Journal of the House of Representatives
of the First Session of the 111th General Assembly
of the State of South Carolina
being the Regular Session Beginning Tuesday, January 10, 1995

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| Printed Page 1620, Mar. 14 | Printed Page 1640, Mar. 14 |
Printed Page 1630 . . . . . Tuesday, March 14, 1995
A newspaper article published in 1989 intimated that Mr. Harwell had the Florence County Election Commission Chairman replaced because the Chairman had attempted to collect a $5,600 debt owed the Commission by the Florence County Democratic Party. Mr. Harwell claimed that the Chairman was dismissed by the Florence County Legislative Delegation of which Mr. Harwell was only one member, and that the dismissal was due to the Chairman's partisan activities. The Joint Committee had only the newspaper article and Mr. Harwell's testimony to consider in this matter, but did not find any evidence of wrongdoing on Mr. Harwell's behalf.

2. Legal Knowledge and Ability:

The input the Joint Committee received from its survey and from the Bar indicated that Mr. Harwell has enjoyed a successful law practice. He has complied with the requirements for continuing legal education. Mr. Harwell has a Martindale-Hubbell rating of BV, which is their middle rating and indicates that his legal ability is considered to be "high to very high."

Mr. Harwell took the bar examination twice. He testified that when he took the bar examination the first time he finished all but the last section on the third and final day. He said that he was worried about the health of his critically ill father, however, and did not finish the examination. He took the bar examination again several months later and passed.

Mr. Harwell's score on the Joint Committee's practice and procedure questions was 1.4 out of 4 possible points. Mr. Harwell's score was poor and his answers were on average rambling and had little relationship to the precise question that was asked. His responses often included legal terms and concepts that did not always relate to the questions that were asked. Mr. Harwell was familiar with some of the practice and procedure

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concepts such as the factors a judge must look at in determining whether a child witness is competent to testify, Allen charges, mandatory minimum sentences, and whether an expert may testify about a legal conclusion. He was somewhat familiar with election of remedies, appeals from magistrate's court, when a witness can testify outside of the defendant's presence, and whether it is a necessary prerequisite for the admission of scientific evidence that the theory and general technique are generally accepted in the scientific community. Mr. Harwell was only passingly familiar with when a case can be removed from the docket because of inactivity, damages recoverable without a hearing in a default judgment, how a juror might pose questions of a witness, and whether experts can testify on matters of common knowledge or ultimate issues. Mr. Harwell was completely unfamiliar with the standard of review in a matter on appeal from the Workers' Compensation Commission, court witnesses, res gestae, and when jeopardy attaches. The Joint Committee was concerned by Mr. Harwell's overall low score on these questions and the fact that he did not demonstrate knowledge of rather basic issues of practice and procedure.

Mr. Harwell testified that he considered Judge Ralph King Anderson to be a role model and would adopt Judge Anderson's system of using a notebook to supplement his knowledge on matters with which he is not fully acquainted. He also indicated that he would use the law library in the Florence County Courthouse to do his research. The Joint Committee applauds Mr. Harwell's plans for legal research, but does not consider these efforts to be a substitute for his lack of basic familiarity with common issues of practice and procedure.

In response to the Chairman's questions about separation of powers and the role of the judiciary, Mr. Harwell stated that a circuit court may not order the General Assembly to expend funds. He also testified that he believes the death penalty to be constitutional.

3. Professional Experience:

The Joint Committee found that Mr. Harwell has enjoyed a successful law practice, but expressed concern about his trial court experience. The Joint Committee received input from its survey and from the Bar which indicated that Mr. Harwell's practice has not been sophisticated in that he has in recent years tried only driving under the influence and similar criminal cases and that he has appeared infrequently in circuit court. The Bar found Mr. Harwell not qualified, primarily because of an alleged lack of trial experience.

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The Joint Committee researched Mr. Harwell's experience extensively and requested that he provide the Joint Committee with documentation of his experience. Mr. Harwell did so, and the Joint Committee found that Mr. Harwell has had little trial experience and a practice consisting mostly of driving under the influence matters. The Joint Committee did not necessarily expect Mr. Harwell to have broad experience with both civil and criminal matters, but it does expect all candidates to have practiced with a level of sophistication that would prepare them for the judicial office they seek.

