0001
 1            JUDICIAL MERIT SELECTION COMMISSION
 2   
 3                      OPEN SESSION
 4         PUBLIC HEARINGS ON JUDICIAL QUALIFICATIONS
 5   
 6                      VOLUME III
 7            WEDNESDAY, APRIL 15, 2009
 8            GRESSETTE BUILDING, ROOM 209
 9               COLUMBIA, SOUTH CAROLINA
10               COMMENCING AT 9:52 a.m. 
11   
12      REPORTED BY:     SONIA I. MENDEZ,              
                         Certified Court Reporter
13   ___________________________________________________
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20                      COMPUSCRIPTS, INC.
               A Full-Service Court-Reporting Agency
21                     Post Office Box 7172
                  Columbia, South Carolina 29202
22                         803.988.0086
                           888.988.0086
23                    www.compuscriptsinc.com
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0002
 1   
 2      MEMBERS IN ATTENDANCE:
 3           SENATOR ROBERT FORD
 4           PROFESSOR JOHN P. FREEMAN
 5           JOHN DAVIS HARRELL
 6           SENATOR JOHN M. "JAKE" KNOTTS, JR.
 7           AMY JOHNSON McLESTER
 8           REPRESENTATIVE ALAN D. CLEMMONS
 9           REPRESENTATIVE DAVID J. MACK, III
10           H. DONALD SELLERS
11   
12      COUNSEL PRESENT:
13           JANE O. SHULER, CHIEF COUNSEL
14           BRADLEY S. WRIGHT
15           PATRICK G. DENNIS
16           NANCY COOMBS
17           JOEL DEASON
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                   (INDEX AT REAR OF TRANSCRIPT)
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25   
0003
 1                   PROF. FREEMAN:  The Judicial Merit
 2      Selection Commission is called pursuant to
 3      Chapter 19, Title 10, of the South Carolina Code of
 4      Laws requiring a review of candidates for judicial
 5      office.
 6                   The function of the Commission is not
 7      to choose between candidates, but rather to declare
 8      whether or not candidates who offer for positions
 9      on the bench, in our judgment, are qualified to
10      fill the positions they seek.
11                   The inquiry we take is a thorough one.
12      It's centered around the Commission's nine
13      evaluative criteria.  It involves a complete
14      personal and professional background check on every
15      candidate.
16                   These public hearings are convened for
17      the purpose of screening candidates for the
18      following positions:  One vacancy on the Supreme
19      Court, two vacancies on the Circuit Court, two
20      vacancies on the Family Court, and two vacancies on
21      the Administrative Law Court.  For today, we will
22      screen one vacancy on the Administrative Law Court.
23                   We have some business to do in
24      executive session.  Is there a motion that we go
25      into executive session?
0004
 1                   MR. SELLERS:  I so move.
 2                   PROF. FREEMAN:  Second?
 3                   MS. McLESTER:  Second.
 4                   PROF. FREEMAN:  All in favor say
 5      "aye."
 6                   (Members respond.)
 7                   PROF. FREEMAN:  Opposed?  Nobody's
 8      opposed.  We're going into executive session and
 9      ask that the door be closed.
10                   SEN. FORD:  You sound like a Baptist
11      preacher.
12                   PROF. FREEMAN:  I don't know whether
13      that's a compliment or not.
14                   REP. CLEMMONS:  We haven't dropped the
15      veil.
16                   (The members went into Executive
17      Session at 9:53 a.m.)
18                         *  *  *  *  *
19   
20   
21   
22   
23   
24   
25   
0030
 1                   (The members came out of Executive
 2      Session at 10:22 a.m.)
 3                   (Ms. Edwards enters the room.)
 4                   PROF. FREEMAN:  Good morning.  We have
 5      before us Ms. Latonya Edwards, candidate for
 6      Administrative Law Court, Seat 5.
 7                   Ms. Edwards, would you please raise
 8      your right hand.  Do you swear to tell the truth,
 9      the whole truth, and nothing but the truth, so help
10      you God?
11                   MS. EDWARDS:  I do.
12                   PROF. FREEMAN:  The Judicial Merit
13      Selection Commission has thoroughly investigated
14      your qualifications for the bench.
15                   Our inquiry has focused on nine
16      evaluative criteria, and has included a bench and
17      bar survey, a thorough study of your application
18      materials, verification of your compliance with
19      state ethics laws, a search of newspaper articles
20      in which your name appears, a study of previous
21      screenings, a check for economic conflicts of
22      interest.
23                   We have received no affidavits filed
24      in opposition to your election, and no witnesses
25      are present here to testify.
0031
 1                   Do you have a brief opening statement
 2      that you would like to make at this time?
 3                   MS. EDWARDS:  Well, I'd just like to
 4      say that I appreciate the opportunity to be here
 5      and discuss my qualifications and background with
 6      all of you.  And I welcome any questions you may
 7      have about that, as I'm sure you have many.
 8                   PROF. FREEMAN:  Thank you.
 9                   Please answer counsel's questions.
10                   MS. EDWARDS:  Yes, sir.
11                   MR. DENNIS:  Mr. Chairman, just a few
12      procedural things to deal with with Ms. Edwards.
13      BY MR. DENNIS:
14             Q.    Ms. Edwards, you should have before
15      you a copy of your personal data questionnaire that
16      you submitted as part of the application.
17                   Are there any amendments that you'd
18      like to make to that PDQ?
19             A.    Yes.  Question Number 14 on the
20      personal data questionnaire, and from -- talking
21      about my employment experience from July 2004 to
22      October 2005.  I was on maternity leave and I
23      attended some continuing education classes and
24      performed document review and analysis relative to
25      the insurance and pharmaceutical industry.
0032
 1                   Do you want me to go over each one of
 2      them or just say that I have --
 3                   MR. DENNIS:  No.  I think that as long
 4      as you have submitted and provided those, then we
 5      can make them a part of the record.
 6                   MS. EDWARDS:  Yes, yes.  Then I'll do
 7      that.  I have submitted those amendments.  Thank
 8      you.
 9                   MR. DENNIS:  At this time,
10      Mr. Chairman, I'd ask that the candidate's PDQ and
11      the amendments be entered as an exhibit into the
12      record.
13                   PROF. FREEMAN:  It will be done in the
14      record at this point.
15                   (EXH. 1, PDQ, was marked for
16      identification.)
17                   MS. EDWARDS:  Thank you.
18                   MR. DENNIS:  Ms. Edwards, you also
19      have before you a copy of a sworn statement
20      providing detailed answers to over 30 questions
21      regarding judicial conduct, statutory
22      qualifications, office administration and
23      temperament.
24                   I believe you have a few amendments
25      that you'd like to offer to that as well.
0033
 1                   MS. EDWARDS:  Yes.  And they're also
 2      on the amendment sheet that I just submitted and is
 3      being placed in the record.
 4                   MR. DENNIS:  Mr. Chairman, I'd ask
 5      that her sworn statement be entered into the
 6      record.
 7                   PROF. FREEMAN:  It will be entered
 8      into the record at this point.
 9                   (EXH. 1A, Sworn Statement, was marked
10      for identification.)
11                   MS. EDWARDS:  Thank you.
12                   MR. DENNIS:  One final procedural
13      matter, I note for the record that based on the
14      testimony contained in the candidates PDQ, which
15      has been included in the record with the
16      candidate's consent, Ms. Edwards' meets the
17      statutory requirements for this position regarding
18      age, residence and years of practice.
19      BY MR. DENNIS:
20             Q.    Ms. Edwards, why would you now like to
21      serve as an Administrative Law Court judge?
22             A.    One of the reasons -- well, the real
23      important reason is that a judge is the final step
24      in protecting the rights of people who are seeking
25      to be addressed through the judicial process.  And
0034
 1      it's an awesome responsibility, and I would be
 2      honored to be a part of it.
 3                   So that's really the primary reason.
 4      I would like to think that that's an altruistic
 5      reason rather than a selfish one, wanting to be a
 6      part of that process.
 7             Q.    Ms. Edwards, you addressed in your
 8      sworn statement the issue of demeanor for a judge.
 9      But would you please offer some further explanation
10      to the Commission about what you think the
11      appropriate demeanor is.
12             A.    Certainly.  I believe that a judge
13      should always conduct themselves in a professional
14      and courteous manner.  A judge's reputation should
15      always be above reproach.  And that applies in both
16      professional and personal dealings.
