapers or things that had been told to you and you would be giving to the Committee third hand.

Obviously, anything you have firsthand knowledge of, the Committee wants to hear and values very much your impressions of any facts that you have if you were present at the sentencing whatever. In terms of what would be second or third hand, what would be out of that newspaper or from some other person because this is in the nature of a judicial hearing and that person's rights should be protected that would be tantamount to hearsay. I would ask you to -- you wish to get into a matter you're not sure as to whether it should be delved in, let's address it generally rather than getting it specifically and I will ask the Committee for guidance or try to give you guidance on my own if it's a fairly simple question as to whether it would be appropriate or not, but matters of hearsay would not be appropriate for a discussion before the Committee.

That would not say that you could not offer your own personal opinion as to what is correct or incorrect about any activity on the part of Judge Cottingham, but in terms of supporting it with facts or supporting it with statements that you would offer as fact, if those are not of your personal knowledge and those are someone else's, out of the newspaper or whatever, that would be hearsay.
A. Okay.
Q. I would offer you this opportunity that what I promised you awhile ago a chance to broadly go through what -- why you're here today.
A. Okay. I would say that, yes, I am personally involved. I was a victim of Archie Lee. My indictment does say high and aggravated assault and battery along with misconduct in office.

This happened to me July 7th, 1992. That night before midnight I had called the FBI in Columbia. I had called the FBI in Washington, D.C. The next day I called the Rape Crises Center telling them no I was not raped, but I was sexually assaulted. Archie Lee did place his hand on my breast without my consent.

This is my body. I should make the decision who touches it and who does not. I was told by several lawyers in Horry County -- I was told by a lot of different people in Horry County, step back, shut up, this man has been doing this for years, it will make no difference.

Well, I chose not to step back. I chose not to keep my mouth shut. Within two weeks, I wrote a letter to SLED and I wrote a letter to the Governor stating what had happened to me and I indeed wanted to see an investigation being done.
Q. And I take it at that point that you were one of the persons that -- one of the first persons to file a complaint --
A. I was the first person to file a complaint.
Q. -- that resulted in his -- charges being brought up against Judge Lee. He was a magistrate in Horry County?
A. Absolutely.
Q. And that you were that person that started the ball rolling --
A. Yes, sir.
Q. -- in terms of him subsequently being sentenced. Realizing that you have a very, very personal stake in the situation with Judge Lee, what I would very much like to concentrate on unless you think it has significant bearing on something with Judge Cottingham is Judge Cottingham's activities. What has he done that has effected you personally in the sense that it has brought you here today?
A. Well, as far as I'm concerned what he did with sentencing Judge Lee was basically nothing. That was not a sentence. I listened to Judge Cottingham today. I also listened to him at the trial. Judge Cottingham mentioned today that Lee was a broken down old man. Well, let me tell you when he was touching me, he was not a broken down old man.

He mentioned that Archie Lee's wife was an invalid. Well, the transcript, if you go through that, Judge Cottingham made a point to say, "So your wife is an invalid?" Archie Lee said, "No, she is not an invalid. She gets out of the house. She goes to the beauty shop. Somebody takes her grocery shopping." This woman is not an invalid.

Judge Cottingham sat here today and said who was going to take care of this woman at night if I incarcerated Archie Lee, well, who was taking care of her when he was out doing what he was doing to twenty some women. I don't think that should have been brought into concern at all. No one was concerned what us women, what our emotional state was going to be, why should we be concerned about Archie Lee and his wife.
Q. Ms. Palmer, let me ask you this. Did you have the opportunity to cooperate with the Solicitor's Office at
-- prior to sentencing to offer -- did they offer you any opportunity to become involved in the judicial process? Were you called as a witness? Did they keep you notified of everything that was happening in the trial?
A. No, actually, they did not. We were notified when the bond hearing was going to be. We were notified when the trial was going to be. We were not notified that Archie Lee was even going to plead no contest. We did not know that until it was actually happening. So as far as being put up to date on what was going on, no, we were not.
Q. Are you aware of whose responsibility that is under the law generally to keep you notified?
A. No, I'm really not. I've heard, yes, it should have been the Solicitor's responsibility.
Q. To keep you notified?
A. To let us know what was going on, but I think Judge Cottingham had a responsibility in himself that he should have treated this case the same as he would have treated the case should it have been an ordinary citizen out on the street assaulting women. If an ordinary citizen 65 years old would have been doing that, do you think he would have gotten $500 fine and 400 hours of --
Q. Ms. Palmer, that's the question I asked Judge Cottingham essentially awhile ago. If you fall into this third camp where there was no bad calls, if he didn't have any personal relationship with Judge Lee, which he said he didn't and if he -- and if you don't believe in the third camp, which was when he did nothing wrong, he'd have to fall in the second camp where he gave inordinate attention to the person being a public official and I asked him if he could supply me with any comparison or measure that could be made between the sentence that he gave Judge Lee and the sentence he would have given a nonpublic official, a member of the public, and he gave the example of the sentencing guidelines grid which is not law in South Carolina.

It's been developed by an arm of the Supreme Court, but it is not binding. And I have reviewed that and do find that under the facts as I understand them, there is some merit or much merit in what Judge Cottingham says. It falls below the line and on such that parole would be advisable. Are you aware of any other sentence handed down by Judge Cottingham in a similar set of circumstances which was different in terms of the punishment imposed than what was given to Judge Lee?
A. I'm not aware of any man in Horry County being brought forth on charges like this, whether he be a public official or an ordinary citizen other than Archie Lee. I am aware of reports that I read in the Sun News and hopefully that they are true and accurate reports that out of four, there was --
Q. And Ms. Palmer --
A. I cannot say that.
Q. Well, we've got the articles and I intend to make use of those, but in terms of offering that, I have no way to make sure that's accurate and I know that newspaper people do not make mistakes, but this would be the case where they made the first one and I wouldn't be able to prove it was right or not right, so I understand your point as to the newspaper and we'll take that into account, but in terms of using that as empirical data, I just hope that we wouldn't do that right now.
A. Okay. It just appeared that when there is a public official going before a judge, and Judge Cottingham was one of those judges, those public officials did get very lenient time compared to an ordinary citizen citizens.

Also with his own wording, he said that Judge Lee was a magistrate. He was a judge. He had the robe. "I hold Judge Lee to some higher standards, quite frankly, than I would the average person." This is Judge Cottingham's wording. I was there and I did hear that, so it just seems to me logical that to hold him to a higher power that he should have had some type of incarceration or some larger fine, sentencing than what he got to show the public that, yes, we're going to do this in a fair and logical way, that we're not going to just brush it aside.
Q. Would it seem to be a fair approach to you that if there would be some investigation of general sentencing patterns, and patterns to the extent that information is available, and take into account the sentencing guidelines grid, taking into account what other judges do for nonpublic officials, if we took the Archie Lee matter, for example, and compared to that which is -- you say you have not done that.

I have to admit, I have not done it beyond going to the sentencing guidelines grid. If we were to do that and we find this were in the range of sentences imposed, would you -- would that sentence then become fair to you in the sense that it fell within the range of what should have been given?
A. All right, are we talking about a range of what should have been given only in the State of South Carolina or are we talking about nationwide?
Q. Well, unfortunately, Ms. Palmer, and fortunately in some cases, we're bound by the law of this state. You know, folks benefit from it and they also lose by it. Judges -- and I'm not sitting here as Judge Cottingham's advocate. I guess I'm the advocate for any judge that has the same frustration. What you would like to do sometimes, you're not able to do because the law binds you and that's the law he had or any judge has to operate from.

I'm saying would it be fair in sentencing patterns and patterns in South Carolina, if this fell within the reasonable range of sentences imposed? And I have no idea. I'm sitting here.
A. I have no idea either. The only thing I can go on is the judge in Tennessee who was charged with assault of three women, he received 25 years and he is doing prison time. He did not get a $500 fine. He did not get 400 hours community service. He got 25 years. He got his pension taken away from him which I think is how it should be.
Q. So Ms. Palmer --
A. So I can only go by what I hear, how I feel, what I see and what I read.
Q. But if I were to say that perhaps that investigation would be possible to check into the range of sentences available under the South Carolina law and range typically imposed whether it be by the guidelines or by a historical pattern and the Archie Lee sentence came back and it was within that range, wouldn't it be pretty persuasive that it's a matter of fairness at least under South Carolina law which we have to live with that he got what was coming to him?
A. Right. I will agree with that. I just don't feel that if you see a man out there who has assaulted 18 to 20 women and he is given a sentence, I would bet my bottom dollar, he's not going to get a $500 fine.
Q. Ms. Palmer --
A. But if you can find that, I will go along with it.
Q. Ms. Palmer, that was one reason I asked Judge Cottingham earlier about how these -- this sheer number of crimes came to the attention of the court at one time and I think it would be very frustrating to you in that you were the first person that had the guts to bring forth these charges. But do you understand the legal ramifications of all of those being brought at once, they essentially become part of one overall pattern and they're not -- they're really not able to be considered as a previous conviction because he had never been convicted for any other crime?
A. So are you saying because they all came together as a package deal, the man should not have been sentenced to the same or --
Q. No, ma'am, I --
A. I'm not sure what you're saying to me.
Q. I guess what I'm saying is under sentencing by judges, you can take a previous conviction into account in terms of it being a first, second or third offense. If someone has not been convicted previously for that crime even though they have perpetrated it on several occasions and they're prosecuted all at once for that series of crimes, you're not able to take it as a second offense or a third offense. Just like.

DUIs, there are a lot of folks I would imagine in Horry County that have driven while intoxicated before, but when they show up for trial that first time, even if the judge knows them as a personal social friend, he's only able to charge him with a DUI first and only able to give him that level of sentencing. And I guess what I'm saying that's what I guess is one of the most unfortunate parts of this situation at least from this Counsel's perspective that all of these -- no one had ever had the intestinal fortitude you had to complain and it must have taken a tremendous amount on your part to do it. Ms. Palmer, I didn't mean to cut you off.
A. That's okay.
Q. Please tell the Committee any other investigation you've been able to do that has led you to the conclusion that in some way Judge Cottingham was biased because he had some personal relationship with Judge Lee or there was something nefarious going on that caused him to order this because I'm willing to go look as I said and do more investigation about where this would fall in a general sentencing pattern, so let's fall back to this first camp now.
A. Okay.
Q. Let's don't take the judge at his word for a moment. Let's assume there is something there. What do you know? What can help me and the Committee focus in on this improper conduct? What kind of relationship might have been there? And once again please focus in on things that you have personal knowledge of.
A. Okay. I -- I'm going to have to say I don't have personal knowledge of this because I have not picked up the telephone, I have not knocked on doors, I have not said is this true. I have only had hearsay that people are telling me, yes, indeed, this is true. Ralph Wilson, the Solicitor, told me yes, this is true. Because Mr. Wilson did tell me this, I'm going to have to say, yes, I truly believe this is true. That Dick Harwell who is the brother of David Harwell, his daughter is married to Archie Lee's son. My --
Q. And that's the part you would say that was true?
A. Yes, I would say it was true.
Q. Right.
A. I mean I feel like if I was told this --
Q. If I could --
A. -- by the source --
Q. Right. If I confirm to you at this point that was true?
A. Yes.
Q. If I told you that I had done my own investigation and had discovered that to be true, let's take that as a set of facts, where does that take us next in terms of an improper conduct?
A. That -- it takes me to believe with David Harwell being the Chief Supreme Justice that there was probably some orders coming down, that Archie Lee probably had his sentence given to him and knew what it was and perhaps Judge Cottingham knew what it was before we even went to trial.
Q. Let me ask you this, why Judge Cottingham? Why not any other Circuit judge in this state?
A. Sidney Floyd was a personal friend -- and now I'm telling you this from Ralph Wilson.
Q. Okay.
A. Was a personal friend of Archie Lee, he did not want him --
Q. So they --
A. -- to be the judge.
Q. So they complied with the Canons of Ethics, they had to disqualify him?
A. That's right. Exactly.
Q. So but why --
A. There is a circuit judge I believe by the name of Marlowe. I understand from Ralph Wilson that his son or somebody went hunting with Lee's son, he did not want him there.
Q. So Judge Harwell complied with the Canons of Ethics and recuses him or some -- or either the judge did himself?
A. What I'm telling you is Ralph Wilson named all these judges to us.
Q. That had a conflict of interest?
A. That had a conflict of interest.
Q. And so they recused themselves?
A. Right.
Q. I don't mean to sound funny, but it seems like a lot of judges are worried about conflicts of interest. Don't you think if they really wanted to get somebody that would do the thing right by Judge Lee, they might not worry about a little conflict of interest like hunting trip and send that person rather than Judge Cottingham which has no relationship to Judge Lee?

Why pick -- I guess what I'm saying, what do you know that tells me that Judge Harwell controls Judge Cottingham any more than he would control any of those other people?
A. There is nothing I can tell you that would make you believe that this is indeed to be true, but I certainly feel that.
Q. And I understand that. And I'm not -- please understand, I'm not taking exception with your heartfelt feelings. I'm trying to find something that brings the attention of this Committee facts that will say, well, Judge Cottingham had a problem. He had a conflict of interest.
A. Right.
Q. Or that somebody told him what to do, but from what you're telling me, everybody complied with the law. Everybody that had a conflict of interest got out of the way and it got down to finding the closest person and it was Judge Cottingham and that's who they sent?
A. The only thing I see problem with is that during the trial, Judge Cottingham patronized all of us women. Led us to believe during the trial that just by chance, a thread of chance, he might be on our side.

He might be seeing what this man did was wrong and he might be able to a correct conviction by what this man did was wrong, but by the end of the trial and when he came up with the sentences, it was like listening to a man talk out of two sides of his mouth. One side, he was saying yes, I patronize with you women. I certainly feel sorry for you women. You went through all of this. You should not have had to have gone through all of this, but on the other hand because this poor broken down old man is appearing in front of me, because he has an invalid wife, because of this, because of that, I'm really going to do nothing to him which is basically what he did. Nothing. This is where my problem comes.
Q. All right, so I guess we're back then to the second camp that I was talking about earlier which was Judge Cottingham doesn't have a bad reason for what he did. He was just light or lenient on this public official and we need to go back and look and see how it fits in with other sentencing; is that correct?
A. I think he was very lenient on him. What his reasons -- reasoning for being lenient on him, I do not know. I cannot second guess this man. I have no idea. I just know he was extremely lenient and if he has such a disregard for right and wrong, I don't think he belongs on that bench.

If he cannot make a decision and say this man did wrong even though he is a judge, he did wrong and he should pay for it just like any other man. I don't believe he walked away --
Q. Let me ask you this, Ms. Palmer. Did he have a problem making a decision as to what was right or wrong in your opinion or was the problem in handing down a severe enough sentence? Did he correctly identify the crime that was committed?
A. As I said before, and I'll repeat myself, this man was talking out of two sides of his mouth. One minute he would say, yes, this man did very wrong and the next minute, he was saying because of this and this situation, evidently, it's okay for this man to do what he did.
Q. And please follow along with me, did he -- it seems like from what you're telling me that he correctly identified the bad behavior of Judge Lee, that -- and I see you're referring to transcript now perhaps that he went through and talked about here's what he did wrong and then he got to the point of sentencing and he talked about mitigating factors. At that point, he's probably talking about some aggravating factors as well and then he came down with a decision.

If I were to tell you that that happens in courthouses across the state every day in every sentencing hearing, would you believe me?
A. Yes, I would believe you. I think there is a lot going on especially in South Carolina that until you're in the situation and you feel it --
Q. But I guess --
A. -- you wouldn't believe it, but, yes, you do want to.
Q. But you realize that's what's required by law and the reason the law operates that way is you have to take every criminal defendant as an individual and consider him on his own terms?
A. And I would be -- I will agree that this man -- this is the first time this man has had to have come up before. He should have had it come up years before, but due to brick walls and doors being closed in people's faces, they couldn't get anything through and I understand that. But, okay, now we're looking at this man who does have a first time offense, but I don't know of anybody -- now, I will say I personally know of somebody who had a first time offense of misuse of a telephone. That man now is sitting on four years probation. He didn't get it suspended. He didn't get it 400 hours community service. He got four years of probation for misusing a telephone.
Q. Was Judge Cottingham the sentencing judge in that case?
A. No, he was not.
Q. Was that case -- did the Solicitor choose to charge Judge Lee with misuse of public facilities?
A. No. He chose to charge him for misconduct in office and high and aggravated assault and battery, which I think would be a lot worse than telephone misuse.
Q. Ms. Palmer, is there anything else you'd like to share with the Committee?
A. Just a few things I have in my notes that I would like to say while I'm up here. I certainly think Judge Cottingham shows favoritism. You might want to call it cronyism. You might want to call it the good old boy system. I really don't care what it's called. All I know is it's not right and it needs to stop.

If he is making this type of judgment on his own, as far as I'm concerned he lacks integrity. He should not be up there on the bench. If he's taking orders from somebody else, he needs to look at what's going on, is this right or is this wrong, not what somebody else is telling him what to do.

The majority of people -- and you can tell by the various articles that I sent to you, there is a large majority of people in Horry County that have definitely lost faith in the judicial system. They have definitely lost faith in how Judge Cottingham is going to deal with a public official.

I don't think we need someone like that in Horry County making decisions. He stated that he was harsher with public officials, that he incarcerated an auditor who was 67 years old for three years. I believe he was 55. He didn't steal money, but he stole something a lot more. He didn't get any time at all. I don't think that's right. He stated that there were several victims
-- or several supporters of Lee, Sheriff Junior Brown, a chief deputy, several female employees, a niece of the wife was up there. There may have been a total of eight or nine people that were up there. There was a total of 18 women that were sitting up there that had been victims.

We far outnumbered those who were in support of Lee, but yet we got nothing for what we went through. I've already told you how I feel about Lee's wife being an invalid. I don't feel that she is. I got up one time. Judge Cottingham did ask us all to speak should we chose to. I chose to and I did ask for maximum 35 years which is what Ralph Wilson said was the law on a case like this. 35 year maximum time was a long time, but there ought to be a standard. There ought to be something said here letting people know that we're not going to put up with this anymore. It's time this stops. If we have to have someone to be a scapegoat, Judge Lee should have been it.
Q. Ms. Palmer, you spoke about the Solicitor a couple of times. I take it, this was a plea rather than an actual trial that resulted in a sentencing; is that right?
A. This was -- I'm not really sure what you call it. This was a man going up there pleading no contest --
Q. Right. And I --
A. -- which should be thrown out of court. You shouldn't be allowed to plead no contest. You're either guilty or you're not.
Q. I take it that the Solicitor was involved in this process of the plea being entered?
A. There again, myself as a victim was not told that that type of plea was going to come forward. I knew nothing about that until I heard it. It was very shocking. I'm afraid I would have had to stand up if I had --
Q. The Solicitor did not brief you on what he intended to do or --
A. No. Not at all.
Q. I'm sorry. Please go ahead.
A. And I just also feel that Judge Cottingham's in his particular hometown and surrounding area is harsh, then he should not have been quite so lenient with Judge Lee. That's basically all I have to say. I thank you for your time.
Q. Ms. Palmer, the Members of the Committee may have some questions for you and I want to say I very much appreciate you coming forward today.
A. Thank you.
THE CHAIRMAN: Ms. Palmer, hold for a second. Let's see if any Members of the Committee? Representative Hodges.
EXAMINATION BY REPRESENTATIVE HODGES:
Q. Ms. Palmer, we do appreciate you coming forward today and I -- this may have -- Mike may have asked you this specifically, but was there any expectation created by the Solicitor to a specific sentence that was going to be asked for or that the Solicitor expected would be given in the case?
A. Absolutely not.
Q. So when you went into the courtroom, was there any general discussion like this is probably the range of time he might get or this may be --
A. No. Basically --
Q. -- the result?
A. -- what I was told by Ralph Wilson when I first came forward with this and talked to him very -- at length at various times is that he said, please, don't be disappointed. I expect this man to walk. I expect this man not to receive a sentence. I'm just telling you up front. This is what it you can expect because, number one, he is a public official, he will not have anything happen to him. So as far as a sentencing, I expected nothing. But it's not right.
Q. But there was no -- getting back to my question, there was no specific statement made by the Solicitor or anyone else that you should expect that he would get two years or three years or --
A. No, the only thing that was said was during the trial, Ralph Wilson said that he could receive up to 35 years for this. That was said during trial.
Q. Do you have any specific complaints regarding the judge's sentencing pattern or regarding the judge's handling of civil matters other than in this area of public corruption or public officials that we've discussed today?
A. No. The only thing I would have would be against the public figures.
Q. Okay. That was only question I had.
THE CHAIRMAN: Any other members have any questions?

I just want to ask on follow-up question and make sure I understood your answer because I was trying to follow the three points that Counsel had raised. If I understand correctly that besides that newspaper article, you have no direct evidence of any relationship between Judge Cottingham and any one of those public officials or figures in particular, this instance, former Judge Lee? You have no proof of any formal relationship?
A. Other than what Ralph Wilson himself told me, no, I don't.
THE CHAIRMAN: I just wanted to make sure I understood your testimony. Any other questions? I want to thank you for coming today.
A. Thank you.
MR. COUICK: Mr. Chairman, just following up on your last question, that what Mr. Wilson told you was about the Harwell connection, correct?
A. Correct. Correct.
MR. COUICK: Mr. Chairman, I would offer that if Ms. Palmer has anything, she would like to share further with the Committee that she was not able to bring them in because of hearsay that she did not forward in terms of other than newspapers articles, please leave it and we'll be glad to follow up on it and this thing can be done on the outside of context of this hearing.
THE CHAIRMAN: Thank you.
A. Thank you.
THE CHAIRMAN: The next witness --
MR. COUICK: Mr. Chairman, once again, I would ask they be able to chose their order.
THE CHAIRMAN: All right. We'll see who volunteers to come on out. Would you please state your name into the record into the microphone?
MS. DAIN: My name is Rachael Dain.
THE CHAIRMAN: All right. And would you please raise your right hand, please, ma'am. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
MS. DAIN: I do.
THE CHAIRMAN: Thank you, ma'am. Have a seat and please answer any questions Mr. Couick may have for you.
MS. DAIN - EXAMINATION BY MR. COUICK:
Q. Ms. Dain, again as with Ms. Palmer, I thank you for coming forward today. It's important for citizens to feel like they can participate in this process. You and I have had the opportunity earlier today to discuss briefly your testimony.

I would like to go through some of the more perfunctory aspects in terms of your name, address, et cetera. Would you please state your full name into the record and your address?
A. My name Rachael Ashley Dain. I reside at 6208B Blynn Drive, Myrtle Beach, South Carolina, Horry County.
Q. And your occupation is?
A. I'm a microsystem integrator and programmer.
Q. Ms. Dain, would you under the same conditions I expressed to Ms. Palmer, please express in the broadest terms the reasons you're here today to testify against Judge Cottingham.
A. I believe based on the information that I've been able to gather that Judge Cottingham gives preferential treatment to people with political power and I think that causes harm to the community and the judicial process in general and I do not believe that he is qualified to continue as a judge.
Q. Ms. Dain, following up on what -- the same questions I've asked Judge Cottingham and Ms. Palmer, do you have any information that would -- is firsthand, personal to you that showed he had an improper relationship not only with Judge Archie Lee, but with any other public official that he sentenced?
A. I don't think improper would be the correct word, but I do think that there is an established relationship in the fact that these are all public officials and maybe cronyism would be the best word to use, but I don't -- when you say special relationship, I assume that you're meaning person to person relationship?
Q. Person to person and where there would be some reason for Judge Cottingham to have recused himself and he didn't. In the sense that he had some conflict of interest whether it would be a shared business interest, some type of financial interest, some type of long-standing personal friendship, some type of kinship by blood or marriage to any of those public officials?
A. No, I'm not aware of any and I don't think that's the case.
Q. So I take that it in terms of having a nefarious purpose going to Horry County to handle this trial, your basic testimony is there is none unless you consider the fact that a public official and a judge somehow are bound by a greater brotherhood together?
A. If there is any other one, I am not aware of it.
Q. Ms. Dain, how would it be possible for any public official to be tried in this state if it were not to be done by a judge?
A. I suppose that it could not be done.
Q. So I wonder is it a fair criticism in this state that somehow Judge Cottingham that he should not have participated in the Archie Lee trial because on one hand Archie Lee was a public official and on the second hand that Judge Cottingham was a judge?
A. I don't believe that it is a conflict as long as you deliver the same type of sentence to someone without political power as you would someone with it.
Q. And that falls into the second category that I've been discussing with Judge Cottingham and Ms. Palmer was the disparity that you allege in the sentence given to Judge Lee versus what Judge Cottingham would have given to someone else or should have given to Judge Lee. Do you have any information that would indicate this sentence was out of the ordinary or out of the bounds of what was reasonable?
A. Yes. I think that it is unreasonable for anyone to assume that a man irregardless of his age who would hold a woman by force and grope her private parts and be given what this individual was given which was basically nothing.
Q. Do you have any reference to law or any sentencing patterns that would indicate that the sentence imposed by Judge Cottingham did not fall within the realm of what was reasonably imposed by an ordinary, prudent judge?
A. No, sir, I was relying on my common sense.
Q. All right. Ms. Dain, and finally as it relates to what was the appropriate sentence, are you aware of any study or any other type of information you've been able to consult that would show sentencing patterns in South Carolina that Judge Cottingham's sentence was outside that ordinary range?
A. No. The only thing that I am aware of is the study that the Sun News did on public officials that Judge Cottingham has sentenced, which were all very lenient.
Q. Ms. Dain, do you have any other testimony you wish to offer the Committee?
A. Yes. Several things actually. One thing that I have thought about a great deal and have not been able to find a proper explanation for and maybe you will enlighten me as to one is something that happened in the courtroom that day.

I went into the courtroom with the expectations that probably nothing would happen because public officials seem to look out after each other. That happens time and time again. Sometimes it's real and sometimes it just may be perceived as such because it does happen so often and I really didn't expect much of anything to happen.

Judge Cottingham gave the victims the opportunity to speak in front of him and I took that opportunity and I told him how I felt and he really moved me to believe that I was actually going to find justice in this place. And I was very relaxed and I looked at the other individuals that were sitting next to me, they were victims, and I said, you know what, this isn't going to go away. This is not going to go away. This is too serious. This man is going to do something about this. I believe in him.

He said that he had not made a decision because I had mentioned something to the fact that I thought he probably had already made a decision. One of the things that he did at the time which impressed me a great deal is after he listened to both sides of the story, he pushed himself back from his seat a little and began to tell us that he was going to go through the process of making a decision out loud so that we would understand how he as a judge had to weigh both sides. And I thought that was very fair and I was glad that he was going to share this process with us.

I was sitting very close to him. Probably about as close as I am to you and I watched his every move very intensely at this point because I was trying to read him and understand what he was going to say. As he -- at that time, he was using a deal of hand language, body language while he was making these -- this discussion.

He began to delivering the sentence and then Ralph Wilson who is our Solicitor interrupted him and said, oh, Judge, I would also like for you to include something along the lines of Judge Lee having to pay for therapy should any of the victims need that. And right as he started to say that, Judge Cottingham reached over to the right-hand side of his desk or bench, whatever you want to call it, and picked up a piece of paper that was about the size of a small note pad and began to say, "Yes, that's the next thing I have to comment on." And then he said something about that. And I was there and I saw that he was clearly referring to this piece of paper and he was reading off of it and I don't understand how it is that he had not made a decision prior to entering the courtroom. What is he referencing? Why is he referencing this information off of a piece of paper that I know he has not written since he started this decision making process because he has not touched a pen or pencil and I cannot think of any reason -- logical reason why he would have that information on a piece of paper if he had not already given some consideration to what his decision would be prior to hearing what went on in the courtroom which he told me he did not do.
Q. Well, let's do this, let's ask him that in few minutes.
A. Yes.
Q. Let's move on with your testimony and let's find out the answer to your question.
A. Also the transcript where he clearly says in here that he holds Judge Lee to a higher standard, because he was a judge and he committed these offenses, yet he assaulted 18 women, he got a suspended sentence and then he got his probation suspended as I understand it and if he was being held to a higher standard then what would the standard have been if a layperson had done something like this, and if the standard is that low, then I think we have a problem above and beyond bias toward political figures.
Q. And, Ms. Dain, once again going back to my willingness on behalf of the Committee, if they would allow me to go look at sentencing patterns overall, I think that's your question there.
A. Yes, I think that is -- that is an issue. Also Judge Cottingham points out, he goes on to say on page 4 of the transcript that I have that it concerns him that citizens have the right to have confidence in our judicial system and if the community and our system loses that confidence, our government basically will fail.

I think that Judge Cottingham has done a great deal to contribute to that feeling that people have which in our community is overwhelming. Everyone that I've talked to and people that have come up to me feel the same way that I do, that there is something very wrong here that's not being addressed.

So I mention that because I just wanted to point out -- I think that kind of comes into the area where Sheri said she felt he was talking out of both sides of his mouth because he's saying one thing and he's doing another.

He also said in his decision that one of the ways he knew he reached a good decision is when both sides were mad. Well, there has been a lot of outrage over the fact that he didn't really do anything about this. I haven't heard a peep out of anyone who thinks that he was sentenced very harshly which brings up another issue. I keep hearing that this man is a very stern judge particularly with sex offenders, but yet this case takes on a whole different -- it's in a whole different vein and why would that be? There'd have to be some reason that that is and the only explanation that I can find is that he's a public official.
Q. And, Ms. Dain, once again, that goes back to this disparity between sentencing. Could I ask you if you have any complaint today, you personally, and I would ask that the second -- the third witness as well is there any complaint on your part that aside from the nature of the defendant as to the nature of the crime effecting Judge Cottingham's sentence?
A. I'm sorry. Would you repeat that please?
Q. I've heard you and the previous witness describe the nature of the defendant, him being a public official somehow has effected Judge Cottingham's sentence, the severity of it. Does anyone or did either of -- you, since I don't have the other witness before us, do you believe the nature of the crime that it was a sexual crime perpetrated against a female? Do you allege that?
A. Do I believe that it is a sexual misconduct?
Q. No, do you believe it had any effect on Judge Cottingham's sentencing?
A. Because it was --
Q. Perpetrated against a female -- a crime perpetrated against a female that was sexual in nature?
A. Yes, I do, but I think that because our culture has been very tolerant of those types of things happening -- happening to women that even a well intentioned individual might make that misperception. If I held you against that wall by force and grabbed your genitals, I'm sure -- or if another man did, that it would be perceived very differently than if you were to do that to me. Not choosing you out individually, I'm just giving an example.
Q. Thank you. My wife appreciates that as well. I guess the reason I ask that, Ms. Dain, you know, there has just been this undercurrent here that somehow there is a victim out there that is a prototype of this, a woman who was violated sexually and then somehow the justice system violated them again?
A. Yes.
Q. And I guess I'm trying to address that in a very -- on a level where I can understand it because I've heard you say that Judge Cottingham is very serious and very stern with sexual offenders on one hand and then I hear you come back and say that he's -- you think that somehow effected his decision. Now, which way is it?
A. I don't know which way it is. I'm not in his head, but either way, it is an error.
Q. I'm talking about your impression because you told me just a moment ago, it was your understanding --
A. I think it's both. I think that it's --
Q. How can it be both?
A. Well, if he -- if he doesn't truly see the crime as being that offensive, which -- let me back up and say something. I don't have firsthand knowledge of his sentencing criteria for other sex offenders.
Q. I'm talking about you mentioned awhile ago, you said it was your impression --
A. He was a harsh judge.
Q. -- that he was a very harsh judge on sex offenders and then I just asked you a moment ago, do you think the nature of this crime and that it was a crime of sexual violence perpetrated against a woman effected the justice delivered and you said, yes, it did. How do you have both of those coexist at the same time?
A. There can be always be more than one factor in a decision. I think both contributed to it. But also the cases that these individuals made comments to me about, the sex offender cases, were actually full blown rape, which I think is perceived differently.

I was actually startled to hear him earlier say that this was a nonviolent crime. I don't believe that it was a nonviolent crime which -- well, in itself, I have concern about that statement.
Q. Is there anything else that you would like to --
A. Yes, I have petitions signed by 323 individuals in our area that would also like to let you know that they have no faith in this judge and I find that I have very little, if any, faith at all in any of my government institutions anymore. I don't say that to offend you.

I suppose that I probably shouldn't even say that because offending you probably doesn't help my cause, but one of the reasons that I feel that way is because of Judge Cottingham and his being on the bench has effected my feelings about the judicial system and others and that is not good for the community because we've all been effected in a very negative way.
Q. I wish to thank you for being here today. I'm glad you had the faith enough to at least participate in this government process. Mr. Chairman, I have no further questions.
THE CHAIRMAN: Thank you, sir. Any Members have any questions at this time? No questions. Thank you for coming. We very much appreciate it.
A. Thank you.
THE CHAIRMAN: Thank you.
MR. COUICK: Mr. Chairman, there is one remaining witness --
A. Should I leave this with you.
Q. Yes, ma'am and I'll have -- would you mind getting those and just hold them and we'll enter those into the overall record. Thank you, Ms. Dain.
THE CHAIRMAN: Would you please raise your right hand? Do you swear to tell the truth, the whole truth and nothing but the truth so help you God.
MS. WILSON: I do.
MR. CHAIRMAN: Thank you, ma'am. Have a seat and please state your full name for the record.
MS. WILSON: Kathleen Lynn Wilson.
THE CHAIRMAN: And remember to try to talk into that thing --
MS. WILSON: Okay.
THE CHAIRMAN: -- because the court reporter is trying to take down everything that you say? If you could speak right in. Usually if you come in on the side, it will pick it up.
MS. WILSON: Okay.
THE CHAIRMAN: Okay. Please answer any questions Mr. Couick has for you.
MS. WILSON: Yes. Am I -- do you want my address?
MR. COUICK: Yes, ma'am. I'll begin --
THE CHAIRMAN: He'll get all that. He does it. I only do the formalities.
MS. WILSON - EXAMINATION BY MR. COUICK:
Q. Ms. Wilson, if you would please, give me your complete address.
A. 109 Castlewood Lane. I get my mail through Elgin, but I live in Richland County.
Q. And you are a -- as a profession, you're engaged in?
A. I'm an insurance analyst for a local software company.
Q. What type of analyst?
A. An insurance analyst. Life insurance analyst.
Q. You think I qualify for any life insurance in this job?
REPRESENTATIVE ALEXANDER: No.
A. We can rate you.
Q. That's right. Ms. Wilson, you have heard at length the process of analysis at least that I'm personally trying to go through to understand the charges that have been brought against Judge Cottingham.
A. Yes.
Q. And I'd like to go through that process one more time and start at the beginning which I would consider the worst case scenario and the worst case being that somehow Judge Cottingham was a judge that went to Horry County with a mission and that he went there to take care of something that was personal to him, that he had a personal interest, something at stake with either Judge Lee or any of these other defendants, but more specifically Judge Lee. Do you have any information that would lend -- that's personal to you, that you have firsthand knowledge of to show that he had a conflict of interest as it relates to Judge Lee?
A. No, I do not.
Q. Moving on from that then, this pattern of sentencing that you, I believe, refer to, you say Judge Edward B. Cottingham -- reading from your affidavit -- has a pattern of extremely lenient sentencing of public officials. The only testimony that I have heard today admittedly that each of the last three witnesses including yourself, who are laypersons --
A. Right.
Q. -- had -- on this pattern of sentencing, has been from the judge himself and he has taken the time to do the research and shows where it would fall on the grid. Do you have any information that would show that this sentence in the Archie Lee matter fell outside what was a normal sentence either imposed in the past by Judge Cottingham or by any other prudent judge in the state and a similar circumstance?
A. No, I don't. I do want to emphasize that I'm not a lawyer.
Q. Right.
A. And I work full time and I'm an unpaid activist, so...
Q. Right. And that's why I offered earlier -- I'm willing to the extent the Committee would allow me to double check and find out what would be fair. We have done at least initial inquiry. I'm not sure what else we can find, but we'll be glad to go check further on your behalf, the Committee's behalf.

Assuming that we don't have personal involvement or any facts that would support personal involvement or personal conflict and we don't have any facts that show a departure from the norm, what can you tell me that keeps me from landing in this third camp. That says that nothing went wrong?
A. The leniency of sentences of public officials who came before Judge Cottingham, it seems that when the public officials commit a crime, if they're caught, they have to give back -- if they've stolen something, they have to give it back or they receive a light fine and some community service. It's very rare that they ever do any jail. And it's very rare that the fine is even that large.

I could repeat the cases that were in the paper. There are people taking $2,000 in bribes and they give the money back and pay a $750 fine. I mean, it's just -- the amount of the fine is extremely low, the amount of public service is extremely low and that's the extent. One official received jail time. And in the sentencing, Judge Cottingham stated that the reason he received jail time was not because of the severity of the case, but because he had tried to cover his tracks and made it hard for the investigators to track him down. I can repeat -- you know, I've got five case that --
Q. Yes, ma'am, and these are essentially on the same cases that were handed up earlier?
A. Right. But it just -- when I look at them and I see the large amounts of money involved and the small amount of money involved in the fine and a few hundred hours of community service, it just strikes me that these people are not held accountable for their crimes.
Q. And I understand the sense of frustration that you have. What I ask you is the question I asked Ms. Palmer earlier, if we were to find out, particularly with the Archie Lee matter because that's the matter before us that you're most interested in right now, if we were find out this fell into the normal sentencing pattern that other folks with similar circumstances were sentenced to a similar sentence, how would -- would that be --
A. Well, I would -- I would be surprised, but if you did find out that all the public officials were getting light sentences then maybe all the judges need to be looked at.
Q. No. I'm not talking public officials. I'm talking about sexual misconduct. That I understand was the gravamen of the --
A. Well, that's not really the reason I'm here. I'm here because the public officials are getting off lightly.
Q. But what was the crime he was charged with that he was actually convicted and sentenced under?
A. Assault and battery of a high and aggravated nature --
Q. All right. If I --
A. -- misconduct.
Q. If I were to go look at those offenses and whether it be your next door neighbor in Elgin and Judge Lee, if I found that Judge Lee's was comparable to the average Joe on the street, what else can I look for? I mean if it falls within the reasonable norm, what else should we look for?
A. Well, I'm not asking you to look at it that. I'm asking you to look at what Judge Cottingham has given ordinary Joe sentencing compared to what Judge Cottingham has given to public officials.
Q. Right.
A. That's where I think you'll find the disparity.
Q. And that's what I'm saying, too, that if we look at those and we find there is no disparity, what more can we do?
A. Well, I would be surprised.
Q. And I'm just asking. I'm going to look if the Committee will let me, but if we find there is not a problem, what do we do?
A. Well, if you find that there is not a problem, then there is not a problem.
Q. Now, I'm not prejudging what the result is. I just want to make sure --
A. Maybe the sentencing guidelines need to be changed, but not -- there is not a problem with this Committee to deal with.
Q. Is there anything else you would like to brief the Committee on today while you're here?
A. Well, I was just, you know, surprised that these people, the public officials that are privileged people seem to get a lighter sentence. Their public humiliation seems to count as part of their sentence which doesn't seem right.

Also, I was surprised at the invalid wife weighed heavily in the sentencing. I don't know that the same consideration is given to mothers of infant children in their sentencing or they're kept out of jail because of that. And I also thought it was strange that a Member of the General Assembly was allowed to represent Archie Lee when part of his job is to reelect Judge Cottingham.
Q. And I have not heard that aspect of the case raised by you before this time nor by any of the other complainants today. Did you observe any unique activity in the courtroom or do you have any personal knowledge of any influence that public office held by that attorney had over Judge Cottingham's sentencing?
A. No, I do not. It just strikes me as odd that he -- he was, you know, a defense attorney appearing before the judge when later -- you know, early next year he gets to decide whether that judge gets to keep his job.
Q. And, unfortunately, attorneys who are legislators have to make a living, too, you know. It's one of those facts of life. Is there anything else that you would like to share with the Committee?
A. Well, if I could please I have items --
Q. I intend to pursue them with the Committee's allowing me to do that, but I am really looking for things like that.
THE CHAIRMAN: Thank you ma'am. We appreciate you're coming. Judge Cottingham, would you please come back. Proceed, sir.
RE-EXAMINATION BY MR. COUICK:
Q. Judge, you're still -- I know you're well aware of --
THE CHAIRMAN: I was going to tell him that, too, but I figured --
Q. You're still sworn. You're still under oath, still sworn. And I know there is probably a lot that you would like to respond to and if you could bear with me to let me ask a couple of specific questions before I forget those in listening to what else you have to say.

I heard as you did, testimony by Ms. Dain that the incident with a piece of paper that you had there on the bench on the day you sentenced Judge Lee in Horry County. She mentioned that you seemed to refer to it and use it as some guide in your sentencing. Could you explain to this Committee the circumstances of the piece of paper, if you feel like it was privilege, what was on it, generally what use was being made of it and where was its origin?
A. I can assure you that there was no paper for any kind of --
THE CHAIRMAN: Judge, please pull that microphone.
A. I can assure you that there were no comments written down concerning my sentence. I may have reached over and looked at the indictment. I may have looked at my notes as I was taking the proceedings, but I assure this Committee that there was no preset sentence. The only thing preset in this matter was the statement by the Solicitor, he proposed to let him plead nolo contendere. He asked me what was my position. I said I would not permit a nolo contendere unless he, the Solicitor, tendered it. That was the done. Other than that, the sentence was mine and that...
Q. Judge, you bring up one of the more interesting aspects of this case to me and that's the role of the Solicitor in a case of this matter because as you well know and I'm not sure the public properly understands the role of the Solicitor in defending victims' rights in this state, they are charged with assuring the victims have notice of hearings and that they have participation in the process to the extent that they're allowed. What was the role of the Solicitor in coming up with an plea? Did he just simply bring it to you or did you request him to go out and develop a plea? Who originated the idea of a plea with you? Is it something you originated or was it something that was brought to you?
A. No, sir. As I indicated, I was scheduled to hold this court some six months earlier. Our schedule is set some six months earlier and when we go to Horry County, it is the Solicitor's responsibility to call the case that he desires.

In this case, the Solicitor requested a pretrial conference with me with the attorneys for the defendant. They met in my office and I was asked would I accept a nolo contendere and I said I would if he recommended it in that courtroom. And he did and I did.
Q. So it was not a sentence that you requested? It was not a --
A. No, sir.
Q. -- determination you requested?
A. Let me say one thing. I cannot permit an innuendo made here to stay upon this record and that is is the suggestion that the Chief Justice of this state is in any way involved with this matter. My schedule is set six months earlier.
Q. Judge, I did want to get to that matter because that is something very serious.
A. Well, I cannot let that innuendo stand.
Q. All right. And this --
A. It's wrong. It's --
Q. And that's obviously the first opportunity, we'll have to discuss it after the testimony.
A. That's the first time I'd even heard of anything like that. I'm not --
Q. Judge, in terms of your sentencing of sexual crimes perpetrated against women, have you ever been criticized by any group generally recognized as being a part of or advocating the rights of women or rights of women victims for leniency?
A. Never. This the first time I've heard of that. I have the reputation for being right harsh on these kind of things and I'm glad that I have that reputation. The last rape case I tried in Horry County, I sentenced him to the maximum of 30 years.
Q. What was the different circumstances of that rape case? I know rape is certainly different than assault and battery of a high and aggravated nature?
A. In that case, a young lady from North Carolina was enjoying the sunrise on Labor Day -- a sunrise on New Year's morning on the beach. A young man 28 years old took that lady at knife point, took her across the street into a wooded area and raped her. I concluded that under those circumstances he was going to jail for 30 years because if a young lady can't enjoy our beautiful beach on the morning of the new year, that sort of conduct, we are in terrible shape in this state and I truly hope that I sent a message that I --
Q. Judge, let me ask you this. I hope I don't sound impertinent when I ask it.
A. I'm delighted to answer, sir.
Q. A person certainly has a right to enjoy the beach and enjoy the sunrise, the courts of the state are set aside for the protection of the citizen's rights. These crimes were perpetrated in a public courtroom or an area adjacent to a public courtroom. What were the incidents or the characteristics of the crimes without getting too graphic that led you to the conclusion that they were not as violently oriented as the rape you just described, if we set aside for a moment the location.
A. You mean actions by --
Q. Judge Lee.
A. -- Judge Lee.
Q. Right.
A. Well, let me understand. Let me make this plain to you as to these witnesses, as I understand it, they regarded it as violent and I fully understand and appreciate that position, but the basis was misconduct in office though there was a touching. A mere touching constitutes technically an assault and battery of high and aggravated nature, but the charges were basically misconduct in office.