The Joint Committee was troubled by the fact that Mr. Harwell has tried only four matters in general sessions court in the last seven years and has not, according to the information Mr. Harwell provided the Joint Committee, ever tried more than a few cases (he provided the Joint Committee with only two) in the court of common pleas. Most importantly, the Joint Committee was also concerned by Mr. Harwell's lack of experience with sophisticated legal matters; his practice has consisted almost entirely of driving under the influence defense work and the settlement of automobile accident cases.

In response to the Joint Committee's request for a list of all civil and criminal matters that actually went to trial, Mr. Harwell responded with a list of trials from 1987 to present. Mr. Harwell gave the Joint Committee documentation of fifty-seven matters that actually went to trial during that period of time, forty-nine of which were in magistrate's court, four of which were in city court, and four of which were in general sessions court. Of the fifty-seven matters, fifty-two were driving under the influence trials, two were leaving the scene trials, one was an open container trial, one was an assault and battery trial, and one was a murder trial.

The Joint Committee adopted a new procedure for the taking of testimony this year by which individuals may file an affidavit with the Joint Committee's legal staff but choose to keep their identities confidential. The Joint Committee received such an affidavit concerning Mr. Harwell. A staff attorney who knew the identity of the affiant presented the affidavit in public session, informed the Joint Committee of certain background information, but did not reveal the affiant's identity. The confidential affidavit indicated that the affiant had known Mr. Harwell for over thirty years and believed him to have a successful but limited criminal practice and virtually no civil experience. The confidential affiant said that Mr. Harwell is a driving under the influence lawyer who does not have the experience to be a trial court judge. The Joint Committee regretted that Mr. Harwell could not question the affiant in

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public session, but considered the affiant's comments in its deliberations. The Joint Committee did so because it believes that it must encourage individuals with firsthand information about judicial candidates to come forward and because it trusted staff to investigate and determine whether the affiant was making honest representations. Mr. Harwell speculated as to the confidential affiant's identity and said he thought the comments were politically motivated.

Mr. Harwell did, however, agree with the confidential affiant's assertion that he has had a very limited trial practice. He offered his active experience with criminal pleas and his service as a senior partner advising other lawyers as substitutions for his lack of trial experience.

Mr. Harwell testified that much of his practice has involved pleas and civil work that never went to trial. Criminal plea negotiations are important, but do not prepare candidates for service on the trial court bench because the acceptance of pleas constitutes a very narrow part of a judge's job. As to civil matters that never went to trial, the documentation Mr. Harwell provided the Joint Committee consisted entirely of automobile accident settlements.

Mr. Harwell stressed that the Joint Committee should not look solely at his practice over the last few years, but also at his long history of success. He indicated that he regularly advises younger lawyers in his firm and around the state and that this experience has prepared him to serve on the trial court bench. Two Columbia attorneys, Mr. David Massey and Mr. David Fedor, and a retired circuit court judge and member of the House of Representatives, Judge Marion Kinon, filed affidavits and testified on Mr. Harwell's behalf. Judge Kinon testified that he had known Mr. Harwell for thirty years and knew of few attorneys who could rival his legal skill and ability. Mr. Fedor testified that Mr. Harwell is an experienced trial lawyer in both civil and criminal cases and is qualified to be a circuit court judge. When asked whether legal knowledge and ability were important, Mr. Fedor responded that Mr. Harwell already knew everything he needed to know, but could remedy any defects he might have with ten days of study. Mr. Massey testified that Mr. Harwell is an experienced trial lawyer and qualified to serve as a circuit court judge. The Joint Committee considered this testimony and respects the opinions of the witnesses, but found the testimony to be in conflict with the documentation of the experience Mr. Harwell provided the Joint Committee and his performance on the Joint Committee's practice and procedure questions.

As evidence of his long history of success, Mr. Harwell testified that he had never had a civil appeal and that he had won 90% of his criminal

Printed Page 1634 . . . . . Tuesday, March 14, 1995
cases. The Joint Committee was impressed by Mr. Harwell's success rate, but it establishes only that he has been successful in the area in which he practices which is a fact of which the Joint Committee had no doubt.

As evidence that he has worked on sophisticated criminal matters, Mr. Harwell provided the Joint Committee with a list of five murder trials with which he was involved. These trials were, however, conducted in the early to mid-1970's, more than twenty years ago, and Mr. Harwell did not provide the Joint Committee with evidence of any sophisticated criminal matter he has handled since then.