17             Q.    If elected, Ms. Edwards, what would
18      you like your legacy to be upon leaving the
19      Administrative Law Court?
20             A.    I would like my legacy to be one where
21      people would remember me as an efficient judge, an
22      intelligent judge, a judge who I guess resolves
23      cases in a timely manner, and was very cordial and
24      courteous to litigants and attorneys alike.
25             Q.    Ms. Edwards, as you and I have
0035
 1      discussed, you have a relative lack of experience
 2      in practicing before the Administrative Law Court.
 3      Your PDQ showing a single appearance.
 4             A.    That's correct.
 5             Q.    What experience do you feel you have
 6      that has already prepared you to serve in the
 7      position you're seeking, and what other
 8      preparations would you undertake to become an
 9      Administrative Law Court judge?
10             A.    Well, I believe that -- when I worked
11      at the county attorney's office for Richland
12      County, I only appeared before the Administrative
13      Law Court once, that is correct.
14                   And while to some that may be
15      perceived as a weakness, I think that allows me to
16      not have any preconceived notions about how things
17      have been run for the past 20 years, and I can be
18      open to bringing some new ideas and a fresh
19      perspective on things.
20                   But even in my prior capacity as
21      general counsel for the South Carolina Commission
22      for the Blind, that came within the purview of the
23      Administrative Law Court, so I've never had to
24      appear before the Administrative Law Court.
25                   I also have defended entities that
0036
 1      I've represented before the Employment Security
 2      Commission, the Equal Employment Opportunity
 3      Commission, the Human Affairs Commission and before
 4      the State Grievance Panel, which are all
 5      administrative bodies.
 6                   And also to make sure that I, I guess,
 7      remain current or become current on issues relevant
 8      to the Administrative Law Court, there's always
 9      practice and there's always attending CLEs and
10      reading, doing whatever preparation is necessary to
11      make sure that you remain current on the issues
12      that come before the Administrative Law Court.
13                   I hope that answers your question.
14      Did I answer all of the parts of the question that
15      you asked?
16             Q.    Yes, ma'am.
17             A.    Okay.
18             Q.    Ms. Edwards, additionally you and I
19      have discussed your test score --
20             A.    Yes.
21             Q.    -- and it's important to know that you
22      met expectations that the Commission uses at the
23      time.
24             A.    Right.
25             Q.    However, among the other
0037
 1      Administrative Law Court judges, your score was on
 2      the lower end.
 3                   I would ask you if you feel like there
 4      is any additional preparation you need in
 5      substantive areas of law before you were -- before
 6      you would take the bench.
 7             A.    Well, not in the substantive areas of
 8      law.  But let me also say that when I took the SAT
 9      to attend college, I just barely passed by the skin
10      of my chin-y, chin, chin, then also.  But I also
11      graduated magna cum laude from college.
12                   When I took the LSAT, I didn't do that
13      great on the LSAT.  But in law school I was chief
14      justice of the moot court, I was the managing
15      editor in one of the journals.  And the moot court
16      team of which I participated was a midwestern
17      regional quarter finalist.
18                   And so I think historically I just
19      don't do well on exams.  And I think, though, that
20      that is not a reflection of my real ability.  And
21      so I think that, you know, my career and the things
22      that I've done speaks more to my legal ability than
23      the exam does.
24                   And also this particular exam, you had
25      some really seasoned judges taking this exam also.
0038
 1      And certainly I would expect that they did
 2      extraordinarily well and they probably destroyed
 3      any possibility of a curve that I could have been
 4      graded on.  So I would just say that.
 5                   And hopefully that responds to your
 6      inquiry.
 7             Q.    Last one, Ms. Edwards, along sort of
 8      those same lines, would you please explain to the
 9      Commission the circumstances surrounding your being
10      admitted to the North Carolina Bar.
11             A.    Oh, my goodness.  Once again, this is
12      an example of me not doing well on exams.  It took
13      several tries for me to pass the North Carolina
14      Bar.  And I passed South Carolina my first time
15      with no problem.
16                   But North Carolina, it was harder for
17      me.  It was.  And I didn't take it consecutively.
18      I took it a few times and then I stopped and then
19      went back.  But I just felt that I needed for
20      myself to pass the exam even if it took me 20
21      times.  Fortunately, it didn't take me 20 times.
22                   But I just felt that I had to do it
23      for myself.  And I certainly think that that should
24      speak to my perseverance.  I didn't want to be --
25      my legacy, I didn't want to be that I gave up and
0039
 1      didn't follow through.  And so I just felt I had to
 2      do that for myself.
 3             Q.    Thank you very much, Ms. Edwards.
 4      I've got just a few little housekeeping things
 5      we'll run through quickly.
 6             A.    Sure.
 7             Q.    Have you sought or received the pledge
 8      of any legislature prior to today?
 9             A.    I have not.
10             Q.    Have you sought or have you been
11      offered a conditional pledge of support of any
12      legislator pending the outcome of your screening?
13             A.    I have not.
14             Q.    Have you asked any third parties to
15      contact any members of the general assembly on your
16      behalf?
17             A.    I have not.
18             Q.    Have you contacted any members of this
19      Commission?
20             A.    I have not.
21             Q.    Do you understand that you're
22      prohibited from seeking a pledge or commitment
23      until 48 hours after the formal release of the
24      Commission's report?
25             A.    I do.
0040
 1             Q.    Have you reviewed the Commission's
 2      guidelines on pledges?
 3             A.    I have.
 4             Q.    And as a followup, are you aware that
 5      if you violate those guidelines, it is a
 6      misdemeanor punishable by a $1,000 fine and up to
 7      90 days in jail?
 8             A.    I am aware of that, yes.
 9                   MR. DENNIS:  I would note that the
10      Midlands Citizens Committee reported that
11      Ms. Edwards is a very highly qualified candidate to
12      most ably serve on the Administrative Law Court.
13                   And I would also note for the record
14      that any concerns raised during the investigation
15      regarding the candidate were incorporated in the
16      questioning of the candidate today.
17                   Mr. Chairman, I have nothing further.
18                   PROF. FREEMAN:  Thank you, Mr. Dennis.
19                   Commission members, who has questions?
20      Senator Ford.
21                   SEN. FORD:  Now, this is an
22      outstanding young lady.  And it was surprising
23      because I'm with her parents a lot.  And not one of
24      them mentioned the fact that she was coming before
25      us today.  I'm sure Representative Mack can testify
0041
 1      to that also.  This is shocking.  I know the young
 2      lady since she was a little bitty kid and now she's
 3      a big time lawyer.  I'm proud of her.  No
 4      questions.
 5                   MS. EDWARDS:  I dispute that
 6      characterization.  I don't think I'm big time at
 7      all.  Not at all.  Not at all.
 8                   PROF. FREEMAN:  Any other questions?
 9      Yes, sir, Senator Knotts.
10                   SEN. KNOTTS:  I understand that -- I
11      understand people that don't test well.  But you
12      appear to make up for the fact that you don't test
13      well with good common sense.
14                   MS. EDWARDS:  I think so.  I hope so.
15                   SEN. KNOTTS:  And a charming
16      personality.
17                   MS. EDWARDS:  Thank you.
18                   SEN. KNOTTS:  Tell me a little bit
19      about your work ethic.
20                   MS. EDWARDS:  Oh, goodness.  Like you
21      said, you know, sometimes you have to make up in
22      other areas where you lack in others.
23                   And I think that because I don't do
24      well testing, I really think I have to give 100
25      percent, 150 percent, 200 percent.  You know,
0042
 1      currently -- in my current position, you know, I
 2      have seven hearings sometimes in one day.  And I
 3      oftentimes have depositions that start at 7 p.m.,
 4      one that was scheduled for 7 a.m.
 5                   So, you know, while I do work for the
 6      state and the suggested work hours are from 8:30 to
 7      5, I often have to work outside of those parameters
 8      because my case load is such that I can't get it
 9      all done in 40 hours a week.
10                   And I often have to either take work
11      home on weekends or come into the office on the
12      weekend just to maintain my deadlines for getting
13      my cases done.  And so I think I have a strong work
14      ethic.  I do what is required to make sure that I
15      get everything done that needs to be done.
16                   And I think that my -- I think my
17      peers will attest to that as well.  And I think my
18      former bosses will attest to that as well, and my
19      current boss.
20                   SEN. KNOTTS:  Thank you.
21                   PROF. FREEMAN:  Any other questions or
22      comments?  Yes, Representative Mack.