The Solicitor referred to them in the hearing as nonviolent. Now, these ladies considered them violent and I understand that. I said to that gentleman at that hearing that if my wife or daughter would have been treated in this way, I would have had an emotional involvement that would have wanted to them in jail. The record will reflect that I said that. I also said, though, that I as presiding judge must be detach myself from those considerations and look at the overall picture.
Q. And finally, Judge, from my -- the questions that I had, I want to specifically address, was the issue of somehow there was your traveling to Horry at the direction of some higher official or some group of officials.

You heard testimony I believe earlier that there was a -- I think I used the words, not the witness, a brotherhood of public officials and judges that somehow protected mutual interests or that there was somehow this public official, whether it be judge or someone that directed you to go down and take care of this.

While there was no specific testimony that can indicate facts that would show that, there was just general allegation. Has anyone filed a complaint against you or any other public official to your knowledge revolving around the Archie Lee matter and in terms of its being tried?
A. No, sir. First let me say, sir, that under our schedule, we are assigned in September, or the fall, scheduled for the next year. My assignment for this particular week was made by Court Administration some five months earlier.

When I get down there, I do not know what case is being called. Now, I want to assure this tribunal here, I cannot let the innuendo remain, it would be absurd to suggest that any the Chief Justice called me about such a case and I can assure this Committee, I didn't even know the connection with Dick Harwell. I think his son married Archie Lee's daughter. I never heard of the family of Archie Lee. Now I've heard about it since then, but I can assure you, gentlemen, that that is simply not true.
Q. And you're not aware of any charges or complaint whether formal or informal that's been brought against you?
A. This is the first time to my knowledge that such an allegation has ever been made.
Q. If something --
A. I want to say as strongly as I can, that that just simply did not occur and I seriously doubt -- if Mr. Wilson said he did -- I don't doubt these ladies words -- I suggest that may be he was misunderstood, but I would seriously doubt that and I would urge this Committee to check with him and see.
Q. Judge, I believe the testimony was actually not that any contact had taken place. I think that the testimony that was given and it was hearsay and I did allow perhaps her to run with some without objecting to it, was that the Solicitor had said that there was a relationship between Judge Lee and Judge Harwell in that Judge Lee's son was married to Judge Harwell's brother's daughter, but there was no intimation by the Solicitor that there was any improper direction on the Chief Justice's part?
A. I apologize. And I can tell you that relationship had been not known to me and I just want -- I don't suggest that these ladies said anything improper. I just want to make sure that that record didn't --
Q. All right. Judge, as I said earlier you probably have several things that you would like to address. You are welcome to do that at this point. Those were the things I had concerns about.
A. I just have one statement to make and that is that I understand these complainants' position. I appreciate it. I stand for it that there is an emotion. I would tell this Committee, though, that their position is not the only one among these victims. Some of the victims said we don't want him to go to jail. Other victims said we want justice. These two as was there -- wished me to put him in jail for 35 years and I have no problem with their position. I just simply had to respectfully disagree. I want to say further, though, that I appreciate the opportunity of being here. I am gratified that these matters were aired in public and I thank you for this opportunity. Thank you, sir.
Q. Judge Cottingham, if I could, I have --
A. I'm sorry. I apologize.
Q. No, it's my fault, and I had overlooked one matter that I did want to ask you about.
A. Yes, sir.
Q. There -- we did not accept the testimony today because it was hearsay and we will further investigate the contention that you -- that your leniency in sentencing which I understand you would contest, but are you related through blood, marriage, financial interest to any of the other public officials that you have sentenced in Horry County?
A. No, sir. None at all. Didn't even -- I don't know that I even do.
Q. Thank you.
A. I don't think so.
THE CHAIRMAN: Did any Members of the Committee have any further questions? We thank you for coming.
A. Thank you, Mr. Chairman. My pleasure.
THE CHAIRMAN: Yes, sir. Glad to have you. Let me check with the court reporter. Do you need a break?
THE REPORTER: That'd be nice.
THE CHAIRMAN: All right.
MR. COUICK: Mr. Chairman, we have kind of reached an interesting situation, too. The only complainant on one of the candidates for this Circuit judgeship has had to leave and is not available for the rest of the evening and would like to have the opportunity to testify if possible. He's left a note with Counsel.

We'd originally advised him that he could be present at 1:00 p.m. When he came at 1:00, we told him to come back at 3:00 not realizing that we would have extended Executive Session and extended hearing on Judge Cottingham of this length. Those are the next set of candidates up. There are two candidates in that race. We also have Judge Burnett present from Spartanburg. That's just a point of information for the Committee in terms of trying to arrange our schedule.
THE CHAIRMAN: So we do not have one of the witnesses in that-- do they want to come back tomorrow?
MR. COUICK: Mr. Chairman, I would wonder if it would be possible realizing that folks do have schedules that if we could take up both of the candidates for the Fifth Judicial Circuit first thing in the morning rather than dividing that race and proceed directly to taking up Judge Burnett this evening and then coming back in the morning at 10:00 a.m. starting with the Fifth Circuit and then moving on.
THE CHAIRMAN: Just a second. What kind of shape would that put us in for tomorrow?
MR. COUICK: If I could ask the two candidates, Mr. Manning and Ms. Burnette, would it be possible to rearrange your schedules to be here in the morning at 10:00 o'clock thinking that we could be concluded sometime around noon.
MS. BURNETTE: That'd be fine.
MR. COUICK: Mr. Manning?
MR. MANNING: Yes, I think I would.
THE CHAIRMAN: Thank ya'll. We appreciate it very much. We're going to take a short break and give our court reporter a chance to rest her fingers and then we'll be back and we'll take up the Seventh Judicial Circuit, Judge Burnett. Let's see we're on Senate time. Ten minutes.

(A short break was taken)

THE CHAIRMAN: Call the committee meeting back to order and let me find that. That tab is, what, about number 5 in. We'll now take up the Seventh Judicial Circuit for Spartanburg and Cherokee Counties and the Honorable E.C. Burnett, III. Judge, did I pronounce your name right? Is it Burnett or Burnett?
JUDGE BURNETT: It's just plain old Burnett.
THE CHAIRMAN: All right. They always get on us in Charleston that we pronounce things the wrong way.
JUDGE BURNETT: Well, when I get more successful, I'm going to become a Burnett.
THE CHAIRMAN: All right. If you would raise your right hand for me, please, sir? Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
JUDGE BURNETT: Yes, I do.
THE CHAIRMAN: Thank you, sir. Have a seat. Do you have any statements you wanted to make before I go through the preliminaries?
JUDGE BURNETT: No, sir.
THE CHAIRMAN: All right, sir. I note that your last screening was on March the 10th, 1988.
JUDGE BURNETT: Yes, sir.
THE CHAIRMAN: And have you had a chance to review the Personal Data Questionnaire Summary that --
JUDGE BURNETT: Yes, sir.
THE CHAIRMAN: Is it correct or does it need any clarification at all?
JUDGE BURNETT: It's correct.
THE CHAIRMAN: All right, sir. Is there any objection to making this summary a part of the record of your sworn testimony?
JUDGE BURNETT: Well, no, sir, I don't have any real objection to it. There is one matter there that I think I would have to discuss with you separately.
THE CHAIRMAN: All right. Let's see.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. E. C. Burnett, III
Home Address: Business Address:
200 Burnett Road P. O. Box 1742
Pauline, SC 29374 Spartanburg, SC 29304

2. He was born in Spartanburg, South Carolina on January 26, 1942. He is presently 51 years old.

4. He was married to Jamie Grant on August 24, 1964. He has three children: Curry, age 28 (Milliken & Company); Sharon B. West, age 25 (elementary school teacher); and Jeffrey G., age 22 (Roebuck Greenhouses).

5. Military Service: U. S. Army, 1966; Reserve Service, Active and Inactive, 8/66-3/86; Major; SN05321457; Honorable Discharge, 3/14/86

6. He attended Wofford College, 1960-1964, B.A.; and the University of South Carolina School of Law, 1966-1969, J.D.

8. Legal/Judicial education during the past five years:
During the past five years, he has met or exceeded the minimum judicial education requirements.

9. Taught or Lectured: South Carolina Rules of Civil Procedure, Spartanburg-Cherokee Legal Secretaries' Association

12. Legal experience since graduation from law school:
1969-1976: Private Law Practice, Criminal, Workers' Compensation
1976-May, 1980: Spartanburg County Probate Court Judge
May, 1980 - September, 1981: Resident Family Court Judge, Seventh Judicial Circuit
September, 1981 - Present: Resident Circuit Court Judge, Seventh Judicial Circuit

13. Rating in Martindale-Hubbell: He has never applied for rating in Martindale-Hubbell and is unaware that he is now listed.

20. Judicial Office:

1976-May 1, 1980 - Spartanburg County Probate Judge (Elected) Probate of Deceased Estates

May 1, 1980-September 17, 1981 - Judge, Family Court, Seventh Judicial Circuit (Elected) Juvenile and Domestic Relations

September 17, 1981-Present - Judge, Seventh Judicial Circuit (Elected) General Jurisdiction Civil and Criminal Litigation, Administrative Agency and Magistrate Court Appellate Jurisdiction

21. Five (5) Significant Orders or Opinions:
(a) Rodney Hollis v. Housing Authority of Spartanburg, 92-CP-42-2637
(b) James Laughter v. Health Insurance of Vermont, 92-CP-42-2552
(c) T. Travis Medlock, etc. v. 5.91 Acres, etc., 91-CP-4715091
(d) Sandra L. White v. Stouffer Foods, 91-CP-11-536
(e) Terry Burgess v. GSX Chemical Services, Inc., et al., 90-CP-42-1966

22. Public Office: February-June, 1978, Spartanburg County Clerk of Court (appointed as a result of indictment of sitting Clerk of Court); 1973-1974, Member, South Carolina House of Representatives from Spartanburg County (Elected)

32. Sued: James E. Loftin, an inmate of the S. C. Department of Corrections, brought suit against him in May of 1982. The suit was dismissed in May of 1983.

45. Bar Associations and Professional Organizations:
South Carolina Bar Association; American Bar Association, Judicial Administration Division

46. Civic, charitable, educational, social and fraternal organizations:
None

48. Five (5) letters of recommendation:
(a) Louie W. Blanton, Vice President
South Carolina National Bank
P. O. Box 5707, Spartanburg, SC 29304
(b) Horace C. Smith, Esquire
The Whiteside-Smith Firm
P. O. Box 1144, Spartanburg, SC 29304
582-4569
(c) Michael E. Spears, Esquire
P. O. Box 5806, Spartanburg, SC 29304
582-5472
(d) H. Carlisle Bean, Esquire
Bean and Bean
P. O. Box 81, Spartanburg, SC 29304
582-3341

(e) James R. Turner, Esquire
184 Daniel Morgan Avenue
Spartanburg, SC 29301-2373
582-7742

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
Spartanburg County Probate Court: 1/76-5/80
Seventh Judicial Circuit Family Court: 5/80-9/81
Seventh Judicial Circuit: 9/81-present

10. Extra-Judicial Community Involvement:
He has not used his judicial office to further any interests.

The Board of Commissioners on Grievances and Discipline reports that no Formal Complaints of any kind have been filed against you. The records of the applicable law enforcement agencies: The Spartanburg County Sheriff's, a negative; Spartanburg City Police Department, a negative; SLED and FBI records are negative.

The Judgement Rolls of Spartanburg County are negative. Federal court records showed no judgements or criminal actions against you.

There were two civil actions -- civil -- yes, actions brought against you. One action involved a habeas corpus which was dismissed in 1985. The other action was brought against you and a number of South Carolina court officials alleging a civil rights violation and this case was dismissed in 1989. It could have been one of those class actions you didn't even know you got sued.
JUDGE BURNETT: I didn't. I didn't have any idea.
THE CHAIRMAN: All right, sir. I note that no complaints or statements were received and to my knowledge, we have no witnesses to present to testify, so with that, I'm going to turn the questioning over to Mr. Couick and please answer his questions, sir.
JUDGE BURNETT - EXAMINATION BY MR. COUICK:
Q. Judge, I'm sorry to take you so long in the evening. We had originally told you, you'd be earlier today. If you need anything, please let me know, in particular a copy of your Personal Data Questionnaire whatever. You are applying for reelection. Do you intend to serve throughout this term if you are reelected to this court?
A. Yes. Certainly that's my intention.
Q. Judge, we have discussed with each of the incumbent judges today judicial temperament. What is your definition of the appropriate temperament of a judge in a courtroom?
A. The judge has to have a sufficient awareness of the law.
Q. Judge, if I could ask you to sit a little closer to the microphone or pull it back.
A. Is it on?
Q. Pull this button.
THE CHAIRMAN: To you. To you.
A. It is. Is it on? I think the judge has to have a sufficient awareness of the law that in all circumstances or whatever emotion, we can as dispassionately as possible remain calm and objective, so that we can ensure that fairness and justice is given to civil litigants and criminal victims and criminal defendants.
Q. What is your approach to the management of your docket and the tension that may cause with the desire to have a fairly amicable courtroom? How do you balance those two interests?
A. The civil docket I assume you make reference to rather than criminal matters. I've been the Common Pleas Administrative Judge for sometime and on a number of occasions, and the system we have in Spartanburg is an automated system whereby the trial roster is on a computer bulletin board accessible to my Bar lawyers who have cases pending.

We are aware that there will always be occasions where witnesses will be out of pocket, be hospitalized. Litigants might be. We on occasion probably inconvenience some people, but where there are genuine emergencies, the proper cause to continue a case, we would certainly do that with a view towards -- well, with a complete recognition that the court system is not here for you or for I, but for the litigants.

They are the ones that we seek to accommodate as fully as best as we can. That is the place that they can air their grievance. It just so happens that a judge is involved in it and lawyers are involved in it. The system is there for the litigants and we accommodate them in every way that we can.
Q. Judge, how do you maintain the admonition of the Canons to avoid ex parte communication?
A. On the civil side, we just avoid them. We just don't do them. In the nonjury court is the place that there is the greatest opportunity for ex parte communication and the process I follow is that after a hearing if I am able to rule upon the matter, I do so at the hearing.

If I am not able to rule upon the matter, I will either draw the order myself or I will write a letter to the lawyer whom I want to draw it. Tell him what I want in it. Send a copy of that letter to the other counsel.
Q. And, Judge, you might have been here earlier today when I asked some of the other judges about bias and the trying to avoid the impression of bias by recusing yourself in the appropriate circumstances?
A. Certainly.
Q. What is your test for the appropriate time to recuse yourself? What standard do you use?
A. If after I sentence them, one, or after I hear a case, if I'm going to -- if I know that in my circle that I'm going to run into these people, I determine how uneasy I'm going to feel and how uneasy they're going to feel and if it effects my judgment at all, I do recuse myself.
Q. Judge, we have surveyed members of the Bar in your judicial circuit and as well the County of Greenville because they were adjacent where I would imagine there is a lot of cross over from the representation?
A. That's correct.
Q. And asked folks to comment on a number of areas. One area in which they did comment was on your sentencing in criminal cases that you are a fairly strict judge in terms of those sentencing. What is your philosophy of sentencing? Just share it with this Committee. How do you approach a criminal sentence? What do you factor in when you try to figure the appropriate sentence?
A. Well, of course, we begin with just the basic charge, whatever the statutory penalties provided, I start from that high point. I have an opportunity to receive fully the information and the circumstances of the crime, the nature of the injuries, victim, consider the criminal record of the defendant, so that the circumstances of his involvement, his participation in that crime and now, of course, we have presentence reports that are a great value to us and it's very difficult to articulate how you take your own personal philosophy and boil it down to a particular term of years or a particular term of probation in case, but each defendant and each victim and each case is completely different and in each case, each defendant must be considered separately and must be sentenced in such a way as to hopefully meet the needs of the victim, meet the needs of society and punish the defendant.

I think the deterrent effect is not a reality. It's strictly in my view a matter of punishment. I think that's all. The defendant rarely gets in front of me, but that's generally what I do. I was a criminal defense lawyer while I was in private practice along with civil practice and the other things that a general lawyer would do and I had -- maybe I knew too much about the defendants and maybe that's why my sentences are a little harsher now than they would be under other circumstances, but the sentence comes out, and I'll just encapsulate this, it comes out entirely from what I am and from the circumstances in the indictment before me.

I'm a strong believer in restitution. I think in every case even before ya'll mandated that that be done, restitution was absolutely required in every case of any loss to any victim. I've always -- I've done that for the 13 years I've been doing this.
Q. Judge, in 1992, in January of that year, you allowed your name or requested your name to be listed in an advertisement I believe in the Spartanburg Herald Journal endorsing the, what was called I believe the Human Life Protection Act. Realizing this is a very volatile issue in a matter of political and ethical and moral and staying away from the whole nature of how volatile the issue is, there is also the matter of the Canon of Ethics, Canon 7 and Canon 2 prohibiting judges from involving themselves in matters of public controversy.

You, I believe, had a complaint filed against you with the Board of Commissioners of Judicial Standards and I believe you also consented to some type of reprimand acknowledging that you had, in fact, without acknowledging intent violated Canon 7 and Canon 2.

This Committee has not had occasion very often to encounter this type of activity and really has not developed any firm approach to how they wish to proceed to discuss it with candidates, but I did want to bring it to their attention and also ask for your reaction.

What did you gather out of the experience? What rules, formal or informal, do you now allow to govern your involvement in matters that could be of a public controversy?
A. Judges have no public life. Judges cannot be involved in anything. Judges are neuter. It is unfair that judge's caliber of the -- and I set myself aside from this -- the caliber that we have in South Carolina, we're unable to participate in the process, a process that do not involve us in our judicial capacities.
Q. What is the -- what is your understanding of the wisdom or the rationale behind Canon 7 and Canon 2 as the reasons they were developed? Why is there this prohibition on this type of activity on judges?
A. To insulate us, I would imagine, from the pressures of the public, so that we continue to give the appearance of fairness, appearance of doing the right thing in every circumstance.
Q. And, Judge, I'm not trying to read too much into your comments, but I do sense in what you said initially as a reaction that perhaps this was a forced acceptance on your part of something that you don't believe to be totally fair. Am I mischaracterizing your --
A. That's close enough.
Q. Judge, have you had any other occasion which was not subject to sanction that you've been involved in a public controversy?
A. I have not.
Q. One Member of the General Assembly forwarded to us anonymously a copy of a letter dated October 21st, 1993 asking for consideration for his candidacy and as I say it was anonymously --
A. Well, I sent it -- yes, I sent it to everybody. That's the letter I sent with a little biographical sketch, yes.
Q. Is this stationery that you had purchased that you used?
A. Yes, I bought the stationery.
Q. The reason I ask, I figured that you had, and this is not a matter of any kind of ethical concern. It's maybe a matter of next time you run for election. Most folks have taken to having a little legend at the bottom that says not typed or produced or reproduced at State expense because the Member of the General Assembly had some concern about the way the letterhead, that it was official correspondence and that it had somehow gotten out and I just say that as a suggestion for next time. We have encountered that before, but most folks now have taken to do that.
A. Well, frankly, I really never gave that a thought since the expense money provided is insufficient to buy stationery. Most of my office expense, I buy out of my own pocket.
Q. Judge, I'll ask you a question that I've asked all the other candidates, have you sought the pledge of any legislator?
A. No, sir.
Q. Have you asked any other person to ask for consideration?
A. No, sir.
Q. What is your approach to the acceptance of gifts from attorneys?
A. I don't -- I just don't accept gifts.
Q. And my definition of gift is a fairly broad one and includes lunches, dinners, that sort of thing?
A. Oh, well, I -- ordinary social hospitality, I don't see anything wrong with that. The fact that I may have lunch with Senator Russell or Representative Beatty, both from my county and both have been friends of mine for many years, so long as they don't have a matter then pending before me, certainly I see nothing wrong with that.
Q. So that's your --
A. They would not if I were buying.
Q. That's your test in terms of a matter then pending?
A. I don't know if I gave a test.
Q. But in terms --
A. If there is anything pending, then I don't want any -- I don't want to walk down the street with you while your case is pending.
Q. Right.
A. But aside from a pendency of any action, ordinary social hospitality, a cocktail party, a movie, a dinner, a lunch, I don't see anything wrong with that.
Q. Judge, would you consider you're being required to recuse yourself if you had an ongoing relationship with an attorney that somehow you received a large gift or perhaps you vacation together or whether it be at your expense, shared expense or at his expense, would that be an appropriate time to recuse yourself?
A. Well, I think it would be.
Q. Judge, just as an administerial matter, I noted that you had not filed any campaign expenditure filings with the Senate Ethics or House Ethics Committee and also you indicated that you had spent no money to date. Does that continue to be true?
A. That's true.
Q. That would be no monies expended other than for travel?
A. That's right.
Q. Mr. Chairman, I have no further questions.
THE CHAIRMAN: Sir. Do any Members of the Committee have any questions? We thank you, sir. Sorry you had to wait.
A. Thank you very much.
THE CHAIRMAN: And that completes I think today. I think that is all we're going to take, so we will -- what time were we planning to meet in the morning? 10:00 o'clock. I guess without objection, then we'll stand in recess until 10:00 a.m. I would tell everybody that all hearings according to the Committee will remain open and all records will remain open on these. Thank you.

(The proceedings recessed at 6:25 p.m.)

TRANSCRIPT OF HEARING OF NOVEMBER 18, 1993

THE CHAIRMAN: We're back from our overnight recess and Representative Hodges?
REPRESENTATIVE HODGES: Mr. Chairman, yesterday we adopted a preliminary schedule for the -- I believe for filling of the Chief Justice's seat --
THE CHAIRMAN: Yes, sir.
REPRESENTATIVE HODGES: -- and others. I think we've already adopted -- I think we had Family Court and several others that we had to set a schedule up for and what I'd like to do, I have a proposed modification to that schedule.

In looking at what we adopted, we found that there was a good bit of overlap between the scheduling of these matters and the Administrative Law Judge elections and looking at -- after talking with staff, the volume of applicants that we are going to be dealing with and the hearing process, it's going to take a long time. Their feeling was that, and I would concur, that we should modify this schedule slightly in order to enable to us to give sufficient time to participate in Administrative Law Judge hearings.
THE CHAIRMAN: All right.
REPRESENTATIVE HODGES: And I pass up a proposed modification. And Ms. Satterwhite may help me and Ms. McNamee to make sure that we have the right proposed schedule on it. It's just a minor change.

Mr. Chairman, it's just a minor change in the schedule and I feel it will help accommodate some problems we have with getting everything together for these ALJ hearings.
THE CHAIRMAN: All right. Thank you.
REPRESENTATIVE HODGES: And if there -- after looking at it, if there is no objection, I would move to reconsider the vote whereby we adopted a preliminary schedule or adopted a schedule yesterday and then move that we adopt this new schedule.
THE CHAIRMAN: The staff is comfortable with all this. If they are, that's the major thing. Barbara, you -- all of ya'll had a chance to review it? Representative Hodges move that we modify the -- well, to make it -- Representative Hodges moves to reconsider the vote whereby we set up a proposed schedule for hearings. Do I here second?
REPRESENTATIVE STURKIE: Second.
THE CHAIRMAN: Mr. Sturkie has seconded. The floor is now open for discussion. There being no discussion, we move immediately to a vote. All in favor signify by saying aye. Vote by nay. The Ayes have it. The motion is now for reconsideration. And you now move to amend it to what you have put out here this morning. Representative Hodges has moved to this. Senator Sturkie has seconded. Any discussion on the amendment? All in favor signify by saying aye. Opposed by nay. The ayes have it.

Now, the question is the amended schedule. All in favor -- any discussion? There being none. All in favor of the amended schedule, please signify by saying aye. Opposed by nay. The ayes have it and so done.

Any other matters we need to take up before we begin? I'm trying to operate on house time today. Thank you. All right, with that I think the next one we have on our schedule was the Fifth Judicial Circuit in Richland and in Kershaw Counties. And first one would be M. Malissa Burnette. Is it Burnette or Burnette?
MS. BURNETTE: Burnette.
THE CHAIRMAN: Burnette. Folks upstate speak a little bit different than we do, so I have to check and make sure I'm pronouncing things. Thank you, ma'am. Raise your hand. Do you swear to tell the truth, the whole truth and nothing but the truth so help you God?
MS. BURNETTE: Yes, I do.
THE CHAIRMAN: Have a seat. And let's see. This is your first time for a screening?
MS. BURNETTE: That's right.
THE CHAIRMAN: Is that correct?
MS. BURNETTE: That's right.
THE CHAIRMAN: Have you had a chance to review the Personal Data Questionnaire Summary?
MS. BURNETTE: I have.
THE CHAIRMAN: Is it correct? Does it need any clarification that you know of at this time.
MS. BURNETTE: I just wanted to make sure that the information I provided earlier a couple of weeks ago and last week supplements the questionnaire and I just noticed a couple of nonsubstantive typos in Number 46 of the complete questionnaire. And also I wanted to point out in Number 33 of the complete questionnaire, my wording concerning the Commission on Grievances and Discipline was I used the word Complaint when it should have been Inquiry. I understanding there are no Formal Complaints against me, but I know there are have been some inquiries, so I just wanted to clarify that.
THE CHAIRMAN: The staff indicates to me that they can correct that and that the appropriate changes will be made. With those changes in there and those clarifications, would you have any objection to making this summary a part of your record of your sworn testimony?
MS. BURNETTE: No, I would not.
THE CHAIRMAN: All right. It shall be done at this point in the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. M. Malissa Burnette
Home Address: Business Address:
4127 Devine Street P. O. Box 1866
Columbia, SC 29205 Columbia, SC 29202-1866

2. She was born in Morven, North Carolina on May 23, 1950. She is presently 43 years old.

4. She was previously divorced in October of 1974, (Malissa Collins) in the Richland County Court on the grounds of physical cruelty. She was previously divorced in November of 1988, (M. Malissa Burnette) in Richland County Family Court on the grounds of one year's separation. She was married to Michael Grant LeFever on September 9, 1989. She has one child: Grant Burnette LeFever, age 2.

5. Military Service: N/A

6. She attended Winthrop College, 1968-1969, transferred to the University of South Carolina; the University of South Carolina, 1969-1971, B.A. in Sociology; and the University of South Carolina School of Law, 1974-1977, J.D.

8. Legal/Judicial education during the past five years:
She earned certification by the South Carolina Supreme Court as a Specialist in Employment and Labor Law, 1993. She has earned more than the required number of hours for continuing legal education.

9. Taught or Lectured:
1993 South Carolina Trial Lawyers Annual Meeting: Developments in Federal Law
1993 South Carolina Bar, Bridge the Gap: Labor and Employment Law
1993 South Carolina Bar: Title VII, the Civil Rights Act of 1991, Tort Claims, the Family Leave Act and the Equal Pay Act
1993 South Carolina Bar: Handling the Americans with Disabilities Act Case
1993 Council on Education in Management: Sexual Harassment, the Family Leave Act, and the Glass Ceiling Initiative
1992 ACLU Civil Rights Litigation Seminar: Americans with Disabilities Act
1992 Family Court Judges' Seminar: Domestic Violence
1992 South Carolina Trial Lawyers Annual Meeting: Americans With Disabilities Act
1992 South Carolina Bar: Screening The Client: Causes of Action Under Federal Law
1992 South Carolina Bar, Bridge the Gap: Labor and Employment Law
1991 South Carolina Workers' Compensation Education Conference: Americans with Disabilities Act
1991 Family Court Judges' Seminar: Domestic Violence
1991 South Carolina Bar: Americans with Disabilities Act
1990 South Carolina Trial Lawyers Annual Meeting: Title VII, The ADEA and other Federal Statutes
1989 South Carolina Bar: Litigating Employment Cases from a Plaintiff's Perspective
1989 South Carolina Trial Lawyers Annual Meeting: Title VII, The ADEA and other Federal Statutes
1988 South Carolina Trial Lawyers Annual Meeting: Federal Statutory Causes of Action in Employment
1988 NC/SC Bars: Psychological Effects of Discrimination
1988 South Carolina Bar: Trying the Equitable Distribution Case
1987 South Carolina Bar: Complex Issues in Family Court

10. Published Books and Articles:
1992 Employment & Labor Law Update, SC Bar, "The Americans With Disabilities Act"

1991 South Carolina Trial Lawyer, "Enabling the Disabled Worker: Americans with Disabilities Act"
1991 South Carolina Forum, "The Employment-at-Will Issue"
1991 South Carolina Forum, "For Her Own Good: The New Paternalism"
1990 South Carolina Lawyer, "No Way to Treat a Woman"
1987 South Carolina Bar Booklet "Domestic Violence," Co-author
1987 SCTLA Bulletin "Sex Discrimination in Employment"
1985 USC Business and Economic Review, "Legal Rights and Responsibilities of Employers"
1978 "Why You Need a Will," booklet for S. C. Commission on Aging

12. Legal experience since graduation from law school:

1977-1978 Attorney for CETA Division of Governor's Office;
Responsible for compliance with federal
regulations
1979-1982 Deputy Lieutenant Governor for Lt. Gov. Nancy Stevenson; Served as chief aide and legal advisor.
1982-present A founding partner of Gergel, Burnette, Nickles &
Grant law firm. Private practice with emphasis on employment law, family law and general litigation. Also administrative law and personal injury.

13. Rating in Martindale-Hubbell: BV

14. Frequency of appearances in court:
Federal - approximately 10 appearances, including 3-week trial
State - approximately 108 appearances
Other - Bankruptcy Court, 1 appearance; Administrative bodies, approximately 21 appearances

15. Percentage of litigation:
Civil - 80%
Criminal - 0%
Domestic - 20%

16. Percentage of cases in trial courts:
Jury - 5% - One 4-day jury trial; other jury cases pending
Non-jury - 95%
Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Linda Thomas, et al. v. City of Columbia, et al. 3:88-1748 - H. This was a race and pregnancy discrimination case against the Columbia Police Department and City, litigated (pro bono) over a period of three weeks in Federal Court. Although the Plaintiffs did not prevail, the case led to major changes in police and City policies. The City retained her in employment matters later.
(b) Dr. Caroline Eastman v. University of South Carolina (1993).
Appeal through grievance procedure of denial of promotion ended in 8/93 settlement providing complete relief including back wages and benefits, with interest, raise and promotion. The case focused attention on USC salary inequities and led to administration/faculty efforts to correct other salary disparities.
(c) Wilhemina Dixon v. Drapery Contracting Corp. and Irwin Praeger (affirmed by S. C. Court of Appeals, 1993, unpublished opinion).
An indigent, illiterate African-American woman overcame odds in Sumter jury trial to prove that a prominent white, male company owner intentionally caused her emotional injuries. A victory for the powerless.
(d) Tara Bailey v. S. C. High School League (Pro Bono)
By Consent Order in 1985, this case opened up participation in S. C. middle school sports to young women and men who previously were barred from playing even though they demonstrated ability. Case challenged gender-based rules as violative of due process and equal protection.
(e) Ruth Parris v. Donald Parris (Pro Bono)
She represented the amici curiae in this appeal pending before the S. C. Supreme Court. This is a potentially precedent-setting custody case which was featured on Dateline NBC in February, 1993, and has received national interest.

18. Five (5) civil appeals:
(a) Jean Edwards Crouch v. Saluda Motor Lines, et al.
South Carolina Court of Appeals
Decided: November 6, 1989
Citation: (89-CP-41-114) Opinion No. 1409
(b) Wilhemina Dixon v. Drapery Contracting Corp. and Irwin Praeger
South Carolina Court of Appeals
Decided: March, 1993 93-UP-087
Unpublished decision in favor of Plaintiff/Respondent
90-CP-40-0527
(c) Harry Plyler, et al. v. Parker Evatt, et al.
United States Court of Appeals for the Fourth Circuit
Decided: May 5, 1990
Citation: No. 88-7763
(d) Ruth Parris v. Donald Parris
South Carolina Supreme Court
Argument and decision pending
Citation: 90-DR-07-467 and 91-DR-07-265

22. Public Office:
Chairperson, South Carolina Crime Victims Advisory Board, 1986-1989; member 1984-1989; appointed by Governor

Member, Richland County Department of Social Services Board, 1978-1981; appointed by Governor

23. Employment As a Judge Other Than Elected Judicial Office:
She served as Hearing Officer for the S. C. Department of Health and Environmental Control, 1986-1990. She heard and decided contested appeals concerning Certificates of Need and other matters.

25. Occupation, business or profession other than the practice of law:
(a) 1972-1973: Correctional Officer, S. C. Department of Corrections. She supervised inmates at the Harbison Women's Correctional Center. She later served as School Principal at the Institution.
(b) 1973-1974: Director, Richland-Lexington Senior Citizens Center for the R/L Council on Aging. Responsible for programs.
26. Officer or Director:
(a) Two other partners and she manage and direct the business of their law firm. She has functioned in this role since 1982.
(b) She owns beach rental property with three other people. They all make business decisions for BGL Partnership; since 1985.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
She would recuse herself from hearing any matter relating to her law firm, beach property or the individuals with whom she is currently associated in these businesses.

32. Sued: In 1982 she was sued in her capacity as a former member of the Richland County Department of Social Services Board. The case was dismissed.

40. Expenditures Relating to Candidacy:
3/20/92 Postage $49.30
3/20/92 Copies $40.00
2/25/93 Copies $79.38
3/1/93 Postage $49.30
5/7/93 Postage $ 1.74
6/11/93 Copies $ 5.00
6/11/93 Postage $49.30
6/29/93 Postage $ 2.03
6/29/93 Copies $ .35
6/30/93 Postage $ 2.90
6/30/93 Copies $ .50
10/12/93 Telephone $10.00

TOTAL: $289.80

45. Bar Associations and Professional Organizations:
American Bar Association; South Carolina Bar Association: Chairperson, Quality of Life Committee (1993-1994), member of various other committees; Richland County Bar Association; South Carolina Trial Lawyers Association: Chairperson, Employment Law Section (1989-1994); Association of Trial Lawyers of America; S. C. Women Lawyers Association
46. Civic, charitable, educational, social and fraternal organizations:
Chairperson, Administrative Board, Washington Street United Methodist Church (1990-present), Sunday School Teacher (1983-present), Chairperson, Council on Ministries (1988-1990); Chairperson, Columbia College Board of Visitors (1988-1990); Chairperson, Columbia Chamber of Commerce Small Business Development Committee (1988-1989); Chairperson, SC Crime Victims Advisory Board (1986-1989)(member 1984-1989); Chairperson, Midlands TEC Women's Center Advisory Board (1981-1982); Vice-Chairperson, Belin Board of Trust, SC United Methodist Conference (1989-present); Executive Committee, Congaree Area Girl Scout Council (1993); Capital Rotary Club (1988-present) (first female member); Greater Columbia Community Relations Council (1993-1996), Bi-Racial Task Force (1990-present); Editorial Board, South Carolina Forum, USC (1989-present); USC Law School Association Board, Secretary 1990, Treasurer 1989; USC Women's Studies Community and Business Board (1988-1993); SC Coalition for Choice, Vice Chairperson 1990; State Park Correctional Center Citizens Advisory Council (1990-1993); Richland Heritage Alliance (1993); Palmetto Project Advisory Board (1992-1993); Planned Parenthood Board of Associations; SC ACLU; League of Women Voters; Family Service Center Board (1983-1988), Vice-Chairperson (1984-1985); SC Federal of Business and Professional Women, Legislative Chairperson (1986-1988); Men's Resource Center Board (1987); Rape Crisis Network Board (1984-1986); Sistercare Board (1983); Columbia YWCA Board (1979-1980); United Way Planning Division, Chairperson of Emergency Shelter and Housing Committee (1985).

HONORS: Who's Who in American Law - 1979, 1982, 1983, 1984, 1985, 1988, 1989, 1990, 1991, 1992, 1993; Who's Who in Emerging Leaders of America - 1991, 1992, 1993; Who's Who in America - 1989, 1993; Who's Who in American Politics - 1985, 1986; World Who's Who of Women - 1980, 1985; Personalities of the South - 1981, 1982, 1983, 1985; Personalities of America - 1984; International Director of Distinguished Leadership - 1985-1986; Outstanding Young Women of America - 1977, 1978, 1980, 1982, 1983, 1984; 1989 YWCA TWIN Academy Woman of the Year; 1987-1988 Business and Professional Women's Career Woman of the Year; 1982 South Carolina Jaycee-ettes Woman of the Year; 1981 USC Mortar Board Woman of the Year; 1980 YWCA Career Woman; 1979 Business and Professional Women's Young Career Woman; 1978 "Ten for the Future" recipient, The Columbia Record

48. Five (5) letters of recommendation:
(a) Leslie F. Pharr, Assistant Vice President
NationsBank
P. O. Box 727, Columbia, SC 29222
733-9680
(b) Bishop Joseph B. Bethea
S. C. Conference, United Methodist Church
4908 Colonial Drive, Columbia, SC 29203
786-9486

(c) Cameron M. Currie, Esquire
3405 Devereaux Road, Columbia, SC 29205
734-3693
(d) Vance J. Bettis, Esquire
1527 Blanding Street, Columbia, SC 29201
799-9311
(e) Professor Thomas R. Haggard, Esquire
1720 Maplewood Drive, Columbia, SC 29205
777-4155

BAR RESOLUTION: Richland County

To my understanding, there are no Formal Complaints that have been filed against you. The records of the applicable law enforcement agencies: the Richland County Sheriff's Office are a negative; the Columbia City Police, a negative. Had some indication in here that -- anyway, there was a typographical error that indicated at some point, there might have been some contact by you, but come to find, there was nothing to it. So if that ever pops up, it's just a typographical error in the computer or something.

SLED and FBI records are negative. Judgement Rolls of Richland County are negative. Federal court records are negative. I understand one complaint or statement has been received and one witness is present to testify.

With that, I'm going to turn it over to our Counsel, Mr. Couick. Please answer what questions he has.
MS. BURNETTE - EXAMINATION BY MR. COUICK:
Q. Good morning, Ms. Burnette.
A. Good morning.
Q. If you can't understand anything I say, I'm not loud enough or whatever, ask me. Do you have a copy of your Personal Data Questionnaire with you?
A. Yes, I do.
Q. We may refer to that a couple of times during the course of appearing this morning. The Committee places much emphasis on appropriate judicial demeanor. By way of analogy to a currently sitting judge or to just a statement of philosophy or goals, explain to the Committee how you would approach service to the bench in terms of demeanor in the courtroom both to litigating attorneys and lay witnesses and lay litigants?
A. Well, I think my philosophy is that I judge people by what they do, not by who they are and that is a guiding principal for me. I try to treat people very fairly. I have had five years of experience as a hearing officer at DHEC and enjoyed that a lot. I didn't mind sometimes having to rule against my friends or even the president of the Bar at one time point, I believe. And I just try to do what is fair.

I use as a model -- a role model to me is federal judge Joe Anderson because I think he's both a gentleman and a scholar. He treats all people with respect. He's a very practical person. He's a very honest person, a very calm and really a judicious person and I would like to model myself after the way he handles a courtroom.
Q. Sitting and listening to your explanation, it seems that you would be, if you were the model of Joe Anderson, a fairly reserved judge, that you would contain your activities to the courtroom and that you would treat folks fairly in that model. That has certainly not been the reputation of the Malissa Burnette the litigator over the years and the public activist. How hard of a transition is that going to be for you?
A. It might even be a relief. I have been called upon by the news media throughout my career and even before I was in law school because I've been very concerned about a lot of community issues. Even as a child, even as a teenager, I took down KKK posters and got my -- got death threats to my grandfather. I'm going to have to be a little bit more careful at this point, I think and I've grown up a lot, but I'm pleased that I have been seen as a spokesperson in my adult years as someone who is knowledgeable about certain issues.

I certainly know the difference between being an advocate and being a judge and I think I can make that transition just as I have made the transition in my life from representing primarily plaintiffs to being able to switch and represent, for example, the City of Columbia in all of its employment matters and even now representing a man accused of sexual harassment. I can do that. I can see both sides. I can work both sides and I think I can be very open-minded.

I would not talk about any case in the newspaper. I have learned that sometimes the newspaper can certainly make you look very one dimensional and they won't always print the whole story or everything you say. I'm sure some of you have had that experience and I have had that experience frequently, but I don't think that's the role of a judge. I think the role of a judge is in the court.
Q. What is your interpretation of the Canons as it relates to restrictions on your involvement in public controversies, the Canons of Judicial Conduct?
A. Right. Well, certainly, I would abide by the Canons.
Q. Give me a quick course of what they mean to you. What have we got? What are the guiding principles of the Canons as it relates to that? What can you do and what cannot you do and give a couple of examples?
A. Well, I think as a judge, a person must focus solely on cases before him or her and the issues involved in those cases and without being prejudiced toward either side or letting your personal feeling interfere with hearing a case and giving a fair hearing to everybody.

I think if a judge feels that they are -- changes that need to be made, those changes have to be made according to the -- what law exists. I think if there are changes, for example, in the Rules of Civil Procedure, there are mechanisms to make those changes in an orderly fashion and through the system. Is that what you were asking?
Q. Yes, ma'am. And in addition, Ms. Burnette, what organizations that you have previously belonged to such as the South Carolina Crime Victims Advisory Board and you also were appointed to serve as a member of the Department of Social Services Board of Richland County by the Governor and you've been an activist in a number of organizations relating to the rights of women and the rights of victims and other circumstances. Could you maintain these memberships? How active could you be in them --
A. No.
Q. -- even while you're not on the bench?
A. If I were on the bench, I would essentially forego what I consider my community service except to my church and that is the most important thing I do. Now, I'm the Chair of the Board of my church and have been for four years and I serve in a lot of other capacities, but I feel that that would be home to me as a judge.
Q. Other aspects of judicial temperament the Committee has given a great deal attention to are the ability of judges to ensure that a trial is fair and you mentioned a little about fairness awhile ago and two particular issues are ex parte communication and avoiding the impression that there may be some bias in how justice is delivered in your courtroom through the acceptance of gifts whether it be lunch, dinners, travel, whatever. What are you going to -- what are going to be your rules on ex parte communication and gifts?
A. Well, as far as gifts go, I think my word is just say no. I don't see any point in accepting any type of gift, not even a cup of coffee. It is not worth it. Someone said yesterday if you don't want it to be on the front of the newspaper, don't do it. I wouldn't want any litigant to even think that I might be influenced by a lawyer on the other side. It is just not worth the public embarrassment, embarrassment to my family or something that could be made of it later. It is just not worth it. As to -- what was the other question?
Q. On ex parte --
A. Ex parte communication, I would not permit any lawyer to come see me alone. I would not accept a telephone call from a lawyer unless my assistant could get both lawyers on the phone at the same time. I would not call a lawyer unless I can get both lawyers on the phone at the same time. If I need an order drafted and I can't get them both on the phone at the same time, I'd send them both a letter that said the same thing.
Q. You have -- you and your husband have a young child, I believe, two years old at the time you filed your application and I believe you might have sat through the hearings yesterday. I've asked those males that are applying for the judgeships as well as all others, what -- how will this work into your plans for full service on the bench? Court Administration pushes the docket, that sometimes pushes the courtroom later and later into the evening. You obviously have family commitments as other folks do. How are you going to be able to balance that?
A. Well, first of all, you remind me that my daughter asked me this morning if I was coming to the Screaming Committee. No, I don't think so, darling. They're not going to scream. But she has been a joy to us our older years, I must say.

