0001 1 JUDICIAL MERIT SELECTION COMMITTEE 2 3 EVALUATION OF CANDIDATES 4 BY COMMITTEE MEMBERS 5 6 7 PUBLIC HEARINGS ON JUDICIAL QUALIFICATIONS 8 9 PUBLIC SESSION 10 VOLUME I PM Session 11 12 MONDAY, NOVEMBER 2, 2009 13 ROOM 105, GRESSETTE BUILDING 14 COLUMBIA, SOUTH CAROLINA 15 COMMENCING AT 1:43 P.M. 16 17 REPORTED BY: YVONNE R. BOHANNON Registered Merit Reporter, 18 Certified Realtime Reporter 19 -------------------------------------------------- 20 21 COMPUSCRIPTS, INC. A Full-Service Court Reporting Agency 22 Post Office Box 7172 Columbia, South Carolina 29202 23 1-803-988-0086 1-888-988-0086 24 www.compuscriptsinc.com 25 0002 1 MEMBERS IN ATTENDANCE: 2 SENATOR GLENN F. McCONNELL, CHAIRMAN 3 REPRESENTATIVE F. G. DELLENEY, JR., VICE CHAIRMAN 4 REPRESENTATIVE ALAN D. CLEMMONS 5 PROFESSOR JOHN P. FREEMAN 6 JOHN DAVIS HARRELL 7 SENATOR JOHN M. "JAKE" KNOTTS, JR. 8 REPRESENTATIVE DAVID J. MACK, III 9 AMY JOHNSON McLESTER 10 SENATOR FLOYD NICHOLSON 11 H. DONALD SELLERS 12 COUNSEL PRESENT: 13 JANE O. SHULER, CHIEF COUNSEL 14 HEATHER ANDERSON 15 PAULA BENSON 16 NANCY COOMBS 17 JOEL DEASON 18 PATRICK DENNIS 19 ANDY FIFFICK 20 RUCK FULMER 21 J. J. GENTRY 22 BONNIE GOLDSMITH 23 KATHERINE WELLS 24 25 (INDEX AT REAR OF TRANSCRIPT) 0003 1 REPRESENTATIVE DELLENEY: Good 2 afternoon, Mr. Hodges. We have before us today 3 Mr. Andrew Michael Hodges who seeks the position 4 with Circuit Court of the Eighth Circuit, Seat 5 Number 1. 6 Do you have anybody with you today that 7 you'd like to introduce with you? 8 MR. HODGES: I do. I brought my wife 9 Dawn. She's seated behind me. 10 REPRESENTATIVE DELLENEY: We appreciate 11 her being here. 12 If you would, please raise your right 13 hand to be sworn. 14 (Candidate sworn.) 15 REPRESENTATIVE DELLENEY: Thank you, 16 sir. 17 The Judicial Merit Selection Commission 18 has thoroughly investigated your qualifications for 19 service on the bench. Our inquiry is focused 20 primarily on the nine evaluative criteria which has 21 included a survey of the bench and bar, a thorough 22 study of your application material, verification of 23 your compliance with state ethics law, the search 24 of any newspaper articles for which your name may 25 appear, the study of any previous screenings, and a 0004 1 check for any economic conflicts of interest. 2 We have not received any affidavits in 3 opposition to your election of candidacy, and there 4 are no witnesses here to testify. 5 Do you have a brief opening statement 6 you'd like to make? 7 MR. HODGES: I would just say that this 8 is my second time through this process. I was 9 honored to receive the Committee's nomination last 10 year. Hope that you look equally favorably upon me 11 this year. 12 REPRESENTATIVE DELLENEY: Thank you, 13 sir. If you would, answer any questions our able 14 counsel might have for you. 15 MS. COOMBS: Mr. Chairman and members 16 of the Commission, I just have a few procedural 17 matters to take care of with Mr. Hodges. 18 Mr. Hodges, you -- you have before you 19 your personal data questionnaire that you submitted 20 as part of your application. Are there any 21 amendments that you'd like to make at this time? 22 MR. HODGES: I have no amendments. 23 MS. COOMBS: Mr. Chairman, I would like 24 to ask that Mr. Hodge's personal data questionnaire 25 be entered as an exhibit. 0005 1 REPRESENTATIVE DELLENEY: It will be 2 done at this point in the transcript. 3 (EXH. 1, Personal Data Questionnaire of 4 Mr. Andrew Michael Hodges, admitted.) 5 MS. COOMBS: Mr. Hodges, you have 6 before you now the sworn statement that you 7 provided with detailed answers to over 30 questions 8 regarding judicial conduct, statutory 9 qualifications, office administration, and 10 temperament. Are there any amendments that you'd 11 like to make at this time to your sworn statement? 12 MR. HODGES: I have no amendments to 13 that at this time. 14 MS. COOMBS: Mr. Chairman, I would ask 15 that Mr. Hodges' sworn statement be entered into 16 the record at this time. 17 REPRESENTATIVE DELLENEY: It will be 18 done at this point in the transcript. 19 (EXH. 2, Sworn Statement of Andrew 20 Michael Hodges, admitted.) 21 MS. COOMBS: Finally, I would note for 22 the record that based on testimony contained in the 23 candidate's PDQ which has been included in the 24 record with his consent, Mr. Hodges meets the 25 statutory requirements for this position regarding 0006 1 age, residence, years of -- and years of practice. 2 Mr. Hodges, I believe you have been an 3 attorney for about 13 years now and you've been 4 with the Solicitor's Office since the beginning of 5 your practice. 6 MR. HODGES: That is correct. 7 MS. COOMBS: Would you explain to the 8 Commission why you now want to serve as a Circuit 9 Court judge. 10 MR. HODGES: Well, you know, having 11 been a prosecutor for 13 years, I'm ready for a new 12 challenge. I certainly enjoy the pursuit of 13 justice that you get being a prosecutor. One of 14 the things that I try to teach the assistants that 15 work for me that I supervise is that we're not 16 there to seek convictions. We're there to seek 17 justice, and I think that being a prosecutor and 18 being a judge have those same goals. 19 In addition -- in addition to that 20 pursuit of justice, I enjoy the public service 21 aspect of being a prosecutor. I think I would 22 enjoy that as well being a Circuit judge. This 23 would just give me an opportunity to not only be in 24 General Sessions court but to broaden my legal 25 horizons to get into Common Pleas court and, again, 0007 1 just face a new challenge. 2 MS. COOMBS: Would you explain to the 3 Commission how you feel your legal and professional 4 experience thus far will assist you to be an 5 effective judge. 6 MR. HODGES: Well, certainly my 7 experience in General Sessions court would apply 8 greatly to that half of being a circuit judge. 9 I -- I have a lot to learn in terms of the Common 10 Pleas aspect. But, you know, one of the things 11 that I do in the Solicitor's Office is -- is a lot 12 of scheduling, a lot of docket management. We 13 carry about 2,000 cases in Greenwood County that I 14 supervise in the Eighth Circuit. 15 And certainly one of the things that a 16 Circuit judge needs to be able to do in the Common 17 Pleas arena is to manage a docket and keep it 18 moving, and certainly that's something that I've 19 done in the last 13 years as a prosecutor is move 20 the docket along. With the backlogs that we've 21 got, you need judges that know how to move a 22 docket. 23 MS. COOMBS: Mr. Hodges, are there any 24 areas, including substantive areas of law, where 25 you would need additional preparation in order to 0008 1 serve as a judge, and if so, how would you handle 2 that additional preparation? 3 MR. HODGES: Again, clearly my weakness 4 would be in the Common Pleas. The last couple of 5 years -- in the running for this seat last year and 6 running again this year, I've done a lot of study 7 recognizing that that's one of my weaknesses. I've 8 been going to Common Pleas nonjury terms where I 9 can find an hour just going and watching to see 10 what I can pick up. But would just need to 11 continue that study, taking CLEs that apply to 12 Common Pleas and that sort of thing. 13 MS. COOMBS: Mr. Hodges, although 14 you've addressed this in your sworn affidavit, 15 would you please express to the members of the 16 Commission what you think is the appropriate 17 demeanor for a judge. 18 MR. HODGES: Certainly patience is an 19 important demeanor. I think one of -- from my 20 experience in court, one of the things that I've 21 seen is that most people want to be heard. They 22 want to tell their -- tell their side of the story, 23 and so a judge needs to be patient enough to 24 listen, hear all sides of it before making a 25 decision. 0009 1 The other thing that's very important 2 is to have someone who's willing to work hard, put 3 in the hours, and we've got limited resources, a 4 limited number of judges, and a few judges that are 5 willing to work hard to get the job done. 6 MS. COOMBS: What suggestions would you 7 offer for improving the backlog of cases on the 8 docket in the Court of Common Pleas and/or the 9 General Sessions? 10 MR. HODGES: Well, I mean, again, a 11 judge is willing to work hard and move a docket is 12 important. I think judges need to be approachable. 13 You know, we've got so many cases that you can't 14 afford to try them all, and you've got to find ways 15 to settle cases. And I think if the judge is 16 approachable, it can help the parties find some 17 common -- some common ground to get the case 18 settled, that that would be very helpful in moving 19 the backlog. 20 MS. COOMBS: Thank you, Mr. Hodges. 21 And I just have a few housekeeping questions. 22 MR. HODGES: Sure. 23 MS. COOMBS: Have you sought or 24 received a pledge of any legislator prior to this 25 date? 0010 1 MR. HODGES: I have not. 2 MS. COOMBS: Have you sought or have 3 you been offered a conditional pledge of support of 4 any legislator pending the outcome of your 5 screening? 6 MR. HODGES: I have not. 7 MS. COOMBS: Have you asked any third 8 parties to contact members of the General Assembly 9 on your behalf? 10 MR. HODGES: I have not. 11 MS. COOMBS: Have you contacted any 12 members of the Commission? 13 MR. HODGES: I have not. 14 MS. COOMBS: And do you understand that 15 you're prohibited from seeking a pledge or 16 commitment until 48 hours after the formal release 17 of the Commission's report? 18 MR. HODGES: I understand that. 19 MS. COOMBS: Have you reviewed the 20 Commission's guidelines on pledging? 21 MR. HODGES: I have. 22 MS. COOMBS: And are you aware of the 23 penalties for violating the pledging rules? 24 MR. HODGES: I am. 25 MS. COOMBS: That it's a misdemeanor? 0011 1 MR. HODGES: (Nods head.) 2 MS. COOMBS: Mr. Chairman, do you have 3 any questions? 4 I would just note that the Piedmont 5 Citizens Committee found Mr. Hodges well qualified 6 for two of the nine evaluative criteria, physical 7 health and mental stability, and find him qualified 8 on the remaining seven criteria: The 9 Constitutional qualifications, ethical fitness, 10 professional academic ability, character 11 reputation, experience, and judicial temperament, 12 and the Committee provided the following statement 13 in its report. 14 "The Piedmont Citizens Committee 15 interviewed Andrew M. Hodges at the Greenwood 16 County Courthouse during the evening of September 17 9th, 2009. We found Mr. Hodges qualified for the 18 offices he is seeking. The decision of the 19 Committee was unanimous." 20 And I would just note for the record 21 that any concerns raised during the investigation 22 regarding Mr. Hodges were incorporated into the 23 question of the candidate today. 24 And, Mr. Chairman, I have no further 25 questions. 0012 1 REPRESENTATIVE DELLENEY: Thank you, 2 ma'am. 3 Does any member of the Commission have 4 any questions for Mr. Hodges? 5 There being none, Mr. Hodges, again 6 we'd like to thank you for your willingness to 7 serve and for your coming to appear before us 8 today. 9 This concludes the hearing part of your 10 screening process, and as you know, the record will 11 remain -- from your previous experience before us, 12 you know the record will remain open until such 13 time as the report is published. You may be called 14 back at any time to answer any other questions that 15 we might have up until that time. 16 And I will remind you of the 48-hour 17 rule and ask you to -- once the report is 18 published, as you well know, at the end of 48 hours 19 it turns into the final report of the Commission. 20 And I will remind you of the 48-hour rule and ask 21 you to be mindful of that and that anyone who 22 inquires with you about whether or not they may -- 23 may advocate for you, I would like you to also 24 remind them of that rule. 25 And with that, I'd like to thank you 0013 1 for being with us today and hope that you and your 2 wife have a safe trip back home. 3 MR. HODGES: Thank you for your time. 4 (Candidate excused.) 5 (Off the record.) 6 SENATOR McCONNELL: All right. We'll 7 go back on the record at this point. 8 And we have before us Mr. Joseph C. 9 Smithdeal who is offering for the Circuit Court for 10 the Eighth Circuit, Seat Number 1. 11 Good afternoon, sir. 12 MR. HODGES: Senator, nice to see you. 13 SENATOR McCONNELL: Same here. And do 14 you have anybody you wish to introduce? 15 MR. HODGES: Yes, sir. If it please 16 this Commission, this is my wife Libby, the mother 17 of our five children and an attorney herself. 18 SENATOR McCONNELL: All right. Well, 19 we're delighted to have you with us today. 20 MRS. HODGES: Thank you. 21 SENATOR McCONNELL: With that, if you'd 22 be kind enough to raise your right-hand. 23 (Candidate sworn.) 24 SENATOR McCONNELL: Thank you, sir. 25 The Judicial Merit Selection Commission 0014 1 has thoroughly investigated your qualifications for 2 the bench. Our inquiry is focused on our nine 3 evaluative criteria. This included a survey of the 4 bench and the bar, a thorough study of your 5 application materials, verification of your 6 compliance with state ethics laws, a search of 7 newspapers articles in which your name appears, a 8 study of previous screenings, and a check for 9 economic conflicts of interest. 10 We have received no affidavit filed in 11 opposition to your election. No witnesses are 12 present to testify. 13 I would ask if you have any brief 14 opening statements that you want to make -- it's 15 purely optional -- before I turn you over to 16 counsel for a few questions. 17 MR. SMITHDEAL: Just very briefly, 18 Senator, I'd like too thank Ms. Shuler and her 19 staff, particularly Heather Anderson who was very 20 helpful to me during this process, and I appreciate 21 the opportunity to be here today. 22 SENATOR McCONNELL: Thank you, sir. 23 MS. ANDERSON: Mr. Chairman and members 24 of the Commission, I have a few procedural matters 25 to take care of with Mr. Smithdeal. 0015 1 Mr. Smithdeal, you have before you the 2 personal data questionnaire you submitted as part 3 of your application. Are there any amendments that 4 you would like to make at this time? 5 MR. SMITHDEAL: No, ma'am. 6 MS. ANDERSON: Mr. Chairman, I would 7 ask that Mr. Smithdeal's personal data 8 questionnaire be entered in as an exhibit into the 9 hearing record. 10 SENATOR McCONNELL: Is there any 11 objection? There being none, so ordered. 12 (EXH. 3, Personal Data Questionnaire of 13 Mr. Joseph C. Smithdeal, admitted.) 14 MS. ANDERSON: Mr. Smithdeal, you have 15 before you the sworn statement that you provided 16 with detailed answers to over 30 questions 17 regarding judicial conduct, statutory 18 qualifications, office administration, and 19 temperament. Are there any amendments you would 20 like to make at this time to your sworn statement? 21 MR. SMITHDEAL: No, ma'am. 22 MS. ANDERSON: At this time, 23 Mr. Chairman, I would ask that Mr. Smithdeal's 24 sworn statement be entered as an exhibit into the 25 hearing record. 0016 1 SENATOR McCONNELL: Is there any 2 objection? There being none, so ordered. 3 (EXH. 4, Sworn Statement of Joseph C. 4 Smithdeal, admitted.) 5 MS. ANDERSON: One final procedural 6 matter. I note for the record that based on the 7 testimony contained in the candidate's PDQ which 8 has been included in the record with the 9 candidate's consent, Mr. Smithdeal meets the 10 statutory requirements for this position regarding 11 age, residence, and years of practice. 12 Mr. Smithdeal, why do you want to serve 13 as Circuit Court judge? 14 MR. SMITHDEAL: I want to serve as 15 Circuit Court judge because first and foremost I 16 love the practice of law. I love being a lawyer. 17 I love reading about the law. I love watching 18 other attorneys. I just -- I think that the 19 practice of law is -- is integral to our society, 20 and I feel called to -- to serve the public in that 21 way. 22 MS. ANDERSON: And please explain how 23 you feel that your legal and professional 24 experience thus far will assist you to be an 25 effective judge. 0017 1 MR. SMITHDEAL: Well, since starting 2 practice back in 1992, I have practiced in just 3 about every court that there is to practice in with 4 the exception of maybe the bankruptcy court. I've 5 been in Family Court, Circuit Court, Federal Court, 6 Probate Court. You -- you name it, basically I've 7 done it. So I have a very wide range of 8 experience, you know, in practicing law. Most of 9 my life has been -- professional life has been in 10 the courtroom, so I feel like I would be 11 well-suited for the job. 12 MS. ANDERSON: Mr. Smithdeal, are there 13 any areas, including subjective areas of the law, 14 where you need additional preparation in order to 15 serve as a judge, and how would you handle that 16 additional preparation? 17 MR. SMITHDEAL: You know, there's 18 certain -- sometimes when I read the advance 19 sheets, I'll read a tax case or I'll read a zoning 20 case that I'm not very familiar with. If -- if I 21 were to have a case like that come in front of me, 22 I would certainly want to have briefs from the 23 parties or -- or at least study up a little bit 24 myself. But other than that, I'm very familiar 25 with the rules. I'm very familiar with the -- the 0018 1 procedure, criminal and civil, and I feel like I'd 2 be -- I'd be able to step right in as soon as -- if 3 I were to be elected. 4 MS. ANDERSON: Mr. Smithdeal, although 5 you addressed this in your sworn affidavit, could 6 you please explain to the members of the Commission 7 what you think is the appropriate demeanor for a 8 judge. 9 MR. SMITHDEAL: I think a judge has to 10 be a good listener. I think he has to be 11 courteous. I -- I appreciate judges that are on 12 time, although I have been in front of some judges 13 that weren't on time that I thought were absolute 14 jurists. But I think that is important to not keep 15 litigants and their attorneys waiting. 16 First and foremost, though, I think 17 that the -- that having empathy for -- for the 18 people in front of you, understanding where they're 19 coming from, listening carefully to what they're 20 saying, and -- and -- and from past experience 21 knowing what they're going through I think is the 22 most important thing. 23 MS. ANDERSON: What suggestions would 24 you offer for improving the backlog of cases on the 25 docket in the Court of Common Pleas and/or General 0019 1 Sessions? 2 MR. SMITHDEAL: You know, as long as 3 there's people involved in the system, I think the 4 backlog is going to be an issue. We have -- we 5 have people on the other side, not computers. We 6 have -- and they're not machines. People have 7 needs. Things come up. Cases break down for one 8 reason or another. There's always going to be 9 backlogs. 10 I think one thing a judge can do is be 11 there on time or be there -- or start a little 12 earlier. Start the court times sooner, let them 13 run a little later. I work every day in my 14 practice till 6:30 or seven o'clock at night, and 15 that's just what time I get home. I don't have a 16 problem with that and being a -- being a public 17 servant I think would, you know, make that even 18 more important to -- because you're getting paid 19 the same amount. You should be there for the whole 20 time you're scheduled to work. I think being there 21 more is important. 22 MS. ANDERSON: Thank you, 23 Mr. Smithdeal. I want to publish some housekeeping 24 issues. 25 Have you sought or received a pledge of 0020 1 any legislator prior to this date? 2 MR. SMITHDEAL: No, ma'am. 3 MS. ANDERSON: Have you sought or have 4 you been offered a conditional pledge of support of 5 any legislator pending the outcome of your 6 screening? 7 MR. SMITHDEAL: No, ma'am. 8 MS. ANDERSON: Have you asked any third 9 parties to contact members of the General Assembly 10 on your behalf? 11 MR. SMITHDEAL: No, ma'am. 12 MS. ANDERSON: Have you contacted any 13 members of the Commission? 14 MR. SMITHDEAL: No, ma'am. 15 MS. ANDERSON: Do you understand that 16 you are prohibited from seeking a pledge of -- 17 pledge or commitment until 48 hours after the 18 formal release of the Commission's report? 19 MR. SMITHDEAL: Yes, ma'am. 20 MS. ANDERSON: Have you reviewed the 21 Commission's guidelines for pledging? 22 MR. SMITHDEAL: Yes, ma'am. 23 MS. ANDERSON: And as a follow-up, are 24 you aware the penalty for violating the pledging 25 rules, that is, it is a misdemeanor and upon 0021 1 conviction the violator must be fined not more than 2 a thousand dollars or imprisoned not more than 90 3 days? 4 MR. SMITHDEAL: Yes, ma'am. 5 MS. ANDERSON: I would note that the 6 Piedmont Citizens Committee has found Mr. Smithdeal 7 qualified for seven of the nine categories: 8 Constitutional qualifications, ethical fitness, 9 professional and academic ability, character, 10 reputation, experience, and judicial temperament. 11 The Committee found Mr. Smithdeal well qualified 12 for two of the nine categories, physical health and 13 mental stability. 14 They also stated they interviewed 15 Joseph C. Smithdeal at the Greenwood County 16 courthouse during the evening of September 9th, 17 2009. "We find Mr. Smithdeal qualified for the 18 office he is seeking. The decision of the 19 Committee was unanimous." 20 I would just note for the record that 21 any concerns raised during the investigation 22 regarding the candidate were incorporated into the 23 questioning of the candidate today. 24 Mr. Chairman, I have no further 25 questions. 0022 1 SENATOR McCONNELL: All right. Does 2 any member of the Commission have a question? 3 All right. I want to thank you for 4 your comments about work ethic. Appreciate that. 5 MR. SMITHDEAL: Yes, sir. 6 SENATOR McCONNELL: Well, this 7 concludes at this point this stage of the screening 8 process. Under our regulations, the way we 9 operate, as you may know, we keep the record open 10 until the report is published. So for that reason, 11 you could be called back if there is some question. 12 To my knowledge there is no outstanding question. 13 I also want to remind you of the 14 48-hour rule and ask you to be mindful of that, so 15 mindful that if anyone inquires of you should we 16 decide to screen you out and ask you if there's 17 some way that they may or may not advocate for you, 18 that you would be so kind as to remind them about 19 the 48-hour rule for us. 20 With that, we thank you for your 21 cooperation and you're free to go. 22 MR. SMITHDEAL: Thank you very much. 23 SENATOR McCONNELL: Have a good day. 24 MR. SMITHDEAL: I appreciate it. 25 SENATOR McCONNELL: Thank you, sir. 0023 1 (Candidate excused.) 2 SENATOR McCONNELL: All right. This 3 concludes this section of candidates on a position. 4 Do I hear a motion that we go into executive 5 session -- 6 SENATOR KNOTTS: So moved. 7 MR. HARRELL: Second. 8 SENATOR McCONNELL: -- and discuss it? 9 All right. It's been moved and 10 seconded. 11 Any discussion? If not, all in favor 12 please raise your right hand. Thank you. Opposed 13 by a like sign. Show it's a unanimous vote. 14 And with that, Sergeant, if you will 15 secure the chamber. 16 (The members went into executive 17 session at 2:05 p.m.) 18 * * * * * 19 (The members returned to open session 20 at 2:10 p.m.) 21 REPRESENTATIVE CLEMMONS: I would move 22 that all five be noted as qualified. 23 SENATOR NICHOLSON: Second. 24 MS. McLESTER: Second. 25 SENATOR McCONNELL: Representative 0024 1 Clemmons has moved that all be found qualified. 2 All in favor -- any discussion? There 3 being none, all in favor, please raise your right 4 hand. 5 I'm voting a proxy also. 6 Opposed by a like sign. Abstentions? 7 With that, let it show as a unanimous vote of the 8 Commission that we found them all qualified. 9 Now we're down to the question -- under 10 the statutes we only can nominate three. So we 11 will start -- the traditional way we've done it, I 12 will start at the top of the list and just go down. 13 Everyone will have three votes until someone is 14 nominated, and then you will have your votes 15 reduced in accordance with how many you nominated. 16 All -- is there any discussion on Judge 17 Frank Addy before we vote? There being none. All 18 in favor of nominating Judge Addy as one of the 19 three, please raise your right hand. 20 MS. SHULER: Ten with a proxy. 21 SENATOR McCONNELL: All right. Moving 22 to Mr. Bryan Able, all who wish to nominate 23 Mr. Bryan Able, please raise your right hand. 24 MS. SHULER: Zero. 25 SENATOR McCONNELL: All right. Moving 0025 1 next to The Honorable Donald Hocker. All in favor 2 of nominating Judge Donald Hocker please raise your 3 right hand. 4 MS. SHULER: Seven. Are you voting a 5 proxy? 6 SENATOR McCONNELL: Yes. 7 MS. SHULER: Eight. 8 SENATOR McCONNELL: Next Mr. Andrew 9 Hodges. All in favor of nominating him please 10 raise your right hand. 11 MS. SHULER: Two. 12 SENATOR McCONNELL: Thank you. 13 All for Mr. Joseph Smithdeal please 14 raise your right hand. 15 MS. SHULER: Are you voting a proxy? 