23                   REP. MACK:  Thank you, Mr. Chairman.
24                   When I look at the number of times
25      you've taken the North Carolina Bar, it's not --
0043
 1      one of the things that stuck out to me was the
 2      persistence that you have.  Talk about your views
 3      on just being persistent.
 4                   MS. EDWARDS:  Well, like I said, I
 5      really think that I could have easily just said,
 6      Forget it, I'm not doing this anymore.  But I think
 7      that I had to prove to myself that I could pass it.
 8                   And when I took it, I never looked at
 9      the exam and said, Wow, this is really really hard,
10      I know I'm never going to be able to get it.  It
11      was never a situation where I looked at it and
12      said, This is just too hard.
13                   I just fell short.  A lot of the
14      times -- a few times I fell short within a few
15      points of passing.  And so it was very frustrating,
16      but I just really felt that I had to do it for
17      myself.
18                   I may not ever practice in North
19      Carolina, but I just thought I didn't want to be
20      viewed as somebody who just gave up on that exam.
21      So I think that that persistence, I think, pays off
22      in my personal and professional life as well
23      because I don't want to be viewed as somebody that
24      just gives up on things.
25                   And an exam is something that I
0044
 1      perceive to be within my control.  Now, if it was
 2      something that I had no control over, maybe I would
 3      have given up.  But I perceive that as being
 4      something that I have personal control over.  And
 5      so I had to prove to myself that I could pass it.
 6                   So I hope that answers your question.
 7                   PROF. FREEMAN:  Other questions
 8      anybody?
 9                   Before we close, I just want to salute
10      you on your perseverance and kind of indomitable
11      nature.
12                   MS. EDWARDS:  Thank you.
13                   PROF. FREEMAN:  A lot of people have
14      an easy time doing things and don't use all their
15      abilities.  And somebody who's got your grit, I
16      just want to tip my hat to you.
17                   MS. EDWARDS:  Thank you.  I appreciate
18      that very much.
19                   PROF. FREEMAN:  Ms. Edwards --
20                   SEN. KNOTTS:  Mr. Chairman?
21                   PROF. FREEMAN:  Yes, sir?
22                   SEN. KNOTTS:  Let me just say one more
23      thing.
24                   You know, I too respect your strong
25      perseverance in going after things.  You know, in
0045
 1      life I found out the same thing.  You sort of
 2      remind me of myself when I was coming along.  It
 3      took me 14 years to get out of Carolina, but I
 4      wanted a college degree and to be one of the
 5      first --
 6                   SEN. FORD:  14 years?
 7                   MS. EDWARDS:  Wow.
 8                   SEN. KNOTTS:  -- to get -- I wanted to
 9      make sure I was one of the first ones to get a
10      degree from Carolina in criminal justice, because
11      it was a new program there.
12                   And I know that there was a lot of us
13      that had the opportunity at the police department.
14      We would go -- I would go to work at night and I
15      worked in the daytime.  And my professors, because
16      of my ability to convince them that I really wanted
17      to get the degree, they worked my schedule back and
18      forth.
19                   And I had one day course professor
20      that would sign off for the night one, and the
21      night one would sign off for the day one when I was
22      working shift one.
23                   So I know how hard it is to want to do
24      something, and I really respect your perseverance
25      on that, because I took one course a semester for
0046
 1      14 years, and I graduated in '82.
 2                   MS. EDWARDS:  Great.  My hat off to
 3      you as well for your perseverance.
 4                   SEN. KNOTTS:  I know the type, and I
 5      hope you go high in this.
 6                   MS. EDWARDS:  Thank you.  I appreciate
 7      that very much.
 8                   PROF. FREEMAN:  Ms. Edwards, I want to
 9      remind you that the record will remain open until a
10      publication of the Commission's report.
11                   The report will be delivered to
12      members of the general assembly on Thursday,
13      April 23rd and will become final at noon on
14      April 28th.  You may obtain commitments or pledges
15      starting at noon on April 28th, and not before.
16                   Thank you for offering as a judicial
17      candidate, and we again appreciate your attendance
18      here today.
19                   MS. EDWARDS:  Thank you so much.  I
20      appreciate the opportunity.
21                   SEN. FORD:  Professor, one final
22      comment.
23                   PROF. FREEMAN:  Yes, sir.
24                   SEN. FORD:  Ms. Edwards, if you would
25      have went to Carolina and Professor Freeman was
0047
 1      your professor, you would have passed that test for
 2      sure.
 3                   MS. EDWARDS:  You think so?
 4                   SEN. FORD:  I hope so.
 5                   MS. EDWARDS:  Well, it's too bad I
 6      didn't go there then.
 7                   Thank you.  Have a nice morning --
 8      rest of the morning and day too.  Bye-bye.
 9                   (Ms. Edwards exits the room.)
10                   (Off-the-record discussion.)
11                   (Mr. Holmes enters the room.)
12                   PROF. FREEMAN:  Members of the
13      Commission, we have before us this morning now
14      Mr. Christopher G. Holmes, candidate for
15      Administrative Law Court, Seat 5.
16                   Mr. Holmes, will you please raise your
17      right hand.  Do you swear to tell the truth, the
18      whole truth, and nothing but the truth, so help you
19      God?
20                   MR. HOLMES:  I do.
21                   PROF. FREEMAN:  The Judicial Merit
22      Selection Commission has thoroughly investigated
23      your qualifications for the bench.
24                   Our inquiry has focused on nine
25      evaluative criteria and has included a survey of
0048
 1      the bench and bar, a thorough study of your
 2      application materials, verification of your
 3      compliance with state ethics laws, a search of
 4      newspaper articles in which your name is mentioned,
 5      a study of any previous screenings, check on
 6      economics and conflicts of interest.
 7                   And we have received no affidavits
 8      filed in opposition to your election.  No witnesses
 9      are present here to testify.
10                   Do you have a brief opening statement
11      that you would like to make at this time?
12                   MR. HOLMES:  Briefly.  Professor
13      Freeman, I guess I addressed this Commission back
14      in December on a prior application.  No need to go
15      over all that.
16                   Like I said, I think with my 30 years
17      of experience almost exclusively in administrative
18      law in my representation of clients and agencies
19      before that court, my knowledge and familiarity
20      with the judges over there, and the staff, that
21      makes me very qualified for this position.
22                   And I feel and had indications that I
23      would be welcomed as a member of the court.  I've
24      gotten support from a number of people to suggest
25      that, which is why I continue to apply.
0049
 1                   PROF. FREEMAN:  Thank you, sir.
 2      Please answer any questions that Ms. Coombs may
 3      have.
 4                   MS. COOMBS:  Thank you, Mr. Chairman.
 5      BY MS. COOMBS:
 6             Q.    Mr. Holmes, you have before you the
 7      personal data questionnaire that you submitted as
 8      part of your application.
 9             A.    Actually, I didn't bring that with me.
10             Q.    Do you have any amendments that you
11      would like to make to your personal data
12      questionnaire?
13             A.    No, ma'am.
14                   MS. COOMBS:  Mr. Chairman, I would ask
15      that Mr. Holmes' personal data questionnaire be
16      entered as an exhibit into this hearing record.
17                   PROF. FREEMAN:  Without objection, it
18      will be done at this point.
19                   (EXH. 2, PDQ, was marked for
20      identification.)
21      BY MS. COOMBS:
22             Q.    Mr. Holmes, you also have before you
23      the sworn statement that you provided with your
24      application materials that include detailed answers
25      to over 30 questions regarding judicial conduct,
0050
 1      statutory qualifications, office administration and
 2      temperament.
 3                   Do you have any amendments that you
 4      would like to make at this time to that sworn
 5      statement?
 6             A.    No, ma'am.
 7                   MS. COOMBS:  Mr. Chairman, I'd also
 8      ask that Mr. Holmes' sworn statement be entered
 9      into the record as the next hearing exhibit.
10                   PROF. FREEMAN:  Without objection, it
11      will be entered at this point in the transcript.
12                   (EXH. 2A, Sworn Statement, was marked
13      for identification.)
14                   MS. COOMBS:  I would note for the
15      record, that based on the testimony contained in
16      the candidate's personal data questionnaire, which
17      has been included in the record with the
18      candidate's consent, that Mr. Holmes meets the
19      statutory requirements for this position regarding
20      age, residence and years of practice.
21      BY MS. COOMBS:
22             Q.    Mr. Holmes, why do you want to serve
23      as an administrative law judge?