We have a very good situation. She's at day care at our church which is two blocks from Main Street and two blocks from my husband's office and we participate equally in the care of our child. Both of us enjoy it very much. Also my family is in town and like last night my mother picked her up when this meeting went late.

I have traveled extensively in my practice. At times there are school board hearings or hearings out of town, we can arrange. We've never really had a problem with it. We have enough resources and also some other reliable baby-sitters.
Q. What is the driving reason for your wanting to serve on the Circuit Court in South Carolina?
A. I think at this point in my career, having graduated in 1977 and having had a very successful law practice that I've enjoyed, it's just a different approach I want to take now. I feel like I have a lot of experience under my belt. I want to do something just a little different. Get out of the -- I don't want to say rat race, but in a way it is a rat race being in a small law office where you do a of lot of litigation.

But I think one of the reasons is I feel like I might have a little more control over my own schedule. Not that my schedule will be any shorter or that time put in will be any less, but I'm at a point where I would enjoy that as well as the challenge of being a Circuit Court judge.

I like -- I think I would like to use my administrative abilities, which I think are strong. I believe I could take control of the docket. I'm a very organized person. And that would be an aspect of being a judge that I would enjoy also.
Q. Ms. Burnette, your recent experience at least as you've listed on your Personal Data Questionnaire would indicate that you have probably concentrated on civil matters perhaps 80 percent of your practice and domestic was 20 percent and that has left very little room for criminal practice.

In addition, it seems that you have done a good bit of settlement work lately and perhaps what appearances you may have been before perhaps administrative tribunals rather trial courts. Those are things that are certainly important, but it leaves this hole of criminal trial practice at least in your recent practice as an attorney. How would you compensate for that?
A. That's a legitimate question and I did -- I have concentrated on civil practice. I feel that you can't be everything to everybody and you can't be an expert in everything, so I've tried to being an expert in some areas.

I believe I've achieved a good balance in my practice in other ways. I've done not only litigation, but also a great deal of research and writing as you can see by my extensive presentations at Continuing Legal Education seminars, but more specifically as to the criminal law, I'm not unfamiliar with the system.

My first job out of college was a prison guard, so I've been literally in the system. I, of course, took criminal law courses in law school. I assisted Professor Jon Thames in updating the Criminal Defense manual.

I did serve on the South Carolina Crime Victims Advisory Board as chairperson for four years and I'm familiar with the system of victim assistance, restitution and so forth. But I am preparing myself for having to deal with criminal law cases and let me tell exactly how.

First of all, I have consulted with three sitting judges who have great experience and told them I said, you know, what do you think. I have very little experienced in criminal law and I'm worried about that being a problem if I'm a judge and all of them said it'd be better to have to learn criminal law than to have to learn the full gamut of civil law. That criminal law at least has a more narrow focus. A lot of it has to do with basic constitutional issues, which I am familiar with, and you know, I was somewhat satisfied in talking with them about that.

I've gone further than that, though, and I have studied one of the judge's civil and criminal trial notebooks, four volumes, I believe, and looked at rulings and standards for all the rulings, the charges to the jury on both specific and general charges and evidentiary questions that come up.

I've also got Jack Swerling's two volume criminal trial notebook which is huge. It has 63 sections and I have been studying that very closely and I find sort of a theme in talking with the three judges and also my studies in criminal law and that is some of the things that come up most often. They are three things: photo identification, search and seizure and confessions. And so I've already begun to try to educate myself in that area.

I'm also signed up for the criminal law seminar that's going to be scheduled in January and along with the South Carolina Bar meeting. I feel that my extensive experience in the civil area as well as my strong research and writing skills prepare me to learn criminal law as a judge.
Q. You're in the process of learning and I think that's what you've been saying. You're trying to do it and you're admitting that you need more. Obviously, it'd be a learning process that will continue once you go on the bench as well?
A. That's right.
Q. The Solicitor is going to be there every day or someone out of his office and they're going to be well known to you either well known in a good sort of way or well known in a bad sort of way. There are going to be criminal defense attorneys that come through on a much more sporadic basis.

Is it possible that you may become to reliant on the Solicitor's Office as a guiding force because at least they've got some consistency in their approach or how are you going to compensate for that? How are you going to make sure that you don't become one dimensional in how you approach the criminal trial?
A. I would be cautious about that and go in realizing that that might be something that would be easy to do and aware that I might be tempted to do that.

First of all, if I'm assigned in Richland County, there is going to be a new Solicitor one way or the another, I believe, who may not have all that much experience. On the other hand, I intend to take Continuing Legal Education courses and read as much as I can to prepare myself and not to be more influenced by one side than the other.
Q. Let's assume that you're on the bench for several years and you're very, very comfortable with your knowledge of criminal law and you're to the point where you may decide that you should self-anoint yourself as the expert on criminal procedure and law in Richland County and you disagree with the way this new solicitor is trying cases or the way he's organizing the docket, how are you going to handle that disagreement?

And let's say you're right. Let's say that you are right on point. There is some legitimate grievance you have against the Solicitor.
A. Well, I don't think believe in embarrassing any attorney or any litigant in court. And if I had a problem with the Solicitor, I would ask that that Solicitor meet with me and sit down and discuss it and try to determine the best way to reach a resolution that would be satisfactory to us both. And I would expect the Solicitor to be open to talking to me about that.
Q. Would it ever be appropriate to take that level of disagreement publicly whether in the courtroom or in the newspaper?
A. No.
Q. I have some perfunctory questions that are being in terms of pledging, but I have one other question that it involves your public involvement in a number of controversial matters in the last several years, most recently involvement I believe it was the Rotary Club here in Columbia and the question is not whether it was right or wrong, the approach that you took to it, but just the distinction that it would seem the Canons would call for the approach one might take as a private citizen/private litigating attorney and a person that is a judge. And if I could read you a quote, you may have been here last evening to hear this. I assume it's correct. I'm reading it from the Greenville News and they're pretty accurate. And I quote, it says, "Judges" -- and this a quote from a judge that was being screened -- it says, "Judges have no public lives. Judges can't be involved in anything. Judges are neuters."

Is that a fair statement of a judge's position on controversial matters whether it be matters of Right to Life or matters involving the Rotary Club or matters involving victims assistance or what's your position on that?
A. That's a pretty strong statement, but it applied pretty well to I think abortion issues or the Rotary Club or something like that, but I do think judges can have a life. I think judges can have personal friends and serve in their church and there are many very satisfying ways that a judge can have a life. But I want to state for the record today that I did not go to the news media about the Rotary issue. A male Rotary member did that five weeks -- and it came out five weeks after my resignation and what was once a grain of sand became a beach.
Q. But you don't believe, Ms. Burnette, that whatever you did -- and there is always going to be a difference of public opinion on controversial matters. That's what makes it controversial. That's what sells newspapers?
A. That's right.
Q. Don't you believe that what was appropriate in that matter may not be appropriate once you have ascended to the beach -- I mean, the bench? Don't you think that there is a significant difference in terms of whatever the matter is between that what you've done is wholly right, it's appropriate for a person that's active in a democratic society, but once you assume that bench, it's a wholly different approach you can study?
A. I think it's a whole different world. Yes, I do, and I would not have been talking to the newspaper about anything like that if I were a judge.
Q. Do you see the wisdom, I guess, beyond it being a rule and being the law and being black and white, is there wisdom in that approach? What is the philosophy behind it? How do you understand it? Why is that the right approach?
A. I think that is absolutely the right approach because I think when the citizens of South Carolina go before a judge, they need to know that that judge is not -- or -- and they need to believe that that judge is not going to be biased one way or another.

And I think that whenever you start talking to the news media, you can state your bias if you're a private citizen. I think if you have bias as a judge, you must keep them to yourself and you must not apply them in the courtroom either.

But there should be no appearance of bias and there should be no question in a litigant's mind that the person they're appearing before has a preconceived idea about some issue in the case and I absolutely understand that and agree with it.
Q. Do you believe it's reasonable to expect that someone who has been as high profile as you in your activities can make that transition such that if you're elected four months from now or six months from now someone can walk into that courtroom and tell there is a difference or not expect that that past carries over?
A. I think in the beginning people will wonder what I would be like, but I think very quickly they will see that my philosophy is to be completely unbiased, to be a fair person. I think just because you may have been involved in some very public issues does not mean that you cannot be a judge. Look at Ruth Bader Ginsburg. Look at Thurgood Marshall. Look at people who are outstanding jurists in this country. I've always thought that if you were worth your salt, you stood for something, but that doesn't mean that you wear that badge when you become a judge. It means that you have prepared yourself through research and study and hard work to be a judge to be able to look at all the issues.
Q. You have the reported expenditures of approximately $280,000 to the Ethics Committees and to this Committee. Do you have any further expenditures you would like to report as well?
A. Well, I don't think I have $280,000.
Q. Excuse me. $280.
A. Thank you.
Q. I'm still at the beach.
A. Let's see. I'm aware now that some people have written letters in my behalf to legislators because they sent me copies out of the blue and I assumed that some other people were spending money for postage, but I have no way of knowing how much that is, but I have not made any other expenditures.
Q. And finally the Committee has each asked candidate to take an oath that they have not sought the pledge of any legislator prior to the completion of the Screening Process. Could you take that pledge today?
A. Yes, I will.
Q. And have you not sought any third person to contact any Member of the General Assembly prior to?
A. I have not and I will not.
Q. Thank you. That's all, Mr. Chairman.
THE CHAIRMAN: Thank you, sir. Any Members of the Committee have any questions?
MR. COUICK: Mr. Chairman, we do have one witness that we'd like to call and reserve --
THE CHAIRMAN: Who is that?
MR. COUICK: It's Mr. David Pointer. He's present and then have the capability of calling Ms. Burnette back if she would like to.
THE CHAIRMAN: Ms. Burnette, if you wouldn't mind staying around until after we've heard the testimony of Mr. Pointer, Counsel may have some questions for you. Mr. David Pointer. If you would come forward there and if you will raise your right hand. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
MR. POINTER: I do.
THE CHAIRMAN: Thank you, sir. Have a seat and state for the record, your name and your current address, please, sir?
MR. POINTER: My name is David Pointer, 652 Lockshire Circle, Columbia in Lexington County.
THE CHAIRMAN: All right, sir. Mr. Couick, our counsel, has some questions for you. Please answer his questions for Mr. Couick.
MR. POINTER - EXAMINATION BY MR. COUICK:
Q. Mr. Pointer, what is your current employment?
A. I'm an investigator for the State.
Q. For the State of South Carolina?
A. State of South Carolina.
Q. Affiliated with any particular agency?
THE REPORTER: Excuse me, who?
Q. The Attorney General's office, I believe is his response?
A. Yes.
THE CHAIRMAN: Ask him to please speak into that microphone because it -- this sound system just doesn't pick it up unless it's --
Q. Mr. Pointer, you have filed an affidavit with the Committee that included an attachment which was a letter from a third party who is not present today.

You and I discussed earlier that I had some concern about your testifying about the contents of the letter. I'll be glad for you to supply your original copy to Committee. We'll be glad to follow up on it with further investigation if appropriate if the Committee should will, but I would -- if you would just generally describe the reasons why you are here today for the Committee.
A. I think I can be very succinct. May I read just one sentence from the affidavit? I believe this candidate has violated the Rules 8.4(d) and (e) and 3.4(b) of the Appellate Court Rules by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, by engaging in conduct that is prejudicial to the administration of justice and by attempting to assist a witness to testify falsely.

Since I understand that I cannot discuss the letter, I simply would add that the -- I will submit the original and my request would be that the Committee exam the contents of that letter. And than other that, I really have nothing to say that I can substantiate.
Q. Mr. Pointer, you have appeared --
REPRESENTATIVE HODGES: Let me clarify something. You cited Appellate Court Rules?
A. Yes.
REPRESENTATIVE HODGES: Okay, I just wanted to make sure I heard him right.
Q. In the Canons of Ethics. They are actually numbered as an Appellate Court Rule --
REPRESENTATIVE HODGES: Okay.
Q. -- by the Supreme Court.
REPRESENTATIVE HODGES: So it's the same Canons --
Q. Same Canons.
REPRESENTATIVE HODGES: -- that we've been referring to, it's not separate that we've --
Q. Right. Mr. Pointer, you have appeared here today in relationship to the application of Ms. Malissa Burnette for election to the Circuit Court. Have you appeared in the courtroom where Ms. Burnette was present in any capacity before?
A. Yes, I have been present in the courtroom.
Q. And what was her relationship, vis-a-vis, was she your attorney?
A. Right. As --
Q. She was your attorney?
A. No. I'm sorry. As my affidavit states, I realize that my concerns that I feel obligated to present to the committee I realize will be viewed with suspicions because Ms. Burnette was the attorney for my -- first attorney in a series of attorneys for my ex-wife in a divorce hearing.
Q. What type of action was it? Was it a simple divorce or were there custody matters involved?
A. I believe probably everything that could be involved was involved.
Q. But it involved also the custody of a young child?
A. Yes. Of whom I have custody.
Q. Were you awarded custody at the termination of this hearing?
A. There are certain matters that are still unresolved. And I guess that issue would be ongoing, but at the moment, yes, I do have --
Q. But at the time of the conclusion of the hearing in which you complain, the affidavit you speak of talks about a particular hearing. Were you awarded custody at the end of that hearing?
A. No.
Q. I have no further questions, Mr. Chairman.
THE CHAIRMAN: Thank you. Do any Members of the Committee have any questions? Thank you, sir. Appreciate you coming. There being no questions. He's free to go?
MR. COUICK: Yes, sir.
THE CHAIRMAN: You're free to leave, too, sir, if you -- do you have any questions of the --
MR. COUICK: Mr. Chairman, Ms. Burnette had filed a -- we had supplied as we do with all candidates a copy of the Complaint and Affidavit to Ms. Burnette on Monday after it was filed. She has prepared a written response which I believe has been included in your notebooks. I would be glad for Ms. Burnette to respond, if she should chose. The written response is there, but she is welcome to take whatever option she would like.
THE CHAIRMAN: Ms. Burnette?
MS. BURNETTE: I really don't have much to say and you do have my written response, but as far as I know, he has not presented any evidence of any wrongdoing on my part and I certainly deny any wrongdoing. He did submit a copy of a letter a witness sent to him. It's not under oath and I have submitted to the Committee my statement. It was a custody matter he lost when I was representing his wife. I'm very sorry he wasn't able to put this behind him.
MR. COUICK: Mr. Chairman, the Staff after receiving the letter which was attached to the Affidavit attempted to contact the person that signed the letter. They are a public school teacher. We left numerous messages. Realizing that it had to be handled in a confidential manner, we said it was important, that it was important to contact us as soon as possible.

That public school teacher who signed the letter that is attached to the affidavit chose not to contact us back. We understand from Mr. Pointer that she has received our calls. Knows we're trying to call her. While he did not affirmatively say that she did not want to participate, Counsel certainly had the impression that this was not something that she wanted to become involved in.
THE CHAIRMAN: All right. Thank you. If there are no further questions, you're free to leave if you wish. I would tell you what we have told the rest and for the record today, as we complete each hearing, we are leaving the record on these candidates open and they will remain open until this Committee takes action to close the records.
MS. BURNETTE: Thank you.
THE CHAIRMAN: Thank you. Now, we move to the second candidate in the race for the Fifth Judicial Circuit, Richland and Kershaw Counties, L. Casey Manning. Mr. Manning, could you come forward, sir. Same chair as everybody else over there. If you would please 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?
MR. MANNING: I do.
THE CHAIRMAN: Have a seat and for the record state your full name and your current address, so the court reporter can get that.
MR. MANNING: Lee Casey Manning, 10 Woodlands Court, Columbia, South Carolina, 29209.
THE CHAIRMAN: I note that this is your first screening. Have you had a chance to review the Personal Data Questionnaire Summary?
MR. MANNING: Yes, sir, I have.
THE CHAIRMAN: Is it correct or does it need any clarification?
MR. MANNING: The first clarification is my address has changed obviously from 305 South Saluda to 10 Woodlands Court. This occurred back on October the 28th when my wife and I bought a new house.
THE CHAIRMAN: We'll take care of that. Is there any other clarifications or changes.
MR. MANNING: I think that just about covers it. I submitted a letter dated November 15th, 1993 to Ms. Nancy Goodman that details my activities from 1977 until 1979 when I began practicing law in Dillon County.
THE CHAIRMAN: All right. And I'm informed by Staff that we have that and that also will be included. With those additions and corrections and clarifications, do you have any objection to making this summary a part of your record of your sworn testimony?
MR. MANNING: No, sir, I don't.
MR. CHAIRMAN: All right.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Lee Casey Manning

Home Address: Business Address:

10 Woodlands Court 136 E. Main Street

Columbia, SC Lexington, SC

2. He was born in Dillon County, South Carolina on December 7, 1950. He is presently 42 years old.

4. He was married to Laverne Hunter on August 4, 1973. He has three children: Charlotte, age 14; Casey, Jr., age 12; and Morgan Rose, age 3.

6. He attended the University of South Carolina, 1969-1973, B.A. from College of Social and Behavioral Sciences; and the University of South Carolina Law School, 1974-1977, J.D.
8. Legal/Judicial education during the past five years:

8/19/93 South Carolina Trial Lawyers Association
(SCTLA) Annual Convention

4/10/92 A Seminar for Bar Examiners

8/13/92 South Carolina Trial Lawyers Association
(SCTLA) Annual Convention

9/18/92 Criminal Practice in South Carolina

5/8/91 Breath Test Procedures for the Legal
Community

8/15/91 South Carolina Trial Lawyers Association
(SCTLA) Annual Convention

9/27/91 South Carolina Criminal Practice Seminar

1/12/90 Legal Ethics and Professional Responsibility

2/7/90 No-Fault Automobile Insurance Seminar

8/16/90 South Carolina Trial Lawyers Association
(SCTLA) Annual Convention

2/16/90 Workers' Compensation 1990

12/14/90 Evidence Law Seminar

8/17/89 South Carolina Trial Lawyers Association
(SCTLA) Annual Convention

9. Taught or Lectured:

5/20/93 Bridge the Gap - Criminal Practice - Pre-trial Matters

9/18/92 Criminal Practice in South Carolina

3/5/92 Bridge the Gap - Criminal Law

12/13/91 Evidence Law and Trial Techniques

10/19/90 South Carolina Criminal Practice - Pre-Trial
Matters - Covered topics including preliminary
hearings, bond hearings, pre-trial motions and
discovery

12. Legal experience since graduation from law school:
(a)Partner, WALKER, MORGAN & MANNING, Lexington, South Carolina, 1989-Present. He reentered the private practice of law in 1989, and joined the firm of Walker, Morgan and Manning. This is a Lexington County firm that does a high volume of business in personal injury and other civil litigation. Because of his background, his primary focus still has been criminal defense work. He has engaged in a great deal of civil work, but most of his civil work has not resulted in trial litigation. Since 1989, however, he has not handled domestic cases, except on an infrequent basis.
(b)Assistant Attorney General, STATE OF SOUTH CAROLINA, Columbia, South Carolina, 1983-1989; Chief of Prosecutions, 1988-1989. For five (5) years, approximately 1983 to 1989, he worked out of the Criminal Prosecution Section of the Office of the Attorney General. His primary focus during this time was criminal prosecutions throughout the state. The Prosecution Section handled primarily conflict cases from the different 16 Circuit Solicitors that would arise. During various times, however, one had the opportunity to go to the 4th Circuit or stay in the 5th Circuit or go to the 14th Circuit or the 8th Circuit and prosecute cases for a week or so either alone or with the local solicitors.
He engaged in a lot of agency work during this period of time with the Attorney General's office. One of his agencies was the Ombudsman's Office. He represented SLED as well as the Solicitor's Association during this period of time. The main focus, outside of prosecution, was agency work lending advice and support to the solicitors, sheriffs, chiefs of police and everybody involved with law enforcement. The best way to describe this period of time would be a primary focus on criminal prosecution with a secondary emphasis on agency representation.
(c)L. CASEY MANNING, ATTORNEY AND COUNSELOR AT LAW, Dillon County, South Carolina, 1979-1983. He did a tremendous volume of domestic work during this period of time. He also did a tremendous volume of juvenile work in the family courts at this time. In fact, at one point, Nancy Bailey, Esquire, a local Dillon County lawyer and himself, were the only two lawyers in the County that handled appointed juvenile cases in the local Bar. During this period of time, he engaged in a wide range of the general practice of law, including writing Wills, contracts, real estate, criminal work and civil litigation in the Courts of General Sessions and Common Pleas. He did extensive work in Magistrate's Court, primarily in Dillon County. He did some probate work by being retained, as well as PCRs, some administrative hearings and did a little bit of everything. This period lasted for approximately five years.
(d)Part-Time Instructor; FLORENCE-DARLINGTON TECHNICAL COLLEGE; Florence, South Carolina; March, 1980 - November, 1980
(e)Law Clerk; RICHLAND COUNTY PUBLIC DEFENDER'S OFFICE; Columbia, South Carolina; December, 1976 - May, 1977
(f)Constable and Agent; SOUTH CAROLINA LAW ENFORCEMENT DIVISION; Columbia, South Carolina; May, 1973 - August, 1974

13. Rating in Martindale-Hubbell: BV

14. Frequency of appearances in court:

Federal - twice

State - weekly

Other - Magistrate (weekly)

15. Percentage of litigation:

Civil - 30%

Criminal - 60%

Domestic - 10%

16. Percentage of cases in trial courts:
Jury - 25 %
Non-Jury - 75%

Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:

(a) State v. Stephen Gregory Scott. This is his first murder case. It was tried in Dillon County in 1982. The Honorable Marion H. Kinon presided.
Greg Scott was the younger brother of a classmate of Mr. Manning's in high school. Greg Scott was a white male approximately 25 years of age at the time. He was charged with murdering his first cousin. He was a co-defendant. The other defendant was a black male by the name of James Mack. James Mack pled guilty prior to the call of Greg Scott's case and gave State's evidence against Greg Scott.
This case was significant to Mr. Manning since it was his first murder case. The deceased was killed on May 29, 1982. The trial began on June 22, 1982. There was a two-week term of General Sessions in Dillon County, and Mr. Manning was trying every single case held during that term. He tried a DUI, and his client was acquitted. He tried a breaking and entering and grand larceny case where two co-defendants testified against his client, and he was acquitted. He tried an assault and battery with intent to kill which resulted in a mistrial. Greg Scott's murder case came at the end of the two-week term. During this period of time, he probably disposed of approximately 20 to 25 pleas, in addition to trying all of these other cases.
The case was called and was prosecuted by DuPre Miller, along with his deputy Solicitor Lee Youngblood. The State called approximately 12 witnesses, and Mr. Manning called about 20 witnesses. The case was heard prior to the advent of Circuit Court Rules 103 and 104, which today translate into Rule 5 and Brady Motions. The case was called and tried, and after a three-day trial, Mr. Scott was acquitted. Mr. Manning filed a Writ of Prohibition. He tried to get a Supreme Court Justice to sign his Writ directing the Circuit Court to cease the trial. Former Chief Justice Woodrow Lewis did not sign the Writ of Prohibition, and he advised Mr. Manning that Rule 103 and Rule 104 that tracked the Federal Rules for Disclosure were about to take effect in South Carolina.
The significance of this trial is that Greg Scott had a prior record for breaking and entering and grand larceny, and as such his reputation could be impeached. He was not a very pleasant character. After the trial, Greg Scott went to seminary school in North Carolina, got his degree, remarried his wife (whom he had divorced), and he, and wife and two children put the family back together and started a preaching career. The last he heard, Greg Scott was doing well and was a Minister of the Gospel.
(b) United States of America v. Homer Lee Shealy. This case was tried in the United States District Court for the District of South Carolina, Columbia Division. Homer Lee Shealy was indicted under 18 U.S.C. Section 9-24(c).
Homer Lee Shealy pled guilty to distribution of marijuana in the General Sessions Court for Lexington County on July 11, 1991. He received a sentence of one year from the Honorable Carol M. Connor. This offense occurred on or about May 6, 1991. On or about December 11, 1991, the United States Grand Jury indicted Homer Lee Shealy under 18 U.S.C. Section 9-24(c) for possessing a firearm while committing a drug trafficking offense. This is almost a strict liability crime. If one had a gun during the commission of a drug trafficking offense or a violent crime, then Section 9-24(c) came into play. The sentence was a mandatory minimum 5 years and $250,000.
The case was called to trial and was prosecuted for the United States Government by Matt Hubbell. The Honorable Joe Anderson presided. After a three-day trial, the jury acquitted Homer Lee Shealy. This was one of the first in this State where a defendant had been acquitted by a jury for an alleged violation of 18 U.S.C. Section 9-24(c).
(c) The State v. Styles Harper, Jr. Mr. Manning was working out of the Criminal Prosecution Section for the State Attorney General's Office in 1984 when this case arose. This was a vehicular murder case in Beaufort County. It was an interesting case as there were no eye witnesses to a head-on collision between a car driven by Mr. Harper and a couple riding on a motorcycle.
The highway patrolman that investigated the case erroneously assumed that since Mr. Harper's vehicle came to rest facing east that he was travelling east, and he wrote up his report that way.
There was a civil side of this case that was prosecuted by Sam Svalina, a distinguished lawyer at that time with the Dowling Firm in Beaufort County. Sam Svaline had taken approximately 30 to 40 depositions in the civil case. The criminal side of the case had been on what was then known as a contingent docket for approximately a year and a half. The Honorable Buster Murdaugh had a conflict in prosecuting the case inasmuch as he was personal friends with the Harper family and this is the reason why the Attorney General's Office was asked to prosecute this particular matter.
Two distinguished lawyers in Beaufort County defended Mr. Harper (James Moss and Mike Charles MacLoskie). The significant thing about this case was that it was a vehicular murder case and under the theories of State v. Mouzon, a case arising out of Sumter County, that one could imply malice from the operation of a motor vehicle. Therein lay the basis for charging Mr. Harper with vehicular murder. It was a long, involved and technical case that was tried for three to three and a half days.
This preceded the Felony DUI Statute in our state and that is one reason why it was tried as a vehicular murder. As a prosecutor, it was interesting inasmuch as one had the opportunity to not only obtain a conviction for vehicular murder following the dictates of State v. Mouzon, but it would have been a special note to have been able to accomplish this without any eye witnesses.
(d) State v. Sam Johnson Bailey. This was a Criminal Sexual Conduct case that he tried in his real home in Dillon County in the fall of 1982. It was also his first Criminal Sexual Conduct trial. Mr. Bailey was charged with raping his 9-year-old stepdaughter. Mr. Manning was appointed to represent Mr. Bailey in this case. He had been held in lieu of bond in a Dillon County Jail for approximately six months. He did extensive investigation and travelled to the Cities of Bennettsville and McColl to gather information about Sam Bailey, his estranged wife, the mother of the alleged victim. He also got information on how the Department of Social Services in Dillon as well as Marlboro County had investigated this case.
(e) William Glenn Hinton - Parole Board Hearing. He handled a Parole Board hearing for the above-referenced individual on October 25, 1989. This case was significant to him inasmuch as he had grown disenchanted with Parole Board hearings. He had handled probably two or three up until this time. Mr. Hinton had gotten married while in prison. He was 32 years old and married Jo Hinton who had 2 sons, one age 15 and the other age 17. Mr. Hinton was serving a term for armed robbery. He had been up for parole two years prior to this date (1987) and was turned down.
In determining how best to represent Mr. Hinton, Mr. Manning prepared a "Hearing Notebook." It is his understanding that it was the first time a presentation of this kind had been made to the Parole Board. The idea was to determine how to best package an individual for presenting his case before the Parole Board. A Parole Board hearing lasts approximately 6 to 12 minutes. In preparation for Mr. Hinton's parole hearing, Mr. Manning went to several hearings prior to the date of his hearing. In the Notebook he prepared a Table of Contents, which included a Summary of Facts that detailed the original offense. He also included photographs of Mr. Hinton and his new wife and stepsons at home in Hartsville, South Carolina, in the house he would be living in if paroled. He also included excerpts from the transcript of his guilty plea in Florence, South Carolina, which indicated he was not the trigger man. He also arranged and obtained statements from the Drug and Alcohol Awareness Programs that he had attended while in prison. Further, he had Mr. Hinton to undergo two drug screens prior to the date of his parole hearing. He also had Mr. Hinton pre-enroll in a Community Drug Rehab Center in Hartsville prior to the date of the Parole Board hearing. Finally, he had included within this Notebook letters of references in connection with Mr. Hinton's case.
He prepared approximately ten original copies of the Notebook and had them distributed to the Parole Board prior to the date of his hearing. He was able to appear on his behalf before the Parole Board and make an effective presentation in approximately eight minutes. These efforts were successful, and Mr. Hinton was released back to the community after the hearing was held.
It is his understanding from some of the individuals that work at the Parole Board that this is the first time anybody had effectually presented a Notebook and it has become somewhat of a model for effective Parole Board representation today.

18. Five (5) civil appeals:

None

22. Public Office: South Carolina Assistant Attorney General, 1983-1989, appointed

25. Occupation, business or profession other than the practice of law:
SLED Agent, 1973-1974

45. Bar Associations and Professional Organizations:
Lexington County Bar Association; Richland County Bar Association; South Carolina, Criminal Law Secretary (Chairman, 1987-1988); American Bar Association (1978 to present); South Carolina Trial Lawyers Association, National Minority Delegate; Alston-Wilkes Society (through 1983); ABA Young Lawyers Division Needs Assessment Panel (1989); Association of Trial Lawyers of America (1992); Association of Trial Lawyers of America, Minority Caucus (1992); Dillon County Arts Council (1983); Dillon County Bar Association (1977-1983); Dillon County Chamber of Commerce, Board of Directors (1981-1983); Dillon County Development Board, Industrial Commission (through 1983); Dillon County United Way, Board of Directors and Allocation Committee (through 1983); Dillon County United Way, Professional Division Leader (1983); Greater Columbia Chamber of Commerce (1990-present); Greater Columbia Chamber of Commerce, Sports Committee (1973-1974); Lexington County Bar Association (1989-present); Chairman, Criminal Law Section of the South Carolina Bar Association (1987-1988); Richland County Bar Association (1989-present); Richland County Criminal Defense Group (1992); South Carolina Bar Association (1977-present); South Carolina Bar Board of Law Examiners (1992); South Carolina Bar Special Committee on the Judiciary (1991-1992); South Carolina Trial Lawyers Association (1989-present); SCTLA Legislative Steering Committee (1989-present); United States Court of Appeals, Fourth Circuit; United States District Court, District of South Carolina

46. Civic, charitable, educational, social and fraternal organizations:
Columbia Tip-Off Club (1989-present), President (1991-1992); Board of Directors, Crime Stoppers of the Midlands (through 1989); Institute for Counseling Student Athletes (1989-1991); First Vice Chair, McKissick Museum Advisory Council (1992); Criminal Justice Advisory Committee, Midlands Technical College (1990); Board Member, The Nurturing Center (1989-present); Board Member, South Carolina Athletic Hall of Fame (1989-present), President (1992-1994); Board Member, South Carolina Special Olympics (1989-present); Minority Outreach Subcommittee, South Carolina Special Olympics (1989); Councilor-at-Large, University of South Carolina Alumni Association (1986-1987); Block C Association, University of South Carolina; Board of Directors, Block C Association, University of South Carolina (1985-1987)

47. He has agreed in principle to do basketball play-by-play for the University of South Carolina network for the 1993-1994 Basketball Season. He intends to sign a Master Talent Fee Agreement in connection therewith.

48. Five (5) letters of recommendation:
(a) Charles R. Vance, III, Vice-President
First Citizens Bank
100-02 N. McArthur Street, Dillon, SC 29536
774-3363
(b) McKinley Weaver
400 Lincolnshire Boulevard, Columbia, SC
754-8746
(c) Dennis J. Powell
South Carolina National Bank
1401 Main Street, Columbia, SC 29226
765-3307
(d) James G. Bogle, Jr.
Assistant Attorney General
P. O. Box 11549, Columbia, SC 29211
734-3970
(e) J. DuPre Miller, Esquire
P. O. Drawer 737, Bennettsville, SC 29512
429-7556

I note the Board of Commissioners on Grievances and Discipline reports that no Formal Complaints have ever been filed against you. The records of the applicable law enforcement agencies: the Richland County Sheriff's office, a negative; the Columbia City Police Department is negative. The Judgement Rolls of Richland County are negative. Federal Court records are negative. No complaints or statement were received. And no witnesses are present to testify. So with that, I'll turn the matter over to Counsel. Please answer what questions he has, sir.
MR. MANNING - EXAMINATION BY MR. COUICK:
Q. Good morning, Mr. Manning.
A. Good morning, sir.
Q. Mr. Manning, you've heard a good bit of my discussion. I believe with Ms. Burnette about changes in lifestyle necessitated by ascending to the bench. You have certainly been very active as well in a number of causes during your tenure as a practicing attorney and before. You're well known here in the community.

What changes do you foresee in your lifestyle or in how you approach your social commitments, organizations and otherwise when you -- if were you to be elected and to ascend to the bench?
A. Of course, if I'm fortunate enough to receive this honor, one would naturally have to cut back a lot of social commitments. I'm on a number of different boards, most of which fall within the charitable frame.

I'm on the Board of Directors for the South Carolina Athletic Hall of Fame. A number of different other causes that are listed obviously. I think one has to cut back on those social commitments inasmuch as it's always a possibility that some of the organizations you're a member of or serve on the Board could be involved in litigation somewhere down the road.

Although I don't think it's necessary to completely divorced yourself to participate in any community activity, I think you have to take a more restricted view of your participation and have to limit your participation, so I would be inclined to limit my participation in a lot of organizations.

I think that one's personal behavior becomes more microscopic, if you will, and I think you have to curtail a lot of activities that would be appropriate for a lawyer that would be unseemly for a judge.
Q. Would it an appropriate thing for a judge to do to be a radio announcer for a basketball team?
A. Well, you know, obviously, I -- before I came here I checked the Canon 5 and under avocational activities it seems to appear to me that it's okay provided it doesn't interfere with your judicial duties. It becomes a logistical problem, I do believe, more so than one might reflect poorly upon once in the position as a judge.
Q. Would you be a Bobby Cremins basher if you were an announcer?
A. No, I think Bobby Cremins is a fine fellow and loves Carolina as much as anybody else. I wouldn't intend to bash anyone, let alone South Carolina so to speak.
Q. Mr. Manning, you heard also me question about judicial temperament in terms of the demeanor in the courtroom. What would be your approach in the courtroom or who would be your model, a sitting judge that can be looked to for a model of your behavior?
A. Well, you know, I thought about that somewhat. I guess my demeanor would be perhaps the same as it's always been practically all my life. One fellow that comes to mind, a judge that's no longer with us is Judge Mike Morris down in Manning, South Carolina. And he was once described years ago in the Dillon Herald by a local writer as someone that had claws beneath that velvet robe, but if Judge Morris never raised his voice.

I never saw him get angry on the bench, yet even in a whisper everyone in the courtroom, the bailiffs and everyone else included, knew exactly what he wanted and how serious he was about what he was requesting. And I never saw him have any difficulties.

I never saw him raise his voice. I never saw him show anger and certainly to an extent and degree, he would be my model in terms of demeanor and temperament.
Q. You have three children that range in age I believe from three years to fourteen years of age. How will this commitment to these children effect your commitment to being on the bench? What impact will that have?
A. Probably very little. Less impact if I were fortunate enough to become a member of the Judiciary than it does now as a practicing lawyer. I have to explain to people that the three-year-old is not my grandchild. That she is my natural child.

But the kids, they're all in school before 8:00 o'clock in the morning. I drop off two. My wife drops off my little girl now. But essentially the activities in the morning for the children are over with before 8:00. Around 7:45 or so.

And as lawyer now of course, occasionally you have to be out of town early or whatever and arrangements can always be made either through my wife or my in-laws who happen to reside here in our fair city also, so I don't see any difficulty with having children ages fourteen, twelve and three years old and serving on the bench, sir.
Q. Speak a little bit toward your academic scholarship, if you will, that you take into the bench with you? What type of participation have you had in Bar activities? What type of legal writing have you done? What type of activities have you done to improve the practice of law in South Carolina that you would recommend for our consideration?
A. Well, right now, I'm currently a Bar examiner and the last time I was Bar examiner I gave Insurance, the time before that Insurance, the time before that Federal and Civil Procedure. I've lectured for Bar events. I guess most recently -- well, to bridge the gap for example, back in -- this summer, I participated in criminal trial practices on a number of occasions where I've presented written materials to other Members of the Bar, lawyers rather than law students, and I've participated as the presenter at Bar activities over the last three years, probably about six or seven times would be my guess.

I think I might have listed them all there, but -- and I've presented written materials also that I've been informed by attorneys that have used these materials that they were most helpful, particularly in a practical way.
Q. You do have a Martindale-Hubbell rating of BV and that you have been an active member of the Bar for sometime. You have obviously during that period of time come into judges who do well with ex parte communication matters and that perhaps don't do as well. What will be your approach to handling matters that may cause you to come into contact with an attorney that wants to have an ex parte communication? How would you handle that?
A. Well, you just don't indulge in that sort of activity. Of course, these things do not arrive in a vacuum. Some friend you've known from law school for the last 10 of 15 years may call you up and start talking about one thing and toward the end of the conversation, he might say by the way next week and you immediately stop him and explain to him that you would hate to be placed in a position where as a judge, you might have to report his activities and as a lawyer, he might have to report yours. So I think the Rules are clear for everyone to follow and I think pointing out those Rules to another Member of the Bar should be sufficient to curtail any ex parte activities.
Q. In the area of bias and the appearance of bias that may be caused by the acceptance of gifts whether that would be a lunch, a dinner or some more typical form of gift, what would be your approach to that? How would you handle those situations?
A. I think my approach and the best approach is simply not to accept those sort of invitations particularly if you're holding court in an area or here Richland County or anywhere else throughout the state, you simply say no.

But then again, you don't live with that and if you're holding court in Gaffney, for example, and you have a friend that's a lawyer in Greenville, I don't see anything inappropriate about going to Greenville to have dinner with he and his wife.

But, you know, a judge's I guess foresight should be about as good as his hindsight. It's looking ahead to potential problems and heading them off I think is the key to not showing bias or prejudice. I mean what can be a very innocent thing taken out of context can appear to be something nefarious that you're having lunch with somebody and the next week you're in court with him.

Well, you know, you don't have lunch with a friend from Greenville one week when you know you're going to be in Greenville the next week and various members might see you having lunch with him. That's completely innocent and innocuous, but the very next week, he's appearing before you in court. And so I think his foresight has to be as good as your hindsight and you try to prevent these matters from appearing.
Q. You list that you have made no expenditures in campaigning for this office; is that correct?
A. Well, that's not exactly correct. I don't think I've spent over $100 and that was on postage pursuant to the Rule, so I didn't think I was required at that point in time to list that.
Q. You have heard the question I've asked the earlier candidates as to whether they have sought the pledge of a Legislature prior to this Screening Committee meeting and prior to us issuing a report. Have you done so?
A. I have not done so.
Q. Have you asked any third party to contact members of the General Assembly and seek their consideration of your candidacy?
A. Well, sir, I have done that and let me explain. The new Ethics Legislation went into effect I think July 1st. Now prior to July 1st, it was perfectly permissible, for example, during the last session to ask any Member or someone to contact or talk to someone on your behalf.

And I was concerned about that because the question arose in my mind what if you asked someone when it's perfectly okay to contact a Member and yet their actions didn't occur until after July 1st. I think I called someone on your staff and made an inquiry about that. But I have not asked anyone and that would be the only point I would want to raise for your consideration.
Q. And Mr. Manning, I believe in fact, you may have spoken to me and I agree with your interpretation of the Rule that any request that took place before July 1st is outside the law. Are you aware of any organized attempt which you convince Members of the General Assembly to support your candidacy whether it be through any kind of caucus, grouping of the Members, whether it be from any county or judicial district?
A. I am not aware of any, sir.
Q. Mr. Chairman, I have no other questions.
THE CHAIRMAN: Any Members of the Committee have any questions? Thank you, sir.
A. Thank you.
THE CHAIRMAN: Thank you for coming. Do you have statements you want to make?
A. No, Mr. Chairman, just that it's been a pleasure to appear before this Committee and it's been quite an experience. Thank you all very much.
THE CHAIRMAN: Thank you, sir. You, of course, are free to go also and -- all right. We'll move to the Ninth Judicial Circuit, Berkeley and Charleston Counties, the Honorable William L. Howard. Good morning.
JUDGE HOWARD: Good morning, sir.
THE CHAIRMAN: Well, first raise right hand, please.
JUDGE HOWARD: Yes, sir.
THE CHAIRMAN: Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
JUDGE HOWARD: I do.
THE CHAIRMAN: Thank you, sir. Have a seat and identify yourself for the record and your current address.
JUDGE HOWARD: My name is William L. Howard, Sr. and I live at 2420 Kemway, K-e-m-w-a-y, Road, Johns Island, South Carolina, 29455.
THE CHAIRMAN: Your last screening according to our records was on March the 21st, 1988.
JUDGE HOWARD: Yes, sir.
THE CHAIRMAN: And have you had a chance to review the Personal Data Questionnaire Summary?
JUDGE HOWARD: Yes, sir, I have.
THE CHAIRMAN: Do you know of any corrections or clarifications or anything that need to be made to that?
JUDGE HOWARD: No, sir. Not that I can see.
THE CHAIRMAN: Is there any objection to making this summary a part of the record of your sworn testimony?
JUDGE HOWARD: No, sir. No objection.
THE CHAIRMAN: All right. It shall be done at this point in the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. William L. Howard, Sr.
Home Address: Business Address:
2420 Kemway Road Charleston County Temporary Judicial
John's Island, SC 29455 Center

P. O. Box 70219, 2144 Melbourne
Avenue
North Charleston, SC 29411

2. He was born in Ann Arbor, Michigan on January 19, 1948. He is presently 45 years old.

4. He was married to Daphne Carruthers on July 29, 1968. He has two children: William L., Jr., age 24 (Jail Liaison Officer, Charleston County Public Defender Corporation), and Tiffany Linn, age 24 (unemployed).

5. Military Service: Captain; USAR; September to December, 1973; ***-**-****; Honorable Discharge

6. He attended Dickinson College, Bachelor of Arts, September, 1966 to May, 1970; the University of South Carolina School of Law, J.D., September, 1970 to May, 1973.