4. Judicial Temperament:

The Joint Committee's investigation did not reveal anything that would indicate a potential problem with judicial temperament. Most of the input the Joint Committee received from its own survey and from the Bar's investigation indicated that Mr. Harwell has the temperament required for service on the bench. The Bar noted that Mr. Harwell is well-liked, compassionate, and would have good judicial temperament.

Mr. Harwell testified that he thought it would be important for him to retain his sense of humor if elected, but that he might have to rein his humor in some. He said that he thought humor helps to relieve tension and put people at ease.

5. Diligence and Industry:

Mr. Harwell was punctual and attentive in his dealings with the Joint Committee.

Mr. Harwell testified that he would serve a full term if elected and that he had no plans to return to private practice.

6. Mental and Physical Capabilities:

Mr. Harwell 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. Mr. Harwell has managed his financial affairs responsibly.

8. Public Service:

Mr. Harwell served in the House of Representatives from 1979 to 1980 and from 1989 to the present. He has also served on the U.S. Congressional AdHoc Committee for Expansion of the Florence National

Printed Page 1635 . . . . . Tuesday, March 14, 1995
Cemetery, the Commission on Aging, the Florence Jail Commission, and the State Reorganization Commission.

Mr. Harwell testified that if elected he would seek to avoid the appearance of partisanship in his activities as a legislator before his swearing in as a judge.

9. Ethics:

Mr. Harwell 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.

Mr. Harwell also testified that he has not made campaign expenditures in excess of $100 and has, therefore, not been required to report expenditures to the House or Senate Ethics Committees.

Mr. Harwell testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.

10. Miscellaneous:

The Joint Committee received one statement in opposition to Mr. Harwell's election and three affidavits in support. All four affidavits are discussed above.

H. Dean Hall

Candidate for Election to the Tenth Judicial Circuit

Joint Committee's Finding: Legally Qualified

Judge Hall was screened on February 8, 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. The input the Joint Committee received from its own survey and the report of the Bar was that Judge Hall's character, integrity, and reputation are outstanding.

Judge Hall demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. On the issue of ex parte communications, Judge Hall testified that he does not

Printed Page 1636 . . . . . Tuesday, March 14, 1995
engage in ex parte communications and does everything in the courtroom on the record. He says he will only meet when all parties, including pro se parties, have been given proper notice.

On the issue of recusal, Judge Hall testified that he recuses himself if a lawyer or litigant has a valid reason for asking him to do so. He also testified that he does not accept gifts of any kind and avoids attending functions that would bring embarrassment to the bench or would indicate that he advocates or supports a particular cause. Judge Hall does not "do lunch," but will accept invitations from groups that invite all of the judges, such as the Bar or the Solicitors' Association.

2. Legal Knowledge and Ability:

The input the Joint Committee received from its survey and from the Bar indicated that Judge Hall is intelligent and knowledgeable. He has complied with all continuing judicial education requirements and has taught orientation school for new circuit court judges, made a presentation on our court system at York Technical College, and made a presentation on recent United States Supreme Court decisions at the South Carolina Solicitors Conference.

Judge Hall's score on the Joint Committee's practice and procedure questions was 3.0 out of 4 possible points. He was well versed on the damages that can be recovered without a hearing in a default judgment, when counsel can ask leading questions in a child sexual abuse case, Allen charges, when jeopardy attaches, and the admissibility of expert testimony. He was also familiar with the standard of review in an appeal from the Workers' Compensation Commission and when a witness may testify outside of the defendant's presence.

Judge Hall took the South Carolina bar examination twice.

Judge Hall has been sued twice in his capacity as a judge. In one matter, he was among a group of judges sued, but the case was resolved in Judge Hall's favor by the Supreme Court. He was also sued in the 1970's in his capacity as a guardian ad litem. The Joint Committee did not find cause for concern in either matter.

In response to the Chairman's questions about separation of powers and the role of the judiciary, Judge Hall testified that acts of the General Assembly are presumed constitutional and that he believes in the death penalty. He also testified that he believes in alternative dispute resolution procedures as they will reduce case loads and help both litigants and the court system. He was not familiar with the political abstention doctrine.

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3. Professional Experience:

Judge Hall has been a circuit court judge since 1991 and was on the family court bench from 1986 to 1991. He practiced civil, criminal, and domestic law from 1972 to 1986.