24             A.    I have enjoyed practicing in front of
25      that court ever since its inception.  I was
0051
 1      involved in the hearing officer system that
 2      predated this when I was general counsel for what
 3      was then the South Carolina Coastal Council, now
 4      the Office of Coastal Resource Management, and
 5      always felt there was -- might be some perception
 6      of bias in the federal system since the agencies
 7      were hiring and paging hearing officers.
 8                   Although I didn't find that to be the
 9      case, I knew that perception was there.  And I was
10      very delighted when the court was created and have
11      been supportive of it and have been supportive of
12      the positions that they have taken.  Particularly
13      in being involved and having the system revised,
14      where now Administrative Law Court decisions go
15      straight to the Court of Appeals instead of the
16      prior very lengthy process, of going from the
17      Administrative Law judge back to the agency then to
18      the Circuit Court before it got to the Court of
19      Appeals.
20                   I've been practicing law for 30 years.
21      I grew up in Columbia, though.  Although I've been
22      in Charleston most of that time.  At this stage in
23      my career, I would like to move back to Columbia.
24      I have family and friends here, and I think I have
25      a lot to offer to the court with the knowledge that
0052
 1      I have now and the experience that I have.  As I
 2      said, I've been encouraged by a number of members
 3      of the bar and people associated with the court.
 4                   And I would just view this as sort of
 5      a capstone to my career.  This is not a stepping
 6      stone.  I would have no intention of moving on.
 7      The so-called paper chase is over for me.
 8                   I would like to end my career as I
 9      started, in public service to the state.  Offering
10      what I've gained over the years to the citizens and
11      members of the bar who appear before the court.
12             Q.    Mr. Holmes, you address this in your
13      sworn affidavit, but could you please tell the
14      members of the Commission what you think is the
15      appropriate demeanor for a judge.
16             A.    I think a judge has to not only appear
17      but to be open to all the issues that are presented
18      to them, to fairly weigh the arguments and
19      positions in advance for them, to be familiar with
20      the law and the regulations that are applicable to
21      the case presented, to listen fairly, to rule
22      quickly, firmly.
23                   I think there are a number of judges
24      that I've appeared in front of and I respect the
25      way they treat the lawyers in the courtroom.  I
0053
 1      would want to follow those ideas where the judge is
 2      not a bully or pick on them, but to help them
 3      present their case.  Particularly the younger
 4      lawyers who may not be familiar with the
 5      procedures.
 6                   You don't beat somebody up with that,
 7      you just make sure you get to the facts that need
 8      to be presented.  It's different from a trial
 9      court.  And I think that that's the way I would
10      look at doing it, just be fair.  I'd want anybody
11      who left my courtroom to feel like they had a fair
12      opportunity to present everything that they wanted
13      to present and be heard on all of the issues.  And
14      I would rule properly and I would rule correctly.
15             Q.    If elected, when you leave the bench,
16      what would you like for your legacy to be as an
17      administrative law judge?
18             A.    My legacy, I'd like to be remembered
19      as having been a fair and impartial respected judge
20      whose rules were sound and hopefully any that were
21      appealed, were affirmed.
22                   MS. COOMBS:  Mr. Chairman, I have a
23      couple of matters that I'd like to discuss of a
24      personal nature.
25                   PROF. FREEMAN:  Could we move into
0054
 1      executive session, please.  Second?  All in favor
 2      say "aye."
 3                   (Members respond.)
 4                   PROF. FREEMAN:  Opposed?
 5                   (The members went into Executive
 6      Session at 10:49 a.m.)
 7                         *  *  *  *  *
 8   
 9   
10   
11   
12   
13   
14   
15   
16   
17   
18   
19   
20   
21   
22   
23   
24   
25   
0059
 1                   (The members came out of Executive
 2      Session at 10:52 a.m.)
 3      BY MS. COOMBS:
 4             Q.    Mr. Holmes, have you sought or
 5      received the pledge of any legislator prior to this
 6      date?
 7             A.    No, ma'am.
 8             Q.    Have you sought or have you been
 9      offered a conditional pledge of support of any
10      legislator pending the outcome of your screening?
11             A.    I have not.
12             Q.    Have you asked any third parties to
13      contact members of the general assembly on your
14      behalf?
15             A.    I have not.
16             Q.    Have you contacted any members of this
17      Commission?
18             A.    I have not.
19             Q.    Do you understand that you are
20      prohibited from seeking a pledge or commitment
21      until 48 hours after the formal release of the
22      Commission's report?
23             A.    Yes, ma'am.
24             Q.    Have you reviewed the Commission's
25      guidelines on pledging?
0060
 1             A.    I have.
 2             Q.    Are you aware that violating the
 3      pledging rules is a misdemeanor and, upon
 4      conviction, a violator must be fined not more than
 5      a thousand dollars or imprisoned for more than 90
 6      days?
 7             A.    I am aware of that.
 8                   MS. COOMBS:  Mr. Chairman, I would
 9      note that the Lowcountry Citizens Committee report
10      that's submitted was the report from the October
11      screening of Mr. Holmes, and they found with
12      respect to constitutional qualifications that
13      Mr. Holmes meets the constitutional qualifications
14      for the judicial position he seeks.
15                   With respect to ethical fitness,
16      persons interviewed by the Committee indicated that
17      Mr. Holmes was considered ethical.  For
18      professional and academic ability, the Committee
19      gave Mr. Holmes a good rating in this area.
20                   For character, the Committee reported
21      that Mr. Holmes' character is unquestionable.  For
22      reputation, the Committee states Mr. Holmes enjoys
23      a good reputation in the community and among his
24      peers.
25                   For physical and mental health, the
0061
 1      Committee report states there is evidence that
 2      Mr. Holmes is physically and mentally capable of
 3      performing the duties required of a judge at the
 4      Administrative Law Court.
 5                   And with respect to experience, the
 6      Committee recognized Mr. Holmes' good legal
 7      experience.
 8                   And finally with respect to judicial
 9      temperament, the Committee gave Mr. Holmes a good
10      rating in this category.
11                   I would note for the record that any
12      concerns raised during the investigation regarding
13      Mr. Holmes were incorporated into the questioning
14      of Mr. Holmes today.
15                   Mr. Chairman, I have no further
16      questions.
17                   PROF. FREEMAN:  Thank you, Ms. Coombs.
18                   Questions from the Commission?
19      Senator Ford.
20                   SEN. FORD:  A quick comment.
21                   Mr. Holmes, you've got to be
22      commended -- and I guess it's an open gesture -- to
23      give up a wonderful career to take on a public
24      service job.  But one thing I'm concerned about is
25      that you said you would be happy to leave
0062
 1      Charleston and come here.
 2                   MR. HOLMES:  I probably should clarify
 3      that.
 4                   SEN. FORD:  Please do.
 5                   PROF. FREEMAN:  Fast.
 6                   SEN. FORD:  And please don't relocate
 7      to Lexington.
 8                   SEN. KNOTTS:  I'm interested to hear
 9      where he's going to like to live the best.
10                   MR. HOLMES:  Actually, I was born in
11      Charleston and my family is from there.  But my
12      father after he finished medical school, moved to
13      Columbia.  So I grew up here, but I always fell
14      back to Charleston.  And I did want to move there
15      and I made every effort after law school to find
16      positions.
17                   SEN. FORD:  Now you want to leave us?
18                   MR. HOLMES:  Well, it's a function of
19      a number of things.  I don't want to leave, but I
20      look forward to living in Columbia and maintaining
21      my ties in the Charleston county area.
22                   REP. CLEMMONS:  Very diplomatic.
23                   PROF. FREEMAN:  Any other questions?
24      Senator Knotts.
25                   SEN. KNOTTS:  Mr. Holmes, where did
0063
 1      you go to school in Columbia?
 2                   MR. HOLMES:  I went to Snyder
 3      Elementary, Hand Junior, and Dreher High.  And then
 4      the University of South Carolina.
 5                   SEN. KNOTTS:  You probably went to
 6      school with me, I believe.
 7                   MR. HOLMES:  Could well have.
 8                   SEN. KNOTTS:  Probably at Hand.  But
 9      anyway, Mr. Holmes, how would you consider a good
10      work ethic as an administrative law judge?
