0001 1 JUDICIAL MERIT SELECTION 2 COMMITTEE 3 4 EVALUATION OF CANDIDATES BY COMMITTEE MEMBERS 5 6 7 PUBLIC HEARING ON JUDICIAL QUALIFICATIONS 8 VOLUME III - AM SESSION 9 10 11 WEDNESDAY, NOVEMBER 4, 2009 ROOM 209, GRESSETTE BUILDING 12 COLUMBIA, SOUTH CAROLINA 13 14 15 16 REPORTED BY: KIMBERLY T. POWER, COURT REPORTER 17 18 19 20 21 ------------------------------------------------- 22 COMPUSCRIPTS, INC. A Full-Service Court-Reporting Agency 23 Post Office Box 7172 Columbia, South Carolina 29202 24 803-988-0086 1-888-988-0086 25 www.compuscripts.com 0002 1 MEMBERS IN ATTENDANCE: 2 SENATOR GLENN F. MCCONNELL, CHAIRMAN 3 REP. F.G. DELLENEY, JR., VICE CHAIRMAN 4 SENATOR FLOYD NICHOLSON 5 PROFESSOR JOHN P. FREEMAN 6 JOHN DAVIS HARRELL 7 SENATOR JOHN M. "JAKE" KNOTTS, JR. 8 AMY JOHNSON MCLESTER 9 REPRESENTATIVE ALAN D. CLEMMONS 10 REPRESENTATIVE DAVID J. MACK, III 11 H. DONALD SELLERS 12 13 COUNSEL PRESENT: 14 JANE O. SHULER, CHIEF COUNSEL 15 PATRICK G. DENNIS 16 BONNIE B. GOLDSMITH 17 ANDREW T. FIFFICK, IV 18 J.J. GENTRY 19 E. KATHERINE WELLS 20 NANCY COOMBS 21 HEATHER ANDERSON 22 PAULA BENSON 23 JOEL DEASON 24 RICK FULMER 25 0003 1 REP. DELLENEY: Okay. We have a quorum here. 2 I've got Mr. Representative Clemmons' proxy. It looks 3 like we've got a full house. Staff tells me that we 4 have some matters to take up in executive session. Is 5 there a motion for executive session? 6 SEN. KNOTTS: So move. 7 REP. DELLENEY: Second? 8 REP. MACK: Second. 9 REP. DELLENEY: All right. We are now in 10 executive session. 11 (The members went into executive session.) 12 * * * * * 13 (The members came out of executive session.) 14 (Frederick Scott Pfeiffer enters the 15 room.) 16 CHAIRMAN MCCONNELL: Good morning, 17 Mr. Pfeiffer. 18 MR. PFEIFFER: Good morning. 19 CHAIRMAN MCCONNELL: This morning we have 20 with us today Mr. Frederick Scott Pfeiffer who seeks a 21 position on the Administrative Law Court, Seat Number 6. 22 Mr. Pfeiffer, if you would, please raise your right hand 23 to be sworn. 24 FREDERICK SCOTT PFEIFFER, being duly 25 sworn, testified as follows: 0004 1 CHAIRMAN MCCONNELL: Thank you, sir. The 2 Judicial Merit Selection Commission has thoroughly 3 investigated your qualifications for service on the 4 bench. Our inquiry is primarily focused on nine 5 evaluative criteria which have included a survey of the 6 bench and bar, a thorough study of your application 7 materials, verification of your compliance with state 8 ethics laws, and a search of any newspaper articles in 9 which your name may have appeared, and a study of any 10 previous screenings and a check for any economic 11 conflict of interest. We have no affidavits filed in 12 opposition to your election, nor are there any witnesses 13 here to testify. 14 Do you have a brief opening statement you'd 15 like to make? 16 MR. PFEIFFER: I would just like to thank the 17 commission for their consideration. It's been a good 18 process. Everyone has been very kind. It's been my 19 first time going through it. I've learned a lot, and I 20 look forward to your questions. 21 CHAIRMAN MCCONNELL: Thank you, sir. If you 22 would, answer any questions our able counsel has for you 23 at this time. 24 MR. PFEIFFER: Thank you. 25 MS. ANDERSON: Mr. Chairman and members of 0005 1 the commission, I have a few procedural matters to take 2 care of with regards to Mr. Pfeiffer. 3 Mr. Pfeiffer, you have before you the 4 personal data questionnaire you submitted as part of 5 your application. Are there any amendments that you 6 would like to make at this time? 7 MR. PFEIFFER: I did make three amendments 8 after the initial submission. I revised section number 9 nine to correct my military school graduation date. I 10 revised section 27 to include my minority ownership in a 11 limited liability company that owns a vacation 12 condominium, and I revised section 34 to give more 13 details on the two lawsuits that I was previously named 14 in. 15 MS. ANDERSON: Mr. Chairman, I would like to 16 ask that Mr. Pfieffer's personal data questionnaire be 17 entered as an exhibit into the hearing record. 18 CHAIRMAN MCCONNELL: It will be done without 19 objection at this point in the transcript. 20 (Exhibit 7, Personal Data Questionnaire 21 of Frederick Scott Pfeiffer, admitted.) 22 MS. ANDERSON: Mr. Pfeiffer, you have before 23 you the sworn statement you provided with detailed 24 answers to over 30 questions regarding judicial conduct, 25 statutory qualifications, office administration, and 0006 1 temperament. Are there any additional amendments that 2 you would like to make at this time to your sworn 3 statement? 4 MR. PFEIFFER: No, there are not. 5 MS. ANDERSON: Mr. Chairman, I would like to 6 ask that Mr. Pfeiffer's sworn statement been entered as 7 an exhibit into the hearing record. 8 CHAIRMAN MCCONNELL: It will be done without 9 objection. 10 (Sworn Statement of Frederick Scott 11 Pfeiffer, admitted as part of Exhibit 7.) 12 MS. ANDERSON: One final procedural matter. 13 I note for the record that based on the testimony 14 contained in the candidates PDQ, which has been included 15 in the record with his consent, Mr. Pfeiffer meets the 16 statutory requirements for this position regarding age, 17 residence, and years of practice. 18 BY MS. ANDERSON: 19 Q. Mr. Pfeiffer, why do you want to serve as an 20 administrative law court judge? 21 A. I would like to serve as administrative law 22 court judge because I think I can bring a unique 23 viewpoint to that court. I have spent the last 15 years 24 of my career representing small businesses and 25 entrepreneurially-owned. I think that small 0007 1 entrepreneurially-owned businesses are the backbone of 2 South Carolina's economy, and the administrative 3 regulations effect small businesses in a lot of ways. 4 And I think having a judge on the bench that comes from 5 that background rather than from a large firm background 6 or from an administrative agency background would 7 provide some unique insight into the court and would -- 8 and would be an advantage to the state. 9 Q. And I believe you just answered this 10 question, but I'll ask it in case you want to expand 11 upon it. Can you explain to the commission how you feel 12 that your legal and professional experience thus far 13 will assist you to be an effective judge? 14 A. Well, I have a broad legal experience. 15 I've -- I've been a transactional lawyer. I represent 16 small businesses, like I said, and I've helped them in 17 all -- I try to be their general counsel. I've also 18 been a litigator. I've done criminal and civil law in 19 federal and state courts and before administrative 20 bodies. I think that broad experience would bring a 21 sense of perspective to the bench that I think would be 22 valuable. 23 Q. Mr. Pfeiffer, are there any areas, including 24 subjective areas, of the law that you would need to 25 additionally prepare for in order to serve as a judge; 0008 1 and how would you handle that preparation? 2 A. I think I'm well-prepared to serve as a 3 judge. As far as, you know, rules of evidence and 4 things like that, I've taught those courses at Furman 5 University. And as far as the detailed statutory and 6 regulatory nitty-gritty, I think that's a case-by-case 7 basis, and I have an academic background. I think I'd 8 be well-suited to make good decisions. 9 Q. Mr. Pfeiffer, although you address this in 10 your sworn affidavit, could you please explain to the 11 members of the commission what you think is the 12 appropriate demeanor for a judge? 13 A. Well, sure. I think that a judge is a -- is 14 a calm decision-maker. I think you have to be in 15 control of your courtroom, but I think you need to make 16 your courtroom a pleasant place. You work there, the 17 staff works there, the attorneys that appear before you 18 work there. It should be a place where people don't 19 dread to come. I think you have a role in making sure 20 that the -- the litigants that appear before you are 21 comfortable and feel like they've been heard and that 22 their needs have been addressed so they've had their -- 23 their day in court. They've had their say. So I think 24 a judge needs to be patient and thoughtful, and that's 25 how I approach it. 0009 1 Q. And in your personal data questionnaire, you 2 mentioned that you were involved in two lawsuits as a 3 party. Could you please give the commission members 4 some details about those suits? 5 A. Yeah. The first lawsuit involved a company 6 that I worked with called Cosomo, which was a lending 7 company. It had made a loan -- actually, it issued a 8 thing called a letter of credit. The letter of credit 9 required presentment. The person holding the letter of 10 credit didn't make presentment, so we denied the letter. 11 The lawyer sued everyone who had anything to do with it. 12 The borrower that he had loaned the money to, me, 13 everybody. I was personally dismissed, you know, when I 14 made a 12(b)(6) motion to be dismissed because I really 15 had nothing to do with it other than telling him he 16 couldn't have his money. And that case was dismissed, I 17 think. They settled it. 18 And the other case had to do with a client of 19 mine, Capital One Investment Funding, which was a 20 company that raised money from the public by issuing 21 securities. It got sued in three or four different 22 lawsuits, one of which brought by two people named, 23 gosh, about 18 or 20 people, including me as the lawyer. 24 And, again, I was dismissed on a 12(b)(6). That case 25 eventually settled and a receiver was appointed. 0010 1 Q. Thank you, Mr. Pfeiffer. I have a few 2 housekeeping issues to cover with you. Have you sought 3 or received the pledge of any legislature prior to this 4 date? 5 A. No, I have not. 6 Q. Have you sought or have you been offered a 7 conditional pledge of support of any legislature pending 8 the outcome of your screening? 9 A. No, I have not. 10 Q. Have you asked any third parties to contact 11 members of the general assembly on your behalf? 12 A. No, I have not. 13 Q. Have you contacted any members of the 14 commission? 15 A. I have not. 16 Q. Do you understand that you are prohibited 17 from seeking a pledge or commitment until 48 hours after 18 the formal release of the commission's report? 19 A. I do understand that. Uh-huh. 20 Q. Have you reviewed the commission's guidelines 21 on pledging? 22 A. I have. 23 Q. And as a follow-up, are you aware of the 24 penalties for violating the pledging rules, that is it's 25 a misdemeanor and upon conviction, the violator must be 0011 1 fined not more than $1,000 or imprisonment not more than 2 90 days? 3 A. Yes, I am. 4 MS. ANDERSON: I would note that the Upstate 5 Citizens Committee reported that Mr. Pfeiffer is 6 well-qualified for each of the nine evaluative criteria. 7 In addition, the commission stated the committee is 8 impressed -- I'm sorry. And I quote, "The committee is 9 impressed with this candidate's level of experience and 10 understanding of the workings of the regulatory agencies 11 of the state and the role the ALJ plays in that 12 process." 13 MR. PFEIFFER: Thank you. 14 CHAIRMAN MCCONNELL: Does any member of the 15 commission have any questions of Mr. Pfeiffer? Senator 16 Knotts. 17 SEN. KNOTTS: Mr. Pfeiffer, would you repeat 18 to me your vision of the demeanor of a judge and how he 19 should run his courtroom? 20 MR. PFEIFFER: Sure. I think a judge needs 21 to be in charge of his courtroom, but I think he also 22 needs to make his courtroom a pleasant place to come and 23 work. I think he needs to make sure that litigants feel 24 comfortable and feel that they've been heard and heard 25 thoroughly and understood, and I think that the judge 0012 1 needs to be knowledgeable and wise and able to make good 2 and well-reasoned decisions. 3 SEN. KNOTTS: Okay. I didn't hear anything 4 about courtesy -- courtesy to the people in the 5 courtroom, and I didn't hear anything about 6 professionalism. Maybe some of the other -- you took 7 that in on some of the -- 8 MR. PFEIFFER: Well, I think, you know -- 9 SEN. KNOTTS: -- other ways you were talking. 10 But -- 11 MR. PFEIFFER: I'm sorry. 12 SEN. KNOTTS: -- we have -- what's really 13 important to me is the judges being courteous and the 14 temperament of the judge when he gets -- you know, how 15 he should handle anger or things of that nature. Would 16 you expound on that a little bit? 17 MR. PFEIFFER: Sure. I think that part of 18 making the courtroom a place where lawyers, court staff, 19 and litigants don't fear to come, but feel like they can 20 come and be heard, is that the judge treats everyone 21 with courtesy. And as managing partner in my law firm 22 for the last ten years, that's how I try to treat 23 people. I treat clients that way. I treat my staff 24 that way. I think that it's just the minimal that's 25 expected from everyone, is to treat everyone with 0013 1 courtesy and dignity and that professionalism is 2 important because people, whether they win or lose in 3 your courtroom, need to feel like they have been treated 4 well and heard and they've been heard by someone who is 5 wise and professional and took their case seriously. I 6 think that's critical. 7 SEN. KNOTTS: Thank you. 8 CHAIRMAN MCCONNELL: Professor Freeman. 9 PROF. FREEMAN: Yes, sir. You have down as 10 one of your most important cases, the Tomz, T-O-M-Z? 11 MR. PFEIFFER: That's correct. 12 PROF. FREEMAN: Versus Capital Investment 13 Funding. Who -- who were the principals in Capital 14 Investment Funding? 15 MR. PFEIFFER: The principal owner of Capital 16 Investment Funding was a gentleman named Dr. Arthur 17 Field. 18 PROF. FREEMAN: And you mentioned here that 19 you were chief counsel. Were you the chief litigation 20 counsel or general counsel to the company or Mr. Field 21 or how did that work? 22 MR. PFEIFFER: Yeah. I was not the chief 23 counsel to the company. I had represented Capital 24 Investment Funding from time to time over the years, 25 especially with regard to their securities regulatory 0014 1 issues. And then I was co-litigation counsel in the 2 Tomz case itself. 3 PROF. FREEMAN: Co-litigation counsel or 4 chief counsel? Because your -- your document here says 5 chief counsel. 6 MR. PFEIFFER: Yeah. I was the -- I was the 7 lead counsel and my partner, Ralph Gleaton, assisted me. 8 PROF. FREEMAN: And did Mr. Fields' company 9 there run into trouble on the securities aspects of its 10 dealings? 11 MR. PFEIFFER: Well, no. At the very end -- 12 the company had been around for about 15 years, and in 13 the last year it had -- every year it was required to 14 submit a prospectus for approval. And in the final year 15 of its existence when the economy went bad, it had 16 submitted a prospectus for approval and was negotiating 17 with the attorney general's office over whether they 18 were going to approve that prospectus when it decided 19 that it couldn't continue to do business and declared to 20 winding up. And after it declared a winding up, the 21 Tomz litigation sued within about a month or so. Once 22 it declared a winding up, it entered into an agreement 23 with the attorney general's office that it didn't matter 24 anymore whether they approved the prospectus. 25 PROF. FREEMAN: I take it that you saw no 0015 1 sign of any irregularities or improprieties? 2 MR. PFEIFFER: I did not. 3 CHAIRMAN MCCONNELL: Any further questions of 4 Mr. Pfeiffer? Mr. Pfeiffer, excuse my rudeness. I 5 usually do this at the beginning with everybody. Do you 6 have anybody you would like to introduce to us? 7 MR. PFEIFFER: Yes. I brought my fiance, 8 Christine Bellancough. 9 MS. BELLANCOUGH: Good morning. 10 CHAIRMAN MCCONNELL: We're so glad to see 11 you. Are there any other questions? There being none, 12 Mr. Pfeiffer, at this point we'd like to thank you for 13 your willingness to participate in this process. This 14 concludes the public hearing portion of your screening 15 process. However, up until we issue a report and it's 16 published and up until the 48-hour period expires, we 17 could, for whatever reason -- I don't expect that to 18 happen -- we could recall you and reconvene the public 19 hearing and ask you more questions. I don't anticipate 20 doing that, but that is a possibility. And I would also 21 remind you about the 48-hour rule which you have told us 22 that you know about. And I would also ask you to remind 23 anybody that seeks to advocate on your behalf about the 24 48-hour rule. 25 And with that, I'd like to thank you and your 0016 1 fiance for being here with us today and hope you have a 2 safe trip back home. 3 MR. PFEIFFER: Thank you very much. 4 CHAIRMAN MCCONNELL: All right. Next we have 5 Carol Ann McMahan. 6 (Carol Ann Isaac McMahan enters the 7 room.) 8 CHAIRMAN MCCONNELL: Good morning, Ms. 9 McMahan. 10 MS. MCMAHAN: Good morning. 11 CHAIRMAN MCCONNELL: Before we get started, 12 do you have anybody with you that you'd like to 13 introduce to us? 14 MS. MCMAHAN: Yes, sir. Thank you. Today I 15 brought my mother, Elizabeth Crisp, and my stepfather, 16 Ted Crisp. 17 CHAIRMAN MCCONNELL: We're glad to have them 18 with you. Ms. McMahan -- Carol Ann Isaac McMahan seeks 19 a position with the Administrative Law Court, Seat 20 Number 6. If you would, Ms. McMahan, please raise your 21 right hand to be sworn. 22 (CAROL ANN ISAAC MCMAHAN, being duly 23 sworn, testified as follows:) 24 CHAIRMAN MCCONNELL: Thank you, ma'am. The 25 Judicial Merit Selection Commission has thoroughly 0017 1 investigated your qualifications for service on the 2 bench. Our inquiry has primarily focused on nine 3 evaluative criteria which criteria included a survey of 4 the bench and bar, a thorough study of your application 5 materials, verification of your compliance with state 6 ethics laws, a search of any newspaper articles in which 7 your name may have appeared, a study of any previous 8 screenings, and a check for economic conflicts of 9 interest. We have no affidavits filed in opposition to 10 your election, nor are there any witnesses here to 11 testify. 12 Do you have a brief opening statement you'd 13 like to make? 14 MS. MCMAHAN: Yes, sir, I do have a brief 15 opening statement. Good morning commission members, 16 ladies and gentlemen. I'd like to thank you for the 17 honor and pleasure of being here today. I'd also like 18 to thank Ms. Shuler and Ms. Benson for their patience 19 and assistance throughout this process. Today I'd like 20 you to focus in this brief meeting we -- we are having, 21 I'd like you to focus on three points: That the 22 documents that you have before you show the wealth of 23 experience that I have, my attitude embracing change, 24 and my work ethic. Thank you so much. 25 CHAIRMAN MCCONNELL: Thank you, ma'am. If 0018 1 you would, answer any questions our counsel might have 2 for you. 3 MS. MCMAHAN: I certainly will. 4 MS. BENSON: Ms. McMahan, you have before you 5 your personal data questionnaire. I believe you have 6 one brief amendment to -- to that personal data 7 questionnaire correcting a date, and is there any other 8 amendment at this time that you'd want to make to your 9 personal data questionnaire? 10 MS. MCMAHAN: No, ma'am. 11 MS. BENSON: Mr. Chairman, at this time, I 12 would ask that the personal data questionnaire be 13 included as an exhibit in the record. 14 CHAIRMAN MCCONNELL: It will be admitted 15 without objection at this point in the transcript. 16 (Exhibit 6, Personal Data Questionnaire 17 of Carol Ann Isaac McMahan.) 18 MS. BENSON: Ms. McMahan, you also have 19 before you your sworn statement that provided detailed 20 answers to over 30 questions regarding judicial conduct, 21 statutory qualifications, office administration, and 22 temperament. Is there any amendment that you would make 23 at this time to that sworn statement? 24 MS. MCMAHAN: No, ma'am. 25 MS. BENSON: Thank you. Mr. Chairman, I'd 0019 1 like to ask that this sworn statement be entered as an 2 exhibit into the hearing record. 3 CHAIRMAN MCCONNELL: Hearing no objection, it 4 will be admitted without objection. 5 (Sworn Statement of Carol Ann Isaac 6 McMahan, admitted as part of Exhibit 6.) 7 MS. BENSON: As -- as a final matter -- 8 procedural matter, Mr. Chairman, I would indicate to you 9 that the materials that Ms. McMahan has submitted 10 indicates that she meets that statutory requirements for 11 this position regarding age, residence, and years of 12 practice. 13 BY MS. BENSON: 14 Q. Ms. McMahan, why do you want to serve as an 15 administrative law court judge? 16 A. I want to serve as an administrative law 17 court judge because my background provides me with the 18 tools necessary for that. I have patience, and I like 19 to serve. 20 Q. Would you tell the commission a little bit 21 more about your legal experience that you believe 22 provides you this -- your background? 23 A. Yes, ma'am. Since basically the general 24 assembly created the Administrative Law Court, I have 25 argued cases before that court basically for the South 0020 1 Carolina Department of Revenue, regulatory tax matters, 2 licensing matters. And then I also appealed those cases 3 to the South Carolina Court of Appeals and the Supreme 4 Court. Prior to the change where appeals are now 5 directly to the Court of Appeals for the most part, I 6 appealed those cases to circuit court. I also provide 7 training as necessary at the department, and I volunteer 8 now and then to teach various courses on tax or just 9 general law. 10 Q. Are there any areas -- you have great 11 expertise, obviously, in the tax area. Are there any 12 other areas that you feel that you would need to have 13 additional preparation for serving as an administrative 14 law court judge? 