8. Legal/Judicial education during the past five years:
(1) National Judicial College: General Jurisdiction Course I and II, September, 1989 and September, 1991
(2) National Judicial College: Settlement Techniques and Equal Justice, September, 1993
(3) Regular attendance at JCLE seminars each year
(4) Lectures at two CLE seminars

9. Taught or Lectured:
(1) CLE, 1 Hour, Ethical Considerations in Civil Cases
(2) CLE, 1 Hour, Effect of Edmonson v. Leesville Concrete (Civil Batson)
(3) S. C. Defense Attorneys' Association, 1 Hour, Mediation
(4) S. C. Defense Attorneys' Association, 1 Hour, Civil Procedure Update

12. Legal experience since graduation from law school:
1973 to 1988: General practice including civil defense work, criminal defense, domestic, Plaintiff tort, workers' compensation, real estate, will and trust preparation

13. Rating in Martindale-Hubbell: Not listed; unknown

20. Judicial Office:
July 12, 1988 to present: Circuit Court, Ninth Judicial Circuit, civil and criminal, unlimited jurisdiction (General Trial Court), elected by General Assembly

21. Five (5) Significant Orders or Opinions:
(a) City of Charleston v. S. C. State Ports Authority, affirmed, 420 S.E.2d 497
(b) State, ExRel T. Travis Medlock, as Attorney General, et al. v. Ramantanin d/b/a Lotto Fleet, no appeal taken
(c) South Carolina Public Service Authority v. Great Western Coal (Kentucky) Inc., et al., settled on appeal
(d) Osborne v. Carver, no appeal taken
(e) Condon v. Lot A. Amherst St.

22. Public Office: October, 1981 to October, 1984: City Attorney, Town of Mount Pleasant, South Carolina, appointed

24. Unsuccessful Candidate: 1976 Election: Mount Pleasant Town Council (the top five were elected; he came in sixth or seventh)

25. Occupation, business or profession other than the practice of law:
None other than summer or part-time employment during college and law school. They included the following: Construction work at Jalmar Norrell, Trumbull, Connecticut; Retail Credit Co., Columbia, South Carolina; and Lamb Exxon, Charleston, South Carolina

28. Financial Arrangements or Business Relationships (Conflict of Interest):
None, other than stock in IRA account. He holds no current financial interest.

32. Sued: Yes, he has been sued in his official capacity by two state prisoners. One was in State Court in which the action was dismissed, and one was in Federal Court in which the action was also dismissed.

45. Bar Associations and Professional Organizations:
South Carolina Bar Association (Ninth Circuit Chairman, Fee Dispute Committee, Ethics Advisory Committee); previously South Carolina Trial Lawyers Association; American Bar Association

46. Civic, charitable, educational, social and fraternal organizations:
Exchange Clubs of Charleston, South Carolina

48. Five (5) letters of recommendation:
(a) Charles F. Rivers, III, Senior Vice President
SouthTrust Bank
P. O. Box 8, Charleston, SC 29402-0008
577-4510
(b) Dan W. Brake, M.D.
Trident Family Practice, P.A.
9313 Medical Plaza Drive, Charleston, SC 29418
572-1200
(c) Honorable Richard E. Fields
65 Spring Street, Charleston, SC 29403
577-4374
(d) Hugh Cannon
P. O. Box 31820, Charleston, SC 29417
571-3673
(e) Mary Todd Poore
93 D Beaufain, Charleston, SC 29401
577-3830

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
Circuit Court; Ninth Judicial Circuit; July 12, 1988 to present

10. Extra-Judicial Community Involvement:
Local High School Mock Trial Competition, presiding Judge; Guest Speaker: D.A.R., Paralegal Banquet, Young Lawyers Association, Hibernian Society, Citadel Inns of Court; Mediation Referral Program

The Board of Commissioner on Grievances and Discipline reports that no Formal Complaints of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. The records of applicable law enforcement agencies: The Charleston County Sheriff's Office, a negative; Charleston City Police department, a negative; SLED and FBI records are negative. The Judgment Rolls of Charleston County are negative. Federal court records show no judgments or criminal actions against you. I think there was one case in the Federal Court --
JUDGE HOWARD: That's --
THE CHAIRMAN: -- for a civil action, but it was dismissed in the 1980.
JUDGE HOWARD: Well, yes, my partner and I were the plaintiffs in that. It was settled. It was dismissed.
THE CHAIRMAN: Then I understand that was brought up at the last screening?
JUDGE HOWARD: Gee, I don't even know. To be honest with you, I don't remember, but basically it was very simple. It was just a suit that we brought against an insurance company that did the New Home Buyers warranties for my client and had made some disparaging remarks. We filed suit against them --
THE CHAIRMAN: Yes, sir.
JUDGE HOWARD: -- and it was settled.
THE CHAIRMAN: Yes, sir. I find it was dismissed and according to our records, nothing more to it.
JUDGE HOWARD: Right.
THE CHAIRMAN: No complaints or statements have been received and as I understand, there are no witnesses present to testify. So with that, I'm going to turn it over to Mr. Couick who has some questions for you, please, sir.
JUDGE HOWARD: Yes, sir.
JUDGE HOWARD - EXAMINATION BY MR. COUICK:
Q. Good morning, Judge. If you can't hear me or if you need anything, let me know.
A. All right, sir.
Q. I believe the last time you were screened was in 1988 --
A. That's correct.
Q. -- at the beginning of your current term?
A. Right.
Q. And what a difference six years makes in terms of, I guess, the atmosphere of the screening.
A. Yes, sir.
Q. That was one of the more contentious screenings, I guess not as it relates to you, but overall that's ever been had by this Screening Committee.
A. I was just saying earlier, I think ya'll made some changes after that particular screening in different things as a result of that whole process.
Q. And I would have to imagine that as much impact as that had on the candidates, that Screening probably had a large impact on the Bar in Charleston, South Carolina because --
A. Well, at the time, I think there was a great deal of discussion and so forth down in Charleston. I think that's understandable.
Q. And I would have to imagine that once it was over and you had put on the robe and ascended to the bench, everybody would be looking to see what your stance was going to be, vis-a-vis, the various parts of the Bar that kind of fell out after that situation.

I would imagine those folks would have to be worried that they were on the wrong side, that justice may be swift, but may not be fair and the folks who are on the good side in terms of the supporting your candidacy or perhaps the removal of the incumbent judge may have an expectation, well, things are going to be better now. What did you do to make sure that those things didn't happen?
A. Well, I don't know that I set upon a particular course other than to just make sure that I handled everybody the same way. Most of those people that took positions were my friends and still are my friends, in fact, including some of the ones that ended up coming up and testifying in my particular Screening and they handled many cases in front of me and we've gotten a long very well. There hadn't been any problems to my knowledge.
Q. Do things seem to have settled down somewhat in terms of the Bar seems to be more relaxed?
A. Oh, I think that's way past history. I think all that is pretty much totally over and done with as far as the Bar is concerned. They're a very united Bar. In fact, they had a function last night. I'm very proud of the Charleston County Bar Association. They just are very united.
Q. Have you been called on to recuse yourself in any situation as an outpouring to those hearings --
A. No.
Q. -- as it relates to any particular attorney or group of attorneys or firms?
A. No, not to my knowledge.
Q. What's your general standard of recusal? How do you look at a motion for recusal or look at it without a motion, how do you decide what's --
A. Well, that has evolved. As a new judge, it's very -- sometimes you -- whenever you get in a situation where you feel you can be fair, but there is a situation that's presented, it's very easy to say, well, now, I happen to know this person, so if anybody wants me to recuse myself, I'll do it.

But then as you stay on the bench for a little while, you realize that that's not a good approach, that you better say I will consider it if you make such a motion because there are times when it's not appropriate for you to recuse yourself even though somebody might want you to do that just out an overabundance of caution. That is, you would be harming the other side when they're entitled to their day in court.

My overall -- my philosophy if you will or my approach is that if there is any question than I will bring it to the attention of the lawyers for the parties and then we'll discuss it. And if -- I try to be aware of the fact that it's not easy for a lawyer to ask a judge to recuse himself also, so that in situations where I feel that it could present a problem, vis-a-vis, parties irrespective of the outcome, then I -- they'll always feel it's tainted because of my connection to the witness or the party. In those situations, I would recuse myself without making the lawyer -- putting the lawyer in that position.

By the same token, you try to be conscious of the fact that you just can't recuse yourself because you happen to know Mr. Smith or Mr. Jones because to do so would prevent the other party from their day in court.
Q. And, Judge, I'm very interested in terms of the balancing that you go through and I guess the one concept I'm not fully understanding is the concept of the other party is entitled to their day in court?
A. What I'm saying is, you know, after you've lived in a community for many years, chances are that you may know some of the witnesses in a case. And I'm talking about now cases that are jury trials or if you just happen to have met somebody on a previous occasion and if -- as you well know, with only forty judges in the state, court time is precious and hard to come by sometimes and people wait a long time to get to trial and various circumstances and so just because you happen to know somebody who may be called upon to testify and you're acquainted with him, you've said hello to him before, it would be very easy to say, oh, I know that witness, so I better not hear this case.

But that could have an effect in requiring somebody to wait several more months before they come to trial and so you -- I think that in those situations, you have to say can I be fair, is there going to be a problem, even if I know I'm fair, that will result from my making the decision or presiding in a case.
Q. You were not --
A. Did that clarify it?
Q. Yes, sir. And the reason I delve into this, we've done this with all judges that are currently sitting on the bench, there has been -- some concern has arisen across the state specifically about Members of the General Assembly who appear before judges and Senator Saleeby was here yesterday and commented that perhaps in some ways it's the Members of the General Assembly that ought to object because to some degree they, the judges, seem to be make sure to the nth degree that they -- there is no preference given to their client's trial. But there have been -- there are attorneys who regularly make objections about lawyer-legislators appearing before judges that they elect.

What standard to you apply in those cases? Is it always appropriate to let a lawyer-legislator appear before you? Does it matter who the lawyer-legislator is? What degree of conduct on their part, what types of activities would you have to mutually to have engaged in before there is a point where that recusal should take place?
A. I think that all of the circumstances become important in situations such as that. For example, what is my role? Am I presiding as the judge at a jury trial where the legislator is really asking the jury for relief and I'm simply being asked to make decisions about evidentiary matters and charging the jury with regard to law that is very well set forth and that I say the same thing in any case, in that situation or is the case being tried to me? What is my relationship in time as well as other matters with that legislator?

I'll give you a specific example. Recently I had a case which was coming up. It was a nonjury case. I would have been called upon to make the decision. It's a very serious case that is still on going. Senator McConnell is the attorney for the plaintiff and would be asking for relief both for his client and under the specific statute if he prevails for attorney's fees.
Q. You're going to waive those, aren't you, Senator?
A. As a result of the fact that this process was coming up within a matter of a couple, two or three weeks before that, I -- and as a result of the fact that it also involved my county and I knew the people also on that side, because it was nonjury, I couldn't explore settlement with the parties, so for all of those reasons combined, I decided and after talking with the lawyers that my role would be better placed as a mediator trying to help resolve that controversy and let another judge try it.

Not because there would have been any impropriety. Senator McConnell certainly wouldn't and I wouldn't and the other lawyers did not want me to recuse myself, so it's not a matter of that, but because of the timing of it, the appearance would have been or could have been too great repercussions from an appearance standpoint. And in that setting, I felt that was the best thing to do, but now I'm very protective of the system that we have in selecting judges.

I think it's the best system in the United States and I don't think that a legislator who happens to be a lawyer should be penalized to the extent of not being able to practice before the judges that are appointed. I don't know of any judge that would -- myself included, that would give a legislator preferential treatment because he is a legislator, so...
Q. Would you agree, Judge, and just for the sake of agreeing with you that we do have the best system in the country, we and two other states, of electing judges, that the best way to protect that is to always ensure that there is no appearance of impropriety or relationship between lawyer-legislators and the judges they elect?
A. Yes, sir.
Q. And based upon what you said earlier, there are basically two things that you weigh and balance. One is the power you have to deliver whether that be would deliver a verdict or an order without a jury sitting there, how you have to influence the outcome, and also the circumstance of the lawyer-legislator in terms of as the case you've mentioned about Senator McConnell, you were obviously coming up for Screening and there was going to be that appearance there that there -- something was improper or could be improper. And there -- I would imagine there are other circumstances where the unique situation of a lawyer-legislator can have that same effect?
A. Yes. I think so. I mean you can sit here all day and give what if's, but that's basically right. And in addition to that, I would also include the thoughts of the attorneys and the situation of the parties as well.
Q. You have been roundly applauded in the questionnaire results that we've gotten back from Charleston as being one of the more compassionate, evenhanded judges to serve in South Carolina.
A. Well, thank you.
Q. If there is any criticism of your holding court and this
-- it's odd that we get responses back, this judge pushes the docket too hard and he doesn't care about attorneys and then sometimes we get responses back, we've got a couple that this judge is too compassionate, he doesn't worry about the docket. How do you balance that tension?
A. Boy, it's almost on a case by case basis. We implemented in Charleston a procedure of a pretrial conference approximately one month before the case would go on the docket. That allows me when the orders come before me a month before its going to go on the trial docket or would normally go on the trial docket to hear from them as to particular problems they have and to account for those problems and give them that one continuance, if you will, before they actually get on the docket and clog up the docket where they aren't ready for trial. It allows me, for example, to take more complex cases and give them 60 more days or this small case and get it up very quickly if they're already.

Now what does that for me personally in addition to the planning for the docket is that gives me more strength, the conviction in saying no when they then come to me a month later and ask for a continuance after they've already said I will be ready, we can get these depositions completed and we'll be ready for trial.

Now that's not to say I don't -- I won't consider a particular problem, but that's personally how I have dealt with that in Charleston is to do that planning ahead of time and in the lead case, the majority of those problems are the ones that do come up. More specifically the problem that may arise if it's on the trial docket, I try as conscientiously I can to say we need to -- what is the position of the other attorney and how long has this case been pending, what is the problem and then I roll around in my own mind different ways of resolving this problem besides having to continue the case.
Q. Judge, I believe you heard the questions that have been asked today about ex parte communication and gifts. Very briefly state your approach to each of those, ex parte communication and acceptance of gifts?
A. In regard to ex parte communication very briefly, I -- more and more they seem to come in the forefront of problems. The days of calling a lawyer and asking him to draw an order are over and done with.

What I do is I either rule from the bench or when I'm ready to make a decision, I will call both lawyers. If I can't get them on a conference call, then I'll wait until I can before I make my decision or I'll draw my own order.

If a lawyer comes in and has purely scheduling question, then as the Administrative judge you have to talk with him. Of course, in an injunctive situation where somebody is moving for an ex parte Temporary Restraining Order, you have to under the Rules hear from them as to those matters, but if somebody comes in and starts a conversation about a scheduling matter, but from what I can glean as soon as that -- a little red light goes off in my head that we're getting into the merits of the case or that the actual scheduling is a part of the merits of the case, then I will stop them right there and say let's -- you know, I don't want to have any ex parte communication. Let's get Mr. So and So on the phone and we'll do that. If we can't, I'll say, I'll call you.
Q. In the area of --
A. With regard to gifts, I try my best not to get into any situation which would be one that would give the appearance of impropriety. When I first went on the bench the first year, a lawyer brought me a bottle of liquor. I said I can't accept it. He said, well, you know it takes at least a case to buy a judge, but what I did was I gave it to a -- obviously, he was kidding, but --
Q. They stopped writing before you said that.
A. Obviously, I had told him I couldn't accept it. What I did was I gave that to the Charleston County Bar Association for their events and I haven't gotten any since then. So that's my way of handling things is to not accept them. Now and then if I go out to lunch and somebody is a friend of mine and they don't -- they're not appearing in front of me, I'll have lunch with them, but I pay for my own.
Q. And some final questions. We have talked extensively with candidates about public controversy and becoming involved in public controversy, one specific example, and just to check your approach on this I think this is valid, what carry over -- if you were to have a disagreement between the administration of the Solicitor's Office and his trial -- and his office's trial of cases, what would be appropriate way to bring the Solicitor's attention to your disagreement with that approach?
A. The appropriate way in my view is to meet with the Solicitor and say this is my view of what's going on and my problem with how things are being handled, Is there a way that we can deal with your problems and at the same time change things around to make it more efficient or handle whatever I perceive as a problem.

You know, I've had that and we've done just that. In South Carolina at this time, solicitors run the docket to the extent that the defendants don't run it by virtue of their decisions to plead or to try. And I think that as a judge, we're just knocking our head against the wall trying to tell the Solicitor how to run his docket. So what I do is I say you're in charge of that docket, now how can I help you plan that and I haven't had any problems.
Q. I take it, it would be inappropriate to do that publicly whether it be in a courtroom or in the newspaper?
A. Oh, definitely. My view with regard to things like that is that it's not appropriate for me to -- I'm not a public source of that kind of information. It's not appropriate for me to criticize that solicitor.
Q. And, finally, Judge, the question as to pledges, have you sought the pledge of any legislator prior to this hearing or will you prior to the completion of the Screening report?
A. No, sir.
Q. And have you asked any third party to approach any Member of the General Assembly and seek your consideration?
A. No, sir.
Q. Thank you. Mr. Chairman, that's all the questions for Judge Howard.
THE CHAIRMAN: Thank you, sir. Any Members of the Committee have any questions? Thank you, sir. We appreciate your coming.
A. Thank you.
MR. COUICK: Mr. Chairman.
THE CHAIRMAN: You're free of course to leave also.
A. Thank you.
MR. COUICK: Mr. Chairman, a Member of the Committee had indicated earlier and I also have an commitment to -- a speaking engagement at 11:40 today. I believe it's over about 1:00 o'clock. It was something Mr. Hodges and I scheduled before these hearings were scheduled. Would it be possible to adjourn until approximately 1:15 or so at this time and at that time take up the Eleventh Circuit which would be Candidates Davis and Westbrook? I apologize for the inconvenience.
THE CHAIRMAN: Are we going to pretty much be able to maintain -- can we finish today? Are we back to schedule?
MR. COUICK: Yes, sir.
REPRESENTATIVE HODGES: We're going to start back after lunch.
THE CHAIRMAN: 1:15. We'll be on House time, so --
REPRESENTATIVE HODGES: Whenever Mike and I get back.
REPRESENTATIVE ALEXANDER: I need to know approximately what time we might finish today. Can you give us a ballpark --
MR. COUICK: Yes, sir. If I can borrow your --
THE CHAIRMAN: Yes, sir. Go ahead.
MR. COUICK: -- list of candidates, I would --
THE CHAIRMAN: Got them right here.
MR. COUICK: We have got two, three incumbents left and we've also got what I call a nonincumbent seat that's the first one up. I will -- right. So we've a total of five candidates remaining. I would imagine if there were no complaints against either of the two persons seeking the Eleventh Circuit, so that should go probably no more than 30 to 45 minutes per candidate, an hour and a half maybe.

On the remaining three candidates, there is a complaint. It's not a very long complaint on two of those three. I would imagine we probably have another hour to hour and fifteen minutes for those two. So I'd say maybe two hours and forty-five minutes after we're back. We should be through about 4:00 o'clock.
REPRESENTATIVE ALEXANDER: So I can get out of Columbia before 5:00.
THE CHAIRMAN: Now, if everybody gets back here at 1:15, so we're on Senate time, we'll start right up on time.
REPRESENTATIVE ALEXANDER: Any problem?
THE CHAIRMAN: Ya'll, we're going to make it 1:30 in light of the schedules and everything. There is no need for me to bring you back at 1:15 and we be on Senate time. We'll start at 1:30.
REPRESENTATIVE ALEXANDER: That'd be 1:45.
THE CHAIRMAN: We're going to go 1:30 House time, 1:15 Senate time. Is that acceptable schedule?
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: With that, we'll stand in recess. Do I hear a motion we stand in recess until 1:30 House time? There being no objection, so ordered.

(A lunch break was taken)

THE CHAIRMAN: Come back out of recess now and I think that the House preferred Senate time.
REPRESENTATIVE ALEXANDER: Come on now.
THE CHAIRMAN: So we're back and running. We're to the Eleventh Judicial Circuit, McCormick, Edgefield, Saluda and Lexington Counties. The first candidate will be the Honorable Clyde N. Davis, Jr., West Columbia. Mr. Davis, come forward. Have a seat, sir, and -- I shouldn't say have a seat because I need to swear you in. If you'd raise your right hand for me, sir. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
MR. DAVIS: I do.
THE CHAIRMAN: Thank you, sir. Have a seat. As I understand it, this is your first time. It is not.
MR. DAVIS: No, sir.
THE CHAIRMAN: You were screened -- I'm sorry, December the 11th, 1990. Have you had a chance review the Personal Data Questionnaire Summary?
MR. DAVIS: Yes.
THE CHAIRMAN: Is it correct? Does it need any clarification or anything?
MR. DAVIS: It's correct. I did submit two letters to the Committee.
THE CHAIRMAN: The Staff informs me that we have those and they will be so entered thereon. Anything else, sir?
MR. DAVIS: No, sir.
THE CHAIRMAN: With that, would you have any objection with us making those clarifications to make this summary a part of the record of your sworn testimony?
MR. DAVIS: No, sir.
THE CHAIRMAN: All right. I direct at this point that be inserted into the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Clyde Norwood Davis, Jr.
Home Address: Business Address:
1009 Lonsdale Drive South Carolina Supreme Court
West Columbia, SC 29170 P. O. Box 11330
Columbia, SC 29211

2. He was born in Greenville, South Carolina on October 28, 1946. He is presently 47 years old.

4. He was married to Rose McLeod on June 4, 1967. He has three children: Clyde Norwood, III, age 23 (civil engineer with Duke Power Co., Charlotte, NC); Preston Lee, age 22 (Senior at Clemson); and Joel Anthony, age 17 (Senior at Airport High School, West Columbia).

5. Military Service: Active Duty, U. S. Army, 1968-1972 (Captain, Corps of Engineers); Inactive & Active Reserve, 1972-1980; Honorably Discharged, 1980 (Captain JAG Corps)

6. He attended Bob Jones University, 1964-1968, BS in Accounting; and the University of South Carolina Law Center, 1972-1975, Juris Doctor.

8. Legal/Judicial education during the past five years:
He has attended a number of South Carolina CLE and JCLE Seminars on a variety of subjects. He has attended at least 1 3-day ABA Seminar on Appellate Courts almost every year for the past 18 years. He has also attended several seminars and conferences on Bar Admissions. He has attended the South Carolina Judicial Conference for many years.

9. Taught or Lectured: He has lectured at South Carolina Bar Association CLE and JCLE Seminars. The topics have been on Appellate Court Rules, Circuit Court and Probate Court Practice. He has also lectured at a CLE sponsored by the Lexington County Bar Association on Appellate Court Practice.

10. Published Books and Articles: Motions in the South Carolina Supreme Court. South Carolina Lawyer; Volume 1, (Number 2), September/October, 1989, Page 13.

12. Legal experience since graduation from law school:

1975-1976 Law Clerk to J. Woodrow Lewis, Chief Justice,
S. C. Supreme Court

1976-1977 Private Practice - Real Estate, Domestic, Probate,
Business & Tax

1977-1983 Chief Staff Attorney, South Carolina Supreme
Court - 70% Criminal; 20% Civil; 10%
Domestic; Supervised Work of 9 Other
Attorneys

1983-Present Clerk of Court - South Carolina Supreme Court

13. Rating in Martindale-Hubbell: He is listed in Martindale-Hubbell as Clerk of Court. However, inasmuch as he is not engaged in private practice, he is not rated.

14. Frequency of appearances in court:
Federal -
State -
Other -
He is regularly in Court; however, it is as Clerk to the Supreme Court of South Carolina, a position he has held for over nine years. His previous legal experience includes over six years as Chief Staff Attorney at the Supreme Court, one year as law clerk to former Chief Justice J. Woodrow Lewis and one year in the general practice of law with Timothy Farr of Greenville, South Carolina.

He has had over 15 years working closely with the finest judges in South Carolina, listening, learning and gaining insight into the judicial system that few have the privilege of doing. He believes his years of working as a lawyer for the South Carolina Supreme Court is equivalent to a varied private practice.

15. Percentage of litigation:
Civil -
Criminal -
Domestic -

(See answer to Question #14)

16. Percentage of cases in trial courts:
Jury -
Non-jury -

(See answer to Question #14)

17. Five (5) of the most significant litigated matters in either trial or appellate court:

(See answer to Question #14)

18. Five (5) civil appeals:

(See answer to Question #14)

22. Public Office:
Captain, U. S. Army, 1968-1972, Active Duty
1972-1980, Reserve
Notary Public, 1976-1986
Clerk of Court, South Carolina Supreme Court, 1983-present
(All of these are appointed positions)

24. Unsuccessful Candidate:
Applied for Municipal Judge in Greer, South Carolina - 1976
Applied for an At-Large Circuit Court Seat in 1990

25. Occupation, business or profession other than the practice of law:
He had numerous summer and part-time jobs in the accounting field, including general accounting, auditing and tax. He currently holds a real estate brokers license issued by the South Carolina Real Estate Commission; however, he does not engage in the real estate business.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
If a conflict should arise, he would remove himself from any related case.

32. Sued: A pro se appellant sued several Supreme Court Justices and Circuit Court Judges as well as himself. Summary Judgment was granted in the U. S. District Court and affirmed by the Fourth Circuit Court of Appeals.

40. Expenditures Relating to Candidacy:
Printing of Resumes and Stationery $65.00
Stamps $58.00
Rent $183.77
Phone $157.33

45. Bar Associations and Professional Organizations:
South Carolina Bar Association; Lexington County Bar Association; former member of Executive Committee of the National Conference of Appellate Court Clerks; former member of the Executive Committee of the Committee on Appellate Staff Attorneys

46. Civic, charitable, educational, social and fraternal organizations:
Grace Bible Alliance Church, 300 Alliance Road, Lexington, SC, elder; Exodus Discipleship Ministries, Chairman (former); Second Chance Ministries, Chairman

48. Five (5) letters of recommendation:
(a) William K. Brumbach, Jr., Senior Vice President/Senior
Trust Officer
First Citizens Bank
P. O. Box 29, Columbia, SC 29202
733-2675
(b) Honorable J. Woodrow Lewis, Chief Retired
The Supreme Court of South Carolina
P. O. Box 53, Darlington, SC 29532
(c) Robert B. Jurick, Pastor
Grace Bible Alliance Church
300 Alliance Road, Lexington, SC 29073
356-2803
(d) Rollin W. Mills, Ph.D.
Coordinator Educational Assessments
Lexington School District One
1417 Whippoorwill Drive, West Columbia, SC 29169

(e) George M. Hearn, Jr., Esquire
Hearn, Brittain & Martin, P.A.
1206 Third Avenue, Conway, SC 29526
248-3172

ADDENDUM:
November 15, 1993
The Honorable Glenn F. McConnell
27 Bainbridge Drive
Charleston, South Carolina 29407

Dear Senator McConnell:

Since the South Carolina Bar Association Screening Committee had some concerns about my limited trial practice, I thought it prudent to offer a supplement to question 14 of my Personal Data Questionnaire.

As Chief Staff Attorney at the Supreme Court for seven years, I supervised the work of eight attorneys. Our work involved reviewing the trial court record, summarizing the facts, researching the issues and drafting a report to the Court on each case. Often I was called upon to defend both my work and the work of other staff attorneys in oral presentation to the Court.

As a result of reading literally hundreds of trial transcripts, I am familiar with not only the substantive law, but also the procedural and evidentiary aspects of a trial. I have been exposed to a broad range of cases including criminal, tort, contract, real estate, probate, family, tax and administrative law.

In my position as Clerk of Court, I have maintained daily contact with the law. I have listened to hundreds of oral arguments, most of which focus upon some alleged trial error. I have drafted numerous opinions and orders and for the last ten years have proof-read every opinion issued by the Court. I have been heavily involved in drafting various Rules of Court. These duties have given me a unique perspective on trial practice and have prepared me to handle the trial duties of a judge.

The Clerk of Court is the chief managerial officer for the Court, with responsibilities over Bar Admissions, Attorney Grievance matters, and a 30,000 volume law library as well as the entire clerical operation. I have daily contact with other court and governmental officials, attorneys, litigants, members of the press and the general public. I have learned to deal politely, yet effectively, with a wide variety of people in all types of situations.

The Court has delegated to me the discretion to rule upon some procedural motions and the leeway to resolve procedural problems not covered directly by the rules of Appellate Practice. In performing all these duties I have developed strong people skills as well as a clear understanding of how a judge should conduct himself or herself.

A significant part of a circuit judge's work involves non-jury civil matters. There are also appeals from magistrates, municipal courts, probate courts and various administrative bodies. Criminal trials are reviewed in Post Conviction Relief hearings. My work at the Supreme Court has been excellent training for these aspects of Circuit Court work.

I have been in private practice, starting a law firm in Greenville with a law school classmate. Consequently, I do understand the time and financial demands of a law practice and the stress these demands place upon lawyers and their families.

I served several years as a military officer, two of which were as a Company Commander. This experience helped develop the strength of character to make the decisions necessary to get a job done correctly and in a timely manner.

There are other very important qualities of a good judge such as the ability to work with people, fairness, impartiality, good work habits, an even-tempered personality, and the ability to listen well and decide each case on its own merits. I submit that I have demonstrated these characteristics in my work at the Court.

I believe that after reviewing the breadth of my work experience, you will find I am in a position of knowing and understanding the entire judicial system and that my unique work experience will be an asset to the bench.

Sincerely,
/s/Clyde N. Davis, Jr.
CND/rd

The Board of Commissioners on Grievance and Discipline reports that no Formal Complaints of any kind have ever been filed against you. The records of the applicable law enforcement agencies: Lexington County Sheriff's Office, a negative; the West Columbia City Police Department, a negative; SLED and FBI records, a negative. Judgement Rolls of Lexington County, a negative.

The SLED reported a judgment in regard to an automobile accident and SLED has confirmed. We contacted the attorney involved that this case involved your son and SLED has amended their first report to reflect this change.

The Federal Court records showed no judgements or criminal actions against you. There were two civil actions where you were named in your capacity as the Clerk of the Supreme Court. Both allege civil rights violations. One action was dismissed in 1984 and the other was dismissed in 1989. Those are those types of class actions you may not even know that you were named.
MR. DAVIS: One of them I did not know that.
THE CHAIRMAN: All right.
MR. DAVIS: The other one I did.
THE CHAIRMAN: No complaints or statements have been received and to my knowledge there are no witnesses that have requested to be present to testify, so with that, I turn the questioning over to Mr. Couick, our counsel, and please answer his questions.
MR. DAVIS - EXAMINATION BY MR. COUICK:
Q. Good afternoon, Mr. Davis. Do you have a copy of your Personal Data Questionnaire with you today?
A. Yes, I do.
Q. If you need me to speak up, please let me know. I'll be glad to speak up.
A. All right.
Q. Mr. Chairman, the Members have in their notebooks today not only Mr. Davis' Personal Data Questionnaire, but a two-page letter from Mr. Davis dated November 15th, 1993.

As with several applicants, your counsel asked Mr. Davis to address a particular question. In the case of most other applicants it was questions as to -- it appeared from the record and the Personal Data Questionnaire, there was a gap in terms of work history, other matters relating to finances.

In this case, Counsel wished to offer Mr. Davis the opportunity to respond to what your Counsel feels is a major question which is his capability of serving in the position of Circuit judge in view of the fact his experience has been limited to practicing in court for the period of, I believe, and please correct me if I'm wrong, 1976 to 1977, Mr. Davis?
A. That's correct.
Q. During that two-year period you practiced in the areas of real estate, domestic, probate business and tax. Your frequency of appearing at trial during that period of time, Mr. Davis, how often were you appearing at trial?
A. Fairly limited. I have some appearances in some domestic matters and some probate court matters. And I think only one civil case in the Circuit Court.
Q. Mr. Chairman, rather that burdening this Committee with going through to reading this letter, I'd like to ask that it be made a part of the public record incorporated in the journal entry in terms of a general response to a general question I would ask to Mr. Davis to please describe his -- any work experiences he might have that would come to bear positively on his ability to serve on the bench in the Circuit Court.
THE CHAIRMAN: All right, if there is no objection from the Committee then we would direct that that be inserted into the record. Any objection? Being none, so done.
Q. Mr. Davis, would you briefly summarize or bring in any other points you might want the Committee to consider in response to that general question that how do you make up for or supplement the trial experience that you have in order to go on the bench and rule effectively and manage the courtroom effectively?
A. All right. My primary duties at the Court have been in two capacities. One is Chief Staff Attorney for seven or eight years and during that time, I supervised a staff of eight to nine attorneys. Did research for the Court and writing and drafting orders, drafting opinions. So during that time, I have reviewed literally hundreds of trial transcripts which I think has made me very familiar with the trial procedures and problems that come up and problems it can cause on appeals, so I think in that respect I have learned the procedural aspects of a trial just about as well as I would have in an active trial practice.

On the substantive side, I have kept up with the substantive law as Staff Attorney and as Clerk of the Court, I have had to proofread every opinion going out of the Supreme Court for the last ten years. And we all -- all the attorneys over there make a habit of reading the US Supreme Court opinions and Fourth Circuit opinions that circulate, so I of necessity to do my job had to keep up with the substantive and the procedural law.

I've been involved in drafting various Court Rules, helped with the drafting of Appellant Court Rules, Federal Rules of Professional Conduct and those types of things. I worked on a regular basis with the Court. All of the Rules that are proposed go through the Staff Attorney's office. They review them, make recommendations to the Court.

I've been involved in a broad range of cases. I mean anything that involved South Carolina law, I've seen -- criminal, civil, probate, domestic. It's a wide variety of things.

I can't think of anything except US Tax law that doesn't come through there. I would say that those are the major points that I'd like to make and what's stated in the letter. I don't need to burden you with that.
Q. Mr. Davis, you've talked a good bit about the skills that you in terms of making decisions on procedural motions or handling substantive areas of law. I've heard and the Committee has heard over the past couple of days several applicants for open seats talk about this baptism by fire they've had by being a trial lawyer somehow equipped them to have a proper demeanor in a courtroom as a judge because they would have an empathy with the attorneys that would be appearing before them.

Is that a fair expectation of a trial judge that he should have practiced and have experienced whether it be the wrath or the magnificence of a judge in order to be a judge himself? And if so, do you have the experience that you think substitutes for that or not or maybe it's not appropriate?
A. Well, certainly, I think it's appropriate. I mean I really think the judge's temperament, demeanor and the way a judge treats lawyers and litigants is in my view is as important as legal knowledge, if not more so. So, yes, I think that's a valid point.

I did practice law. I learned the stresses of private practice and I understand the stress the lawyer is under. I understand the stress that his family is under and, of course, I have had to deal with as Clerk of the Court. I'm really a public spokesman for the Court and I've had to deal with lawyers and I think I've done that in a fair and evenhanded manner. I think that -- I think I do have a sufficient understanding of their problems.
Q. Same question we've asked of other applicants and that's the role of the judge versus the role of a solicitor in the management of a criminal docket, particularly if the judge were to disagree with the solicitor's management of that criminal docket, what's the appropriate means and forum for imparting that criticism to the Solicitor?
A. I would think certainly that would be in a conversation between the judge and the solicitor and maybe other court staff, or the Court or whoever else was involved, but it's not public. It should not be done in a public forum in my opinion.
Q. Ex parte communication, how would you practically implement the admonition of the Canon not to engage in ex parte communication?
A. Well, having worked at the Supreme Court, I know how they feel about it and it's totally forbidden. I would anticipate that I would use the Clerk of the Court, the law clerk, the secretary in arranging hearings or anything like that. I would not discuss the merits of the case with any lawyer on a one on one basis.
Q. Mr. Davis, in April, 1989, you either had the fortune or misfortune of being interviewed by The State newspaper and one of the things that was brought up was you were talking about your job and the things that you did, but you said that you sometimes had the advantage.

You said, "You hear stories of what your classmates are making and you say you're never going to make that working for State government, but you also see them working 60, 70 hours a week and I don't have to do that. It's not as hectic a lifestyle as the practice of law can be."

How does that fit in with the commitment to being a circuit court judge? I mean are you going to revisit you're commitment to not working 60 hours a week or is it do you not have to work 60 hours a week or...
A. Well, it's funny how something like that can come back to you. I didn't mean by that that I'm not committed to doing whatever is necessary to do the job. I've been a military officer. During that time and during my time in the Court, I have been on call really on a 24-hour basis and whatever needs to be done, I'm going to do it to get the job done.
Q. Are you committed to serving out the full term --
A. Yes, sir.
Q. -- if you're elected?
A. Yes, sir.
Q. All six years. From the area of bias and the way that bias can be perceived through the acceptance of gifts whether it be a lunch or dinner or some type of trip or a true gift in the form of a -- something boxed up and wrapped up, what's your approach to that? How would you practically implement the admonition about acceptance of gifts?
A. Would not accept any.
Q. Does that include any -- always turning down a luncheon invitation or is there some line there that you draw differently or how would you do that?
A. I would not accept a luncheon invitation when the lawyer is going to pay for it, no, sir.
Q. In discussing the qualifications of the candidates for the Circuit Court bench yesterday with folks that were not -- or candidates that were not incumbents, there was some discussion of compassion and the development of compassion for folks that you're sentencing.

While not looking for a specific example necessarily, what experiences in your life have helped you or will enable you to have compassion for that person that's there before you and when you're sentencing them in a criminal trial?
A. I'm not sure I --
Q. What type of life experiences or your involvement in some type of organization or life experiences have you had that will help you to have compassion for that person that will be appearing before you in a criminal trial in the sentencing phase?
A. Well, I've had a varied life experience. I've raised three children and I've been exposed to their problems and concerns and as Clerk of the Court, I've dealt with the public. Individuals would come in, have a serious problems and concerns about their case and I sympathize with their problem.

I feel like I work very well in helping those people to the extent that I can as a court official. So, yes, sir, I can feel like I do have compassion for people and exhibited that in my current duties.
Q. Mr. Davis, you are, I believe, unique among -- if you could speak up a little bit.
A. Okay.
Q. Is your microphone -- pull the button. In reviewing with each candidate the compliance with the law one of the questions we have asked is whether you have sought the pledge of any legislator prior to this screening process being completed?
A. No, sir.
Q. Have you asked any third parties to seek consideration of any legislator prior to --
A. No, sir.
Q. You have the unique status of being a public employee running for a judgeship particularly one in the position that you're in. There are other employees of local government and counties, solicitor's offices. There are also judges who are public employees running for reelection or elevation.

What steps have you taken to ensure that there is no conflict of interest in terms of your seeking the higher position, vis-a-vis, your job responsibilities and any -- in compliance with the Ethics laws as you see them? What have you done?
A. Okay. I have anticipated that this would come up, so I have been accumulating my annual leave, so that when I do begin my campaign, I will take leave from my current job. I have -- in the letter that I submitted this morning, I -- you will see that there is an expenditure there for rent and telephone installation.

I have rented an office, so that I will go there to conduct my campaign rather than make any type of phone call or campaigning from my state office. So primarily thus far those are the things that I've done.
Q. So as I understand you're taking annual leave any time that you're involved in campaigning whether you be here today or --
A. That's right.
Q. -- you're campaigning, you're --
A. Yes, sir.
Q. Mr. Chairman, I have no other questions.
THE CHAIRMAN: Thank you, sir. Any members of the Committee have any questions? Representative Hodges.
EXAMINATION BY REPRESENTATIVE HODGES:
Q. Mr. Davis, I apologize for coming in late and I think you may have covered this territory, but I'd like to replow the ground because I've got a few questions. One frankly is a concern I've got about your lack of trial experience and I see your letter that you have placed in the files, but let me just ask you, do you think your background better qualifies you to serve on the Supreme or Appellate Court versus the trial bench?

And I'd like you to begin, if you could for me, talk about the -- your experience in the courtroom and the trial courtroom and how you think you can overcome your lack of trial experience.
A. Okay. Well, as to your first question, I guess in some respects, I would concede that I could do the appellate work maybe a little better than the trial work. I wouldn't concede that I can't do the trial work by saying that. I don't know what you -- whether you heard this part of it, but I have worked on and reviewed hundreds of cases, all types.
Q. And in what capacity?
A. As --
Q. As Clerk of the Court or as a --
A. As Staff Attorney.
Q. Okay.
A. Chief Staff Attorney for the Court.
Q. Are you talking about the actual trying of the case or are talking about after the fact of reviewing what happened in the trial?
A. I'm talking about after the fact, yes, sir.
Q. Okay.
A. Yes, sir. But I do believe that that has made me sufficiently familiar with the procedural aspect of the trial, evidentiary aspects of the trial and what -- how a judge should act and how a judge shouldn't act and what problems can come up and how you should deal with them, so I believe I am familiar with that. Yes, sir.

I mean I would concede it would be better if I had a lot of trial experience, but that's a fact I can't change.
Q. During your career, you were briefly in private practice, were you not?
A. Yes, sir. That's correct.
Q. Did you try any cases in Circuit Court?
A. I was involved in a trial of one civil case in Circuit Court. I was in Family Court more than that and in Probate Court several times.
Q. The -- I don't know that you were part of the Rule 5 -- what we used to call Rule 5 generation where you had to have so many trial experiences prior to being able to try a case on your own. Did you go through that era or were you prior to that?
A. No, sir. I was -- came through before that.
Q. Would you be qualified for that? Would you have sat in on enough trial cases to qualify if you were passing the Bar right now to try cases alone?
A. Probably would have enough as far as the number, but not -- I doubt I would have all the specific --
Q. The specific areas?
A. -- areas, that's correct.
Q. Okay. Thank you.
THE CHAIRMAN: Any further questions? I want to thank you for coming. We appreciate it. And based on my knowledge, you're free to go.
A. Thank you, sir.
THE CHAIRMAN: Yes, sir. Thank you. I now move to the next candidate, the Honorable Marc H. Westbrook. Good afternoon.
JUDGE WESTBROOK: Good afternoon, Mr. Chairman.
THE CHAIRMAN: Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
JUDGE WESTBROOK: I do.
THE CHAIRMAN: Thank you, sir. Have a seat. I looked on your record and see your reelection to Family Court judge was on -- the last screening was back on April the 6th, 1989 and you were screened for the Eleventh Circuit Court candidacy on March the 20th, 1999 -- 1991. Excuse me.
JUDGE WESTBROOK: Yes, sir. That's correct.
THE CHAIRMAN: All right. Have you had a chance to review the Personal Data Questionnaire Summary?
JUDGE WESTBROOK: Yes, sir, I have.
THE CHAIRMAN: Does it appear to be correct? Does it need any clarification?
JUDGE WESTBROOK: Yes. I would note one on Number 40 related to expenses. Actually, I had an approximate figure on the telephone figure and looking at the first, my phone bill for October, it appears that's a little high actually. I would note that, in fact, that my total expenditures at this point I think are about 80 to 85 dollars. And my understanding is that when I reach the $100 threshold that I should file the appropriate form and when I do, if you'd like, I can certainly run a copy by you.
THE CHAIRMAN: Yes, sir. My understanding is you're still below the threshold.
JUDGE WESTBROOK: Yes, sir.
THE CHAIRMAN: With that, so it would effect in no way any filing requirements?
JUDGE WESTBROOK: No, sir. I believe I talked with Ms. Goodman here today about financial -- frankly, I just had done poor math as I recall in my addition, but I don't think there was any significance to any of that. That's just a housekeeping thing.
THE CHAIRMAN: All right. We have that, do we not, with that correction? With those clarifications, would you have any problems with or any objection to our making the summary a part of the record of your sworn testimony --
JUDGE WESTBROOK: No, sir.
THE CHAIRMAN: -- as if you have stated it here today.
JUDGE WESTBROOK: None whatsoever.
THE CHAIRMAN: All right. It will be done at this point in the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Marc Herbert Westbrook
Home Address: Business Address
115 Cedar Lane Parkway Lexington County Courthouse
West Columbia, SC 29170 Lexington, SC 29072

2. He was born in Charleston, South Carolina on October 3, l946. He is presently 47 years old.

4. He was married to Linda Louise Lawhon on August 23, l969. They have 2 children: Thadeous Herbert, III, age 19 (page, S. C. Senate, 1993 Session); and Richard Neal, age 15.