11                   MR. HOLMES:  A good work ethic, I
12      believe, would be to be prompt in scheduling
13      hearings, familiarize yourself with pre-hearing
14      statements and issues that are being presented,
15      reviewing any discovery that was taken so when you
16      get into the courtroom, you know what the issues
17      are, and you know what the facts asserted by each
18      side are going to be.
19                   You conduct a hearing fairly, firmly,
20      and then try and not let too much irrelevant matter
21      come in, while at the same time allowing parties to
22      make sure they are getting through the points.
23                   And then issue rulings as promptly as
24      possible, which you usually find to be the case up
25      there at the courts, how they conduct their
0064
 1      business.
 2                   SEN. KNOTTS:  One more question.  It's
 3      just personal.  Was your first grade teacher
 4      Ms. Jane Durham?
 5                   MR. HOLMES:  My first grade teacher
 6      was a Ms. Smith, who's actually been my father's
 7      first grade teacher.  And Ms. Julia Henderson was
 8      my second grade teacher.
 9                   PROF. FREEMAN:  Any other questions?
10      Senator Ford.
11                   SEN. FORD:  You have been accustomed
12      in the Charleston area of relaxing on Thursdays and
13      Fridays, because judges can't be found.  What would
14      you consider a good work week for a judge?
15                   MR. HOLMES:  A good work week, I'm
16      prepared to go in Mondays through Fridays.  When I
17      started out, though, practicing in St. George, I
18      did enjoy their little custom of everybody shutting
19      down at noon on Wednesday and then went out with
20      their fishing poles.
21                   SEN. FORD:  You can't say that.
22                   SEN. KNOTTS:  You do understand --
23                   PROF. FREEMAN:  I would like to advise
24      you of your rights.
25                   SEN. KNOTTS:  You do understand that
0065
 1      this is not a Monday through Wednesday job?
 2                   MR.  HOLMES:  No.  They took Wednesday
 3      afternoons off, back on Thursday and Friday.
 4                   SEN. FORD:  Yeah, right.
 5                   PROF. FREEMAN:  Any other questions?
 6                   Mr. Holmes, we thank you for offering.
 7      We remind you that the record will remain open to
 8      receive additional evidence until publication of
 9      the Commission's report.
10                   The report will be delivered to
11      members of the general assembly on Thursday,
12      April 23rd, and will become final at noon on the
13      28th.  You may obtain commitments or pledges
14      starting at noon on April 28th.
15                   We thank you for offering as a
16      judicial candidate and wish you a safe trip back to
17      Charleston.
18                   MR. HOLMES:  Thank you, members of the
19      Commission.  Thank you.
20                   (Mr. Holmes exits the room.)
21                   (Off-the-record discussion.)
22                   (Mr. Lenski enters the room.)
23                   PROF. FREEMAN:  Good morning,
24      Mr. Lenski.
25                   MR. LENSKI:  Good morning, Professor.
0066
 1                   PROF. FREEMAN:  I want the record to
 2      reflect at this point that the chief reason why I'm
 3      sitting as the chair of this Commission here today
 4      is because of Senator McConnell's recusal.  Senator
 5      McConnell has direct supervisory authority over
 6      Mr. Lenski.
 7                   The Senate Judiciary Committee thought
 8      it would be an appearance of impropriety for him to
 9      take any part of this proceeding, and we honor his
10      request to be recused and we're moving forward.
11                   Phillip Lenski is before us today.
12      He's a candidate for the Administrative Law Court,
13      Seat 5.
14                   Please raise your right, Mr. Lenski.
15      Do you swear to tell the truth, the whole truth,
16      and nothing but the truth, so help you God?
17                   MR. LENSKI:  I do.
18                   PROF. FREEMAN:  The Judicial Merit
19      Selection Commission has thoroughly investigated
20      your qualifications for the bench.
21                   Our inquiry has focused on nine
22      evaluative criteria and has included a survey of
23      the bench and bar, a thorough study of your
24      application materials, verification of your
25      compliance with state ethics laws, a search of
0067
 1      newspaper articles in which your name appears, a
 2      study of any previous screenings, and a check of
 3      economic conflicts of interest.
 4                   We have received no affidavits in
 5      opposition to your election and no witnesses are
 6      present to testify.
 7                   Do you have anybody here with you
 8      today that you would like to introduce?
 9                   MR. LENSKI:  Yes, I do.  Thank you
10      very much.
11                   Ladies and gentlemen, I'd like to
12      introduce my fan club here today, my wife Laura and
13      my three sons.  Michael is my youngest boy, Jacob
14      is my oldest son, and Joseph is my middle son.
15                   PROF. FREEMAN:  Welcome to all of you.
16      I know you're very proud of Phillip and your
17      father.  And that's great.
18                   SEN. FORD:  Professor?
19                   PROF. FREEMAN:  Yes.
20                   SEN. FORD:  What are their names
21      again?
22                   MR. LENSKI:  My youngest son who's
23      sitting on his mother's lap is Michael.  Jacob is
24      my red-headed son, and Joseph is my middle one.
25                   PROF. FREEMAN:  Do you have any --
0068
 1      Phillip, do you have a brief opening statement that
 2      you'd like to make at this time?
 3                   MR. LENSKI:  No, I don't.  I'm very
 4      honored to be here today, and I can answer any
 5      questions that you have.
 6                   PROF. FREEMAN:  Thank you.  Please
 7      answer counsel's questions.
 8                   MR. WRIGHT:  Good morning, Mr. Lenski.
 9                   MR. LENSKI:  Good morning.
10                   MR. WRIGHT:  Mr. Chairman, members of
11      the Commission, I have a few procedural matters to
12      take care of.
13      BY MR. WRIGHT:
14             Q.    Mr. Lenski, 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 to your PDQ at this time?
18             A.    No, thank you.
19                   MR. WRIGHT:  At this time,
20      Mr. Chairman, I'd like to ask that Mr. Lenski's
21      personal data questionnaire be entered as an
22      exhibit into the hearing record.
23                   PROF. FREEMAN:  Without objection, it
24      will be entered into the record at this point.
25                   (EXH. 3, PDQ, was marked for
0069
 1      identification.)
 2      BY MR. WRIGHT:
 3             Q.    Mr. Lenski, you have before you the
 4      sworn statement you provided with detailed answers
 5      to over 30 questions regarding judicial conduct,
 6      statutory qualifications, office administration and
 7      temperament.
 8                   Is there any amendment you'd like to
 9      make at this time to your sworn statement?
10             A.    No.  I have no amendments to that.
11                   MR. WRIGHT:  At this time,
12      Mr. Chairman, I'd like to ask that Mr. Lenski's
13      sworn statement be entered as an exhibit into the
14      hearing record.
15                   PROF. FREEMAN:  Without an objection,
16      it will be done at this point in the transcript.
17                   (EXH. 3A, Sworn Statement, was marked
18      for identification.)
19                   MR. WRIGHT:  I note for the record
20      that based on the testimony contained in the
21      candidates PDQ, Mr. Lenski meets the statutory
22      requirements for this position regarding age,
23      residence and years of practice.
24      BY MR. WRIGHT:
25             Q.    Mr. Lenski, why do you now want to
0070
 1      serve as an Administrative Law Court judge?
 2             A.    Well, I've wanted to serve on the
 3      court or had an interest in serving on the court
 4      for a long time since 1995, when I first started
 5      practicing before the Administrative Law Court when
 6      I was an attorney with the Department of Insurance.
 7                   During that time I used to appear in
 8      front of the Administrative Law Court a good bit
 9      for agent licensing hearings and rate hearings.  At
10      the time I developed a real interest in
11      administrative law and the administrative process.
12                   Prior to that, I practiced mostly
13      criminal law when I was an attorney for the Army.
14      So my interest in administrative law was sparked by
15      appearing in front of the Administrative Law Court.
16                   Then I moved on to the Department of
17      Labor, Licensing and Regulations where, for six and
18      a half years, I did disciplinary actions against
19      various professionals, and appeared in front of the
20      Administrative Law Court again routinely for those
21      six and a half years.
22                   During that period of time, those
23      eight years that I appeared regularly in front of
24      the Administrative Law Court, I developed a very
25      strong interest in the court.  I studied
0071
 1      administrative law a great deal.  I learned a lot
 2      about it, and I always felt that I -- I thought if
 3      I had the opportunity to do so, I would like the
 4      opportunity.  I think I would be a good
 5      Administrative Law Court judge.
 6                   That's where my interest has developed
 7      and that's sort of how it came to this point where
 8      I have now applied as a candidate.
 9             Q.    Mr. Lenski, although you addressed
10      this in your sworn affidavit, can you please tell
11      the members of the Commission what you think is the
12      appropriate demeanor for a judge?