4. Judicial Temperament:

The input the Joint Committee received from its surveys and from the Bar indicate that Judge Hall's temperament is excellent.

5. Diligence and Industry:

Judge Hall 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.

6. Mental and Physical Capabilities:

Judge Hall 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 Hall has managed his financial affairs responsibly.

8. Public Service:

Judge Hall has served on the bench since 1986.

9. Ethics:

Judge Hall 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 Hall also testified that he understood the new Joint Committee rule requiring him to wait forty-eight hours after the draft report is released before he may begin seeking commitments.

Judge Hall testified that he has not spent any money on his campaign and is, therefore, not required to file campaign expenditure statements with the House or Senate Ethics Committees.

Printed Page 1638 . . . . . Tuesday, March 14, 1995
10. Miscellaneous:

Judge Hall is currently an at-large circuit court judge running for a resident seat in the Tenth Judicial Circuit. Judge Hall testified that he wants to be the resident judge because his family is from Anderson and he would consider it an honor to be the resident judge of that circuit. He also testified that he understood that South Carolina Code Section 2-19-80 would require the Joint Committee to delay the elections for this seat and reopen the filing period if the incumbent, Judge Ervin, withdraws from this race.

Judge Hall testified that he plans to serve the full term if elected and has no plans to return to private practice.

The Joint Committee did not receive any complaints or statements in opposition to Judge Hall's election.

Amie L. Clifford

Candidate for Election to the Ninth Judicial Circuit

Joint Committee's Finding: Legally Qualified

Ms. Clifford was screened on February 2, 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. Most of the input the Joint Committee received from its own survey and the report of the Bar was that Ms. Clifford's character, integrity, and reputation are outstanding.

Ms. Clifford demonstrated an understanding of the Canons of Judicial Conduct and other ethical considerations of importance to judges. On the issue of ex parte communications, Ms. Clifford stated that she would not allow ex parte communications unless it was a matter in which ex parte communications were specifically allowed, such as the issuance of a search warrant.

On the issue of recusal, Ms. Clifford testified that if a party wanted her to recuse herself, she would do so to avoid even the appearance of impropriety. Ms. Clifford also testified that she would not hear a case in which she held a de minimis financial interest.

Ms. Clifford testified that she would never accept gifts and would accept social hospitality only under strict guidelines to avoid the appearance of impropriety.

The Joint Committee questioned Ms. Clifford about her ability to shed her role of advocate, particularly in light of her extensive criminal

Printed Page 1639 . . . . . Tuesday, March 14, 1995
experience and rather limited civil work. Ms. Clifford testified in response that as a judge she would not advocate either side and would decide cases based on the facts, the evidence, and the law. She indicated that she would not let her past experiences in the criminal arena improperly influence her decisions if elected.

2. Legal Knowledge and Ability:

The input the Joint Committee received from its survey and from the Bar indicated that Ms. Clifford is intelligent and knowledgeable, particularly in the area of criminal law. There was some concern expressed about a perceived lack of civil experience.

Ms. Clifford's score on the Joint Committee's practice and procedure questions was 2.71 out of a possible 4 points. Ms. Clifford was very knowledgeable about circumstances in which a witness can testify outside the defendant's presence, res gestae, when jeopardy attaches, and the admission of expert testimony. She was also familiar with when a defendant can be convicted solely on circumstantial evidence, the standard of review in an appeal from the Workers' Compensation Commission, and Allen charges. She was less familiar with when a judge can grant a new trial notwithstanding the verdict in a civil matter, when a juror may pose questions to a witness, when a motion for directed verdict should be granted, and the standard of appellate review in civil cases. Ms. Clifford did not know what damages are recoverable without a hearing in a default judgment.

Ms. Clifford has given more than twenty-five continuing legal education and other presentations in the last ten years and has written extensively for various professional publications. Most of her courses and publications have been about criminal law.

Ms. Clifford testified that she has had some experience with alternative dispute resolution. She also testified in response to the Chairman's questions about the role of the judiciary, that laws are entitled to a presumption of constitutionality and that she has read the case law concerning the constitutionality of the death penalty.

When asked about her sentencing philosophy for repeat offenders, Ms. Clifford responded that she would look at each case closely and consider such factors as what kind of help the person got the first time. She also testified that she would give juveniles the benefit of the doubt and look at the circumstances of the offense and the character of the offender.

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