5. Military Service: None.

6. He attended Anderson Junior College, l964-l966, A.A. Degree; the University of South Carolina, l966-l968, B.A. Degree; Southern Seminary (Louisville), l968-l970 (left to enroll in law school); and the University of South Carolina School of Law, l970-l973, J.D.

8. Legal/Judicial education during the past five years:
He has attended the courses as required for Circuit and Family Court Judges by the S. C. Supreme Court.

9. Courses taught or lectures presented:
Domestic Abuse Seminar (1985); South Carolina Social Workers Seminar (1989); Seminar on Cocaine - Addicted Babies (1991); 1993 S. C. Family Court Judges Seminar (1993); General Discussion of Law/Panel; Changes in S. C. Law re: children; Rights of Mothers Panel

12. Legal experience since graduation from law school:
1973-1983 Law practice with heavy emphasis on trial practice
l983-1993 Family Court Judge
(In his years of law practice, he practiced with four different firms, but his type of practice, particularly trial work, was the same with each. Those firms were: Bryan, Crosby & Bates (Associate, 1973-1979); Turnipseed, Westbrook & Dew (Partner, 1979-1980); Solo Practice (1980-1983); Westbrook & Dolce (1983)

13. Rating in Martindale-Hubbell: He is not listed now, to his knowledge. The last listing was "CV" in 1976, in what was approximately his third year of practice.
14. Frequency of appearances in court:
Federal - average 2-3 times per year
State - average 2-3 times per week during legislative session; minimum 5 per week out of session
Other - average 2-4 times per month overall (usually magistrate, municipal, or probate, or administrative agencies)

15. Percentage of litigation:
Civil - 34%
Criminal - 18%
Domestic - 48%
(This was calculated using actual case files at the time he left practice to assume the bench.)

16. Percentage of cases in trial court:
Jury - approximately 5-10% of cases were tried
Non-jury - approximately 90-95% (included settled and domestic cases)

Almost always as sole counsel, but occasionally as chief counsel or associate counsel.

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) State v. Baughman, et al. This was a criminal case in which 11 men were charged with conspiracy to distribute cocaine. Trial lasted 1 1/2 weeks and involved several close questions on the issues of conspiracy and drug trafficking. He was sole counsel for one of the 11 defendants.
(b) Baker v. Thomas, et al. A medical malpractice case which lasted a little over two weeks in trial time, this was the first medical malpractice verdict in Lexington County. He was associate counsel for the Plaintiff.
(c) State v. Bryan. In this obstruction of justice case, a public official was charged with "ticket-fixing." The Defendant was acquitted by a jury after a two-week trial. He was associate counsel for the Defendant.
(d) DSS v. Bowman. This was an early case on termination of parental rights, in fact, one of the first cases to terminate rights where the parents had made only token rehabilitation efforts. He was sole counsel for DSS.
(e) Hendrix v. Mason. This was a case tried in equity with the major issue being a civil agreement which included a domestic issue. In the early days of the statewide Family Court system, this case distinguished Family Court jurisdiction from Circuit Court jurisdiction. He was sole counsel for the Defendant, and later appealed the case.

18. Five (5) civil appeals:
(a) Hendrix v. Mason. This appeal involved the question of a circuit judge hearing a domestic issue when it was wrapped in a civil agreement. The Supreme Court remanded it to the Family Court to hear the domestic issue.
(b) ___________ v. _______________. This case involved the issue of invoking the Fifth Amendment in a contempt matter.
(c) Murphy v. Goff. This appeal was on the question of approval of an agreement when matters involving children had been omitted. Disposed of by former Rule 23.

20. Judicial Office:

Eleventh Judicial Circuit Family Court Judge, 1983-present, elected by legislature, domestic cases

Springdale Municipal Judge, 1975-1976, appointed by Springdale Town Council, limited to cases in the town

21. Five significant Orders or Opinions Written:
(a) K.L.G. v. G.A.G. (now under appeal). Two major issues: (1) How child custody is affected by the "second-hand" smoke issue; and (2) Whether to allow sealed Order to be opened and media given access to issues involving the child. (NOTE: Initials used by Order of the Supreme Court.)
(b) In Re Gina Grant. Major issue involved sentencing of 15-year-old girl who had admittedly killed her mother after several years of abuse. (not appealed) The child was given a probationary sentence, conditioned to the Massachusetts juvenile program. This was complied with, and she is now off probation after performing well in the program.
(c) Griffin v. Inman. Question of whether to grant visitation rights to maternal grandparents when the natural parents were intact (never separated or divorced), and grandparents had never seen the one-year-old child. (not appealed) Relying on the Brown case, he denied visitation on the ground that the statute did not allow such visitation under those conditions.
(d) In Re . Issue of whether to waive to General Sessions Court, a girl charged with killing her brother, with her mental illness being a complicating factor. (not appealed) He denied waiver, ordered she be tried in Family Court, and she later pled guilty to the charges. She is now in college in another state and is doing well.
(e) Woodside v. Woodside. Major issues of Equitable Distribution and Alimony, particularly pivoting around husband who had always held two positions related to his primary profession as a professor at U.S.C. 290 SC 366 (1986). The opinion from the Court of Appeals well reflected the complex nature of an equitable distribution case.

22. Public Office:
Lexington County Council, Chairman (1976-1978), elected
S. C. House of Representatives (1978-1983), elected

23. Employment As a Judge Other Than Elected Judicial Office:
Music Director (PT), Springdale Baptist Church, 8/84 to 8/87
Music Director (PT), Congaree Baptist Church, 2/90 to 2/92
(Both involved coordinating music programs in the churches.)

24. Unsuccessful Candidate: S. C. House of Representatives, 1974; Circuit Court Judge, 11th Circuit, 1991

25. Occupation, business or profession other than the practice of law:
None other than part-time jobs in school

26. Officer/director or management of business enterprise: He is a Director of a non-profit corporation known as Asian Opportunities International (AOI). It is a corporation begun by his brother, who is a Southern Baptist missionary. The corporation's purpose is to give local support to missionaries in Asian countries. Also, he is President of the local baseball league in which his son plays. The only ties from that have been that one of the teams in the league was sponsored by a corporation which has a lobbyist (Laidlaw). He is not involved in getting this sponsorship, however.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
He has no relationships with any businesses, nor does he have any investments. In fact, he has never owned any stocks, bonds, etc. His only investments have been savings accounts or certificates of deposit with his local banks.

32. Sued: Only in his capacity as Chairman of the Lexington County Council and as a member of the S. C. House of Representatives. They were filed neither personally or professionally against him.

36. Lobbyist or Lobbyist Principal: In the past 15 years, he has either been in the legislature or on the bench and has had no occasion to serve as a lobbyist or "lobbyist principal." In the past ten years, his only campaigning with the legislature has been for reelection to his current position or for a circuit judge position in 1991.

37. Lodging, Transportation, Entertainment, Food, Meals, Beverages, Money or Any Other Thing of Value From a Lobbyist or Lobbyist Principal
He has not accepted, nor will he accept, any contributions from anyone for his campaign. He will underwrite all expenses with personal funds.

39. Use of Government Personnel, Equipment, Materials or an Office Building in an Election Campaign: He has never been charged with any offense under this section. In fact, he would note that he has personally prepared this application (including the typing) and is not using his secretary or public equipment for this campaign.

40. Expenditures Relating to Candidacy:
Postage $50.00 (paid with personal funds)
Telephone $20-$30 (approximate)
These have all been incurred by him from his personal funds.
41. Contributions Made to Members of the General Assembly:
He has never made a contribution to any member of the General Assembly since he has been on the bench.

45. Bar Associations and Professional Organizations:
South Carolina Bar; Lexington County Bar; S. C. Family Court Judges' Council; National Council of Juvenile and Family Court Judges

46. Civic, charitable, educational, social and fraternal organizations:
Palmetto Master Singers; Anderson College Board of Trustees; Springdale Baptist Church (Deacon, Moderator, College Students' S.S. Class); Dixie Youth and Boys Baseball (President & Coach); Recreation League Basketball (Coach); Woodmen of the World; Masons; Lexington Baptist Association Executive Committee

48. Five letters of reference:
(a) Robert N. Hubbs, Executive Vice President
The Lexington State Bank
P. O. Box 8, Lexington, South Carolina 29072-0008
359-5111
(b) Doris B. Giles
112 Cherry Lane, West Columbia, SC 29170
794-0179
(c) Wendell W. Pace
123 Grimsby Lane, West Columbia, SC 29170
796-8110
(d) H. Hugh Rogers, Esquire
P. O. Box 396, Lexington, SC 29071
359-2599
(e) Leon A. Love
101 Merryfield Lane, West Columbia, SC 29170
356-4496

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
Family Court Judge, 11th Circuit (11/83-present)
Springdale Municipal Recorder (1975-1976)

10. Extra-Judicial Community Involvement:
Courts: Committee on Gender Fairness in the Courts (1993) - appointed by Chief Justice
Community: Palmetto Master Singers; Springdale Baptist Church; Lexington County Baptist Association Executive Committee; Dixie Boys Baseball

And I also note the Board of Commissioners on Grievance and Discipline reports that no Formal Complaints of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. The records of applicable law enforcement agencies: the Lexington County Sheriff's office, a negative; Lexington City Police Department, a negative; SLED and FBI records, a negative. Judgment rolls of Lexington County are negative. Federal court records show no judgements or criminal actions against you.

There was one civil action involving you and others which allege civil rights violations. Our information, these cases -- this case was dismissed in 1982. No complaints, statements have been received to date and no witnesses are present to testify, so with that, I would turn the questioning over to Mr. Couick. Please answer any questions he's got.
JUDGE WESTBROOK: Yes, sir.
JUDGE WESTBROOK - EXAMINATION BY MR. COUICK:
Q. Good afternoon, Judge.
A. Good afternoon, Mr. Couick.
Q. Judge, you have heard in your sitting through several hearings kind of the litany of questions that we're going through and I apologize for sounding like a broken record, but they are important.
A. It's all right. Yes, sir.
Q. The first I have is in the area of judicial temperament and there are several subparts to this one. The first being just generally how is your -- how do you approach litigants in your courtroom, the lay people, the witnesses that they bring with them or just the person that's there either as the moving party or the responding party? How did you approach things?
A. Well, the first thing that I realize, Mr. Couick, is that when people walk into my courtroom, they're frightened. You know, sometimes we have to be careful. I do this day in and day out, so I have to be sure not to get into the rut of just taking it as a routine thing.

I have to remember these people who come in my courtroom are -- many of them are scared to death when they come in there, so I try at all possible within certain parameters, of course, to make them as comfortable as possible and at least make them understand that they're going to be treated as fairly as I can possibly do it.

You know, I make no bones about the fact I smile at people in my courtroom all the time. I don't -- I've known no one at this point that's been offended because I smiled at the other side, but sometimes that tends to put people a little bit at ease, I think. It makes them feel better about being in there.

If I have any problems with the attorney's conduct, I be sure -- I'm always sure to take the attorneys into chambers, so that the parties aren't afraid that it's going to hurt their case for some reason. So I do everything I can to make people as comfortable as possible and make them understand that I realize they're scared and that I'm going to try to treat them as fairly as I can.
Q. Also in the area of judicial temperament, how do you approach attorneys? What -- if you disagree with an attorney and it's on a very important matter, how do you handle that and is it -- how often do you handle it right there in the courtroom with the litigants being present? How often is it in chambers? What's the general approach you have to that?
A. Yes, sir. If -- of course, if it is a routine ruling as part of a motion or an objection, I simply handle it as I think most judges do and make the ruling, of course, right there.

If an attorney is -- I believe is on the verge of maybe becoming excessive in their conduct, I'll try to get both of the attorneys or all of the attorneys and the parties in the case back in my chambers and talk to them and just try to get them settled down.

There have been a couple of times that I've had to do that just to get attorneys calmed down and settle down a little bit, so that we can back to sort of a modicum of conduct in the courtroom.
Q. Also in the area of judicial temperament, your relationship outside of the courtroom with attorneys in terms of ex parte communication, what do you do to safeguard the appearance you have as a dispassionate jurist?
A. I do not allow ex parte conversation or communication. The attorneys know that. I'm -- some say I'm always nice about the way I do it. Some say I'm too nice, but I always make a point of being sure that they're not going to be able to do that.

If an attorney -- and, of course, I have the same problem that I've heard some other judges discuss here today as Administrative Judge of the Eleventh Circuit for the Family Court. There are problems that prop up from time to time in administrative matters, but in terms -- if it ever reaches the point or we start to reach that threshold of the merits, that is when I stop the conversation.

And one thing that I've learned to do on my telephone is -- it took me a while to do it because I'm not as good as my son with these things, but I learned to use the conference is capability, so if an attorney is calling me and it looks like they're about to, I just say wait, you know, stop right there. Let me get the other attorney on the phone and we -- and very, very many times we've been able to handle it with a conference call.

If one is in the office, I'll try to get the other on the phone still to see if we can do that way, but I just don't do it.

I would note that one area that the problem is, and I imagine some other judges have this, it's not so much with attorneys, but as individual litigants who will call you in court and say I want to talk to the judge. Or they'll want to talk with my secretary and I've tried to tell her be very careful not to talk with them, but sometimes it's difficult to tell them because often lay witnesses don't understand that, but we just have to make sure they abide by it.
Q. Judge, also in the area of compliance with Judicial Canons, the appearance of bias by accepting gifts or any type of lunches, that sort of thing, how do you approach that?
A. I do not accept gifts. I do not go to lunch with attorneys and that kind of a -- that's probably the only part about it I don't like because I really and frankly like the attorneys, all of the attorneys that I deal with. I just think they're wonderful people, you know, in varying degrees.

But I like the attorneys that I deal with and I do not -- I think I've had lunch with two attorneys at one time in the last two to three years and I paid for lunch. And the reason we did it is because we were talking about a mediation project that we're doing in Family Court and these were the attorneys who were heading it up and, again, I paid for lunch. I just did it to make sure there were no questions, but I just don't accept gifts.

You know, when I first came on the bench there was a sort of routine habit that attorneys would give Christmas gifts and it was not so much gifts as food and platters and they just bring them to the court and not maybe to a particular judge and we've had to get away from that. We've just had to be sure that we do.

You know, I've often heard it said in the past all -- when I first started, I tended to think well, you know, if somebody gives me a 25 cent little plastic pen, that's not going to make me rule for them and it's not, but one thing I've realized is that if they give it to me, I may be tempted to think, well, you know, that's nice of her, very nice of him to do that and no matter how minute that may be, that's an impression. And it may be too small, but it's an impression, so I've just gotten to where I just stay away from stuff. It's better to just stay away.
Q. Judge, if you were to be elected to the Circuit Court bench, what is your term of commitment? Do you intend to serve through the --
A. Six years, yes, sir. And I would plan to serve that term out.
Q. Can you describe your work day, when would it start, when would it end, how do you try to accomplish things, how do you manage your docket?
A. We routinely start court at 9:00 o'clock and we try -- our docket is set by the docketing clerk who works for the Clerk's Office. She handles it and we're very sure all three of our judges in our Circuit make a point not to try to discuss with her how she sets the cases or to influence her in any way.

There are, of course, some exceptions that have to be, but as a general rule, we do not do that. She sets them independently. She's -- we try to set them 9:00 to 5:00. She'll probably stop around 12:00, some cases around 12:30 in the morning and try to stop maybe around 4:30, 4:45 in the afternoon because as you know in Family Court scheduling is different from the Circuit Court and that is that we try to set everything with a precise date and time and as you know the estimation of time of cases is just not down to such a fine art that everything always goes smoothly, so she will try to put in a little extra time just in case things go over and usually they wind up doing that, but that's what -- my day will normally go to about 5:00 in terms of hearing.

I will -- I stay and usually finish my paperwork after that and a routine day, I will leave the office probably 6:00, 6:30 or 7:00, somewhere in that range.
Q. Do you anticipate making that same type of time commitment or more and be able to keep to it if you were put on the Circuit Court Bench?
A. Yes, sir. Absolutely. I think Circuit Courts don't normally start at 9:00 o'clock, but whatever their schedules are, I would obviously try to comply, work with the schedule that they have in place.
Q. There has been is a lot of academic writing in recent years about the rights of varying litigants that are involved in domestic cases, particularly custody cases.
A. Yes, sir.
Q. There has been a lot of controversy over the rights of litigants as to notice and being able to get involved in a case. You saw the recent cast in Michigan where parental rights were overturned by an adopting family because under Iowa law the father wasn't properly notified and included in the original determination of the child being forwarded to Michigan.

How do you ensure that custody orders are -- I wouldn't say bulletproof. Is a custody order, not necessarily an adoption order, but a custody order itself, do you usually grant those ex parte or what factors would you take in a case into account if you were going to handle a custody order ex parte?
A. I don't usually grant custody ex parte. Now, you're talking about when the parties first come in?
Q. Right.
A. And they say I want ex parte custody, I don't usually grant those ex parte. What I do is if they -- if one side -- if the attorney has an affidavit and, of course, they have to have an affidavit that says that the other side is about to take the child and flea the state and that's the only time I will sign one and I will simply say neither party is allowed to take the child from the state or from the jurisdiction of the court. I limit it to that. And then what I do is because we're dealing with children in these cases, we go ahead and set an emergency hearing as quickly as possible, but normally I do that.

I don't -- in the past, there may be some years back, but it would have been years ago. I can't remember granting ex parte custody all. I can't guarantee that I haven't, but I don't think I have.
Q. And that's just and you're the only Family Court judge before us, so that's why I asked that question.
A. Right.
Q. It's just something that's some concern.
A. Right. And I think I would say I don't think most judges do that either.
Q. In terms of in working with attorneys, I would imagine the Lexington County Bar is a fairly small Bar in terms of with relationship to Richland County. It's certainly growing, but there are times when because of personal relationships or whatever, folks may call upon you to recuse yourself. What standard do you apply when you're questioned or whenever you just recognize there may be a problem? How do you go through that thought process and how do you deal with it?
A. All right. Well, let me note first, actually the Lexington County Bar is not that small. It's about 100 and 150, probably close to 150 people. And, of course, as you indicated just a moment ago, we have a lot of crisscross between Lexington and Richland, so there is a great deal of merger between the two and we literally look as if we're dealing with one bar when we deal with both of them.

But recusal is -- basically, it comes about in two ways. It comes about by motions by from the attorneys on one side and it's come about sometimes through responding.

Obviously, if I have some sort of relationship with the parties involved, I would recuse myself whether it's familial, financial or any other relationship. The two things that I probably do in terms of -- in the community are, and I'm sure you've noticed from my sheet, I'm very active in the baseball league that my sons play in and very active into my church and if anyone from either of those comes in, I would not hear those cases.

But anyone who I've represented before, of course, anyone that I may have any other ties to, I do not and there maybe some cases from time to time that I may know someone just from the community and, basically, I just take the position that if I rule as I should rule in this case and I would be uncomfortable encountering him or her later, then it's better to go ahead and recuse, just to be sure.

We have the advantage in Lexington. Now smaller towns would have difficulty with this, but we have the advantage in Lexington of usually having two judges there. So what I can do is simply try to get the case transferred over to the other judge if they don't have a conflict. There are a few times when I'm the only one there and they may have to wait another week or two, but normally I would do that. Those are the standards that I usually handle recusal with.
Q. You mentioned that sometimes you do it on your own volition. You don't wait for the attorney to do it. Do you find that to be a fairly easy practice? Do you find that the attorneys appreciate that? Does it relief them of some burden to have to make that motion?
A. The attorneys do, but very often the parties don't. And sometimes one party doesn't. There is a certain amount of discomfort that is also incumbent in the recusal process itself because there is always that person who is sitting out there and saying well, you know, when I needed Westbrook, he bailed out on me and I understand that and they're just going to have to think that.

But if there is any sense of discomfort about hearing the case, I go ahead and get out of it and we -- in our circuit, we probably do it probably a little more than usual because we have that convenience of having another judge there.
Q. You certainly have an advantage to some degree of being a sitting judge running for an elevated position, but also you're subject to the same questions I've asked other sitting judges --
A. Right.
Q. -- as it relates to recusal and lawyer-legislatures?
A. Yes, sir.
Q. That has been a topic that has been of some concern to the Bar and to the Committee, what standard do judges apply when lawyer-legislators come before them? What standard do you use in that case?
A. As I heard you say in one hearing, obviously, the lawyer-legislators have to make a living and they have to be in court. I don't think there's ever going to be a real good answer. It's a thorny question. So I don't know that I would ever be able to give you an answer that would satisfactory everyone.

What I do in those cases is, of course, if a lawyer-legislator is involved, I hear the case and, of course, I have to, but as you know in Family Court, we, of course, are required to present written orders giving all of our findings of fact at the conclusion of the law.

And, of course, on the conclusion of the case, I simply am sure in that case to be sure to issue a thorough enough order to justify what I do. The bottom line is go ahead and do it and just do the best I can with it. It was interesting this morning that -- I was thinking as you asked that question to someone else that there were two sitting on the panel this morning who I have ruled against --
Q. Right.
A. -- in recent months. Representive Beatty and Representative Sturkie. Before I was -- I've not had either one of them incidentally since I filed this, but this was sometime back, I guess six months to year ago.

In Representative Beatty's case it was a close call and I suppose if I had really wanted to make myself, I could have made an effort to go ahead and rule for him and probably could have found a way to justify it, but I talked with him and the other attorney and explained to them and Representative Beatty in that situation was very gracious. He said, Judge, if that's the way it is, that's the way it is and my being a legislator shouldn't effect that and I frankly appreciated that and I appreciate the fact that I think what's happening is that besides being an awareness with the judges, there is also now an awareness much greater with the Legislature.

They are getting the same pressure we're getting and if a legislator comes before me in a case and he gets a distant, a way out ruling that shouldn't have been there, he knows he's going to have to explain that also, so we -- basically, that's the way we -- that I do it and again, there is never a good answer, but that's the -- I just think we do the best we can under those circumstances.
Q. Were you present this morning, Judge, when Judge Howard I think gave his answer to essentially the same question and we went through a discussion of he talked about am I in a unique position to singularly effect the outcome of the case, that's one thing, I take into account which I take it in Family Court would always be the case? There is never --
A. Oh, yes, sir.
Q. There is never going to be a jury?
A. Yes, sir. Not only do I direct the outcome. I am the outcome of the case.
Q. And then he says, but that's not enough. I have to look and see if the lawyer-legislators, is there some other unique circumstances that's seen as a special relationship with that person and I think just going back and trying to reconstruct his answer, more often than not, that was not the case, but he gave the example of Senator McConnell several weeks ago or maybe perhaps months ago that he was before him and he opted to be a mediator rather than be a jurist in that case on the bench. Do you agree that there could be some circumstances where that would be appropriate?
A. Yes, sir. And, in fact, I would note -- one thing I was going -- as I was developing my answer, one thing that occurred was that I -- and this is one of the exceptions I was talking about a moment ago with the docketing clerk. There are from time to time lawyer-legislators that come into my court and what I've asked her to do at least while I'm in this process is to direct those cases, if she would, to one of other judges and that way it won't be a problem. It takes me off the spot and it takes the lawyer-legislator off the spot.
Q. You note an answer to your Personal Data Questionnaire, Number 26. Do you have a copy with you?
A. Yes, sir.
Q. That you are a director of a nonprofit corporation known as Asian Opportunities International and I'll summarize more or less your answer. It says that this is a corporation begun by your brother who is a Southern Baptist missionary. The corporation's purpose is to give local support to missionaries in Asian countries. What is your role in that corporation?
A. My role actually has been limited. I'm a director of a corporation and my brother -- as I indicated my brother is a foreign missionary with the Southern Baptist Foreign Mission Board.

They try as much as possible to have support from people back in the states for their mission projects and one of the things that I think that they're trying to do is to have what is sort of a journeyman type missionary, such as lay people who get -- try to get support and go to the foreign countries.

They have -- I think they do -- or at least the folks in it who are the missionaries do some fund-raising. I stay away from that. Do not get involved in it. Do not allow my name to be used for that.

So basically that's what I -- frankly, my role has been we've met once a year and that has been the only role that I've had in it. Just going to those meetings once per year.
Q. You have -- might have been present yesterday when there was discussion came up about the application of the Canons that called upon judges to stay out of matters of some political volatility, things that would cause a public controversy?
A. Yes, sir.
Q. And there was some discussion as to what role a judge should have and whether he has to totally divorce himself from society or form some middle ground. What's your understanding of the Canon? How do you apply it in your work now?
A. On my seeking a judgeship, I understood from the very start that there were some things in my life that I would not be able to do that other people get to do. I accepted that.

A judge's life is a limited life and I think any judge will tell you that, and when it comes to political issues, I frankly steer clear of them. I try to steer clear of them in personal conversations. If someone brings up some local issue or some other issue, I will steer clear and about the only thing I do is vote in any kind of a political sense, but I make a point not to express my opinion. I've asked my wife not to do that also.
Q. That's doesn't work with my wife.
A. Well, I didn't say it worked with her. I just asked her.
Q. In talking about home life or family, you do have a son. He is I believe in his twenties now or --
A. He's 19.
Q. 19?
A. Yes, sir.
Q. And I would imagine that your family commitment to him is a little bit different than when he was five years old?
A. Yes, sir.
Q. But I want to be fair to everybody and ask the same questions. Do you envision any kind of a conflict this would cause with your duties in any terms of being a judge?
A. No, sir. I have two sons. One son is 19. The older one, Thad, 19, is a student at the University of South Carolina and lives on campus, so as I'm sure you're aware the only times I see him are basically when he determines that I'm going to see him and decides to come home.
Q. It's usually around -- resolves around needing money, as I recall?
A. Generally, yes, sir. There is a -- so we've -- he has a credit card now. We have to sort of keep an eye on the monthly bills, but usually it does.

The 15-year-old like any other 15-year-old is pretty much the same way. He doesn't always want his dad around, but he sort of determines when that's going to be and I do that.

I would note when I first went on the bench in -- I was a legislator at that time. As you know, I was in the House. There were two judgeships open. There was a Circuit judgeship open and a Family Court judgeship open and at that time, as you know, a Circuit judgeship, judges were traveling voluminously and Family Court judges were rarely traveling.

That didn't start until a couple of years later when Judge Ness became Chief Justice that there was a lot of Family Court traveling, but I chose the Family Court seat at that time because I would be able to fulfill my duties more properly and spend more time with my sons. And again that was ten years ago, so that's different, but as of today, yes, sir, I can do both.
Q. And finally one area that I was about to miss and I'm glad that I looked through my notes, going back to your experience moving from the Circuit -- from Family Court to Circuit Court and having discussed with Mr. Davis and I had some of the same concerns about the ability to take a fairly limited experience and transfer it to a fairly broad application in Circuit Court.

At least from the time that you've served on the Family Court, you've only dealt with domestic matters. Could you tell the Committee a little bit about your experience prior to that or other ways that you are able to broaden your experience as to include criminal, civil?
A. Yes, sir. And I'm going to. I need also in a moment to discuss the Family Court experience, too, because I think that's more pertinent than it may appear. When I recall on the first application that I gave for a judgeship when I was asked to indicate my percentage, as I recall, ratio sort of experience, it was something to the effect of about 45 percent of my trial time was in Circuit Court and about 40 percent in Family Court. I actually practiced a little more in Circuit Court when I practiced and as I indicated I had an opportunity to do one of two at that time. I chose the Family Court bench. Or at least had the opportunity to run for those two.

I think my experience was extensive in Circuit Court as it was in Family Court prior to that time and, of course, the last ten years in Family Court, many people, you know, tend to think that it's just been limited to Family Court issues.

We do a substantial amount of criminal court work in Family Court as it applies to juveniles and while there are some differences between juvenile and adult treatment, if we have to try a case which we often have to do these days, the same Rules of Evidence, the same criminal law, the same criminal procedures very often will apply, so I don't think my experience with criminal work over the last ten years has been that limited.

There has been -- it has been limited to a degree with civil work although we have had -- we have civil issues that come into -- unfortunately come into family scenarios and very often come into our court, so I've had to deal with those on a little more limited basis also. I think my -- again, I think my extended -- my experience is a little more extensive than it may appear.
Q. Mr. Chairman, Counsel would like to ask at this time that the applicant be given the opportunity to update his PDQ on page 4, Questions 14 through 19 and I'm sorry that I did not catch this earlier, Judge Westbrook, to get back to it.

I believe that these were allowed to be omitted by retired judges and justices or judges and justices applying for reelection and I know this is an interpretation question, but I think it would be helpful to Counsel, to the Committee, if we could have some knowledge of your previous trial experience even though you are a sitting judge going back to prior to 1983.
A. Yes, sir. I think you'll -- all I think I'll have to do on that is simply go get the first application and just submit -- would it be okay just to submit a copy of that?
Q. Yes, sir. I'd appreciate that.
A. Yes, sir, I think I can do that.
THE CHAIRMAN: Without objection.
Q. And finally, Judge Westbrook, on the issue of pledging. I'm sure you've heard the question as you sat here today. First of all, have you sought the pledge of any legislator prior to the completion of this screening process that you're --
A. No, sir. I'm sorry. I didn't mean to interrupt. No, sir, I did not.
Q. And finally have you asked any third parties to solicit consideration of your candidacy --
A. No, sir.
Q. -- at this point?
A. I would note that I was interested yesterday I think when Judge Cottingham testified, I was interested in the Bar Resolution issue that he discussed and if you remember I think I discussed with two or three members of the Committee and with yourself on that issue and there -- as you noted, there is a division of opinion on that.

But I think in discussing with you, you were of the feeling that it would be safer not to have one and frankly, I was flattered that some folks in the Bar were willing to try to arrange a resolution and at your advice I asked them not to do that and, certainly, I indicated that if everything goes okay with screening and there is a report issued, that I may ask them to do that afterwards. But I have not and even on Bar Resolutions, I stayed away from that because as you know there is a feeling that that could be trying to indirectly what one cannot do directly.
Q. Thank you, Judge Westbrook.
A. Yes.
Q. Mr. Chairman?
THE CHAIRMAN: Thank you, Mr. Couick. Any questions? Representive Hodges.
EXAMINATION BY REPRESENTATIVE HODGES:
Q. I just have one question. Has the Supreme Court ever appointed -- or Chief ever appointed you Special Circuit Court judge --
A. No.
Q. -- to hear cases?
A. No, sir. Well, there may have been a week or two back early when I was first on the bench, I'm not sure. It was kind of limited as you know and as you know they don't that do that now anyway. For the last five or six years, they've steered away from that. I think the law doesn't allow it.
THE CHAIRMAN: Any further questions from any Members? Being none, we thank you for your time.
A. Thank you.
THE CHAIRMAN: Thank you for coming.
A. Thank you, Mr. Chairman. Let me say that I appreciate the work that your Staff has done. They've been very thorough, but they've also been very gracious in the process and I appreciate that.
THE CHAIRMAN: I hope The State newspaper heard that.
REPRESENTATIVE ALEXANDER: They're rushing out to print it right now.
MR. COUICK: Do a Sunday Editorial on that.
THE CHAIRMAN: A Sunday Editorial. She seems to have rushed out with that information.
A. Thank you. Have a good day.
THE CHAIRMAN: Thank you, sir. Have a good one. All right. Now moving to the judge of the Twelfth Judicial Circuit, John H. Waller, Jr. Mr. Waller, would you come forward, sir, and please raise your right hand. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
JUDGE WALLER: I do.
THE CHAIRMAN: Thank you, sir. Have a seat. I note that on your screening that your last screening for this job was on March the 10th, 1988. You were screened for the Supreme Court candidacy on May the 9th, 1991. Have you had a chance to review the Personal Data Questionnaire Summary that we have?
JUDGE WALLER: Yes.
THE CHAIRMAN: Are there any corrections or additions or clarifications or anything you want to make to it?
JUDGE WALLER: I think it might have already been made. On Number 4, the second paragraph, the second word "was" should be "is." A typo, I'm sure. At least I hope so.
THE CHAIRMAN: Staff tells me that they looked it and it's really not wrong because the 81 made it a past tense as I understand. That's what I'm advised of.
JUDGE WALLER: Okay. That makes sense.
MR. COUICK: Judge, we'll do it the way you want it to be if you think it makes a difference really.
JUDGE WALLER: No. No, it's fine. If you think it's fine, it's fine.
MR. COUICK: I haven't looked at it. I've got good advice, though.
THE CHAIRMAN: Well, I haven't seen it either, but I'm hearing it on both sides of me, so that's good advice.
JUDGE WALLER: The bottom line is that it appeared that I was married to Debbie or Debra Meares and the fact is I am married to a Debra.
MR. COUICK: As long as she knows.
THE CHAIRMAN: As long as she knows, we're not going to quarrel with her.
JUDGE WALLER: It's in the record, so if it's a conflict, I'm under oath and that's the way it is.
THE CHAIRMAN: All right. Is there anything else, any other corrections or clarifications?
JUDGE WALLER: Not that I noticed.
THE CHAIRMAN: All right. Would you have any objection then to our making that summary a part of your record of your sworn testimony as if you stated it here today?
JUDGE WALLER: None whatsoever.
THE CHAIRMAN: All right. It shall be done at this point in the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. John H. Waller, Jr.
Home Address: Business Address:
202 Meadowview Lane P. O. Box 1059
Mullins, SC 29574 Marion, SC 29571

2. He was born in Marion County, South Carolina on October 31, 1937. He is presently 56 years old.

4. He was divorced in 1979. He was the moving party, and the ground was separation (South Carolina Family Court in Marion County, South Carolina).

He was married to Debra Meares on May 9, 1981. He has four children: John Henry, III, age 25 (employee at 2001); Melissa McLaurin, age 22 (student); Ryan Meares, age 10; and Rand Ellis, age 4.

5. Military Service: December, 1959 - June 1960; Active Duty; Army (Armor); Discharged as a Captain; 05308230; Discharged, Honorable

6. He attended Wofford College, 1955-1959, Psychology BA; and the University of South Carolina School of Law, 1960-1963, LLB (Juris Doctor).

8. Legal/Judicial education during the past five years:
Judicial College Reno (Spring, 1985); attended mandatory JCLE's as required and JCLE's that have not been required

9. Taught or Lectured: About two years ago he was on the panel at the Solicitor's Convention, "What is Expected of a Judges' Clerk"; various Judge Association meetings; South Carolina Bar mid-winter meeting; and instructor for new Circuit Judges

12. Legal experience since graduation from law school:
He went immediately into private practice as a sole practitioner in 1963. He practiced alone until 1976. Thereafter, he took in an associate and practiced until 1980, when he was elected to the Circuit Bench. His practice consisted of all types of work (criminal, civil, domestic and property) with over 60% of it being in criminal and civil trial work.

13. Rating in Martindale-Hubbell: He was not listed, as far as he knows. He has never tried to have himself listed. He never thought he would need it while he was practicing and never had the occasion where it was needed or desired. Presently, he is frequently requested to give his opinion as to how attorneys should be rated.

20. Judicial Office:
Elected to the Circuit Bench in 1980 until the present

21. Five (5) Significant Orders or Opinions:
(a) The State v. Ronald Mackey Amerson, et al., South Carolina Supreme Court Opinion No. 23827
(b) Carolina Production Credit Association v. Colonel R. Rogers, et al.
(c) Nathan Swinton, et al. v. Chubb & Son, Inc., 320 S.E.2d 495, 283 SC 11
(d) Mohasco Corporation, et al. v. Twin City Fire Ins. Co., 357 S.E.2d 249, 289 SC 130
(e) Spanish Wells Property Owners Assoc., Inc. v. Board of Adjustment of the Town of Hilton Head Island, S.C., 367 S.E.2d 160, 295 SC 67

22. Public Office: South Carolina House of Representatives, 1967-1976; South Carolina Senate, 1977-1980 - elected to these offices

24. Unsuccessful Candidate: He ran for South Carolina Supreme Court in 1991, and withdrew after screening and before the election.

25. Occupation, business or profession other than the practice of law: Not as an occupation, but he owns rental property and farming interest

26. Officer/director or management of business enterprise: He is an officer in a close corporation owned by him and one other person involving a farming operation. The business is Brownway Farms, Inc.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
He knows of none, but if any existed, he would disqualify himself from hearing it.

29. Arrested or Charged: He was charged $50 for a game violation in approximately 1971.

32. Sued: He has only been sued as a member of the Marion Legislative Delegation while serving in that capacity, and he believes in one or more cases as a Judge which were all dismissed.

45. Bar Associations and Professional Organizations:
South Carolina Bar; Marion County Bar; American Bar Association (formerly)

46. Civic, charitable, educational, social and fraternal organizations:
He has given up all organizations except Mason, Shriners and Wildlife Action. He is also a member of the Summit Club.

47. He has been a Circuit Judge for over ten years and feels that every circuit he has been in can attest to his judicial temperament, handling of the court, working with the jury and any other area. He is the Chairman of the Circuit Court Advisory Committee which considers and advises the Supreme Court on matters requested by the Supreme Court or as a conduit from the Circuit Bench and/or the Bar Association to the Supreme Court. This Committee has also been used to instruct new judges as they prepare to begin their work on the bench. He is also presently Chairman of the Judicial Standards Commission which accepts, acts upon and recommends action to the Supreme Court, if any is required, concerning any alleged violation of Judicial ethics against any Judge from and including City Recorders to the Chief Justice of the South Carolina Supreme Court. Before becoming Chairman of this Commission, he was a member and before that was a hearing officer for the Commission.

48. Five (5) letters of recommendation:
(a) W. Frank Jones, Chairman and President
Davis National Bank
P. O. Drawer 843, Mullins, SC 29574-0843
464-9567
(b) Haigh Porter
Office of the City Manager
Drawer AA, City-County Complex, Florence, SC 29501-
3456
665-3113
(c) Bernice B. Parker, Clerk of Court
Drawer E, City-County Complex
Florence, SC 29501
(d) James E. Brogdon, Jr., Esquire
P. O. Box 1041, Marion, SC 29571-1041
423-5122
(e) Dudley Saleeby, Jr., Solicitor
Twelfth Judicial Circuit
Box A, City-County Complex
Florence, SC 29501
665-3091

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
He has been the Resident Judge of the Twelfth Judicial Circuit since elected on March 18, 1980 and qualified on June 6, 1980.

10. Extra-Judicial Community Involvement:
He is a member of a local golf club. He has never used his judicial office to further this interest.

I note that the Board of Commissioners on Grievances and Discipline reports that no Formal Complaints of any kind have ever been filed against you. The Judicial Standards Commission has no records of reprimands against you.

The records of the applicable law enforcement agencies: the Marion County Sheriff's office, a negative; the Marion City Police Department, negative record; SLED and FBI records are negative.

The Judgment Rolls of Marion County are negative. Federal court records show no judgment or criminal actions against you.

There were four civil actions brought against you. One suit was a writ of habeas corpus, which was dismissed in 1985. The second suit was an alleged civil rights violation brought against you and others which was dismissed in 1992. The third and fourth suits were prisoner civil rights suits which were both dismissed in 1992.

The record shows that there are no complaints or statements that have been filed. And my best information is that no witnesses are present to testify, so with that I'm going to turn it over to Mr. Couick and please answer any questions that he might have.
JUDGE WALLER: Mr. Chairman, there is one thing that is in this report that it does show a Judgement Roll in Marion County whenever I was sued as a Member of the Marion County Delegation.
JUDGE WALLER - EXAMINATION BY MR. COUICK:
Q. Do you have a copy of your SLED report now, Judge Waller?
A. I'm sorry.
Q. What are you reviewing now?
A. I have before me the South Carolina Law Enforcement Division report of Chief Stewart. Down at the bottom it says the -- second from the bottom, the Judgement Rolls of Marion County, see attached, and it has it attached. And I just wanted to --
Q. Mr. Chairman, I'm going to ask that we change that reference.
THE CHAIRMAN: All right. We would correct that reference be changed and so added in the record. Thank you, sir.
A. Yes, sir.
THE CHAIRMAN: At this point, if you'd answer any questions that Mr. Couick has.
A. Be happy to.
Q. Judge, there was a very serious matter about a gaming violation in 1971. I would like to know if you knew when these former political opponents took you to the dove shoot, were they trying to set you up?
A. You know, I really -- do I have the time to talk to you about this?
Q. Yes, sir.
A. This was the third time that I ran for the House and these particular people were actually supporters of my opponents and they asked me to come to a dove shoot and I said, well, okay. It's a good time to mend some fences, so I went to it and there were a lot of people from North Carolina, a lot of people from different places.

It was kind of a political type thing this fellow was having. And I had -- I wasn't sure if I had a plug in my gun or not and they kept us on the outside of a fence, wouldn't even let us go into the place because they wanted to make sure everything was done right.

So I loaded my gun and rather than unloading my gun, I just put it up in the air and fired three times because I did have a plug. Well, they just jumped all over me. Said there is going to be no firing here. We're going to do everything straight. I said fine. So we're standing there behind the gate. We're watching this tractor go around the field. There's disking of the cornfield and, you know, just disking it up like the front of the -- so finally they let us in.

So when they let us in, I chose me a spot over on the far side of that cornfield where they had just disked up because I know doves like to put their feet in soft dirt, so I went over to that area. Shot for a while, got a little tired of shooting.

Walked from that area closer to a lake and was standing there talking. And by the way, two game wardens had already checked the fields and said it's fine, but we can't stay there to eat because we got other places to go.

So I'm standing over there at the lake talking to a friend of mine and in comes these other federal game wardens and South Carolina game warden and they come in right there where I had been standing. So they come up and they start taking up the license. And I kept asking them what's happening, what's happening, what have we done wrong. You know, it's been checked. What have we done wrong. And nobody would say a thing. Nobody would tell us a thing.

So finally they gathered us all up and brought us over there to the shed where we had had lunch that day. And it's kind of unusual, the one conservation officer that I was able to get to talk to me was a fellow by the name of Driggers who is now a captain of the conservation and he said you're shooting over salt. I said huh-uh, this field has been checked out. I know we're not. He said yeah, you are. And I said, well, would you mind showing it to me. He said not at all.

Well, now, remember that they got me when I was over here at the lake. Well, we walked back to the same spot where I had been shooting and where the tractor with the disc had torn up the dirt and there on top of where the tractor had been going over and turning everything up was some salt laying on top and on the bottom, in the bottom of the burrow.

So you ask me was I setup, I believe I was. Anyway, it got to the point that they said, well, what are you going to do? You're a lawyer. What are you going to do about it? I said it's a $50 fine. I'm going to pay my fine.

And so three of them, well, will you represent us? I said, yeah, for $50 a piece. So I represented them for $50 a piece, I paid $50, got $150, ended up a $100 ahead, but we still lost the suit.
Q. Did you --
A. That's what it was.
Q. Did you get your limit that day, that's the question?
A. I got my limit that day. I got my limit.
Q. Thank you for sharing that with the Committee. That was something that had been discussed before at earlier screenings. Judge, we have talked a good bit about judicial temperament for the last two days and you have been on the bench now for sometime.

What is your approach to making sure that the litigants and the attorneys in your courtroom feel comfortable at the same time you get the business of a court accomplished?
A. What is my approach?
Q. Your approach, what is your philosophy, how do you treat people?
A. My philosophy is basically to be put in very simple terms, I haven't forgot what it's like to be in the courtroom and I didn't like for a judge to jump on me. I didn't like for a judge to embarrass me and I try to treat people in such a way that whenever they leave the courtroom, they can't say anything bad about the judge.

