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The Joint Committee conducts a thorough investigation of each candidate's professional, personal, and financial affairs, and holds public hearings during which it questions each candidate on a wide variety of issues. The Joint Committee's investigation focuses on nine evaluative criteria. These evaluative criteria are: integrity and impartiality; legal knowledge and ability; professional experience; judicial temperament; diligence and industry; mental and physical capabilities; financial responsibilities; public service; and ethics. The Joint Committee's investigation includes the following:

(1) survey of the bench and bar;

(2) SLED and FBI investigation;

(3) credit investigation;

(4) grievance investigation;

(5) study of application materials;

(7) search of newspaper articles;

(8) conflict of interest investigation;

(9) court schedule study;

(10) study of appellate record;

(11) court observation; and

(12) investigation of complaints.

While the law provides that the Joint Committee is to make findings as to qualifications, the Joint Committee views its role as also including an obligation to consider candidates in the context of the judiciary on which, if elected, they will serve and, to some degree, govern. To that end, the Joint Committee inquires as to the quality of justice delivered in the courtrooms of South Carolina and seeks to impart, through its questioning, the view of the public it represents as to matters of legal knowledge and ability, judicial temperament, and the absoluteness of the Judicial Canons as to recusal for conflict of interest, prohibition of ex parte communication, and the disallowance of the acceptance of gifts.

The Joint Committee expects each candidate to possess a basic level of legal knowledge and ability, to have experience that would be applicable to the office sought, and to exhibit a strong adherence to codes of ethical behavior. These expectations are all important, and excellence in one category does not make up for deficiencies in another.

This report is the culmination of weeks of investigatory work and public hearings. The Joint Committee takes its responsibilities very seriously as it believes that the quality of justice delivered in South Carolina's courtrooms is directly affected by the thoroughness of its screening process. Please carefully consider the contents of this report as we believe it will help you make a more informed decision. If you would like to review portions of the screening transcript or other public information about a candidate before it is printed in the Journal, please contact Michael Couick or John Hazzard at 212-6610.

This report conveys the Joint Committee's findings as to the qualifications of all candidates currently offering for election to the Supreme Court, Court of Appeals, Circuit Court, and Family Court.

Joint Committee's Finding:Qualified

Judge Ervin was screened on December 11, 1995, after a thorough investigation. The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:

(1) Integrity and Impartiality:

The Joint Committee's investigation did not reveal any evidence of unethical conduct. It was concerned by Judge Ervin's contacting persons who he felt might be called to testify regarding his opponent's temperament.

The Joint Committee learned of Judge Ervin's contact of Supreme Court personnel. The nature of Judge Ervin's contact, according to him, was to discern whether the individuals had filed affidavits about Justice Toal's candidacy. However, Judge Ervin stated that he did not attempt to compel any witness to testify against Justice Toal. While the Committee is concerned about an improper appearance in Judge Ervin's actions contacting potential witnesses, Judge Ervin's actions did not constitute a breach of the law.

The Committee warns all candidates that the contacting of persons who may potentially be witnesses before the Committee is fraught with peril. The best course of action is to avoid any communications which could be perceived as being directed toward affecting such a person's recollections or appearance before the screening committee.

Judge Ervin demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations important to judges, particularly in the areas of ex parte communication, acceptance of gifts and ordinary social hospitality, and recusal.

The Joint Committee learned of an allegation that Judge Ervin may have mislead the Committee during his December 11, 1995 hearing about a contact made by Dwight Drake and Tim Rogers concerning his Supreme Court candidacy. After interviewing those involved, the Joint Committee determined that there was no intent on the part of Judge Ervin to mislead the Joint Committee regarding his conversations with Mr. Drake and Mr.
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[1] Senator Saleeby did not participate in the screening nor determination of qualification of this candidate.

