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

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| Printed Page 320, Jan. 13 | Printed Page 340, Jan. 13 |

Printed Page 330 . . . . . Thursday, January 13, 1994

THE CHAIRMAN: Any Members have any questions? Thank you, sir. That completes it on Judge Pyle.
MR. COUICK: Yes, sir.
THE CHAIRMAN: Mr. Pyle, that completes it. You're free to go.
A. Thank you, sir.
THE CHAIRMAN: Ms. Trippe, the same would hold for you that you're free to go if you wish too, also. Thank you, ma'am, for coming.

We'll then move to the Fourteenth Judicial Circuit Hampton, Colleton, Jasper and Allentown Counties, the Honorable Gerald C. Smoak, Sr. Good afternoon, Judge Smoak.
JUDGE SMOAK: Good afternoon, sir.
THE CHAIRMAN: You're the last one on the agenda and thank you for waiting.
JUDGE SMOAK: Thank you, sir.
THE CHAIRMAN: If you would raise your right hand.
JUDGE SMOAK: Yes, sir.
THE CHAIRMAN: Do you swear to the tell the truth, the whole truth and nothing but the truth so help you God?
JUDGE SMOAK: Yes, sir.
THE CHAIRMAN: Thank you, sir. Have a seat. Your last screening according to my records wasn't too long ago, March the 28th, 1991.
JUDGE SMOAK: That's correct, sir.
THE CHAIRMAN: It seems like only yesterday.
JUDGE SMOAK: That's correct. Seems that way.
THE CHAIRMAN: Have you had a chance to review the Personal Data Questionnaire Summary?
JUDGE SMOAK: Yes, sir, I have.
THE CHAIRMAN: And does it need any correction or any clarifications, sir?
JUDGE SMOAK: I sent in some clarification by letter which I'd like to make a part of the record.
THE CHAIRMAN: The Staff informs me that we have it. It will be made a part of the record provided. Any other clarifications?
JUDGE SMOAK: None that I know of.
THE CHAIRMAN: Do you have any objection then to our making this summary a part of your record of your sworn testimony as if you had given it here today?
THE CHAIRMAN: All right. And at this point it will be done in the transcript.

Printed Page 331 . . . . . Thursday, January 13, 1994


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

Hilton Head Island, SC 29926 Beaufort, SC 29901

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

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

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

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

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

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

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

12. Legal experience since graduation from law school:
He had been a trial lawyer, and 75% of his practice dealt with civil litigation. The balance of his practice had been devoted to

Printed Page 332 . . . . . Thursday, January 13, 1994

real estate, workers' compensation, domestic law, criminal trial practice and appearances before administrative bodies.

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

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

21. Five (5) Significant Orders or Opinions:

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

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

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

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

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

Printed Page 333 . . . . . Thursday, January 13, 1994

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

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

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

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

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

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

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

46. Civic, charitable, educational, social and fraternal organizations:
He is on the Administrative Board of Bethel United Methodist Church and has taught the adult Sunday School class in the past. Before going on the bench, he was President of the Walterboro Jaycees and Chairman of the United Fund.

Printed Page 334 . . . . . Thursday, January 13, 1994

47. In 1989, he received a South Carolina Bar Pro Bono Service Award and has been active in the South Carolina Bar Lawyers Caring About Lawyers Program for many years.

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


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

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

Judgement Rolls of Beaufort/Colleton County are negative. Federal Court records show no judgement or criminal actions against you. There was one civil matter which you were listed you as a movant.

Printed Page 335 . . . . . Thursday, January 13, 1994

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

Printed Page 336 . . . . . Thursday, January 13, 1994

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

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

It says a judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with his of judicial duties, exploit his judicial position or involve him in frequent transactions

Printed Page 337 . . . . . Thursday, January 13, 1994

with lawyers or persons likely to come before the court under which he serves.

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

Of course, the TRO that I sign, which there are very few of them, that's ex parte, of course. We can't help that, but other than that, I just don't -- and lawyers have gotten pretty -- a lot better about that I think in the last -- since I've been on the bench. They don't attempt to do that really.
Q. In trying to avoid the appearance that bias may have some influence in your courtroom, I'm sure perhaps even the limited time you've been on the bench, you've been called upon to recuse yourself from some matter

Printed Page 338 . . . . . Thursday, January 13, 1994

or you've thought to yourself that maybe you need to recuse yourself. How do you go about determining whether you should or you should not recuse yourself?
A. Well, if there is any hint of any conflict, I recuse myself. For example, I have a son who is a claims adjustor for State Farm Insurance Company. I disclose that. If I know that State Farm is involved, then I tell the lawyers and litigants, look, my son works for State Farm; if you'd like for me to recuse myself, I'll be glad to do it.

And I've got a daughter who practices law in Greenville with the Leatherwood Firm and I don't hear anything that's involved in the Leatherwood firm, so -- and I've got a son-in-law who practices law and I certainly don't hear anything that's he's involved in. So I -- if there is any hint of that, I just don't do it. It's not -- I just don't take the chance.
Q. The acceptance of gifts, you've heard the same question asked of other applicants, how do you handle that?
A. No, sir, I don't accept any gifts. I haven't been offered any as a matter of fact, but I don't accept them. I wouldn't accept them if I were.
Q. And whether a gift be -- and a lot -- I don't mean to say that gifts are only in boxes?
A. I understand.
Q. But whether it be lunches, dinner, trips, whatever?
A. Well, I socialize with lawyers normally, sir, because most people I know are lawyers. I practiced law a long time and I socialize with them, but I don't socialize with them if they have a case before me during a term of court. I just don't do that. I don't think it's proper and it just doesn't look good and I just don't do it.
Q. And, Judge Smoak, my question is not meant to seem somewhat disapproving of accepting lunches, I just ask it to get a general approach from each applicant about how they handle that?
A. Well, you know, if I had a friend for a long time and I've had lawyer friends for 30 years, I'll go to lunch with them and might let them pay for my lunch, but if -- when we go next time, I'd pay for it just like I would normally with people. I don't accept lunches from lawyers that I just -- as such.
Q. Right. And, Judge, we do have a complainant here today, but the final question I have for you before we have the complainant up is on pledges. Have you sought the pledge of any legislator prior to the completion of the screening process?
A. No, sir.
Q. Have you asked any third party to seek some Member of the General Assembly to consider your candidacy?

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A. No, sir.
Q. Mr. Chairman, I have no further questions at this time.
THE CHAIRMAN: All right. Thank you, Judge Smoak.
A. All right, sir.
THE CHAIRMAN: Let's see. Who is the witness?
MR. COUICK: Mr. Henry Martin, Sr.
THE CHAIRMAN: Mr. Henry Martin.
Q. Take your seat again. You're still under oath from earlier. I would like to express for the Committee and the Staff that we appreciate your coming to Columbia today. I realize that there was some difficulty in your coming and we appreciate and also the folks that brought you down. It's very important that you're here.

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

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

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

Now, you see them kind of people -- you see, you can't run a country or whatever -- whatsoever and got them kind of people with all this evil in their heart. You can't do that. You see them kind of people don't need to be in no kind of office. And like -- like I first stated and I still stick to it, see, he got all of Greenville County -- to clear on down do here in his front pocket and what few white folks want to stand for a justice and the rights of other people, I can count on this hand all over Greenville County throughout the south counties of Greenville, South Carolina.
Q. Mr. Martin, have you been exposed --
A. Sir?
Q. I'm sorry. Did I interrupt you? I'm sorry if I did.
A. No. Go ahead.

| Printed Page 320, Jan. 13 | Printed Page 340, Jan. 13 |

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