You know, we're ambassadors sitting up there on the bench. If we do something wrong, every judge in the state of South Carolina is condemned for it and I try to keep that in mind not only in the trial of a case while I'm having a trial, but while I'm dealing with the jury panels that we are ambassadors, so I guess that's the way I feel about it.
Q. Just there are two --
A. Did that answer your question?
Q. Yes, sir, it sure does. Two other aspects of the relationships with attorneys have been talked about a good deal as well and that's handling ex parte communication and also handling offers of luncheons, dinners, trips, gifts, et cetera that may come from time to time very innocently. How do you handle those how do you make sure that no one could ever think that a turkey sandwich can buy a result in your courtroom?
A. Well, you'd have to almost do it on a situation by situation basis. I make it a practice to eat my lunch and to eat whatever meal I have to eat while I'm working with my law clerk. I try to make it a practice not to have any other attorneys around me at that time.

Occasionally, I eat at the same places and I talk with them and I see them. Sometimes we move to the table, but never would I do something like this if there was a case that was going to appear before me not only that day, but that week, they had a case before me that week.

I live in a rather rural area of Marion County and Florence County and it's kind of hard to thumb your nose at a lawyer because there's not that many around, but you've got to be very careful how you handle that situation. You don't want some member of the public to say, well, I saw Judge Waller eating with so and so, giving some credence to that lawyer's ability or giving some credence to that lawyer's case that might appear before me, so I have to be very careful with that.

Now as far as being invited to a dove shoot, if a lawyer is having one and they invite me to hunting trip of some type, then I attend it and the reason I attend it is because the Advisory Committee of the Judicial Standards Commission has said that that's proper that you can do that and so I do it. Did I answer that?
Q. Yes, sir. Ex parte communication?
A. Ex parte communication.
Q. In some of those very situations you mentioned there, there is the likelihood that someone would walk up and may try to engage you in a conversation. What's your response? How do you ward that off?
A. I just say I can't talk to you about that. If they were to walk up to me in a restaurant -- now if someone comes into my chambers or calls me on the telephone and I've have -- I've done this a number of times lately because it seems like lawyers want to talk to you not necessarily about the merits of the case, but something involving their case and when they start talking to you about something that involves their case, there is always that question as to whether or not this is going to be an ex parte communication, so I have instructed my law clerk -- there's two way it happens. It either comes directly to me and it comes through my law clerk.

Let's talk about my law clerk first. If it comes by telephone or to my law clerk, then I'd say, well, what did they say it was about. They said, well, it was about the case. Be happy to talk with them, tell them they got to get in touch with the other side. I'll meet them at a time that's convenient for both of them or they can call me on the telephone.

I get a lot of conference calls as a result of that. One I had the other day, I finally got -- the lawyer called me back. I said I'll be glad to talk with ya'll, but you've got to have a conference call. I picked up the phone when they finally called me back and I hear the two lawyers talking to each other and one of them said, "I don't know what he wants with us, but we'll find out in a minute, I suppose." But anyway, you try to take care of it that way.

Now if somebody walks into my chambers and they start to talk with me about a case of some -- in some way, I just say wait a minute, I can't with you. Who is the lawyer on the other side and they'll tell me who the lawyer is on the other side. I say, well, are they outside, are they around? If they are, fine. Let's bring him here, we'll talk about this. If they're not, let's put this thing off until we can get him in here and talk about that -- except for temporary restraining orders which, of course, you have to do ex parte. But whenever I sign a Temporary Restraining Order, and periodically I do sign temporaries, I always put in my order that this -- that they have four days from the service of that order to petition the court for me to change that order, so I got what amounts to a ten-day order is only good for four days if they will petition the court to do the change. I think basically I've answered your question with --
Q. Yes, you have.
A. -- ex parte and how I would handle it.
Q. Yes, sir. Judge, matters relating to bias and trying to avoid the appearance of bias would have any effect on your courtroom that we have asked each judge about their practice of recusal and what measurement they use to determine the right case to recuse yourself in. How do you make that decision?
A. Recusal is something again that you have to do on a case by case basis. I have a number of situations. I have a brother-in-law that I used to practice law with and he is one of the active attorneys in Marion County, so consequently he is before the court on the civil end of the criminal side where I am holding court.

I knew this was going to be a problem, so once again I asked for an advisory opinion as to what to do. And I was given the opinion and I followed it and the opinion says that I am to announce in open court the relationship that I have with my brother-in-law and I am to give the other side the opportunity to ask me to disqualify myself on that case. I've had to disqualify myself on many cases that he's a party.

When it comes to the criminal side, I usually do it only once that term because the Solicitor there knows he's my brother-in-law. We used to practice all the time, but I will try to remember to do it at least once on the record, say, "Mr. Solicitor, do you have any problems with Mr. Williamson trying a cases before me?" None whatsoever. That's one way we can get rid of some of these cases and so we do that. Now that's with my brother-in-law.

If there is any type of lawsuit that involves an neighbor of mine or involves -- I have some stock in two banks, if it in anyway involves those banks or something, I personally take myself out of those cases. I don't want anybody to get in a position to say that I because of that situation have ruled in a particular way.

And there probably is some other situations, but I generally take care of those situations in this fashion. I will put on the record what the situation is and say, now, do ya'll want me to handle this or do you not want me to handle it. I certainly would not lean in favor of one side or the other because we're making a record and the record is going to be very evident whether or not I leaned in one way or the other. But if there is anybody who has the slightest amount of problems with me presiding over this case, you just speak and please don't hesitate to speak and you just speak and we can get another judge to try this thing. That's the way I handle it.
Q. Judge, in the area of pledges, you heard probably the question I asked Judge Westbrook. Have you sought the pledge of any Member of the General Assembly prior to the completion of the Screening process?
A. For this job?
Q. Yes, sir.
A. No, sir. Now, the reason I qualified for this job is because in 1991, I sought some pledges and that was when I was running for the Supreme Court, but I sought it for that race. I don't want that to indicate that I was seeking it for the next one.
Q. Yes, sir. And, Judge, finally, have you asked any third party to go to any Member of the General Assembly and seek your consideration for this race or any other race?
A. No, sir.
Q. Thank you. No more questions.
THE CHAIRMAN: Thank you, Mr. Couick. Any Members of the Committee have any questions? Seem to have none.
A. Thank you.
THE CHAIRMAN: Thank you for coming. We appreciate it.
A. Thank you. I'm sorry to have taken so much of your time.
THE CHAIRMAN: That's quite okay. Good to see you again. Come back and visit.
A. Thank you.
THE CHAIRMAN: We will now move to the Thirteenth Judicial Circuit for Greenville and Pickens County, the Honorable C. Victor Pyle, Jr. Mr. Pyle, if you'd come forward, please, sir. Raise your right hand. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
JUDGE PYLE: I do.
THE CHAIRMAN: Thank you, sir. Have a seat. When you go to speak in that microphone, for some reason they seem to -- unless we speak right into them, they don't -- they're not what I'd call the state of the art. Have you had a chance to review the Personal Data Questionnaire Summary?
JUDGE PYLE: Yes, I have, sir.
THE CHAIRMAN: Do you know if it's correct or if it needs any clarification to it.
JUDGE PYLE: In two respects. Question 32 concerning lawsuits, I overlooked putting there subsequent to Hurricane Hugo, the pier was in Fallis (phonetic) Pier Village. I was a co-owner and personally named along with all the co-owners. Some other landowners were attempting to enjoin the reconstruction of the pier.
MR. COUICK: Would you name the group of owners? How was the case styled, Judge Pyle?
JUDGE PYLE: It was styled against the Fallis Pier Village and each individual co-owner.
MR. COUICK: And the action was bought by the Coastal counsel or --
JUDGE PYLE: No, it was brought by other landowners. Two other landowners on the beach attempting to enjoin reconstruction of the pier.
MR. COUICK: Do you have a copy of that pleading?
JUDGE PYLE: I can get it. I don't it have with me.
MR. COUICK: Mr. Chairman, if I might ask just one --
THE CHAIRMAN: Yes, sir.
MR. COUICK: Was there any allegation of fraud, deceit or any type of --
JUDGE PYLE: No.
MR. COUICK: -- improper behavior in an individual or fiduciary capacity in that case?
JUDGE PYLE: No.
THE CHAIRMAN: Do we have the necessary information?
MR. COUICK: Yes, sir. I think that'd be fine.
THE CHAIRMAN: All right, we'll make that clarification. Is there anything else?
JUDGE PYLE: The only other thing, for whatever it's worth, if anything, on Question 47, I did not list there that I am listed in American Law Fourth Edition, for whatever that's worth.
THE CHAIRMAN: We have that one also. Anything else?
JUDGE PYLE: That's all I see.
THE CHAIRMAN: Is there any objection to making this summary a part of the record of your sworn testimony as if --
JUDGE PYLE: None at all.
THE CHAIRMAN: -- you stated it here today?
JUDGE PYLE: Huh-uh.
THE CHAIRMAN: I direct at this point that that be inserted into the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. C. Victor Pyle, Jr.
Home Address: Business Address:
170 Marshall Bridge Drive 310 County Courthouse
Greenville, SC 29605 Greenville, SC 29601

2. He was born in Greenville County, South Carolina on December 24, 1934. He is presently 58 years old.

4. He was married to Johanna Wright on June 8, 1957. He has three children: Louisa D. Pyle, age 34 (Liberty Life Insurance Company); Sarah P. Fay, age 31 (self-employed, advertising consultant); and C. Victor, III, age 24 (Sea Grant Fellowship, E.P.A.).

5. Military Service: N/A.

6. He attended the University of South Carolina, 1953-1959; LLB, 1959; J.D., 1970; National Judicial College, 1980.

8. Legal/Judicial education during the past five years:
He has earned a minimum of 15 hours per year of JCLE.

9. Taught or Lectured: Faculty Advisor, National Judicial College, 1988. He was responsible for 12 judges during a 3-week general jurisdiction course, including leading daily group discussions. In 1992, he taught 6 new Circuit Judges for 3 days covering all aspects of a Circuit Judge's duties. He has also lectured at one CLE and two JCLEs.

10. Published Books and Articles: Modernizing the Courts; TRAFFIC SAFETY; VOL 70; Number 3; March, 1970 (A National Safety Council Publication)

12. Legal experience since graduation from law school:
He began practicing law with his father in July, 1959, and continued in the general practice of civil and criminal law until October, 1976, at which time he was elected as judge of the Greenville County Court.

13. Rating in Martindale-Hubbell: His rating in October, 1976, when he left the practice of law was BV. His firm, Pyle & Pyle was AV.

20. Judicial Office:
Judge, Greenville Municipal Court, 1965-1968; appointed by City Council; criminal and traffic cases with sentence not exceeding $200 or 30 days. This was a part-time position.

Judge, Greenville County Court, 1976 - July, 1979; nominated by the Greenville County Bar Association and then appointed by the Governor; civil jurisdiction up to $25,000; criminal jurisdiction concurrent with Circuit Court except as to murder, manslaughter, rape, etc.

Elected Circuit Judge at Large, August 16, 1979

Elected Resident Judge; Thirteenth Circuit; January 20, 1982; serving continuously since

21. Five (5) Significant Orders or Opinions:
(a) Judith Minyard Holtz, et al. v. Tommy Minyard, et al. Supreme Court affirmed in part and reversed in part. See 304 S.C. 225, 403 S.E.2d 634 (1991).
(b) State v. Larry Ford Allen, et al. Supreme Court affirmed. See 277 S.C. 595, 291 S.E.2d 459 (1982).
(c) John George Poulos, etc. v. Pete's Drive-In No. 3, et al. Court of Appeals affirmed. See 284 S.C. 264 (1985). Cert. den. by Supreme Court. See 286 S.C. 128 (1985).
(d) Jack Kent Cook, et al. v. Wilson C. Wearn, et al. No party appealed.
(e) Eula Stephens Turner, etc. v. Sentry Care, Inc., et al. Multimedia Publishing Co. (Intervenor) did not appeal order.

22. Public Office: South Carolina House of Representatives, 1969-1974; 1st Vice Chairman, Judiciary Committee, 1973-1974

28. He owns stock in SCANNA and Piedmont Natural Gas. He recuses himself in any case involving those companies.

32. Sued: Yes, by disgruntled litigants. All cases have been dismissed by way of Summary Judgment. Also sued by landowners attempting to enjoin reconstruction of a pier lost in Hurricaine Hugo.

45. Bar Associations and Professional Organizations:
Greenville County Bar Association; American Bar Association; South Carolina Bar; South Carolina Bar Association (until its abolition): Chairman, Young Lawyers Conference, 1963-1964; Executive Committee, 1964-1965; Circuit Vice President, 1966-1967

46. Civic, charitable, educational, social and fraternal organizations:
Poinsett Club; Greenville, South Carolina

47. Director, American Judicature Society, 1966-1970; Awarded Certificate of Performance ABA, 1964; 1 of 5 Traffic Court Judges in U. S. Receiving Award from ABA, 1968; Chairman, Advisory Committee on Standards of Judicial Conduct, 1980-1993; Member, Judicial Council of South Carolina, 1985-; Member, Circuit Judges Advisory Committee, 1982-; President, S. C. Association of Circuit Judges; Member, Judicial Standards Commission, 1993-; Delegate to the National Conference of State Trial Judges, 1990-; Who's Who in American Law, 4th edition

48. Five (5) letters of recommendation:
(a) Deanna W. Bolding, Consumer Loan Officer
The First Savings Bank
P. O. Box 408, Greenville, SC 29602-0408
458-2000
(b) Eugene C. Covington, Jr., Esquire
Covington & Patrick, P.A.
P. O. Box 2343, Greenville, SC 29602
242-9000
(c) John E. Johnston, Esquire
Leatherwood Walker Todd & Mann, P.C.
P. O. Box 87, Greenville, SC 29602-0087
242-6440
(d) Michael Parham, Esquire
Parham and Smith
P. O. Box 2800, Greenville, SC 29602
235-5692
(e) John A. Hagins, Jr., Esquire
Brown and Hagins
P. O. Box 2464, Greenville, SC 29602
271-7424

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
Judge, Greenville Municipal Court, 1965-1968 (Part-time position)
Judge, Greenville County Court, October, 1967 - July, 1979
Circuit Judge at Large, August 16, 1979 - January 20, 1982
Resident Judge, Thirteenth Judicial Circuit, January 20, 1982-

Moving on, the Board of Commissioners and Discipline reports that no Formal Complaints of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. The records of the applicable law enforcement agencies: the Greenville County Sheriff's Office, a negative; the Greenville City Police Department records, a negative; SLED and FBI records are negative. The Judgement Rolls of Greenville County are negative. Federal court records showed no judgements or criminal actions against you.

There were two civil rights actions brought against you. The first action was filed by an inmate against you and other county officials and summary judgment was granted in 1983. The other action was brought against you and a number of other attorneys. This action was dismissed in 1991. Does that appear to be an accurate reflection?
JUDGE PYLE: That's correct.
THE CHAIRMAN: My records further show that we have two complainants, two complaints that were received and two witnesses present to testify. I'm going to turn the questioning over to Mr. Couick and please answer any questions he might have, sir.
JUDGE PYLE - EXAMINATION BY MR. COUICK:
Q. Judge, just to get some administerial matters out of the way to begin with, could you tell me if your daughter lived with you in May of 1989?
A. She did not. She has not lived with me since nineteen eighty -- the latter part or '81, early part of '82.
MR. COUICK: Mr. Chairman, having found out that information I would ask that my whole question and his response be stricken from the record because it would be irrelevant to any other part of the proceedings.
THE CHAIRMAN: Without objection, so done.
Q. Judge, we've -- the Committee is very concerned generally about judicial temperament and would ask you to please describe your approach to service on the bench and your treatment of litigants and attorneys in your courtroom.
A. I attempt to treat all attorneys and all litigants alike. I try not to discriminate against anyone. In particular, I try to go out of my way to be pay more attention to pro se litigants since they're not familiar with the system, so I go out of my way to try to treat them a little bit different than I otherwise would an attorney practicing in the courtroom.
Q. In terms of the management of your docket, and it has more effect I would guess practically on attorneys rather than the litigants, how do you balance that interest of moving ahead as quickly as possible with insuring that every attorney has the right to fairly and reasonably present his case?
A. That is -- it's difficult to do. As an administrative judge, you are required by the Chief Justice to move your docket. I attempt to do that with firmness. At the same time, I try to understand problems of the attorneys practicing before me. I was an active trial lawyer before going on the bench and I'm well aware of their problems and I try to compensate for those.
Q. As to the issue of ex parte communication, what is your approach to anything on that?
A. I do not engage in ex parte communications. As I mentioned on the questionnaire as the administrative judge, there are difficult areas. Just as an example, if an attorney calls you for a continuance, my first question to him is is he calling me with the consent of opposing counsel. If he says yes, then I will talk with him.

If he says that he has not talked with the opposing counsel, then I request that he contact him and either set up a conference call or come to see me, so there are from some gray areas. I'd say as an administrative judge, those are sometimes difficult.
Q. Yes, sir. In the area of the acceptance of gifts and whether that gift be a lunch or dinner or trip, et cetera, how do you handle those?
A. I accept ordinary social hospitality from attorneys. I sometimes will accept a luncheon invitation from an attorney.

There are some attorneys who are close to me, people that I grew up with, that I practiced law with, when I'm out with them, I do not allow them to pay for anything. So outside of an occasional luncheon with a lawyer or with the Bar -- Executive Committee of the Bar, obviously, I do not accept any.
Q. Perhaps I misunderstood part of your answer, Judge Pyle. Do you have any restriction as to time in terms if an attorney has a case up that week or that day --
A. Well --
Q. -- or the next week?
A. I'm sorry. If any attorney has a case up before me, I would certainly not have any contact whatsoever with him or her.
Q. From time to time concern has been raised about bias in the courtroom and this is no concern directed particularly towards you, but the issue of recusal has come up, both generally as to any type of conflict of interest, but more specifically toward the role of lawyer-legislators appearing in a courtroom. How do you handle that general concern and that more specific concern?
A. I've never hesitated to recuse myself if anyone does not want me to try their case. I've got enough cases to try that I -- you know, they'll find one of three or four other judges in town, so that has never presented any problem. With respect to lawyer-legislators, we have lawyer-legislators in Greenville and they practice before me. Except in trying to accommodate them during the Legislative session and trying to depose of the cases on Mondays and Fridays, but outside of that, they're treated the same as any other attorneys.
Q. You served as the administrative judge I believe for your Circuit?
A. Yes, sir.
Q. And you're probably often in contact with folks that also were involve in the management of the docket. I would imagine the Solicitor being one of those folks?
A. Yes, sir.
Q. From time to time you may disagree with his management of his docket, how do you handle that disagreement and in what forum do you handle it?
A. I am presently serving as the Chief Administrative Judge for General Sessions. I am generally able to get along quite well with my Solicitor. There have been times when we've not agreed and I've taken control of the docket and done it the way I wanted it done. And I believe under the Ordering in Point for Chief Administrative judges, I think that authority is given to me, but I think outside of that I'm still -- I would do it and I have done it.
Q. Yes, sir. Judge, I guess my question goes not more towards your authorization to change the docket, but whether that changing is done in a closed room discussion type fashion or whether it's something that -- where you enunciate some level of disappointment from the bench that would be publicly aired and show that there would be some division between the solicitor and the judge?
A. Well, I'm not sure again that I understand your question, but there have been times in the past when I've disagreed with the solicitor with respect to what cases are tried and in what order and I've taken him into chambers and explained that to him.
Q. Yes, sir. Yes, sir. That answers my question.
A. All right.
Q. Judge Pyle, I'll ask you the questions about pledging that I've asked each other candidate. Have you sought the pledge of a legislator prior to the completion of the screening process?
A. No, sir. Not at all.
Q. And, secondly, have you asked any third party to seek your consideration of your candidacy by any Member of the General Assembly?
A. No, sir, I have not.
Q. Judge Pyle, we have a witness who has asked to appear today. Actually two. Mr. Henry Martin, Sr. and a Ms. Ruth Trippe. I believe they are both present.

I would ask the Committee, Mr. Chairman, if they ask general questions, perhaps we could have the witnesses come up, offer their testimony and have Judge Pyle come back and respond to it.
THE CHAIRMAN: All right. We'll do that then. If that's acceptable with the Committee, that's the way we'll proceed. Judge --
A. You want me to just stand aside or --
THE CHAIRMAN: Yes, sir, if you don't mind because we've been using that side over there for that testimony. All right, Mr. Henry Martin, Sr. Mr. Martin present. Mr. Martin, if you'd raise your right hand for me, sir. Do you swear to the tell the truth, the whole truth and nothing but the truth so help you God?
MR. MARTIN: So help me God.
THE CHAIRMAN: When you go -- let Mr. Couick here, the counsel, ask you the questions. When you go to respond or talk to him, try to speak into this mike because this lady over here is trying to get everything down and the acoustics in here are not the best. Mr. Couick.
MR. MARTIN - EXAMINATION BY MR. COUICK:
Q. Mr. Martin, you and I have spoken by phone for the last week and I believe we also sent a letter to you earlier this week. I offered in that letter if you would like to have the assistance of anyone, you are welcome to bring him with you and I'd like to offer at this time if you'd like to have anyone sit with you and to help you understand any of the matters or any questions I ask you, you're welcome to have them come forward as well.
A. Well, they brought me down here.
Q. Yes, sir.
A. They don't know nothing about this case.
Q. Okay. All right.
A. Nobody, but me and my son.
Q. Yes, sir. Mr. Martin, you have filed an affidavit with the Committee labeled a Motion Of Letter To Request Permission To Appear Before The Screening Committee To Testify. The Committee has received that. They've been supplied with copies of that.

As a part of that letter or complaint, there was a resolution of a fee dispute board application and resolution documents there, by judicial canon, those matters which do not relate to Judge Pyle individually are confidential and I would ask that we not mention that resolution of fee dispute board document at any time during your testimony. And if you have any question about what I'm talking about, I will be glad to take a break, meet with you. It's what I mentioned to you on the phone the other day, that this was not relevant to today's hearing.

Ms. Goodman, would you walk down there and show him the document that I'm speaking about? Mr. Chairman, I've not included that in your packets because of the problem with confidentiality --
THE CHAIRMAN: Yes, sir, I understand.
Q. -- and it does not relate to the Judge Pyle situation. I believe you have before you a two-page document?
A. Yeah, I have a two-page document.
Q. That you've signed and your son, Mr. Henry W. Martin, Jr., has also signed. For the Committee's benefit, Mr. Henry W. Martin, Jr. is currently incarcerated I believe at CCI here in Columbia. He has called me several times this week. He has asked on each occasion that he be allowed to come before the Committee and testify.

At this point, I'd like to report to the Committee, it's Counsel's recommendation that he not be called before the Committee to testify for two reasons. One is Mr. Henry Martin, Sr. tells me that he was present during the duration of the entire trial that's in question and that he's also familiar with the testimony that would be offered by his son and he's in the same position to offer that.

In addition without prejudice to the complaint here, his son, part of the complaint against him was threats against various Members of the Judiciary and I don't believe it would be appropriate to bring him here today.
THE CHAIRMAN: Any Committee Members have any comments? All right, proceed, please, sir.
Q. Mr. Henry Martin, Sr., Mr. Martin, if I could perhaps summarize the gravamen of your complaint and you tell me if you disagree or agree with how I summarize it. You complain against Judges Pyle and Judge Smoak. Both of those judges are here today and we will take your testimony about Judge Smoak in a few minutes.

About Judge Pyle, there are two specific complaints you have. One is that he is related to a Mr. Ricky Norris that your son was charged with murdering and later convicted of murdering. You in your letter say that you have information that Judge Pyle is the uncle of Ricky Norris and that the complaint is that Judge Pyle issued an order --
A. You wrong. He's the nephew of Judge Pyle.
Q. Right. Ricky Norris is the nephew of Judge Pyle and Judge Pyle would be his uncle, right?
A. Right.
Q. Your complaint is that Judge Pyle ruled on the production of evidence as Administrative Judge in Greenville during the trial of your son for the murder of Ricky Norris?
A. No, he didn't -- wait. Wait a minute, sir. Let me tell you. Now they laid that on my son. Listen to me good. You see now, he laid this on -- on my son because they had -- they -- it was a drug racket going on between Norris and them people for what he got in his front pocket.
Q. Yes, sir. And Mr. Martin --
A. You see --
Q. I understand your --
A. Yes, sir.
Q. -- disagreement with the conviction and incarceration of your son, but today we're here to talk about any conflict of interest that Judge Pyle might have had.
A. Well, who -- we went to him.
Q. Right.
A. He had sat -- we went to him several different times and
-- and went to Judge McBrown (phonetic) and went to the line. The line, whatever you call them.
Q. This is after your son was charged?
A. Yes. That's been going on about ten or twelve years. Maybe fifteen now, sir.
Q. And Mr. Martin --
A. Yes.
Q. -- you went to -- this is after your son allegedly --
A. No.
Q. -- shot --
A. No, sir. This has been going on a long time.
Q. Mr. Chairman, unfortunately --
A. Wait. Wait. Wait a minute. Let me say this here. You see -- Judge Pyle, you see he's the most racist, prejudiced man and him -- and him and Judge Smoak is, too. These are the most prejudiced people I ever seen in my life.
Q. Mr. Martin --
A. Yes, sir. Let me get through.
Q. Well, Mr. Martin, let's organize this a little bit --
A. Okay.
Q. -- for the Committee.
A. Okay.
Q. And I'm not trying to cut you down on saying anything, but let's take things one at a time. As I said, you've got two basic complaints against Judge Pyle. One is that you say he was related to Ricky Norris?
A. Yeah, you see it there. Ain't you got this copy?
Q. Yes, sir, and I will say -- I've said it for the benefit of everybody here and that you say that even though he was related to Ricky Norris, he still as a judge made a ruling in your son's case that related to the production of evidence, is that true? That's one of your complaints is that he -- even though he was related to Ricky Norris, he still made a ruling on evidence?
A. Well, you see, he was supposed -- he was supposed to -- when that trial was up there, Smoak, he said he was repented (sic) to come to the court. He didn't come. And all the member we pleaded for, they didn't come. Well, that's because he had them in his pocket. That's how come.

Now look now if you're going to run a clean judgeship or whatsoever, if it is, you've got to first clean up your house. If you got to keep -- you just can't keep on sweeping stuff up under the rug. Do you see what I'm saying? Well, it's got to come out somehow.

If you keep on sweeping it up under the rug, you're going to have a filthy house. You see, if you're going to run a just house, you've got to clean it up.
Q. Mr. Martin --
A. Yes. Wait -- yes, sir. Just hold one thing.
Q. Mr. Martin, excuse me. I'm not trying to stop you. I'm trying to help you.
A. Okay.
Q. What is the activity on Judge Pyle's part? What has he done that's filthy that you're talking about? What has he done?
A. What has he done? He caused my boy to be incarcerated and whatever you said in there. See, he got to listen up there. Like I tell you now, he got -- he do what he said do and he stayed in the background. You see what I'm saying? All right now, now see, placing him being a justice judge, that ain't him, you see. And -- and Judge Smoak either. It ain't him either. He about one of the prejudiced man I ever seen in my life.
Q. And, Mr. Martin, let's --
A. Yes. Wait. Wait. Wait. Just hold one minute. And do despise a black man -- you see a black man ain't got no justice in their court. You see what I'm saying? Do you see equal -- black man ain't got no say so. Ain't got no justice in his court.
Q. Mr. Martin, have you --
A. Anything in -- look, listen, anything or in his court, them people what he got in his front pocket. He don't care what they do. You see throughout the Greenville County, throughout the State of South Carolina as far as that part is concerned. You see what I'm saying? You see, you don't need these kind of people in office.

You don't -- you got to clean your house up before you can run a clean house. Do you hear what I'm saying? All right now, now as far as he standing in the way of justice, he's supposed to be a justice of the people, the right of the people, put it like that. You see, but he ain't that, you see. He's for the unjust. Anything -- he's got a dirty trick about him. He -- he got handed.
Q. Mr. Martin --
A. Yes.
Q. I'm glad -- in truth the Committee is glad to entertain your testimony. One thing we need to know is specifically you talk about unjust treatment or dirty tricks.
A. Yeah.
Q. Can you tell us a specific example of something that Judge Pyle has done in the case of your son that was a dirty trick or where he used his influence with the Solicitor or other personnel involved in the courtroom and your son's trial?
A. You see, Louis Cramm (phonetic), he was a friend of Ricky Norris. He was hoping to -- or smoked cocaine, push cocaine, so I -- I didn't like that, you see. And had all in my community -- you see, all them people around there, he got them in his front pocket.
Q. Mr. Martin --
A. Black and white, what I'm talking about.
Q. Mr. Martin --
A. And what you find -- just hold one minute. You see, what was -- what few white people standing up for justice, they don't have nothing to do with it. I can count them on this finger, this hand is what I'm talking about, all over Greenville County, throughout Greenville County. You see, and this don't make sense.
Q. Mr. Martin have you filed a complaint against Judge Pyle with any Supreme Court or with any organization like the NAACP in Greenville County?
A. No, I won't fool with the NAACP. They're the same way.
Q. Mr. Martin, I would like to have the opportunity as I'm sure the Committee would to listen to Judge Pyle respond to your comments. If there is some specific question once we've listened to Judge Pyle that you have, I would ask that the Committee's indulgence to let you come back.
A. I sit right here. I just -- I'm not cutting off. I'll sit right here. He's up for reelection. You don't need no kind of man like this here that --
Q. Yes, sir.
A. -- for a judgeship -- judgeship, you don't need no kind of man like that and -- and Judge Smoak, you don't need these kind of people.
Q. Mr. Martin --
A. Yes.
Q. Let's do this, let's have Judge Pyle respond to your allegations and if you would take a seat back where you were, I'll ask you the Committee to let you come back and ask any specific questions --
A. Uh-huh.
Q. -- you might have.
A. Well, you can ask me now while I'm here?
Q. Yes, sir.
A. Yes, sir. If I can make this thing shorter, you can ask me now. I don't have to go back there.
THE CHAIRMAN: Any Member have any questions at this point? Okay. Thank you, sir. If you take a seat back and we'll have him come back and respond --
A. Thank you.
THE CHAIRMAN: -- and see if Counsel needs to ask some additional questions.
A. Yes, sir. Thank you, sir.
THE CHAIRMAN: Thank you, sir. Mr. Pyle, if you'd come forward and take a seat, please, sir. Mr. Couick.
RE-EXAMINATION BY MR. COUICK:
Q. Judge Pyle, I think that we all can appreciate that the testimony given by Mr. Martin has some specific accusation in the sense of a relationship between Ricky Norris and yourself. Can you first respond to that?
A. Yes, sir. You were good enough to forward to me the information that Mr. Martin and his son mailed to you and I responded by way of letter to that.

My recollection of the matter is that in the late seventies or early eighties, I presided over a land dispute case involving Mr. Martin and his son and some adjoining landowners. Quite frankly, I do not remember the outcome of that trial, but apparently I ruled against Martins.

Sometime after that I received a written letter from Mr. Martin, Jr., wherein he threatened to kill me if I did not pay him 4 million dollars. I turned that over to the authorities in Greenville County.

As a result of that, I believe Mr. Martin was picked up and sent to Columbia for observation. I don't recall having any further contact with the Martins. I read in the newspaper where Mr. Martin, Jr. had been arrested and charged with murder. I recalled at that time that he was the same Mr. Martin who had threatened to kill me with a shotgun, which was the weapon used in this case.

I don't know Ricky Norris. I have never met the gentleman. I'm certainly not related to him. I'm not related to any Norris. I'm not related to the Howard.

And I certainly deny being a racist. Quite to the contrary, I have lived my life trying to be just to everyone regardless of race, color or creed and I can expound on that if you wish.
Q. Mr. Chairman, I have no further questions.
THE CHAIRMAN: Any questions? Judge Pyle, just so it's clear. In other words, when I look at the documents and everything, absolutely no relationship either by blood or by marriage --
A. That's correct.
THE CHAIRMAN: -- to Mr. Norris; is that correct?
A. Now, one thing Mr. Martin did point out, I signed an Administrative Order which authorized the seizing of Mr. Martin, Jr.'s clothing so some tests could be run on that. I -- those types of orders come across my desk daily and I routinely sign them. I did not notice in this case that it was Mr. Henry Martin, Jr. Had I noticed that, I certainly would not have signed it, but I did so in my capacity as Administrative Judge.
THE CHAIRMAN: And that was just where probable cause was shown to --
A. Yes, sir.
THE CHAIRMAN: -- indicate the need to look?
A. Yes, sir. And they were seized solely for the purpose of testing the clothing.
THE CHAIRMAN: Any Members have any questions? Mr. Couick.
MR. COUICK: Mr. Chairman, I have no further questions either for the complainant or Judge Pyle.
THE CHAIRMAN: Judge Pyle, that would complete it. Do we have any further need for Judge Pyle.
MR. COUICK: No, sir.
THE CHAIRMAN: Judge Pyle --
MR. COUICK: I'm sorry.
A. There is another --
MR. COUICK: We do have one other complainant. I'm sorry.
CHAIRMAN: All right, I'm sorry. All right. Mr. Couick, who is the next --
MR. COUICK: Mr. Chairman, I'd like to have Ms. Ruth Trippe of Taylors, South Carolina.
THE CHAIRMAN: Ms. Ruth Trippe, if you would come forward, please, ma'am, to the chair over there where you've seen everybody else. And if you would just stand for one second and raise your right hand for me.
MS. TRIPPY: May I affirm, please?
THE CHAIRMAN: Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?
MS. TRIPPY: I affirm.
THE CHAIRMAN: Thank you, ma'am. Sit down and Mr. Couick here, the counsel, has some questions to ask you. Please, answer them and as I've told the previous witnesses, these microphones are not state of the art, so you've got to get up really almost in front of you like that and try to direct as best your testimony like that so that the court reporter can get it. Thank you.
MS. TRIPPE - EXAMINATION BY MR. COUICK:
Q. Ms. Trippe, thank you for coming today. Before I would ask you any questions, I would repeat a comment that I made as Counsel for the Committee yesterday to a group of persons that were here to testify regarding another judge.

Their testimony in some ways went to the qualification of the judge, but in other ways it was more to the merits of the case the judge was considering. This Committee is not an appellate court. We're not here to decide if a judge determines constitutional issues in an appropriate fashion.

What we're here to determine is that -- or the Committee determine is that the judge gives due regard to the arguments made by both sides and he fairly and impartially determines the merits of the case and then rules.

You have made an allegation that Judge Pyle is unconstitutional in the sense that he has ordered -- ruled against certain citizens in their right to peacefully pray on the sidewalk and that this was a direct violation of your constitutional right to do so and he, in fact, imposed a ten-foot restraint on each side of the driveway.

I believe that you also allege and this is more as to something specific that a Ms. Suzanne Coe who is an attorney who used to clerk for Judge Pyle requested this and he did this and you said you believed that he had conflict of interest.

You give the location of the prayer vigil as being in Greenville. You offer at least to my immediate impression a question as to whether he ruled in a -- constitutionally correct, which I do not believe this Committee has any jurisdiction to determine, but you do ask a pertinent question as to whether there was any conflict of interest in hearing the case being argued by a former -- or allegedly former law clerk, a Ms. Suzanne Coe. If we could to some degree help the Committee by restricting the testimony to the second part of the your complaint.
A. Okay.
Q. And you're welcome to briefly describe to the Committee your allegations about a conflict of interest.
A. Okay.
Q. At this time. Please go ahead.
A. Thank you. I am a sidewalk counselor and I have --
REPRESENTATIVE ALEXANDER: I can't hear.
THE CHAIRMAN: If you could just speak into that -- pull that little button forward to you just like that and speak just as close as you can into that microphone.
A. I can talk louder, too.
THE CHAIRMAN: And if you can talk louder, that would be good.
A. I am a sidewalk counselor and I've been outside the abortion clinic for five years and at that time I was out there on regular basis and never has there been an accident or any danger whatsoever outside the abortion clinic in the driveway. Suzanne Coe came along, I believe, a couple years ago as an attorney for the abortion clinic.

At that time, she began to ask for restrictions through the police department, having the police department called on numerous occasions and at that time, there were not arrests made in multiple numbers.

In November of last year, they began to have a group called Passage for Right started and there were numerous people that were coming there at that time. They were peacefully praying on the sidewalk. At that time, Suzanne Coe asked Judge Pyle to bring an injunction against the Pro Life men and women that were out there praying. I gave you a copy of the injunction that he made.

That injunction stated, as you said, that we had to stay ten foot away from the driveway on both sides. That was a violation of our constitutional rights and I'm not going to get into that. I understand you're saying that, but at that time it hindered us from doing the work that we had to be doing out there. And I am here in in opposition to the fact that this injunction was made and I believe a very definite conflict of interest since Suzanne Coe had clerked with Judge Pyle's law office.
MR. COUICK: Mr. Chairman, I have no other questions. I think that Ms. Trippe has very, very well developed her accusation of a conflict of interest. I think that it might be -- our time might be best spent speaking to Judge Pyle asking him some questions and allowing Ms. Trippe to remain here and hear his responses. And I think it very definitely turns on some interpretation of the Canons.
THE CHAIRMAN: Any Members have any questions? Thank you, ma'am, Ms. Trippe.
A. Thank you for allowing me to be here.
THE CHAIRMAN: Sure. Judge, if you could come back up. Mr. Couick.
RE-EXAMINATION BY MR. COUICK:
Q. Judge Pyle, had Ms. Coe served as a law clerk to you while you were on the bench there in Greenville?
A. Yes. She was one of my former clerks.
Q. Do you recall what period of time she did service in your court?
A. Quite frankly, I do not. It's been within the past four years.
Q. This order was issued on January 27th, 1993. At the time of its issuance was she in your employ?
A. She was not.
Q. She had left your employ at least sometime prior to that?
A. Yes. Well over a year or more.
Q. Judge, are you familiar with the Canons of Ethics, particularly Canon 3, that tells when a judge should disqualify himself in a proceeding when his impartiality might be reasonably questioned including, but not limited to instances where he served as a lawyer in the matter the controversy lawyer or a lawyer with whom he had previously practiced law served during such association as a lawyer concerning the matter or the judge and such lawyer had been a material witness concerning or also that tossed up family in terms of a living within a household, are you aware of anything within that general Canon that would prohibit you from hearing a case by your law clerk?
A. No, sir, I am not.
MR. COUICK: Mr. Chairman, while it might seem like short questioning, the Canon is fairly explicit. Counsel has been unable to determine anything that would come close to supporting the allegation by Ms. Trippe in terms of there being an absolute disqualification. As we've heard in other testimony today other times for disqualification are left to the judgement and discretion of the judge.

There is nothing here that would seem to indicate that Judge Pyle has abused the discretion that might not otherwise be warranted here.
THE CHAIRMAN: Any Members have any questions? Thank you, sir. That completes it on Judge Pyle.
MR. COUICK: Yes, sir.
THE CHAIRMAN: Mr. Pyle, that completes it. You're free to go.
A. Thank you, sir.
THE CHAIRMAN: Ms. Trippe, the same would hold for you that you're free to go if you wish too, also. Thank you, ma'am, for coming.

We'll then move to the Fourteenth Judicial Circuit Hampton, Colleton, Jasper and Allentown Counties, the Honorable Gerald C. Smoak, Sr. Good afternoon, Judge Smoak.
JUDGE SMOAK: Good afternoon, sir.
THE CHAIRMAN: You're the last one on the agenda and thank you for waiting.
JUDGE SMOAK: Thank you, sir.
THE CHAIRMAN: If you would raise your right hand.
JUDGE SMOAK: Yes, sir.
THE CHAIRMAN: Do you swear to the tell the truth, the whole truth and nothing but the truth so help you God?
JUDGE SMOAK: Yes, sir.
THE CHAIRMAN: Thank you, sir. Have a seat. Your last screening according to my records wasn't too long ago, March the 28th, 1991.
JUDGE SMOAK: That's correct, sir.
THE CHAIRMAN: It seems like only yesterday.
JUDGE SMOAK: That's correct. Seems that way.
THE CHAIRMAN: Have you had a chance to review the Personal Data Questionnaire Summary?
JUDGE SMOAK: Yes, sir, I have.
THE CHAIRMAN: And does it need any correction or any clarifications, sir?
JUDGE SMOAK: I sent in some clarification by letter which I'd like to make a part of the record.
THE CHAIRMAN: The Staff informs me that we have it. It will be made a part of the record provided. Any other clarifications?
JUDGE SMOAK: None that I know of.
THE CHAIRMAN: Do you have any objection then to our making this summary a part of your record of your sworn testimony as if you had given it here today?
JUDGE SMOAK: No, sir.
THE CHAIRMAN: All right. And at this point it will be done in the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Gerald C. Smoak
Home Address: Business Address:
27 Wax Myrtle Lane 1001 Boundary Street
Moss Creek Plantation P. O. Box 1128

Hilton Head Island, SC 29926 Beaufort, SC 29901

2. He was born in Walterboro, South Carolina on September 18, 1930. He is presently 63 years old.

4. He was married to Peggy P. Smoak on June 13, 1975.

He was moving party in the divorce of his first marriage to Joette R. Smoak. The Divorce Decree was dated June 11, 1975, and the grounds for the divorce was 3-years' separation.

He has six children: Debbie Williamson, age 36 (school teacher); Phyllis Utsey, age 32 (school teacher); Gerald C., Jr., age 33 (attorney); Todd Hudson, age 27 (claims adjuster, State Farm); Ashley Hudson, age 23 (student, paralegal school); and Tara Snyder, age 29 (attorney).

5. Military Service: He entered the United States Air Force on March 20, 1951, as a private and served through August 31, 1958. He obtained the rank of 2nd Lieutenant and received an Honorable Discharge. His service number was A02221426.

6. He attended the University of South Carolina (received B.A. in 1951), and the University of South Carolina School of Law (received J.D. in 1956).

8. Legal/Judicial education during the past five years:
He has attended all required Judicial CLEs since he has been on the Bench, and he has just completed the general jurisdiction course at the National Judicial College in Reno, Nevada.

12. Legal experience since graduation from law school:
He had been a trial lawyer, and 75% of his practice dealt with civil litigation. The balance of his practice had been devoted to real estate, workers' compensation, domestic law, criminal trial practice and appearances before administrative bodies.

He was elected Resident Circuit Court Judge for the Fourteenth Judicial Circuit on May 8, 1991, and sworn in on November 16, 1991.
13. Rating in Martindale-Hubbell: B

20. Judicial Office: He was elected Resident Circuit Judge of the Fourteenth Judicial Circuit on May 8, 1991, and was sworn in on November 16, 1991.

21. Five (5) Significant Orders or Opinions:

(a) A. J. Newman v. Lobeco Products, Inc. and Terrell Luther Ray d/b/a Ray's Garage and Diesel (June 30, 1993)

(b) Clyde M. Harriott v. Souther Soya Corporation and Liberty Mutual Insurance Company (August 23, 1993)

(c) Leroy Wright v. Uniroyal Goodrich Canada, Inc. (August 11, 1993)

(d) Seaside Development Corporation, a South Carolina Corporation v. James Lee Vickers, Cassandra Vickers, Lamar Dawkins, William P. Bobo, R. M. Stiney, Jr., George W. Chisholm, Mamie Harrison, E. L. Washington a/k/a Eunice L. Washington, Philip Cooper, Richard Rowe and Jane Doe, the Latter Two Being Fictitious Persons Names to Represent any Heirs, Devises, Legatees, Successors and Assigns of All of the Named Defendants who are Deceased or Persons Who have or Claim any Interest in the Estates of any Named Defendant Who is Deceased, and Agatha Cooper (March 19, 1993)

(e) Joseph Shisko, Inc., Plaintiff v. South Carolina Public Service Authority; CMA Construction Management, Inc.; and LS3P Ltd., a South Carolina Corporation composed of Frank E. Lucas, Sidney W. Stubbs, Thompson E. Penney, Vito R. Pascullis, and Richard L. Powell, General Partners, Defendants, of whom South Carolina Public Service Authority is a Third-Party Plaintiff, v. G&H Construction Co., Inc. and Seaboard Surety, Third-Party Defendants. (February 14, 1992)

22. Public Office: Elected to South Carolina House of Representatives in 1970-1972.

24. Unsuccessful Candidate: He ran for the South Carolina Senate in 1972 and in 1989 and was unsuccessful both times.

25. Occupation, business or profession other than the practice of law: He taught school during the 1953-1954 school year.