(2) Legal Knowledge and Ability:

Judge Ervin has taught the following law-related courses and continuing legal education programs: Eminent Domain; Appellate Practice in South Carolina; South Carolina Circuit Bench/Bar Update; Criminal Practice in South Carolina; What Goes on in the Jury Room?; and the Workers' Compensation Section;

Judge Ervin has written the following published books and articles:

(a) Ervin's South Carolina Requests to Charge - Civil (1994);

(b) Ervin's South Carolina Requests to Charge - Criminal (1994);

(c) What Does `Beyond a Reasonable Doubt' Really Mean?, South Carolina Lawyer July/August 1994.

The Joint Committee found Judge Ervin to be intelligent and knowledgeable. His performance on the Joint Committee's practice and procedure questions met expectations.

(3) Professional Experience:

Judge Ervin graduated from the University of South Carolina School of Law in 1977 and was admitted to the Bar later in the same year.

Since his graduation from law school, Judge Ervin has had a general practice of law, including domestic and civil litigation; Assistant Solicitor for the Tenth Judicial Circuit from 1978 to 1979; Town Attorney for Honea Path, SC; Special Prosecutor for Solicitor William T. Jones, Eighth Judicial Circuit in 1981; Administrative Law Judge appointed July 2, 1984, to South Carolina Industrial Commission; Resident Circuit Court Judge for the 10th Judicial Circuit, qualified February 1, 1985, serving continuously since.

Judge Ervin listed his most five significant orders or opinions as follows:

(a) Andrew Lavern Smith v. State of South Carolina. 90-CP-04-1073. Cert. denied by the South Carolina Supreme Court on January 19, 1995; cert. denied by the U.S. Supreme Court on June 5, 1995, 115 S.Ct. 2285 (1995).

(b) Baker v. Champion Tooling and Machinery Co., Inc. 93-CP-04-521, Westlaw Opinion Number 720065 (1993).

(c) In re: Investigation of the death of Melinda Renee Snyder, The State v. John Doe. Filed under seal in York County General Sessions. (1992).

(e) Earl L. Taylor, Plaintiff v. First Citizens Bank and Trust Company of South Carolina, Defendant. 93-CP-04-572 (1993).

(4) Judicial Temperament:

The Joint Committee believes that Judge Ervin's temperament has been and would continue to be excellent.

(5) Diligence and Industry:

Judge Ervin was punctual and attentive in his dealings with the Joint Committee, and the Joint Committee's investigation did not reveal any problems with his diligence and industry.

Judge Ervin is married and has two children.

(6) Mental and Physical Capabilities:

Judge Ervin appears to be mentally and physically capable of performing the duties of the office he seeks.

(7) Financial Responsibility:

The Joint Committee's investigation did not reveal any evidence of a troubled financial status. Judge Ervin has managed his financial affairs responsibly.

(8) Public Service:

Judge Ervin has been active in professional and community activities.

(9) Ethics:

Judge Ervin testified that he has not:

(a) sought or received the pledge of any legislator prior to screening;

(b) sought or been offered a conditional pledge of support by a legislator pending the outcome of screening; or

(c) asked third persons to contact members of the General Assembly prior to screening.

Judge Ervin testified that he was aware of the Joint Committee's rule regarding the formal and informal release of the Screening Report.

Judge Ervin testified that he was aware of the requirement of reporting campaign expenditures in excess of $100 to the House and Senate Ethics Committees.

Judge Ervin meets the constitutional requirements for the office he seeks.

The Bar found Judge Ervin qualified. The Bar reported that Judge Ervin "was in private practice until 1984, including service as an Assistant Circuit Solicitor and Municipal Attorney. He was appointed to the South Carolina Industrial Commission in 1984 and was elected Resident Circuit Judge for the Tenth Judicial Circuit in 1985 where he has served to the present. He is respected by the members of the Bar for his legal skills, impartiality, judicial temperament, and promptness and industry in his work as Circuit Judge. His character, integrity, and reputation are considered excellent."

Judge Ervin was asked about his general philosophy regarding the sentencing of various categories of criminal defendants including repeat violent offenders, juveniles waived to Circuit Court, and "white collar" criminals. Judge Ervin's actual response to each of these questions is included in the transcript of his public hearing. The Committee has included these responses solely for the benefit of members of the General Assembly. The Committee does not represent that there is a correct answer to any question.