16 SENATOR McCONNELL: Yes. 17 MS. SHULER: Ten. 18 SENATOR McCONNELL: Announce the 19 results. 20 MS. SHULER: We have -- the three found 21 qualified and nominated are The Honorable Frank R. 22 Addy, The Honorable Donald Bruce Hocker, and Joseph 23 C. Smithdeal. 24 SENATOR McCONNELL: All right. Thank 25 y'all. 0026 1 Next on our schedule here. 2 Y'all, we have 12 in these, so please 3 keep copious notes for all of our benefit so that 4 we can have a good discussion amongst one another. 5 MS. SHULER: Yes. If you can pass your 6 vote sheets. 7 (Off the record.) 8 SENATOR McCONNELL: All right. We'll 9 go back on the record at this point, and we have 10 before us Mr. Jeffrey P. Bloom who is offering for 11 the Circuit Court, At-Large, Seat 8. 12 Good afternoon. 13 MR. BLOOM: Good afternoon, Senator. 14 SENATOR McCONNELL: Glad to have you 15 with us, sir. 16 If you'd be so kind as to raise your 17 right hand. 18 (Candidate sworn.) 19 SENATOR McCONNELL: Thank you, sir. 20 The Judicial Merit Selection Commission 21 has thoroughly investigated your qualifications for 22 the bench. Our inquiries focused on our nine 23 evaluative criteria, and it has included a survey 24 of the bench and the bar, a thorough study of your 25 application materials, a verification of your 0027 1 compliance with state ethics laws, a search of 2 newspaper articles in which your name appears, the 3 study of previous screenings, a check for economic 4 conflicts of interest. 5 We have received no affidavits filed in 6 opposition to your election, and no witnesses are 7 present to testify. 8 So I'd ask you if you have any brief 9 opening statements you might wish to make, which is 10 purely optional, before I turn you over to counsel 11 for the questioning. 12 MR. BLOOM: I'm glad to be here. I 13 want to apologize to Representative Delleney. I 14 think I called him judge in the hallway, so I don't 15 know if that's a promotion or demotion, but -- but 16 I apologize for that. But I'm glad to be here and 17 honored to be with -- with the Commission today. 18 SENATOR McCONNELL: He's a legal 19 scholar of sorts. A very good one too. 20 All right. With that, I'm going to 21 turn you over to counsel that's got some questions 22 for you. 23 MR. BLOOM: Thank you. 24 SENATOR McCONNELL: Thank you, sir. 25 MR. GENTRY: Mr. Chairman and members 0028 1 of the Commission, I have a few procedural matters 2 to take care of with regard to Mr. Bloom. 3 Mr. Bloom, you'll be handed a copy of 4 your PDQ and any amendment you've submitted. Is 5 that document in front of you now? 6 MR. BLOOM: It is, sir. 7 MR. GENTRY: You have before you the 8 PDQ and any amendments you've made. Are there any 9 additional amendments that you'd like to make at 10 this time? 11 MR. BLOOM: No. I did amend question 12 34 in writing to your office and that's the only 13 thing I would note. 14 MR. GENTRY: Mr. Chairman, I'd like to 15 ask that Mr. Bloom's PDQ and amendment be entered 16 as an exhibit into the hearing record. 17 SENATOR McCONNELL: All right. Is 18 there any objection? There being none, so ordered. 19 (EXH. 5, Personal Data Questionnaire 20 and Amendment of Mr. Jeffrey P. Bloom, admitted.) 21 MR. GENTRY: Mr. Bloom, you also have 22 before you the sworn statement you provided with 23 detailed answers to over 30 questions regarding 24 judicial conduct, statutory qualifications, office 25 administration, and temperament. Are there any 0029 1 additional amendments that you'd like to make at 2 this time to your sworn statement? 3 MR. BLOOM: No, sir. 4 MR. GENTRY: Mr. Chairman, I'd like to 5 ask that Mr. Bloom's sworn statement be entered as 6 an exhibit into the hearing record. 7 SENATOR McCONNELL: All right. Is 8 there any objection? Being none, so ordered. 9 (EXH. 6, Sworn Statement of Jeffrey P. 10 Bloom, admitted.) 11 MR. GENTRY: One final procedural 12 matter. I note for the record that based on the 13 testimony contained in the candidate's PDQ which 14 has been included in the record with the 15 candidate's consent, Mr. Bloom meets the statutory 16 requirements for this position regarding age, 17 residence, and years of practice. 18 Mr. Bloom, why do you want to serve as 19 a Circuit Court judge? 20 MR. BLOOM: Well, my initial answer -- 21 and I mean this in all humility. I think quite 22 frankly I'd be good at it. And I don't mean that 23 to sound arrogant in any respect. Some of the best 24 circuit judges we have in this state in my humble 25 opinion are those who were trial lawyers either in 0030 1 civil or criminal law before they accede to the 2 bench. 3 I'm thinking of Judge Cooper from 4 Manning, Judge Clifford Newman who -- who was at 5 the Attorney General's Office for years, my good 6 friend Knox McMahon -- Judge McMahon who used to 7 kick me around the courtroom quite a bit, he's a 8 fine judge, and I've been able to appear in front 9 of him. 10 So I think when circuit judges have 11 been able to practice in court and have an 12 understanding of rules of evidence, of procedure, 13 professionalism, it tends to make them better 14 judges. I don't pretend I'm the smartest person in 15 the room or the best person, but I practiced in 16 just about every courthouse in this county, and -- 17 and so I think I would bring a wealth of experience 18 and knowledge and fairness to that position. 19 MR. GENTRY: You touched on this in 20 your answer, but can you explain specifically to 21 the Commission how you feel your legal and 22 professional experience thus far will assist you in 23 being an effective judge. 24 MR. BLOOM: Again, I've been in 25 magistrate court, city court, circuit courts, the 0031 1 South Carolina Supreme Court for over 20 years, 2 and, again, as well as almost every courthouse in 3 this -- in this state, so I think that gives a 4 breadth of experience, as well as humility. 5 I've seen some mighty fine lawyers in 6 this state, both on the opposite side of the aisle, 7 sometimes practicing next to me, and sometimes just 8 while I'm waiting for my case to watch them 9 practice. So -- so it's given me a breadth of 10 experience and exposure I think that would be 11 helpful. 12 MR. GENTRY: Are there any areas, 13 including any subjective areas of the law, that you 14 would need to additionally prepare for in order to 15 serve as a judge, and if so, how would you go about 16 that preparation? 17 MR. BLOOM: I understand one of the 18 potential comments in my background is I have 19 practiced mostly in criminal court, but I think I 20 have made up for that. In the past ten years or 21 more, I've done a lot of complex capital 22 postconviction litigation. Those cases operate 23 under the same Rules of Civil Procedure, albeit 24 nonjury. So I think I have a firm grasp of the -- 25 of the Rules of Civil Procedure. 0032 1 Where I would potentially need some 2 catching up is probably the appropriate jury 3 instructions in civil cases. And I think I could 4 readily come up to speed on that just by consulting 5 with fellow judges or -- or the -- the literature 6 that the South Carolina Bar puts out there in terms 7 of forming jury instructions. 8 MR. GENTRY: Mr. Bloom, although you 9 address this in your sworn affidavit, could you 10 please explain to the members of the Commission 11 what you believe to be the appropriate demeanor of 12 a judge. 13 MR. BLOOM: That -- that's really easy. 14 A -- a judge should always be professional and 15 civil. You know, I pride myself on being an Eagle 16 Scout and living scouting, not just, you know, 17 Monday night meetings with my scout troop, but in 18 my daily life. 19 And I have seen instances where the 20 best judges in the most heated situations are able 21 to keep the courtroom calm and civil and 22 professional. Again, one of the -- one of the most 23 exemplary judges I think of -- who -- who I watched 24 is Judge Tommy Cooper of Manning. I've observed 25 trials where he's had some very zealous advocates, 0033 1 been involved in some, but he's always been able to 2 present a sense of calm and professionalism and 3 civility to keep everybody doing their job but 4 not -- not getting -- getting out -- out of place. 5 MR. GENTRY: What suggestions would you 6 offer for improving the backlog of cases on the 7 docket in the Circuit Court for both Common Pleas 8 and General Sessions? 9 MR. BLOOM: You know, that's an 10 excellent question, and I'm sure we can spend the 11 better part of the day discussing that. 12 I think in civil court the more that 13 the authority -- the Circuit judge has to enforce 14 that docket and move those cases is better. And 15 we've made great strides in that I think in the 16 past few years. In General Sessions court it's 17 always been a resource issue in terms of how many 18 solicitors can -- can be in court and be up to 19 speed on the cases, as well as the public 20 defenders, so it's a resource issue. 21 I think at the end of the day it takes 22 everybody in -- in the system, whether it's civil 23 or criminal court, working together, and sometimes 24 that means coming in earlier than expected, maybe 25 taking a whole lot shorter lunch hour and people 0034 1 brown bagging their lunch to move cases and working 2 late. I've had, I believe, a strong work ethic for 3 more than 20 years, and I'm not afraid to work late 4 and have other people work late as well to -- to 5 get that done. 6 MR. GENTRY: Thank you. I have a few 7 housekeeping questions to ask. 8 Have you sought or received a pledge of 9 any legislator prior to this date? 10 MR. BLOOM: No, sir. 11 MR. GENTRY: Have you sought or have 12 you been offered a conditional pledge of support of 13 any legislator pending the outcome of your hearing? 14 MR. BLOOM: No, sir. 15 MR. GENTRY: Have you asked any third 16 parties to contact members of the General Assembly 17 on your behalf? 18 MR. BLOOM: No, sir. 19 MR. GENTRY: Have you contacted any 20 members of this Commission? 21 MR. BLOOM: No, sir. 22 MR. GENTRY: Do you understand that 23 you're prohibited from seeking a pledge or 24 commitment until 48 hours after the formal release 25 of the Commission's report? 0035 1 MR. BLOOM: I fully understand that 2 rule. 3 MR. GENTRY: And have you reviewed the 4 Commission's guidelines on pledging? 5 MR. BLOOM: I have. 6 MR. GENTRY: As a follow-up, are you 7 aware of the penalties for violating a pledging 8 rule, that is, it's a misdemeanor and upon 9 conviction the violator must be fined not more than 10 $1,000 or imprisoned not more than 90 days? 11 MR. BLOOM: I am aware of that, sir. 12 Yes. 13 MR. GENTRY: I would note that the 14 Midlands Citizen Committee reported that Mr. Bloom 15 is well qualified for each of the nine evaluative 16 criteria. 17 In addition, the Committee states, "The 18 Committee considers Mr. Bloom to be highly ethical. 19 Mr. Bloom's outstanding character is impeccable and 20 above reproach. Mr. Bloom enjoys the most 21 outstanding reputation among his peers, and we 22 recognize his outstanding service to the community 23 in the Boy Scouts of America. The Committee was 24 very impressed by Mr. Bloom's most outstanding 25 criminal law experience. The Committee believes 0036 1 that Mr. Bloom's humility and common sense would 2 enable him to have outstanding judicial 3 temperament. Mr. Bloom is very eminently qualified 4 and a highly regarded candidate. We are confident 5 he would most ably serve on the Circuit Court in an 6 outstanding manner." 7 Mr. Chairman, that's all I have at this 8 time. 9 SENATOR McCONNELL: All right. Does 10 any member of the Commission have a question? The 11 senator from Lexington. 12 SENATOR KNOTTS: Mr. Bloom -- 13 Mr. Bloom. 14 MR. BLOOM: Yes, sir. 15 SENATOR KNOTTS: Been knowing you a 16 long time. 17 MR. BLOOM: Yes, you have, sir. 18 MR. KNOTTS: And we've had cases before 19 and everything, and I respect your reputation and 20 your professionalism. 21 MR. BLOOM: Thank you, sir. 22 MR. KNOTTS: But throughout the 23 circuits there's a lot of -- over the years you've 24 developed a reputation concerning your, I guess, 25 anti-death penalty. Can you balance that in a 0037 1 case -- if you was having a criminal case where you 2 were to have a death penalty case before you, could 3 you balance your maybe personal feelings or your 4 professional feelings in actually giving the public 5 a fair trial if a death case was warranted, and do 6 you believe there are instances where a death 7 penalty could be invoked? 8 MR. BLOOM: Yes, sir. And of course 9 given my history that's a very fair question to 10 ask. First, I would note that I have never taken a 11 public position against the death penalty. That 12 ended up being my career path having worked in 13 public defenders' offices, but I've never been 14 personally, professionally or religiously opposed 15 to the death penalty. 16 Secondly, I understand there are cases 17 where it's warranted and perhaps needed, and I have 18 stated that publicly in fact. Thirdly, I think you 19 can attest in -- in Committee hearings where you've 20 held and I have often testified to close certain 21 loopholes both in fairness to the state and defense 22 in certain cases without being biased either way to 23 strengthen legislation so it's fair to both sides. 24 And, lastly, I would note, Senator 25 Knotts, that some -- some years ago I took a victim 0038 1 advocate course. It -- it was through the 2 University of Georgia, one of their affiliates in 3 Atlanta. It was a six-day course over two 4 weekends, and to my knowledge I'm the only attorney 5 in South Carolina who has gone through victim 6 advocate training. And I did that intentionally so 7 I could understand what victims' families 8 experience, not just in the homicide cases, but all 9 sorts of cases. 10 So I think it has made me aware of what 11 victims' families experience in those situations 12 that I was not aware of during most of my career, 13 and I think the second thing it sensitized me to is 14 over the last couple years since I've gone through 15 that training I've actually with full knowledge of 16 the solicitor approached victims families in -- in 17 difficult cases and made them aware if they had 18 questions about the case that our side could 19 answer, whether it was why a certain motion was 20 filed or why certain objections were being made or 21 sometimes just to express sympathy for their loss. 22 I've found that that's helped put in some 23 situations the victim's family at ease because they 24 don't feel like now the defense attorney is out to 25 attack them. 0039 1 So I hope all those facets of my answer 2 satisfies you in that respect. I would not 3 hesitate to set any personal feelings aside to make 4 sure both sides had a fair trial and a fair 5 hearing. 6 SENATOR McCONNELL: Any other 7 questions? 8 If not, Mr. Bloom, that concludes this 9 portion of our screening process. As you know, the 10 record will remain open until the report is 11 published, and you could be called back at such 12 time, if the need arises, for any outstanding 13 questions. 14 I want to remind you of the 48-hour 15 rule and ask you to be very mindful of that, so 16 that if anyone inquires with you about whether they 17 may or may not advocate for you in the event that 18 you are screened out as one of the nominated that 19 you remind them of the 48-hour rule. 20 We thank you for offering, and have a 21 nice day, sir. 22 MR. BLOOM: Thank you very much. And I 23 don't envy your position. There's some wonderful 24 candidates in this race, and I was joking with 25 someone outside you may have to just do rock, 0040 1 paper, scissors. I'm not sure. I don't envy your 2 position at all. There's some wonderful 3 candidates. Thank you. Thank you for your time. 4 SENATOR McCONNELL: Thank you, sir. 5 (Candidate excused.) 6 (Off the record.) 7 SENATOR McCONNELL: All right. We'll 8 go back on the record at this moment, and we have 9 before us Mr. David Craig Brown who is offering for 10 Circuit Court, At-Large, Seat Number 8. 11 Good afternoon, sir. 12 MR. BROWN: Good afternoon, sir. 13 SENATOR McCONNELL: Good to have you. 14 If you'd be so kind as to raise your 15 right hand. 16 (Candidate sworn.) 17 SENATOR McCONNELL: Thank you. 18 The Judicial Merit Selection Commission 19 has thoroughly investigated your qualifications for 20 the bench. Our inquiries focused on our nine 21 evaluative criteria, and it has included a survey 22 of the bench and bar, a thorough study of your 23 application materials, verification of your 24 compliance with state ethics laws, a search of 25 newspaper articles in which your name appears, a 0041 1 study of previous screenings, and a check for 2 economic conflicts of interest. 3 We have received no affidavits filed in 4 opposition to your election. No witnesses are 5 present to testify. 6 I would ask you if have any brief 7 opening statement you may wish to make -- keep in 8 mind it's purely optional -- before I turn you over 9 to counsel who's got questions for you. 10 MR. BROWN: No, sir, I don't have 11 anything to say. 12 SENATOR McCONNELL: All right. Thank 13 you, sir. Please answer counsel's questions. 14 MR. DEASON: Mr. Chairman and members 15 of the Commission, I do have a few procedural 16 matters to take care of with the candidate. 17 Mr. Brown, you have before you the 18 personal data questionnaire that you submitted as 19 part of your application. Are there any additional 20 amendments that you would like to make at this time 21 to your PDQ? 22 MR. BROWN: No, sir. 23 MR. DEASON: Mr. Chairman, I'd ask that 24 Mr. Brown's personal data questionnaire be entered 25 in as an exhibit into the hearing record. 0042 1 SENATOR McCONNELL: All right. Is 2 there objection? There being none, so ordered. 3 (EXH. 7, Personal Data Questionnaire 4 and Amendment of Mr. David Craig Brown, admitted.) 5 MR. DEASON: All right, Mr. Brown. You 6 also have the sworn statement you provided with 7 detailed answers to over 30 questions regarding 8 judicial conduct, statutory qualifications, office 9 administration, and temperament. Are there any 10 additional amendments you'd like to make at this 11 time to your sworn statement? 12 MR. BROWN: No, sir. 13 MR. DEASON: Accordingly, Mr. Chairman, 14 I'd ask that Mr. Brown's sworn statement be entered 15 in as an exhibit into the hearing record. 16 SENATOR McCONNELL: Is there any 17 objection? There being none, so ordered. 18 (EXH. 8, Sworn Statement of David Craig 19 Brown, admitted.) 20 MR. DEASON: And a final procedural 21 matter. I note for the record that based on the 22 testimony contained in the candidate's PDQ which 23 has been included in the record with the 24 candidate's consent, Mr. Brown meets the statutory 25 requirements for this position regarding age, 0043 1 residence, and years of practice. 2 Mr. Brown, why do you now want to serve 3 as a Circuit Court judge? 4 MR. BROWN: Well, I clerked with Judge 5 Duane Shuler back in '97 and '98 when I finished 6 law school. I knew at that time after clerking 7 with him that I wanted to serve as a judge at some 8 point in time. Over the last several years -- when 9 I initially started practicing law, I went to work 10 with an insurance defense firm, went out on my own 11 in May of 2001. 12 And since May of 2001 I've structured 13 my practice around doing both civil and criminal 14 work. I've done a lot of work for Farm Bureau 15 Insurance Company. I've done a lot of plaintiff's 16 litigation. In addition, I've done a lot of state 17 and federal criminal defense work. Continue to do 18 a good bit of state, criminal defense work working 19 part time with the public defender's office over in 20 Marion County. 21 MR. DEASON: Well, that being said, 22 Mr. Brown, are there any areas, including 23 subjective areas of the law, that you would need 24 additional preparation for in order to serve as a 25 judge, and if so, how would you handle that 0044 1 preparation? 2 MR. BROWN: Well, I don't think so. I 3 mean, that is why I've structured my practice over 4 the last several years of handling both civil and 5 criminal litigation. Over the course of my career, 6 a lot of people, a lot of judges have been elected 7 that have done either criminal or civil, one or the 8 other and not both, and that's one of the reasons I 9 specifically tried to do both areas of the law to 10 give me a better understanding, a better grasp on 11 procedure, et cetera, that I would be faced on a 12 daily basis as a Circuit Court judge. 13 MR. DEASON: Thank you. And although 14 you address this in the sworn affidavit, could you 15 please explain to the members of the Commission 16 what you think is the appropriate demeanor for a 17 judge. 18 MR. BROWN: Well, I think the 19 appropriate demeanor is having a good temperament 20 on the bench, giving everybody an opportunity to 21 speak. The appropriate demeanor would include a 22 complete understanding of the requirements of a 23 judge in listening to everybody, giving everybody 24 an opportunity to speak, listening very intently to 25 what is said, making an impartial decision on -- on 0045 1 the facts and circumstances that are set before me. 2 MR. DEASON: Well, what suggestions 3 would you offer for improving the backlog of cases 4 in the Circuit Court, both for the General Sessions 5 and Common Pleas? 6 MR. BROWN: Well, one of the things I 7 think would help would be, you know, if the 8 state -- and I know the state is in a situation 9 with funding right now and budget and whatnot. One 10 of the things would be with the technology that we 11 today have, you know, if a lot of this stuff was 12 done electronically where the clerk's offices 13 throughout the state may have access to documents 14 that are needed throughout other courts throughout 15 the state. 16 The judge works -- is one of the -- one 17 of the cogs in the wheel, so to speak, as far as 18 how the court system works, and there needs to be 19 continuous cooperation through the clerk's office 20 with regards to civil matters, continuous 21 cooperation through the Solicitor's Office with 22 regards to the criminal docket. Those parties -- 23 all of those parties working together will in turn 24 help the docket move a lot smoother and a lot 25 quicker. 0046 1 MR. DEASON: Thank you. All right. A 2 few housekeeping matters, procedural. 3 Have you sought or received the pledge 4 of any legislator prior to today? 5 MR. BROWN: No, sir. 6 MR. DEASON: Have you sought or have 7 you been offered a conditional pledge of support of 8 any legislator pending the outcome of your 9 screening? 10 MR. BROWN: No, sir. 11 MR. DEASON: Have you asked any third 12 parties to contact members of the General Assembly 13 on your behalf? 14 MR. BROWN: No, sir. 15 MR. DEASON: Have you contacted any 16 members of this Commission? 17 MR. BROWN: No, sir. 18 MR. DEASON: Do you understand that 19 you're prohibited from seeking a pledge or 20 commitment until after 48 hours after the formal 21 release of the Commission's report? 22 MR. BROWN: Yes, sir. 23 MR. DEASON: Have you reviewed the 24 Commission's guidelines on pledging? 25 MR. BROWN: Yes, sir. 0047 1 MR. DEASON: All right. And as a 2 follow-up, are you aware of the penalties for 3 violating the pledging rules, that is, it's a 4 misdemeanor and upon conviction the violator must 5 be fined no more than $1,000 or imprisoned not more 6 than 90 days? 7 MR. BROWN: Yes, sir. 8 MR. DEASON: Finally, I would note that 9 the Pee Dee Citizens Committee reported Mr. Brown 10 would make an excellent judge and found him well 11 qualified in all areas evaluated. 12 I would also note for the record that 13 any concerns raised during the investigation 14 regarding the candidate were incorporated into the 15 questioning of the candidate today. 16 And with that, Mr. Chairman, I have 17 no -- no other questions. 18 SENATOR McCONNELL: All right. Does 19 any member of the Commission have a question at 20 this point? 21 All right. That concludes this stage 22 of the screening process. As you know, the record 23 will remain open until the report is published, and 24 you could be called back for any further questions 25 should any come up between that time, and not to 0048 1 indicate there's anything outstanding or anything 2 there. 3 Additionally, we need to remind you of 4 the 48-hour rule and ask you to be very mindful of 5 it, so mindful that if in fact anyone inquires with 6 you about whether they may or may not advocate for 7 you in the event that you are screened out, that 8 you would do us a favor and remind them about the 9 48-hour rule. 10 MR. BROWN: Yes, sir. 11 SENATOR McCONNELL: With that, we want 12 to thank you for offering, and thank you for 13 coming. Have a good afternoon, sir. 14 MR. BROWN: Thank you, sir. 15 SENATOR McCONNELL: Yes, sir. 16 (Candidate excused.) 17 (Off the record.) 