15 A. Well, I think as a judge and, as everyone 16 knows, as an attorney, you're always preparing. And so 17 I will always be preparing. When one gets a case with 18 an issue, the first thing you do is you go to the 19 statutes, you investigate the facts. So in terms of 20 training and studying, that goes with the job. But in 21 terms of actual some type of formal training, no, I 22 don't believe I need any other formal training. 23 Q. What do you consider the appropriate demeanor 24 of a judge? 25 A. To treat all people as human beings, fair and 0021 1 patient, and respectful. 2 Q. And what would you like your legacy to be if 3 you become a judge on the Administrative Law Court? 4 A. If I had the honor of becoming a judge on the 5 Administrative Law Court, I would want everyone to 6 remember me as she treated us all the same, fairly, and 7 applied the law straightforward to everyone. 8 Q. Thank you. Ms. McMahan, a few housekeeping 9 issues. Have you sought or received the pledge of any 10 legislature prior to this date for this particular race? 11 A. No, ma'am, I have not. 12 Q. Have you sought or have you been offered a 13 conditional pledge of support of any legislature pending 14 the outcome of your screening? 15 A. No, ma'am. 16 Q. Have you asked any third parties to contact 17 members of the general assembly on your behalf? 18 A. No, I have not. 19 Q. And have you contacted any members of the 20 commission? 21 A. No, ma'am. 22 Q. Do you understand that you are prohibited 23 from seeking a pledge or commitment until 48 hours after 24 the commission's report has been released? 25 A. Yes, ma'am, I understand that. 0022 1 Q. And have you reviewed the commission's 2 guidelines on pledging? 3 A. Yes, I have. 4 Q. And are you aware that the penalty for 5 violating the pledging rules is that it would be a 6 misdemeanor and, upon conviction, the violator would be 7 fined not more than 1,000 or imprisoned not more than 90 8 days? 9 A. I certainly understand that. 10 MS. BENSON: Mr. Chairman, I would note for 11 the record that the Upstate Citizens Committee reported 12 that Ms. McMahan is well-qualified for each of the nine 13 evaluative criteria. And in addition, I would note for 14 the record that the South Carolina bar's judicial 15 qualifications committee found Ms. McMahan qualified 16 overall and qualified in all nine evaluative categories. 17 They did include a note that said although an excess of 18 30 calls were placed, due to the candidate's unique 19 practice area, a limited number of calls were completed. 20 BY MS. BENSON: 21 Q. Ms. McMahan, would you have any response to 22 that note that the South Carolina bar's judicial 23 qualifications committee included? 24 A. No, ma'am. By and large over the years, the 25 attorneys that I deal with at the Administrative Law 0023 1 Court are the same -- the same attorneys practice. And 2 so that -- I guess that comes with the territory as the 3 bar noted. 4 MS. BENSON: Thank you, Ms. McMahan. Mr. 5 Chairman, I'd note for the record that any concerns 6 raised during the investigation have been included in 7 the questioning of this candidate today, and I have no 8 further questions of this candidate. 9 CHAIRMAN MCCONNELL: Thank you, ma'am. Does 10 any members of the commission have any questions of 11 Ms. McMahan? 12 (No response.) 13 CHAIRMAN MCCONNELL: Okay. There are 14 apparently no further questions, Ms. McMahan. At this 15 time, I would like to thank you for appearing before us 16 today, and -- and I would also like to remind you this 17 ends this portion of your screening process, the public 18 hearing portion of the screening process. Although up 19 until the time that we publish the report and the 20 48-hour period expires, we could, as you well know, 21 reconvene the process and bring you back to ask you more 22 questions if we found it necessary. Of course, I don't 23 think that's going to be necessary in your case. 24 With that said, I will remind you about the 25 48-hour rule. And if anybody seeks to advocate for you, 0024 1 I would also ask you to remind them about the 48-hour 2 rule. And with that, again, we appreciate your 3 willingness to participate in the process and hope you 4 and your family have a safe trip back home. 5 MS. MCMAHAN: And I appreciate it and I hope 6 y'all have a great day. Thank you for your time. 7 CHAIRMAN MCCONNELL: Thank you, ma'am. All 8 right. Next we have Mr. Zimmerman. 9 (Lee W. Zimmerman enters the room.) 10 CHAIRMAN MCCONNELL: Good morning, 11 Mr. Zimmerman. 12 MR. ZIMMERMAN: Good morning, sir. 13 CHAIRMAN MCCONNELL: We have before us Mr. 14 Lee W. Zimmerman who seeks a position on Administrative 15 Law Court, Seat Number 6. If you would, Mr. Zimmerman, 16 please raise your right hand to be sworn. 17 (LEE W. ZIMMERMAN, being first duly 18 sworn, testified as follows:) 19 CHAIRMAN MCCONNELL: Thank you, sir. The 20 Judicial Merit Selection Commission has thoroughly 21 investigated your qualifications for service on the 22 bench. Our inquiry is primarily focused on nine 23 evaluative criteria which have included a survey of the 24 bench and bar, a thorough study of your application 25 materials, a verification of your compliance with state 0025 1 ethics laws, a search of any newspaper articles in which 2 your name may have appeared, and a check for any 3 economic conflicts of interest. We have not received 4 any affidavits filed in opposition to your election, nor 5 any there any witnesses here to testify. 6 Do you have a brief opening statement that 7 you'd like to make? 8 MR. ZIMMERMAN: No, sir. I think the last 9 time I appeared early spring, I gave a pretty good 10 history of my background and I don't want to go into 11 that again. 12 CHAIRMAN MCCONNELL: Thank you, sir. With 13 that, would you please answer any questions our able 14 counsel, Ms. Shuler, might have for you? 15 MS. SHULER: Mr. Chairman, members of the 16 commission, I have a few procedural matters to take care 17 of with this candidate. 18 Mr. Zimmerman, you have before you the 19 personal data questionnaire you submitted as part of 20 your application. Do you have any amendments? 21 MR. ZIMMERMAN: I've taken another CLE 22 course, I think, since this was filled out. 23 MS. SHULER: All right. Can you orally state 24 what that CLE course was? 25 MR. ZIMMERMAN: It was last Friday, and it 0026 1 was the administrative law course sponsored by the South 2 Carolina bar that Chief Judge Anderson put together. 3 MS. SHULER: Mr. Chairman, I would ask that 4 Mr. Zimmerman's personal data questionnaire and as well 5 as his oral amendment be entered as -- be entered as an 6 exhibit into the hearing record and his oral amendment 7 noted on the hearing record today. 8 CHAIRMAN MCCONNELL: Without objection. 9 (Exhibit 4, Personal Data Questionnaire 10 of Lee W. Zimmerman, admitted.) 11 MS. SHULER: Mr. Zimmerman, you have before 12 you the sworn statement you provided with detailed 13 answers to over 30 questions regarding judicial conduct, 14 statutory qualifications, office administration, and 15 temperament. Are there any additional amendments that 16 you would like to make at this time to your sworn 17 statement? 18 MR. ZIMMERMAN: No, ma'am. 19 MS. SHULER: Mr. Chairman, I would ask that 20 Mr. Zimmerman's sworn statement be entered into the 21 record at this time as an exhibit. 22 CHAIRMAN MCCONNELL: Since there are no 23 objections, it will be done at this point in the 24 transcript. 25 (Sworn Statement of Lee W. Zimmerman, 0027 1 admitted as part of Exhibit 4.) 2 BY MS. SHULER: 3 Q. Mr. Zimmerman, after serving -- after 4 practicing law for a number of years, why do you now 5 want to serve as an Administrative Law Court judge? 6 A. Well, I think I'll go back to what I said in 7 the springtime. I think to whom much is given, much is 8 expected. And I think there comes a time in every 9 lawyer's career, sooner or later, that they start 10 looking at how they can give back what society has given 11 me, allowed me to do. I've been very fortunate in my -- 12 my career both as a military officer and as an attorney 13 afterwards. I've always looked at service being very 14 important to -- to every citizen, but especially to 15 lawyers. And when the opportunity arose to apply for 16 administrative law judge, I looked at that and I matched 17 that with my experience and felt that that is something 18 that -- that I could use for service to the -- to the 19 community and to the State of South Carolina. 20 I was a hearing officer for two years 21 previously for the New York State Department Services 22 doing much of the same thing that administrative law 23 judges do here. I felt that I was good at that. I 24 enjoyed it. I've appeared before the Administrative Law 25 Court a number of times. I enjoy that. I enjoy 0028 1 administrative law as far as reading statutes, 2 regulations, trying to find the intent of the 3 legislature and those things and applying it to the 4 facts. 5 And as I said, I think there comes a time in 6 a lawyer's career where it's time to take that step 7 where you be the mentor, you be the guide to -- to young 8 lawyers coming up. So I see it as that aspect of my 9 career. 10 Q. Thank you, Mr. Zimmerman. What in your legal 11 experience, and I know that you've served as a hearing 12 officer, would prepare you to serve on the 13 Administrative Law Court? And if you would include in 14 your response the LLM that you have earned as well. 15 A. Most of my career, beginning in the military, 16 has been dealing with regulations. And when I went to 17 law school, of course, I got a general law background. 18 But in my 12 years in the air force, a lot of that was 19 dealing with regulations. Also appearing in court, 20 those court-martials, prosecuting court-martials, and 21 also going into civilian court representing the air 22 force at federal superfund sites throughout the United 23 States. 24 When I got out of the air force, I continued 25 to do administrative law either Department of Social 0029 1 Service as a hearing officer or with New York State 2 Department of Environmental Conservation being an 3 enforcement officer for the state environmental agency. 4 When I came to South Carolina, because my wife was -- 5 accepted a job at the University of South Carolina, I 6 got on with Safety Kleen. They were doing mainly 7 clean-up as they were coming out of bankruptcy. I did 8 the Pinewood Landfill settlement there of how they were 9 going to -- to handle that for the 100 years in the 10 future. And also now at McNair Law Firm, I'm on the 11 administrative regulatory branch doing environmental 12 law, licensing before the Department of Revenue, doing 13 some OSHA cases. So basically covering and doing some 14 healthcare certificate of need cases with other 15 attorneys in the firm, mainly doing all those areas that 16 the Administrative Law Court has responsibility for and 17 appearing before the administrative law court in those 18 different types of actions. 19 Q. Thank you, Mr. Zimmerman. As a brief 20 follow-up, what -- what did you earn your LLM in? 21 A. It was in environmental law from the National 22 Law Center at George Washington University. That was a 23 program while I was active duty air force. The air 24 force would select certain lawyers to go on for advanced 25 degrees, and it would be either procurement law, 0030 1 criminal law, international law, environmental law, and 2 I was -- applied for and accepted into the environmental 3 program. 4 Q. Thank you. Are there any areas that you 5 would need to prepare for due to the wide range of 6 jurisdiction that the Administrative Law Court hears? 7 A. Well, I'm sure I need to prepare for all of 8 them, but I feel fairly confident when it comes to -- to 9 licensing, to the Department of Revenue, environmental, 10 OSHA, certificate of need. Prisoner appeals I've not 11 done, but I think that would be something that could be 12 learned fairly rapidly. 13 Q. Thank you, Mr. Zimmerman. Would you explain 14 to the commission what you believe to be the appropriate 15 demeanor for a judge? 16 A. Well, I think the standard: Patience, 17 understanding, listening. But I think more than 18 anything, it has to be -- a judge has to remember that 19 he sets the -- he or she sets the example for the 20 courtroom, and his demeanor or her demeanor is what is 21 expected of the other participants in the courtroom. I 22 think, you know, it would be patience, understanding, 23 listening, but being firm when necessary. 24 Q. Thank you. Mr. Zimmerman, do you have any 25 suggestions for improving the backlog in the 0031 1 Administrative Law Court? 2 A. No. I haven't -- except for having a long 3 period of time sometimes to get my cases heard, you 4 know, I'm not really aware of what the backlog is. I 5 think it's hard work. You do what's necessary. Someone 6 that -- I work usually five and a half or six days a 7 week now. If that's what it takes, that's what it 8 takes. 9 Q. Thank you. Some housekeeping matters to 10 cover with you. Have you sought or received the pledge 11 of any legislature prior to this date? 12 A. No. 13 Q. Have you sought or have you been offered a 14 conditional pledge of support of any legislature pending 15 the outcome of your screening? 16 A. I have not. 17 Q. Have you asked any third parties to contact 18 members of the general assembly on your behalf for this 19 screening? 20 A. No. 21 Q. Have you contacted any members of the 22 commission? 23 A. No. 24 Q. Do you understand that you're prohibited from 25 seeking a pledge or commitment until 48 hours after the 0032 1 formal release of the commission's report? 2 A. I do. 3 Q. Have you reviewed the commission's guidelines 4 on pledging? 5 A. Yes. 6 Q. Are you aware of the penalties for violating 7 the pledging guidelines; that is, it's a misdemeanor and 8 you can be imprisoned up to 90 days and fined not more 9 than $1,000? 10 A. Yes. 11 MS. SHULER: The Midlands Citizens Committee 12 reported that Mr. Zimmerman is well-qualified for each 13 of the nine evaluative criteria. In addition, the 14 commission stated Mr. Zimmerman is very highly qualified 15 to serve as an administrative law court judge. We 16 believe he would serve the Administrative Law Court in 17 an outstanding manner. 18 Mr. Chairman, I have no further questions for 19 Mr. Zimmerman today. Everything regarding the 20 investigation, this candidate was incorporated into the 21 questioning of the candidate today. 22 CHAIRMAN MCCONNELL: Does any member of the 23 commission have any questions for Mr. Zimmerman? 24 Senator Knotts. 25 SEN. KNOTTS: Mr. Zimmerman, since you got 0033 1 out of the service, you've had several -- several jobs 2 and basically moved around a good bit. And the last 3 time I believe you came before the committee, it was 4 basically you were following your wife to wherever she 5 was making her career after you had completed yours. 6 MR. ZIMMERMAN: I think I probably gave too 7 much credit to my wife last time when I went back and 8 reviewed the transcript. We make decisions jointly 9 and -- 10 SEN. KNOTTS: We know good women make good 11 men. 12 MR. ZIMMERMAN: That's true. And here I am. 13 Yeah, I think I said last time, and it hasn't changed, 14 we had decided South Carolina is where we want to be. 15 She -- she's advanced at the university. She's now the 16 associate dean for academic affairs in the graduate 17 school there and enjoys that position and a tenure 18 faculty member there. She's at the point of her career 19 where that job is -- is what she wants to do. And we 20 enjoy South Carolina and we plan on staying here. 21 SEN. KNOTTS: Okay. 22 CHAIRMAN MCCONNELL: Any other members of the 23 commission have any questions? 24 (No response.) 25 CHAIRMAN MCCONNELL: Okay. Mr. Zimmerman, 0034 1 we'd like to thank you for appearing before us this 2 morning and your willingness to participate in the 3 process, and this concludes this portion of the 4 screening process, the public hearing portion. And 5 although the process remains open until such time as the 6 report is published and until the 48-hour period passes 7 at which time it becomes a permanent record of this 8 particular process. 9 But up until that time, we could subpoena you 10 back or bring you back and ask you -- reopen your public 11 hearing and ask you further questions if we so wanted 12 to, but I don't think that's going to happen. Don't 13 know any reason that would happen. 14 But in any event, with that said, I would 15 remind you about the 48-hour rule. And if anyone seeks 16 to advocate on your behalf, I would hope that you would 17 remind them about the 48-hour rule. 18 MR. ZIMMERMAN: I will. 19 CHAIRMAN MCCONNELL: And I'd like to thank 20 you for appearing before us this morning and hope you 21 have a safe trip back home. 22 MR. ZIMMERMAN: Thank you, sir. I'd just 23 like to thank all the members for participating in this 24 process. Thank you. 25 CHAIRMAN MCCONNELL: Okay. Counsel tells us 0035 1 that we need to take up some matters in executive 2 session. 3 SEN. KNOTTS: So move. 4 CHAIRMAN MCCONNELL: Second? 5 REP. MACK: Second. 6 (The members went into executive session.) 7 * * * * * 8 (The members came out of executive session.) 9 (The Honorable Frederick James Newton 10 enters room.) 11 CHAIRMAN MCCONNELL: We'll go on the record 12 at the time. And good morning. We have before us the 13 Honorable Frederick James Newton. 14 JUDGE NEWTON: Good morning. 15 CHAIRMAN MCCONNELL: Good morning. Good to 16 see you, sir. 17 JUDGE NEWTON: Same. 18 CHAIRMAN MCCONNELL: If you'd raise your 19 right hand. 20 (THE HONORABLE FREDERICK JAMES NEWTON, 21 being first duly sworn, testified as follows:) 22 CHAIRMAN MCCONNELL: Thank you. The Judicial 23 Merit Selection Commission has thoroughly investigated 24 your qualifications for the bench. Our inquiries 25 focused on the nine evaluative criteria. It has 0036 1 included a survey of the bench and the bar, a thorough 2 study of your application materials, verification of 3 your compliance, the state ethics laws, a search of 4 newspaper articles in which your name appears, and a 5 study of previous screenings, if any, and a check for 6 economic conflicts of interest. We have received no 7 affidavits filed in opposition to your election, and we 8 have no witnesses present to testify. 9 So I'd ask if you have any brief opening 10 statement you'd like to make? The procedure is 11 basically this -- and that opening statement is purely 12 optional. We'll turn you over to counsel, have a few 13 questions for you, and then the commissioners will 14 follow-up with any, and then we'll wrap up the hearing. 15 JUDGE NEWTON: I'd just like to thank you 16 all. I'm very proud to be here. I appreciate this 17 process, and I want to -- I commend the judiciary 18 committee. They have done an outstanding job in keeping 19 us informed with what was going on and making sure that 20 we understood the process. And for those of us who were 21 in their first time going through this process, I went 22 through kind of baby version of this in Dorchester 23 County for the magistrate position, but it was really 24 appreciated and I thank them for it. 25 CHAIRMAN MCCONNELL: Thank you. We have a 0037 1 great staff and always appreciate hearing about them. 2 Thank you. 3 JUDGE NEWTON: Yes, sir. 4 CHAIRMAN MCCONNELL: With that, I'll turn you 5 over to counsel. 6 MS. WELLS: Thank you, Mr. Chairman. Judge 7 Newton, you have before you the personal data 8 questionnaire you submitted as part of your application. 9 Do you have any amendments that you wanted to make to 10 that at this time? 11 JUDGE NEWTON: No, I do not. Thank you. 12 MS. WELLS: Mr. Chairman, I would ask that 13 Judge Newton's personal data questionnaire be entered as 14 an exhibit into the record. 15 CHAIRMAN MCCONNELL: Is there objection? 16 There be none, so ordered. 17 (Exhibit 5, Personal Data Questionnaire 18 of the Honorable Frederick James Newton, admitted.) 19 MS. WELLS: Judge Newton, you also have 20 before you the sworn statement you provided with 21 detailed answers to over 30 questions regarding judicial 22 conduct, statutory qualifications, office 23 administration, and temperament. Are there any 24 amendments you want to make at this time to your sworn 25 statement? 0038 1 JUDGE NEWTON: No, thank you. 2 MS. WELLS: At this time, Mr. Chairman, I 3 would ask that Judge Newton's sworn statement be entered 4 as an exhibit into the hearing record. 5 CHAIRMAN MCCONNELL: Without objection, so 6 ordered. 7 (Sworn Statement of the Honorable 8 Frederick James Newton, admitted as part of Exhibit 5.) 9 MS. WELLS: I note for the record that based 10 on the testimony contained in the candidate's PDQ, which 11 has been included in the record with his consent, Judge 12 Newton meets the statutory requirements for this 13 position as Master-in-Equity of Dorchester County 14 regarding age, residence, and years of practice. 15 BY MS. WELLS: 16 Q. Judge Newton, would you please explain to the 17 members of the commission why you want to serve as a 18 Master-in-Equity in Dorchester County? 19 A. I've been practicing law for 13 years, and I 20 became a magistrate fairly recent through Senator Mike 21 Rose appointee. And I thought I loved the law before 22 when I was practicing, and I say now that I like being a 23 lawyer. I love being a judge. I love being able to sit 24 and do what I think is fair and what I think is right 25 instead of advocating a particular position. It's 0039 1 refreshing. And I -- you know, I love -- I'm a 2 halftime -- a true halftime magistrate. I work 3 generally 20 hours a week and I, you know, practice law, 4 you know, 20, 30, 40 hours on top of that. But I really 5 just -- I enjoy it so much and I have such a great 6 respect for the -- for the system. 