26. Officer/director or management of business enterprise: He is Director for eleemosynary telephone cooperative. He has resigned as of November, 1994. His duties are to help make policy and decisions concerning management of the cooperative.

28. He owns a one-half (1/2) interest in a law building with his former law partner. He does not hear any matters in which his former law partner is involved. If he were involved in a matter, he would, of course, disqualify himself. His plans are to sell his interest in the law office building as soon as he can find a buyer.

32. Sued: He was named as a Defendant in a foreclosure action in his capacity as Executor of an estate. He was also named as a Defendant in an action concerning an appraisal fee. This action was without merit and was dismissed with prejudice.

45. Bar Associations and Professional Organizations:
Colleton County Bar Association; American Bar Association; South Carolina Bar Association; South Carolina Trial Lawyers Association; Association of Trial Lawyers of America; South Carolina Association of Counties (as attorney for Colleton County); Association of South Carolina Claimant Attorneys for Workers Compensation; Fourteenth Circuit Fee Dispute Board (Chairman, 1978-1989); South Carolina State Bar Council (14th Circuit, 1969-1975); South Carolina State Bar Council (Executive Committee, 1973-1975)

46. Civic, charitable, educational, social and fraternal organizations:
He is on the Administrative Board of Bethel United Methodist Church and has taught the adult Sunday School class in the past. Before going on the bench, he was President of the Walterboro Jaycees and Chairman of the United Fund.
47. In 1989, he received a South Carolina Bar Pro Bono Service Award and has been active in the South Carolina Bar Lawyers Caring About Lawyers Program for many years.

48. Five (5) letters of recommendation:
(a) Harold E. Tolbert, Senior Vice-President
First Federal Savings and Loan Association of Walterboro
P. O. Box 1367, Walterboro, SC 29488
549-2526
(b) Gedney M. Howe, III, Esquire
P. O. Box 1034, Charleston, SC 29402
722-8048
(c) Ladson F. Howell, Esquire
Howell, Gibson and Hughes, P.A.
P. O. Box 40, Beaufort, SC 29901
522-2400
(d) E. Douglas Pratt-Thomas, Esquire
Wise & Cole
P. O. Drawer O, Charleston, SC 29402
727-2200
(e) James H. Moss, Esquire
Moss & Kuhn
P. O. Drawer 507, Beaufort, SC 29901
524-3373

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench: Resident Judge of the Fourteenth Judicial Circuit;
November 16, 1991

The Board of Commissioners on Grievances and Discipline reports that no Formal Complaints of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. The records of the applicable law enforcement agencies: The Beaufort/Colleton County Sheriff's Office, a negative; the Beaufort/Walterboro City Police Department, a negative; SLED and FBI records, a negative.

Judgement Rolls of Beaufort/Colleton County are negative. Federal Court records show no judgement or criminal actions against you. There was one civil matter which you were listed you as a movant.
JUDGE SMOAK: That's correct, sir.
THE CHAIRMAN: This case has been transferred to New Jersey. It was a RICO type action involving several corporations in New Jersey and New York. Is that still ongoing?
JUDGE SMOAK: No, sir. It's been ended. It settled. It was a class action which I was one of the parties.
THE CHAIRMAN: You're lucky on that one you even knew it. A lot of times in these class actions, people don't even know even that they're defendants.
JUDGE SMOAK: Yes, sir, I knew. This was a so-called tax shelter I was in, sir. I have vivid memories of it, sir.
THE CHAIRMAN: I note that we have one complaint or statement was received and one witness is present to testify, so I'm going to turn the questioning over to Mr. Couick. Please answer any questions he might have, sir.
MR. SMOAK: All right.
JUDGE SMOAK - EXAMINATION BY MR. COUICK:
Q. It's good to see you, Judge Smoak.
A. Yes, sir.
Q. Judge, do you have a copy of your Personal Data Questionnaire with you?
A. Yes, sir.
Q. On Question Number 26 --
A. All right, sir.
Q. -- on page 8 and you had earlier indicated that you had been screened and qualified and served on the bench since 1991?
A. Yes, sir.
Q. And I believe you indicated in response to Question Number 26 that you are a director for an eleemosynary telephone cooperative, that you had resigned as of November, 1994?
A. Yes, sir.
Q. That your duties are to help make policy decisions concerning the management of the cooperative. Could you briefly explain the nature of a eleemosynary telephone cooperative? What service does it provide? Is it profitable back to the folks that serve in any capacity with it, so this Committee can benefit from your explanation?
A. Yes, sir. I'll be glad to. It's a -- what it is is the telephone co-op and the only -- the services that they give simply to provide telephone service in the rural community, sir, which Walterboro and Colleton County is and that's their only purpose.

It's a very benign type organization. This -- of course, it's nonprofit. And it's built for members that have telephones and the co-op is not engaged in any litigation, does not get -- if a telephone bill is past due, they simply cut off the phone and then when the person pays it up, that's it. But it's a very by benign thing, of course. And I've been very careful, but nothing has come up that would --
Q. How many customers are served by the corporation?
A. I don't have any idea.
Q. Would it be more than 100?
A. Oh, yes, sir.
Q. Would it be more than 1,000?
A. No. I doubt it, sir.
Q. How large an area of Colleton County does it serve?
A. It serves the whole county.
Q. Is it the single telephone carrier for the County?
A. No, sir. General Telephone is also in Colleton County. See, General Telephone is in Walterboro. This is a rural area.
Q. So all parts of Colleton County and outside the corporate limits of Walterboro or -- I'm trying to get a fix on how much --
A. That's very close to it, sir. Yes, sir, very close to it.
Q. What types of decisions are you called upon to make in your service as a director?
A. Well, very, very limited, sir. The Board meets once a month and we usually don't have very much business. I mean there's just not much business to take care of.

If there is -- well, the last meeting we had, we decided on a Christmas bonus for the employees. That was about the extent of the business. I can't think of anything else.
Q. Do you receive a fee for your services as a director?
A. Yes, I've got it on there. It's $125 a month.
Q. How long have you served in this capacity, Mr. Smoak?
A. I've been on the Board about six years. My term ends -- or it ends next November and I'm going to get off because I don't -- there really isn't any conflict, but I just -- I want to get off when my term is up.
Q. Yes, sir. And, Mr. Chairman, the Canons of Ethics are not black and white on this issue and the reason I ask about it is it's something certainly left to the judge's discretion to some degree.

It says a judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with his of judicial duties, exploit his judicial position or involve him in frequent transactions with lawyers or persons likely to come before the court under which he serves.

I take from your testimony, Judge Smoak, that's not occurred as of yet, but are there any other lawyers that serve with you on the Board?
A. No, sir, there is no lawyer on the Board and the law firm that does the little bit of legal work that's done for the cooperative is the McNair firm in Columbia and I have a son-in-law who works for the McNair firm, so I don't hear anything that they have anyway, so I wouldn't hear anything involved with the McNair firm at all.
Q. Thank you for answering that. I appreciate your description.
A. Yes, sir.
Q. Going back to some of the more basic questions, Judge Smoak, the area of judicial temperament and the Committee is very interested in your approach to lawyers and litigants in your courtroom and that everyone gets a fair shake and everyone leaves the courtroom thinking that was, if not a pleasant experience, at least it was an experience they didn't suffer from?
A. Yes, sir. Well, I practiced law a long time before I became a judge and I try to treat lawyers and litigants like I would like to be treated frankly, sir. I haven't had any problems with that. I try to make lawyers feel at ease. I try to make jurors feel at ease. I welcome when they come to court. And litigants the same way. So I haven't had any problems with that at all, sir. I think that probably -- I just enjoy what I do, frankly, sir, and I don't have any problems with it.
Q. As it relates to ex parte communication and trying to avoid the pitfalls of that, what -- where do you draw the line?
A. I just don't put up with ex parte communication, sir. Just to give an example, I got a telephone call yesterday about a continuance from a lawyer in Charleston, as a matter of fact, but anyway, what I did was he wanted to -- he called me up and I -- and he started and I said look, just hold it. You get the other lawyer on other side on the line and we'll have a conference call and then we can talk about this thing, but that's what I do.

Of course, the TRO that I sign, which there are very few of them, that's ex parte, of course. We can't help that, but other than that, I just don't -- and lawyers have gotten pretty -- a lot better about that I think in the last -- since I've been on the bench. They don't attempt to do that really.
Q. In trying to avoid the appearance that bias may have some influence in your courtroom, I'm sure perhaps even the limited time you've been on the bench, you've been called upon to recuse yourself from some matter or you've thought to yourself that maybe you need to recuse yourself. How do you go about determining whether you should or you should not recuse yourself?
A. Well, if there is any hint of any conflict, I recuse myself. For example, I have a son who is a claims adjustor for State Farm Insurance Company. I disclose that. If I know that State Farm is involved, then I tell the lawyers and litigants, look, my son works for State Farm; if you'd like for me to recuse myself, I'll be glad to do it.

And I've got a daughter who practices law in Greenville with the Leatherwood Firm and I don't hear anything that's involved in the Leatherwood firm, so -- and I've got a son-in-law who practices law and I certainly don't hear anything that's he's involved in. So I -- if there is any hint of that, I just don't do it. It's not -- I just don't take the chance.
Q. The acceptance of gifts, you've heard the same question asked of other applicants, how do you handle that?
A. No, sir, I don't accept any gifts. I haven't been offered any as a matter of fact, but I don't accept them. I wouldn't accept them if I were.
Q. And whether a gift be -- and a lot -- I don't mean to say that gifts are only in boxes?
A. I understand.
Q. But whether it be lunches, dinner, trips, whatever?
A. Well, I socialize with lawyers normally, sir, because most people I know are lawyers. I practiced law a long time and I socialize with them, but I don't socialize with them if they have a case before me during a term of court. I just don't do that. I don't think it's proper and it just doesn't look good and I just don't do it.
Q. And, Judge Smoak, my question is not meant to seem somewhat disapproving of accepting lunches, I just ask it to get a general approach from each applicant about how they handle that?
A. Well, you know, if I had a friend for a long time and I've had lawyer friends for 30 years, I'll go to lunch with them and might let them pay for my lunch, but if -- when we go next time, I'd pay for it just like I would normally with people. I don't accept lunches from lawyers that I just -- as such.
Q. Right. And, Judge, we do have a complainant here today, but the final question I have for you before we have the complainant up is on pledges. Have you sought the pledge of any legislator prior to the completion of the screening process?
A. No, sir.
Q. Have you asked any third party to seek some Member of the General Assembly to consider your candidacy?
A. No, sir.
Q. Mr. Chairman, I have no further questions at this time.
THE CHAIRMAN: All right. Thank you, Judge Smoak.
A. All right, sir.
THE CHAIRMAN: Let's see. Who is the witness?
MR. COUICK: Mr. Henry Martin, Sr.
THE CHAIRMAN: Mr. Henry Martin.
MR. MARTIN - EXAMINATION BY MR. COUICK:
Q. Take your seat again. You're still under oath from earlier. I would like to express for the Committee and the Staff that we appreciate your coming to Columbia today. I realize that there was some difficulty in your coming and we appreciate and also the folks that brought you down. It's very important that you're here.

We're now discussing Judge Smoak's candidacy for reelection. You had filed the same complaint. It was actually one combined complaint against Judge Pyle and Judge Smoak.

In the Judge Smoak complaint, your principle objection to his reelection is that you allege that Judge Smoak is a racist and that he has a prejudice toward black people. You're welcome to tell the Committee of your concerns at this time. You're welcome to go ahead and testify about Judge Smoak.
A. When he was up, your Honor, in court now he Lawrence Crims (phonetic), you see, we was set up for a hearing. He know it all, about all of this, you see, and -- and Judge Smoak he was about one of the prejudiced man I ever seen in my life.

I just tell you the truth, he -- he's real prejudiced, you see, against black people. He hate the ground the black man walks on for that part, so him and Judge Pyle both.

Now, you see them kind of people -- you see, you can't run a country or whatever -- whatsoever and got them kind of people with all this evil in their heart. You can't do that. You see them kind of people don't need to be in no kind of office. And like -- like I first stated and I still stick to it, see, he got all of Greenville County -- to clear on down do here in his front pocket and what few white folks want to stand for a justice and the rights of other people, I can count on this hand all over Greenville County throughout the south counties of Greenville, South Carolina.
Q. Mr. Martin, have you been exposed --
A. Sir?
Q. I'm sorry. Did I interrupt you? I'm sorry if I did.
A. No. Go ahead.
Q. I was going to ask one question. Your exposure to Judge Smoak, the time that you have seen him in the trial of your son --
A. The only -- only thing I said about he is a prejudiced man.
Q. Right. But the time that you've been exposed to Judge Smoak has been during the trial of your son; is that correct?
A. Yeah.
Q. Have you ever been around Judge Smoak --
A. No, I ain't been around him.
Q. If we had access to the transcript of that trial, would that adequately reflect the times that you've heard Judge Smoak talk, the things he said and he's done? That's the only time you've seen him, right?
A. Right. Right.
Q. Mr. Chairman, I have no other questions.
THE CHAIRMAN: All right. Any Members of the Committee have any questions? Mr. Martin, we want to thank you for coming, sir.
A. Yes, sir. Thank you, sir.
THE CHAIRMAN: Yes, sir. You have a nice day.
A. You do the same.
MR. COUICK: Mr. Chairman, I would like to recall Judge Smoak briefly.
THE CHAIRMAN: Judge Smoak.
JUDGE SMOAK: Yes, sir.
RE-EXAMINATION BY MR. COUICK:
Q. Judge Smoak, I had sent you a copy of the complaint regarding the Martin matter and you had responded in a letter of November 15th, 1993 which is in the Members' packets. Is there anything that you would like to tell the Committee in addition to the letter that was forwarded?
A. Well, all I can say, sir, is that I was sent to Greenville by the Chief Justice to hold General Sessions court and that's what I did. Mr. Henry Martin, Jr.'s case came up before me for trial by a jury. The trial was had. He was found guilty. The record speaks for itself.

I have no prejudice against blacks or any other race, creed or color. I treat everybody the same. I certainly try to. And I simply handled this trial and the jury found him guilty and I sentenced him to life, sir. That's it, sir.
Q. That's all the questions, Mr. Chairman.
THE CHAIRMAN: Any Members have any questions? That completes it. Judge Smoak, thank you for coming, sir.
A. Thank you.
THE CHAIRMAN: It's nice to see you again.
A. Yes, sir.
THE CHAIRMAN: Sorry it'll be so long before you'll be back.
A. Right. I hope so.
REPRESENTATIVE: I believe we'll finish on House time.
THE CHAIRMAN: I believe we are, too. Ya'll, we've a couple of administrative matters that we need to take up. We may be able to take them up in open session. Tell me if you need to go behind in Executive Session.

(Off the record)

THE CHAIRMAN: There are no more witnesses today. We have agreed to hold these hearings in recess to the call of the Chair. If the Staff informs us that all is in, then I will adjourn these hearings and we will get a final report.

On the other hand, if we find that there is information, we will reconvene. With that we made it within two minutes. Stand Adjourned. Stand in recess.

(The proceedings recessed at 3:58 p.m.)

Findings of Fact

The Committee in its review and investigation of the candidates for Circuit Court seats conducted two full days of screening hearings based, in part, on extensive background research compiled by the Committee's legal and administrative staff. To ensure full public input, the Committee asked for the assistance of all print and electronic media in the state in advertising the judicial vacancies and the Committee's desire for citizens to appear before the Committee and offer testimony regarding any or all of the candidates.

Third Judicial Circuit

As it did with each candidate for judicial office, the Committee made detailed inquiries concerning The Honorable David F. McInnis' approach to ethical questions such as ex parte communications, recusal, and gifts. The Committee was impressed with Judge McInnis' general approach to these ethical issues, as well as his responses to specific questions concerning the ethical dilemmas faced by all members of the Judiciary. Judge McInnis noted that although the attorney who rents his former law office is not a regular trial attorney, he would recuse himself from potential cases involving this attorney upon such a motion. Also, the Committee confirmed that a campaign debt mentioned during Judge McInnis' 1985 screening has been retired.

During Judge McInnis' screening, the Committee voiced concerns about the County Bar Association endorsements received by several of the candidates prior to their screening. The Committee inquired as to whether members of the General Assembly abstained from signing these endorsements and noted that it would closely consider this issue in the future.

Fourth Judicial Circuit

The Committee was impressed with the continued dedication and outstanding past service of The Honorable Edward B. Cottingham. The Committee received three complaints, and three witnesses testified concerning Judge Cottingham's sentencing of public officials in Horry County. The complainants specifically referred to Judge Cottingham's sentencing of Archie Lee, an Horry County magistrate charged with misuse of public office and eighteen counts of assault and battery of a high and aggravated nature. Lee sexually assaulted several women and received a suspended sentence with three years probation, 400 hours of community service, and a $500 fine.

Judge Cottingham explained that Lee was a nonviolent offender with no prior convictions, and the Committee noted that probation would have been indicated under the current pre-sentencing guidelines, the federal sentencing guidelines, and the January 1994 sentencing guidelines. When asked about his sentencing philosophy, Judge Cottingham responded that he applies the same criteria for public officials and non-officials and explained that he is perhaps a little harsher in sentencing public officials because they have violated the public trust. The Committee found no evidence of an improper relationship involving Archie Lee or any of the public officials sentenced by Judge Cottingham.

Fifth Judicial Circuit

The Committee found that M. Malissa Burnette has an active and well-respected civil practice. As with other candidates, Ms. Burnette was questioned concerning judicial temperament and demeanor. Ms. Burnette gave strong responses to the Committee's questions on advocacy and indicated her willingness and ability to curtail such activities to a level commensurate with a judicial position. Although the Committee was concerned with Ms. Burnette's lack of criminal experience, she has emphasized her willingness to study in this area and has already initiated that process. The Committee was impressed by Ms. Burnette's clear positions on various ethical questions, such as ex parte communications and gifts. The Committee finds that the complaint lodged against Ms. Burnette is not supported by any evidence.

The Committee also found that L. Casey Manning has an active and well-rounded practice. As with other candidates, the Committee questioned Mr. Manning concerning appropriate activities for members of the bench and ethical concerns. The Committee noted Mr. Manning's involvement in a number of extracurricular activities, including his role as a radio announcer for the University of South Carolina's basketball team. Mr. Manning indicated his willingness to curtail such commitments where appropriate in view of the judicial canons.

Seventh Judicial Circuit

The Committee appreciated and respected the black and white approach taken by The Honorable E.C. Burnett, III when dealing with ex parte communications and gifts. The Committee was concerned, however, that in January 1992, Judge Burnett allowed his name to be listed in a newspaper advertisement concerning a public controversy. Such endorsements are prohibited by Canons 2 and 7 of the Canons of Judicial Ethics, and the Committee inquired about Judge Burnett's understanding of the wisdom and rationale behind the Canons. The Committee reinforces its previous concerns that judges adhere to all Canons of Judicial Ethics.

Eighth Judicial Circuit

The Committee was impressed with the very favorable comments provided in the Bar's questionnaire responses regarding The Honorable James W. Johnson, Jr. The Committee recognized Judge Johnson's high level of commitment and found his credentials to be outstanding.

Ninth Judicial Circuit

The Honorable William L. Howard also received very favorable responses from the candidate questionnaires distributed by the Committee. The Committee noted and respects Judge Howard's understanding of the need for good judicial temperament and compassion in the courtroom and was impressed by his straightforward approach for dealing with ex parte communications, gifts, and recusal.

Eleventh Judicial Circuit

The Committee was impressed by the dedication and integrity of The Honorable William P. Keesley. The Committee believes that Judge Keesley enjoys an excellent reputation and reflects outstanding judicial temperament. The Committee appreciates the seriousness and diligence with which Judge Keesley has performed his duties thus far and is satisfied that he intends to continue his fine service.

The Committee appreciated the past dedication and commitment that The Honorable Clyde N. Davis, Jr. has demonstrated in his capacity as a former Chief Staff Attorney and the current Clerk of Court for the South Carolina Supreme Court. Mr. Davis has supervised the Court's staff attorneys and has dealt with other attorneys in his capacity as spokesperson for the Court.

The Committee raised its concerns regarding Mr. Davis' lack of actual trial experience in his limited private practice from 1976-1977. During this period, Mr. Davis achieved some experience in the domestic and probate areas yet handled only one civil case in Circuit Court. The Committee expressed its concern that Mr. Davis' total courtroom experience, whether as trial attorney or as an observer, was very limited. Mr. Davis responded to these concerns by explaining that his research as a Supreme Court Staff Attorney made him very familiar with trial procedures and problems. Mr. Davis also noted that he proofreads all South Carolina Supreme Court opinions and must also read all Fourth Circuit and U.S. Supreme Court opinions.

The Committee noted and respected The Honorable Marc H. Westbrook's continued service as a Family Court Judge. As with all other candidates, the Committee questioned Judge Westbrook about the subjects of judicial temperament, ex parte communications, gifts, and recusal. The Committee also addressed its concerns about Judge Westbrook's degree of Circuit Court experience prior to his taking the Family Court bench. Judge Westbrook responded that he spent about 45% of his time in Circuit Court and about 40% in Family Court. He also noted that as a Family Court judge, he has handled criminal matters involving juveniles and civil issues arising in family scenarios.

Twelfth Judicial Circuit

The Committee was impressed with the past service and continuing dedication of The Honorable John H. Waller, Jr. The Committee noted with approval that Judge Waller demonstrated an understanding of the importance of good judicial temperament.

Thirteenth Judicial Circuit

The Committee recognizes and appreciates the past service of The Honorable C. Victor Pyle, Jr. Judge Pyle testified that, as Chief Administrative Judge for the thirteenth judicial circuit, he attempts to move his docket efficiently while balancing that with an understanding of attorneys' schedules.

The Committee found no evidence to support Mr. Henry Martin, Sr.'s charges of racism. Mr. Martin's allegations were very general and vague and appear to be related to his son's incarceration. A second complaint, lodged by Ms. Ruth Trippe, involved allegations of bias, where Judge Pyle granted an injunction in a case argued by his former law clerk. The Committee reviewed the appropriate canons and determined that Judge Pyle complied with all provisions on judicial recusal.

Fourteenth Judicial Circuit

The Committee found that the credentials and service of The Honorable Gerald C. Smoak, Sr. are outstanding. Judge Smoak displayed an understanding and appreciation of the need for good judicial temperament.

After questioning, the Committee found that Judge Smoak's service as a director for an eleemosynary telephone cooperative has not compromised his judicial integrity. The Committee then commended Judge Smoak's decision to discontinue such service at the expiration of his term in November 1994. The Committee found no evidence in support of Mr. Henry Martin, Sr.'s allegations of racism. As mentioned earlier, Mr. Martin's allegations were very general and vague and appear to be at least partially motivated by his son's incarceration.

At Large Seat, Number 2

The Committee found John Sinclaire, III to have strong criminal experience and a solid understanding of ethical concerns, such as ex parte communication, gifts, and recusal. When questioned about the need for appropriate judicial temperament, Mr. Sinclaire emphasized the importance of being able to empathize with courtroom participants. He also cited his experiences in the Charleston County Solicitor's Office as a maturing process.

The Committee was concerned with Mr. Sinclaire's lack of civil experience. Although he has served with the Charleston County Solicitor's Office for over ten years, Mr. Sinclaire's experience in civil matters is limited to magistrate's matters and bond estreatments.

The Committee also found Robert S. Armstrong to have well-rounded and strong criminal experience. Mr. Armstrong served as the first Public Defender for Allendale, Hampton, and Jasper counties and is now a Deputy Solicitor. The Committee was impressed by Mr. Armstrong's clear stand on ex parte communications and noted that he already has experience in the area of docket management, as the Solicitor's office manages the criminal docket.

Again, the Committee was concerned that Mr. Armstrong lacks experience in the civil arena. Mr. Armstrong has worked briefly on some forfeiture cases which came to the Solicitor's office and has handled some cases from Family Court and DSS, but he has not tried any actual civil cases.

R. Markley Dennis, Jr. has had a general law practice in Moncks Corner since 1973 and handles domestic, civil, and criminal cases, with criminal cases comprising the least percentage of his practice. The Committee inquired as to the extent of Mr. Dennis' criminal experience and was informed that he has negotiated serious drug cases and that his most complex criminal matter involved a murder trial, resulting in a plea to involuntary manslaughter. The Committee was impressed with the importance that Mr. Dennis placed on the subject of mutual respect in the courtroom and with his general approach to the issue of judicial temperament.

The Committee was concerned with Mr. Dennis' involvement with the failed Palmetto Fitness and Wellness Center in Moncks Corner and made a detailed inquiry into this subject. Mr. Dennis was a member of a six- or seven-person group which incorporated and sold stock in the center. He did not, however, serve the group or its investors in his capacity as an attorney. Mr. Dennis confirmed that all tax liens have been resolved and that a lawsuit by a disgruntled stockholder was handled by buying back the investor's stock and interest in the property.

Summary

The following persons were unanimously found qualified.

The Honorable David F. McInnis, candidate for Judge of the Third Judicial Circuit;

The Honorable Edward B. Cottingham, candidate for Judge of the Fourth Judicial Circuit;

M. Malissa Burnette, candidate for Judge of the Fifth Judicial Circuit;

L. Casey Manning, candidate for Judge of the Fifth Judicial Circuit;

The Honorable E. C. Burnett, III, candidate for Judge of the Seventh Judicial Circuit;

The Honorable James W. Johnson, Jr., candidate for Judge of the Eighth Judicial Circuit;

The Honorable William L. Howard, candidate for Judge of the Ninth Judicial Circuit;

The Honorable William P. Keesley, candidate for Judge of the Eleventh Judicial Circuit;

Clyde N. Davis, Jr., candidate for Judge of the Eleventh Judicial Circuit;

The Honorable Marc H. Westbrook, candidate for Judge of the Eleventh Judicial Circuit;

The Honorable John H. Waller, Jr., candidate for Judge of the Twelfth Judicial Circuit;

The Honorable C. Victor Pyle, Jr., candidate for Judge of the Thirteenth Judicial Circuit;

The Honorable Gerald C. Smoak, Sr., candidate for Judge of the Fourteenth Judicial Circuit;

Robert S. Armstrong, candidate for Judge of the Circuit Court At-Large, Seat #2;

R. Markley Dennis, Jr., candidate for Judge of the Circuit Court At-Large, Seat #2;

John Sinclaire, III, candidate for Judge of the Circuit Court At-Large, Seat #2.

Respectfully submitted,
/s/Senator Glenn F. McConnell, Chairman
/s/Rep. James H. Hodges, Vice-Chairman
/s/Senator Thomas L. Moore
/s/Senator Edward E. Saleeby
/s/Senator John R. Russell
/s/Rep. M. O. Alexander
/s/Rep. Donald W. Beatty
/s/Rep. C. Lenoir Sturkie

(On motion on Senator McCONNELL, with unanimous consent, ordered printed in the Journal of Friday, January 14, 1994.)

REPORT RECEIVED

January 11, 1994
TO: The Honorable Marshall B. Williams
President Pro Tempore of the South Carolina Senate and Chairman of the Senate Judiciary Committee

On behalf of the Legislative Committee to Study the Provision of Single-Gender Education Opportunities for Women, I am pleased to deliver to you its January 1994 Report. This report contains recommendations for the General Assembly to consider in exploring alternatives for the provision of single-gender educational opportunities for women and was unanimously approved by the Committee.

For all Committee members, I express our appreciation for the opportunity to participate in such a worthwhile project. The Committee also appreciates the support and cooperation which it received from Ms. Angelia S. Tutko, Staff Attorney for the Senate Judiciary Committee, and Mr. Richard P. Fulmer, Staff Attorney for the House of Representatives Education and Public Works Committee, in developing this report.

Respectfully submitted,
/s/Francis P. Mood
Committee Chairman
Columbia, South Carolina

JANUARY 1994 REPORT

LEGISLATIVE STUDY COMMITTEE

RECOMMENDING ALTERNATIVES FOR

CONSIDERATION BY THE

GENERAL ASSEMBLY OF SOUTH CAROLINA

FOR THE PROVISION OF SINGLE-GENDER

EDUCATIONAL OPPORTUNITIES FOR WOMEN

GENERAL

By Concurrent Resolution H.4170 dated May 20, 1993 (the "Concurrent Resolution")(Appendix 1), the General Assembly of South Carolina (the "General Assembly") declared the historic and present public policy objectives and governmental interests of the State of South Carolina in establishing and supporting single-gender, post-secondary, educational opportunities to its citizens. To assist the State in providing single-gender educational opportunities for women, the resolution called for the creation of a committee (the "Committee") to "formulate recommendations for the General Assembly to consider in exploring alternatives for the provision of single-gender educational opportunities for women and report recommendations to the General Assembly at the beginning of the 1994 session." This Report is offered in compliance with this requirement.

Pursuant to the terms of the Concurrent Resolution, the Speaker of the House of Representatives appointed five members of the Committee: Hon. F. G. Delleney, Hon. Ronald Fulmer, Ms. Virginia Crocker Lloyd, Hon. Bessie Moody-Lawrence, and Hon. Elsie Rast Stuart. Likewise, by correspondence dated August 18, 1993, the President Pro Tempore of the Senate appointed five members: Ms. Paula Bethea, Dr. Jack Chandler, Dr. Lamar W. Dawkins, Jr., Mr. Gilbert Hoffman, and Mr. Francis P. Mood. Subsequently, because of Dr. Dawkins' inability to serve, Mr. F. Xavier Starkes was appointed to the Committee. Ms. Angelia S. Tutko and Mr. Richard P. Fulmer were appointed by the President Pro Tempore and Speaker, respectively, to provide staff support to the Committee.

The Committee held an organizational meeting on September 14, 1993, reviewed its mission, adopted rules, elected officers, established a plan for conducting the affairs of the Committee, and requested data and reference material for its review. Since its organizational meeting, the Committee has requested, received, and reviewed substantial information regarding single-gender education for women in order to better understand and appreciate the learning environment and experience provided. The Committee has considered institutions and programs within and without the State of South Carolina. Committee representatives have communicated with the presidents of the four-year colleges and universities (public and independent) within the State, and a Committee representative has met with the Commissioner of the South Carolina Commission on Higher Education. The Committee, as a whole, has met on four occasions and, in one of these meetings, conferred with the presidents of the two independent women's colleges in the State, Dr. Thomas R. McDaniel, Interim President of Converse College, and Dr. Peter T. Mitchell, President of Columbia College.

BACKGROUND

As reflected in the Concurrent Resolution, "South Carolina has historically supported and continues to support single-gender educational institutions as a matter of public policy based on legitimate state interests where sufficient demand has existed for particular single-gender programs thereby justifying the expenditure of public funds to support such programs."

The educational justification for single-gender schools is predicated on the conclusions of many academicians that men and women generally learn in different ways and that many men and women respond differently to learning environments. Therefore, single-gender colleges can positively affect the learning of both sexes. These institutions provide a focus which can be educationally beneficial to late adolescent males and females. For example, cross-sex pressures are eliminated, creating a more advantageous learning environment for some students.1 In creating separate learning environments for men and women, educational models build on distinctive learning characteristics of each.2 "These differences point toward some distinct strategies in the development of both climate and content in the educational program."3 Further, authorities on this subject point out that differences in male and female development patterns are group differences; thus, when one is establishing a program for women, that program is set up to answer the needs of most women, not every woman.4 Finally, traditions and practices, incorporated into the programs of single-gender schools to enhance the learning environment, are a significant part of the single-gender experience.5

This is not to say, however, that academicians are of one accord on this issue, for they are not. Advocates for coeducational opportunities make equally compelling arguments for the academic experiences which coeducational institutions provide. However, the Committee's inquiries lead us to the conclusion that there is substantial academic evidence justifying South Carolina's policy of providing diverse opportunities in higher education, including coeducational and single-gender opportunities. Indeed, the State's policy of diversity in higher educational opportunities should ensure that the State is responsive to its students through a complement of coeducational and single-gender experiences.

In practice, the State policy as to single-gender higher education has been implemented in a variety of forms. The Citadel was created by act of the General Assembly in December 1842, and throughout its 151 years has served as a public institution for the education of men.6 In 1891, the General Assembly created Winthrop College (then known as The South Carolina Industrial and Winthrop Normal College) for the education of women.7 These two colleges provided the principal public institutional response to students seeking a single-gender education in this state until 1974. It should be noted, however, that for a significant portion of its history (1889 to 1955) Clemson University (then Clemson College) was a college for men. There have been over time, throughout the state, numerous independent and/or church affiliated single-gender colleges for men and women.8

Winthrop became a coeducational institution in 1974, leaving The Citadel as the sole remaining public, single-gender college. Because of the significance of the decision for Winthrop to become a coeducational institution, the Committee believed it was important to consider the principal reasons which led to Winthrop's change in mission.

Immediately prior to and at the time of its change in mission, Winthrop College experienced a period of rapidly declining enrollment.9 Three dormitories were closed in 1972 and three more in 1973. There were those who believed that the existence of the college was threatened.10 A general nationwide decline in the popularity of single-gender education, which was characteristic of the 1960's and 1970's, seems to have been exacerbated in Winthrop's case by an emphasis at Clemson College on the recruitment of women, construction of women's dormitories at the University of South Carolina, and the incorporation of two-year colleges into the State's system of higher education. The trustees of Winthrop College felt transition to coeducation was a necessary action to increase the applicant pool and, thus, admissions.11

Concurrently with the experience of declining enrollment, there was an evolving belief that a coeducational mission might not only better serve Winthrop, but, more importantly, the young women whose mission it was to educate. There was, and is today, a school of educational and political thought that the advancement of women may best be achieved through access to the same educational institutions accessed by men.12

Another factor influencing the Winthrop mission change was the interest of the Rock Hill community. There was substantial civic and business support for a regional coeducational institution to serve what was believed to be an underserved area of the State.13

Finally, on the national scene, litigation involving the racial desegregation of public institutions during this period added an element of uncertainty as to what Winthrop's gender responsibilities should be.14

Thus, the primary motivating factors which led to the elimination of a public single-gender institution for women in South Carolina were a lack of demand for that experience (with the financial hardships which accompanied declining enrollment) and the then current belief that co-education would eliminate stereotyped views of women and, thereby, better serve the interests of women. The Committee has encountered no evidence that this course of conduct by Winthrop College and by the State of South Carolina was in any way motivated by an effort to discriminate against women or influenced by archaic or stereotypical notions about the proper roles for men and women.

Ironically, the merits of a coeducational academic philosophy for all students now are being reassessed. There currently is renewed interest in and renewed support for the proposition that, in the formative years of higher education, single-gender institutions best prepare significant numbers of men and women to compete in the commercial, industrial, and professional world.15 Women's colleges are now offering more disciplines designed to prepare women for greater numbers of career opportunities and are seen as uniquely positioned to train women for leadership roles.16

Strategic decisions, particularly one as significant as whether an institution should be coeducational or single-gender, cannot be made on a frequently-occurring basis. This decision whether an institution should be coeducational or single-gender affects the essential character of the institution and, once an institution converts from single-gender to coeducation, the change is practically irreversible. Academic decisions of this nature must be assessed and reassessed; educational needs, opportunities, and trends must be identified and appropriate educational responses developed. There is no optimum time for such review and assessment; however, the nineteen years which have elapsed since Winthrop became a coeducational institution make appropriate the State's review of the public support for single-gender educational opportunities for women now being undertaken.

This is not to say that during this nineteen-year interval South Carolina has not been supportive of single-gender educational opportunities for women, even though demand no longer justified the maintenance of a public women's college. During this period, the State was faced with increasing demand by certain institutions for additional facilities to accommodate enrollment, while at the same time there were institutions (including independent institutions) which had additional student capacity.17 To address increasing budgeting pressures on higher education and demands for new programs, the General Assembly responded creatively by establishing the Higher Education Tuition Grants Program. The Tuition Grants Program enabled the State to address some of the educational demands of its students through a collaborative agreement between the public and private sectors. Thus, notwithstanding the fact that the State no longer maintained Winthrop as a single-gender college, parallel opportunities were created for women with Converse College and Columbia College, and expanded opportunities for men were created with Wofford College.18

The State continues to provide financial support to women who seek single-gender higher education through the Higher Education Tuition Grants Program. For example, over the last three years the Tuition Grants Program has provided $4,843,189 in grants to women attending Columbia College and $2,417,835 in grants to women attending Converse College.19 Interestingly, overall, sixty-four percent (64%) of tuition assistance grants provided by the Tuition Grants Program go to women.20 Other examples of public support for single-gender education are exemptions from ad valorem property taxes, loans by the South Carolina Student Loan Corporation, and revenue bonding authority. Indeed, Dr. Peter T. Mitchell, President of Columbia College, in a letter dated November 5, 1993, to this Committee, stated: "We believe the combination of the protection of private single-gender colleges and universities provided by Title IX at the national level and the soundness of a South Carolina tuition grants program awarded directly to students who may choose among 19 institutions, two of which are women's colleges, is the best public policy to ensure excellence in higher education opportunities for women."

The Committee, however, believes that the State should consider the support of single-gender educational opportunities for women beyond those currently being provided through the Higher Education Tuition Grants Program.

ASSESSMENT OF DEMAND FOR SINGLE-GENDER EDUCATION FOR WOMEN

Practicalities dictate, and this Committee believes, that the State cannot, and need not, provide every individual with every educational opportunity which he or she might desire. However, the State should respond to reasonable needs and demands. The General Assembly has said as much in the Concurrent Resolution.21

The resources of the Committee do not permit a comprehensive survey of female high school students, which might be undertaken in an effort to measure the demand for single-gender higher education for women in this State. Although the General Assembly might wish to consider some form of survey in the future, the Committee believes that such a survey would at best provide only an indication of interest rather than a reliable indicator of how many students actually might apply and subsequently enroll in a publicly provided women's program.22

A better indicator of demand, we believe, is actual experience, and there are certain data which reasonably reflect levels of interest in single-gender education by women as well as the kinds of programs to which women may be attracted in sufficient numbers to support a viable educational opportunity. Accordingly, the admissions experiences of Converse College and Columbia College for the 1992-93 and 1993-94 academic years are set forth below. While these statistics may not reflect the total interest in the single-gender experience because they do not include those students who seek this experience out of state or those whose decisions are affected by financial circumstances, we believe the data aid us in assessing potential demand. The Committee also reasonably believes that increased levels of public support may stimulate increased numbers of applications and admissions, but it has no way of quantifying that result.

An additional aid in assessing demand is the experience of the South Carolina Higher Education Tuition Grants Program. Under this program, a stipend is given to selected students to be used in any qualified independent college they may choose. Thus, applications for grants cannot be used to indicate demand, since they do not specify individual institutions which the applicants desire to attend. However, actual enrollment data is an indicator of present interest. Accordingly, tuition grant data is included with the Columbia College and Converse College enrollment statistics.
[--- Unable To Translate Box ---]

CONVERSE23 COLUMBIA24
1992-1993
FRESHMEN
Applications (South Carolina) 319 624
FTE Enrolled (S.C. Freshmen/Resident
Students Only) 67 236

TOTAL ENROLLMENT (All Classes)
(S.C. Students/Resident & Day) 465 1,189

TUITION GRANTS
Applications (All Classes) 235 75225
Total Awards (All Classes) 216 663
[--- Unable To Translate Box ---]

CONVERSE26 COLUMBIA27
1993-1994
FRESHMEN
Applications (South Carolina) 110 668
FTE Enrolled (S.C. Freshmen/Resident
Students Only) 76 225

TOTAL ENROLLMENT (All Classes)
(S.C. Students/Resident & Day) 392 1,199

TUITION GRANTS
Applications (All Classes) 303 93225
Total Awards (All Classes) 252 742
[--- Unable To Translate Box ---]

In its consideration of overall demand for single-gender education, the Committee found no indications of interest by women in a single-gender military education. An absence of such interest is consistent with the educational climates which educators believe women find more attractive and conducive to learning, as referenced above, and is consistent with the history and mission of Converse College and Columbia College, as discussed by their presidents.28

Converse College and Columbia College offer ROTC training to their students. Currently, Converse College and Columbia College have one student each enrolled in ROTC.29 In 1992, only 13.9 percent (13.9%) of all ROTC students in South Carolina were women.30 Although there has never been a women's military college in the history of the United States, there are certain residential coeducational military programs. Cumulatively, approximately 250 women are enrolled in residential ROTC military programs based at Texas A&M University, Norwich University, North Georgia College, and Virginia Tech.31 The Citadel has received only four applications from females for enrollment in the Corps of Cadets in its history, or at least as long as application records have been maintained. For the past ten years, The Citadel has averaged 1,600 applications annually, and enrolled an average of 615 cadets in each freshman class.32

This does not mean that South Carolina women do not seek or cannot presently obtain military career preparation. The Committee discerns that in the vast majority of cases, the demand by women seeking military educational opportunities is being met by existing ROTC programs and by the federal academies.33

EFFECT OF PENDING LITIGATION AGAINST THE STATE OF SOUTH CAROLINA AND THE CITADEL

The Committee has been mindful in its deliberations that its mission is to assist the General Assembly in ensuring that the State is appropriately meeting its responsibilities to, and the educational needs and demands of, the women of South Carolina for single-gender higher educational opportunities. The work of this Committee has not been to develop a recommendation simply to provide an additional defense to the State and The Citadel in litigation in which The Citadel's all-male admission policy currently is being challenged. However, the Committee believes that if its recommendations result in a program or programs which are designed to provide optimal single-genduer educational opportunities for women, in environments designed for that purpose, based on the sound advice of academicians, and equitably funded, it should follow that the State's policy of providing diversity of educational opportunities is being appropriately and lawfully met. The Committee further recognizes, however, that its work and that of the General Assembly could be for naught, if it does not result in a program which meets any requirements the federal courts may articulate in the pending litigation.

The Citadel's educational objectives are to produce:
. . . graduates who (a) have insight into the fundamental issues, ideas, and values of importance to a society; (b) can apply such insights toward understanding current issues and problems in a regional, national, and global context; (c) have understanding of the methodological skills needed to gather and analyze information; (d) possess both critical and creative thinking abilities; (e) have effective communication skills; (f) can apply abstract concepts to concrete situations; (g) can make decisions based on a clear, well developed value structure; and (h) demonstrate an intellectual curiosity and discipline consistent with an embrace of lifelong learning.34

In accomplishing its educational objectives and "to prepare [its graduates] for postgraduate positions of leadership" (leadership development being at the center of The Citadel experience), The Citadel utilizes a structured, disciplined environment or educational climate predicated on a military organization.35

The admissions policy of Virginia Military Institute, which educates young men in a remarkably similar, if not identical, program to that of The Citadel, likewise has been challenged in the federal courts.36 The Fourth Circuit Court of Appeals concluded in the VMI case that the Commonwealth of Virginia could maintain VMI as an all-male institution if women were offered a "parallel program."37

Beyond the language of the VMI opinion, the court has given little insight as to what constitutes a parallel program. In subsequent proceedings in that case, the presiding United States District Judge raised this very question in discussions regarding the development of a remedial plan by the Commonwealth of Virginia. The Court stated: "Has the Fourth Circuit told us to adopt, or told the Commonwealth to adopt a plan which would provide a single sex military education for females, or has it told... the Commonwealth to adopt a plan which would simply provide an all female education? I'm not clear on that...."38

Judge Niemeyer, who wrote for the majority in the VMI Case, observed in Faulkner v. Jones, Opinion No. 93-2030, dated November 17, 1993 ("The Citadel Case"):
The order in VMI did not, however, direct that any parallel program which the state might choose to provide be identical for both men and women.... When... a gender classification is justified by acknowledged differences, identical facilities are not necessarily mandated. Rather, the nature of the difference dictates the type of facility permissible for each gender.... Therefore, any analysis of the nature of a separate facility provided in response to a justified purpose, must take into account the nature of the difference on which the separation is based, the relevant benefits to and the needs of each gender, the demand (both in terms of quality and quantity), and any other relevant factor. In the end, distinctions in any separate facilities provided for males and females may be based on real differences between the sexes, both in quality and quantity, so long as the distinctions are not based on stereotyped or generalized perceptions of differences.