18 SENATOR McCONNELL: All right. We'll 19 go back on the record at this time. We have before 20 us Mr. Eric K. Englebardt who is offering for the 21 Circuit Court, At-Large, Seat Number 8. 22 Good afternoon, sir. 23 MR. ENGLEBARDT: Good afternoon, 24 Senator. How are you? 25 SENATOR McCONNELL: Fine. Thank you. 0049 1 If you'd be so kind as to raise your 2 right hand. 3 (Candidate sworn.) 4 SENATOR McCONNELL: Thank you. The 5 Judicial Merit Selection Commission has thoroughly 6 investigated your qualifications for the bench. 7 Our inquiries focused on the nine evaluative 8 criteria and has included a survey of the bench and 9 the bar, a thorough study of your application 10 materials, a verification of your compliance with 11 state ethics laws, a search of newspaper articles 12 in which your name appears, a study of the previous 13 screenings, and a check for economic conflicts of 14 interest. 15 We have received no affidavits filed in 16 opposition to your election. No witnesses are 17 present to testify. 18 So we'd ask if you have any brief 19 statements you wish to make before I turn you over 20 to counsel. It's purely optional. 21 MR. ENGLEBARDT: Senator, I would just 22 thank everyone on this Commission for the time that 23 you give to the state of South Carolina. I know 24 how difficult it must be, especially in a race like 25 this where there are 12 people for one seat and we 0050 1 can only put three out. I certainly as a lawyer 2 and as someone interested in the seat appreciate 3 very much your time. 4 SENATOR McCONNELL: Thank you, sir. 5 Please answer counsel's questions. 6 MS. ANDERSON: Mr. Chairman and members 7 of the Commission, I have a few procedural matters 8 to take care of with Mr. Englebardt. 9 Mr. Englebardt, you have before you the 10 personal data questionnaire you submitted as part 11 of your application. Are there any amendments that 12 you would like to make at this time? 13 MR. ENGLEBARDT: Yes, ma'am. I 14 would -- I've submitted a written letter to 15 Ms. Shuler and would like to orally amend response 16 number 49 on the letters of recommendation. I've 17 substituted one for Linda Long for one that I 18 had -- or expected to come in. So I would ask to 19 orally amend that. 20 And then I also have just in the last 21 couple weeks been appointed to the board of the 22 Windsor Hope Foundation, a charitable foundation in 23 Greenville, and I think the best way to -- in the 24 interest of full disclosure I suppose it's question 25 number 28 that I should ask to amend as well. 0051 1 MS. ANDERSON: Thank you. 2 Mr. Chairman, I would like to ask that 3 Mr. Englebardt's personal data questionnaire and 4 amendment be entered as an exhibit into the hearing 5 record. 6 SENATOR McCONNELL: Is there any 7 objection? There being none, so ordered. 8 (EXH. 9, Personal Data Questionnaire 9 and Amendment of Mr. Eric K. Englebardt, admitted.) 10 MS. ANDERSON: Mr. Englebardt, you have 11 before you the sworn statement you've provided with 12 detailed answers to over 30 questions regarding 13 judicial conduct, statutory qualifications, office 14 administration, and temperament. Are there any 15 amendments you would like to make at this time to 16 your sworn statement? 17 MR. ENGLEBARDT: No, ma'am. 18 MS. ANDERSON: At this time, 19 Mr. Chairman, I would like to ask that 20 Mr. Englebardt's sworn statement be entered into 21 the record as an exhibit. 22 SENATOR McCONNELL: Is there any 23 objection? There being none, so ordered. 24 (EXH. 10, Sworn Statement of Eric K. 25 Englebardt, admitted.) 0052 1 MS. ANDERSON: One final procedural 2 matter. I note for the record that based on the 3 testimony contained in Mr. Englebardt's PDQ which 4 has been included in the record with the 5 candidate's consent, Mr. Englebardt meets the 6 statutory requirements for this position regarding 7 age, residence, and years of practice. 8 Mr. Englebardt, why do you now want to 9 serve as a Circuit Court judge? 10 MR. ENGLEBARDT: One of the interesting 11 parts about running for the -- a judicial seat 12 multiple times is trying to search your soul for 13 those answers and not repeat yourself. But the one 14 thing that -- that resonates with me as I think 15 back on this question every time is that I think 16 doing justice is the most paramount thing in our 17 legal system. 18 And I do a lot of mediations, and I 19 tell litigants in every mediation that they have 20 the power to make a decision for themselves by 21 resolving a case in mediation, but that they can 22 feel comfortable knowing that we have the best 23 legal system the world knows for allowing our peers 24 to make decisions for us if we're not able to 25 resolve our case ourselves. 0053 1 I firmly believe that. I don't say 2 that just as a mediator's spin at the beginning of 3 a case. I do believe that. And I would -- think 4 it would obviously be an honor and a privilege to 5 be that -- to be a judicial participant in that 6 legal system. That's first and foremost. 7 I think secondly I would say -- there's 8 a Robert Frost poem called "Two Tramps in Mud Time" 9 that I have always found to be inspirational, and 10 in that poem Robert Frost talks about how you 11 should try to make your advocation also your 12 vocation, and I love being in the courtroom. I 13 love trying cases. I like watching cases get 14 tried. I will -- that's why I went to law school, 15 and I think being a judge allows me to fulfill that 16 goal of turning my advocation into my vocation. It 17 gives me chance a to give back in the way of public 18 service at the same time doing what I love to do. 19 MS. ANDERSON: You've answered this in 20 part, but I'll ask in case you want to expand. 21 Please explain to the Commission how 22 you feel your legal and professional experience 23 thus far will assist you to be an effective judge. 24 MR. ENGLEBARDT: The easiest way to 25 answer that is -- is to look at recent past 0054 1 history. One of those things that I have learned 2 as a lawyer in terms of marketing is that running 3 for judge seems to have a good effect on my 4 arbitration and mediation practice. People seem to 5 be hiring me more regularly than they used to be 6 before I ran for judge. And that's not why I ran, 7 but it's a nice benefit to it if I were to continue 8 to practice. 9 I have been arbitrating cases very 10 regularly now. It used to be mediation was about 11 95 percent of the ADR I did, and I'm in the middle 12 right now -- I just finished the fourth day of what 13 was going to be a six-day arbitration where I'm the 14 sole arbitrator. So I'm sitting over a very long, 15 a very complicated business dispute as a nonjury 16 judge. I find it fascinating. 17 I have learned a great deal about 18 myself in terms of organization and the ability to 19 listen actively, take good notes, know what 20 questions to listen to. I use technology. I have 21 my laptop with me the whole time and I'm taking 22 notes and color coding as I go. That I think is 23 going to be an extremely valuable experience to me, 24 but also in my mediation practice and -- and, you 25 know, dealing with people of all different 0055 1 backgrounds and different views on life, and being 2 able to keep a calm, diligent, hard working 3 environment to move forward I think would greatly 4 assist me on the bench. 5 MS. ANDERSON: Are there any areas, 6 including subjective areas of the law, where you 7 need additional preparation in order to serve as a 8 judge, and how you would handle that additional 9 preparation? 10 MR. ENGLEBARDT: Well, as we've 11 discussed in past hearings, my practice has been 12 almost solely civil. That's not totally true. 13 I've had some criminal experience in the more 14 recent past. In fact, the case that I represented 15 the woman Linda Long who I substituted her letter 16 of recommendation today was a case where I 17 represented her both in criminal and civil aspects. 18 I've also spent a great deal of time 19 recently serving Youth Court which is a criminal 20 court, and also I mentioned I like to -- to watch 21 trials and I've been purposefully going and 22 watching as much criminal court as I can and 23 assisting friends who have criminal practices to 24 learn the lay of the land on plea days and things 25 like that, because criminal law obviously is the -- 0056 1 the area that I need the most experience to gain. 2 I've also talked to -- to Judge 3 Stilwell who -- who has recently gone up on the 4 bench and is a good friend and talked to him about 5 he would have been a municipal judge that had never 6 dealt really with the felony side of things in 7 General Sessions court. We talked a lot about his 8 experience and how he's gone about learning in the 9 few months he's been on the bench, and I think I 10 would be able to -- to follow the lead that he's 11 given me on it. 12 MS. ANDERSON: Mr. Englebardt, although 13 you address this in your sworn affidavit, could you 14 please explain to the members of the Commission 15 what you think is the appropriate demeanor for a 16 judge. 17 MR. ENGLEBARDT: I think 18 levelheadedness, the ability to be the most 19 reasonable person in the room and help others learn 20 to be more reasonable is -- is very key to a 21 demeanor. The most important thing is to make the 22 parties understand that, number one, you're the 23 judge, but, number two, you're about fairness. 24 And -- and your demeanor does a great deal to set 25 the tone in the courtroom. 0057 1 And that -- that's really the most 2 important thing is letting everyone understand that 3 you can deal with things with humor and you can 4 deal with things with stern behavior when you need 5 to, but that there's no real reason for anger or 6 anything like that. And demeanor, you know, to me 7 is about being yourself. I would hope that I'm the 8 kind of person where my demeanor is a good judicial 9 demeanor whether I'm in the courtroom or not. 10 MS. ANDERSON: What suggestions would 11 you offer for improving the backlog of cases on the 12 docket in the Court of Common Pleas and/or General 13 Sessions? 14 MR. ENGLEBARDT: We're lucky in 15 Greenville where the Court of Common Pleas docket 16 stays very on time, and I think a lot of that has 17 to do with the very, very strong ADR and mediation 18 program we have in Greenville, and obviously I am a 19 strong believer that that's something that can help 20 civil dockets statewide. 21 From a judicial perspective obviously I 22 think that particularly General Sessions is just a 23 matter of working hard. It's a matter of being 24 full time five days a week and willing to stay late 25 when you need to stay late and pushing the cases 0058 1 and pushing the lawyers to push the cases in order 2 to clear up those dockets. 3 But ultimately it's about hard work. I 4 also think there's probably an opening for some ADR 5 to go forward and on the criminal side in terms of 6 helping the parties or helping the solicitors and 7 the criminal defense bar work on plea agreements in 8 such a way that they can speed that process up. 9 MS. ANDERSON: Thank you, 10 Mr. Englebardt. I have a few housekeeping issues 11 to cover. 12 Have you sought or received the pledge 13 of any legislator prior to this date? 14 MR. ENGLEBARDT: No, ma'am. 15 MS. ANDERSON: Have you sought or have 16 you been offered a conditional pledge of support of 17 any legislator pending the outcome of your 18 screening? 19 MR. ENGLEBARDT: No, ma'am. 20 MS. ANDERSON: Have you asked any third 21 party to contact members of the General Assembly on 22 your behalf? 23 MR. ENGLEBARDT: No, ma'am. 24 MS. ANDERSON: Have you contacted any 25 members of the Commission? 0059 1 MR. ENGLEBARDT: No, ma'am. 2 MS. ANDERSON: Do you understand that 3 you are prohibited from seeking a pledge or 4 commitment until 48 hours after the formal release 5 of the Commission's report? 6 MR. ENGLEBARDT: Yes, ma'am. 7 MS. ANDERSON: Have you reviewed the 8 Commission's guidelines on pledging? 9 MR. ENGLEBARDT: Yes, I have. 10 MS. ANDERSON: And as a follow-up, are 11 you aware of the penalties for violating the 12 pledging rules, that is, it is a misdemeanor and 13 upon conviction the violator would be fined not 14 more than a thousand dollars or imprisoned not more 15 than 90 days? 16 MR. ENGLEBARDT: Yes, ma'am. 17 MS. ANDERSON: I would note that the 18 Upstate Citizens Committee found Mr. Englebardt 19 well qualified for each of the nine evaluative 20 criteria, Constitutional qualifications, ethical 21 fitness, professional and academic abilities, 22 character reputation, physical health, mental 23 stability, experience, and judicial temperament. 24 The Committee states they continue to find nothing 25 but positive comments and reports regarding his 0060 1 qualifications for this position. 2 I would just note for the record that 3 any concerns raised during the investigation 4 regarding Mr. Englebardt were incorporated into the 5 questioning of him today. 6 Mr. Chairman, I have no further 7 questions. 8 SENATOR McCONNELL: All right. Does 9 any member of the Commission have a question? 10 All right. If not, then this concludes 11 this stage of the screening process. And as you 12 know, the record will remain open until the report 13 is published, and you could be called back at any 14 time if there's some question. That's not to 15 indicate there's any pending matter out there, but 16 it is a reservation this Commission makes. 17 Also want to remind you again about the 18 48-hour rule and ask you to be mindful of that, so 19 mindful in fact that if anyone inquires with you 20 about whether or not they may or may not advocate 21 for your candidacy should we screen you out, please 22 remind them of the 48-hour rule. 23 MR. ENGLEBARDT: Yes, sir, 24 Mr. Chairman. 25 SENATOR McCONNELL: With that, we 0061 1 ask -- we want to thank you, number one, for 2 offering public service; number two, tell you to 3 have a good day. 4 MR. ENGLEBARDT: Thank you, 5 Mr. Chairman. Thank you ladies and gentlemen. 6 (Candidate excused.) 7 (Off the record.) 8 SENATOR McCONNELL: All right. We'll 9 go back on the record at this time. 10 We have before us Mr. Allen Oliver 11 Fretwell who is offering for Circuit Court, 12 At-Large, Seat Number 8. 13 Good afternoon, sir. 14 MR. FRETWELL: Good afternoon. 15 SENATOR McCONNELL: Do you have anybody 16 here with you that you want to introduce? 17 MR. FRETWELL: I do, Mr. Chairman. 18 Mr. Chairman, my wife April Fretwell is here. 19 She's a high school teacher from Greenville. I 20 believe you've met her before. I also have the 21 pleasure of introducing you to Joanna Di Young. 22 She's our foreign exchange student through the 23 Rotary Youth Exchange. She's from France, and 24 she'll be living with us this semester. 25 SENATOR McCONNELL: All right. 0062 1 Delighted to have both of you with us today. 2 All right. If you'd raise your 3 right hand. 4 (Candidate sworn.) 5 SENATOR McCONNELL: Thank you. 6 The Judicial Merit Selection Commission 7 has thoroughly investigated your qualifications for 8 the bench. Our inquiries focused on nine 9 evaluative criteria, and it's included a survey of 10 the bench and the bar, a thorough study of your 11 application materials, a verification of your 12 compliance with state ethics law, a search of 13 newspaper articles in which your name appears, a 14 study of previous screenings, and a check for 15 economic conflicts of interest. 16 We have received no affidavits filed in 17 opposition to your election. No witnesses are 18 present to testify. 19 So I would ask if you have any brief 20 opening statement you wish to make before I turn 21 you over to counsel for questions. It's purely 22 optional. 23 MR. FRETWELL: Thank you, Mr. Chairman. 24 I just want to thank the Commission for the 25 kindness that they have always extended to me and 0063 1 to compliment you on your outstanding staff. 2 SENATOR McCONNELL: Thank you, sir. We 3 appreciate that. 4 MR. FRETWELL: Yes, sir. 5 SENATOR McCONNELL: I think we've got a 6 good staff too. 7 So with that, I'll turn you over to 8 staff for questions. 9 MS. BENSON: Thank you, Mr. Chairman. 10 Mr. Fretwell, you have before you the 11 personal data questionnaire that you submitted as 12 part of your application, and I believe that there 13 is also an amendment that you have made to that 14 personal data questionnaire. Would you like to 15 discuss that at this time or is there anything else 16 that you would like to add to the personal data 17 questionnaire? 18 MR. FRETWELL: No, ma'am, I believe 19 that in its amended form it is accurate and would 20 be the truthful answers to the questions asked of 21 me. 22 MS. BENSON: Thank you. Mr. -- 23 Mr. Chairman, I'd like to ask that Mr. Fretwell's 24 personal data questionnaire and amendment be 25 entered into an exhibit at -- as -- on the hearing 0064 1 record at this time. 2 SENATOR McCONNELL: Is there any 3 objection? There being none, so ordered. 4 (EXH. 11, Personal Data Questionnaire 5 and Amendment of Mr. Allen Fretwell, admitted.) 6 MS. BENSON: Mr. Fretwell, you also 7 have before you the sworn statement that you've 8 provided with detailed answers to over 30 questions 9 regarding judicial temperament, statutory 10 qualifications, office administration, and 11 temperament. Is there any amendment that you would 12 make to that at this time? 13 MR. FRETWELL: Other than the written 14 amendments that I have submitted, there are no 15 further amendments at this time, and it would be an 16 accurate and true statement. 17 MS. BENSON: Thank you. 18 At this time, Mr. Chairman, I would ask 19 that Mr. Fretwell's sworn statement be entered into 20 exhibit (sic) in the hearing record. 21 SENATOR McCONNELL: Is there any 22 objection? There being none, so ordered. 23 (EXH. 12, Sworn Statement of Allen 24 Oliver Fretwell, admitted.) 25 MS. BENSON: Mr. Chairman, one final 0065 1 procedural matter. I note for the record that 2 based on the testimony contained in Mr. Fretwell's 3 PDQ which has been included in the record with the 4 candidate's consent, that he meets all the 5 statutory requirements for this position regarding 6 age, residence, and years in practice. 7 Mr. Fretwell, a few questions, please. 8 Why do you now want to serve as a 9 Circuit Court judge? 10 MR. FRETWELL: Thank you, Ms. Benson. 11 I have appeared before the Commission before, and I 12 have informed this Commission that what I believe 13 interested me in the process of becoming a judge 14 were the interactions that I had at pivotal points 15 in my life with judges and the impact and influence 16 those judges have had on my life. In the interest 17 of not being repetitive as to what I have said 18 previously, I wanted to just kind of take one of 19 those instances and speak about that this 20 afternoon, if I could. 21 My parents were divorced when I was 22 very young, and I really don't have any 23 recollection of my biological father. I do know 24 and understand that he had a severe alcohol problem 25 and that he was very physically abusive. My 0066 1 mother, my siblings and I went to live with my 2 grandparents, and when my mother was diagnosed with 3 liver cancer in the early '80s, she and my 4 grandparents became very concerned about our 5 future. 6 We went to the Family Court. I was I 7 believe about the age of eight, and we went to the 8 Family Court for an adoption proceeding and for 9 what I now understand to be an action to terminate 10 the parental rights of both my biological father 11 and my mother. And I really can't imagine how 12 difficult that decision must have been for my 13 mother to make when she was that sick to 14 voluntarily give up her parental rights of her 15 children, but I thank her for that sacrifice and 16 for that foresight. 17 I recall -- still recall being in that 18 family courtroom as a young child and wondering why 19 this man in a black robe was going to be making the 20 decision about what was going to happen to my 21 brother, my sister and myself. And I -- I really 22 wondered why he seemed to care so much about us and 23 what was going to happen to us. But he -- he 24 appeared -- he gave me that impression that he did 25 very much care about what was happening to us and 0067 1 where we were going to go live, and that is a 2 kindness that I have always remembered and has left 3 really an indelible mark on my life that I have 4 never forgotten. 5 If I were to be given the opportunity 6 to become a judge and to have the opportunity to 7 leave that kind of impact or have that influence on 8 another person's life, I would consider myself most 9 blessed. 10 MS. BENSON: Thank you. 11 MR. FRETWELL: Thank you. 12 MS. BENSON: Mr. Fretwell, this is 13 another question that you've answered in previous 14 screenings, but I bring it up because the Upstate 15 Citizens Committee has record -- has reported 16 that -- and they have found you well qualified in 17 all the nine areas except under experience they 18 reported -- they -- they did list you as qualified 19 as opposed to well qualified, and in the comment, 20 that Citizens Committee stated, "Mr. Fretwell's 21 lack of civil experience is our only concern. 22 However, that does not prevent him from being 23 qualified as a candidate for this position." 24 Mr. Fretwell, your service since you've 25 passed the bar has been basically as an assistant 0068 1 solicitor; is that correct? 2 MR. FRETWELL: That's correct. 3 MS. BENSON: How would you school 4 yourself to be able to deal with both civil and 5 criminal matters? And I believe you -- you have 6 mentioned things in previous screenings, but you 7 have perhaps undertaken some things since previous 8 screenings to prepare yourself. 9 MR. FRETWELL: Yes, ma'am, I have. And 10 just to refresh the recollection and for Senator 11 Nicholson's benefit, in previous screenings I've 12 talked to the members about my experience with the 13 South Carolina Bar's mock trial program. I've been 14 involved in that program since 2000. Every year 15 they alternate between a criminal and a civil case, 16 and I've had the opportunity and the obligation to 17 become familiar and up to speed on those civil 18 concepts, not only for my own benefit but also to 19 impart that information to my mock trial students. 20 In addition to that, I've talked to 21 this Committee before about how I feel about 22 challenges. I told the Committee about the 23 experience my wife and I had with -- and I think 24 maybe last time I took a little more credit 25 personally for that than I should have. It was 0069 1 definitely a team effort in plumbing my house -- 2 our first house, so I want to make sure this time I 3 was correct about saying that was a joint effort. 4 But it was something I didn't know how 5 to do when I started. I learned from a friend 6 and -- and employed those skills, and thankfully 7 there were no leaks, still no leaks. But what I 8 wanted to tell you about and what we've talked 9 about in our -- in our interview was what I have 10 done since that -- since this last -- the last 11 hearing to proactively become familiar with the 12 civil area in which I don't -- I don't practice. 13 And I think it's more important than just reading 14 advance sheets and knowing what the advance sheets 15 cover. 16 I have -- since that time I've watched 17 a civil trial, and I'm sure that some of you are 18 thinking, well, that's -- that's no huge 19 accomplishment. I was actually surprised at how 20 difficult it was to find a civil trial that would 21 go all the way through to verdict. Criminal cases 22 that -- that I'm involved with go to trial every 23 month, two weeks out of the month in our circuit. 24 It's kind of difficult to find a civil 25 case that will go all the way to trial, but I had 0070 1 the opportunity to watch most of one of those, and 2 it was very informative. They dealt with issues of 3 damages that we don't deal with as prosecutors and 4 the calculation of those damages, and those are 5 considerations that I don't think of. I think of 6 them sometimes in the -- in the realm of 7 sentencing, but that's a judge -- an argument we 8 make to the judge, not to a jury. 9 But in addition to that, I've also 10 visited classes taught by civil practitioners in 11 the areas of claim investigations and torts, which 12 is a concept that I haven't thought tremendously 13 about since law school, but in torts and also in 14 the application of the civil rules of discovery. 15 And in those classes, I have -- I have been able to 16 have my understanding refreshed about such concepts 17 as the application of the Rules of Evidence to 18 determining what claims or what causes of action 19 would be meritorious or would be valid or what they 20 might be worth or how they're evaluated. 