7 I've also always been partial to issues 8 involving title to real property. One of my passions in 9 law school was the -- you know, I took all the real 10 estate classes that -- that I could. I took, you know, 11 the property classes. I excelled in -- in fact, I 12 became Professor Wilcox's legal -- well, research 13 assistant during that time, but he didn't actually use 14 me very much for the property. More towards summarizing 15 ethics opinions for him. 16 But I think that I want to be a judge 17 because, you know, I have a zeal and a zest for the law. 18 I've always -- I've always wanted to be a lawyer. And 19 then when I became a lawyer and became familiar with the 20 process, I aspired to be a judge. And I'm very thankful 21 to be where I am now, and I would appreciate the 22 opportunity to serve the citizens of Dorchester County 23 by serving as their Master-in-Equity. 24 Q. Thank you. Although you address this in your 25 sworn affidavit, could you please explain to the members 0040 1 of commission what you think is the appropriate demeanor 2 for a judge? 3 A. I think that a judge should be respectful of 4 all people at all times regardless of their station in 5 life. I think that the judge should not be arrogant. I 6 think that a judge should be patient. I think that a 7 judge should be a good listener. And I think above all, 8 that a judge should be fair and that the people who 9 appear before him, he's conducted himself in such a 10 manner that they all feel like they've gotten a fair 11 shake. They may not agree with the decision, but 12 hopefully they will feel like they've gotten a fair 13 hearing. 14 Bear with me one second, please. And I 15 believe that -- that, you know -- basically, you know, 16 the manners that I was raised with and my mother raised 17 me with, I believe that you should carry those to the 18 bench and be as nice to people as you can and it's -- 19 you know, you owe it to people just as a common courtesy 20 to other human beings. 21 And, you know, I don't criticize any judge, 22 but I've been in front of some that are -- that seem to 23 be, you know, I don't want to use the word nicer because 24 you don't have to be nice to everybody that appears 25 before you. They may disagree with you wholeheartedly. 0041 1 But you do have to be respectful because the judge is 2 the only thing many times that people see. 3 You know, when they come to my court, I may 4 be the only person that they ever see that's in charge 5 of something in the judicial system, and I want them -- 6 I want to put on a good face for the judiciary, you 7 know. And they may never get in front of a higher 8 judgment. They may. But to a lot of citizens, you 9 know, I am the only face of the -- of the judiciary as, 10 you know, as a whole in the State of South Carolina. 11 Q. Judge Newton, are there any areas, including 12 any subjective areas of law, that you would need to 13 additionally prepare for in order to serve as a 14 Master-in-Equity? And how would you handle that 15 additional preparation? 16 A. You know, the law is not stagnant. So I am 17 constantly, you know, reading as much as I can about 18 things that occur in the legislature, bills as they 19 pass, reading the advance sheets, you know, trying to 20 keep abreast of everything that's going on. And I feel 21 like that's my duty as a lawyer, you know, and as a 22 judge now. 23 I think that I would need to investigate more 24 thoroughly because I've been involved on, you know, on 25 one side or the other of foreclosures and things like 0042 1 that that the master often hears. I would need to 2 investigate more thoroughly the, you know, exactly what 3 the Master-in-Equity -- what his -- what his duties and 4 basically, you know, how to do it practically. You 5 know, I always tell people that they taught me in law 6 school, you know, how to be a lawyer. But, you know, 7 they taught me the law, but they didn't teach me 8 anything about how to run a law office. So I think I 9 need to, you know, study that. You know, I've been able 10 to observe Judge Watts and other Master-in-Equities that 11 I've appeared before, and I would take some of their 12 procedures and use them and, otherwise, I might be able 13 to improve some. 14 Q. Thank you. Judge Newton, in your personal 15 data questionnaire, you acknowledged that you were 16 charged as a minor in possession of alcohol when you 17 were 16 and you paid a small fine. Would you please 18 explain to the members of the commission the 19 circumstances for this and your explanation? 20 A. I will. And let me preface this by saying 21 that this is one of the things that I most regret in my 22 life because it's followed me through law school, 23 through applying for the bar. I had one beer in my hand 24 that was almost full. You know, I don't blame anybody 25 for that. It was in my hand. I paid the fine. I 0043 1 didn't contest it. That was a particularly hard time in 2 my life. My brother had been killed recently in an 3 automobile accident and, you know, I think that my 4 friends were trying to cheer me up somewhat, but, you 5 know, it ended up being a nightmare for me, although I 6 wasn't taken into custody. But I went and I paid the 7 fine, and I remember that it was $68, if my memory 8 serves me correctly, because I paid that myself with the 9 money I made working for my grandfather at Harrington 10 Hardware toting concrete blocks and things of that 11 nature. So I remember that very well. 12 Q. Thank you. I just have a few housekeeping 13 issues. Have you sought or received the pledge of any 14 legislature prior to this date? 15 A. No, I have not. 16 Q. Have you sought or have you been offered the 17 conditional pledge of support of any legislature pending 18 the outcome of your screening? 19 A. No, I have not. 20 Q. Have you asked any third parties to contact 21 members of the general assembly on your behalf? 22 A. No, I have not. 23 Q. Have you contacted any members of this 24 commission? 25 A. No, I have not. 0044 1 Q. Do you understand you are prohibited from 2 seeking a pledge or commitment until 48 hours after the 3 formal release of the commission's report? 4 A. I do understand that. 5 Q. Have you reviewed the commission's guidelines 6 on pledging? 7 A. I have. 8 Q. Are you aware that the penalty for violating 9 the pledging rule is a misdemeanor and upon conviction 10 the violator must be fined not more than $1,000 or 11 imprisoned not more than 90 days? 12 A. I am aware of that. 13 MS. WELLS: Members of the commission and Mr. 14 Chairman, I would note that the Low Country Citizens 15 Committee reported that Judge Newton was qualified for 16 each of the nine evaluative criteria, constitutional 17 qualifications, ethical fitness, professional academic 18 ability, character, reputation, physical health, mental 19 stability, experience, and judicial temperament. I 20 would also note for the record that any concerns raised 21 during the investigation regarding Judge Newton were 22 incorporated into my questioning of him today. And 23 Mr. Chairman, I have no further questions. 24 CHAIRMAN MCCONNELL: Thank you, ma'am. Does 25 any member of the commission have a question? Mr. 0045 1 Harrell. 2 MR. HARRELL: Thank you, Mr. Chairman. 3 Judge Newton, how are you? 4 JUDGE NEWTON: I'm good. How are you, sir? 5 MR. HARRELL: I'm fine. Thank you. 6 JUDGE NEWTON: Thank you. 7 MR. HARRELL: I want to make sure that I 8 heard something correctly. So I'm going to give you an 9 opportunity to say it to me again. 10 JUDGE NEWTON: Okay. 11 MR. HARRELL: Did I hear you say that you do 12 not have to be nice to all of the people that appear in 13 front of you? 14 JUDGE NEWTON: Well, I may -- I probably did 15 say exactly that. But what I meant was -- I didn't 16 mean -- I certainly didn't mean that. That is certainly 17 not true. What I meant is that, you know, the people 18 that appear before you, you always have to be respectful 19 and that incorporates being, you know, nice and just by 20 its definition. You know, I am one of the most 21 mannerful people that -- that you will meet. I'm sorry 22 to boast about it, but, you know, my mother raised me 23 well. 24 I believe that people may have the perception 25 that you didn't treat them nicely because they didn't 0046 1 agree with the decision of law that you made. But at no 2 time should you ever, regardless of a person's station 3 in life, regardless of whether they are a mechanic or 4 the top executive of a corporation, regardless of their 5 education, their income, you should always treat each 6 person that appears before you with respect and give 7 them the dignity -- you recognize the dignity of that 8 person and I believe that that -- you know, that's 24/7, 9 you know. I -- you know, I am -- I try to be nice to 10 people on the bench and, you know, be respectful and I 11 am, and I also do that in my personal life. 12 MR. HARRELL: So do you feel like that there 13 is a time when you can -- you can drop that persona and 14 you can be harsh with the people that are in front of 15 you? 16 JUDGE NEWTON: I do. And I believe it's -- 17 it's appropriate. I believe that it's appropriate once 18 you have decided that is -- you know, it's time to -- 19 to -- you know, to lay down some law, basically. I 20 think that you should be able to tell people I disagree 21 with you, I've heard enough, you know, please stop 22 speaking. You know, I think that that's fine, you know, 23 with regard to, you know, a motion or something that 24 they're just drawing on and on about and not giving you 25 any new material, you know, telling them that that's 0047 1 duplicative, you know, and giving them other, you know, 2 limitations as to what you will hear and how often 3 you'll hear it. 4 And then certainly when you're pronouncing 5 your judgment, if you do it from the bench, you should 6 certainly be firm and, you know, you -- you know, you're 7 not suede unless they make a motion for reconsideration 8 and you decide to grant it, you know. And then 9 oftentimes that doesn't happen in the same hearing if 10 it's -- if it's granted at all. 11 But, you know, I believe that you should hold 12 people to what they're supposed to do under the rules, 13 you know. You should -- you know, if they're flagrant, 14 you should fine people for it, you know, for -- you 15 know, say, for a discovery violation, if -- if they 16 consistently -- if their lawyer or them personally, if 17 they consistently, you know, try to flout the rules by 18 not following the guidelines. 19 And I don't say that 30 days would be a rule 20 that I would go ahead and post sanctions because as a 21 practical matter as a lawyer, I know that that is not 22 rare and I know that sometimes lawyers don't have any 23 choice and we -- you know, we're collegial and we, you 24 know, give each other, you know, extensions and things 25 of that nature. But, you know, if someone violates the 0048 1 rules, then they are held responsible for that and you 2 may -- you very often have to be very firm in explaining 3 that to them. So I believe, yes, sir. 4 MR. HARRELL: So the harshness that -- that 5 you're talking about, is that in your demeanor or -- 6 or -- the position itself carries enough power that you 7 can say what it is you have to say -- 8 JUDGE NEWTON: Yes, sir. 9 MR. HARRELL: -- even with a smile on your 10 face. 11 JUDGE NEWTON: Correct. 12 MR. HARRELL: Okay. 13 JUDGE NEWTON: Correct. 14 MR. HARRELL: So under what conditions would 15 you need to be harsh to somebody? 16 JUDGE NEWTON: Being harsh, I don't mean to 17 say that -- that you should portray the image that 18 you're being harsh. I'm -- I'm afraid that I am mixing 19 up, and I apologize, you know, the persona that you are 20 projecting and the way that you are treating people 21 with, you know, what you have to do under the law. You 22 know, I think that it's appropriate to be harsh under 23 the law to someone who has violated the court rules or 24 someone who has violated a court order. You know, I 25 think it's appropriate to be harsh with them as far as 0049 1 it is, but I think you should still be polite while 2 you're doing it. 3 MR. HARRELL: Okay. Thank you. That clears 4 it up for me. And I just have one more question. I 5 guess it's kind of a compound question. How long have 6 you been a magistrate? 7 JUDGE NEWTON: I have been a magistrate since 8 April 29th. 9 MR. HARRELL: And this -- and then you 10 applied for this position. If after -- if you were to 11 be successful and -- and elected to this position and a 12 circuit court seat came up in next October, would you 13 then abandon this seat and then try to go for the 14 circuit court? 15 JUDGE NEWTON: No, sir. And I understand 16 that some people looking at it may think that, you know, 17 that I have an ulterior motive in trying to become a 18 magistrate, that I wanted to better myself and thought 19 that I might be in a better position, you know. But, 20 you know, I had no intention of applying for this job 21 until I saw the announcement that the term was coming 22 open, and I knew that I had wanted the job eventually 23 and it's going to be six years before I have a chance 24 again. I decided to go ahead and run because I love the 25 law so much, I want to do all that I can for it. But I 0050 1 commit myself to fulfilling my term as Master-in-Equity. 2 MR. HARRELL: Thank you, Judge. 3 JUDGE NEWTON: Thank you. 4 CHAIRMAN MCCONNELL: Senator from Lexington. 5 SEN. KNOTTS: How are you doing today? 6 JUDGE NEWTON: Hey, how are you? 7 SEN. KNOTTS: When did you decide that you 8 wanted to become a magistrate? 9 JUDGE NEWTON: I decided that I wanted to 10 become a magistrate -- well, I decided that I wanted to 11 be a judge, you know, just through years of experience. 12 And then I saw a position come open on the municipal 13 bench in the town of Summerville, and I applied for 14 that. And that position was filled without interviewing 15 anyone. It was just filled. So -- 16 SEN. KNOTTS: And when was that? 17 JUDGE NEWTON: That was in -- I believe it 18 was in 2007, perhaps 2008. I know it's been since I had 19 my own firm where I had the flexibility that I thought I 20 could take on a part-time job without, you know, getting 21 basically in trouble with management. But I didn't get 22 interviewed for that, nor did anyone else. It was just 23 appointed. And the person they appointed is a fine 24 judge and he's a fine lawyer, but, you know, I wanted 25 that position. 0051 1 So when the master -- when the -- when 2 Senator Rose announced that he was taking applications 3 for master in -- for magistrate and that he was making 4 it a competitive process and requiring you to go through 5 these -- these steps and the citizens committee and all 6 of these things, I decided that I wanted -- you know, I 7 still wanted it, I still wanted to be a judge, because I 8 like being able to do -- you know, sit there and do what 9 I think is fair and what I think is right. 10 And I have a zest for the law, a zeal for the 11 law. I wanted to be lawyer ever since I was a child 12 and, you know, that -- that didn't change once I became 13 one, although I did learn that things weren't exactly as 14 I had expected. You know, so I decided that I wanted to 15 be a magistrate. It's kind of -- I knew I wanted to be 16 a judge. I decided to apply for that magistrate 17 position when the announcement was made that he was 18 coming in as a new senator and he was putting it up for 19 competitive bids, basically, for the appointments. 20 SEN. KNOTTS: Okay. I'm not familiar with 21 part-time magistrates in my district or in my county. 22 We don't have them. Was it a new position or was it 23 a -- one that existed that they were filling or how -- 24 JUDGE NEWTON: Yes, sir. 25 SEN. KNOTTS: And also tell me how you handle 0052 1 what cases you handle and how you determine being a 2 part-time magistrate and also working as an attorney 3 trying cases and having people come before you. 4 Where -- how do you handle those conflicts or are there 5 any conflicts? 6 JUDGE NEWTON: There's -- there is a 7 potential for them, and I have resolved the first about, 8 you know, about being -- being a lawyer. I don't take 9 any case and I will not appear -- I cannot appear, would 10 not appear, before any magistrate within Dorchester 11 County. As Master-in-Equity, if -- because it's 12 part-time, too, I wouldn't be allowed to appear before 13 any Master-in-Equity -- 14 SEN. KNOTTS: How about adjoining counties? 15 JUDGE NEWTON: -- no matter what county. 16 SEN. KNOTTS: Being a member of the 17 magistrate association, which I'm sure you are. 18 JUDGE NEWTON: Yeah. I -- I could, but I 19 don't believe that I have since I became a magistrate. 20 SEN. KNOTTS: Would you? 21 JUDGE NEWTON: Probably not because it might 22 give the appearance that, you know, I was getting an 23 inside deal because we were fellow judges. So I don't 24 think so. I think that I might not have as much 25 heartburn about that if my associate did it versus me. 0053 1 But, no, I don't believe -- it hasn't come up and I 2 don't believe that I would do it. 3 SEN. KNOTTS: How about attorneys that you 4 have had cases with or have cases with? 5 JUDGE NEWTON: Yes, sir. 6 SEN. KNOTTS: In the past or in the future? 7 JUDGE NEWTON: Well, I think I have a good 8 working relationship with them. You mean need to avoid 9 any potential conflicts with that? Well, what I would 10 do is if in my mind, I can't be fair. I wouldn't hear 11 it no matter whether I disclosed it to people and they, 12 you know, they can't put aside personal opinion, no 13 matter if I disclosed it and they waived it, you know, I 14 don't think I should even disclose it because it's 15 just -- you're just flat out -- 16 SEN. KNOTTS: Last -- 17 JUDGE NEWTON: -- you're not allowed. 18 SEN. KNOTTS: Last question. 19 JUDGE NEWTON: Do you mind if I finish? 20 SEN. KNOTTS: Oh, sure. 21 JUDGE NEWTON: So sorry. As far as, you 22 know, other lawyers, I don't think I have a bias towards 23 any particular lawyer. I would reveal any conflict from 24 my prior firm, and I only have one prior firm besides my 25 own firm within the tri-county area which I was with for 0054 1 about six years. I would reveal that and I would likely 2 recuse myself, even if it's something that came up since 3 I left just because if it's in -- if it's in their 4 opinion that, you know, something doesn't look like it's 5 exactly above board, then I haven't fulfilled the 6 requirement that I avoid the -- the potential appearance 7 of impropriety. 8 SEN. KNOTTS: Last question. Was the 9 position of part-time magistrate, was it an existing 10 position that was being filled or was it one that had 11 just been created or -- or -- 12 JUDGE NEWTON: I'm sorry. You asked me that 13 before and I didn't address it. I have -- the part-time 14 magistrates are common in Dorchester County. 15 SEN. KNOTTS: I'm talking about the position 16 that you have. 17 JUDGE NEWTON: Yes, sir. Okay. It was -- it 18 existed both -- I got two -- I got appointed in the 19 place of Judge Messervy. It says Vice Messervy and Vice 20 Londergan, I believe on my appointment, you know. Do 21 you -- do you follow me? 22 SEN. KNOTTS: No, I don't. 23 JUDGE NEWTON: Okay. In the senate -- 24 actually, on my certificate, I believe, one of the 25 certificates I got from the governor's office it says 0055 1 vice, which -- which I looked up and it means in the 2 place of. It says Vice Londergan/Messervy. 3 SEN. KNOTTS: Were they full-time? 4 JUDGE NEWTON: No. 5 SEN. KNOTTS: He was part-time? 6 JUDGE NEWTON: He was -- he was a part-time, 7 as far as I'm aware. But I took two ten-hour positions 8 to become a halftime judge. And I applied. I said I 9 would be a ten-hour judge, I would be a 20-hour judge, 10 and I even said I'd be a 30-hour judge. I wasn't 11 willing to commit to it full-time just then, but -- and 12 I got the 20-hour appointment, and I was the only person 13 that got that appointment. 14 SEN. KNOTTS: Okay. 15 CHAIRMAN MCCONNELL: Professor? 16 PROF. FREEMAN: Just to make clear, 17 Mr. Harrell was asking you questions. It kind of went 18 to demeanor and temperament and all. Just so there's no 19 doubt about it, temperament is extremely important to 20 this commission. We expect judges to be respectful, 21 caring toward the litigants. You can still be firm and 22 still come down hard, but it has to be in a respectful 23 way. And I think you understand that. 24 JUDGE NEWTON: I do understand that. And I 25 think that, you know -- of course, y'all are not going 0056 1 to do this, although you could. You know, if you called 2 all the litigants that have appeared before me since 3 I've become a magistrate, I think that they would tell 4 you that -- that I was, you know, polite to them. I 5 always have been respectful because -- you know, because 6 of my position and just as common human decency. So 7 I -- you're exactly right in your statement. Thank you. 8 CHAIRMAN MCCONNELL: Representative Mack. 9 REP. MACK: Thank you, Mr. Chairman. In 10 following up with Mr. Harrell and the professor, I was 11 concerned when you responded to Mr. Harrell and you 12 accepted the term, "harsh." Looking back, do you think, 13 again, the temperament, it would -- would have been 14 better for you to rephrase in your answer that you are 15 stern as opposed to harsh? 