Judge Ervin was asked about his general philosophy regarding interpretation of the Constitution, power of the General Assembly regarding legislating, and a judge's ability to publicly comment on recently decided cases. Judge Ervin's answers to these questions are printed in the transcript of his public hearing. The Committee has included these responses solely for the benefit of members of the General Assembly. The Committee does not represent that there is a correct answer to any question.

Joint Committee's Finding:Qualified

The Joint Committee conducted its investigation of Justice Toal's qualifications and held its first public hearing concerning her qualifications
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[1] Senator Saleeby recused himself from all consideration of Justice Toal's candidacy, and did not participate in the Joint Committee's investigation, public hearing, or decision-making phases of Justice Toal's screening.

The Joint Committee realizes that judicial screening is a constitutionally sensitive process and that its screening of Justice Toal presents very complicated questions of privilege and separation of powers. Because of the specificity of the allegations it received, the Committee had no choice but to sift through and determine what is true and what is false. At its meeting on December 12, 1995, the Joint Committee authorized its staff to investigate several specific allegations and granted the Chairman and Vice-Chairman the power to utilize the Joint Committee's subpoena power to compel key, and up to then uninvolved, persons to assist the Joint Committee in reviewing the allegations. At subsequent meetings, each and every member of the Joint Committee reviewed each allegation contained in each affidavit received during the investigatory process. Without dissent, this Committee scheduled additional hearings.

Because many of the persons subpoenaed were employees of the South Carolina Supreme Court or the South Carolina Judicial Department, the Joint Committee, the Supreme Court, and the Supreme Court's outside counsel met, corresponded, and discussed each branch's interest in this constitutionally sensitive area, with the result being a December 14, 1995 order from the Court allowing for the full cooperation of its employees under certain conditions designed to protect the independence of the Supreme Court's decision-making prerogative. Further, the committee proceeded to inquire into specific conversations or matters only upon comment of the Justice or Justices involved. The Joint Committee wishes to thank the Supreme Court, and in particular its Chief Justice, Ernest Finney, for the extraordinary cooperation it has given the Joint Committee in the Joint Committee's attempt to achieve a balance between (1) the Court's constitutional mandate of providing a judicial forum for the citizens of South Carolina; and (2) the General Assembly's constitutional
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[2] The survey process has been used for every candidate for the bench since 1994.

The Joint Committee sifted through each of the allegations, rumors, and innuendo brought to its attention and determined that only one issue remained after the first hearing on December 12, 1995, that should be considered in additional public hearings. This issue was whether Justice Toal's treatment of Supreme Court and Judicial Department employees has been in keeping with the applicable standards of behavior.

While the Committee's consideration of allegations of Justice Toal's mistreatment of employees is unique as to whom the alleged behavior was directed, it is not unique in that the Joint Committee has historically found judicial temperament and outwardly directed conduct to be very important, regardless of whether the behavior at issue is directed at litigants, lawyers, or staff.

This Committee has encountered difficulty in determining a fair standard by which to evaluate interpersonal communication between a member of the judiciary and court staff. The determination of such a standard is not made difficult by any lack of legal commentary on or case analysis of judicial behavior, but is complicated, as it would be in any situation where one must evaluate another human being's conduct, by the desire to balance this Committee's duty to screen judicial candidates with each individual member's desire to not appear hypocritical, narrow-minded, or unfair. While Justice Toal is certainly not a peer by virtue of her singular elevation to the South Carolina Supreme Court, of any member of the Joint Committee, she is a peer of us all in that we are all human beings.