21 I've also been able to learn about the 22 concepts of strict liability and products liability 23 cases, in negligent interference with contracts 24 with -- with the intentional or negligent 25 infliction of emotional distress. These were 0071 1 concepts that I had learned about somewhat in law 2 school, but when you've been out practicing for 3 many years, when you've tried cases, to hear about 4 those concepts again and think about what -- what I 5 would need to prove those elements is something 6 that was very interesting to me, and I -- I could 7 see why some of the people in the class were not as 8 interested possibly and I was very keyed in because 9 I -- I know what it's like to try a case and to ask 10 a jury to find in my favor. 11 So those are some things that I have 12 done and will continue to do. You know, if I were 13 to be fortunate to be selected as a judge -- a 14 Circuit Court judge, then I would certainly call on 15 my friends and my colleagues for the types of 16 discussions that I have sought to have since we 17 last -- since I last appeared before this body to 18 discuss those civil concepts and to become 19 acclimated in addition to the self-study that I 20 want to do and will continue to do kind of as my 21 process of life-long learning. 22 MS. BENSON: Mr. Fretwell, could you 23 explain what you think is the appropriate demeanor 24 for a judge. 25 MR. FRETWELL: Yes, ma'am. I think 0072 1 that a judge ought to be respectful. I think a 2 judge asks for respect and we expect a judge to be 3 respected, but I think that ultimately it's up to 4 that judge to demonstrate the respect for all 5 that -- that that judge comes in contact with to 6 really deserve the respect that he or she receives. 7 That means you don't -- you don't ever seek to 8 embarrass someone that appears before you, no 9 matter what circumstances they come from or no 10 matter -- if they're unfamiliar with the process, 11 you don't embarrass them for that. 12 I think also you should as a judge be 13 considerate of the time of the people that are 14 waiting on you really for the process to work. 15 That includes juries. That includes the litigants, 16 their attorneys, court staff, bailiffs. All of 17 these individuals are part of the process that 18 doesn't work if the judge isn't there on time and 19 if the judge is not considerate of those people's 20 time, and I think that's very important as an 21 aspect of the demeanor or the behavior of the 22 judge. 23 I also think -- and this might be one 24 of the most important things for a judge is being 25 predictable, having predictability. I think a 0073 1 judge and I believe a judge should just apply the 2 law as it is written without any kind of regard to 3 what that judge thinks the law ought to be or -- or 4 would like to see it be. The law is the law. 5 There's a deliberative process that I've become 6 familiar with working as a legislative aide in the 7 legislature to know that -- that these are hotly 8 contested issues that the legislature works out, 9 and when they are resolved, they've resolved for my 10 purposes as a prosecutor and a judge. 11 And I think that when attorneys are 12 counseling their clients and making decisions about 13 going to trial, they ought to be able to do that on 14 the law and not on what they think the whims of a 15 particular judge ought to be. So I think being 16 consistent and being predictable is an extremely 17 important aspect of a judge's demeanor. 18 And, finally, I think this might be 19 able to encapsulate what I really feel about the 20 demeanor or the behavior of a judge, and that's 21 that that judge ought to treat other people like he 22 or she would want to be treated. I've been a 23 judge -- I've been a lawyer in the courtroom for 24 the first time in front of a judge who has been 25 patient with me, has realized my inexperience and 0074 1 been considerate, and it just makes it so much 2 easier for me to do my job. 3 I think that element of patience, of -- 4 of providing a level playing field so everyone is 5 able to have a fair hearing is extremely important. 6 I know how I'd liked to have been treated and how 7 I've been treated in the courtroom, and if given 8 the opportunity as a judge, I would like to do the 9 same for others. 10 MS. BENSON: Mr. Fretwell, the South 11 Carolina Bar's Judicial Qualifications Committee 12 found you qualified in all areas, but a note 13 indicated that concerns were raised as to 14 temperament but were -- that those concerns were 15 adequately addressed in the candidate interview. 16 Because they -- they raised that note, I wondered 17 if you might want to address the issue of 18 temperament and what you feel is the appropriate 19 temperament for a judge. 20 MR. FRETWELL: Thank you, Ms. Benson. 21 The first thing I'll say is that I'm responsible 22 for any kind of impression that I've given to 23 anybody. And if there is a -- if there is a 24 sentiment that I have some sort of problem with my 25 temper or anything like that, that's something I'm 0075 1 going to pay careful attention to and I have since 2 we discussed that and since I met with the Bar 3 Committee. 4 I told the Bar Committee that I think 5 as a prosecutor I'm a much better prosecutor for 6 having participated in judicial screenings because 7 out of all of my colleagues I'm one that has been 8 able to be reviewed and have been -- has been given 9 constructive criticism from my colleagues about how 10 I do my job, and that's something over the last two 11 years that I have really put forth an effort to 12 consider and to implement in how I do my job. 13 When I first became a prosecutor, I 14 came into the office with my glasses on of this is 15 how a prosecutor is supposed to be. The prosecutor 16 goes in and the prosecutor asks for the maximum and 17 tries -- and that's kind of how I had my concept in 18 my head. I guess I had watched too many TV shows 19 as a kid. But I -- I have been appreciative of the 20 years that I have been in the office because I 21 think that those years have involved a maturing 22 process for me and for an understanding of, you 23 know, even in cases where the evidence is there, is 24 it always the best resolution to send a young man 25 or a young woman or a not so young man or a not so 0076 1 young woman to -- to send them to prison. 2 Now, as an advocate, there's still an 3 element for me of thinking that that might be the 4 right resolution. I understand the difference 5 between that and being a judge where you're not an 6 advocate. But the concern I believe that possibly 7 might have been expressed is that I -- I have 8 sought to do my job to the best of my ability, and 9 when you're an advocate in an adversarial system 10 and you do that, you're not always going to please 11 everybody, and I am regretful in any way that I 12 have ever said something in a way that could have 13 been said in a better way or could have 14 communicated a more compassionate response, and 15 that's something that I have thought a great deal 16 about in the last two years. 17 So the only thing that I can say in my 18 defense is that I've been made aware of that. I 19 don't want that to be any part of my life. I don't 20 want to have a temper in my home. I don't want to 21 have a temper when I meet people on the street, 22 when I'm driving and someone cuts me off, and I 23 certainly think it has absolutely no place in -- on 24 the bench. 25 MS. BENSON: Mr. Fretwell, you list on 0077 1 your PDQ that you've served as president and are a 2 member of the Roper Mountain Science Center 3 Association which participates in fund-raising. 4 And what -- would you continue your association 5 with that group if you were to become a judge? 6 MR. FRETWELL: My -- my association 7 with that particular board ended this past summer. 8 I have -- I did serve two terms as the president of 9 that board, and since becoming a candidate some two 10 years ago and even in between times when I was not 11 a candidate, I was very careful to read the rules 12 with respect to how much involvement a judicial 13 candidate or a judge could have in that kind of an 14 event. I participated in some behind the scenes 15 planning for those fund-raisers, but did not take 16 any kind of a public role, did not ask for money, 17 have not contributed money in that -- in that 18 respect since becoming a candidate. 19 I would not -- I would not seek a 20 future position with a fund-raising board. I think 21 they are fantastic boards and they do a lot of good 22 for our community, but I don't think that it's the 23 appropriate affiliation for someone who is a judge 24 or aspiring to be a judge. 25 MS. BENSON: What would you want your 0078 1 legacy as a Circuit Court judge to be? 2 MR. FRETWELL: I believe I would just 3 want people to feel that I had upheld my oath, that 4 I had upheld the integrity and the independence of 5 the judiciary and that I had treated everyone with 6 civility, fairness and respect. 7 MS. BENSON: Would you have any 8 suggestions for alleviating the backlog of Circuit 9 Court cases? 10 MR. FRETWELL: I think one thing that 11 is -- one thing that has been implemented in the 12 civil arena which has tremendously decreased the 13 backlog in the -- in, let's say, the last 20 years 14 was -- well, that's what -- I guess on the 15 statistics that I have for a start is the mandatory 16 mediation. Since implementation in the early 2000s 17 I think someone explained it to me this way, that 18 in Greenville County in the mid '90s, there were 19 almost 200 civil cases that would go to trial and 20 then some ten years later when the mandatory 21 mediation had -- had been instituted that that 22 number had already fallen somewhere to the 160s 23 range and that apparently last year the number of 24 civil cases that were tried in Greenville County 25 was somewhere around 47. So I think that that the 0079 1 implementation of those -- of that idea has really 2 helped the civil docket and alleviated that 3 problem. 4 I think in the criminal area which I 5 practice primarily I think there are not enough 6 prosecutors who use the tools that the legislature 7 has -- have given them for diversionary programs. 8 And I'll mention just two or three of those that 9 are of a particular interest to me. For first-time 10 offenders, the pretrial intervention program is a 11 tremendous program I think that in many cases is 12 underutilized. 13 I also think of the drug court program 14 which potentially could be expanded. As a former 15 drug prosecutor, you know, I understand that in 16 certain circumstances somebody has to go to jail 17 and they have to serve some time in prison because 18 they just -- they just harm people and they 19 can't -- they can't -- they're just -- society is 20 safer with them removed. But there are others with 21 whom I -- I really identify. They have drug 22 addiction, and that drug court program seeks to 23 address not just the symptoms but actually the 24 addiction itself, and I think it's a tremendous 25 program. 0080 1 I've put people into these programs. 2 I've seen them graduate. They look completely 3 different than they -- than they did when they went 4 into the program. It's almost like you can't 5 recognize them. I think it's a tremendous tool 6 that we underutilize as prosecutors and hopefully 7 we can see expanded in the future, because we can't 8 just constantly put people in prison. It's -- you 9 know, maybe that's weird for a prosecutor to say. 10 I think some people have to go and need to go. But 11 to be able to -- to help people get off of their 12 addictions. 13 Similarly, we -- the legislature has 14 set up a mental health court, and as an arson 15 prosecutor, it's interesting to see the connection 16 between a mental -- not maybe necessarily a mental 17 illness but some sort of mental defect and the 18 propensity to -- to start fires, and we've seen a 19 lot of success in putting those who are charged 20 with arson through the mental health court program 21 and getting them to regulate their medications and 22 helping them understand alternative ways to cope 23 with -- with the issues that they're dealing with. 24 And I think these diversionary programs 25 are -- are a tremendous way of alleviating the 0081 1 dockets -- the docket itself and making it so that 2 we don't send an increasing percentage of our 3 population to incarceration. We just can't afford 4 it. 5 MS. BENSON: Thank you, Mr. Fretwell. 6 A few housekeeping issues, please. 7 MR. FRETWELL: Yes, ma'am. 8 MS. BENSON: Have you sought or 9 received a pledge of any legislator prior to this 10 date? 11 MR. FRETWELL: With respect to this 12 seat, no, ma'am. Obviously in previous races at 13 the appropriate time I've sought those pledges, 14 but, no, not with respect to this seat. 15 MS. BENSON: As -- as to this seat, 16 have you sought or have you been offered a 17 conditional pledge of support of any legislator 18 pending the outcome of your screening? 19 MR. FRETWELL: Absolutely not. 20 MS. BENSON: Again, as to this seat, 21 have you asked any third parties to contact members 22 of the General Assembly on -- on your behalf? 23 MR. FRETWELL: No, ma'am. 24 MS. BENSON: And have you contacted any 25 members of the Commission? 0082 1 MR. FRETWELL: Only insofar as seeing 2 them in the hallways and seeing them in the lobby 3 inadvertently while I'm there to greet legislators 4 who are not on the Commission. I have not made any 5 affirmative approach to a member of the Commission 6 in order to talk with that member about the -- my 7 desire or my candidacy at all. No, ma'am. 8 MS. BENSON: Do you understand that 9 you're prohibited from seeking a pledge or 10 commitment until 48 hours after the formal release 11 of the Commission's report? 12 MR. FRETWELL: I understand that very 13 well. 14 MS. BENSON: And have you reviewed the 15 Commission's guidelines on pledging? 16 MR. FRETWELL: Yes, ma'am. 17 MS. BENSON: And just as a follow-up, 18 you're aware of the penalties for violating those 19 pledging rules, that is, that it's a misdemeanor 20 and upon conviction that the violator would be 21 fined not more than a thousand or -- or imprisoned 22 for not more than 90 days? 23 MR. FRETWELL: That's my understanding, 24 ma'am. 25 MS. BENSON: Thank you. 0083 1 Mr. Chairman, I would note for the 2 record any concerns that were raised during the 3 investigation have been addressed. 4 And I would have no further questions. 5 SENATOR McCONNELL: Thank you. 6 Do any members of the Commission have 7 any questions? If not, this concludes this portion 8 of your screening process. 9 As you know, the record will remain 10 open until the report is published, and you could 11 be called back at such time if there's an 12 outstanding question. It's not to indicate there's 13 anything pending. 14 I want to remind you of the 48-hour 15 rule and ask you to be mindful of that. In fact, 16 so mindful that if someone inquires with you about 17 whether they may or may not advocate for you in the 18 event that this Commission should screen you out, 19 that you will remind them about the 48-hour rule. 20 MR. FRETWELL: Absolutely. 21 SENATOR McCONNELL: All right. With 22 that, we thank you for your offering and -- for 23 public office. You're free to go. Have a good 24 afternoon, sir. 25 MR. FRETWELL: Thank you, Mr. Chairman. 0084 1 SENATOR McCONNELL: Thank you all for 2 being with us. 3 (Candidate excused.) 4 SENATOR McCONNELL: All right. We'll 5 move to the next candidate. 6 Good afternoon, sir. 7 We'll go back on the record of -- we 8 have before us Mr. William Patrick Frick who's 9 offering for Circuit Court, At-Large, Seat Number 10 8. 11 If you'd be kind enough to raise your 12 right hand, please, sir. 13 (Candidate sworn.) 14 SENATOR McCONNELL: Thank you. 15 The Judicial Merit Selection Commission 16 has thoroughly investigated your qualifications for 17 the bench. Our inquiries focused on our nine 18 evaluative criteria. It has included a survey of 19 the bench and the bar, a thorough study of your 20 application materials, verification of your 21 compliance with state ethics laws, a search of 22 newspaper articles in which your name appears, a 23 study of previous screenings, and a check for 24 economic conflicts of interest. 25 We have received no affidavits filed in 0085 1 opposition for to election. No witnesses are 2 present to testify. 3 So I'd ask if you have any opening 4 statement you wish to make -- it is purely 5 optional -- before I turn you over to counsel for a 6 few questions. 7 MR. FRICK: No, sir, no statement. 8 SENATOR McCONNELL: All right. Thank 9 you, sir. Please answer counsel's questions. 10 MS. GOLDSMITH: Mr. Frick, hello. 11 Mr. Chairman, members of the 12 Commission, I have a few procedural matters to take 13 care of with this candidate. 14 Mr. Frick, you have before you your 15 personal data questionnaire you submitted as a part 16 of your application. Are there any additional 17 amendments that you would like to make at this time 18 to your PDQ? 19 MR. FRICK: No, ma'am. 20 MS. GOLDSMITH: All right. 21 Mr. Chairman, I would ask that Mr. Frick's PDQ be 22 entered as an exhibit into the record at this time. 23 SENATOR McCONNELL: Is there any 24 objection? Being none, so ordered. 25 (EXH. 13, Personal Data Questionnaire 0086 1 of Mr. William Patrick Frick, admitted.) 2 MS. GOLDSMITH: Mr. Frick, you also 3 have before you the sworn statement you provided 4 with detailed answers to over 30 questions 5 regarding judicial conduct, statutory 6 qualifications, office administration, and 7 temperament. Are there any amendments you would 8 like to make at this time to your sworn statement? 9 MR. FRICK: No, ma'am. 10 MS. GOLDSMITH: All right. 11 Mr. Chairman, I would like to ask that Mr. Frick's 12 sworn statement be entered into the record as an 13 exhibit at this time. 14 SENATOR McCONNELL: Is there any 15 objection? There being none, so ordered. 16 (EXH. 14, Sworn Statement of William 17 Patrick Frick, admitted.) 18 MS. GOLDSMITH: One final procedural 19 matter. I note for the record that based on the 20 testimony contained in the candidate's PDQ which 21 has been included in the record with the 22 candidate's consent, Mr. Frick meets the statutory 23 requirements for this position regarding age, 24 residence, and years of practice. 25 I want to stop for a moment and note 0087 1 the years of practice. Mr. Frick, you were 2 licensed to practice law in South Carolina in what 3 year? What month and year? 4 MR. FRICK: That would be November 5 2001. 6 MS. GOLDSMITH: Right. And there is an 7 eight-year requirement for practicing law as an 8 attorney before you meet the qualifications to run 9 for a judgeship; is that correct? 10 MR. FRICK: Well, I believe that states 11 that you have to meet those requirements upon 12 election. 13 MS. GOLDSMITH: Right. 14 MR. FRICK: So, yes, ma'am. 15 MS. GOLDSMITH: So at the time of 16 election which would be in February -- actually the 17 tentative date for the election February 3, 2010, 18 Mr. Frick will have met the eight-year statutory 19 requirement, so I wanted to clarify that for the 20 record. 21 All right. 22 MR. FRICK: Thank you. 23 MS. GOLDSMITH: Mr. Frick, since 24 practicing law since 2001 why do you now want to 25 serve as a Circuit Court judge? 0088 1 MR. FRICK: Well, that is a very, very 2 good question, and I'm sure y'all get all kinds of 3 good answers for it I'm sure. As you've seen -- 4 and I think y'all have my -- basically my resumé in 5 front of you. I have served as both a prosecutor 6 in several different counties and worked throughout 7 just about every circuit in the state in some 8 capacity, and a public defender in a couple of 9 other ones. My family has been in public service 10 for many years, and I think my talents lend my -- 11 lend me to go forward in my public service, and I 12 think a natural progression of that would be to go 13 forward to the judiciary. 14 And one of the things I was thinking 15 about this morning, you know, my -- I was talking 16 to my wife. She actually grew up under one of the 17 last communist dictatorships in eastern Europe. 18 She's from Romania. So she spent her entire life 19 until she came to America under the regime of 20 Ceausescu when he was overthrown 20 years ago this 21 year. And it just -- it makes me think that we do 22 have the best system, and I want to be a part of 23 it. 24 MS. GOLDSMITH: Thank you. Mr. Frick, 25 I note that more of your experience is in the 0089 1 criminal area. How would you compensate for -- you 2 do have some experience in civil law, but how would 3 you compensate for not having as much experience in 4 civil law? 5 MR. FRICK: Well, I don't know that 6 there would be that much compensation necessary. 7 Obviously my career has been skewed towards the 8 criminal path. So I haven't had as much 9 experience, but it has been three years in private 10 practice and almost -- at the time about a third of 11 everything I was doing was civil court. So I am 12 quite familiar with the processes of the civil 13 court and I don't think it would be very difficult 14 for me get up to speed on anything that I'm 15 lacking, but I would suggest that I'm not lacking 16 all that much. 17 MS. GOLDSMITH: Thank you. Mr. Frick, 18 although you address this in your sworn affidavit, 19 could you please explain to the members of the 20 Commission why you -- what you think is the 21 appropriate demeanor for a judge. 22 MR. FRICK: Sure. I think it's someone 23 who should be fair and evenhanded, someone who 24 treats everyone with respect who comes before them. 25 I have been very fortunate in my career. The 0090 1 judges I practice in front of and have practiced in 2 front of meet those criteria. 3 We have an excellent resident judge who 4 I quite frankly set as our -- as our standard in 5 that regard. He's very intelligent and is just -- 6 just fair and evenhanded with everyone, and I think 7 that's the way a judge should be. Regardless of 8 the situation -- I recall one of the questions 9 being, Should a judge get angry? And I know that 10 sometimes I have to do things in court that may get 11 a judge aggravated, but the proper course is to not 12 lose your temper with me, at least not in public. 13 If you're going to take me in chambers and yell at 14 me, that's fine. But I think just someone who is 15 fair and evenhanded. 16 MS. GOLDSMITH: So maybe as a 17 follow-up, I'm going to ask you to clarify your 18 answer. You -- you're basically saying in the 19 courtroom you would not be angry with litigants and 20 attorneys, but if they do something that angers 21 you, you may take -- you might take them back into 22 your private chambers to get angry with them? 23 MR. FRICK: Well, it would be an 24 extreme circumstance, but obviously your -- your 25 role as an attorney is to be an advocate. 0091 1 Sometimes you -- you may push a little too hard, 2 and it's very easy for a judge to get frustrated 3 and lose their patience on the bench. What I mean 4 is that you can't lose your patience, certainly not 5 in public. I don't think it's appropriate to do it 6 at all, but if you are going to vent whatever 7 anger, you -- you certainly should take someone in 8 chambers. 9 MS. GOLDSMITH: What suggestions would 10 you offer, Mr. Frick, for improving the backlog of 11 cases on the docket in the Court of Common Pleas 12 and also in General Sessions. 13 MR. FRICK: Common Pleas I think we've 14 got many other opportunities that we could explore 15 more. I know we have arbitration that's mandatory 16 in many of the larger counties. The smaller 17 counties I think get neglected on that, 18 particularly counties like mine, Fairfield, who can 19 be a favorable jurisdiction and people tend to want 20 to file cases there, but we don't have mandatory 21 arbitration. It could resolve some of these cases. 22 So I think if we look towards moving towards that 23 area, and of course not everything is going to get 24 resolved in that nature, but -- but any means that 25 we can do that. 0092 1 As far as criminal court is concerned, 2 obviously our statute says that the solicitor 3 controls the case. You know, having been on that 4 side, having been on the side that I'm on now, I 5 don't know that we necessarily need to change that, 6 but I certainly think that the judge needs to be 7 more proactive in seeing what's going on on the 8 docket. If you've got a five-year-old murder case, 9 that needs to take precedence over a two-year-old 10 possession of crack case, and unfortunately it far 11 too often happens that the simple, so to speak, 12 minor cases end up coming to court well before 13 difficult cases that need a resolution. 14 So I think -- I think within the bounds 15 of the law as it is a judge can be more proactive 16 in -- in involving themselves with -- without 17 trying to step too much -- and you're going to have 18 to do it to some extent, but without stepping too 19 much on the toes of the solicitor. 20 MS. GOLDSMITH: Thank you, Mr. Frick. 21 Some housekeeping matters. 