16 JUDGE NEWTON: That may be the appropriate 17 word. And I tried to separate out demeanor and how you 18 treat people from the result of their merits of their 19 case under law, and you can be harsh on this side and 20 you have to be when it's called for, but you're never 21 harsh on this side. I mean, I've -- I've never had 22 anybody tell me whether as a lawyer, as a person, or as 23 a judge that I'm disrespectful, you know. And -- and 24 it's just never come up because it just doesn't happen. 25 REP. MACK: But you don't think in your mind 0057 1 it would have been better to say stern, firm? You know, 2 use -- 3 JUDGE NEWTON: I do think so. 4 REP. MACK: Yeah. 5 JUDGE NEWTON: And I'm so sorry. 6 REP. MACK: As opposed to harsh because -- 7 JUDGE NEWTON: Yes, sir. 8 REP. MACK: -- words have meaning -- 9 JUDGE NEWTON: I agree. 10 REP. MACK: -- and harsh tends to -- 11 JUDGE NEWTON: Yes, sir. 12 REP. MACK: -- lend itself to a meaning of 13 being overbearing. 14 JUDGE NEWTON: I thank you for clearing that 15 up. I'm certainly not overbearing. If you don't mind, 16 I'd like to adopt that word stern as my own instead of 17 harsh. 18 CHAIRMAN MCCONNELL: Any further questions? 19 (No response.) 20 CHAIRMAN MCCONNELL: If not, this concludes 21 this portion of our screening process. As you know, the 22 record will remain open until the report is published 23 and you may be called back at such time if the need 24 arises. I'll remind you of the 48-hour rule and ask you 25 to be very mindful about it, so mindful that if anyone 0058 1 inquires with you in the event that you are screened out 2 as to whether they may or may not advocate on your 3 behalf, that you remind them of the 48-hour rule. 4 JUDGE NEWTON: I will, sir. 5 CHAIRMAN MCCONNELL: With that, we thank you 6 for offering and for your services to the people of 7 South Carolina. Have a good day, sir. 8 JUDGE NEWTON: Thank you very much. Thank 9 you all. 10 (The Honorable Patrick R. Watts enters 11 room.) 12 CHAIRMAN MCCONNELL: All right. We'll at 13 this point, we have before us the Honorable Patrick R. 14 Watts, who's offering for Master-in-Equity for 15 Dorchester County. If you would raise your right hand, 16 please, sir. 17 (THE HONORABLE PATRICK R. WATTS, being 18 first duly sworn, testified as follows:) 19 CHAIRMAN MCCONNELL: The Judicial Merit 20 Selection Commission has thoroughly investigated your 21 qualifications for the bench. Our inquiries focused on 22 our nine evaluative criteria that is included a survey 23 of the bench and the bar, a thorough study of your 24 application materials, a verification of your compliance 25 with state ethics laws, a search of newspaper articles 0059 1 in which your name appears, a study of previous 2 screenings, and a check of previous economic conflicts 3 of interest. We've received no affidavits filed in 4 opposition to your election, no witnesses are present to 5 testify. 6 I'd ask you if there's any brief opening 7 statement you may wish to make. That is purely 8 optional. The procedure is the following: Counsel will 9 ask you a series of questions. At the conclusion of 10 that, if the commissioners have any outstanding matters, 11 they'll have some questions for you and then we'll wrap 12 up the hearing. 13 JUDGE WATTS: Very well. I have no opening 14 statement. 15 CHAIRMAN MCCONNELL: All right. And I'll 16 turn you over to counsel for a few questions. 17 MR. FIFFICK: Thank you, Mr. Chairman. Mr. 18 Chairman and members of the commission, I have a few 19 procedural matters to take care with this candidate. 20 Judge Watts, do you have before you the personal data 21 questionnaire you submitted as part of your application? 22 JUDGE WATTS: Yes, I do. 23 MR. FIFFICK: Is there any amendment that you 24 would like to make at this time to your PDQ? The -- 25 that would be question 35 that we discussed that you 0060 1 sent me a letter that has to be incorporated. 2 JUDGE WATTS: Right. I was just flipping 3 through this. The copy I've got here, question 35 is 4 not even on here. But nevertheless -- 5 MR. FIFFICK: I have a copy of the letter you 6 submitted. 7 JUDGE WATTS: Yeah. And it's just a matter 8 of in mid-September, somebody did file a complaint 9 against me and that's pending with the Office of 10 Disciplinary Counsel. And I -- well, I received the 11 complaint and I made a reply. I recused -- recused 12 myself from the case and just waiting to hear back from 13 the Office of Disciplinary Counsel. 14 MR. FIFFICK: And would you like to 15 incorporate that response into -- 16 JUDGE WATTS: Yes. 17 MR. FIFFICK: -- the record? 18 JUDGE WATTS: Uh-huh. 19 MR. FIFFICK: Very good. At this time, Mr. 20 Chairman, I would ask that Judge Watts' PDQ and the 21 amendment be entered as an exhibit into the record. 22 CHAIRMAN MCCONNELL: Without objection, so 23 ordered. 24 (Exhibit 1, Personal Data Questionnaire 25 and Amendment of The Honorable Patrick R. Watts, 0061 1 admitted.) 2 MR. FIFFICK: Judge Watts, you also have 3 before you a sworn statement you provided with detailed 4 answers to over 30 questions regarding judicial conduct, 5 statutory qualifications, office administrative, and 6 temperament. Is there any amendment you would like to 7 make at this time to your sworn statement? 8 JUDGE WATTS: No. 9 MR. FIFFICK: At this time, Mr. Chairman, I'd 10 ask that Judge Watts' sworn statement be entered as an 11 exhibit into the hearing record. 12 CHAIRMAN MCCONNELL: Is there objection? 13 There being none, so ordered. 14 (Sworn Statement of The Honorable 15 Patrick R. Watts, admitted as part of Exhibit 1.) 16 MR. FIFFICK: With that, I'd also note for 17 the record that based on the testimony contained in the 18 candidate's PDQ which has been included into the record 19 with the candidate's consent, Judge Watts meets the 20 statutory requirements for this position regarding age, 21 residence, and years of practice. 22 BY MR. FIFFICK: 23 Q. Judge Watts, why do you want to continue to 24 serve as a Master-in-Equity? 25 A. I enjoy the job. I like being a judge. I 0062 1 like being Master-in-Equity for Dorchester County. I've 2 been living there 25 years. I've been that judge for 15 3 years. It's all I can say. I like being -- I like the 4 job, and I want to continue. 5 Q. Thank you, sir. Judge Watts, although you 6 address this in your sworn affidavit, could you please 7 tell the members of the commission what you think the 8 appropriate demeanor is for a judge? 9 A. Well, I hope I'm exhibiting the appropriate 10 demeanor right now. Just even -- even tempered, and I 11 guess that sums it up. 12 Q. Thank you, sir. 13 A. Try not to fall asleep on the bench and try 14 not to get overly excited on the bench during -- during 15 a hearing. 16 Q. And what would you hope your legacy as 17 Master-in-Equity of Dorchester County would be? 18 A. I never really thought about a legacy. Like 19 I said, I just enjoy the work. I'm not trying to -- 20 trying to build up a legacy of any sort. 21 Q. Thank you, sir. I have a couple more 22 questions that we're going to ask of every candidate 23 right now. Have you sought or received the pledge of 24 any legislator prior to this date? 25 A. No. 0063 1 Q. Have you sought or have you been offered a 2 conditional pledge of support of any legislature pending 3 the outcome of your screening? 4 A. No. 5 Q. Have you asked any third party to contact 6 members of the general assembly on your behalf? 7 A. No. 8 Q. Have you contacted any members of this 9 commission? 10 A. No. Well, I take that back. I think 11 Mr. Harrell actually had a case pending before me, and I 12 called him about that and asked what to do. Turns out, 13 I guess the plan would have been for him to back out of 14 any kind of vote or discussion. But as it turns out, I 15 believe the case was settled. And so that's all over 16 and done with. 17 Q. You understand that you are prohibited from 18 seeking a pledge or commitment until 48 hours after the 19 formal release of the commission's report? 20 A. Correct. 21 Q. And have you reviewed the commission's 22 guidelines on pledging? 23 A. Yes. 24 Q. And as a follow-up, are you aware of the 25 penalties for violating the pledging rules; that is, it 0064 1 is a misdemeanor. And upon conviction, the violator 2 must be fined not more than $1,000 or imprisoned for not 3 more than 90 days? 4 A. I understand that. 5 Q. Thank you, sir. 6 MR. FIFFICK: I will now note that the Low 7 Country Citizens Committee reported that Judge Watts is 8 well-qualified in all areas. And finally I would just 9 note for the record that any concerns raised during the 10 investigation regarding the candidate today were 11 incorporated into the questioning of the candidate 12 today. 13 Mr. Chairman, I have no further questions. 14 CHAIRMAN MCCONNELL: Thank you, sir. Any 15 member of the commission have a question? 16 (No response.) 17 CHAIRMAN MCCONNELL: If not, this concludes 18 this portion of our screening process. As you know, the 19 record will remain open until the report is published, 20 and you may be called back at such time if the need 21 arises. I know of no outstanding issues, but it's just 22 our standard policy. I'll remind you of the 48-hour 23 rule and ask you to be mindful of it, so mindful that 24 if, in fact, or by chance someone should inquire as to 25 whether they may or may not advocate for you, that you 0065 1 remind them of the 48-hour rule. With that, we thank 2 you for offering and we thank you for your previous 3 service to the people of South Carolina. Have a good 4 day. 5 JUDGE WATTS: It's been my pleasure. I thank 6 all you. 7 CHAIRMAN MCCONNELL: Thank you. Is there a 8 motion that we go into executive session to discuss 9 anything of a personal nature? 10 REP. MACK: So moved. 11 SEN. KNOTTS: So moved. 12 CHAIRMAN MCCONNELL: It's been moved. The 13 floor is now open for discussion. Is there any 14 discussion? If not, we'll go into a vote. All in favor 15 of going to executive session, please raise your right 16 hand. 17 (Members raise hand.) 18 CHAIRMAN MCCONNELL: Thank you. Opposed by a 19 like sign? Any proxies? 20 REP. DELLENEY: I've got one. 21 CHAIRMAN MCCONNELL: Let the record show, 22 then, that it was the unanimous vote of the commission 23 to go into executive session. 24 * * * * * 25 CHAIRMAN MCCONNELL: All right. We're back, 0066 1 and we'll go back into public session. At this point, 2 let me report that the executive session was held, but 3 no formal actions were taken in executive session. 4 Now we have before us, before we move to the 5 next -- the question of qualifications and nomination 6 for The Honorable Frederick Newton and The Honorable 7 Patrick Watts. What is the decision of the commission? 8 REP. DELLENEY: I move that they be found 9 qualified and nominated. 10 CHAIRMAN MCCONNELL: Representative Delleney 11 moves that both gentleman be found qualified and 12 nominated. Do I hear a second? 13 (No response.) 14 CHAIRMAN MCCONNELL: No second? Motion 15 fails, then, for lack of a second. I'll ask -- I'll 16 take one by one. Honorable Frederick James Newton. Are 17 there any motions to find him qualified and nominated or 18 qualified? 19 REP. DELLENEY: I move to find that there's 20 nothing disqualifying that came out in this screening. 21 So I move to find him qualified and nominated for the 22 Dorchester delegation. 23 CHAIRMAN MCCONNELL: Do I hear a second? 24 MS. MCLESTER: Second. 25 CHAIRMAN MCCONNELL: It's now been moved and 0067 1 seconded. The floor is now open for discussion on the 2 motion. Is there any further discussion? If not, we'll 3 go into a vote and I would ask you -- I will do them by 4 hands for the sake of time, but we will record them so 5 that we have a recorded vote. 6 With that, all in favor of the motion to find 7 Mr. Frederick Newton -- or Honorable Frederick Newton 8 qualified and nominated, please raise your right hand. 9 MS. SHULER: Ms. McLester. Representative 10 Delleney, are you voting Representative Clemmons' proxy? 11 REP. DELLENEY: Yes. 12 MS. SHULER: Yes. Senator McConnell, 13 Representative Mack, and Mr. Sellers, Mr. Harrell and 14 Senator Nicholson as well. 15 CHAIRMAN MCCONNELL: Opposed by a like sign. 16 MS. SHULER: Professor Freeman and Senator 17 Knotts, two against. 18 CHAIRMAN MCCONNELL: Any abstentions, 19 proxies? 20 REP. DELLENEY: I voted Representative 21 Clemmons' proxy. 22 CHAIRMAN MCCONNELL: All right. Moving next, 23 a vote of -- 24 MS. SHULER: Nine to two. 25 CHAIRMAN MCCONNELL: By a vote of nine to 0068 1 two, the gentleman is found qualified and nominated. 2 Moving next to The Honorable Patrick R. Watts. 3 PROF. FREEMAN: It can't be nine to two. 4 SEN. KNOTTS: We only have ten people on the 5 commission. 6 CHAIRMAN MCCONNELL: Eight to two. I'm 7 sorry. Patrick Watts? 8 REP. DELLENEY: There being nothing that came 9 out or that surfaced in Mr. Watts' screening to 10 disqualify him. I would move that he be found qualified 11 and nominated for the Dorchester delegation for the term 12 of this race. 13 CHAIRMAN MCCONNELL: Motion is that The 14 Honorable Patrick R. Watts be found qualified and 15 nominated. Do I hear a second? 16 SENATOR NICHOLSON: Second. 17 CHAIRMAN MCCONNELL: It's now been moved and 18 seconded. The floor is now open for discussion. Is 19 there any discussion? If there's no discussion, we'll 20 move to a vote. All in favor of the motion to find him 21 qualified and nominated, please raise your right hand. 22 MS. SHULER: Senator Nicholson, Ms. McLester, 23 Representative Delleney voting Representative Clemmons' 24 proxy, Senator McConnell, Representative Mack, and Mr. 25 Sellers, and Mr. Harrell. Eight. 0069 1 CHAIRMAN MCCONNELL: Thank you. Opposed by a 2 like sign. 3 MS. SHULER: Professor Freeman and Senator 4 Knotts. That's two. So it's eight to two. 5 CHAIRMAN MCCONNELL: Abstentions or proxies? 6 REP. DELLENEY: I voted for Representative 7 Clemmons. 8 CHAIRMAN MCCONNELL: All right. A vote of 9 eight to two, the gentleman is found qualified and 10 nominated. All right. We move next to Henderson. I'm 11 going to ask Judge Henderson to come on in. 12 (The Honorable Roger E. Henderson enters 13 room.) 14 CHAIRMAN MCCONNELL: All right. We'll go 15 back on the record at this particular time. We have 16 before us The Honorable Roger E. Henderson who's 17 offering in family court, Fourth Circuit, Seat Number 18 one. Good morning, sir. 19 JUDGE HENDERSON: Good morning. 20 CHAIRMAN MCCONNELL: If you'd be so kind as 21 to raise your right hand. 22 (THE HONORABLE ROGER E. HENDERSON, being 23 first duly sworn, testified as follows:) 24 CHAIRMAN MCCONNELL: Thank you. The Judicial 25 Merit Screening Commission has thoroughly investigated 0070 1 your qualifications for the bench. Our inquiries 2 focused on our nine evaluative criteria and is included 3 a survey of the bench and the bar, a thorough study of 4 your application materials, a verification of your 5 compliance with state ethics laws, a search of newspaper 6 articles in which your name appears, a study of previous 7 screenings, and a check for economic conflicts of 8 interest. We have received one affidavit filed in 9 opposition to your election. One witness is present to 10 testify. That would be Mr. Terry Raymond -- is it 11 Housley? 12 MR. HOUSLEY: Yes, sir. 13 CHAIRMAN MCCONNELL: I want to make sure I 14 say good morning to you, too, sir. 15 MR. HOUSLEY: Thank you. 16 CHAIRMAN MCCONNELL: I would ask you if you 17 have any brief opening statement you would like to make 18 at this time. That's purely optional. The procedure is 19 this: We will have staff ask you series of questions, 20 and we will hear from the complainant, opportunity for 21 you to respond. During the time that both you and the 22 complainant testify, the commissioners may have some 23 questions also. 24 JUDGE HENDERSON: All right, sir. I don't 25 have an opening statement. I'm ready to proceed. 0071 1 CHAIRMAN MCCONNELL: All right. Please 2 answer counsel's questions. 3 MR. GENTRY: Mr. Chairman and members of the 4 commissioner, I have procedural matters to take care of 5 with regards to Judge Henderson. Judge Henderson, you 6 have before you the personal data questionnaire you 7 submitted as part of your application. Are there any 8 additional amendments that you'd like to make at this 9 time to your PDQ? 10 JUDGE HENDERSON: No. 11 MR. GENTRY: Mr. Chairman, I'd like to ask 12 that Judge Henderson's personal data questionnaire be 13 entered as an exhibit into the hearing record. 14 CHAIRMAN MCCONNELL: Without objection, so 15 ordered. 16 (Exhibit 3, Personal Data Questionnaire 17 of The Honorable Roger E. Henderson, admitted.) 18 MR. GENTRY: Judge Henderson, you also have 19 before you the sworn statement you provided with 20 detailed answers to over 30 questions regarding judicial 21 conduct, statutory qualifications, office 22 administration, and temperament. Are there any 23 additional amendments you would like to make at this 24 time to your sworn statement? 25 JUDGE HENDERSON: No, sir. 0072 1 MR. GENTRY: Mr. Chairman, I'd like to ask 2 that Judge Henderson's sworn statement be entered as an 3 exhibit into the hearing record. 4 CHAIRMAN MCCONNELL: Is there any objection? 5 Being none, so ordered. 6 (Sworn Statement of The Honorable Roger 7 E. Henderson, admitted as part of Exhibit 3.) 8 MR. GENTRY: One final procedural matter I'd 9 note for the record, that based on the testimony 10 contained the candidate's PDQ which has been included in 11 the record with the candidate's consent, Judge Henderson 12 meets the statutory requirements for this position 13 regarding age, residence, and years of practice. 14 BY MR. GENTRY: 15 Q. Judge Henderson, why do you want to continue 16 to serve as family court judge? 17 A. Well, I've been doing this for a little over 18 14 years now, and I feel like I've got a lot of 19 experience to offer citizens of this state. I'd like to 20 continue my public service. I've very much enjoyed the 21 public service to the state all these many years and 22 would like to finish my career as a family court judge. 23 Q. Although you addressed this in your sworn 24 affidavit, could you please explain to the members of 25 the commission what you think is the appropriate 0073 1 demeanor for a judge? 2 A. Well, a judge should be courteous, he should 3 be patient, he should be considerate of all litigants 4 and those before him. He should be sure and maintain a 5 proper decorum in his courtroom. 6 Q. Please explain to the commission your policy 7 and procedures regarding pro se litigants that come 8 before you. 9 A. Pro se litigants that appear before me are, 10 you know, afforded every opportunity to appear in the 11 court, present their case. We give them access to the 12 court. We certainly do explain to them that they are to 13 follow the procedures and the rules of the court that 14 anyone else who is represented would have to follow. 15 We are very -- I am somewhat careful in the 16 assistance that I provide or offer to them because 17 obviously that would not be fair to someone who is 18 represented by counsel. But as I said, I do -- I do 19 offer them every opportunity to present their case and 20 to be heard. 21 Obviously, if they don't have things right, 22 if they haven't served somebody properly or given proper 23 notice, you know, we would continue the case and give 24 them another opportunity to come another day. But, I 25 mean, they're entitled to their day in court just like 0074 1 anybody else who's represented. 2 Q. What suggestions, if any, would you offer for 3 improving the backlog of cases in family court? 4 A. That's a difficult question because the 5 backlogs are serious, particularly in the small circuit 6 where I'm from, which is the Fourth Circuit. We are 7 limited on the number of days that we have court in 8 certain counties. If you have a five-day week, many 9 days -- three or four days are consumed with agencies: 10 DSS, DJJ, child support, rules to show cause, leaving 11 maybe a day and a half or a day sometimes to present 12 cases. 13 And I don't really know 100 percent what the 14 answer is, but we need some help with maybe 15 administrative type things that would free us up to -- 16 to work on the cases, the major cases, the individual 17 cases, you know, the divorce cases. If there was some 18 way to handle maybe the child support, rules to show 19 cause in some administrative form, that would free a day 20 of court. 21 I spent all day yesterday in Marlboro County 22 hearing rules to show cause for people who have not paid 23 their child support. That would have been a day we 24 could have used to dispose of private cases. The 25 private case log is really getting further and further 0075 1 behind. 2 But I don't know 100 percent what the answer 3 is, but we -- the agencies are just consuming us. And 4 not that they don't need to be heard either, but if 5 there's just some way to -- I don't -- but I would try 6 to maybe find some way -- if there's some way to get 7 some assistance and maybe somebody to help us prepare, 8 you know, orders in the courtroom, get some 9 administrative -- and that's -- that's something that we 10 can do as judges, get some of the local personnel to 11 come in and help speed up the process so we're not 12 sitting there writing out orders, you know, taking up 13 extra time. So things of that nature. 14 Q. What would you like for your legacy to be as 15 a family court judge? 16 A. That I was a fair judge, that I gave 17 everybody an opportunity to be heard, that -- that I've 18 treated everybody fairly, and that they, you know, 19 respected the job that I did. 20 Q. Thank you, Judge. 