13             A.    Yes.  I believe in my -- I believe I
14      answered that question that I thought a judge
15      should be polite and patient.  A judge should be
16      dignified.
17                   To elaborate a little bit upon my
18      interview, I think that it's important that a judge
19      be polite to all the litigants and to those who
20      appear in front of him or her.
21                   I think it's absolutely important that
22      you show respect to those people that are coming
23      before you, both sides, everyone who's before you.
24      I think that's both your duty and your obligation.
25                   I think also that you have to be
0072
 1      patient.  I think that there's a tremendous amount
 2      that goes on in a hearing and people coming before
 3      judges who don't understand the process, who it's
 4      very foreign to them and new to them, and it's
 5      important that you understand that and you be
 6      patient with them and those who come before you.
 7                   It's also important that you
 8      demonstrate patience because by demonstrating that,
 9      both sides understand that you're trying to
10      understand the issue and that you're trying to be
11      fair to both sides.
12                   And then, finally, I think it's very
13      important that in addition to being patient and to
14      being fair, you also be -- that you also be
15      dignified because I think that it's important that
16      the courtroom be a place where people -- where
17      appropriate conduct is required and expected of all
18      those who appear in front of the court.
19                   And I think that as a judge, that's
20      your possibility to maintain the honor and dignity
21      of the courtroom.  And I think it's important for a
22      judge to show that in your demeanor as well.
23             Q.    Mr. Lenski, if elected, what would you
24      like your legacy to be as a judge on the
25      Administrative Law Court?
0073
 1             A.    Well, if I were to become an
 2      Administrative Law Court judge, I would like for my
 3      legacy to be known as a judge who was fair to all
 4      litigants that appeared before me, who was a very
 5      hard worker, who no one could ever say that I
 6      didn't work hard or that I didn't get my orders out
 7      quickly or that I was someone that they couldn't
 8      count on.
 9                   Of course, I want to be known as a
10      person who worked very hard to get my job done and
11      to do a very good job.  And also a judge who knew
12      the law and knew it well.  And when I made a
13      ruling, it was based on sound legal principles and
14      it followed the precedents for the case.  And that
15      it was a well-reasoned decision.
16             Q.    Thank you, Mr. Lenski.  I have a few
17      housekeeping issues.
18                   Have you sought or received the pledge
19      of any legislator prior to this date?
20             A.    I have not.
21             Q.    Have you sought or have you been
22      offered a conditional pledge or support of any
23      legislature pending on the outcome of your
24      screening?
25             A.    No, I have not.
0074
 1             Q.    Have you asked any third parties to
 2      contact members of the general assembly on your
 3      behalf?
 4             A.    No.
 5             Q.    Have you contacted any members of the
 6      Commission?
 7             A.    No.
 8             Q.    Do you understand that you are
 9      prohibited from seeking a pledge or commitment
10      until 48 hours after the formal release of the
11      Commission's report?
12             A.    Yes.  I understand the 48-hour rule.
13             Q.    Have you reviewed the Commission's
14      guidelines on pledging?
15             A.    I have.
16             Q.    Are you aware of the penalties for
17      violating the pledging rules, that it is a
18      misdemeanor and, upon conviction, the violator must
19      be fined not more than $1,000 or imprisoned not
20      more than 90 days?
21             A.    I am aware of that, yes.
22                   MR. WRIGHT:  I would note that the
23      Midlands Citizens Committee reported Mr. Lenski to
24      be a most highly qualified and a most highly
25      regarded candidate who would most ably serve on the
0075
 1      Administrative Law Court in an outstanding manner.
 2                   I would just note for the record that
 3      any concerns raised during the investigation
 4      regarding the candidate were incorporated in the
 5      questioning of the candidate today.
 6                   Mr. Chairman, I have no further
 7      questions.
 8                   PROF. FREEMAN:  Thank you very much,
 9      Mr. Wright.
10                   Any questions from Commission members?
11                   SEN. KNOTTS:  Mr. Chairman.
12                   PROF. FREEMAN:  Yes, sir, Senator
13      Knotts.
14                   SEN. KNOTTS:  Mr. Lenski, I know your
15      work ethic around here.  Would you continue to
16      carry that work ethic to the Administrative Law
17      Court Monday through Friday?
18                   MR. LENSKI:  Senator Knotts, I'm glad
19      you know my work ethic because I have always had
20      that work ethic which I believe that you -- that
21      when there's work to be done, it needs to get done.
22      I think over there just like over here there's work
23      to be done Monday through Friday all day long.  And
24      I will be over there Monday through Friday all day
25      long working.  You have my promise on that.  Yes,
0076
 1      sir.
 2                   PROF. FREEMAN:  Other questions,
 3      anybody?  Senator Ford.
 4                   SEN. FORD:  So who's going to do my
 5      runnings from now on?
 6                   MR. LENSKI:  We'll help you find
 7      somebody.
 8                   SEN. FORD:  I'm sure.
 9                   PROF. FREEMAN:  Anybody else?  There
10      are no further questions.
11                   I want to remind you, Mr. Lenski, that
12      the record will remain open until publication of
13      the Commission's report.
14                   The report will be delivered to
15      members of the general assembly on Thursday,
16      April 23rd, and will become final at noon on
17      April 28th.  You may obtain commitments or pledges
18      starting at noon on April 28th.
19                   We thank you for offering as a
20      candidate and bringing your beautiful family in,
21      and wish you very well.
22                   MR. LENSKI:  Thank you, sir.  Thank
23      you.
24                   (Mr. Lenski exits the room.)
25                   PROF. FREEMAN:  We've been going for a
0077
 1      while.  Can we take about a ten-minute break?
 2      Stand at ease.
 3                   (A recess was taken from 11:11 a.m. to
 4      11:26 a.m.)
 5                   (Ms. McMahan enters the room.)
 6                   PROF. FREEMAN:  Have a seat.
 7                   MS. McMAHAN:  Thank you.
 8                   PROF. FREEMAN:  We have before us
 9      Ms. Carol McMahan, a candidate for the
10      Administrative Law Court, Seat Number 5.
11                   Could you please raise your right
12      hand.  Do you swear to tell the truth, the whole
13      truth, and nothing but the truth, so help you God?
14                   MS. McMAHAN:  I do.
15                   PROF. FREEMAN:  Before we get into the
16      questioning, are there any folks you brought with
17      you that you'd like to introduce to us?
18                   MS. McMAHAN:  Yes, I would, thank you.
19      Today I brought my mother Elizabeth Crisp, my
20      stepfather Ted Crisp, and my daughter Brywn
21      Elizabeth.
22                   PROF. FREEMAN:  Thank you very much
23      for introducing us to those folks.
24                   The Judicial Merit Selection
25      Commission has thoroughly investigated your
0078
 1      qualifications for the bench.
 2                   Our inquiry has focused on nine
 3      evaluative criteria and has included a survey of
 4      the bench and bar, a thorough study of your
 5      application materials, verification of your
 6      compliance with state ethics laws, a search of
 7      newspaper articles in which your name appears, a
 8      study of any previous screenings, and a check for
 9      economic conflicts of interest.
10                   We have no affidavits filed in
11      opposition to your election and no witnesses are
12      present to testify.
13                   Do you have a brief opening statement
14      that you would like to make at this time?
15                   MS. McMAHAN:  Yes, I do.  Thank you so
16      much.  Good morning, Commission members, counsel,
17      and everyone present here today.
18                   I just want to start off with thanking
19      the Commission for allowing me to be a part of the
20      process.  It's an honor to be here.  I would like
21      to thank Mr. Deason and Ms. Shuler again for
22      answering all of the questions that I've had along
23      the way.
24                   As previously stated, my name is Carol
25      McMahan, and I'm here today seeking seat number 5
0079
 1      on the Administrative Law Court.  I would be an
 2      exceptional addition to that bench for three
 3      reasons.  First my experience, second my work
 4      ethic, and third my commitment to the law.
 5                   And just briefly, I'm not going to go
 6      into a lengthy analysis, hopefully you have that
 7      before you.  But since 19 -- in terms of
 8      experience, since 1996 I've zealously represented
 9      the Department of Revenue in many and a variety of
10      cases before the Administrative Law Court.