22 Have you sought or received the pledge 23 of any legislator prior to this date. 24 MR. FRICK: No, ma'am. 25 MS. GOLDSMITH: Have you sought or have 0093 1 you been offered a conditional pledge of support of 2 any legislator pending the outcome of your 3 screening? 4 MR. FRICK: No, ma'am. 5 MS. GOLDSMITH: Have you asked any 6 third parties to contact members of the General 7 Assembly on your behalf? 8 MR. FRICK: No, ma'am. 9 MS. GOLDSMITH: Have you contacted any 10 members of the Commission? 11 MR. FRICK: No, ma'am. 12 MS. GOLDSMITH: Do you understand that 13 you are prohibited from seeking a pledge or 14 commitment until 48 hours after the formal release 15 of the Commission's report? 16 MR. FRICK: Yes, ma'am. 17 MS. GOLDSMITH: Have you reviewed the 18 Commission's guidelines on pledging? 19 MR. FRICK: Yes, ma'am. 20 MS. GOLDSMITH: Are you aware of the 21 penalties for violating the pledging rules, that 22 is, it's a misdemeanor and upon conviction you 23 could be fined not more than $1,000 and imprisoned 24 not more than 90 days? 25 MR. FRICK: Yes, ma'am. 0094 1 MS. GOLDSMITH: I would note that the 2 Piedmont Citizens Committee has found Mr. Frick 3 qualified for the nine evaluative criteria: 4 Constitutional qualifications, ethical fitness, 5 professional academic ability, character, 6 reputation, experience, judicial temperament, 7 physical health, and mental stability. The 8 Committee also noted that they found Mr. Frick 9 meets the minimum requirements but believe that 10 Mr. Frick needs additional experience to be an 11 effective circuit court judge. 12 Mr. Frick, what would you like to offer 13 in response to the Citizens Committee's concerns? 14 MR. FRICK: Sure. Obviously those -- 15 it was a -- it's a brief meeting and it's difficult 16 to get to know somebody in that short period of 17 time. I think we had a very good interview. 18 Obviously the easiest thing is to look at my resumé 19 and say, "Well, he's -- he may be qualified but 20 he's simply too young, hasn't had enough 21 experience." What I would offer, however, is the 22 experience that I have is something that you would 23 get from someone who has been practicing far longer 24 than I have been practicing. 25 I started -- basically when I got to 0095 1 the Fourth Circuit as a prosecutor, I hit the 2 ground running. This was in my first year of 3 practicing law. The first trial I had was an 4 assault and battery with intent to kill which is 5 akin to attempted murder in the state of South 6 Carolina. The second trial I had was actually a 7 murder trial. So it's not like I spent three or 8 four years dealing with -- with simple 9 misdemeanors. I started out with very complex 10 cases to start with and have been doing that ever 11 since. 12 So I think the experience that I have 13 is something that is -- it's a lot of stuff jam 14 packed in there. Spent time with the Attorney 15 General's Office doing various interesting things. 16 Mr. Delleney may remember some of those we had up 17 in Chester. But just all -- all kinds of different 18 stuff. 19 I have prosecuted and now defended 20 about every criminal offense that we have in the 21 state of South Carolina outside of mayhem and/or 22 affray I believe. So I would point to -- to what's 23 actually within those eight years that you see, not 24 just the time that you see. 25 I would also point out the -- the bar 0096 1 survey. They go around and ask people who have 2 worked with me, against me on cases, and while 3 individually they may have said something about 4 experience, it was not a finding. It was nothing 5 that -- nothing came out that said that anyone who 6 I practice with, none of my colleagues think that 7 the fact that I have been doing this for a shorter 8 period of time hinders my abilities to go forward 9 and be a circuit court judge. 10 MS. GOLDSMITH: As a follow-up, the Bar 11 Judicial Qualifications Committee found you overall 12 qualified and then qualified in each of the nine 13 evaluative criteria; is that correct? 14 MR. FRICK: Yes, ma'am. And it's my 15 understanding in reviewing other ones, if there was 16 an issue as far as experience, they would note that 17 at the bottom and -- and then deal with that in 18 the -- in the interview itself. They found no -- 19 no issue with experience in dealing with -- in my 20 situation and questioning colleagues of mine. 21 MS. GOLDSMITH: Thank you, Mr. Frick. 22 I would just note for the record that any concerns 23 raised during the investigation regarding the 24 candidate were incorporated into my questioning of 25 the candidate today. 0097 1 And, Mr. Chairman, I have no further 2 questions of Mr. Frick. 3 SENATOR McCONNELL: Thank you. 4 Does any member of the Commission have 5 any questions? If not, this will conclude this 6 portion of our screening process. 7 As you know, the record will remain 8 open until a report is published, and you could be 9 called back at such time if the need arises. It's 10 not to indicate there's anything pending, but just 11 a reservation of our right. 12 I also want to remind you of the 13 48-hour rule and ask you to be mindful of that, so 14 mindful that if anyone inquires with you about 15 whether they may or may not advocate for you in the 16 event that you are screened out, please remind them 17 of the 48-hour rule. 18 Thank you for offering on behalf of 19 this Commission, and you're free to go. 20 MR. FRICK: Thank you. 21 SENATOR McCONNELL: Thank you, sir. 22 MR. FRICK: Y'all have fun. 23 (Candidate excused.) 24 SENATOR McCONNELL: We'll go off the 25 record for a minute. 0098 1 (Off the record.) 2 SENATOR McCONNELL: With that, we'll go 3 forward and go back on the record at this time. 4 And we've got with us Mr. Daniel Dewitt Hall. 5 Mr. Hall, before I swear you in, do you 6 have anybody you wish to introduce here today? 7 MR. HALL: Yes. Senator, my wife Cathy 8 is here on the front row. 9 SENATOR McCONNELL: We're delighted to 10 have you with us. 11 With that, would you be kind enough to 12 raise your right hand. 13 (Candidate sworn.) 14 SENATOR McCONNELL: Thank you, sir. 15 The Judicial Merit Selection Commission 16 has thoroughly investigated your qualifications for 17 the bench. Our inquiries focus on our nine 18 evaluative criteria. It has included a survey of 19 the bench and the bar, a thorough study of your 20 application materials, a verification of your 21 compliance with state ethics laws, a search of 22 newspaper articles in which your name appears, a 23 study of previous screenings, and a check for 24 economic conflicts of interest. 25 We have received no affidavits filed in 0099 1 opposition to your election. No witnesses are 2 present to testify. 3 I would ask you if you have any brief 4 opening statement you wish to make -- it is purely 5 optional -- before I turn you over to counsel for a 6 few questions. 7 MR. HALL: I will waive the opening, 8 Your Honor. 9 SENATOR McCONNELL: All right. 10 MR. HALL: I'm sorry. Senator. 11 SENATOR McCONNELL: That's fine. 12 Either way. I'll turn you over to staff. 13 MR. FULMER: Mr. Chairman, members of 14 the Commission, I have a few procedural matters to 15 care -- matters of care with the candidate. 16 Mr. Hall, you've been before -- you 17 have before you the personal data questionnaire you 18 submitted as part of your application. Is it -- 19 are there any amendments that you would like to 20 make at this time to your PDQ? 21 MR. HALL: No. 22 MR. FULMER: Mr. Chairman, I'd like to 23 ask that Mr. Hall's personal data questionnaire and 24 amendment -- or without amendment be entered as an 25 exhibit into the hearing record. 0100 1 SENATOR McCONNELL: Is there any 2 objection? Being none, so ordered. 3 (EXH. 15, Personal Data Questionnaire 4 of Mr. Daniel Dewitt Hall, admitted.) 5 MR. FULMER: Mr. Hall, you have before 6 you a sworn statement. You provided it with 7 detailed answers to over 30 questions regarding 8 judicial conduct, statutory qualifications, office 9 administration, and temperament. Are there any 10 amendments you'd like to make at this time to your 11 sworn statement? 12 MR. HALL: No, there are not. 13 MR. FULMER: Thank you. 14 At this time, Mr. Chairman, I'd ask 15 that Mr. Hall's sworn statement be entered to the 16 exhibit -- as an exhibit into the hearing record. 17 SENATOR McCONNELL: All right. Is 18 there any objection? There being none, so ordered. 19 (EXH. 16, Sworn Statement of Daniel 20 Dewitt Hall, admitted.) 21 MR. FULMER: One procedural matter. I 22 note for the record that based on the testimony 23 contained in -- in your PDQ which has been included 24 in the record with your consent that you meet the 25 statutory requirements for this position regarding 0101 1 age, residence, and years of practice. 2 Mr. Hall, do you now -- let's see. 3 Could you tell the Committee why you'd like to now 4 serve as Circuit Court judge. 5 MR. HALL: Well, I've -- I have served 6 the public as an assistant solicitor and a 7 municipal judge and private attorney since 1988, 8 and I view the service as a Circuit Court judge as 9 a very high honor, one where there is even a 10 greater degree of public service, and I believe I 11 have the qualifications and the desire to -- to 12 serve as a Circuit Court judge. 13 MR. FULMER: In reference to your 14 qualifications, could you explain to the Commission 15 how you feel your legal and professional experience 16 thus far will assist you to be an effective judge. 17 MR. HALL: Well, as I stated I have -- 18 I have -- I'm an assistant solicitor now. I have 19 served as a municipal judge in the city of York. I 20 have, in fact, been in private practice, had my own 21 practice for a while. I believe all of those. 22 I'm in court most all the time. I'm 23 familiar with how -- what a Circuit Court judge in 24 the General Sessions area has to deal with, the 25 decisions he has to make, the demeanor he has to 0102 1 maintain in the courtroom, and I believe my years 2 of experience would qualify me to be able to do 3 that competently. 4 MR. FULMER: I note most of your area 5 of practice has been in the criminal area and in 6 that subject matter of law, and do you believe that 7 you need any additional preparation in order to 8 serve as a circuit judge, and how would you handle 9 additional preparation if necessary? 10 MR. HALL: Certainly even in spite of 11 my years of criminal experience, every area of the 12 law always needs additional preparation, and I 13 think I'll be learning about the law till I pass 14 out of this life. But certainly in the civil area 15 I'll need to work and to -- to learn the rules of 16 procedures and what goes on in the civil court, but 17 I believe I have the intellect to be able to do 18 that. 19 MR. FULMER: Thank you. Although 20 you've addressed this in your sworn statement, 21 Mr. Hall, I was wondering if you could explain to 22 the Commission what you think is the appropriate 23 demeanor for a judge. 24 MR. HALL: Patient, fair, and 25 impartial. 0103 1 MR. FULMER: When you leave the bench, 2 what would you like your legacy to be as to your 3 years on the bench? 4 MR. HALL: A judge who is patient, fair 5 and impartial, and -- and everybody who came was on 6 even ground. 7 MR. FULMER: Are there any suggestions 8 you'd like to offer in terms of improving the 9 backlog of cases on the docket in Circuit Court 10 both as to criminal and civil? 11 MR. HALL: Well, I've had -- I've had 12 the pleasure of working in a circuit that we have 13 been able to deal with our backlog, the Sixteenth 14 Circuit, and I think there are several things that 15 have contributed to that. One is that we have a 16 case management system that has worked, but it's 17 worked primarily not because of the system but 18 because of personalities involved. 19 We had our -- my boss, Solicitor Tommy 20 Pope, and then Chief Public Defender Harry Dest 21 were two men who were able to -- who had 22 personalities that could work together. And 23 their -- I think their strong personalities, their 24 willingness to work, coupled with a system in place 25 where they could move the system forward is what 0104 1 helped us in -- in York County, and the Sixteenth 2 Circuit could have had all of our docket. 3 And I think as a -- as a Circuit Court 4 judge, it's another personality. That willingness 5 to work with the parties involved is -- is a huge 6 factor in alleviating a docket. But a systems -- 7 and -- but primarily, just like the avenue you -- 8 you folks work in, is personalities and people 9 learning to work together, and working together is 10 what's made -- made it work in York County. 11 MR. FULMER: You briefly addressed this 12 in your sworn statement, questions concerning 13 judicial activism. Could you explain your approach 14 to -- your general judicial philosophy. 15 MR. HALL: Judges are bound by 16 precedent and by existing law, and the judicial -- 17 the bench is not a place for judicial activism. 18 Changes in policy is left up to the legislature of 19 the state. 20 MR. FULMER: Thank you. I've got 21 some -- house cleaning issues. 22 How have you sought -- these are just 23 questions I have to ask about. Have -- have you 24 sought or received a pledge of any legislator prior 25 to this date? 0105 1 MR. HALL: No. 2 MR. FULMER: Have you sought or have 3 you offered -- been offered -- have you been 4 offered a conditional pledge of support of any 5 legislator pending the outcome of your screening? 6 MR. HALL: No, I have not. 7 MR. FULMER: Have you asked any third 8 parties to contact members of the General Assembly 9 on your behalf? 10 MR. HALL: No, I have not. 11 MR. FULMER: Have you contacted any 12 members of the Commission? 13 MR. HALL: I have not. 14 MR. FULMER: All right. Do you 15 understand that you are prohibited from seeking a 16 pledge or commitment until 48 hours after the 17 formal release of the Commission's report? 18 MR. HALL: Yes, I do. 19 MR. FULMER: Have you received the 20 Commission's guide -- or have you reviewed the 21 Commission's guidelines on pledging? 22 MR. HALL: I have. 23 MR. FULMER: As a follow-up, are you 24 aware of the penalties for violating the pledging 25 rule, that is it is a misdemeanor and upon 0106 1 conviction the violator must be find not more than 2 a thousand dollars and imprisoned not more than 90 3 days? 4 MR. HALL: I am aware of it. 5 MR. FULMER: I'd like to note, 6 Mr. Chairman, for the record that we have a report 7 from the Piedmont -- the Piedmont Citizens 8 Committee found Mr. Hall well qualified for each of 9 the nine evaluative criteria: Constitutional 10 qualifications, physical fitness, professional 11 academic ability, character, reputation, physical 12 health, mental stability, experience, and judicial 13 temperament. 14 And in their statement they found 15 Mr. Hall, quote, to possess high moral character 16 and excellent and professional academic ability. 17 We believe his judicial temperament would be 18 excellent. The Committee finds Mr. Daniel Hall for 19 the -- for the position he is seeking. The 20 decision of the Committee was unanimous. 21 Thank you. Mr. Chairman, I have no 22 further questions other than I would like to state 23 that every -- every concern that was raised in our 24 investigation has been addressed by incorporating 25 the questions to the candidate. 0107 1 SENATOR McCONNELL: All right. Thank 2 you, sir. 3 We'll see if -- any member of the 4 Commission have any questions? All right. If not, 5 that concludes this portion of our screening 6 process. 7 As you know, the record will remain 8 open until the report is published and you may be 9 called back at such time if the need arises. It's 10 not to indicate anything's out there, but the 11 Committee reserves that right. 12 I remind you again of the 48-hour rule 13 and ask you to be mindful of that, so mindful that 14 if anyone inquires with you about whether they may 15 or may not advocate for you in the event that you 16 are screened out by this Committee, that you remind 17 them of the 48-hour rule. 18 With that, we thank you for your 19 offering, and glad to have had both of you here 20 with us, and have a nice afternoon. 21 MR. HALL: All right. Thank y'all. 22 Thank you for your time. 23 (Candidate excused.) 24 (Off the record.) 25 SENATOR McCONNELL: Good afternoon. 0108 1 How are you doing, sir? 2 MR. HUBBARD: Very good, sir. Thank 3 you. 4 SENATOR McCONNELL: All right. We have 5 for the record Mr. Samuel Richardson Hubbard III, 6 who is offering for the Circuit Court, At-Large, 7 Seat Number 8. 8 Before I start and swear you in, I ask 9 if you have any guests you wish to recognize or 10 introduce to the Commission. 11 MR. HUBBARD: Yes, sir, I do. There's 12 my wife Ann. There's my sister Beth Atwater and a 13 friend from the office, Chris Samellas. 14 SENATOR McCONNELL: Well, we're 15 delighted to have all of y'all with us today. 16 With that, I will ask you if you'd 17 raise your right hand. 18 (Candidate sworn.) 19 SENATOR McCONNELL: Thank you. 20 The Judicial Merit Selection Commission 21 has thoroughly investigated your qualifications for 22 the bench. Our inquiries focused on our nine 23 evaluative criteria and has included a survey of 24 the bench and the bar, a thorough study of your 25 application materials, a verification of your 0109 1 compliance with state ethics laws, a search of 2 newspaper articles in which your name appears, a 3 study of previous screenings, and a check for 4 economic conflicts of interest. 5 We have received no affidavits filed in 6 opposition to your election. No witnesses are 7 present to testify. 8 So I would ask if you have any brief 9 opening statement you wish to make -- it's purely 10 optional -- before I turn you over to counsel who 11 will have some questions for you. 12 MR. HUBBARD: I'd just like to thank 13 everyone for allowing me to be here. 14 SENATOR McCONNELL: Thank you so much. 15 With that, please answer counsel's questions. 16 MR. HUBBARD: Yes, sir. 17 MR. DENNIS: Mr. Chairman, members of 18 the Commission, I have just a few procedural 19 matters to take care of with Mr. Hubbard. 20 Mr. Hubbard, you should have before you 21 a copy of your personal data questionnaire that you 22 submitted to the Commission as part of your 23 application. Is there any amendment to your PDQ 24 that you'd like to make now? 25 MR. HUBBARD: There is. I'd like to 0110 1 withdraw the letters of recommendation -- four of 2 the letters of recommendation and substitute four 3 other letters. Those letters would be -- that I'm 4 asking to withdraw are the letters from Robert 5 Madsen, Leigh Leventis and Jerry Screen, and also 6 Robert Williams, and substitute those letters 7 for -- letters by Julius Baggett, Hope Frick, and 8 from -- oh, gracious. Who else? Catherine 9 Hubbard, and I had one more. Oh, my priest. Of 10 course. Father Young. I'm sorry. 11 SENATOR McCONNELL: That would be an 12 important one to remember. 13 MR. HUBBARD: He'll remind me of that 14 I'm sure. 15 MR. DENNIS: Mr. Chairman, I'd like to 16 ask that Mr. Hubbard's personal data questionnaire 17 and the amendments to it be entered as an exhibit 18 into the hearing record. 19 SENATOR McCONNELL: Without objection, 20 so ordered. 21 (EXH. 17, Personal Data Questionnaire 22 and Amendment of Mr. Samuel Richardson Hubbard III, 23 admitted.) 24 MR. DENNIS: Mr. Hubbard, you also have 25 before you a copy of your sworn statement which 0111 1 provided detailed answers to over 30 questions 2 regarding judicial conduct, statutory 3 qualifications, office administration, and 4 temperament. Is there any amendment you'd like to 5 make to that sworn statement at this time? 6 MR. HUBBARD: No, sir. 7 MR. DENNIS: At this time, 8 Mr. Chairman, I'd like to ask that Mr. Hubbard's 9 sworn statement be entered as an exhibit into the 10 hearing record. 11 SENATOR McCONNELL: Without objection, 12 so ordered. 13 (EXH. 18, Sworn Statement of Samuel 14 Richardson Hubbard III, admitted.) 15 MR. DENNIS: There's one final 16 procedural matter. I note for the record that 17 based on the testimony contained in the candidate's 18 PDQ which has been included in the record with the 19 candidate's consent, Mr. Hubbard meets the 20 statutory requirements for this position regarding 21 age, residence, and years of service. 22 Mr. Hubbard, can you tell the 23 Commission why you want to serve as a Circuit Court 24 judge. 25 MR. HUBBARD: Yes. My entire career 0112 1 has been in public service, and I know today that 2 might sound like a cliche, but I made a decision 3 years ago that I wanted to be able to go home after 4 a day's worth of work and look in the mirror and be 5 happy with what I had done and that I had made an 6 affect on people's lives, and that's what I've done 7 as a prosecutor. 8 And during that time as a prosecutor 9 and prior to that, I worked with two judges and 10 have gotten to know many, many judges during my 11 career. And I've seen good judges and bad judges, 12 and the best judges I've seen are judges that work 13 hard. They're honest. They're courteous. They're 14 intelligent. They're all the things that you need 15 to be to be a good prosecutor. And now there's an 16 opportunity where I can take that next step in my 17 career in public service. 18 I believe that I have the -- the 19 background and also the attributes that are 20 necessary to be a good judge, and I think it would 21 be an honor to have that opportunity. 22 MR. DENNIS: Thank you, Mr. Hubbard. 23 Are there any areas, including 24 substantive areas of the law, that you would need 25 to additionally prepare for in order to serve as a 0113 1 judge and how would you handle that extra 2 preparation? 3 MR. HUBBARD: Most of my career 4 obviously has been the criminal side of things, so 5 I need to work on the civil side. But if you look 6 at my background, I did have four years clerking 7 for two different judges, which is unusual these 8 days. Usually a clerk clerks one year. 9 The first judge I worked for, I had 10 unusual authority. I made decisions on things that 11 most clerks don't get to do, which the judge I 12 worked for was a wonderful man, Hubert Long, but he 13 was the last of a bygone era. And after that I got 14 to work with Judge Billy Keesley. I worked with 15 him for three years, and he is today what I would 16 call a model judge. He's everything you want in a 17 judge. He works hard. He's smart. He's bright. 18 During that time I saw hundreds of civil cases. I 19 saw how they -- how they are moved through our 20 system. 21 Now, as a trial lawyer I possess all 22 the knowledge of evidence that you need in any 23 case, civil or criminal. And I believe I possess 24 the skills to operate in a courtroom, to make quick 25 decisions, that many, frankly, civil lawyers don't 0114 1 get the opportunity to -- to learn to develop. So 2 I bring that to the plate as well. 3 But I know that I do need to study on 4 the civil side. I need to study the law, but 5 frankly I think that's an easier task for me than 6 for learning the courtroom which is something you 7 can only get by experience, because there in the 8 courtroom you're actually applying rules and law to 9 objections, and you've got to be so quick about it. 10 And I do that on a regular basis. 11 MR. DENNIS: Mr. Hubbard, you addressed 12 in your sworn statement what you thought the 13 appropriate demeanor for a judge would be, but 14 could you explain to the Commission in a little 15 more detail what you think that is. 16 MR. HUBBARD: Over the years I've 17 gotten to know many judges, and the lawyers all 18 agree on the best judges. Those are judges that 19 are always kind and courteous. They're not 20 arrogant. That robe doesn't make them something 21 special. They just represent something special. 22 And they need to be kind and courteous to everyone 23 that comes in that courtroom because they represent 24 more than anyone our system of justice. 25 So when a stranger walks in that 0115 1 courtroom, they need to know that our system is 2 fair, that we have good people on that bench. We 3 also need somebody who is intelligent, who takes 4 the time to study the law. It should be a passion, 5 somebody who knows how to apply the law. Somebody 6 who is patient and somebody who works. Somebody 7 who is there every time that door is open and the 8 attorneys are ready to go, he's there. If that 9 means working five days a week, five days. If it 10 means working six or seven days a week, then that's 11 what it takes. And I've seen good judges do just 12 that, and that's what I would be if I was a judge. 13 MR. DENNIS: What suggestions would you 14 offer for improving the backlog on the docket in 15 Circuit Court, both General Sessions and Common 16 Pleas? 