21 MR. GENTRY: Mr. Chairman, at this time, 22 unless there's any questions from the commission, I'd 23 like for the commission to call Terry Housley forward to 24 testify. Mr. Housley filed an affidavit in opposition 25 to Judge Henderson's re-election. 0076 1 CHAIRMAN MCCONNELL: All right. Does any 2 member have a question of the judge before we go to the 3 complainant? If you'll have a seat. Thank you, sir. 4 Mr. Housley, if you'll come forward. If you'll raise 5 your right hand, please, sir. 6 (TERRY HOUSLEY, being first duly sworn, 7 testified as follows:) 8 CHAIRMAN MCCONNELL: Thank you, sir. Please 9 answer counsel's questions. 10 BY MR. GENTRY: 11 Q. Mr. Housley, please state your full name and 12 address for the record. 13 A. It's Terry Raymond Housley, 900 Broken Pine 14 Road, Wedgefield, South Carolina, 29168. 15 Q. Mr. Housley, you filed an affidavit in 16 opposition to Judge Henderson for re-election, correct? 17 A. Yes. 18 Q. The nature of your complaint arises out of 19 your divorce proceedings in 2000 and 2001 in which Judge 20 Henderson presided; is that correct? 21 A. Yes. 22 Q. You allege that Judge Henderson's rulings in 23 the divorce proceedings lack reason and that his orders 24 contained fundamental errors; is that correct? 25 A. That's correct. 0077 1 Q. Please briefly explain to the commission the 2 nature of these allegations as they specifically relate 3 to Judge Henderson's character, competency, or ethics. 4 A. I had a misfortune in 1999 to have a wife 5 who -- who moved to another state to be with another 6 man. And in that process, Judge Henderson did not find 7 adultery in this case. She lived with this guy for a 8 year and a half. Judge Henderson simply just did not 9 catch that. 10 And I often say that it's a distinction 11 before you today as well, but in the same token, I would 12 like to mention that in this case, I had -- you know, 13 she had emptied out marital assets, moved to another 14 state. It's very hard in -- in -- in reality to capture 15 everything in a court setting. And -- and -- and, you 16 know, our situation Judge Henderson heard a case in two 17 separate hearings in September of 2000 as well as in 18 January of 2001. 19 In March of 2001, Judge Henderson rendered 20 his ruling. When I first received the ruling, I looked 21 at it and I thought he was confused with another case 22 because it did not contain any -- any of the appropriate 23 data. And when I say "appropriate data," he included 24 non-marital property on -- on the court orders that 25 contained a trailer that did not belong to me, it 0078 1 contained a gun collection that was given to me by my 2 father when I was in high school, was not marital 3 property. $8500 worth of guns. 4 And if you -- and I'm not -- and, again, I 5 respect the judge's 14-year experience and I -- and even 6 Alex Rodriguez strikes out every once in a while, and I 7 think that's exactly what he did in this case. He 8 struck out in every step of the way. There is not one 9 monetary correct ruling on that court order that he 10 issued. It, of course, resulted in an appeal action 11 which I strongly disagree with that as well. 12 But the reality is, you know, I served in the 13 air force 27 years. I'm a retired air force guy. Judge 14 Henderson gave my ex-wife 25 percent of my military 15 retirement for life. That's about $800 a month I have 16 to pay for life. If you do the math, if I live till I'm 17 78, Judge Henderson will cost me approximately a half a 18 million dollars. This is not a man you want to be 19 running the family courts of this state. 20 I am sorry to be such a sour grape person, 21 but this man has -- has devastated my life. And my 22 personal opinion is that there's no way I can ever 23 recover financially from this. And I look at myself as 24 if South Carolina was given the same amount of federal 25 restrictions, you would go broke as the state. Your 0079 1 infrastructure would collapse. 2 And -- and I'd like to point out some other 3 issues dealing with this. You know, I realize I don't 4 want to get too long on this, but I want to make sure 5 it's specific to Judge Henderson's qualification. I had 6 a home that required -- it's a family-built home that 7 required 140,000 -- it required $40,000 in maintenance. 8 Judge Henderson did not include the $40,000 of 9 maintenance on his court orders. He also -- he also 10 took away 25 percent of my retainer pay. 11 And this is something that's very important 12 for this commission to understand, is we have something 13 called a Uniformed Services Former Spouse's Protection 14 Act. It does not -- does not give state level court 15 blanket authority to issue money. There is specific -- 16 specific federal laws that have to be followed. Judge 17 Henderson did not follow the federal to the letter. He 18 assumed that because we were married over ten years, 19 that was all the requirement was. Again, that's -- that 20 is a $300,000 mistake on the court order. 21 And I'd also like to emphasize that at the 22 same time my military retainer pay was reduced by 25 23 percent, and I want you to understand that the court 24 orders were not even acknowledged by the banking 25 institutions of this state. They laughed at it when I 0080 1 took them in and said, Here's a court order that says. 2 They said, We can't honor that court order. I was -- I 3 was also given four months to comply with basically pay 4 $63,000 in four months or I was going to go to jail for 5 contempt. I had to borrow the money because the court 6 orders did not grant me access to my bank accounts. And 7 as a result -- I kind of lost my train of thought. But 8 as a result, I didn't have access to my bank accounts. 9 I had to seek other legal provisions, other legal means, 10 i.e., the appeals court, challenging through other 11 attorneys even after -- afterwards -- it got solved 12 seven years after Judge Henderson's ruling in 2001 after 13 almost a $10,000 of additional legal expenses that I 14 incurred. 15 Again, there is not one correct ruling on the 16 court order that was issued by Judge Henderson. I want 17 to emphasize that. Not one correct ruling. I would 18 also like to -- to -- to get you all to understand that 19 if -- if you're issued a court order and you don't have 20 access to your banking accounts, you cannot comply with 21 the court order. Basically I was placed in a very 22 awkward position by this judge, and I've lost a great 23 deal of my financial resources unnecessarily. I had the 24 misfortune of, again, had a wife who moved off and 25 emptied the bank account and house as well. 0081 1 I mean, there's just systemic problems 2 throughout the whole proceedings. I was surprised when 3 I got the court order. My attorney did try to submit a 4 motion for reconsideration for some of these things. 5 Again, Judge Henderson denied the motion for 6 reconsideration. He also denied rehearing which placed 7 me, again, in another costly position to seek, you know, 8 through the appeals process. And, of course, I had no 9 access to my bank accounts. How could I afford to go to 10 the Supreme Court with this matter. So basically South 11 Carolina has put the old screw-Terry-Housley-under-the- 12 bus. 13 I'm a retired military person. I came to 14 South Carolina to serve this nation 27 years in the air 15 force. I didn't need this from the state. Y'all need 16 to do a better job when you select people. And I don't 17 mean this to be critical, but I think sometimes we 18 rubber-stamp these things too quickly. And I hope that 19 this is a growing experience for Judge Henderson. It's 20 certainly been an eye-opening experience for me. 21 Lastly, I'd like to also think that as we 22 look as these things, you know, you can't look for just 23 legal compliance and issue a court order and base your 24 rulings on generality of a case, and I think that's what 25 impacted this case and that's why there was no correct 0082 1 ruling ever issued. You've got to look at the 2 specifics. You've got to look at the details, and 3 that's what Judge Henderson did not do. He didn't look 4 at details in this case. He allowed it -- and not only 5 that, but I even -- I know it might have been an ex 6 parte ruling, but I even notified Judge Henderson 7 telling him that, hey, you really screwed up here. We 8 need to rehear this case or it's going to cost me 9 thousands. He -- he -- he just denied everything, and 10 even a very seasoned attorney told me that he's never 11 had that before where there was such systemic problems 12 with a court order that nobody would rehear the case. 13 So basically, you know, I was just, you know, 14 in a very awkward situation. And I realize I can never 15 recover these losses. But at the same token, I hope 16 that you take that in consideration as you look at Judge 17 Henderson. And, again, you know, I'm not trying to -- 18 you know, he's probably been a great judge throughout 19 the 14-year history. But I'm just saying that he failed 20 in my case miserably, in fact. He didn't -- he didn't 21 come close. And I hope that -- that, you know, y'all 22 take that into consideration. 23 Q. Mr. Housley, just to clarify, you mentioned 24 this, but did you appeal Judge Henderson's decision to 25 the South Carolina Court of Appeals? 0083 1 A. Yes. 2 Q. And what was the result of that appeal? 3 A. The appeal affirmed the ruling and modified 4 some minor things. But keep in mind that the appeals 5 also did not make -- did not -- their court orders were 6 not issued and allowed me access to the bank accounts 7 either. So -- so you've got a systemic problem here in 8 South Carolina. You don't just have a Judge Henderson 9 problem. You've got a systemic problem. 10 Q. Did you -- did you appeal the Court of 11 Appeals' decision to the Supreme Court -- South Carolina 12 Supreme Court? 13 A. I had no money to do that. I would have done 14 that. I did not -- you know, the reality is that if you 15 don't have access to your bank accounts based on your 16 court orders, you cannot do any legal function in the 17 State of South Carolina. And I do believe that -- that 18 they need to be a close scrutiny and maybe you guys who 19 are part of the legislatures can look at this. The 20 Uniformed Service Former Spouse's Protection Act does 21 not grant state level courts to manipulate a federal 22 paying system on -- on a whim. You have to consider 23 that. 24 In my case, Judge Henderson's correct ruling 25 would have been alimony that terminated on remarriage, 0084 1 not military retirement pay or retainer pay. And I'm 2 very bitter about this, and -- and I will never be 3 forgiven. I mean, I accept things, but I don't forgive. 4 I'm done. 5 MR. GENTRY: Mr. Chairman, unless any of the 6 members of the commission have any questions at this 7 time, I'd like for the commission to call Judge 8 Henderson forward to respond to the affidavit against 9 him. 10 CHAIRMAN MCCONNELL: All right. Let me see 11 -- start with Mr. Sellers. 12 MR. SELLERS: Mr. Housley, I want to be sure 13 I understand. You had an attorney representing you at 14 the hearing? 15 MR. HOUSLEY: Yes, sir. 16 MR. SELLERS: Did your attorney present your 17 side of the case to the judge. 18 MR. HOUSLEY: Yes, sir. 19 MR. SELLERS: And -- and there was a full 20 hearing? 21 MR. HOUSLEY: Yes, there was a full hearing. 22 Keep in mind that, of course, after the appeal, I had 23 the transcript of record to go by and what was said. 24 The transcript of record supports everything I'm telling 25 you as well. 0085 1 MR. SELLERS: I understand. But you had -- 2 you had a lawyer representing you and he presented your 3 side of the case, correct? 4 MR. HOUSLEY: That's correct. 5 MR. SELLERS: And he -- he presented the 6 things that you're talking about right now, correct? 7 MR. HOUSLEY: He sure did. And -- 8 MR. SELLERS: Okay. And -- and the judge 9 found against you and the appeals court sustained his 10 ruling; is that fair? 11 MR. HOUSLEY: They affirmed his ruling and 12 modified some minor -- I think it was less than $200 13 type of thing. It was small. Wasn't really 14 significant. 15 MR. SELLERS: And you had -- had an attorney 16 who presented the appeal? 17 MR. HOUSLEY: Yes, Dickie Jones. 18 MR. SELLERS: And did you go to the argument? 19 MR. HOUSLEY: No, they -- they denied oral 20 arguments. And keep in mind, I'm not -- really, I know 21 you're focusing on Judge Henderson here. But keep in 22 mind that when the appeals first started, 50 percent of 23 the exhibits did not make it to the South Carolina 24 Appeals Court for some reason. The appeals court denied 25 oral arguments. 0086 1 In addition to that -- what was I going to 2 say? In addition to that, they should have -- they 3 should have heard oral arguments. And I think Rule 606 4 states that you have to provide all the exhibits. And 5 somehow or another South Carolina, once again, did not 6 do the job they were assigned to do. I feel this, 7 again, this is a judicial related issue. And, you know, 8 I've been fighting for years to get justice from South 9 Carolina. You've cost me $381,000. I'm not a happy 10 camper. And I'm going to tell you, somewhere along the 11 way, South Carolina needs to pay for that. I don't care 12 what your excuse is. 13 MR. SELLERS: Well, that's -- that's not 14 something we're here to do. We're trying to understand 15 today whether the judge -- 16 MR. HOUSLEY: Right. 17 MR. SELLERS: -- whether the judge mistreated 18 you or not. And it's my understanding -- 19 MR. HOUSLEY: Well -- 20 MR. SELLERS: It's my understanding that you 21 had an attorney present at the -- at the family court 22 level? 23 MR. HOUSLEY: Right. 24 MR. SELLERS: You had an attorney who 25 represented you on the appeal and you filed briefs, and 0087 1 those issues that you're talking about right now were 2 raised in those briefs, correct? 3 MR. HOUSLEY: Yes. 4 MR. SELLERS: Okay. So what you're really 5 complaining about is the result; isn't that true? 6 MR. HOUSLEY: Yeah, I'm complaining about the 7 result. 8 MR. SELLERS: Okay. That's all -- that's all 9 I want. 10 CHAIRMAN MCCONNELL: Any other questions at 11 this point? 12 (No response.) 13 CHAIRMAN MCCONNELL: All right. 14 MR. GENTRY: Mr. Chairman, at this time I'd 15 like for the commission to call Judge Henderson forward 16 to respond to the affidavit filed and testimony given. 17 CHAIRMAN MCCONNELL: Mr. Housley, have a seat 18 in case we need to call you back for something. Judge, 19 if you'd come forward, please, sir. Please answer 20 counsel's questions. 21 BY MR. GENTRY: 22 Q. Judge Henderson, are you familiar with the 23 divorce proceedings involving Mr. Housley? 24 A. Yes, sir, I certainly am. 25 Q. You've heard the testimony Mr. Housley has 0088 1 provided with regards to your character, competency, and 2 ethics. Would you like to respond? And if so, please 3 proceed. 4 A. And I'm sorry that Mr. Housley feels that the 5 result that he obtained was not fair to him. But in 6 making a ruling, I have to take the facts as they are 7 presented to me, which is what I did in this case. And 8 then I applied the law of the State of South Carolina to 9 those facts, and I rendered my decision based on that. 10 I mean, that's what I'm supposed to do as a judge. I 11 tried to be as fair as I could be to both parties. 12 There are always two sides in a divorce action. There 13 was a Ms. Housley who had a right to be dealt with in 14 this matter. She was entitled to certain property. 15 I went through this case. I spent a lot of 16 time. I had extensive notes that I took through the 17 course of this two-day trial. I went back, spent 18 probably six weeks off and on with my workload, you 19 know, rendering -- before I rendered this decision. And 20 I gave it a lot of thought and a lot of consideration. 21 And, I mean, the result I came up with is one I thought 22 was fair. 23 Ms. Housley was denied any alimony. Mr. 24 Housley received 60 percent of marital estate leaving, 25 obviously, Ms. Housley 40 percent. I did give her 25 0089 1 percent of his military retirement. I mean, that was 2 fair. I mean, she was married to this gentleman for a 3 long time while he was in the military. And South 4 Carolina recognizes that the spouse is entitled to a 5 portion of their husband's military retirement, and I 6 gave her 25 percent. I didn't give her 50 percent. I 7 gave her 25 percent, which is part of the total 8 equitable division package. 9 All I can say is that, again, just to be 10 repetitive, you know, I applied the law as I understood 11 it to be to the facts that were presented. And not to 12 get any specifics, but with regards to not granting a 13 divorce on adultery, just to touch on one thing, the 14 facts weren't there to grant a divorce on adultery. 15 There was no corroboration of testimony presented by the 16 plaintiff. Matter of fact, his own attorney joined in a 17 motion with other counsel on the second day of the trial 18 to hear this on one year separation, which is what I 19 granted the divorce on. 20 But I don't want to go into each specific 21 allegation other than to say that, you know, I did what 22 I thought was right and what was fair to both parties in 23 this case. 24 Q. To your knowledge, did Mr. Housley appeal 25 your -- appeal the decision to the South Carolina Court 0090 1 of Appeals? 2 A. Yes, sir, he did. 3 Q. And what was the outcome of that? 4 A. I was affirmed with a modification. I had 5 transposed two numbers in rendering my decision. 6 Something like 214, it should have been 124. It's $90 7 difference is what it amounted to. And they required 8 her to return some piece of property that she was 9 awarded that should have been -- should have been his, 10 including some of the property that was awarded to him. 11 So those were the only two minor modifications. 12 Otherwise, the overall decision was affirmed. 13 Q. Is there any other information you would like 14 to provide to the commission as it pertains to Mr. 15 Housley's affidavit in opposition to your re-election? 16 A. No, sir, I don't -- I don't know of anything 17 other than I tried to do what was right. I thought I 18 did what was right. 19 Q. I have a few housekeeping questions to ask 20 you. Have you sought or received the pledge of any 21 legislature prior to this date? 22 A. No, sir. 23 Q. Have you sought or have you been offered a 24 conditional pledge of support of any legislature pending 25 the outcome of your screening? 0091 1 A. No, sir. 2 Q. Have you asked any third parties to contact 3 members of the general assembly on your behalf? 4 A. No, sir. 5 Q. Have you contacted any members of the 6 commission? 7 A. No, sir. 8 Q. Do you understand that you are prohibited 9 from seeking a pledge or commitment until 48 hours after 10 the formal release of the commission's report? 11 A. I understand that. 12 Q. Have you reviewed the commission's guidelines 13 on pledging? 14 A. I have. 15 Q. As a follow-up, are you aware of the 16 penalties for violating the pledging rules; that is, 17 it's a misdemeanor and, upon conviction, the violator 18 must be fined not more than $1,000 or imprisoned not 19 more than 90 days? 20 A. I'm familiar with that. 21 MR. GENTRY: I note that the Pee Dee Citizens 22 Committee found Judge Henderson to be well-qualified for 23 each of the nine evaluative criteria. The committee 24 noted that Judge Henderson has a very good reputation in 25 the community. Mr. Chairman, I have no further 0092 1 questions at the time. 2 CHAIRMAN MCCONNELL: Any member of the 3 commission have any further questions? Senator from 4 Lexington. 5 SEN. KNOTTS: How you doing, Judge? 6 JUDGE HENDERSON: Fine, sir. 7 SEN. KNOTTS: How long was these two people 8 married? 9 JUDGE HENDERSON: I think it was like 16 10 years, if I'm not mistaken. Something in that range. 11 We're talking nine years ago, but I think it was 16 12 years. 13 SEN. KNOTTS: Sixteen years at that time? 14 JUDGE HENDERSON: Yes, sir. 15 SEN. KNOTTS: And he retired from the air 16 force? 17 JUDGE HENDERSON: Yes, sir. 18 SEN. KNOTTS: Do you know how many years he 19 was in the air force or they got married while he was in 20 the air force? 21 JUDGE HENDERSON: They were actually married 22 about, I think, eight years of the 16 years he was in 23 the air force. 24 SEN. KNOTTS: Thank you. 25 JUDGE HENDERSON: That's why I didn't feel 0093 1 like she was entitled to 50 percent of his military 2 retirement. 3 CHAIRMAN MCCONNELL: Any other questions of 4 the commission at this point? If not, this concludes 5 this portion of the screening process. As you know, the 6 record will remain open until the report is published, 7 and you may be called back if the need arises. I'll 8 remind you of the 48-hour rule and ask you to be very 9 mindful of that. In fact, so mindful that if anyone 10 inquires with you about whether they may or may not 11 advocate for you in the event that you are screened out, 12 that you would remind them of the 48-hour rule. 13 With that, we thank you for offering and 14 thank you for your previous service to the people of 15 South Carolina. And to both of you, have a good day. 16 JUDGE HENDERSON: Thank you. 17 CHAIRMAN MCCONNELL: Mr. Housley, thank you 18 for coming, too, sir. 19 MR. HOUSLEY: Thank you. 20 (Off the record.) 21 (The Honorable F.P. Charlie 22 Segars-Andrews enters room.) 23 CHAIRMAN MCCONNELL: All right. We'll go 24 back on the record at this point. We have before us the 25 Honorable F.P. Charlie Segars-Andrews. She's offering 0094 1 for the family court, Ninth Circuit, Seat Number One. 2 If you would raise your right hand, please. 