11                   I've also argued cases before the
12      Court of Appeals of the South Carolina Supreme
13      Court and appeared in Circuit Court as well.  The
14      cases -- the litany of cases involved are tax
15      assessment, under each type of tax, refunds,
16      contract issues involving taxes, disciplinary
17      matters involving those individuals that practice
18      before the Department of Revenue.
19                   I've also litigated cases involving
20      regulatory enforcement to include alcohol, bingo
21      and, years ago, video poker.
22                   Second, my work ethic.  You can see on
23      the pages before you that I'm a worker bee.  That I
24      move the cases.  I'm assigned the case and I either
25      move it to settlement, dismissal, or final
0080
 1      decision.
 2                   Third, my commitment to the law.  My
 3      commitment to the law can be seen -- you really
 4      can't see it if you analyze the record.
 5                   But in zealously representing the
 6      Department of Revenue, one's just not assigned a
 7      case and then carries it over to the Administrative
 8      Law Court.  When I've been assigned cases, I
 9      evaluate them based on the law, based on the
10      regulations.
11                   And if that does not support the
12      position taken, I'm in a position to recommend
13      dismissal or settlement.  And I do that on a good
14      many of cases, and have done that for many years.
15                   And my commitment to the community can
16      be seen in my various activities that I'm involved
17      in.  My commitment to my family and my commitment
18      to the country in being honorably discharged from
19      the United States Army many years ago.
20                   And finally my commitment, as I
21      stated, to the law, to what the general assembly
22      has enacted and the regulations that have followed
23      it.  Practicing before the Administrative Law
24      Court, I've evolved as the general assembly has
25      revised and amended the law.
0081
 1                   I've embraced those changes and
 2      incorporated those into the practice.  And one
 3      thing that -- one principle that I'm well aware of
 4      is that the Administrative Law Court is a creature
 5      of statute like other state agencies.  It only has
 6      the authority that the general assembly gives to it
 7      through the statutes.
 8                   That's what I bring -- that's what I
 9      would bring to the bench, a full understanding that
10      the general assembly makes the law.  And as an
11      administrative law judge, I apply the law.
12                   Thank you.
13                   PROF. FREEMAN:  Thank you,
14      Ms. McMahan.  Please answer any questions that
15      Dr. Deason has for you.
16                   MR. DEASON:  Mr. Chairman and members
17      of the Commission, I have a procedural matter to
18      take up with the candidate.
19      BY MR. DEASON:
20             Q.    Ms. McMahan, do you have your personal
21      data questionnaire before you --
22             A.    Yes, I do.
23             Q.    -- which was submitted as part of your
24      application?  Are there any amendments that you'd
25      like to make to it at this time?
0082
 1             A.    If I can just take a minute to look
 2      through the pages, and then I'll response to that.
 3             Q.    Okay.
 4             A.    I don't have any amendments that I'm
 5      aware of, but if I could just make sure that it's
 6      complete.
 7             Q.    Okay.
 8                   REP. CLEMMONS:  Mr. Deason, while
 9      she's looking at that, I point to you on number 13,
10      Ms. McMahan is a very well seasoned lawyer, but she
11      was not admitted to practice in 1896.  You might
12      want to fix that.
13             A.    I apologize for that.  It looks like
14      it is complete.  This is the PDQ that I submitted.
15             Q.    Okay.
16                   MR. DEASON:  Mr. Chairman, I'd ask
17      that Ms. McMahan's personal data questionnaire be
18      entered as an exhibit in the hearing record with
19      the noted amendment, the oral amendment that was
20      noted previously.
21                   PROF. FREEMAN:  That will be
22      corrected, and without objection it will be entered
23      into the record at this point in the transcript.
24                   (EXH. 4, PDQ, was marked for
25      identification.)
0083
 1      BY MR. DEASON:
 2             Q.    All right.  You also have before you,
 3      your sworn ethical statement you provided with
 4      detailed answers to over 30 questions regarding
 5      judicial conduct, statutory qualifications, office
 6      administration and temperament.
 7                   Are there any amendments that you'd
 8      like to make at this time to your sworn statement?
 9             A.    No, sir.  I have no amendments to this
10      sworn statement.
11                   MR. DEASON:  Now, Mr. Chairman, I'd
12      ask that Ms. McMahan's sworn statement be entered
13      as an exhibit into the hearing record.
14                   PROF. FREEMAN:  Without objection, it
15      will be done at this point in the transcript.
16                   (EXH. 4A, Sworn Statement, was marked
17      for identification.)
18                   MR. DEASON:  I would also like to note
19      for the record that based on the testimony
20      contained in the candidate's PDQ, which has been
21      included in the record with the candidate's
22      consent, Ms. McMahan meets the statutory
23      requirements for this position regarding age,
24      residence, and years of practice.
25             Q.    Ms. McMahan, why do you now want to
0084
 1      serve as an Administrative Law Court judge?
 2             A.    I would like to serve as an
 3      Administrative Law judge because I think I could
 4      serve this state very well based on my experience,
 5      as I previously stated, based on my work ethic, and
 6      based on my commitment to the law.  As I
 7      zealously -- zealous representation for the state
 8      translates into upholding zealously the judicial
 9      canon.
10                   And I believe first it would be a very
11      high honor to be elected to that position.  But
12      again, I believe my background and experience would
13      make me an exceptional judge.
14                   Thanks.
15             Q.    All right.  Although you addressed
16      this in your sworn affidavit, would you please tell
17      the members of the Commission what you think is the
18      appropriate demeanor for a judge.
19             A.    I think the appropriate demeanor for a
20      judge is to be patient, firm, listen to all
21      litigants, and be fair.
22             Q.    If given the opportunity to serve,
23      when you leave the bench, what would you like your
24      legacy to be as a judge in the Administrative Law
25      Court?
0085
 1             A.    I think my previous answer pretty much
 2      answers that question in this way:  I would like my
 3      legacy to be that people would say, She was fair
 4      and she applied the law to every litigant.  Not
 5      based on who the litigant was, but what the law
 6      stated.
 7             Q.    What suggestions would you offer for
 8      improving the efficiency of the court's docket?
 9             A.    In terms of the Administrative Law
10      Court docket?
11             Q.    Yes.
12             A.    I hate to parrot what other candidates
13      have said in various transcripts, but this one I
14      know is in there.
15                   Definitely one way to make the court
16      more efficient is through electronic filing of
17      pleadings, discovery scheduling.  Not only would it
18      be more efficient, it would certainly save money.
19      Not on the front end, but certainly as years went
20      by.
21                   Second, I think that one problem
22      that -- and it may not be a problem since I'm not
23      over there, I'm giving sort of a bird's eye view --
24      but oftentimes the -- well, the cases are set for
25      trial 30 days out at least.  And then the day
0086
 1      before as in many -- in any court, the cases are
 2      settled.
 3                   Then you have an empty courtroom that
 4      no one's using.  So maybe there's a way to manage
 5      the docket better so that you could have some other
 6      cases waiting and use that courtroom and not waste
 7      the space.
 8             Q.    All right.  Thank you.
 9                   And moving on to some housekeeping
10      matters, have you sought or received the pledge of
11      any legislator prior to this date?
12             A.    No, sir.  I have not.
13             Q.    Have you sought or have you been
14      offered a conditional pledge of support of any
15      legislator pending the outcome of your screening?
16             A.    No, sir.  I have not.
17             Q.    Have you asked any third parties to
18      contact members of the general assembly on your
19      behalf?
20             A.    No, sir.
21             Q.    Have you contacted any members of the
22      Commission?
23             A.    No, sir.
24             Q.    Do you understand that you are
25      prohibited from seeking a pledge or commitment
0087
 1      until 48 hours after the formal release of the
 2      Commission's report?
 3             A.    Yes, sir.  I do.
 4             Q.    Have you reviewed the Commission's
 5      guidelines on pledging?
 6             A.    Yes, sir.  I have.
 7             Q.    As a followup, are you aware of the
 8      penalty for violating the pledging rules, that is,
 9      it's a misdemeanor and, upon conviction, the
10      violator must be fined not more than $1,000 or
11      imprisoned not more than 90 days?
12             A.    Yes, sir.  I'm aware of that.
13                   MR. DEASON:  Mr. Chairman, the Upstate
14      Citizens Committee reported that no additional
15      information has been received that would alter
16      their report issued last fall, which indicated that
17      Ms. McMahan meets the qualifications as set forth
18      in the evaluative criteria, and determine that she
19      is well qualified for the position she seeks.