Id. at 9-10.

A plan to provide parallel opportunities for women in Virginia has been developed by Mary Baldwin College and submitted to the federal court in that state for review.

In the absence of any further direction from the court to the contrary, the Committee has proceeded on the belief that the State should not simply create a male model institution or program for women. We do believe, however, that the opportunity provided for women should achieve the same educational objectives which are provided for young men who attend The Citadel and should emphasize leadership development. In view of the gender-specific educational differences articulated by the above-referenced authorities and others, the Committee has incorporated into its inquiry the possibility that these educational objectives for women may be achieved through a methodology different from that designed for the education of men. The challenge is to ensure that these educational objectives are offered in a single-gender environment designed for women, and made reasonably attainable through appropriate public support.

The creation of the optimal methodology to be incorporated into a program for women is an issue beyond the expertise of this Committee and is an effort in which the expertise of educators must largely be determinative. South Carolina has long had a policy of leaving education to the educators.39

We emphasize again that while alternative recommendations now can be made by this Committee for consideration by the General Assembly, no final definitive recommendation reasonably can be adopted and implemented without further clarification from the courts and development by education experts. Thus, the recommendations offered in this Report, of necessity, require further development.

ALTERNATIVES CONSIDERED BY COMMITTEE, AND RECOMMENDATIONS FOR CONSIDERATION BY THE GENERAL ASSEMBLY

Alternatives which may be considered in response to any demand for a women's college program range from the creation of a new public college for women (or the conversion of an underutilized institution for this purpose) to simply maintaining the status quo (i.e., the Higher Education Tuition Grants Program and other forms of public support currently being provided to Columbia College and Converse College).
I. A New Public Institution for Women.

The Committee believes that the present uncertainty of demand and the attendant expenses involved in creating a new public institution for women, or the conversion of an existing underutilized institution, makes this alternative inappropriate at present. Because of this assumption, we have not seriously attempted to develop options along these lines. If, in the future, educational trends develop which justify State response in the form of a new public institution for women, such an alternative can be more fully explored at that time.40 The Committee recommends that before any undertaking of this nature, a reliable indication of need and demand should exist.
II. Women's College Within a University.

Another model which has been considered by the Committee is that of a women's college within a larger university. There is precedent for such a model, such as H. Sophie Newcomb Memorial College of Tulane University, and Saint Mary's College at the University of Notre Dame. However, this is not a model extensively favored today. The Committee believes that this disfavor is due to the basic incompatibility of the combined missions. The presidents of Columbia College and Converse College made it clear to the Committee that a coeducational program would not be acceptable on their campuses. Likewise, communications with the senior colleges and universities in the State clearly reflect those institutions' commitments to coeducational missions. An effort to accommodate a single-gender institution or program within a larger coeducational institution presents a complexity of planning and implementation problems, such as curriculum offerings (i.e., what courses would be offered in single-gender classrooms but would not be otherwise available); housing; and extracurricular participation. It is virtually impossible to create and maintain the climate and traditions important to the single-gender experience in the midst of a coeducational institution.

For these reasons, the Committee has not pursued this alternative.
III. Compact Arrangements.

The Committee believes that a program developed in collaboration with an existing women's college (or more than one) can provide an appropriate public response to the single-gender educational needs of the women of this State. Accordingly, the Committee recommends that the General Assembly consider the following:

1. Compact Arrangement With Mary Baldwin College. The plan proposed by the Commonwealth of Virginia to provide women a program parallel to that provided men at VMI involves a collaborative arrangement among the Commonwealth, VMI, and Mary Baldwin College, a private women's college in Staunton, Virginia. A copy of the proposed Virginia Plan is attached (Appendix 2).

Such a compact arrangement has precedent in South Carolina, and is particularly appropriate when the demand for a program is small. Since 1958, the State has participated in the Board of Control for Southern Regional Education, a compact agreement whereby students from South Carolina obtain degrees in veterinary medicine at the University of Georgia, Tuskegee University, and North Carolina State University, because such a program has not been offered in South Carolina. Since 1973, the State has had a similar arrangement with the University of Alabama for South Carolina students to study optometry at Southern College of Optometry. Additionally, at the secondary level, South Carolina has a Tuition Aid Agreement with the North Carolina School of Performing Arts. These programs are administered through the Commission on Higher Education (CHE).

The funding of this compact arrangement could be predicated on the State's providing the same full time equivalent (FTE) student dollars (that is, the per capita student funding derived by the Commission on Higher Education (CHE) formula) which is provided for cadets attending The Citadel. Thus, the State's investment in these students would be the same as that provided for students attending USC, Clemson, Winthrop, and other public colleges and universities.

There are several advantages to a compact arrangement with Mary Baldwin College:

a. Women would have the opportunity to attend a quality educational program, enthusiastically endorsed by educators of women. Moreover, established traditions, which constitute such a significant part of that educational experience, would already exist.

b. If the Virginia Plan receives court approval, a compact agreement with Mary Baldwin College would ensure that women were receiving the benefit of a program which the court has found to be parallel to that of The Citadel. Court review of the Virginia Plan is scheduled to begin on February 9, 1994.

c. The State would not incur the capital and operating expenses inherent in developing another public institution in South Carolina.

d. As stated above, the State's investment of FTE student dollars for a student to attend Mary Baldwin would be the same as the dollars which the State would spend for that student to attend any of South Carolina's public colleges or universities. The Committee understands that Dr. Cynthia Tyson, President of Mary Baldwin College, is interested in exploring this type of collaborative arrangement. Because the demand for the proposed program is still not quantifiable, developing a strong regional program (such as has been done through the Board of Control for Southern Regional Education) potentially enhances the quality of the opportunity to a greater extent than might be achieved on a state-by-state basis.

2. Compact Arrangement With Converse College and/or Columbia College.

State support of a program with Converse College or Columbia College could be structured along lines similar to those proposed in the Virginia Plan, if approved. However, a Converse/Columbia College program might also differ in climate and content from that offered by Mary Baldwin College.41

A compact agreement with Converse College and/or Columbia College would be funded as proposed in paragraph 1, above. That is, funding for this program(s) would be provided on a per capita student basis derived by the CHE funding formula. The cost of State participation in multiple programs should not be of significant consequence because of this funding mechanism. Agreements which include Mary Baldwin College and Columbia College and/or Converse College would ensure even greater diversity in the single-gender academic opportunities available to the women of South Carolina.

Like Mary Baldwin College, Converse College and Columbia College enjoy rich histories in the education of women. Each institution has inculcated significant traditions in the learning experience, creating an academic environment particularly conducive to women's education. Each college places an emphasis on leadership development; Columbia College specifically has defined leadership program(s).42 The essential ingredients for the development of a program for women paralleling that offered to men by The Citadel appear to be present at each of these institutions.

Both Columbia College and Converse College, through their presidents, have articulated to the Committee concerns that a program which is too adversative in nature may not provide an optimum environment for the education of women and would, thus, be inconsistent with the missions of the respective institutions. That is not to say that either is opposed to a structured educational program including opportunities for military training. The Committee believes that any program which is developed should include military career opportunities and this objective can be accomplished through the ROTC programs at each school.

Regardless of the institution at which a program may be located, the Courts may require the development of a discrete program (i.e., distinct from the general enrollment of the college), which combines academic disciplines and leadership training.43 The Committee believes that a program should belong to the institution at which it is developed. The State should have three fundamental assurances: 1) that the program fulfills the State's legal responsibilities to provide a single-gender educational experience to the women of South Carolina; 2) that the program is pedagogically sound; and 3) that there is a reasonable system of accountability ensuring the prudent expenditure of public funds. Since the State is already experienced in funding programs at private institutions, establishing a reporting system should be easily accomplished.
IV. Continued (Enhanced) Commitment to Women's Colleges through Grant Support.

The Committee believes that, at a minimum, the State should consider a separate category of funding within the Higher Education Tuition Grants Program earmarked for South Carolina women attending Converse College or Columbia College. The level of per-student funding for this purpose should be the same FTE student level provided for cadets attending The Citadel. The basic difference between this consideration and that of the compact arrangements, proposed above, is that the compact proposals contemplate the development of a specific program of leadership training combined with the academic disciplines in which students would be required to participate in order to be eligible for state support (e.g., The Virginia Plan). This recommendation of enhanced grant support does no more than ensure comparable levels of public financial support for men and women, leaving to the professional educators the responsibility for designing the educational opportunity to be offered. This alternative, however, would assuredly require court review and approval as a "parallel program."

CONCLUSION

The process of further defining and developing alternatives for consideration by the General Assembly must be ongoing.

Review by the courts in the VMI Case, which will ultimately result in a determination of the acceptability of the Virginia Plan, will take several months to complete. The conclusions reached in this litigation will necessarily define what may be required of the State of South Carolina. The Committee stands willing to monitor developments in the pending litigation (VMI and The Citadel) and make specific recommendations based on the progress of that litigation. In the event the Virginia Plan is approved by the courts, the Committee is willing to perform a participatory role in developing a compact with Mary Baldwin College and the Commonwealth of Virginia.

Columbia College and Converse College have expressed interest in continuing to explore the development of alternative programs. However, that process within the institutions' faculties and boards is not one which can be concluded in a matter of a few months. The Committee is willing to continue to work with Columbia College and Converse College in developing a program or programs for the General Assembly's consideration.

Finally, the Committee stands ready to further assist the General Assembly as it may direct in ensuring the appropriate provision of single-gender educational opportunities for the women of South Carolina.

Respectfully submitted,
/s/Francis P. Mood, Chair
/s/Virginia Crocker Lloyd, Vice Chair
For the Committee
January 11, 1994
Columbia, South Carolina

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

v. ) No. 90-0126-R

)
COMMONWEALTH OF VIRGINIA, )

)

Defendants. )

VMI DEFENDANTS' PROPOSED REMEDIAL PLAN

It is the objective of the Plan to provide to college-age women in Virginia a state supported single-sex educational program whose graduates, like the graduates of the Virginia Military Institute ("VMI") have been educated and trained as citizen-soldiers, that is, women who are prepared for leadership positions in civilian and military life.

The United States Court of Appeals found that there are differences between single-gender and coeducational programs which justify a state's offering single-gender undergraduate higher education to its citizens. This is particularly true where the educational institution, like VMI, offers a single-gender program in a holistic educational environment. The literature and educational experts confirm that single-gender programs are especially beneficial for young women who may otherwise be denied leadership opportunities in coeducational settings. The Court found that single-gender education also has salutary consequences for sexual equality in the job market.

The Court further found that requiring a single-gender college, such as VMI which uses a holistic method of education, to become coeducational would tear at the fabric of the college's educational methodology. As stated by the Court, tho Catch-22 is that members of the opposite sex who are denied the opportunity to attend a college such as VMI, cannot obtain the educational benefits of that college's program because their admission would destroy the single-gender environment which is the key to the success of the educational program.

Consequently, under the ruling of the Court of Appeals, for Virginia to provide an educational opportunity for women to become citizen-soldiers comparable to that enjoyed by men at VMI, the Commonwealth must establish a single-gender educational environment and program which provides leadership experiences, character development and military training opportunities for women. Through such a single-gender program, the Commonwealth can provide a parity of opportunities and results for both genders.

Consistent with the foregoing objective and in accordance with the direction of the United States Court of Appeals for the Fourth Circuit, the Virginia Military Institute defendants propose the following Plan. The VMI defendants submit that this Plan conforms to the Equal Protection Clause of the Fourteenth Amendment and request that the Court approve the Plan and order its implementation in accordance with the timetables set forth below.

The Plan proposes to institute a unique and innovative state-supported leadership program for women at Mary Baldwin College (MBC) through a contract for services with the Commonwealth of Virginia and VMI. The program will be an intensely physical and rigorous option for women who seek to become citizen-soldiers. It incorporates those components of the VMI program that experts in women's education have determined appropriate to educating women as citizen-soldiers, and adds other programmatic elements designed to achieve for women the qualities VMI inculcates in men.

Complementing the proposed new single-gender program and assuring the opportunity for women who wish to participate in a holistic program in a coeducational setting, the Plan also proposes enhanced opportunities for women in Virginia Polytechnic Institute and State University's (Virginia Tech) coeducational undergraduate military program. Virginia Tech is a coeducational public institution of higher education in Blacksburg, Virginia.

The purpose of the Plan is to provide to the women of the Commonwealth of Virginia the educational choices of (i) a single-sex program comparable to the physically and mentally rigorous single-sex program of VMI, but uniquely and innovatively designed to develop and prepare women to assume leadership roles in the private and public sectors and in the military, and (ii) a coeducational military undergraduate program similar to the program that would be developed at VMI if VMI were to become coeducational.

As envisioned by the Court of Appeals, the Plan represents a "creative option" to remedy the shortcomings gleaned by the Court. In accordance with the recommendation of the Commission on the University of the 21st Century, the Plan utilizes a public-private partnership and provides for a sharing of resources, facilities, faculties and educational expertise among VMI, MBC and Virginia Tech.

The Plan recognizes, as the Court of Appeals stated, that "men and women are different, and our knowledge about the differences, physiological and psychological, is becoming increasingly sophisticated." Consequently, the Plan seeks to utilize educational methodologies that are appropriate to women and which will be educationally superior to any artificially parallel or "separate but equal" VMI for women. The Plan will provide a "distinct and superior" program for women.

Because the Plan seeks to achieve for women the same educational goals promoted at VMI, the Plan includes educationally sound adaptations of the VMI methodology to meet the distinctive developmental characteristics and educational needs of women. For example, the uncontroverted evidence in the VMI litigation established that the so-called "adversative" model of education is developmentally unsuitable for the vast majority of female students. Under this model, which is not widely in use today, stress is purposely induced in order to modify value systems and behavior. VMI's program employs certain extreme forms of adversative methodology, most notably the "rat line" to which first-year students are subjected and the minute regulation of behavior and the constant scrutiny that are products of the 24-hour barracks lifestyle. For males, this experience is conducive to the development of confidence and self-esteem.

The Plan departs from these extreme adversative aspects of the VMI program for this educationally compelling reason: Without such departures, the program would attract fewer female students and would benefit them less. For females, the adversative model is not conducive to the development of confidence and self-esteem. Therefore, guided by experts in women's education, the Plan incorporates some differences in methodology from VMI's for the purpose of replicating for women the same opportunities to develop confidence and self-esteem as VMI offers to men. In all other significant respects, the Plan tracks the VMI methodology and provides for citizen-soldier leadership training and character development through active participation in leadership positions. Leadership is best learned through "hands-on" training opportunities, and the program to be established pursuant to the Plan will stress such opportunities in a physically and mentally rigorous holistic environment.

The Plan combines an innovative leadership program and an expanded array of educational choices in furtherance of the Commonwealth of Virginia's policy of diversity in higher education. Under the Plan, both women and men in the Commonwealth will have the choice of state-supported single-sex and coeducational higher education, making the higher education of the Commonwealth of Virginia the most diverse system in the Nation.

Virginia Women's Institute for Leadership

Pursuant to the Plan, MBC will establish a state supported four-year residential undergraduate leadership program for women. Like VMI, its mission will be to provide a single-sex academic program that develops citizen-soldiers by emphasizing character development, military training, physical fitness, and leadership training. The program will be designated the Virginia Women's Institute for Leadership ("Institute for Leadership"). It will be modeled on an understanding of the VMI methodology and designed to achieve the same results as VMI, but it will be uniquely structured by experts in women's education to prepare women for leadership roles. The program will offer to women the same benefits of single-sex education offered to men at VMI and promises to attract enough matriculants to make the program viable and beneficial.

Subject to General Assembly approval, the program will be state-supported through a contract for services by which the Commonwealth of Virginia will commit to provide funding. VMI will commit to provide programmatic support, faculty and facilities. In addition, MBC and VMI will establish a joint advisory board to facilitate collaboration between their administrations, faculties and students in the further enhancement of each institution's single-sex leadership program.

Mission. As discussed by the Government's expert at trial, VMI has five goals -- (1) education, (2) military training, (3) mental and physical discipline, (4) character development, and (5) leadership development. The mission of the Institute for Leadership is to fulfill each of these five goals by producing "citizen-soldiers who are educated and honorable women, prepared for the varied work of civil life, qualified to serve in the armed forces, imbued with love of learning, confident in the functions and attitudes of leadership, and possessing a high sense of public service." The mission is comparable to and derived from the mission statement of VMI.

Program Development. According to the Government's expert, VMI uses eight "educational" systems to achieve its mission and five goals: (1) academic system, (2) military system, including ROTC and military lifestyle, (3) student enforced honor code, (4) class system including student mentoring program, (5) rat system, (6) athletic system, (7) lifestyle system, and (8) extracurricular system. To the extent educationally beneficial for women, the Institute for Leadership program will adopt certain VMI systems as explained below. The development of the Institute for Leadership program is under the direction of Dr. Cynthia H. Tyson, president of MBC. A Institute for Leadership Program Development Committee will be appointed by Dr. Tyson to be chaired by Dr. James Lott, Dean of the College, and to include faculty and administrators. VMI will consult in the development of the program. The development of the Institute for Leadership was approved by the Executive Committee of the Board of Trustees of MBC on July 29, 1993. The full Board of Trustees has been polled and approves the program development.
Program Components:

a. Academic Curriculum. Like VMI students, Institute for Leadership students will complete the general education requirements of their college and will elect an academic major from the areas outlined in the MBC catalog. Institute for Leadership students will also be required to complete core and elective courses in leadership, equivalent to a minor. The Leadership curriculum will be developed by a faculty committee of MBC, appointed and chaired by the Dean of the College. It will draw upon the curriculum of successful programs in leadership, the experiences in leadership education at VMI, and the experiences of experts in women's education at MBC. Topics under consideration include Issues of Leadership in Business, Government and Voluntary Service; Interpersonal Communication; Organizational Behavior; Ethics; Mediation; and Issues of Women and Leadership.

b. Military Training. Like VMI students, Institute for Leadership students will be required to participate in four years of ROTC courses and training through cross-enrollment in one of the VMI ROTC programs. Courses will be taught and training exercises will be conducted by the VMI faculty. The Institute for Leadership students will function as a military corps of cadets in ROTC training, field exercises including parades and training exercises, and participation in the Virginia Corps of Cadets. ROTC training will include two hours weekly of academic education and one hour weekly of military drill. In addition, field training exercises will be required.

To the same extent as VMI cadets, Institute far Leadership students will participate in ROTC summer camp, a military training camp, during the summer between their second and third years at MBC.

Institute for Leadership students, like VMI cadets, will not be required to accept a commission, if offered, upon graduation. Subject to Title IX constraints, MBC and VMI will seek opportunities for their cadets in the ROTC programs to participate in joint training exercises including field training.

c. Honor Code. Like VMI, there is a strict, student administered honor code.

d. Class System. Like VMI, regulations for residential life will be established by the Institute for Leadership students through class officers and committees. Institute for Leadership students will also participate in the class system of student government at MBC. Like VMI, the class system of student governance will include a structured mentoring program of new students by more senior students. Community service projects will be developed and implemented by the students.

e. Rat System. Unlike VMI, Institute for Leadership will not utilize a rat line, which is an extreme part of VMI's form of adversative education. Institute for Leadership will, however, achieve the mental toughness goal through its cadre week, rigorous physical training program, student regulated residence hall life, honor code, ROTC program, and intensive academic program including externship requirement. The combination of these systems will achieve the same results for the Institute for Leadership students as the rat training system in the development of mental discipline and the capacity to solve problems, all of which are critical to leadership qualities for men and women.

f. Physical Training. Like VMI, Institute for Leadership students will be required to take and pass eight semesters in a rigorous physical education program, including a physical fitness test, that will be as demanding for the women in Institute for Leadership as the VMI physical education program and test are for the men at VMI. The VMI physical education department will provide assistance to the MBC physical education department in the development and implementation of the program and test. VMI will also share with MBC its unique physical education facilities, including its confidence-building exercises and obstacle course. MBC also offers an intercollegiate athletics program. While rigorous and intense, the physical training component will be designed to promote the students' confidence in themselves and in their ability both to lead and to work together.

g. Residence. Institute for Leadership students will reside together in separate housing on the MBC campus as a condition to graduation. MBC anticipates using the former Staunton Military Academy barracks for housing when the program reaches fifty participants. Regulations will be designed to enhance and promote an esprit de corps for students in the program. Unlike VMI, the residence hall will not be operated on a military format but will afford leadership experiences in governance and mentoring relationships.

h. Extracurricular. Like VMI, MBC offers a full range of extracurricular programs which provide opportunities for leadership skills, character development and general educational and cultural enhancement.

i. Cadre Week Orientation. Like VMI, MBC will require each entering Institute for Leadership cadet to participate in a physically rigorous, confidence-building, motivational orientation program for a period of time not less than one week during the summer before commencing participation in Institute for Leadership. VMI will assist in the development of the orientation program and will provide personnel and facilities for the administration of the program on the VMI post. The orientation program will be administered by third and fourth year students, as VMI cadets administer Cadre Week for Rats. VMI and MBC will explore whether opportunities exist for joint participation in discrete aspects of the orientation program.

j. Externship. Institute for Leadership students will be required to develop and participate in an externship designed to provide each student with a first-hand perspective on leadership in the private or public sector, including the military services. The externship will last up to a full semester and will provide on-site educational and leadership experiences in the working world.

Enrollment. MBC currently enrolls 650 residential undergraduate female students and has the existing academic and residential capacity to enroll 100 - 150 additional students. MBC believes it has the facilities to respond to any additional demand that the program may generate.

Admission. Admission to the program will be available to female applicants who meet the academic and other qualifications for admission to MBC, which are comparable to the admission requirements of VMI. Students must also meet the physical qualifications for participation in the required four-year physical education program and all eligibility requirements for the required four-year ROTC program. Students must also commit to the residential requirements of the Institute for Leadership. Admission determinations will be made by the Admissions Office of MBC.

State Support. MBC proposes to offer the program pursuant to a contract for services between and among MBC (directly or through a subsidiary entity), the Commonwealth of Virginia and VMI. The contract for services concept was proposed by the Commission on the University in the 21st Century, which recommended that "private colleges and universities should be encouraged to expand enrollment (in response to projected increases of college-bound students) supported by the Tuition Assistance Grant Program and the contract for services program."

Subject to General Assembly approval, it is proposed that the Commonwealth will fund the contract for services by a payment to MBC for each Virginia student enrolled in the Institute for Leadership. The per capita payment will be equal to the current annual appropriation per cadet at VMI. The state funding is expected to result in an out-of-pocket cost to a Virginia Institute for Leadership student that is no greater than the cost to a male cadet to attend VMI. To the extent the Commonwealth funds scholarship support from the General Fund, Institute for Leadership students who are Virginia residents will also be eligible for the same state financial aid program as VMI cadets.

Recruiting. MBC will recruit students to the Institute for Leadership through both its general recruiting program and a special recruiting effort targeted to Virginia high school female juniors and seniors who can be identified as interested in the type of rigorous curriculum and co-curricular program that the Institute for Leadership will offer. For this purpose, MBC will use its admissions office and the services of a professional recruitment and marketing firm. The Institute for Leadership will be advertised in the general recruiting materials and in special recruiting materials to be developed. The Institute for Leadership director will work with the MBC Admissions Office and, together with Institute for Leadership students, will participate in college night and other recruitment programs. The VMI Admissions Office will provide Institute for Leadership brochures and application forms to female students who make admission inquiries to VMI and will forward such inquiries to the MBC Admissions Office. The VMI Admissions Office and VMI Alumni Association will promote the Institute for Leadership in its recruiting on behalf of VMI. MBC will provide comparable services for VMI by providing VMI admissions information to any male student who makes admission inquiries at MBC.

Program Administration. It is anticipated that the Institute for Leadership will be administered by a Institute for Leadership director to be appointed by Dr. Tyson, subject to the approval of the MBC Board of Trustees. The Institute for Leadership Director will report to the Dean of the College.

Degree. Students who successfully complete the Institute for Leadership program will receive a bachelor's degree from MBC. MBC students completing the Institute for Leadership program and VMI students completing the course of study at VMI will receive a certificate of completion of their respective leadership programs to be jointly awarded by MBC and VMI through the Joint Advisory Board in Leadership Education. No student may receive a certificate until he or she shall have successfully fulfilled the requirements of the leadership program.

Endowment. An endowment will be established at MBC to support the Institute for Leadership program pursuant to an agreement between Mary Baldwin College and the VMI Foundation.

Assessment. MBC has an on-going student assessment program which will be expanded to track the development of Institute for Leadership students and the performance of program participants as citizen-soldiers.

Joint Advisory Board on Leadership Education. MBC and VMI will establish a Joint Advisory Board on Leadership Education, to include members of the Boards of Visitors and Trustees, administrators and faculty from each institution. The Joint Advisory Board shall advance the concept of citizen-soldier and leadership training by:

a. providing for scheduled co-curricular programs, including a joint calendar of lectures, conferences and workshops, at the George C. Marshall Foundation, the Woodrow Wilson Birthplace, and elsewhere, to be jointly attended by Institute for Leadership students and VMI cadets, and other jointly attended weekend co-curricular programs including joint ROTC field training opportunities;

b. providing for faculty exchanges between MBC and VMI;

c. providing for the mutual exchange of experiences in the development and further enhancement of the single-sex leadership program at each institution;

d. providing a vehicle for further support and assistance to each institution's leadership program;

e. providing a forum for comparative assessment of the students in the respective programs;

f. initiating and supporting research into single-sex leadership programs;

g. reporting annually on the leadership development programs at each institution and the results of leadership education research conducted under its auspices; and

h. seeking grants and other funding for such research and for program enhancement at each institution.

Contingencies. Upon court approval of the Plan, the following actions will be necessary to implement the Institute for Leadership:

a. General Assembly funding of the contract for services. If court approval is granted, funding will be requested in the 1994 session of the General Assembly;

b. Approval of cross-enrollment in the ROTC programs at VMI by the respective Federal services; and

c. Completion of the program development by MBC faculty and administration, as outlined above.

Timetable. It is proposed that the Institute for Leadership program will commence with the next academic year that begins at least six (6) months after General Assembly funding of the program and exhaustion of all appeals.

Virginia Corps of Cadets Unit

at Virginia Tech, VMI and Mary Baldwin College

Virginia Corps of Cadets. The Plan recommends that the General Assembly create the Virginia Corps of Cadets to be constituted of the following three administratively separate units: the Virginia Tech Corps of Cadets (which admits men and women), the VMI Corps of Cadets (which admits men), and the Institute for Leadership ROTC cadet program (which admits women). The Governor shall be the commander-in-chief of the Virginia Corps of Cadets.

State Cadetships. Under Code of Va. Section 23-105, the Commonwealth of Virginia has authorized fifty state cadetships annually to members of the VMI Corps of Cadets which provide free tuition and board. Subject to General Assembly approval, it is proposed that the state cadetships be allocated to VMI, Virginia Tech and MBC as they may determine for award to members of their respective corps of cadets as the three institutions may determine in their discretion.

Unique Military Appropriation. The Commonwealth of Virginia has provided an annual unique military appropriation (UMA) to VMI which is used primarily to pay the cost of uniforms. Subject to General Assembly approval, it is proposed that a UMA be awarded to the Virginia Corps of Cadets to be shared equally per capita by the Virginia Tech Corps of Cadets and the VMI Corps of Cadets and the MBC ROTC program to cover the costs, if any, of uniforms to participating students. Any portion of the UMA remaining after uniform costs shall be allocated per capita for use in supporting the military training programs of the three participating institutions.

Program Collaboration. The Superintendent of VMI, the Commandant of Virginia Tech and the Director of MBC's Institute for Leadership program will review their respective cadet corps programs, and share information which will promote the Virginia Corps of Cadets. They shall also seek opportunities for joint participation in training exercises, competitions, and parades as the Virginia Corps of Cadets.

Recruiting. VMI, Virginia Tech, and MBC will recruit for both their respective cadet programs and for the Virginia Corps of Cadets. VMI will refer to Virginia Tech and MBC the names of all females who make inquiry regarding admission to VMI.

Timetable. It is proposed that the Virginia Corps of Cadets program will commence upon General Assembly approval and the exhaustion of all appeals. The MBC ROTC program will become a part of the Corps upon enrollment of the class in the Institute for Leadership program.

Conclusion

The proposed Plan addresses directly the equal protection guidelines established by the Court of Appeals for the Fourth Circuit. It cures the absence of a VMI-type program for women by providing for a state-supported single-sex program designed to achieve for women the same citizen-soldier leadership and character results that VMI achieves for men. Combining the expertise of women educators and adapting appropriate elements or the VMI methodology, the Institute for Leadership represents a creative option that is educationally superior to admitting women to VMI or establishing a superficially parallel VMI for women. The Institute for Leadership will represent an educationally sound women's coordinate college of VMI.

The Plan also resolves the Catch-22 identified in the Court of Appeals' opinion. Under the Plan, the Commonwealth will provide a co-educational corps of cadets at Virginia Tech and unique single-sex programs with similar missions and appropriately developed methodologies for both men and women. The Commonwealth of Virginia thereby will have achieved for its young people unparalleled diversity in higher education consonant with the requirements of equal protection.

Respectfully submitted,
VIRGINIA MILITARY INSTITUTE, ITS BOARD OF VISITORS, SUPERINTENDENT, THE VMI FOUNDATION, INC. AND THE VMI ALUMNI ASSOCIATION

By: /s/Robert H. Patterson, Jr. (VSB #05796)
Anne Marie Whittemore (VSB #09221)
William G. Broaddus (VSB #05284)
J. William Boland (VSB #23548)
Frank B. Atkinson (VSB #21875)
McGUIRE, WOODS, BATTLE & BOOTHE
One James Center
Richmond, Virginia 23219
(804) 775-1000

The Honorable Griffin B. Bell
William A. Clineburg, Jr., Esquire
KING & SPALDING
191 Peachtree Street
Atlanta, Georgia 30303-1763
(404) 572-4600

William B. Poff, Esquire (VSB #03477)
WOODS, ROGERS & HAZLEGROVE
Dominion Tower, Suite 1400
10 South Jefferson Street
Roanoke, Virginia 24011
(703) 983-7600

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been sent by courier this 27th day of September, 1993 to:
D. Judith Keith, Esquire
Educational Opportunities
Litigation Section
Civil Rights Division
U.S. Department of Justice
P. O. Box 65958

Washington, D.C. 20035-5958

I also certify that copies of the foregoing have been sent by first class mail this 27th day of September, 1993 to the following attorneys:
James A.L. Daniel, Esquire
Daniel, Vaughan, Medley & Smitherman, P.C.

P. 0. Box 720

Danville, Virginia 24543-0720

Walter A. McFarlane, Esquire

Office of the Governor

State Capitol

Richmond, Virginia 23219

James A. Dunbar, Esquire

Venable, Baetjer and Howard

1800 Mercantile Bank & Trust Building

2 Hopkins Plaza

Baltimore, Maryland 21201

William R. Rakes, Esquire

Gentry, Locke, Rakes & Moore

800 Crestar Plaza

P. 0. Box 1018

Roanoke, Virginia 24005

/s/J. William Boland

(On motion on Senator WILLIAMS ordered printed in the Journal of Friday, January 14, 1994.)

THIRD READING BILLS

The following Bills were read the third time and ordered sent to the House of Representatives:

S. 1012 -- Senators Hayes, Peeler, Gregory and Short: A BILL TO DESIGNATE THE BOUNDARIES OF YORK SCHOOL DISTRICT 1, CLOVER SCHOOL DISTRICT 2, ROCK HILL SCHOOL DISTRICT 3, AND FORT MILL SCHOOL DISTRICT 4, ALL LOCATED IN YORK COUNTY.

(By prior motion of Senator HAYES)

S. 1023 -- Senator Macaulay: A BILL TO AMEND CHAPTER 5, TITLE 48, CODE OF LAWS OF SOUTH CAROLINA, 1976, THE SOUTH CAROLINA WATER QUALITY REVOLVING FUND AUTHORITY ACT, SO AS TO REVISE AND CLARIFY DEFINITIONS.

(By prior motion of Senator MACAULAY)

ADJOURNMENT

At 11:40 A.M., on motion of Senator GIESE, the Senate adjourned to meet next Tuesday, January 18, 1994, at 12:00 Noon.

1 Anne Zanders, "A Presentation of the Arguments for and against Single-Sex Schooling," reported in Single-Sex Schooling: Perspectives from Practice and Research, A Special Report from the Office of Educational Research and Improvement, U.S. Dept. of Ed., Vol. I (December 22, 1992). See Department of Education Report, supra, which contains the following articles: Vol. I: Gilbert, Edes P., "Girls' Schools: Laboratories in Progress"; Hawley, Richard, "A Case for Boys' Schools"; Zanders, Anne, supra; Bednall, John, "Let's Test the Assumptions and Examine Some Realities"; Felker, Roberta, "The Gestalt of a Women's High School: 'Greater than the Sum of its Parts'"; Lee, Valerie, "Single-Sex Schooling: What is the Issue?"; Riordan, Cornelius, "The Case for Single-Sex Schools"; Tidball, M. Elizabeth, "Educational Environments and the Development of Talent"; Yuh_sz, Patricia, "The Development of Talent in a Southern Women's College." Vol. II: Hollinger, Debra, "Introduction"; Moore, Mary; Piper, Valarie; Schaefer, Elizabeth, "Single-Sex Schooling and Educational Effectiveness: A Research Overview"; and Moore, Mary, "Conference Summary."
2 Anne Zanders, "A Presentation of the Arguments for and against Single-Sex Schooling," supra; Mahan and Mahan, "The Citadel: The Case for Single-Gender Education," 1993, citing: Buck, R. (1988). Human Motivation and Emotion, 2d ed. NY:John Wiley.
Ong, W. (1981). Fighting for Life: Contest, Sexuality and Consciousness. Ithaca, NY:Cornell.
Bly, R. (1990). Iron John: A Book about Men. Boston: Addison-Wesley.
Newcomb, T. (1953). "An Approach to the Study of Communicative Acts," Psychological Review; 60, 393-404.
Kelman, H. (1961). Social Influence and Personal Belief. NY:John Wiley.
Deaux, K. (1985). "Sex and Gender," Annual Review of Psychology.
Deci, E. and Ryan, R. (1985). Intrinsic Motivation and Self-Determination in Human Behavior. NY:Plenum Press.
Gilligan C., Lyons, N. and Hanmer, T. (1990). Making Connections: The Relational Worlds of Adolescent Girls at Emma Willard School. Cambridge, MA:Harvard.
3 Mahan and Mahan, supra.
4 See Deposition Testimony of Dr. Cynthia H. Tyson, President, Mary Baldwin College, at 190-91, taken in the case of United States v. Virginia, Civil Action No. 90-0126-R (W.D. Va. 1993) (hereinafter the "VMI Case").
5 Committee Conference with Dr. McDaniel and Dr. Mitchell, October 20, 1993.
6 1842 Stat. at Large.
7 1891 Stat. at Large.
8 See Footnote No. 18 at page 10. Clemson University established residence halls for women in 1963.
9 Deposition Testimony of Dr. Charles B. Vail at 28-29 in Johnson v. Jones, Case No. 2:92-1674-2 (D.C.S.C.) (hereinafter "The Citadel Case"); Rock Hill Herald, p.2, March 13, 1974.
10 Rock Hill Herald, pp. 2,4, March 1, 1974; p. 1, March 13, 1974.
11 See Odom, Jane Harris, "The Struggle for Coeducation at Winthrop College: Two Decades of Progress" [A Thesis for Master of Arts in the Department of History] May, 1982 [Winthrop University Archives].
12 See Moore, Piper and Shaefer, "Single-Sex Schooling and Educational Effectiveness: A Research Overview," Special Report from the Office of Education, Vol. II (1992); see also Odom, supra; Rock Hill Herald, p. 4, March, 1974; Miller, J., "The Future of Private Women's Colleges," Harvard Women's Law Journal (Vol. 7, 1984).
13 See Odom, supra; Rock Hill Herald, p. 2, March 11, 1974; p. 5, May 5, 1974.
14 See Odom, supra.
15 Zanders, Anne, "A Presentation of the Arguments for and against Single-Sex Schooling"; Bednall, John, "Let's Test the Assumptions and Examine some Realities"; Lee, Valerie, "Single-Sex Schooling: What is the Issue?"; U.S. Dept. of Ed. Special Report, Vol. 1, supra. See also Miller, J. supra, Harvard Women's Law Journal, Vol. 7 ("In fact, women's colleges may be the only place where women can develop and implement their own definition of mentality in every part of the University." (emphasis in original) at 182; "A 90's Resurgence for Women's Colleges," USA Today, Feb. 16, 1993.
16 See Brief Amici Curiae of Wells College, Randolph-Macon Woman's College, SweetBriar College and Hollins College; Brief of Mary Baldwin College, Saint Mary's College and Southern Virginia College for Women, as Amici Curiae; and Brief Amici Curiae on behalf of Women's Washington Issues Network, Women for VMI, Frank F. Hayden and Oscar W. King, all filed in United States v. Virginia, supra.
17 See Odom, supra.
18 Coker College, Lander College, and Limestone College, formerly colleges for women in South Carolina, became coeducational in 1969, 1947, and 1965, respectively. Residence halls for men were established at Coker College in 1969; at Lander College in 1968; and at Limestone College in 1969. Also, previously men's colleges, Presbyterian College and Wofford College, became coeducational institutions in 1965 and 1975, respectively.
19 See 1990-1991 Annual Report of the Higher Education Tuition Grants Commission; 1991-1992 Annual Report of the Higher Education Tuition Grants Commission. The state has also funded specific programs and projects at these institutions. [Conference with Dr. McDaniel and Dr. Mitchell, supra.]
20 1991-1992 Annual Report of the Higher Education Tuition Grants Commission.
21 See Public Interest No. 2, Concurrent Resolution.
22 This same conclusion apparently was reached in the development of a proposed program for women in Virginia. No market study was done there. Tyson Deposition, supra, at 207. It would seem very important that a program be designed and located so that it would be successful if the number of students is small, as well as capable of accommodating expanding or larger numbers of students when required.
23 Converse College Admissions Office. All statistics quoted are for South Carolina residents only.
24 Columbia College Admissions Office. All statistics quoted are for South Carolina residents only.
25 South Carolina Higher Education Tuition Grants Commission. Only South Carolina residents are eligible for participation in this program.
26 Converse College Admissions Office. All statistics quoted are for South Carolina residents only.
27 Columbia College Admissions Office. All statistics quoted are for South Carolina residents only.
28 See also Deposition of Dr. Charles Vail at 52; Deposition of Dr. Cynthia Tyson at 194-204, 221-224.
29 Admissions Office, Converse College and Columbia College.
30 Exhibit Q to Defendant's Memorandum filed June 29, 1993, in Faulkner v. Jones, supra, Civil Action No. 2:93-9488-2 ("The Citadel Case").
31 United States v. Virginia, 766 F. Supp. 1407, 1431 (W.D. Va. 1991).
32 Admissions Office, The Citadel.

For academic year 1993-94, The Citadel enrolled 1,984 students in its Corps of Cadets. Of the total Corps enrollment, fifty percent (50%) -- 990 students -- were from South Carolina. Six hundred nine (609) freshmen cadets enrolled for academic year 1993-94, of whom 308, or fifty percent (50%), were from South Carolina.

In addition to the students enrolled in the Corps of Cadets, there were 2,368 students enrolled in The Citadel's civilian college program. With few exceptions, these students are from South Carolina. Seventy-two percent (1,705 students) of the students in the civilian college are women; 23 percent (663 students) are men. These enrollment numbers do not include students taking continuing education or career development courses. Thus, of The Citadel's total enrollment of 4,387 students, sixty-one percent (61%) are men; thirty-nine percent (39%) are women; and approximately eighty-two percent (82%) are South Carolinians. Office of the Registrar, The Citadel.
33 For academic year 1993-94, 488 women enrolled at the United States Military Academy (West Point); 500 women enrolled at the United States Naval Academy; 537 women enrolled at the United States Air Force Academy; and 165 women enrolled at the United States Coast Guard Academy. Public Relations Office of each Academy.

Expert estimates of the number of women necessary to provide a good educational environment for women at a formerly all-male school range from ten percent (10%) to forty percent (40%). United States v. Virginia, supra. The federal academies became coeducational in 1976. They do not have admission fees and pay student salaries while they are enrolled. Id. Based on enrollments for the current academic year, women comprise eleven percent (11%) of the Corps at West Point, twelve percent (12%) at the Naval Academy, twelve percent (12%) at the Air Force Academy, and eighteen percent (18%) at the Coast Guard Academy.
34 "Mission Statement," 1993-94 The Citadel Catalog.
35 "Mission Statement," supra.
36 United States v. Virginia, 976 F.2d 890 (4th Cir. 1992) (VMI Case).
37 Id. at 900.
38 United States v. Virginia, Civil. Action. No. 90-0126-R (W.D. Va. 1993), Transcript of Proceedings before Hon. Jackson L. Kiser, Chief United States District Judge, Western District of Virginia, August 9, 1993, at 3.
39 Concurrent Resolution, 3: Policy of Autonomy, provides:

In the system of higher education in place in South Carolina, each institution of higher learning is governed by a board of trustees which governs the institution subject to the general law and in conjunction with the Commission on Higher Education. The General Assembly has directed the Commission on Higher Education and the state's institutions of higher learning to seek to create an environment in which each institution can pursue its own mission within the broader statewide framework.

The General Assembly as part of its stated public policy of allowing each institution the autonomy within certain guidelines to develop individualized mission statements and programs, has therefore determined that it is consistent with its stated policy of institutional autonomy for an institution to offer a single-gender opportunity accomplished through the enactment of such vehicles as specific admission requirements based on gender or other similar requirements.

See also, Commission on Higher Education: A Plan for Higher Education in the 1990's.
40 Since this alternative is not presently practicable for the reasons stated, the Committee has not undertaken to determine the extent to which, if at all, The Education Act Amendments of 1972, Pub.L.No. 92-318, Tit. IX, 901, 86 Stat. 373(1972), 20 USCA 1681(199)(Title IX), presents an impediment to starting a new public institution for women.
41 Although the Mary Baldwin program has received substantial endorsement among educators, Dr. Mitchell and Dr. McDaniel, Presidents of Columbia College and Converse College, respectively, believe that the same educational and leadership objectives can be obtained in environments specifically designed for their institutions. If the State had no compact agreement with Mary Baldwin College and the program(s) at Columbia and/or Converse differed from that offered by Mary Baldwin, it is likely that court approval would have to be obtained. However, a compact with Mary Baldwin College for participation in a court-approved program should satisfy any requirement for an opportunity parallel to that offered by The Citadel, thereby making further arrangements with Columbia College and Converse College additional opportunities over and above any minimum requirements which the State might have to meet.
42 Conference with Dr. McDaniel and Dr. Mitchell, supra.
43 See Appendix 2.

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