3 (THE HONORABLE F.P. CHARLIE 4 SEGARS-ANDREWS, being duly sworn, testified as follows:) 5 CHAIRMAN MCCONNELL: Thank you. Good 6 afternoon. We're sorry we're running a little bit 7 behind, but we're doing the best we can to all of y'all. 8 The Judicial Merit Selection Commission has 9 thoroughly investigated your qualifications for the 10 bench. Our inquiries focused on our nine evaluative 11 criteria and it included a survey of the bench and the 12 bar, a thorough study of your application materials, a 13 verification of your compliance, state ethics laws, a 14 search of newspaper articles in which your name appears, 15 a study of previous screenings, a check for economic 16 conflicts of interest. We have received one affidavit 17 filed in opposition to your election. One witness is -- 18 I think more than one, actually, now. 19 MS. BENSON: Two. 20 CHAIRMAN MCCONNELL: Two witnesses are 21 present to testify, and we will get to them. At this 22 point I'd ask if you have any brief opening statement 23 you wish to make. It is purely optional. The procedure 24 that we follow is I'll turn you over to counsel. And 25 this will apply to everyone else who will be testifying. 0095 1 Counsel will ask you some questions. Completion of 2 that, commissioners will ask their questions. And then 3 after we hear from the witnesses, you'll have a chance 4 to respond. Counsel will ask you some questions and the 5 commissioners will. So all of you kind of understand 6 that's how we proceed. So if you have the optional, 7 fine. If not, I'll turn you over to counsel and we'll 8 get started. 9 JUDGE SEGARS-ANDREWS: Thank you, 10 Mr. Chairman. 11 MS. BENSON: Judge Segars-Andrews, you have 12 before you your personal data questionnaire which has 13 some amendments to it which you submitted as part of 14 your application. Is there any other amendment that you 15 would make at this time to your PDQ? 16 JUDGE SEGARS-ANDREWS: No, ma'am. 17 MS. BENSON: Thank you. Mr. Chairman, I 18 would ask that Judge Segars-Andrews' personal data 19 questionnaire and the amendments be entered into 20 exhibits as part of the hearing record. 21 CHAIRMAN MCCONNELL: Is there an objection? 22 There being none, so ordered. 23 (Exhibit 2, Personal Data Questionnaire 24 of The Honorable F.P. Charlie Segars-Andrews, admitted.) 25 MS. BENSON: Judge Segars-Andrews, you now 0096 1 have before you a sworn statement that you provided with 2 detailed answers to over 30 questions regarding judicial 3 conduct, statutory qualifications, office 4 administration, and temperament. Is there any amendment 5 that you would have to this package at this time? 6 JUDGE SEGARS-ANDREWS: No, ma'am. 7 MS. BENSON: Thank you. At this time, Mr. 8 Chairman, I would ask that Judge Segars-Andrews sworn 9 statement be entered into exhibit on the hearing record. 10 CHAIRMAN MCCONNELL: Is there objection? 11 There being none, so ordered. 12 (Sworn Statement of The Honorable F.P. 13 Charlie Segars-Andrews, admitted as part of Exhibit 2.) 14 MS. BENSON: Mr. Chairman, one final 15 procedural matter. I'd note for the record that based 16 upon the testimony contained in Judge Segars-Andrews 17 PDQ, which has been included in the record with her 18 consent, that she meets the statutory requirements for 19 this position regarding, age, residence, and years of 20 practice. 21 BY MS. BENSON: 22 Q. Judge Segars-Andrews, for the record, as a 23 family court judge and a candidate for that position, 24 would you please state the city and the judicial circuit 25 in which you reside? 0097 1 A. Charleston, South Carolina, the 2 Ninth Judicial Circuit. 3 Q. Thank you. Judge Segars-Andrews, why do you 4 want to continue as a family court judge? 5 A. Well, years ago as a young attorney, I did 6 not know what I wanted to do with my career. And I was 7 with Judge Judy McMahan. Judy Bridges at that time. 8 And I asked her how she liked being a family court 9 judge. And she looked at me and she says, It is the 10 greatest job. I get paid for helping people. And a 11 light went off in my head. And at that point on, I 12 began campaigning to be a family court judge, and I was 13 elected approximately a year after that. 14 Q. Could you explain to the members of the 15 commission what you think is the appropriate demeanor 16 for a family court judge to have? 17 A. Well, I think I need to be Christlike. I 18 think when somebody says anything, that I need to try -- 19 what I -- what I've learned to do is draw a line in the 20 sand, which means -- I'm sure you remember the story 21 where Jesus drew the line in the sand. I try to be 22 patient and think before I speak, and I think that's 23 what we as judges and human beings are called to be. 24 Q. What would you like your legacy to be as a 25 family court judge? 0098 1 A. To have turned children's lives around. 2 Q. And what kind of suggestions would you have 3 to offer for improving the backlog of cases on the 4 docket in the family court? 5 A. Well, for the past year and almost a half, 6 I've been the Chief Administrative Judge in Charleston, 7 so I've been in control of that document. And in family 8 court, we don't have a big backlog down there right now. 9 And what has helped most of all, is that we have started 10 a program for the abuse and negligent of children's 11 cases. And they started a pilot in Horry County on this 12 where they had mediators mediate these cases if they 13 couldn't immediately settle them to try to get the 14 children back into homes and to try to meet federal 15 mandates. 16 I asked the chief justice if I could start 17 that, and she says I could not start it because I could 18 not give the lawyers who mediated the cases 608 credit. 19 But if I could find some other way, I could do it. And 20 so I got about 25 lawyers agreed to just give their 21 time. And so every Friday we have these wonderful 22 family court lawyers that just come down and give their 23 time to help settle these cases, and it's cleaned up our 24 docket. 25 MS. BENSON: Thank you, Judge. 0099 1 Mr. Chairman, at this time, I would turn to 2 the complaint filed against Judge Segars-Andrews. This 3 complaint was brought by Mr. William R. Simpson, Jr., a 4 litigant who appeared in family court before Judge 5 Segars-Andrews. And in addition, I have subpoenaed 6 Mr. Simpson's attorney, Mr. Steven S. McKenzie. And 7 both of them are here to appear today, and I would ask 8 first that Mr. William R. Simpson, Jr. come forward to 9 be sworn and give his statement. 10 CHAIRMAN MCCONNELL: All right. No one had 11 -- no commissioner had any questions at this point? 12 Good. Judge, if you'll have a seat. Mr. Simpson, if 13 you'll come forward. And if you'd raise your right 14 hand, please, sir. 15 (WILLIAM R. SIMPSON, JR., being duly 16 sworn, testified as follows:) 17 CHAIRMAN MCCONNELL: Thank you, sir. Please 18 answer counsel's questions. 19 BY MS. BENSON: 20 Q. Mr. Simpson, I have spoken with you, your 21 attorney, and Judge Segars-Andrews about the complaint, 22 and I would like to give you a brief summary of the 23 complaint and then let you comment about that summary, 24 please. 25 This complaint is based on the following 0100 1 factual situation: Judge Segars-Andrews made a decision 2 concerning the division of marital property between 3 Mr. Simpson and his wife. After hearing the case, Judge 4 Segars-Andrews learned that one of the attorneys 5 representing Mr. Simpson's wife had been affiliated in a 6 case with her husband that resulted in a six-figure 7 attorney's award fee. Judge Segars-Andrews then recused 8 herself and indicated that the case would have to be 9 reheard, but told the counsel that she would accept any 10 research or arguments they would like to present on the 11 issue. 12 The attorneys for Mr. Simpson's wife brought 13 forward an affidavit from Professor Nathan Crystal of 14 the University of South Carolina, School of Law. 15 Professor Crystal's affidavit indicated that based on 16 the analysis of ethical rules, Judge Segars-Andrews did 17 not need to recuse herself. Judge Segars-Andrews then 18 proceeded to make an order in the case. 19 Mr. Simpson submitted a complaint to the 20 commission on judicial conduct. In that complaint, he 21 pointed out that the attorneys for his wife were 22 connected in other matters with Professor Crystal and 23 that Judge Segars-Andrews served as the vice chairman of 24 the commission on judicial conduct. The commission 25 dismissed the complaint that was filed against Judge 0101 1 Segars-Andrews. 2 Mr. Simpson then appealed the matter to the 3 Court of Appeals which issued two separate decisions, 4 one of which indicated that there was no abuse of 5 discretion by Judge Segars-Andrews, and the second 6 determined that Mr. Simpson failed to present any 7 evidence of prejudice or bias on Judge Segars-Andrews 8 behalf which would require her to recuse herself and, 9 thus, Judge Segars-Andrews had a duty to sit on this 10 matter. 11 As I understand, Mr. Simpson's complaint 12 against Judge Segars-Andrews alleges the appearance of 13 impropriety in that she failed to recuse herself, she 14 was not being properly attentive during his attorney's 15 presentation at trial. He has included affidavits that 16 indicate that the judge kept responding to instant 17 messaging on her computer while his attorneys were 18 presenting his case; that she made an excessive 19 determination in favor of his wife while leaving him 20 with a large debt and responsibility for his children, 21 and of her being involved in a system where attorneys 22 use their connections to facilitate the decisions they 23 want to be determined for their clients. 24 Mr. Simpson, does that summary adequately 25 summarize your complaint? And is there anything that 0102 1 you would like to add to that summary? 2 A. Yes, ma'am. That is -- summary basically 3 touches the edges on everything that I have submitted to 4 the Court of Appeals, to the Supreme Court, and also to 5 the Judicial Review Board and the lawyer conduct board. 6 But to show the prejudice of the court is very hard to 7 do. I've went through every aspect of trying to get 8 this case opened to hear. 9 I don't have the money and the aspects of 10 having my own task force to get out and search down the 11 judge's connections. I know in my case there was a 12 600 -- a six-figure fee that was involved with the 13 judge's husband and the opposing party's lawyers. They 14 have an admitted ongoing working relationship with the 15 opposing side which I was not of knowledge or my 16 counsel. My lawyers were not of knowledge of. She had 17 came to Clarendon County for the first time, never -- 18 never heard anything of who she was, to how she got 19 position to be over the judge. 20 And my case in Clarendon County, if I had 21 known any of the aspects of her husband's law firm and 22 the opposing side's positions on their connections with 23 settling six-figure fees, I would -- I feel like I 24 haven't had a fair trial. We went to -- after the case 25 was -- was started, we went to the court on the 14th of 0103 1 February and we were of the assumption that we were 2 going to get a fair trial because we had an open-mind 3 judge from Charleston. 4 And once we got in that day of testimony 5 where we were presenting our case, I noticed the judge 6 was not very attentive to some of the things, which I'm 7 just a farmer from Clarendon County. I've been doing it 8 all my life. I don't know some of the things that go on 9 in court. I was not aware of what the sounds were 10 coming from the judge's computer, from the desk. After 11 our recess, I talked with my lawyer about that and some 12 of the things that I thought was an issue. And he asked 13 the -- his secretary in there and she said, you know, 14 that it was instant messages, that that's the way the 15 computer sends instant messages back. Which this is 16 Valentine's Day, which is February the 14th and all this 17 is going on. 18 There was a lot of other things that kind 19 of -- we were looking for the fairness of the trial. 20 All of the things was before the court to do with my 21 ex-wife's abuse of the children. She had run off with 22 another man, left me with my children which was four and 23 seven-years-old at the time. I was, like I said, a 24 farmer trying to raise my children in the environment of 25 country, rural development. And I'm the primary worker 0104 1 and caretaker of my children and took care of all their 2 needs. 3 And by the end of the verdict, which when the 4 order came back -- and I'd have to say on the second day 5 of the trial, which was two days later, I was very 6 alerted to see how the judge -- to see whether she was 7 taking notes of the case -- my case that day. That next 8 day of trial, which was two days later, there was 9 hardly -- there was no instant messages that I heard 10 from my seat and could hear in the court that day. 11 Didn't know how to really take that to -- I didn't know 12 exactly what to do at that point. She is the judge 13 hearing my case. 14 We got an order back. The order came from 15 Mr. McLaren. He signed the order. Everything was in 16 there that was 60 percent, if you took all of the 17 marital assets in favor of my ex-wife. Also gave her 18 $83,000 worth of attorney fees and costs that I was due 19 to pay, which exceeded somewhere three hundred twenty, 20 forty thousand dollars. Left me with all the liability 21 of all the farm property and all my ways to make a 22 living for my children. Left me with $230,000 worth of 23 assets and the liability of all those assets. 24 Once that was done, we realized there was a 25 major problem. I wanted to know everything about where 0105 1 she came from, her association with the law, you know, 2 family court law, to see exactly how she came up with 3 these kind of rulings. We started backtracking and, 4 like I say, I'm not very familiar with laws or the 5 courts of any way of finding out anything. So I went 6 and sat down with my lawyer to see exactly what we 7 needed to do, and we found out that Mr. -- her husband 8 -- Ms. Segars-Andrews' husband is -- is what I was 9 telling you on the six figure fees. 10 She would -- we carried her back to court to 11 see if she would recuse herself. She did and she -- she 12 also -- while I was sitting in the court, she recused 13 herself of several different reasons. She seen the 14 Canons. She said she had read over the Canons and 15 realized it was her duty not to sit if it would have 16 been disclosed. I would have had the option to have not 17 had her hear my case, which I would not have. I was 18 never given that option. 19 So she ultimately decided two times on the 20 bench -- and I -- I'm a small farmer and our court 21 system and things I've seen and witnessed, when -- when 22 the judge tells you, basically that's what you're 23 supposed to rely on. She said she was going to prepare 24 an order to that recusal, that I was going to get a new 25 trial. I was under the assumption that that was exactly 0106 1 what I was going to get. 2 After that day, she had said to the opposing 3 side, which was her husband's affiliation with the law 4 firm with the six-figure fees, there's other -- there 5 was other connections there. We weren't able to dig 6 them all up because I basically run out of money. It's 7 bankrupt my family farm at what I'm doing. 8 I've been catching every kind of problem you 9 can raising my family under the situations that I've 10 incurred due to the legal fees and -- and if anybody has 11 ever heard of $83,000 having to be paid to a lawyer -- 12 opposing lawyer where the wife has run off with another 13 man, abused the children, and left me stuck with the 14 inability to pay and -- and accommodate my family, has 15 put me into bankruptcy. I went and sought Mr. Reed 16 Smith from Columbia. 17 I was all under the understanding that, you 18 know, she should get her fair interest. There is a code 19 of laws that I, you know, obtained that the judge uses a 20 certain merit system on how to determine the 40, 50, 60 21 percent of interest that's in a marital estate. This 22 was no way done. 23 I do not feel like it was fair. I know it 24 was prejudice and bias. I have no proof. I had no 25 funds. We asked for the Judicial Review Board to 0107 1 oversee and open something up on this. She is 2 co-chairperson of the Judicial Review Board. 3 I basically -- when everything we've done, 4 we've had doors slammed in our face. As -- as her 5 husband's law firm put, they -- opposing side are 6 fellow-fellows. And I feel like the good old boy system 7 and the fellow-fellows that's happened in this case 8 has -- has came into the courtroom and it has presided 9 on my case. 10 After Mr. Crystal was hired by the opposing 11 side, he wrote an affidavit. We were never able to 12 question our affidavit -- his affidavit for the 13 memorandum of laws and all that he presented. This was 14 done -- also, he -- he had worked for Mr. McLaren and 15 Mr. Warner on cases up 25 years ago, and it goes back to 16 the things that they said by her husband's law firm. 17 She admitted to them knowing about the large 18 sums of money. She recused herself. They got this guy. 19 I don't know where the paper trail ends on money, and 20 money is one of the largest things that decides cases, 21 decides people, who their friends are and who they're 22 not. And I know that I would feel a lot better that if 23 there was an investigation to take place, if this board 24 had any way to check on any of the issues that I've 25 presented to the Judicial Conduct Board, and I would 0108 1 definitely hope that this would not happen to anybody 2 else because it is very financial draining. 3 I've done everything in my power to get all 4 this stuff adjudicated and straight. And that's why I'm 5 here today, is to show that the money is one of the 6 biggest things that's hindered this case. And the 7 relationship from the husband's law firm and to the 8 opposing side, nobody disclosed this to me. The 9 opposing side was well aware of this, and her husband 10 had knowledge and spoke it over with her. 11 And once we called it all out on the table in 12 front of her, she recused herself. And then now it's 13 another coverup of all the good old boy system, I feel 14 like, and it's cost me a lot of money and a lot of 15 things has taken place and this is not right. It don't 16 smell good. It don't look good. If you look at the 17 Canons, the appearance of impropriety which was stated 18 by Mr. Crystal in his case, if this is not an 19 impropriety that's happened not only from my testimony, 20 but from the judge's own testimony and her -- her 21 recusing herself twice on the stand, giving us a new 22 trial, plus her order on how she awarded $83,000 worth 23 of attorney fees to the other -- to a woman that has 24 abandoned her own children and -- and abused her own 25 children and left me to take care of all these things, I 0109 1 do not see where I was fairly judged. 2 I've seen it in court and I seen it in my 3 order, and that's basically what I have to say. I hope 4 it don't happen to anybody else. And the only thing 5 else I could add is it only effects you when it -- when 6 it's your -- your case. And this case has hit me so 7 hard, it's -- it's -- like I said, it's financially 8 drained me. But not only that, I have a whole different 9 outlook of the court system. Once you find out the 10 different connections and all, I thought the judicial 11 system was fair and honest. I do not have that feeling 12 today. I don't know of anything that could change my 13 mind other than all the doors that was closed, put more 14 emphasis in the thoughts that the judge had did wrong. 15 And after Mr. Crystal was hired by the opposing side and 16 we were not able to ask questions, his own facts were 17 biased by what he had discovered from the people that 18 had hired him. We don't know how much money was 19 involved with his testimony, his affidavit. We don't 20 have any amount of figuring that because all of the 21 things I came up to Columbia to find the process of how 22 many other cases have been seen that this has came up 23 before with Mr. McLaren and -- and Ms. Segars-Andrews on 24 the appearances of different ones she's settled cases, 25 we were told that that is not information we can 0110 1 receive. And I would have to file a freedom of 2 information act. I don't have any idea how to go about 3 doing all these things. I have a duty to my family to 4 work on the farm and do all these things, and that's why 5 we've asked all these questions before all the courts 6 and that's why we're here today. And I don't have 7 anything else to add. 8 Q. Mr. Simpson, did you consider appealing the 9 case further beyond the Court of Appeals to the Supreme 10 Court? 11 A. Yes, ma'am, I did. After the Judicial 12 Conduct Board, we found out the connection to the 13 chairperson, co-chairperson, of the Judicial Conduct 14 Board, that that was displaced, I had no more money. I 15 had spent -- we had to send seven packets of 16 information, which is very costly. 17 I'm not of the intelligence to figure out and 18 type all these things. I had to get my attorney's 19 secretary to help me do all these things. And it cost 20 me a great deal. I was already financially drained. I 21 was looking at losing all of my property. She had gave 22 all of my property that I farmed to my ex-wife, and that 23 gave a great unstable feeling. I lost my business. I 24 had a small store. I went ahead and closed it up to be 25 able to take care of my family. 0111 1 I had to auction off my property I had in my 2 store. And the financial burden it entailed with all 3 this process has been unsurmountable, and I couldn't 4 follow it through to the Supreme Court to be able to get 5 the settlement that I needed to -- that I thought was 6 going to be getting. 