Human nature argues for us to turn away from issues such as those implicated by this screening and leave them to be worked out, if there is a need, by the parties involved, but the Joint Committee decided that it cannot default to human nature. This matter is important, not only because of the General Assembly's constitutional mandate to elect judges, but also because there can be no more important aim of government than to ensure that its citizens respect their system of justice. Furthermore, Justice Toal deserves and should have every expectation that the aim of these proceedings is not only to establish a violation of the applicable standards of conduct if such a finding is warranted, but is also to sweep away allegations, rumors, and innuendo so that any continued service on the Supreme Court would not be marked by whisper or slur. In short, the Joint Committee's hearings were the only opportunity the General Assembly and Justice Toal had within the next ten years to ensure that the

The Joint Committee believes that public employees are a valuable resource whether such public employees are Associate Justices of the Supreme Court or typists in a word processing pool. The Joint Committee was confronted with what was apparently a lack of any sufficient alternative for its hearing process to air allegations of employee mistreatment. While it would have undoubtedly been a less publicly-charged method for this airing out of concerns to have been conducted within the confines of an employee grievance hearing or agency management meeting, the latter allegedly did not occur or was not successful in this situation.

The Joint Committee's inquiry during its public hearings was not designed to prove Justice Toal qualified or not qualified for re-election to the South Carolina Supreme Court. It was instead an attempt to lay before the Joint Committee all facts relevant to the allegations presented, including an examination of the motive, bias, or prejudice of any person appearing before the Joint Committee. The witnesses were posed questions both friendly and not so friendly to Justice Toal in an attempt to ensure both sides were fairly aired. Counsel for Justice Toal had the opportunity to review an outline of the testimony expected of witnesses, and to provide counsel for the Joint Committee with objections and proposed questions. In fact, in order to preserve and protect Justice Toal's right to confront these witnesses, her attorneys provided Joint Committee counsel with over 100 questions and areas of interest. Joint Committee counsel posed these questions of the witnesses on behalf of counsel for Justice Toal.

Justice Toal and her attorneys repeatedly expressed confidence in the fairness of the Joint Committee's process, and Justice Toal testified that she had no information that the members or staff of this Committee were engaged in anything other than an attempt to comply with the General Assembly's constitutionally mandated function.

The Joint Committee's findings as they relate to the nine evaluative criteria are as follows:

(1) Integrity and Impartiality:

The Joint Committee is concerned with a letter that Justice Toal apparently wrote to the State Parole Board regarding a convicted capital offender. Justice Toal indicated that "someone in government" contacted her about the inmate and that she expressed her observation of the inmate while he was out on work release, but does not recall writing a letter of

Justice Toal's position is that such a letter would be appropriate if sent in response to a request from the Department of Probation, Parole, and Pardon or some other agency involved in the matter. The Joint Committee received affidavits from a high ranking Department of Probation, Parole, and Pardon official and the probation and parole agent involved in the matter. These affidavits indicate that it is never the Department's policy or practice to seek input from appellate court judges and that there was no exception made in this case. The parole agent who conducted the Department's parole investigation said that he has never been in contact with Justice Toal about anything. Furthermore, the Department does not authorize the inmate or his attorney to seek letters of recommendation on the Department's behalf. According to the Department, it is entirely up to the inmate or his attorney to obtain letters of recommendation for a parole hearing.

The Joint Committee is not in accord with Justice Toal's view of the law regarding the ability of a judge to write a letter of recommendation (even if there was evidence that some governmental entity had sought her opinion). Justice Toal offers, as support of her interpretation of the law, commentary to Judicial Canon of Conduct 2(B) that was not adopted in South Carolina. The commentary to South Carolina's version of Canon 2(B) is more restrictive than the version cited by Justice Toal, and appears to prohibit a judge from writing letters to an inmate's parole board. Furthermore, the South Carolina Advisory Committee on Standards of Judicial Conduct issued a 1994 opinion interpreting Canon 2(B) to prohibit a judge from writing letters of recommendation for probation.

The intent behind Canon 2(B) is to protect the integrity of the judicial process by prohibiting judges from using their offices to sway others. The public controversy over this matter reinforces the need for Canon 2(B). In its investigation, the Committee found that some of the individuals opposing the inmate's parole perceived Justice Toal's letter as a serious complication of their effort to keep the inmate incarcerated.

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