17 MR. HUBBARD: Well, I tell you what 18 we've done in criminal court. My job is a little 19 different than a lot of prosecutors. I'm actually 20 in charge of the docket in Lexington County. I'm 21 responsible for moving cases. Back in 2003 we were 22 almost at 11,000 cases, huge backlog. We adopted a 23 case management system in 2004. We're down to 24 about 5,200 cases. We've dipped down as low as 25 5,000 cases. We've also worked on our jail. I've 0116 1 started a violent crime task force. The solicitor 2 said, "Rick, if you think you can pull it together, 3 go for it." 4 We now move more cases through our jail 5 than we've ever done before in the history of my 6 time in Lexington. We move more cases each year 7 than we have coming in, violent and nonviolent. 8 The one final thing that I want to do is what 9 they've adopted in civil court. And I've talked to 10 our judges at length about this, and that is to 11 have conferences, status conferences, individually 12 with the lawyers on every specific case, starting 13 with the oldest ones to push them forward because 14 my experience both as a clerk and as a prosecutor 15 is when you get close to that courtroom, things 16 tend to resolve themselves. That's how you do it. 17 And I know. I've been doing it. 18 MR. DENNIS: Thank you, Mr. Hubbard. I 19 have just a couple of housekeeping matters that I'm 20 going to run through with you. 21 Have you sought or received the pledge 22 of any legislator prior to this date. 23 MR. HUBBARD: I have not. 24 MR. DENNIS: Have you sought or have 25 you been offered a conditional pledge of support of 0117 1 any legislator pending the outcome of your 2 screening? 3 MR. HUBBARD: I have not. 4 MR. DENNIS: Have you asked any third 5 parties to contact members of the General Assembly 6 on your behalf? 7 MR. HUBBARD: I have not. 8 MR. DENNIS: Have you contacted any 9 members of this Commission? 10 MR. HUBBARD: Actually Senator 11 Nicholson probably received a letter from me that 12 was sent out prior to his time on this Commission. 13 Other than that, no, sir. 14 MR. DENNIS: Do you understand that you 15 are prohibited from seeking a pledge or commitment 16 until 48 hours after formal release of the 17 Commission's report? 18 MR. HUBBARD: I do. 19 MR. DENNIS: Have you reviewed the 20 Commission's guidelines on pledging? 21 MR. HUBBARD: I have. 22 MR. DENNIS: As a follow-up, are you 23 aware of the penalties for violating the pledging 24 rules, that is, it's a misdemeanor and upon 25 conviction, the violator must be fined not more 0118 1 than a thousand dollars or imprisoned not more than 2 90 days? 3 MR. HUBBARD: Yes, sir. 4 MR. DENNIS: I would note that the 5 Midlands Citizen Committee reported that 6 Mr. Hubbard was well qualified for each of the nine 7 evaluative criteria. They also stated that the 8 Committee was very impressed by Mr. Hubbard with 9 his extensive experience of service to the Eleventh 10 Circuit, his impeccable character and his strong 11 work ethic. "We, meaning the Committee, are 12 confident that he is a very eminently qualified and 13 most highly regarded candidate who would serve the 14 Circuit Court in a most outstanding manner." 15 I would note, Mr. Chairman, for the 16 record that any concerns raised during the 17 investigation into Mr. Hubbard were incorporated in 18 today's questioning. 19 And I have nothing further. 20 SENATOR McCONNELL: All right. Does 21 any member of the Commission have a question? I 22 noticed in your qualifications here in your history 23 that you won Senator Hollings' award for excellence 24 in state prosecution. I want to congratulate you 25 on that. 0119 1 MR. HUBBARD: Thank you. 2 SENATOR McCONNELL: That's very 3 impressive. 4 MR. HUBBARD: Thank you, Mr. Chairman. 5 SENATOR McCONNELL: Yes. 6 SENATOR KNOTTS: I think if you ever 7 observed him in the courtroom, you'll find that he 8 is the epitome of a judge in his way of handling 9 things, handling the public, handling victims. 10 MR. HUBBARD: Thank you, Senator. 11 SENATOR McCONNELL: All right. Are 12 there any other questions, comments? 13 If not, let me just tell you this 14 concludes this stage of the screening process. As 15 you know, the record will remain open, and this 16 Commission reserves the right to call you back at 17 any time up until its report becomes public should 18 a question come up. 19 MR. HUBBARD: Yes, sir. 20 SENATOR McCONNELL: That's not to 21 indicate there's anything pending. 22 MR. HUBBARD: Yes, sir. 23 SENATOR McCONNELL: Just to make it 24 clear, those are the ground rules. 25 Lastly, let me remind you of the 0120 1 48-hour rule and ask you to be extremely mindful of 2 it, so mindful that if in fact someone -- anyone 3 inquires with you about whether they may or may not 4 advocate for you in the event that you are screened 5 out, please remind them of the 48-hour rule. 6 MR. HUBBARD: Yes, sir. 7 SENATOR McCONNELL: With that, we want 8 to thank you for your offering for public service. 9 And family and friends, thank you all 10 for coming. 11 MR. HUBBARD: Thank you very much. 12 SENATOR McCONNELL: Have a good day. 13 (Candidate excused.) 14 (Off the record.) 15 SENATOR McCONNELL: All right. We'll 16 officially go back on the record at this particular 17 time. 18 We have before us Ms. Stephanie Myrick 19 Pendarvis McDonald. She's offering for Circuit 20 Court, At-Large, Seat Number 8. 21 If you'd be so kind as to raise your 22 right hand. 23 (Candidate sworn.) 24 SENATOR McCONNELL: Thank you. 25 The Judicial Merit Selection Commission 0121 1 has thoroughly investigated your qualifications for 2 the bench. Our inquiries focused on nine 3 evaluative criteria. It's included a survey of the 4 bench and bar, a thorough study of your application 5 materials, a verification of your compliance with 6 state ethics laws, a search of newspaper articles 7 in which your name appears, the study of previous 8 screenings, and a check for economic conflicts of 9 interest. 10 We received no affidavits filed in 11 opposition to your election. No witnesses are 12 present to testify. 13 I would ask you if you have any brief 14 opening statement you wish to make, which is purely 15 optional, before I turn you over to counsel who 16 will have all the questions. 17 MS. MCDONALD: Thank you, Senator 18 McConnell. I believe I'll waive my opening 19 statement. I think y'all have been here a really 20 long time, and I'm happy to just answer any 21 questions that the Commission or that Ms. Shuler 22 might have. 23 SENATOR McCONNELL: Brevity is clarity, 24 so thank you. 25 With that, some questions. 0122 1 MS. SHULER: Ms. McDonald, Mr. Chairman 2 and members of the Commission, I have a few 3 procedural matters to cover with this candidate. 4 Ms. McDonald, you have before you your 5 personal data questionnaire you submitted as part 6 of your application. Are there any additional 7 amendments that you would like to make at this time 8 to your PDQ? 9 MS. MCDONALD: Not to the PDQ, but to 10 the -- just the general information sheet that 11 asked which counties had I resided in, and I put 12 Richland and Charleston, and when I spoke with the 13 SLED agent that I was working with, I recall that 14 from about age two to four I lived in Allendale 15 County as well, but we didn't think there would be 16 any warrants from that time period, so I did not 17 update that, but I did live in Allendale County 18 from ages two to four. 19 MS. SHULER: Thank you. 20 Mr. Chairman, I would like to ask that 21 Ms. McDonald's PDQ be entered into the record at 22 this time as an exhibit. 23 SENATOR McCONNELL: All right. Is 24 there any objection? There being none, so ordered. 25 (EXH. 19, Personal Data Questionnaire 0123 1 of Ms. Stephanie Pendarvis McDonald, admitted.) 2 MS. SHULER: Ms. McDonald, you 3 have also -- have before you the sworn statement 4 you provided with detailed answers to over 30 5 questions regarding judicial conduct, statutory 6 qualifications, office administration, and 7 temperament. Are there any additional amendments 8 you would like to offer at this time to your sworn 9 statement? 10 MS. MCDONALD: No. Thank you. 11 MS. SHULER: Mr. Chairman, at this time 12 I would ask that her sworn statement be entered as 13 an exhibit into the record. 14 SENATOR McCONNELL: All right. Is 15 there any objection? There being none, so ordered. 16 (EXH. 20, Sworn Statement of Stephanie 17 Pendarvis McDonald, admitted.) 18 MS. SHULER: One final procedural 19 matter. I note for the record based on the 20 testimony contained in the candidate's PDQ, 21 Ms. McDonald meets the statutory requirements for 22 this position regarding age, residence, and years 23 of practice. 24 Ms. McDonald, after practicing law for 25 15 years, why do you now want to serve as a Circuit 0124 1 Court judge? 2 MS. MCDONALD: Well, as I wrote in my 3 PDQ, community service has been an important part 4 of my life for really as long as I can remember, 5 but definitely back to high school and college. 6 This is the best way I can think to serve my state. 7 I like an intellectual challenge. I think I've got 8 the temperament and work ethic needed for the 9 bench, and I really just feel like this is what I 10 am supposed to be doing right now. So after 11 looking at the application and thinking about it 12 for three or four years, I finally went ahead and 13 turned it in. 14 MS. SHULER: I note in your PDQ that 15 you have significant civil experience. The one 16 concern that has been raised is a lack of criminal 17 experience. How would you respond to that concern? 18 MS. MCDONALD: Certainly. One of the 19 important things I think I would ask everyone to 20 remember is that the parameters of criminal 21 practice and procedure are the Constitution in our 22 state and the U.S. Constitution. As part of my 23 civil practice I've practiced Constitutional law 24 for 15 years. I've dealt with Brady violations, 25 search and seizure, the First Amendment, Fifth, 0125 1 Sixth, Seventh, Fourteenth, really just about 2 anything that might come up in a pretrial 3 suppression hearing or other such hearing in a 4 criminal context. 5 As far as the criminal procedural and 6 practice everyday matters might go, I'm willing to 7 put in the work I need to put in to get up to speed 8 on that area to the extent that I'm not. I think 9 I'm well versed in the Rules of Evidence. The same 10 Rules of Evidence, with a few exceptions, apply in 11 civil and criminal court. You know, I use Rule 12 404(b) and 403 and the hearsay rules and the rules 13 on expert testimony often now. I'm ready to go on 14 those. So I really think I'll be up to the job. 15 I'm sure there will be some civil areas that I need 16 to work extra hard on as well. 17 MS. SHULER: Thank you. Although you 18 address this in your sworn affidavit, could you 19 please explain to the members of the Commission 20 what you believe to be the appropriate demeanor for 21 a judge. 22 MS. MCDONALD: I think a judge needs to 23 be patient and treat everybody in his or her 24 courtroom with dignity. I think a good temperament 25 is important. I think the easiest way to undermine 0126 1 your credibility on the bench is to exhibit what we 2 fondly call robe-itis on the bench. I don't think 3 that is beneficial to the Court or to anyone there. 4 I understand that judges are human beings and it's 5 a high-stress situation, but I think patience, 6 respect, work ethic, those would be the characters 7 I think are important. 8 MS. SHULER: Thank you. Ms. McDonald, 9 what suggestions would you offer for improving the 10 backlog of cases on the docket in Circuit Court for 11 Common Pleas and also for General Sessions? 12 MS. MCDONALD: I think that it would 13 help an awful lot if we went back to what we used 14 to do before we got so behind and held more 15 pretrial and status conferences. It's amazing how 16 much a lawyer can get up to speed on their file 17 when they need to appear before a judge for a 18 status conference. It also allows the Court to 19 work out any problems that might cause a request 20 for a last minute continuance. 21 One of my pet peeves in law practice is 22 you've got a motions term -- and we don't have 23 enough of those. We need to schedule more motions 24 terms to clear out the motions so the cases can be 25 ready for trial. But the judges (sic) will go to 0127 1 argue their motion, and the judge will essentially 2 punt and say, "Oh, I'll just save that for the 3 trial judge." Well, what that does is cost 4 everybody the money of having to go there and argue 5 it and then have extra work to do when you could be 6 impanelling a jury and going forward. And I think 7 that there are proceedings in criminal and civil 8 cases that could be helped by working around that. 9 MS. SHULER: Thank you. Ms. McDonald, 10 you disclosed that you were sued in 1996. Can you 11 elaborate briefly on this matter and the 12 disposition of the lawsuit. 13 MS. MCDONALD: Certainly. And it was 14 actually an attempt to sue me I believe in '96 or 15 '97. There was a case involving a pro se plaintiff 16 who was a repeat litigant -- we call them a 17 frequent filer -- and had sued several law 18 enforcement defendants and county officials in 19 Charleston. I removed the case from state court to 20 federal court and subsequently moved for summary 21 judgement. Mr. Thomas then attempted to amend his 22 complaint to sue me and Clerk of Court Julie 23 Armstrong for conspiracy to violate his right of 24 access to the courts because we removed the federal 25 question to federal court. Judge Carr denied the 0128 1 motion to amend, but that's the closest I've come 2 so far to being sued. 3 MS. SHULER: Thank you. Ms. McDonald, 4 I have some housekeeping issues to cover with you. 5 Have you sought or received the pledge 6 of any legislator prior to this date? 7 MS. MCDONALD: I have not. 8 MS. SHULER: Have you sought or have 9 you been offered a conditional pledge of support of 10 any legislator pending the outcome of the 11 screening? 12 MS. MCDONALD: No. 13 MS. SHULER: Have you asked any third 14 parties to contact members of the General Assembly 15 on your behalf? 16 MS. MCDONALD: No. 17 MS. SHULER: Have you contacted any 18 members of the Commission? 19 MS. MCDONALD: No. But I have run into 20 members of the Commission around town, and I'm 21 happy to elaborate on that. I ran into 22 Representative Mack in the parking garage last week 23 and tried to run the other way. I believe I saw 24 Senator McConnell at a legislative delegation 25 meeting, and I ran into Mr. Harrell in a restaurant 0129 1 in Charleston. 2 MS. SHULER: All right. Thank you. 3 Do you understand that you're 4 prohibited from seeking a pledge or commitment 5 until 48 hours after the formal release of the 6 Commission's report? 7 MS. MCDONALD: I do. 8 MS. SHULER: Have you reviewed the 9 Commission's guidelines on pledging? 10 MS. MCDONALD: I have. 11 MS. SHULER: As a follow-up, are you 12 aware of the penalties for violating the pledging 13 rules, that is, it's a misdemeanor and upon 14 conviction you could be fined not more than a 15 thousand dollars and imprisoned not more than 90 16 days? 17 MS. MCDONALD: I have reviewed those. 18 MS. SHULER: Thank you. I would note 19 that the Lowcountry Citizens Committee found 20 Ms. McDonald qualified for each of the nine 21 evaluative criteria: Constitutional 22 qualifications, ethical fitness, professional 23 academic ability, character, reputation, physical 24 health, mental stability, experience, and judicial 25 temperament. However, with respect to her 0130 1 experience, they noted that she is lacking the 2 necessary criminal trial experience needed for this 3 position. And I know that you have addressed this 4 at the outset, but is there any further response 5 that you would like to offer regarding the Citizens 6 Committee's comment regarding your lack of criminal 7 trial experience? 8 MS. MCDONALD: Just that perhaps I 9 didn't elaborate enough on the fact that I think 10 the kind of Constitutional legal experience I have 11 is very important in that area and that I may have 12 more in that area than some folks that have 13 practiced criminal law for a while, but perhaps I 14 did not answer that to their satisfaction. 15 MS. SHULER: Thank you. I would just 16 note for the record that any concerns raised during 17 the investigation regarding this candidate were 18 incorporated into the questioning of her today. 19 And those are all the questions I have 20 for Ms. McDonald, Mr. Chairman. 21 SENATOR McCONNELL: All right. Let's 22 see if the Committee has any further questions. 23 Any member of the Commission have a 24 question? If not, that concludes this portion of 25 the screening process. 0131 1 As you know, the record will remain 2 open until the report is published, and you may be 3 called back at such time if the need arises. 4 That's not to indicate there's anything pending. 5 I want to remind you again of the 6 48-hour rule and ask you to be mindful of that, so 7 mindful that if anyone inquires with you about 8 whether they may or may not advocate for you in the 9 event that you're screened out by this Committee, 10 that you remind them of the 48-hour rule. 11 With that, thank you for offering, and 12 wish you have a great day. 13 MS. MCDONALD: I will. Thank you for 14 your time. 15 SENATOR McCONNELL: Thank you. 16 (Candidate excused.) 17 (Off the record.) 18 SENATOR McCONNELL: All right. We'll 19 go back on the record at this point. 20 And we have before us The Honorable 21 Maite Murphy who is offering for the Circuit Court, 22 At-Large, Seat Number 8. 23 SENATOR McCONNELL: Good afternoon. 24 JUDGE MURPHY: Good afternoon to 25 everybody. 0132 1 SENATOR McCONNELL: How are you today. 2 JUDGE MURPHY: I'm doing great. Thank 3 you. 4 SENATOR McCONNELL: All right. Do you 5 have anybody you wish to introduce before we go 6 forward? 7 JUDGE MURPHY: Yes, sir. Senator, my 8 husband Chris Murphy is here with me today. 9 MR. MURPHY: Thank you. 10 SENATOR McCONNELL: Glad to have you 11 with us. 12 MR. MURPHY: Yes, sir. Thank you. 13 SENATOR McCONNELL: All right. With 14 that, we will proceed. 15 If you'd be so kind as to raise your 16 right hand. 17 (Candidate sworn.) 18 SENATOR McCONNELL: Thank you. 19 The Judicial Merit Selection Commission 20 has thoroughly investigated your qualifications for 21 the bench. Our inquiry is focused on the nine 22 evaluative criteria, and it's included a survey of 23 the bench and the bar, a thorough study of your 24 application material, a verification of your 25 compliance with the state ethics laws, a search of 0133 1 newspaper articles in which your name appears, a 2 study of any previous screenings, a check for 3 economic conflicts of interest. 4 We have received no affidavits filed in 5 opposition to your election. No witnesses are 6 present to testify. 7 So I would ask you if you have any 8 opening statement you wish to make, which is purely 9 optional, before I turn you over to staff who will 10 have all the questions for you, and then we'll see 11 if the commissioners have anything left to ask. 12 JUDGE MURPHY: I would just like to 13 make a very brief statement in thanking the 14 Commission for their hard work in this process. 15 Certainly I know it's a lot of work for everybody 16 and especially the staff as well. They have been 17 extremely courteous and kind and efficient in their 18 dealings with the candidates, and I would just like 19 to thank them and thank y'all for your time in this 20 important process. I think South Carolina 21 certainly ought to be outed for this process as it 22 certainly promotes judicial independence which is a 23 great thing that we ought to be proud of. 24 And with that, I'm happy to answer any 25 questions. 0134 1 SENATOR McCONNELL: All right. Answer 2 counsel's questions. 3 MS. WELLS: Thank you, Mr. Chairman. 4 Judge Murphy, you have before you your 5 personal data questionnaire and the amendment that 6 you submitted as part of your application. Are 7 there additional amendments besides that earlier 8 amendment that you made to your PDQ? 9 JUDGE MURPHY: No, ma'am, just the 10 additional addendum to question 34. 11 MS. WELLS: I would ask that Judge 12 Murphy's personal data questionnaire and amendment 13 be entered as an exhibit into the record at this 14 point. 15 SENATOR McCONNELL: Is there any 16 objection? There being none, so ordered. 17 (EXH. 21, Personal Data Questionnaire 18 and Amendment of Mrs. Maite Murphy, admitted.) 19 MS. WELLS: And, Judge Murphy, you also 20 have before you the sworn statement you provided 21 with detailed questions -- answers to over 30 22 questions regarding judicial conduct, statutory 23 qualifications, office administration, and 24 temperament. Are there any amendments you would 25 like to make at this time to that sworn statement? 0135 1 JUDGE MURPHY: No, ma'am. 2 MS. WELLS: At this time, Mr. Chairman, 3 I would ask that Judge Murphy's sworn statement be 4 entered as an exhibit into the hearing record. 5 SENATOR McCONNELL: Without objection, 6 so ordered. 7 (EXH. 22, Sworn Statement of Maite D. 8 Murphy, admitted.) 9 MS. WELLS: I also note for the record, 10 Mr. Chairman and Members of the Commission, that 11 based on the testimony contained in the candidate's 12 personal data questionnaire which has been included 13 in the record with her consent, Judge Murphy meets 14 the statutory requirements for this position 15 regarding age, residence, and years of practice. 16 Judge Murphy, why do you now want to 17 serve as a Circuit Court judge? 18 JUDGE MURPHY: I feel that I could have 19 a positive impact on our legal community and on our 20 state by serving in that capacity. By currently 21 serving as an assistant associate chief magistrate 22 for Dorchester County, I've had some insight into 23 the judicial activities and some insight into how 24 the judiciary affects people's everyday lives in 25 our state and how important that service is. I 0136 1 take that service very seriously, and I feel that 2 my background and experience, both in private 3 practice as well as -- as well as at the 4 Solicitor's Office and in the magistrate's court, 5 have prepared me effectively to serve. 6 MS. WELLS: Judge Murphy, are there any 7 areas including subjective areas of law that you 8 would need to additionally prepare for in order to 9 serve as a Circuit Court judge, and if so, how 10 would you handle the additional preparation? 11 JUDGE MURPHY: I think the practice of 12 law is just that. It's a practice, and I think 13 practice makes perfect, and any attorney that tells 14 you they're well prepared for everything may not be 15 fully compliant in that I think no matter what case 16 comes before you you always have to prepare for 17 each case as the law is constantly changing. I 18 feel that my service in the private practice sector 19 as well as in public practice serving at the 20 Solicitor's Office has prepared me well to serve as 21 a Circuit Court judge. 22 MS. WELLS: Although you address this 23 in your sworn affidavit, would you please explain 24 to the members of the Commission what you think is 25 the appropriate demeanor for a Circuit Court judge. 0137 1 JUDGE MURPHY: Certainly. I think a 2 Circuit Court judge should at all times be 3 courteous and respectful to litigants and the 4 parties that appear before them. I think that the 5 honor and the integrity of the Court is of utmost 6 importance and the judge should act accordingly 7 24/7 whether they're on the bench or off the bench 8 because public appearance of impropriety, it 9 shouldn't happen with a member of the Circuit 10 Court. 11 MS. WELLS: Judge Murphy, what 12 suggestions would you offer for -- to the 13 Commission for improving the backlog of cases on 14 the docket in Circuit Court for both Common Pleas 15 and General Sessions? 16 JUDGE MURPHY: I think one very 17 important thing certainly is technology. The case 18 management system has been very helpful in moving 19 at least the criminal docket forward quite a bit. 20 In the past it used to take us six to eight weeks 21 to receive a warrant by the time it made it to the 22 Solicitor's Office, and through that period of time 23 somebody could have been bonded out of jail or 24 actually had an attorney appointed for them. The 25 new case management system now, it really helps 0138 1 streamline that process. 2 Also I think it would be effective to 3 use it more with the civil litigation much like 4 they do in federal court where everything is filed 5 automatically, and instead of serving papers on 6 other parties you file it automatically with the 7 Court and it automatically goes out. 8 So that's something I think would be 9 very beneficial for the courts to look at it and 10 try to implement, but communication is key I think. 11 Communicating with the parties and docket meetings 12 and roll calls as far as who is going to be trying 13 the cases next week and who is going to be the 14 backup so that you have things to do is extremely 15 important. 