7 MS. BENSON: Mr. Chairman, I would point out 8 for the commission that in Mr. Simpson's complaint, he 9 has included two affidavits concerning the hearing in 10 which recusal was the issue and that the judge discussed 11 recusal, as well as he has included the transcript for 12 that -- for -- concerning the recusal. And at this 13 point, I would have no further questions for Mr. 14 Simpson. 15 CHAIRMAN MCCONNELL: Do any members of the 16 commission have any questions? I have a couple. Go 17 ahead, Mr. Sellers. 18 MR. SELLERS: Mr. Simpson, I want to commend 19 you for taking care of your children. I understand 20 that. How long were you married? 21 MR. SIMPSON: Twelve years. 22 MR. SELLERS: And you had counsel who 23 represented you at all times during the hearing, 24 correct? 25 MR. SIMPSON: Yes, sir. 0112 1 MR. SELLERS: And all of the things that you 2 have discussed with us today were raised at the hearing 3 and subsequently at the appeal; is that correct? 4 MR. SIMPSON: None of the information was 5 raised at the hearing for the trial because none of it 6 was known to us until the order was rendered by the 7 judge. 8 MR. SELLERS: But subsequent -- as I 9 understood it, subsequent to the trial, both sides 10 appeared and argued about the issue of whether or not 11 the judge should recuse herself. Is that what took 12 place? There was -- subsequent to the trial, there was 13 a hearing where the parties had the opportunity to come 14 in and make a presentation about whether or not the 15 judge had a conflict that would require her to recuse 16 herself; is that -- 17 MR. SIMPSON: No, sir, this was after she had 18 made her order, if that's what you're saying. I'm not 19 exactly sure. We -- we had no knowledge of her having 20 to recuse herself for the connection of her husband's 21 law firm until after she had rendered her order. And 22 then once that was done, we had a complaint hearing to 23 her as a rule to show cause why she shouldn't hear the 24 case. And we went that route for her recusal, which she 25 did on that court date that we went. Both parties 0113 1 argued that. My lawyer -- it's in the testimony. I can 2 present you a copy of that transcript. 3 MR. SELLERS: Yeah, I've got a copy. I just 4 want to be sure I understand the sequence. There was a 5 trial where you were represented by counsel. 6 MR. SIMPSON: Yes, sir. 7 MR. SELLERS: And your wife was too? 8 MR. SIMPSON: Yes, sir. 9 MR. SELLERS: And -- and you had the 10 opportunity -- and I assume during that trial, you and 11 your counsel presented your side of the case to the best 12 of your ability and to the best of the attorney's 13 ability? 14 MR. SIMPSON: Yes, sir. 15 MR. SELLERS: And subsequent to that trial, 16 this is where I'm confused, there was an order that was 17 issued first? 18 MR. SIMPSON: Yes, sir. 19 MR. SELLERS: And then after the judge had 20 made her ruling, a subsequent motion was made for her to 21 recuse herself; is that correct? 22 MR. SIMPSON: Yes, sir. Yes, sir. 23 MR. SELLERS: And you had counsel present and 24 you were present and argued that position -- your 25 position during that hearing? 0114 1 MR. SIMPSON: Yes, sir. Which at that time 2 she recused herself twice on the stand to give us a 3 fair -- a new trial, retry the case. And she also, as 4 the transcript showed, she -- she -- she didn't never 5 offer us any other thing that she was preparing an 6 order. She offered the other side that they could do 7 whatever they wanted, but it's basically not going to 8 change her mind on anything. She was preparing the 9 order, is what I have. 10 Off the record -- while we were sitting 11 there, she went off the record for whatever reason, I 12 have no idea. But she said you guys can do whatever you 13 want to, looking at Mr. Warner and Mr. McLaren. You can 14 do whatever you want. My mind is made up. We're going 15 to hear this case. There's nothing going to change my 16 mind. Then she goes back on the record. I have no idea 17 why that happened. Whatever. It was very tentative in 18 there to her, very adamant about recusing herself in 19 there that day and having a new trial. 20 MR. SELLERS: I guess that's where I'm 21 confused. There was a hearing on the motion or on the 22 rule for her to recuse herself. And she -- as I 23 understood it, she -- at the end of the day, she said I 24 will receive whatever you guys, I assume to both of you, 25 want to present to me about whether or not I'm going to 0115 1 issue an order recusing myself? 2 MR. SIMPSON: No, sir, she never presented 3 that to us at all. 4 MR. SELLERS: But the other side did 5 subsequently present an affidavit -- 6 MR. SIMPSON: Yes, sir. 7 MR. SELLERS: -- is that correct? 8 MR. SIMPSON: That's right. From Mr. 9 Crystal. 10 MR. SELLERS: Did you present anything? Did 11 you or your counsel present anything? 12 MR. SIMPSON: We had no knowledge that we 13 needed to present anything. We had no knowledge that 14 anything was going to sway her mind in any kind of way. 15 We was not given the opportunity before she gave the 16 order to even question Mr. Crystal's ability of what his 17 knowledge was of the affidavit or what he submitted. We 18 had no idea what he had heard, where he heard it from or 19 anything. 20 MR. SELLERS: So you had no opportunity to 21 challenge the affidavit submitted by Professor Crystal? 22 MR. SIMPSON: None at all. 23 MR. SELLERS: That's all. 24 CHAIRMAN MCCONNELL: Let me ask you a couple 25 of questions nobody else has. I'm trying to understand 0116 1 all this too. You did not learn about what you thought 2 was a potential conflict until after all of the 3 evidential hearing had been held; is that correct? 4 MR. SIMPSON: That's right. 5 CHAIRMAN MCCONNELL: And there was a proposed 6 order out there; is that correct? 7 MR. SIMPSON: It was on order already. It 8 was already given to me. 9 CHAIRMAN MCCONNELL: All right. Was that 10 order already signed or was that the proposed order? 11 I'm just trying to make sure I understand all of this. 12 MR. SIMPSON: It was already prepared by 13 Mr. McLaren and -- 14 CHAIRMAN MCCONNELL: Who is your wife's 15 attorney? 16 MR. SIMPSON: Right. And -- and -- and 17 Ms. Segars-Andrews had already signed it. It was sent 18 to -- that was my order by the court. And once I -- 19 CHAIRMAN MCCONNELL: Did your -- did your 20 attorney see that order before it was signed? 21 MR. SIMPSON: I'm -- I'm not sure. I don't 22 think he did. 23 CHAIRMAN MCCONNELL: That's the first time 24 you saw it, is when it's signed? 25 MR. SIMPSON: Yes, sir. 0117 1 CHAIRMAN MCCONNELL: All right. Next thing, 2 the attorney fees. Let me make sure I understand this. 3 Did you see the affidavit that was filed for attorney 4 fees on her behalf? 5 MR. SIMPSON: Yes, sir. I seen numerous of 6 those. They -- they -- the attorney fees that was 7 filed, one of them was at an emergency hearing. And I 8 have a copy of that that y'all probably not -- probably 9 don't have. But it was an emergency hearing. We stayed 10 in court for 30 minutes. The opposing side had 11 presented a legal fee bill for $60,000. The case was 12 decided to go to a long hearing or, I guess, a day or 13 two hearing, which we ultimately went to. 14 But $54,000 was attorney fees, and just that 15 part of that case, that hearing, and 6,000 of that was 16 time and travel from Columbia to Manning -- Columbia to 17 Sumter for two trips which was $3,000 a trip. And it's 18 all on the record and I have copies of that. But, 19 ultimately, they presented attorney fees after they was, 20 I think, in the case for right at $213,000 or somewhere 21 in that neighborhood. 22 CHAIRMAN MCCONNELL: All right. The 23 affidavit that we -- 24 MR. SIMPSON: And -- and -- and the attorney 25 fees affidavit was sent in, in favor of Mr. McLaren from 0118 1 the judge's husband's law firm in favor of their 2 attorney fees. 3 CHAIRMAN MCCONNELL: And which -- was that 4 the affidavit at the first hearing or where the big 5 hearings were held? 6 MR. SIMPSON: That affidavit was sent in 7 earlier at one of the hearings in evidence before a 8 motion on attorney fees. I'm not exactly sure. The 9 attorney fee affidavit was presented that -- the day of 10 the court also. They had so many different ones that 11 they put in, I'm not sure exactly when that one was put 12 in. But I know Mr. Andrews' law firm had put in an 13 affidavit of attorney fees in favor of Mr. McLaren which 14 they done business together. We had no knowledge of 15 that at that time. 16 CHAIRMAN MCCONNELL: All right. And let me 17 ask you, approximately what were your attorney fees up 18 to this step? Not all the appeals stuff. Just up to 19 then. I'm just trying to understand the relative fees 20 in this case. 21 MR. SIMPSON: I want to think around 8500 to 22 9500. 23 CHAIRMAN MCCONNELL: That's what you paid? 24 MR. SIMPSON: Yes, sir. They had all my 25 records already. Mr. Warner and Mr. McLaren had all of 0119 1 my records in the case with my mother and father. And 2 once they had -- I had been basically adjudicated out of 3 that case and I was not eligible for any kind of process 4 in the case there, then that's when Mr. Warner and 5 Mr. McLaren sought out my ex-wife, which we had already 6 had a settlement beforehand, before any of this stuff 7 came up, that she and I had already agreed into, 8 settled. And then Mr. McLaren and Mr. Warner went and I 9 got the phone records of where they called my ex-wife 10 six months after we had settled. They carried me back 11 to court because they had lost their case against me 12 with -- my mother had sued me. And they went after my 13 wife. They got her. They got the case overturned that 14 we had been in front of Judge McFadden. He had heard 15 the case and heard the agreement and seen the agreement. 16 He ordered it. Then it was overturned. 17 And then Mr. Warner and Mr. McLaren, I went 18 to the next hearing, which was that emergency hearing I 19 was telling you about for the $60,000. And then the 20 next hearing was Valentine's Day with Judge 21 Segars-Andrews who had never been to Clarendon County. 22 And all the things that had taken place in my case. If 23 there is no prejudice and no bias and you can tell me 24 that I had a fair trial with all the evidence on the 25 record from the judge's mouth and from the transcripts 0120 1 and from the six figure fees, I don't see any way that 2 there's not -- but I don't have the burden of proof to 3 be able to do that because I don't have the money. 4 CHAIRMAN MCCONNELL: Let me interrupt you 5 because I'm just trying to understand the fundamental so 6 I can understand because I want to hear both sides and 7 make sure. What I hear you saying, and correct me if 8 I'm wrong, is you had what was approached a two-day 9 hearing on your divorce. Subsequently, you found out -- 10 you got an order that you had never previously seen 11 signed by the judge. And in that order is $83,000 worth 12 of attorney fees that you are to pay your wife? 13 MR. SIMPSON: Yes. 14 CHAIRMAN MCCONNELL: All right. And from 15 your standpoint, at that point you only had accrued 16 around $8500 in attorney fees? 17 MR. SIMPSON: That's correct. 18 CHAIRMAN MCCONNELL: All right. Subsequent 19 to this, let me make sure I understand it, you did some 20 checking and became, in your mind, suspicious that there 21 was some sort of connection? 22 MR. SIMPSON: Anybody in their right mind. 23 CHAIRMAN MCCONNELL: All right. Now, I just 24 want to make sure I understand the benchmarks here of 25 what you're saying. You subsequently filed motions 0121 1 through your attorney to have the judge excused and get 2 a new trial? 3 MR. SIMPSON: Yes. 4 CHAIRMAN MCCONNELL: And initially it's your 5 contention you were going to get that. And I won't get 6 into he said and she said. But subsequently there was 7 an affidavit issued by a professor, and you never had an 8 opportunity to cross-examine regarding that. Is that 9 your contention? 10 MR. SIMPSON: Exactly. Yes. 11 CHAIRMAN MCCONNELL: All right. Who got the 12 divorce? What was the divorce gotten on the grounds of? 13 MR. SIMPSON: Grounds of adultery of my wife. 14 CHAIRMAN MCCONNELL: And the court found 15 against her on adultery? 16 MR. SIMPSON: Yes, sir. 17 CHAIRMAN MCCONNELL: You got the children? 18 MR. SIMPSON: Yes, sir. 19 CHAIRMAN MCCONNELL: Does she have to pay 20 child support? 21 MR. SIMPSON: Yes, sir. 22 CHAIRMAN MCCONNELL: And the property 23 division, what was generally the total percentage of the 24 property that you got? 25 MR. SIMPSON: I actually -- once it got to 0122 1 the actual property, she had all of the land that was 2 free and clear, every parcel that I had that I could 3 farm agriculture-wise, she got it free and clear. No 4 liens. The land that had all the liens -- 5 CHAIRMAN MCCONNELL: Worth approximately 6 what? 7 MR. SIMPSON: 233,000, I think. I'm not 8 exactly sure. 9 CHAIRMAN MCCONNELL: All right. Now, tell me 10 about what you got. 11 MR. SIMPSON: I got half -- that half -- the 12 233 other half with all the debt. 13 CHAIRMAN MCCONNELL: And how much debt was on 14 that? 15 MR. SIMPSON: $222,000. 16 CHAIRMAN MCCONNELL: All right. Was there a 17 marital home or is that included in -- 18 MR. SIMPSON: That's included. 19 CHAIRMAN MCCONNELL: That's all the questions 20 I have at the moment. Anybody else have some questions? 21 Senator from Lexington. 22 SEN. KNOTTS: I was reading here. Tell me 23 about a $1500 check that was framed or something. 24 MR. SIMPSON: Yes, sir. When -- when we had 25 the depositions in Columbia here, Mr. Warner's office 0123 1 for the grandparent of my wife, I went in the office to 2 hear the deposition. And as we went in the conference 3 room in the office where -- the first office where you 4 check in, I guess you say, the secretary is there, I 5 looked in the back of the room and there's a check for 6 $711,500 in a four by eight frame, four -- not four 7 inches, four foot by eight foot, as big as a sheet of 8 plywood if that gives you an example, framed on the wall 9 from a farmer from Sumter County, Mr. Clayton Louden. 10 And the amount was $711,500 of attorney fees that was 11 paid to Jan L. Warner from the estate of Clayton Louden 12 estate. 13 Well, once I seen this, we were sitting there 14 and I kind of looked over to the left in the -- in the 15 same room on the wall, and there was a framed picture of 16 a check and a -- and a paper, and I looked and I was at 17 a distance maybe as far as you are from me now looking 18 at it. I walked over closer. I got to looking at it, 19 and I noticed that it was written, looked like, in my 20 father's handwriting and it looked to be one of our farm 21 checks. And as I looked, I said, you know, that looks 22 like my daddy's handwriting, thinking to myself. As I 23 got closer, I noticed the check was W. R. Simpson Farms. 24 He had a framed check. It was two foot. It wasn't as 25 big as the other check. It was two foot by three foot 0124 1 framed on his wall as a trophy like you would have a 2 deer or whatever the case would be on your mantle piece 3 in his office. And that was -- that's the case that -- 4 SEN. KNOTTS: This didn't have anything to do 5 with judge? 6 MR. SIMPSON: No, sir, this didn't. 7 SEN. KNOTTS: Okay. This is something that 8 happened years ago? 9 MR. SIMPSON: No, sir, it's all during this 10 case. But it has to do with the judge's husband's 11 partners. They were partners in settling these 12 six-figure fees, and this was one of the things that 13 showed me that he was very adamant about causing me to 14 go bankruptcy as he had done to the other farmer in 15 Sumter County. We were out there in the same 16 neighborhood. Sumter and Clarendon County is together. 17 And in the end, the amount of attorney fees ended up 18 being between my father and my cost around about six or 19 seven hundred thousand dollars is what's been 20 administrated and showed in court with affidavits and 21 fee affidavits from the judges' husband's law firm. 22 SEN. KNOTTS: But it wasn't part of this 23 case? 24 MR. SIMPSON: Sir? 25 SEN. KNOTTS: It wasn't part of your 0125 1 complaint against this judge? 2 MR. SIMPSON: No, sir. It was in the 3 lawyer's office of opposing counseling. 4 MS. BENSON: Mr. Chairman -- 5 CHAIRMAN MCCONNELL: Let me see if there are 6 anymore -- I'm sorry. I'm trying to read and everything 7 else. Any other commissioners have questions? Yes, Mr. 8 Sellers. 9 MR. SELLERS: I'm confused again. The framed 10 checks on the wall, what you're saying is that those 11 checks were obtained as a result of affidavits submitted 12 by the judge's husband's law firm? 13 MR. SIMPSON: No, sir. Those framed checks 14 were the opposing law firm's office. It had -- 15 MR. SELLERS: So there was no connection to 16 any of this stuff? 17 MR. SIMPSON: No, sir. 18 MR. SELLERS: All right. That's what I 19 thought. 20 CHAIRMAN MCCONNELL: All right. Any other 21 commissioner have a question before we go back to 22 counsel? Counsel. 23 MS. BENSON: Mr. Chairman, I would have no 24 further questions for Mr. Simpson. I would have some 25 questions for his attorney, Mr. McKenzie, who is here. 0126 1 CHAIRMAN MCCONNELL: All right. No further. 2 Please have a seat and hear from Steven McKenzie. 3 (STEVEN MCKENZIE, being duly sworn, 4 testified as follows:) 5 CHAIRMAN MCCONNELL: Please answer any 6 questions counsel has for you. 7 BY MS. BENSON: 8 Q. Mr. McKenzie, did you represent Mr. Simpson 9 in his divorce proceedings? 10 A. I did. 11 Q. And -- and you appeared before Judge 12 Segars-Andrews? 13 A. I did. 14 Q. And you were subpoenaed to appear here today? 15 A. I was by you. 16 Q. Yes, sir. Did you feel that my summary 17 accurately reflected Mr. Simpson's complaint about the 18 proceedings before Judge Andrews? 19 A. That's my understanding of his complaint, 20 yes. 21 Q. Would you add anything to that summary? 22 A. I was -- I was the -- obviously I was the 23 counsel present that day whenever the case was being 24 presented, and the case was bifurcated in two separate 25 dates. So we had the 14th of February date which we 0127 1 were the moving party. And as Mr. Simpson stated, his 2 wife had committed adultery, had moved in with another 3 person, and had actually physically assaulted their 4 children. That case was actually -- the divorce was 5 actually granted on the grounds of adultery. So she was 6 statutorily barred from receiving alimony. 7 And so we were presenting the equitable 8 distribution of the case and the attorney fee portion of 9 the case on the 14th and the 16th of February, 2006. So 10 as I was presenting my case -- which I was the moving 11 party as the plaintiff in that action, Mr. Simpson was 12 the plaintiff. That day when we were presenting the 13 case, it was Valentine's Day. And I know that -- and I 14 think Judge Segars-Andrews told us she had dinner plans 15 that evening and wanted to get out of there early, which 16 we had absolutely no problem with all of us, and that's 17 one of the reasons I think the case was carried over to 18 the 16th. Not simply because of that. I think 19 everybody wanted to get out because it was Valentine's 20 Day. 21 And so we tried the case that day. And 22 during the time that the trial was ongoing and I was 23 presenting witnesses and, of course, I'm in my mode as a 24 trial attorney presenting my case, I kept hearing a 25 dinging noise going off from the judge's computer. I 0128 1 didn't know what it was because I don't use instant 2 messenger. I didn't know what instant messenger was. 3 My secretary who was in there with me, I had to ask her 4 what that noise was coming from the -- from the -- from 5 the judge's computer. She told me it sounded to her 6 like it was instant messenger. 7 The judge was taking what I thought was notes 8 on her computer during the entire trial. I don't know 9 whether that was going on or not. I have no way of 10 knowing that. I just know I -- it appeared that the 11 judge was -- appeared to be attentive during the trial, 12 but she was taking notes and -- but she was responding 13 to these dings on the computer. 14 At one point in the trial, I walked up to the 15 bench. And in Clarendon County, they have -- the bench 16 is a little bit higher than most family courts that I've 17 been in. But I'm a little bit taller that most lawyers, 18 and I can see over the bench and she -- Judge 19 Segars-Andrews was -- was signing a -- I don't know if 20 she was signing. She was filling out a Valentine's Day 21 card, and -- and it wasn't a small card. It was one of 22 these cards you buy at Wal-Mart that would -- that you 23 can fold open. It's a big card. And -- and I just 24 noticed that she was doing that. 25 I went back and talked to my client. 0129 1 Obviously, you know, it concerned me that I thought the 2 judge, you know, after hearing about the instant 3 messenger from my secretary, about seeing the card. And 4 in this position, you know, a lawyer is caught kind of 5 in a catch 22 position because if you go up and you can 6 say, well, Judge, I've got a problem with you signing a 7 Valentine's Day card or writing a Valentine's Day card 8 during the presentation of my case, then obviously that 9 might prejudice my client. 10 And I talked to my client about that. I 11 said, how do you want me to proceed with this, because 12 obviously I can make this motion that, Judge, you're not 13 being attentive during the trial, but it also may shoot 14 you in the foot. And so we -- we as a decision between 15 myself and Mr. Simpson decided that we would just let 16 that issue go because maybe -- and give her the benefit 17 of the doubt. Maybe she was, you know, typing notes on 18 the computer and wasn't responding to instant messenger 19 and maybe that, you know, she was -- could pay attention 20 and also write a Valentine's Day card. I don't know. I 21 have no way of knowing. 22 I do know that when I got this order back -- 23 and Mr. Simpson is incorrect on what the sequence of the 24 events because I can tell you the sequence of the 25 events. We did get a proposed memorandum on the order 0130 1 from the judge. And when I got this proposed memorandum 2 from the judge back, I had never been involved in a 3 case -- and at that point I had been practicing for 12 4 years, and -- and part of my practice -- and I'm in a 5 small -- you know, I'm in Manning. So I'm in a small 6 town, but yet I do a little bit everything. So I do a 7 little bit of family court work, criminal court work. 8 Basically what walks in the door. 9 But I do a good bit of family court work, and 10 I had never seen a case where an adulterous spouse who 11 had abused her children, abandoned the marital home, and 12 moved to another state leaving the children, not having 13 visitation with the children, wouldn't even visit the 14 children, being awarded $83,000 in attorneys fees. Now, 15 let me back up on that. 78,000 was attorneys fees, five 16 of it was costs to pay for her experts. And so I had 17 never seen that before. 18 And I did not -- I had never appeared before 19 Judge Segars-Andrews, so I did not know her. And 20 whenever she came to Clarendon County, I was like Mr. 21 Simpson, I said, well, we've got a good Charleston 22 lawyer -- I mean, Charleston judge, you know, won't know 23 the attorneys from Columbia hopefully. You know, I'm 24 from Manning. This should be a good neutral person to 25 hear our case. 0131 1 We got to doing some searching around and at 2 that point, I did not know her husband was Mark Andrews. 3 Had no idea. I mean, obviously if you connect the dots, 4 Judge Segars-Andrews, she's obviously married somebody 5 whose last name is Andrews. So I probably should have 6 made that connection. I did not do that. 7 But when I got to checking around, I told 8 him, I said, well, she is married to a lawyer, a family 9 court lawyer, who practices primarily in Charleston. 10 And then I made a motion because Lon Shull, one of 11 Mr. Andrews' law partners, had filed an affidavit in 12 support of the -- not the award of attorneys fees, but 13 in support of the amount of the hourly billing rate. 14 And you've got to understand that, again, from Manning, 15 I can't charge $500 an hour to a client, but there are 16 lawyers in this state who do do that. And -- and as Mr. 17 Simpson told you, his -- his attorney fees at this point 18 were fairly meager compared to what his wife who hired 19 Mr. Warner and Mr. McLaren had amassed. 20 And so we got to checking and found out that, 21 you know, that -- that Lon Shull was the -- was the 22 partner of Mr. Andrews. And I made that motion and this 23 is based on the memorandum that had come out before the 24 signed order had come out. 25 So on April 14th, she has a hearing in Sumter 0132 1 County because she had been assigned to the third 2 circuit at that point. And so she has a hearing in -- 3 in Sumter County based on my motion that I had stated 4 where I said that the -- Mr. Shull had given an 5 affidavit, and that Mr. Shull was the law partner of 6 Judge Segars-Andrews' husband, I felt like that she 7 should recuse herself from at least that portion of the 8 attorneys fees issue. 9 Judge Segars-Andrews, instead of addressing 10 that motion, she basically denied that motion herself. 11 She said that motion is -- has no -- she looked at me 12 and said, Mr. McKenzie, that motion has basically no 13 merit to it. But she said, After thinking about this, I 14 do need to disclose something. And this is all in the 15 transcript. She said I do need to disclose something 16 that she said she knew about but had forgotten, that her 17 husband and -- her husband's law firm and Mr. McLaren, 18 which was opposing counsel, had shared in a large -- she 19 said -- I think the quote was a large six-figure fee. 20 And she said that you guys are going to have to try this 21 case over again. 22 And, again, being from a small town, I've had 23 judges tell me things on the record. And when they tell 24 me something on the record, I take it as the gospel. 25 And that's what she told me. She said -- and she didn't 0133 1 tell me -- and Mr. Simpson is correct. She didn't say 2 it once. She said it twice. And then she went off the 3 record, as Mr. Simpson said, and she said -- she 4 actually leaned over the bench. I recall this like it 5 was yesterday. She leaned over the bench and she said, 6 You guys don't understand. I am telling you, you guys 7 have got to try this case over again. I should have 8 disclosed this. I didn't, and I feel like I can't 9 remedy that situation. 10 And Mr. Simpson was sitting there with me, 11 walked out of that courtroom that day thinking this 12 judge made her mind up. And -- and I think you're 13 right, that there was a question about whether or not we 14 had an opportunity to submit anything later. The 15 problem in that case, I think that -- that what we were 16 hearing was Mr. McLaren was arguing, judge, can I submit 17 something to you? And she said to him, you can submit 18 to whatever you want. But it's, you know, basically not 19 going to change my mind. I've already made my mind up. 20 I have -- I have to recuse myself from this case. So 21 that is the sequence of events that got us to where we 22 were. 23 Now, whenever we left that courtroom, we 24 get -- we get a memorandum of law and something from 25 Nathan Crystal. And I looked at it and I said, well, 0134 1 the facts aren't even correct in this thing, the 2 memorandum or the -- the law -- or the affidavit from 3 Nathan Crystal. I said, you know, this is not even -- 4 doesn't even take into consideration all the facts of 5 it. So as -- as an attorney and after having heard what 6 I heard from the judge on the bench, it never occurred 7 to me that she would reverse her recusal, which she did. 8 And my client feels that, you know, we don't 9 have any way of going out -- you know, one of the things 10 that the Court of Appeals said in the -- in this -- when 11 we appealed this issue, we had to show prejudice. I 12 mean, and that's almost an impossible task. I mean, we 13 have no -- we had no investigative arm. We can't 14 investigate it. He couldn't investigate what the large 15 six-figure sum means. I mean, to me a dollar would not 16 sway my mind as a judge as -- as one way or another. 17 But, I mean, we've had, you know, over the years and in 18 the course the history of this country, hundreds of 19 thousands of dollars have swayed a lot of peoples' 20 minds. 21 And I don't know what the nature of that 22 money was that went from one side to the other, but I 23 can tell you it upset my client. And for my client to 24 have to pay $83,000 in attorney fees for the conduct 25 that what his wife had done during this -- during this 0135 1 marriage -- on a 12-year marriage. And if you look at 2 the balance in this judge's order, she in her order, she 3 said it's a 60/40 split. But if you add the attorneys 4 fees and the costs back in there, you can pretty much 5 reverse that. It's pretty much a 60/40 split in favor 6 of the wife. So, of course, that gave everybody 7 involved in this case a lot of concern. 8 How do you go -- I mean, I didn't bring up 9 the issue with the money. The judge did. How do you -- 10 how do you reconcile that issue when your husband has a 11 working relationship -- an ongoing working relationship 12 and that was -- there were cases that were actually on 13 appeal that Mr. McLaren and Mr. Andrews' firm were 14 working on together at the time that this case was being 15 heard. So how do you reconcile that with the duty to -- 16 or the appearance of impropriety? And I don't know how 17 you do that, and how do we prove that? So we were -- we 18 were tasked with an impossible task by the Court of 19 Appeals. 20 So when my client came to me and said, What 21 do you think of taking this to the Supreme Court? I 22 said, Well, number one, it will cost you some more money 23 to do that because just copying this stuff cost money. 24 I said, Number two, how do you get past this -- I mean, 25 we have no way of investigating this to show the 0136 1 appearance or to show the necessary things that the 2 Court of Appeals says we need to show in order to 3 overturn the judge's order of recusal. So I told him at 4 that point, You need to go talk to a bankruptcy 5 attorney, and that's what he did. 6 Q. Mr. McKenzie, as I understand you, your 7 client filed a complaint with the Office of Judicial 8 Conduct? 9 A. That's correct. 10 Q. Is that correct? 11 A. That's correct. 12 Q. Do you have concerns about the way that that 13 complaint was handled? 14 A. Well, I do. My client and his father 15 actually went -- 16 Q. And may I hault you for just a minute, Mr. 17 McKenzie. 18 MS. BENSON: Mr. Chairman, this may be 19 information that the commission would want to receive in 20 executive session since it concerns a complaint that was 21 dismissed by the Office of Judicial Conduct. 22 CHAIRMAN MCCONNELL: All right. Why don't 23 we, before we deal with that, let's go back and deal 24 with anything that was public and see if anybody has any 25 questions and try to take this step by step. 0137 1 Mr. Sellers? 2 MR. SELLERS: Mr. McKenzie, did you submit 3 something in opposition to the attorneys fee award? 4 MR. MCKENZIE: I'm trying to think back. I'm 5 almost positive I submitted something in opposition to 6 everything that we did -- they did in this case. 7 Whether I specifically said the attorney -- yeah, let 8 me -- and that's the reason, I think, for Lon Shull's 9 affidavit, is because the question of the hourly billing 10 rate, you know, what was the customary and standard fees 11 for an attorney to bill at a certain rate. Well, in 12 Clarendon County, it ain't $500 an hour. We can't get 13 that. I wish we could, but we can't. It's 150, maybe 14 175, maybe 200 an hour at the most. 15 And so the answer to your question is -- is I 16 recall filing opposition -- something in opposition to 17 about everything that was done in this case. Yes. 18 MR. SELLERS: But do you recall specifically 19 submitting something in opposition to the other side's 20 petition or whatever it was for the award of attorneys 21 fees and challenging as you've done today the rate that 22 was being alleged to be due? 23 MR. MCKENZIE: If I recall, we actually 24 called the attorney to the stand to question him about 25 his rate. If I recall correctly, that's what we did. 0138 1 We called the attorney to the stand and questioned him 2 on his hourly rate and questioned him about those fees. 3 MR. SELLERS: Did you submit your -- your 4 fees? 5 MR. MCKENZIE: I'm almost positive we 6 submitted our attorneys fees affidavit, yes. 7 MR. SELLERS: So you had an affidavit showing 8 that you had, what, $8500 in fees? 9 MR. MCKENZIE: I don't recall what the number 10 was, but, you know, it wasn't anywhere near -- I mean, I 11 think -- I think Mr. Simpson is correct. His fees were 12 approaching 180 to 200,000 dollars that they said they 13 had occurred, which if you look at this marital estate 14 would have been more than almost -- almost half or even 15 a third -- better than a third, probably 40 percent of 16 the marital estate in fees. 17 CHAIRMAN MCCONNELL: Any other questions? 18 I'm trying to read so much material here and understand 19 it. Make sure I understand your testimony and also I 20 understand what happened in this case. The equitable 21 division, before I include debts in there, was 22 approximately what to what? 23 MR. MCKENZIE: All right. If you look at 24 page 14 of her order, she states that there is $777,000 25 worth of assets on page 14. 0139 1 CHAIRMAN MCCONNELL: Let me find it. Where 2 is that in our book? 3 MR. MCKENZIE: Her order is dated -- it's 4 a -- it's a 25-page order and it's dated -- the front of 5 it says February 14th and 16th, 2006. 6 CHAIRMAN MCCONNELL: All right. I don't have 7 it before me, so let me just ask specific questions and 8 you try to help me get these benchmarks. 9 MR. MCKENZIE: Sure. 10 CHAIRMAN MCCONNELL: The marital estate 11 according to her order was approximately how much? 12 MR. MCKENZIE: $777,031. 13 CHAIRMAN MCCONNELL: $31? 14 MR. MCKENZIE: Right. 15 CHAIRMAN MCCONNELL: All right. Now, of 16 that, approximately how much did Mr. Simpson get and 17 Ms. Simpson get? 18 MR. MCKENZIE: And let me back up. When I 19 say the assets of the estate, she -- she lumps 20 everything in that including the debt. 21 CHAIRMAN MCCONNELL: Yes, sir. I'm going to 22 come back and get the debt. I'm just slowly getting 23 these steps down so I understand what's here. 24 MR. MCKENZIE: Of the 77,000 -- or the 25 777,000, she awards 555,000 to Mr. Simpson. 0140 1 CHAIRMAN MCCONNELL: All right. 2 MR. MCKENZIE: And $221,000 to Ms. Simpson. 3 CHAIRMAN MCCONNELL: All right. Now, tell 4 me, to the best of your knowledge, what debt applies to 5 each one of these people. Before the -- not the 6 attorney fees. Just any mortgages. 7 MR. MCKENZIE: All right. The debt that was 8 on the property that Mr. Simpson got -- every bit of the 9 property that Ms. Simpson got was debt-free, but 10 everything that Mr. Simpson got had debt on it which was 11 $242,500. 12 CHAIRMAN MCCONNELL: All right. And on 13 Ms. Simpson, what was the debt on hers, to the best of 14 your recollection? 15 MR. MCKENZIE: She had an $8,000 credit card 16 debt that she incurred after the separation of the 17 parties. 18 CHAIRMAN MCCONNELL: All right. Now, all of 19 this was contained in that memorandum that you indicated 20 of the order? 21 MR. MCKENZIE: No, sir. That -- that -- that 22 was -- this is the final order. 23 CHAIRMAN MCCONNELL: This is the final order. 24 So that memorandum of order that you saw, it didn't 25 state specifically where the money was going? 0141 1 MR. MCKENZIE: It did. It -- it was -- it 2 was -- and I'll see if I can find a copy of that. I'm 3 not sure I have a copy of that memorandum. I have the 4 final order. She -- she circulated a memorandum, you 5 know, obviously prior to, and that's what prompted the 6 motion to recuse herself. But anyway she -- the 7 memorandum said he's going to get this, she's going to 8 get this, and, you know, we're going to divide, and then 9 he's going to have to pay $83,000 in attorneys fees and 10 costs. 11 CHAIRMAN MCCONNELL: And just so I kind of 12 understand the sequence of events, the question of the 13 divorce being granted on the grounds of adultery you 14 knew? 15 MR. MCKENZIE: Right. 16 CHAIRMAN MCCONNELL: She got no alimony, 17 right? 18 MR. MCKENZIE: She was barred from alimony. 19 CHAIRMAN MCCONNELL: All right. And then I 20 just want to make sure. Correct me if I'm wrong if I 21 don't understand what your testimony was. It was around 22 April the 14th, the motion to recuse at least on the 23 attorney fees, correct? 24 MR. MCKENZIE: That was -- that was the day 25 we actually had the hearing. The -- I believe I filed 0142 1 the motion on -- and I've got the motion right here. 2 It's dated March 28, 2006. So sometime subsequent to 3 the -- we got a -- I mean, our -- sometime before that, 4 we did receive a memo saying -- because I would not have 5 filed a motion, obviously, had we not received the memo. 6 CHAIRMAN MCCONNELL: All right. I want to 7 make sure I understand so I can fairly ask the judge 8 too. At the time that you filed that motion, did you 9 know that Mr. Shull -- is that his name, Shull or 10 Shull -- was her husband's law associate? 11 MR. MCKENZIE: At the time I filed the 12 motion, I did. At the time we had the hearing, I did 13 not. 14 CHAIRMAN MCCONNELL: At the time that you had 15 the hearing on the divorce? 16 MR. MCKENZIE: Divorce. 17 CHAIRMAN MCCONNELL: All right. But on April 18 the 14th when you filed the motion on the attorney 19 fees -- 20 MR. MCKENZIE: Right. 21 CHAIRMAN MCCONNELL: -- you knew at that 22 point and that motion was denied by her; is that 23 correct? 24 MR. MCKENZIE: That's right. 25 CHAIRMAN MCCONNELL: And did you bring to the 0143 1 court's attention that that was her husband's law 2 partner? 3 MR. MCKENZIE: I did. And she said, Mr. 4 McKenzie, your motion has no merit, but. 5 CHAIRMAN MCCONNELL: And then she went into 6 the other? 7 MR. MCKENZIE: Then she went into the other. 8 CHAIRMAN MCCONNELL: I want to make sure I 9 understand your testimony. Your testimony is you left 10 that hearing, you and your client, with the 11 understanding that she was recusing herself? 12 MR. MCKENZIE: No matter what we did, we 13 weren't going to change her mind. 14 CHAIRMAN MCCONNELL: All right. And the 15 conversation that occurred afterwards was, I think, Mr. 16 McLaren saying could he introduce some other stuff. She 17 essentially responded, it isn't going to change my mind. 18 Did you have a subsequent hearing after that -- 19 MR. MCKENZIE: No, sir. 20 CHAIRMAN MCCONNELL: -- to consider the 21 professor, or whoever this was, affidavit? 22 MR. MCKENZIE: No, sir. And we -- 23 CHAIRMAN MCCONNELL: So how did you find out 24 that she wasn't going to recuse herself? 25 MR. MCKENZIE: She sent out a single-page 0144 1 memorandum to us. And I'm trying to -- pardon me for 2 shuffling, but I'm having to go back and reinvent the 3 wheel. But she signed a single-page memorandum that was 4 dated May 3rd, 2006, and it says -- and it's to me, to 5 Mr. Warner, to Mr. McLaren, and to the guardian ad 6 litem. It says, After reviewing the memorandum provided 7 from the defendant's counsel in this matter and the 8 Canons, this court determines that it has a duty to rule 9 in this case and there was no duty to disclose the 10 working -- the working relationship between McLaren and 11 Andrews and Shull. Mr. McLaren, please prepare an order 12 to this effect. Send a copy to opposing counsel within 13 24 hours prior to sending to my office. 14 I appealed that. That's what I appealed. 15 CHAIRMAN MCCONNELL: All right. I think I 16 understand all of that now. Thank you, sir. Did you 17 have any other questions at this point? We're going to 18 have to -- one of the things the commission is going to 19 have to do, is this is taking longer than we kind of 20 planned on our calendar and we're going to need to 21 discuss some alterations in our schedule today or 22 something because we're starting to -- 23 SEN. KNOTTS: Way back. 24 CHAIRMAN MCCONNELL: -- fall way back and we 25 may need to do that ourselves in private without 0145 1 disturbing everybody else. I was going to suggest that 2 what we do is at least go into executive session for the 3 purposes of discussing what we have ahead of us and any 4 adjustments we need to make and just leave everybody 5 else right here. Is that acceptable to everybody? 6 SEN. KNOTTS: So move. 7 REP. MACK: Second. 8 (The members went into executive session.) 9 (The hearing recessed at 1:30 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0146 1 CERTIFICATE OF REPORTER 2 3 I, Kimberly T. Power, Court Reporter and Notary Public for the State of South Carolina at Large, 4 do hereby certify: 5 That the foregoing deposition was taken before me on the date and at the time and location stated on 6 page 1 of this transcript; that the deponent was duly sworn to testify to the truth, the whole truth, and 7 nothing but the truth; that the testimony of the deponent and all objections made at the time of the 8 examination were recorded stenographically by me and were thereafter transcribed; that the foregoing 9 deposition as typed is a true, accurate, and complete record of the testimony of the deponent and of all 10 objections made at the time of the examination to the best of my ability. 11 I further certify that I am neither related to 12 nor counsel for any party to the case pending or interested in the events hereof. 13 Witness my hand, I have hereunto affixed my 14 official seal this 18th day of November, 2009, Columbia, Richland County, South Carolina. 15 16 17 18 19 _____________________________________ Kimberly T. Power, Court Reporter 20 Notary Public State of South Carolina at Large 21 My Commission Expires: July 22, 2015 22 23 24 25 0147 1 I N D E X 2 CANDIDATE Page 3 FREDERICK SCOTT PFEIFFER 3 4 CAROL ANN ISAAC MCMAHAN 16 5 LEE W. ZIMMERMAN 24 6 THE HON. FREDERICK JAMES NEWTON 35 7 THE HON. PATRICK R. WATTS 38 8 THE HON. ROGER E. HENDERSON 69 9 THE HON. F.P. CHARLIE SEGARS-ANDREWS 93 10 11 WITNESS 12 TERRY HOUSLEY 76 13 WILLIAM SIMPSON, JR. 99 14 STEVEN MCKENZIE 126 15 16 17 18 19 20 21 22 23 24 25 0148 1 E X H I B I T S 2 PAGE 3 7 Personal Data Questionnaire of 5 Frederick Scott Pfeiffer 4 Sworn Statement of Frederick Scott Pfeiffer 6 5 6 Personal Data Questionnaire of 18 6 Carol Ann Isaac McMahan 7 Sworn Statement of Carol Ann Isaac McMahan 19 8 4 Personal Data Questionnaire of 26 Lee W. Zimmerman 9 Sworn Statement of Lee W. Zimmerman 27 10 5 Personal Data Questionnaire of 37 11 The Hon. Federick James Newton 12 Sworn Statement of The Honorable 38 Frederick James Newton. 13 1 Personal Data Questionnaire of 60 14 The Hon. Patrick R. Watts 15 Sworn Statement of The Hon. 61 Patrick R. Watts 16 3 Personal Data Questionnaire of 71 17 The Hon. Roger E. Henderson 18 Sworn Statement of The Hon. 72 Roger E. Henderson 19 2 Personal Data Questionnaire of 95 20 The Hon. F.P. Charlie Segars-Andrews 21 Sworn Statement of The Hon. F.P. 96 Charlie Segars-Andrews 22 23 24 25