16 MS. WELLS: Judge Murphy, you amended 17 your personal data questionnaire to include a 18 probate action that has been filed against you by 19 family members in the state of California. Would 20 you please explain to the Commission why you did 21 not include this in your initial application. 22 JUDGE MURPHY: Yes, ma'am, quite 23 honestly I made a mistake. In looking at the 24 application process and updating my application 25 from last year's documents, that question in my 0139 1 mind initially popped up as something as a venue in 2 a circuit court such as a Common Pleas court. This 3 is a petition in a probate court to rescind a lease 4 transfer, but quite frankly I'm looking at the 5 question and in looking at the detailed question 6 and talking with counsel, I feel it's extremely 7 important to include it in the questionnaire, and I 8 immediately amended my questionnaire. 9 MS. WELLS: Thank you. The allegations 10 made in the probate action alleged ethical 11 misconduct on your part and unauthorized practice 12 of law in California. Without going into the 13 specifics of the case, how would you respond to 14 these allegations? 15 JUDGE MURPHY: The allegations, 16 Ms. Wells, are factually untrue. They don't have a 17 basis of backing these allegations. Unfortunately 18 when there's money involved in an estate, some 19 people get upset. And my grandfather was very 20 close to me, and he did give me a sizable gift and 21 other members of the family were not happy about 22 it. But certainly I did not practice law in 23 California. I had nothing to do with the drafting 24 of his estate documents, nor witnessing them or 25 anything to do with the independent firm that 0140 1 represented him. I had nothing to do with that. 2 It -- he gave me a gift, and 3 unfortunately a person was saddened by that because 4 apparently they wanted it. But I am confident in 5 our system of justice that when it all comes out, 6 those actions will be dismissed because there will 7 be no findings of fact to that effect. 8 MS. WELLS: Thank you, Judge Murphy. I 9 have a few housekeeping issues. 10 Have you sought or received the pledge 11 of any legislator prior to this date? 12 JUDGE MURPHY: No. 13 MS. WELLS: Have you sought or have you 14 been offered a conditional pledge of support of any 15 legislator pending the outcome of your screening? 16 JUDGE MURPHY: No, ma'am. 17 MS. WELLS: Have you asked any third 18 parties to contact members of the General Assembly 19 on your behalf? 20 JUDGE MURPHY: No, ma'am. 21 MS. WELLS: Have you contacted any 22 members of this Commission? 23 JUDGE MURPHY: No, ma'am. 24 MS. WELLS: Do you understand that you 25 are prohibited from seeking a pledge or commitment 0141 1 until 48 hours after the formal release of the 2 Commission's report? 3 JUDGE MURPHY: Yes, ma'am. 4 MS. WELLS: Have you reviewed the 5 Commission's guidelines on pledging so that you're 6 aware that the penalties for violating the pledging 7 rules is a misdemeanor and upon conviction the 8 violator must be fined not more than $1,000 or 9 imprisoned not more than 90 days? 10 JUDGE MURPHY: Yes, ma'am. 11 MS. WELLS: I would note for the record 12 that the Lowcountry Citizens Committee reported 13 that Judge Murphy is qualified for each of the nine 14 evaluative criteria: Constitutional 15 qualifications, ethical fitness, professional and 16 academic ability, character, reputation, physical 17 health, mental stability, experience and judicial 18 temperament. 19 I would also note for the record that 20 any concerns that were raised during the 21 investigation regarding Judge Murphy were 22 incorporated into my questioning of her today. 23 And, Mr. Chairman, I have no further 24 questions. 25 SENATOR McCONNELL: All right. Does 0142 1 any member of the Commission have a question? The 2 senator from Lexington. 3 SENATOR KNOTTS: Ms. Murphy, you stated 4 that you immediately reported the incident of the 5 problem that you had in California on your own? 6 JUDGE MURPHY: Ms. Wells called me and 7 told me about a letter that was submitted, and upon 8 that information, I looked at the question and I 9 concur with her. Certainly it's something that's 10 included in that and I immediately updated my 11 information. Yes, sir. 12 SENATOR KNOTTS: I just wanted to clear 13 it up. It was after the investigation brought it 14 to your attention and then at that time you 15 immediately brought it up? 16 JUDGE MURPHY: Yes, sir. 17 SENATOR KNOTTS: Okay. Thank you. 18 SENATOR McCONNELL: Representative 19 Mack. 20 REPRESENTATIVE MACK: Thank you, 21 Mr. Chairman. 22 And I'm not -- I'm not really concerned 23 about the actual family issue, but you mentioned 24 that there was an oversight and in a document, that 25 said that your California attorney instructed -- 0143 1 instructed you that it was not I guess germane to 2 this process. So I just want to know which one was 3 it. Was it an oversight or was it on the advice of 4 your California attorney? 5 JUDGE MURPHY: Well, the advice of the 6 California attorney was that in his opinion it 7 wasn't a suit. It was a petition. But the 8 oversight is on my part because the buck stops with 9 me, and I should have read the question more 10 thoroughly and included it in there. 11 REPRESENTATIVE MACK: Okay. 12 JUDGE MURPHY: So it's -- you know, 13 it's my responsibility to put it in there, but I 14 did discuss it with him, and he felt that it's -- 15 it's a petition, not a suit -- a civil suit where 16 you're actually being sued. 17 REPRESENTATIVE MACK: Okay. I was just 18 trying to figure out whether that -- whether it was 19 an oversight or whether the attorney influenced 20 your decision not to include it. 21 JUDGE MURPHY: Well, in a way he did, 22 but I -- frankly I -- looking back and reading the 23 question, I concur that it was something to include 24 despite of what he told me not to do -- put on 25 there. 0144 1 SENATOR McCONNELL: Any other 2 questions? If not, this concludes this portion of 3 our screening process. As you know, the record 4 will remain open until the report is published, and 5 therefore this Commission reserves the right to 6 call you back if they need for questions should 7 they have any. That's not to indicate there's 8 anything outstanding. 9 Again, I want to remind you of the 10 48-hour rule and ask you to be very mindful of it, 11 so mindful in fact that if anyone inquires with you 12 about whether they may or may not advocate for you 13 in the event that this Commission should report you 14 out from screening, please remind them of the 15 48-hour rule. 16 JUDGE MURPHY: Yes, sir. 17 SENATOR McCONNELL: With that, we thank 18 you for your offering and hope you have a great 19 afternoon. 20 JUDGE MURPHY: Thank you. 21 (Candidate excused.) 22 (Off the record.) 23 (A recess transpired.) 24 SENATOR McCONNELL: All right. We'll 25 go back on the record. 0145 1 And we have before us Ms. Andrea Culler 2 Roche offering for the Circuit Court, At-Large, 3 Seat Number 8. Glad to have you with us this 4 afternoon. 5 Before we start, do you have anybody 6 here that you wanted to introduce? 7 MS. ROCHE: I do, Senator. Thank you 8 so much. My husband Jimmy Roche is here with me 9 today. 10 SENATOR McCONNELL: Glad to have you 11 with us, sir. 12 MR. ROCHE: Thank you. 13 SENATOR McCONNELL: If you'd be so kind 14 as to raise your right hand. 15 (Candidate sworn.) 16 SENATOR McCONNELL: The Judicial Merit 17 Selection Commission has thoroughly investigated 18 your qualifications for the bench. Our inquiries 19 focused on our nine evaluative criteria and has 20 included a survey of the bench and the bar, a 21 thorough study of your application materials, a 22 verification of your compliance with state ethics 23 laws, a search of newspaper articles in which your 24 name appears, a study of previous screenings, if 25 any, and a check for economic conflicts of 0146 1 interest. 2 We have received no affidavits filed in 3 opposition to your election. No witnesses are 4 present to testify. 5 Do you have a brief opening statement 6 you'd like to make at this time -- it's purely 7 optional -- before I turn you over to counsel who 8 will have all the questions, and the Commission 9 will come back and check and see if there's 10 anything they wish to ask. 11 MS. ROCHE: No opening statement. I 12 just want to thank y'all for having me here today. 13 SENATOR McCONNELL: Thank you so much. 14 With that, please answer counsel's questions. 15 MS. COOMBS: And I'm Nancy Coombs. 16 And, Mr. Chairman and Members of the 17 Commission, I just have a few procedural matters to 18 take care of with Ms. Roche. 19 Ms. Roche, you have before you your 20 personal data questionnaire that you submitted as 21 part of your application. Do you have any 22 amendments that you'd like to make to that today? 23 MS. ROCHE: I have spent some money 24 on -- $98.34 on the campaign. Does that go in that 25 there? I can't remember if that goes in that 0147 1 particular document. $98.34. 2 MS. COOMBS: Mr. Chairman, I would ask 3 that Ms. Roche's personal data questionnaire and 4 amendment as she just stated be entered as an 5 exhibit in the hearing record. 6 SENATOR McCONNELL: All right. 7 (EXH. 23, Personal Data Questionnaire 8 of Ms. Andrea C. Roche, admitted.) 9 MS. COOMBS: Ms. Roche, you also have 10 before you your -- the sworn statement that you 11 submitted with your application that has detailed 12 answers to over 30 questions regarding judicial 13 conduct, statutory qualifications, office 14 administration, and temperament. Are there any 15 amendments that you would like to make at this time 16 to your sworn statement? 17 MS. ROCHE: There are not. 18 MS. COOMBS: Mr. Chairman, I would ask 19 that Ms. Roche's sworn statement be entered into 20 the record as the next hearing exhibit. 21 SENATOR McCONNELL: Without objection, 22 so ordered. 23 (EXH. 24, Sworn Statement of Andrea 24 Culler Roche, admitted.) 25 MS. COOMBS: And, finally, I would just 0148 1 note for the record that based on the testimony 2 contained in the candidate's PDQ which has been 3 included in the record with her consent, Ms. Roche 4 meets the statutory requirements for this position 5 regarding age, residence, and years of practice. 6 Ms. Roche, why do you now want to serve 7 as a Circuit Court judge? 8 MS. ROCHE: I tell you, I think it's a 9 wonderful thing when somebody's abilities and 10 somebody's desires meet, and I have a lot of 11 ability in the law, and I think that's been proven 12 through my academic record and through my practice 13 record, and now as a Workers' Compensation 14 Commissioner. But since I've become a Workers' 15 Compensation Commissioner, I know now that I love 16 deciding cases, and I have a passion for that, more 17 so probably than being a lawyer and fighting cases, 18 which I did enjoy, but I really like being a 19 commissioner so much more. 20 I think I have good common sense. I 21 have good judicial demeanor, and it's -- and I have 22 a love of the law, and I think when you combine 23 those three things, it makes an excellent judge, 24 and that's something that I think that I can do. 25 MS. COOMBS: Are there any areas, 0149 1 including substantive areas of law, that -- where 2 you would need additional preparation in order to 3 serve as a judge, and how would you handle that 4 additional preparation? 5 MS. ROCHE: Yes, obviously I didn't do 6 any criminal practice as a lawyer, and I had a 7 little citizen's experience of serving on the grand 8 jury of Richland County recently which was very 9 interesting, but that was actually from a citizen's 10 standpoint. 11 But -- so criminal is my weakness. I 12 know very little about it except the one PCR case 13 that I was appointed to, but I do have a friend who 14 is a criminal defense attorney, and she's going to 15 allow me to sort of tag along with her to try to 16 learn at least the procedural aspects of it. I can 17 tell you too that I'm a -- I'm a very quick study, 18 and I know it won't take me long to get up to 19 speed. 20 MS. COOMBS: Ms. Roche, although you 21 address this in your sworn affidavit, could you 22 please explain to the members of the Commission 23 what you think is the appropriate demeanor for a 24 judge. 25 MS. ROCHE: I think judges should 0150 1 always be courteous and -- and even tempered on the 2 bench. I think that's very important. I think 3 everybody who comes before a judge has the right to 4 be treated with respect regardless of who they are, 5 and that's what I would plan to do. 6 MS. COOMBS: What suggestions would you 7 offer for improving the backlog of cases on the 8 docket in the Court of Common Pleas or in the 9 General Sessions? 10 MS. ROCHE: There -- there may be some 11 ways to look at innovative ways of running some of 12 the smaller cases through. Obviously we're -- 13 we're leaning more and more on the civil side 14 toward mediation. I think that's -- that's very 15 important. I think even in the Workers' Comp 16 arena, we could do a little bit more of that as 17 well. 18 And just looking at what we do, what 19 other states do, to see if we can't come up with 20 some innovative ways to take these smaller cases 21 and cases that could be worked out, you know, like 22 the idea of the business courts and those kinds of 23 things to sort of move these things through the 24 docket. 25 MS. COOMBS: Ms. Roche, I -- I skipped 0151 1 a question because I felt like you might have 2 answered it, but I'm not sure that I gave you the 3 opportunity to fully answer it, so I'm going to ask 4 it anyway. 5 You did mention your Workers' Comp 6 experience, but would you explain to the Commission 7 how you feel your legal and professional experience 8 thus far would assist you in being an effective 9 judge. 10 MS. ROCHE: I did civil litigation 11 obviously as practice. I did a lot of Workers' 12 Comp, but I also worked on construction cases and 13 medical malpractice cases from the defense side. 14 So I've seen -- I've seen all sorts of courts. I 15 did a great deal of appellate work when I was with 16 my firm. 17 And since -- so I have the practice 18 experience. But since going on the Commission, I 19 also have sort of the judge experience. I'm in a 20 quasi judicial position there. I know what it's 21 like to run a courtroom. I know what it's like to 22 have litigants come before me, both represented and 23 unrepresented. And -- and I think that goes a long 24 way in -- as experience to be a judge, so it's 25 similar, although we don't have -- the only thing 0152 1 we don't have are juries. I'm both the finder of 2 law and fact. But it's something that I think 3 is -- that will do me well in the future. 4 MS. COOMBS: And I just have a few 5 housekeeping questions for you. 6 Have you sought or received the pledge 7 of any legislator prior to this date? 8 MS. ROCHE: I have not. 9 MS. COOMBS: Have you sought or have 10 you been offered a conditional pledge of support of 11 any legislator pending the outcome of your 12 screening? 13 MS. ROCHE: I have not. 14 MS. COOMBS: Have you asked any third 15 parties to contact members of the General Assembly 16 on your behalf? 17 MS. ROCHE: No, I have not. 18 MS. COOMBS: Have you contacted any 19 members of this Commission? 20 MS. ROCHE: None. No, I have not. 21 MS. COOMBS: And do you understand that 22 you're prohibited from seeking a pledge or 23 commitment until 48 hours after the formal release 24 of the Commission's report? 25 MS. ROCHE: I do understand that. 0153 1 MS. COOMBS: Have you reviewed the 2 Commission's guidelines on pledging? 3 MS. ROCHE: I have. 4 MS. COOMBS: And are you aware of the 5 penalties for violating the pledging rules? 6 MS. ROCHE: I know there are penalties 7 involved, yes. 8 MS. COOMBS: And, Mr. Chairman, I would 9 note that the Midlands Citizens Committee rated 10 Ms. Roche as well qualified in all of the 11 evaluative criteria except experience and rated her 12 as qualified in that criterion, and the Committee 13 states, and I quote, The Committee was very 14 impressed by Ms. Roche. She has a most outstanding 15 academic background and a sincere commitment of 16 service to our state. She is highly and eminently 17 qualified to serve as a Circuit Court judge and we 18 are confident that she -- she would continue to 19 serve our state in a most outstanding manner, end 20 quote. 21 And I would just note for the record 22 that any concerns raised during the investigation 23 regarding Ms. Roche were incorporated into the 24 questioning of Ms. Roche today. 25 Mr. Chairman, I have no further 0154 1 questions. 2 SENATOR McCONNELL: Thank you. 3 Does any member of the Commission have 4 a question? If not, that concludes this portion of 5 our screening process. 6 As you know, the record will remain 7 open until the report is published, and you may be 8 called back at such time if there is some pending 9 matter, to my knowledge there's none. 10 Let me again remind you about the 11 48-hour rule and ask you to be very mindful of 12 that, so mindful in fact that if anyone inquires 13 whether they may or may not advocate for you in the 14 event that you're screened out by this, please 15 remind them about the 48-hour rule. 16 With that, that concludes this. Thank 17 you for offering to serve the people of South 18 Carolina, and you have a great day. 19 MS. ROCHE: Thank you very much. 20 SENATOR McCONNELL: All right. Take 21 care. 22 (Candidate excused.) 23 (Off the record.) 24 SENATOR McCONNELL: All right. We're 25 ready to go back on the record at this point. 0155 1 We have before us The Honorable 2 Jennifer Peters Wilson. She's offering for Circuit 3 Court, At-Large, Seat Number 8. 4 Good afternoon. How are you? 5 JUDGE WILSON: I'm fine. Good 6 afternoon. 7 SENATOR McCONNELL: All right. If you 8 would be so kind as to raise your right hand. 9 (Candidate sworn.) 10 SENATOR McCONNELL: The Judicial Merit 11 Selection Commission has thoroughly investigated 12 your qualifications for the bench. Our inquires 13 focused on the nine evaluative criteria and has 14 included a survey of the bench and the bar, a 15 thorough study of your application materials, a 16 verification of your compliance with state ethics 17 laws, a search of newspaper articles in which your 18 name appears, a study of previous screenings, and a 19 check for economic conflicts of interest. 20 We have received no affidavit filed in 21 opposition to your election. No witnesses are 22 present to testify. 23 I would ask you if there's any 24 statement you want to make. An opening statement 25 is purely optional. Turn you over to counsel who 0156 1 will have some questions for you, and then we'll 2 see if the Commissioners have any questions to add. 3 JUDGE WILSON: I would just like to 4 thank the Commission for the opportunity to appear 5 here again. I look forward to answering any 6 questions that you all may have. 7 SENATOR McCONNELL: Thank you. 8 Counsel. 9 MR. FIFFICK: For the record I'm Andy 10 Fiffick. 11 Mr. Chairman and Members of the 12 Commission, I have a few procedural matters to take 13 care of with this candidate. 14 Ms. Wilson, you have before you the 15 personal data questionnaire you submitted as part 16 of your application. Is there any amendment that 17 you would like to make at this time to your PDQ? 18 JUDGE WILSON: No, sir, other than the 19 information that you supplied to me, we wanted to 20 make that a part of the record. 21 MR. FIFFICK: Yes, ma'am. And we can 22 do that in executive session in just a moment. And 23 actually I don't believe we need to -- we need to 24 amend your PDQ. It doesn't conflict with what your 25 answers were. 0157 1 JUDGE WILSON: Okay. 2 MR. FIFFICK: At this time, 3 Mr. Chairman, I would like to ask that Judge 4 Wilson's PDQ be entered as an exhibit to the 5 hearing record. 6 SENATOR McCONNELL: Without objection, 7 so ordered. 8 (EXH. 25, Personal Data Questionnaire 9 of Ms. Jennifer Peters Wilson, admitted.) 10 MR. FIFFICK: Judge Wilson, you also 11 have before you the sworn statement you provided 12 with detailed answers to over 30 questions 13 regarding judicial conduct, statutory 14 qualifications, often -- office administration, and 15 temperament. Is there any amendment you'd like to 16 make at this time to your sworn statement? 17 JUDGE WILSON: Nothing. Thank you. 18 MR. FIFFICK: At this time, 19 Mr. Chairman, I'd like to ask that Judge Wilson's 20 sworn statement be entered as an exhibit to the 21 hearing record. 22 SENATOR McCONNELL: Is there any 23 objection? There being none, so ordered. 24 (EXH. 26, Sworn Statement of Jennifer 25 Peters Wilson, admitted.) 0158 1 MR. FIFFICK: There's one final 2 procedural matter. I note for the record that 3 based on the testimony contained in the candidate's 4 PDQ which has been included in the record with the 5 candidate's consent, Judge Wilson meets the 6 statutory requirements for this position regarding 7 age, residence and years of practice. 8 Mr. Chairman, at this time I have a few 9 questions that will be best addressed in executive 10 session. 11 SENATOR McCONNELL: All right. Is 12 there any objection to going in executive session? 13 Being none, so ordered. 14 Sergeant, please clear the chambers. 15 (The members went into executive 16 session at 4:52 p.m.) 17 * * * * * 18 19 20 21 22 23 24 25 0164 1 (The members returned to open session 2 at 4:55 p.m.) 3 SENATOR McCONNELL: Sergeant, if you 4 would publish to the hall that we are in open 5 session. 6 All right. We're back in open session, 7 and we'll proceed now with questions. 8 Counsel. 9 MR. FIFFICK: Judge Wilson, why do you 10 want to serve as a Circuit Court judge? 11 JUDGE WILSON: Well, as some of you may 12 know or probably all of you, but some of you I've 13 seen -- appeared before in 2005 seeking a Circuit 14 Court nomination. I have served -- been serving as 15 chief judge of the Myrtle Beach Municipal Court 16 since 1990, and as chief judge and full-time judge, 17 I have not only presided over hearings and jury 18 trials and motion trials, I've also acted as an 19 administrator for the department of the Municipal 20 Court. I've enjoyed serving as a member of the 21 judiciary. 22 I have a background of course as a 23 trial lawyer. I love being in the courtroom and -- 24 either side or especially on the bench, and I think 25 that my experience as chief judge in Myrtle Beach 0165 1 makes me uniquely qualified, not only because I 2 have to live 24/7 by the code of judicial conduct 3 which I've been doing faithfully for ten years, but 4 also because as an administrative and chief judge, 5 I've had to deal with some of the issues and 6 challenges that confront the Circuit Court these 7 days. 8 Every year I prepare a budget for the 9 municipal court, and as you all know, as is the 10 same with the state and counties across our state, 11 that we have increased -- increased needs to reduce 12 our expenses while trying to maintain the level of 13 service and the level of justice. And that has 14 been a challenge for me, but I think that I have 15 done that successfully. 16 And I also understand and appreciate 17 that on the circuit bench that we have a problem 18 with cases being behind and trying to see how we 19 can improve our docket system and improve the 20 disposing of cases in a more timely fashion. And I 21 think that because of the challenges that I face, 22 that I am ready, willing and able to do what is 23 necessary on the circuit level to try to provide 24 efficient service, considering the challenges and 25 the decreases and all of the budget constraints 0166 1 while still administering justice. 2 I just wanted to point that out to the 3 Commission because, again, I think that this is 4 unique experience that I've had the last ten years 5 as a judge, and coupled with my previous 18 years 6 experience as a trial lawyer on both sides in the 7 criminal and both -- and the civil arenas, that -- 8 and also with my experience as a corporate 9 attorney, that I am qualified and I am willing, I 10 am able and ready to get to work to continuing 11 serving the state of South Carolina. 12 MR. FIFFICK: Thank you, Judge. 13 Based on your legal experience and 14 practice thus far, are there any areas that you 15 feel that you would need to additionally prepare 16 for and how would you go about that additional 17 preparation? 18 JUDGE WILSON: Well, having been a 19 judge for the past ten years, you all are aware 20 that the city court handles only criminal cases. I 21 feel that with modern technology, with computers, 22 with our case management system which I helped 23 implement for our city court, that I am able and 24 will be able to catch up on any civil cases or 25 civil law that I may need to do in order to be 0167 1 effective in the civil area as well as the criminal 2 area -- arena. 3 MR. FIFFICK: Thank you. 4 Judge Wilson, although you address this 5 in your sworn affidavit, could you please tell the 6 members of the Commission what you think the 7 appropriate demeanor for a judge is. 8 THE WITNESS: Well, canon three 9 expressly delineates what the appropriate demeanor 10 of a judge is, and like I said, for the past ten 11 years I have attempted to conduct myself in a 12 manner that is appropriate. I think that the 13 appropriate demeanor for a judge is one of 14 patience, tact, respect, kindness while being firm 15 and fair to everyone who appears in court. 16 MR. FIFFICK: Thank you, Judge. 17 I have just a few more questions we ask 18 of every candidate, and the first one is, have you 19 sought or received a pledge of any legislator prior 20 to this date? 21 JUDGE WILSON: I have not. 22 MR. FIFFICK: Have you sought or have 23 you been offered a conditional pledge of support of 24 any legislator pending the outcome of your 25 screening? 0168 1 JUDGE WILSON: I have not. 2 MR. FIFFICK: Have you asked any third 3 parties to contact members of the General Assembly 4 on your behalf? 5 JUDGE WILSON: I have not. 6 MR. FIFFICK: Do you understand that 7 you are prohibited from seeking a pledge or a 8 commitment until 48 hours after the formal release 9 of the Commission's report? 10 JUDGE WILSON: I -- I do understand. 11 MR. FIFFICK: Have you reviewed the 12 Commission's guidelines on pledging? 13 JUDGE WILSON: I have. 14 MR. FIFFICK: And as a follow-up, are 15 you aware of the penalties for violating the 16 pledging rules, that is, it is a misdemeanor and 17 upon conviction the violator must be fined not more 18 than $1,000 or imprisoned not more than 90 days? 19 JUDGE WILSON: Yes, I am aware of that. 20 MR. FIFFICK: Thank you. 21 I would now note that the Lowcountry 22 Citizens Committee reported that Judge Wilson is 23 well qualified in all areas and further note 24 that -- for the record that any concerns raised 25 during this investigation regarding the candidate 0169 1 were incorporated into the questioning of the 2 candidate today. 3 Mr. Chairman, I have no more -- no 4 further questions. 5 SENATOR McCONNELL: Thank you, sir. 6 Any member of the Commission have any 7 questions? In that case, that concludes this 8 portion of the screening process. 9 As you know, the record will remain 10 open until the report is published, and you could 11 be called back if there's some question. That's 12 not to communicate there's any pending question of 13 you at all that I'm aware of. 14 Again, we wish to remind you about the 15 48-hour rule and ask you to be very mindful of it, 16 so mindful that if in fact anyone inquires of you 17 about whether they may or may not advocate on your 18 behalf should you be reported out by this 19 Commission, that you will remind them about the 20 48-hour rule. 21 JUDGE WILSON: Yes, sir. 22 SENATOR McCONNELL: With that, we thank 23 you for offering. We're wishing you have a good 24 day. 25 JUDGE WILSON: Thank you, Mr. Chairman, 0170 1 and thank you members of the Committee. 2 (Candidate excused.) 3 (Off the record.) 4 MR. WITHERSPOON: Good afternoon. 5 SENATOR McCONNELL: Good afternoon. 6 How are you, sir? 7 MR. WITHERSPOON: I'm fine, Senator. 8 How are you? 9 SENATOR McCONNELL: All right. Good to 10 have you here with us. 11 Make sure we're ready to go. 12 We'll go back on the record at this 13 point. 14 We have before us Mr. William Kenneth 15 Witherspoon who is offering for the Circuit Court, 16 At-Large, Seat Number 8. 17 We've already extended greetings to 18 him, so I'll ask you if you'd raise your right 19 hand, please, sir. 20 (Candidate sworn.) 21 SENATOR McCONNELL: Thank you. 22 The Judicial Merit Selection Commission 23 has thoroughly investigated your qualifications for 24 the bench. Our inquiries focused on the nine 25 evaluative criteria. This included a survey of the 0171 1 bench and the bar, a thorough study of your 2 application materials, a verification of your 3 compliance with state ethics laws, a search of 4 newspaper articles in which your name appears, a 5 study of previous screenings, a check for economic 6 conflicts of interest. 7 We received no affidavits filed in 8 opposition to your election. No witnesses are 9 present to testify. 10 So I'd ask you if there's any statement 11 you wish to make -- it's purely optional -- before 12 I turn you over to counsel who will ask all the 13 questions, and then if any commissioner has any 14 question, we'll follow up at that point. 15 MR. WITHERSPOON: I will save any 16 comments for the end if that's okay with the 17 Commission. 18 SENATOR McCONNELL: That's fine, sir. 19 Counsel -- please answer counsel's 20 questions. 21 MR. WITHERSPOON: Yes, sir. 22 MR. WRIGHT: Good evening, 23 Mr. Witherspoon. 24 MR. WITHERSPOON: Mr. Wright, good 25 evening. 0172 1 MR. WRIGHT: Mr. Chairman, members of 2 the Commission, I have a few procedural matters to 3 take care of. 4 Mr. Witherspoon, you have before you 5 the personal data questionnaire you submitted as 6 part of your application which includes your 7 amendment by letter dated September 25th, 2009. Do 8 you have any additional amendments -- amendments to 9 that PDQ? 10 MR. WITHERSPOON: I do not. 11 MR. WRIGHT: Mr. Chairman, I would like 12 to ask that Mr. Witherspoon's personal data 13 questionnaire and amendment be entered as an 14 exhibit into the hearing record? 15 SENATOR McCONNELL: All right. Is 16 there any objection? Being none, so ordered. 17 (EXH. 27, Personal Data Questionnaire 18 and Amendment of Mr. William K. Witherspoon, 19 admitted.) 20 MR. WRIGHT: Mr. Witherspoon, you also 21 have before you the sworn statement you provided 22 with detailed answers to over 30 questions 23 regarding judicial conduct, statutory 24 qualifications, office administration, and 25 temperament. Do you have any amendments to your 0173 1 sworn statement at this time? 2 MR. WITHERSPOON: I do not. 3 MR. WRIGHT: At this time, 4 Mr. Chairman, I would ask that Mr. Witherspoon's 5 sworn statement be entered as an exhibit into the 6 hearing record. 7 SENATOR McCONNELL: Without objection, 8 so ordered. 9 (EXH. 28, Sworn Statement of William 10 Kenneth Witherspoon, admitted.) 11 MR. WRIGHT: One final procedural 12 matter. I note for the record that based on the 13 testimony contained in the candidate's PDQ which 14 has been included in the record with the 15 candidate's consent, Mr. Witherspoon meets the 16 statutory requirements for this condition regarding 17 age, residence, and years of practice. 18 Mr. Witherspoon, why do you now want to 19 serve as a Circuit Court judge? 20 MR. WITHERSPOON: Mr. Wright, I think 21 if you look at my background starting back when I 22 was a deputy sheriff in Lancaster County going up 23 into where I am now, I have been involved primarily 24 a large part of my adult life with public service. 25 Being involved with -- again, being a deputy 0174 1 sheriff, working for a couple of judges, working 2 the Budget and Control Board and now working with 3 the U.S. Attorney's Office, I've been involved in 4 public service. 5 As an attorney -- and this is something 6 my dad taught, my parents taught me. Being in 7 public service is a high calling that anyone should 8 be glad to do, and I've had that opportunity. And 9 as an attorney what better way to serve your 10 community, our state, rather than being an arbiter 11 for two litigants who have a problem that they 12 can't resolve among themselves, and sitting as the 13 arbiter certainly would be a high calling for me, 14 and for that reason I'd like to -- would like to 15 serve as a Circuit Court judge. 16 MR. WRIGHT: Mr. Witherspoon, can you 17 explain to the Commission how you feel your legal 18 and professional experience thus far will assist 19 you in being an effective judge. 20 MR. WITHERSPOON: Well, again, I think 21 you look at my background. I have a bachelor of 22 science degree in biology. I have a chemistry 23 minor degree. I worked as a deputy sheriff in 24 Lancaster County for approximately seven years. I 25 have had the experience of clerking for two of the 0175 1 state's finest judges, the late Randall Bell on the 2 Court of Appeals and Judge Matthew Perry in the 3 U.S. District Court. 4 My experience in private practice, I 5 worked in private practice doing primarily a gamut 6 of civil litigation. Spent two years working with 7 the Budget and Control Board and the General 8 Counsel's Office doing a myriad of cases with the 9 Budget and Control Board, and now over the last 10 nine years -- nine years I've served with the U.S. 11 Attorney's Office as a federal prosecutor 12 prosecuting federal drug and gun crimes. 13 So I -- I think my experience covers 14 the whole gamut that a Circuit Court judge would 15 actually have to see when he or she hears cases. 16 And I think given all of that, I bring that as an 17 added benefit I think to the potential for the 18 ability to serve on the bench. 19 MR. WRIGHT: Are there any areas of law 20 that you would need to additionally prepare for in 21 order to serve as a judge, and how would you handle 22 that additional preparation? 23 MR. WITHERSPOON: You know, I don't 24 think anybody comes to the bench -- or comes to the 25 bench with all the knowledge that he or she would 0176 1 need to serve as a judge. I think everybody comes 2 with some type of drawback, whether it's a criminal 3 experience, whether it's a civil experience, 4 whether it's the administrative experience. So I 5 come with that, the last nine years being primarily 6 in the criminal arena. I admit that, but I've had 7 that experience in the civil side that I think will 8 help me to get up to speed doing the civil work. 9 I think one of the ways that you 10 overcome any obstacle that you have is to -- first 11 of all, as we did all in law school, is spend the 12 midnight oil studying, preparing for whatever could 13 come before you the next day. I also commit to you 14 to being able to do that. But also I think as a 15 judge, being a judge doesn't mean that you know it 16 all. That means that you have the -- you're 17 sitting as the arbiter for the litigants. 18 So I commit to finding a mentor, a 19 person who has been a judge, who has had the 20 experience to act as my mentor as a person who 21 could help me when issues arise that I'm not 22 familiar with that could help me in that practice. 23 So that's how I would work on any shortcomings that 24 I would have. 25 MR. WRIGHT: Could you please explain 0177 1 to the members of the Commission what you think is 2 the appropriate demeanor for a judge. 3 MR. WITHERSPOON: When you think of a 4 southern gentleman, I think -- as I tell people 5 this kiddingly -- you think of Matthew Perry, and 6 when you look in the dictionary, that's the person 7 I would want to be. That's the person I want to 8 emulate, a person who is slow to anger, a person 9 who is willing to listen to all litigants because, 10 you know, as a judge this may be the fifth or sixth 11 or tenth hearing that you've had that day, but for 12 that litigant, that's the only opportunity he or 13 she will have in their day in court. 14 So they need to be treated with 15 respect. They need to be treated with -- be candid 16 with them, but, you know, with respect, give them 17 their opportunity to be heard -- fully heard. And 18 that doesn't mean that you would have to rule for 19 them, but I think it makes them understand the 20 process and -- and will benefit from the process 21 when they've had that opportunity. So I think 22 that's what I would consider doing. 23 MR. WRIGHT: If elected, what would you 24 like your legacy to be as a judge on the Circuit 25 Court? 0178 1 MR. WITHERSPOON: A person who is fair. 2 A person who has given everybody an opportunity to 3 have his or her say in court, a person who looked 4 at all the issues, considered all the issues and 5 made a ruling -- a fair ruling based upon the law, 6 not considering the litigants -- who the litigants 7 are, not considering who the attorneys are who 8 practice in front of him or her, but to look at the 9 facts, rule based upon the law, and then to express 10 that fully. 11 MR. WRIGHT: What suggestions would you 12 offer for improving the backlog of cases on the 13 docket in Circuit Court? 14 MR. WITHERSPOON: There are a lot of 15 things that could be done. Coming from the -- from 16 the federal system where their -- the backlog is 17 not quite as extensive. Of course there are a lot 18 more cases here in state court than there are in 19 federal court. 20 But I think giving some of the 21 administrative judges -- chief administrative 22 judges some of the authority to move some of the 23 cases along without taking some of the authority 24 away from the Solicitor's Office certainly can help 25 in moving those cases along. I think, you know, 0179 1 longer hours may be a possibility. And those are 2 just two things off the top of my head that I 3 would -- I can think of. 4 MR. WRIGHT: Thank you, 5 Mr. Witherspoon. 6 I have a few housekeeping issues. 7 Have you sought or received a pledge of 8 any legislator prior to this date? 9 MR. WITHERSPOON: I have not. 10 MR. WRIGHT: Have you sought or have 11 you been offered a conditional pledge pending the 12 outcome of your screening? 13 MR. WITHERSPOON: I have not. 14 MR. WRIGHT: Have you asked any third 15 parties to contact members of the General Assembly 16 on your behalf. 17 MR. WITHERSPOON: I have not. 18 MR. WRIGHT: Have you contacted any 19 members of the Commission. 20 MR. WITHERSPOON: I have I think 21 inadvertently as I read your rules. I did send 22 every member of this -- all the General Assembly -- 23 the members of the legislature a letter announcing 24 my candidacy back in July and August, but other 25 than that, I have not had any contact with any 0180 1 member. 2 MR. WRIGHT: Do you understand that you 3 are prohibited from seeking a pledge or commitment 4 until 48 hours after the formal release of the 5 Commission's report? 6 MR. WITHERSPOON: I do. 7 MR. WRIGHT: Have you reviewed the 8 Commission's guidelines on pledging? 9 MR. WITHERSPOON: I have. 10 MR. WRIGHT: As a follow up, are you 11 aware of the penalties for violating the pledging 12 rules, that is, it is a misdemeanor and upon 13 conviction the violator must be fined not more than 14 $1,000 or imprisoned not more than 90 days? 15 MR. WITHERSPOON: I am. 16 MR. WRIGHT: I would note that the 17 Midlands Citizens Committee reported 18 Mr. Witherspoon well qualified for each of the nine 19 evaluative criteria: Constitutional 20 qualifications, ethical fitness, professional and 21 academic ability, character, reputation, physical 22 health, mental stability, experience and judicial 23 temperament. Additionally, the Committee commented 24 that it was very impressed with Mr. Witherspoon, 25 and that he is most eminently qualified and a most 0181 1 highly regarded candidate. 2 I would just note for the record that 3 any concerns raised during the investigation 4 regarding the candidate were incorporated into the 5 questioning of the candidate today. 6 Mr. Chairman, I have no further 7 questions. 8 SENATOR McCONNELL: Thank you, sir. 9 Does any member of the Commission have 10 a question? If not, then this concludes this 11 portion of our screening process. 12 As you know, the record will remain 13 open until the report is published. You could be 14 called back for further questions. It's not to 15 indicate that there's anything pending or whatever. 16 I want to remind you of the 48-hour 17 rule. And I ask you to be very mindful of it, so 18 mindful that if in fact anyone inquires with you as 19 to whether they may or may not advocate on your 20 behalf should this Commission report your name out, 21 that you will remind them about the 48-hour rule. 22 MR. WITHERSPOON: I will, sir. 23 SENATOR McCONNELL: With that, we thank 24 you for offering for public service, and you are 25 free to go. 0182 1 MR. WITHERSPOON: Thank you. 2 (Candidate excused.) 3 SENATOR McCONNELL: Have a great 4 afternoon. 5 MR. WITHERSPOON: Thank you. 6 SENATOR McCONNELL: And I believe this 7 is our last candidate at this point in this race. 8 MS. SHULER: Yes. 9 SENATOR McCONNELL: So unless you all 10 object, my thinking would be for us to at least 11 have a discussion and then decide what we're going 12 to do. So we will need I guess to go into 13 executive session for purposes of reviewing the 14 material and then come out into open session to 15 deal with the question of voting. 16 REPRESENTATIVE MACK: So moved. 17 SENATOR McCONNELL: It won't be long. 18 SENATOR KNOTTS: Second. 19 SENATOR McCONNELL: Is there objection? 20 There being none, it is a unanimous vote of 21 everyone here present. 22 (The members went into executive 23 session at 5:14 p.m.) 24 * * * * * 25 (The members returned to open session 0183 1 at 5:27 p.m.) 2 SENATOR McCONNELL: We're now in open 3 session. 4 Sergeant, if you would publish in the 5 halls that we're in open session. 6 MR. CLEMMONS: Mr. Chairman, I move 7 that we find that all 12 qualify. 8 SENATOR McCONNELL: All right. The 9 motion is that we find all 12 candidates qualify. 10 The floor has now been seconded. The floor is 11 now -- I'll start back so that y'all understand 12 where we are. 13 The motion was just made that we find 14 all of the candidates qualified. That does not 15 mean nominated. We have 12 candidates, and we only 16 can nominate three, and this is a distinguished 17 group of candidates. 18 So that having been said, is there 19 anything further on the debate? Then I'll ask all 20 in favor of the motion, please raise your right 21 hand so we can get a recorded vote. 22 If you would, let the record show -- 23 and Professor Freeman's proxy. It is unanimous. 24 Every member of the Commission is voting to qualify 25 the entire group. 0184 1 All right. Now, in accordance with the 2 statute, we only can report three of those to the 3 General Assembly. So what we will do is what we've 4 done in the past, is to go down through the list, 5 see where we all are. If anybody wishes to express 6 an opinion or whatever, may do so, and slow that 7 anybody that wants to record the vote can record 8 it. 9 Maybe it -- maybe it will help on this 10 one since we've got 12, when we raise, do it if you 11 would just call it out to the record so that we've 12 got that. That will be the easiest way for us to 13 do it without having to call everybody's name and 14 go through it like that. I want to make sure it's 15 a recorded vote. 16 All right. Going back to the top of 17 the list and we'll just take them in the order that 18 we screened them. 19 Right there. All right. First, 20 Mr. Jeffrey Bloom. All who wish to nominate him, 21 please raise your hand. All right. 22 MS. SHULER: Zero votes. 23 SENATOR McCONNELL: Mr. David Brown, 24 all in favor of nominating him, please. 25 MS. SHULER: Senator Nicholson, 0185 1 Mr. Harrell, Representative Delleney, and are you 2 voting a proxy? 3 REPRESENTATIVE DELLENEY: Yeah. 4 MS. SHULER: Proxy. 5 SENATOR McCONNELL: And I vote. 6 MS. SHULER: Senator McConnell. 7 Senator Knotts. Seven. 8 SENATOR McCONNELL: All right. 9 Mr. Eric Englebardt. 10 MS. SHULER: Mr. Sellers. One. 11 SENATOR McCONNELL: All right. 12 Mr. Allen Fretwell. 13 MS. SHULER: Zero. 14 SENATOR McCONNELL: Mr. William Frick. 15 MS. SHULER: Zero. 16 SENATOR McCONNELL: Mr. Daniel Hall. 17 MS. SHULER: Zero. 18 SENATOR McCONNELL: Mr. Samuel R. 19 Hubbard. 20 MS. SHULER: Mr. Sellers, Senator 21 Knotts, Senator McConnell. Proxy? 22 SENATOR McCONNELL: (Nods head.) 23 MS. SHULER: Representative Clemmons, 24 Mr. Harrell, Senator Nicholson. Seven. 25 SENATOR McCONNELL: Ms. Stephanie 0186 1 Pendarvis McDonald. 2 MS. SHULER: Representative Mack. One. 3 SENATOR McCONNELL: Judge Murphy. 4 MS. SHULER: Mr. Harrell, 5 Representative Clemmons. 6 Representative Delleney, are you voting 7 a proxy too? 8 REPRESENTATIVE DELLENEY: No. 9 MS. SHULER: Three. Oh. And 10 Representative Mack and Senator Knotts. So that's 11 five. And Mr. Sellers. Six. 12 SENATOR McCONNELL: Andrea Roche. 13 MS. SHULER: Representative Delleney. 14 And are you voting a proxy? 15 REPRESENTATIVE DELLENEY: No. 16 MS. SHULER: One. 17 SENATOR McCONNELL: All right. Judge 18 Jennifer Wilson? 19 MS. SHULER: Representative Clemson. 20 REPRESENTATIVE DELLENEY: And I voted 21 Ms. McLester. 22 MS. SHULER: And Ms. McLester, so that 23 is two. 24 SENATOR McCONNELL: Mr. William 25 Witherspoon. 0187 1 MS. SHULER: Representative Mack, 2 Senator McConnell. Are you voting a proxy? 3 SENATOR McCONNELL: Yeah, I'll vote 4 proxy. 5 MS. SHULER: Representative Delleney 6 and Senator McConnell's proxy. 7 REPRESENTATIVE DELLENEY: And I voted 8 McLester's proxy on Witherspoon. 9 MS. SHULER: Ms. McLester and Senator 10 Nicholson. So one, two, three, four five. 11 So our winners are -- that are found 12 qualified and nominated are David Craig Brown with 13 seven votes, Samuel Richardson Hubbard III with 14 seven votes, and the Honorable Maite Murphy with 15 six votes. 16 SENATOR McCONNELL: All right. And 17 that completes the tabulation on that. 18 MS. SHULER: If you will pass your vote 19 sheets to Ms. Trawick, please. 20 SENATOR McCONNELL: She's got it on the 21 record. She's got it on the record. 22 MS. SHULER: Okay. We start tomorrow 23 at nine o'clock, and we still have -- we have one 24 candidate withdrawal and we have one candidate with 25 a complaint tomorrow. 0188 1 SENATOR McCONNELL: If -- there's 2 nothing further to bring up today, so we will stand 3 in recess till -- what is it? 4 MS. SHULER: Nine o'clock. 5 SENATOR McCONNELL: Nine o'clock. 6 (The hearings adjourned at 5:35 p.m.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0189 1 CERTIFICATE OF REPORTER 2 I, Yvonne R. Bohannon, Registered Merit Reporter, Certified Realtime Reporter, and Notary 3 Public for the State of South Carolina at Large, do hereby certify: 4 That the foregoing transcript was taken 5 before me on the date and at the time and location stated on page 1 of this transcript; that all 6 statements made on the record at the time of the proceeding were recorded stenographically by me and 7 were thereafter transcribed; that the foregoing proceeding as typed is a true, accurate and 8 complete record of the proceeding to the best of my ability. 9 I further certify that I am neither 10 related to nor counsel for any party to the cause pending or interested in the events thereof. 11 Witness my hand, I have hereunto 12 affixed my official seal November 12, 2009, at Columbia, Richland County, South Carolina. 13 14 ---------------------------- 15 Yvonne R. Bohannon Registered Merit 16 Reporter, CRR My Commission expires 17 April 11, 2015 18 19 20 21 22 23 24 25 0190 1 I N D E X 2 Page 3 CANDIDATE Andrew Michael Hodges 3 4 Joseph C. Smithdeal 13 5 Jeffrey P. Bloom 26 6 David Craig Brown 40 7 Eric K. Englebardt 48 8 Allen Oliver Fretwell 61 9 William Patrick Frick 84 10 Daniel Dewitt Hall 98 11 Samuel Richardson Hubbard III 108 12 Stephanie Myrick Pendarvis McDonald 120 13 The Honorable Maite Murphy 131 14 Andrea Culler Roche 145 15 The Honorable Jennifer Peters Wilson 155 16 William Kenneth Witherspoon 170 17 CERTIFICATE OF REPORTER 189 18 19 20 21 22 23 24 25 0191 1 E X H I B I T S 2 1 Personal Data Questionnaire of Mr. Andrew 5 Michael Hodges 3 2 Sworn Statement of Andrew Michael Hodges 5 4 3 Personal Data Questionnaire of Mr. Joseph C. 15 5 Smithdeal 6 4 Sworn Statement of Joseph C. Smithdeal 16 7 5 Personal Data Questionnaire and Amendment of Mr. 28 Jeffrey P. Bloom 8 6 Sworn Statement of Jeffrey P. Bloom 29 9 7 Personal Data Questionnaire and Amendment of Mr. 42 10 David Craig Brown 11 8 Sworn Statement of David Craig Brown 42 12 9 Personal Data Questionnaire and Amendment of Mr. 51 Eric K. Englebardt 13 10 Sworn Statement of Eric K. Englebardt 51 14 11 Personal Data Questionnaire and Amendment of Mr. 64 15 Allen Fretwell 16 12 Sworn Statement of Allen Oliver Fretwell 64 17 13 Personal Data Questionnaire of Mr. William 85 Patrick Frick 18 14 Sworn Statement of William Patrick Frick 86 19 15 Personal Data Questionnaire of Mr. Daniel Dewitt 100 20 Hall 21 16 Sworn Statement of Daniel Dewitt Hall 100 22 17 Personal Data Questionnaire and Amendment of Mr. 110 Samuel Richardson Hubbard III 23 18 Sworn Statement of Samuel Richardson Hubbard III 111 24 (Exhibits continued.) 25 0192 1 19 Personal Data Questionnaire of Ms. Stephanie 122 Pendarvis McDonald 2 20 Sworn Statement of Stephanie Pendarvis McDonald 123 3 21 Personal Data Questionnaire and Amendment of 134 4 Mrs. Maite Murphy 5 22 Sworn Statement of Maite D. Murphy 135 6 23 Personal Data Questionnaire of Ms. Andrea C. 147 Roche 7 24 Sworn Statement of Andrea Culler Roche 147 8 25 Personal Data Questionnaire of Ms. Jennifer 157 9 Peters Wilson 10 26 Sworn Statement of Jennifer Peters Wilson 157 11 27 Personal Data Questionnaire and Amendment of Mr. 172 William K. Witherspoon 12 28 Sworn Statement of William Kenneth Witherspoon 173 13 14 15 16 17 18 19 20 21 22 23 24 25