20                   I would also note for the record that
21      any concerns raised during the investigation
22      regarding this candidate were incorporated into the
23      questioning of the candidate today.
24                   I have no further questions.
25                   PROF. FREEMAN:  Thank you, Mr. Deason.
0088
 1      Questions from the Commission members, anybody?
 2                   You're getting a free pass today.  I
 3      think it's a tribute to your opening remarks which
 4      covered a lot of the waterfront that our questions
 5      would be covering.
 6                   MS. McMAHAN:  Thank you, sir.
 7                   PROF. FREEMAN:  I'd like to remind you
 8      that the record will remain open until publication
 9      of the Commission's report.
10                   And the report will be delivered to
11      the members of the general assembly Thursday,
12      April 23rd, and will become final at noon on
13      April 28th.  You may obtain commitments or pledges
14      starting at noon on April 28th.
15                   We thank you for offering as a
16      judicial candidate, for bringing your family in
17      with you.  I know they're very proud.  You did a
18      very nice job.  Thank you very much.
19                   MS. McMAHAN:  Well, thank you very
20      much.  I sincerely appreciate the opportunity to be
21      here today.  You all have a great day.
22                   SEN. KNOTTS:  Thank you.
23                   (Ms. McMahan exits the room.)
24                   (Off-the-record discussion.)
25                   (Ms. Robinson enters the room.)
0089
 1                   PROF. FREEMAN:  Thank you for getting
 2      over here early.
 3                   MS. ROBINSON:  Thank you.
 4                   PROF. FREEMAN:  We have before us
 5      Shirley C. Robinson, a candidate for Administrative
 6      Law Court, Seat 5.
 7                   Please raise your right hand.  Do you
 8      swear to tell the truth, the whole truth, and
 9      nothing but the truth, so help you God?
10                   MS. ROBINSON:  I do.
11                   PROF. FREEMAN:  The Judicial Merit
12      Selection Commission has thoroughly investigated
13      your qualifications for the bench.
14                   Our inquiry is focused on nine
15      evaluative criteria and has included a survey of
16      the bench and bar, a thorough study of your
17      application materials, verification of your
18      compliance with state ethics laws, a search of
19      newspaper articles in which your name appears, a
20      study of previous screenings, and a check for
21      economic conflicts of interest.
22                   We have received no affidavits in
23      opposition to your election, and no witnesses are
24      present to testify here today.
25                   Do you have a brief opening statement
0090
 1      that you would like to make at this time?
 2                   Ms. Robinson:  I do not, but I would
 3      like to thank the Committee for allowing me to
 4      appear before you once more.
 5                   PROF. FREEMAN:  Thank you very much.
 6      Please answer any questions that Ms. Coombs may
 7      have for you.
 8                   MS. COOMBS:  Good morning,
 9      Ms. Robinson.
10                   MS. ROBINSON:  Good morning.
11                   MS. COOMBS:  Thank you, Mr. Chairman.
12      BY MS. COOMBS:
13             Q.    Ms. Robinson, have you -- I believe
14      you have before you your personal data
15      questionnaire that you submitted as part of your
16      application.
17             A.    I do.
18             Q.    I believe we have a copy of the
19      amendments that you provided to us.
20             A.    Are they included with the packet?
21      Yes, this is it.
22             Q.    Are there any other amendments that
23      you would like to make at this time to your
24      personal data questionnaire?
25             A.    No.
0091
 1                   MS. COOMBS:  At this time,
 2      Mr. Chairman, I would like to ask that
 3      Ms. Robinson's personal data questionnaire and
 4      amendment be entered into the record as the next
 5      hearing exhibit.
 6                   PROF. FREEMAN:  Without objection, it
 7      will be done at this point in the transcript.
 8                   (EXH. 5, PDQ, was marked for
 9      identification.)
10      BY MS. COOMBS:
11             Q.    Ms. Robinson, you also have before you
12      your sworn statement with detailed answers to 30
13      questions regarding judicial conduct, statutory
14      qualifications, office administration and
15      temperament.
16                   Is there any amendment that you would
17      like to make at this time to your sworn statement?
18             A.    No, there is not.
19                   MS. COOMBS:  Mr. Chairman, I would ask
20      that Ms. Robinson's sworn statement be entered into
21      the record as the next hearing exhibit.
22                   PROF. FREEMAN:  Without objection, it
23      will be done at this point in the transcript.
24                   (EXH. 5A, Sworn Statement, was marked
25      for identification.)
0092
 1                   MS. COOMBS:  And I would like to note
 2      for the record that based on the testimony
 3      contained in Ms. Robinson's personal data
 4      questionnaire, that she meets the statutory
 5      requirements for this position regarding age,
 6      residence and years of practice.
 7      BY MS. COOMBS:
 8             Q.    Ms. Robinson, why do you want to serve
 9      as an Administrative Law judge?
10             A.    The reason is -- and I think I
11      previously told this Commission on previous
12      occasions why I do want to serve on that court.  I
13      currently work at the Department of Labor,
14      Licensing and Regulation serving as a hearing
15      advisor for the various boards.
16                   And in that capacity, I work with the
17      boards when they are conducting contested hearings
18      which is very similar in nature to the contested
19      hearings held before Administrative Law Court
20      judges.
21                   I believe that based upon my
22      experience that I'm qualified to do it, I like what
23      I do, I think I do a good job doing what I do.  And
24      I think that it's a -- just a natural progression
25      in my career to serve on the bench.
0093
 1             Q.    Although you address this in your
 2      sworn affidavit, would you please tell the
 3      Commission what you think is the appropriate
 4      demeanor of a judge.
 5             A.    I think that judges should be, above
 6      all, courteous to the individuals appearing before
 7      them.  But I think they should also be
 8      knowledgeable and that it should be known that
 9      they're knowledgeable of the law that they are
10      applying.
11                   But I think that you should never --
12      you should always show courtesy toward the
13      litigant.  You should always make them feel that
14      they are being fully heard, that you have their
15      undivided attention, and they are being treated
16      equally to the other party because there are going
17      to be two opposing parties.  But that they -- each
18      party is being felt that they're being treated
19      equally.
20             Q.    If elected, when you leave the bench,
21      what would you like for your legacy to be as an
22      Administrative Law judge?
23             A.    Well, if I'm fortunate enough to be
24      nominated by this Commission and elected by the
25      general assembly, I -- foremost I'd like my legacy
0094
 1      to be that some candidate who comes after me, who
 2      appeared before me, will use me as an example of
 3      the type judge that they would want to be.  And I
 4      would love for any individual appearing before me
 5      to go away feeling that they have been treated
 6      fairly, they received a full hearing, and that
 7      justice has been done win or lose.
 8             Q.    Thank you, Ms. Robinson.
 9                   Have you sought or received the pledge
10      of any legislator prior to this date?
11             A.    I have not.
12             Q.    Have you sought or have you been
13      offered a conditional pledge of support of any
14      legislator pending the outcome of your screening?
15             A.    No.
16             Q.    Have you asked any third parties to
17      contact members of the general assembly on your
18      behalf?
19             A.    I have not.
20             Q.    Have you contacted any members of this
21      Commission?
22             A.    I have not.  Except I think in the
23      application packet I did bring attention to the
24      fact that I was previously a candidate.
25                   When I withdraw from that race, I sent
0095
 1      all members of the general assembly a letter
 2      letting them know that I was withdrawing and that I
 3      did intend to run for the next available seat.  And
 4      that included all members, including those members
 5      that serve on this Commission.
 6             Q.    Do you understand that you're
 7      prohibited from seeking a pledge or a commitment
 8      until 48 hours after the formal release of the
 9      Commission's report?
10             A.    I'm aware of that rule.
11             Q.    Have you reviewed the Commission's
12      guidelines on pledging?
13             A.    I have.
14             Q.    Are you aware that violating the
15      pledging rules is a misdemeanor and, upon
16      conviction, a violator must be fined not more than
17      a thousand dollars or imprisoned not more than 90
18      days?
19             A.    I am aware of that.
20                   MS. COOMBS:  Mr. Chairman and members
21      of the Commission, I would note that the Midlands
22      Citizens Committee reported the following with
23      respect to Ms. Robinson.
24                   Constitutional qualifications,
25      Ms. Robinson meets the constitutional
0096
 1      qualifications for the judicial position she seeks.
 2                   With respect to ethical fitness, the
 3      Committee found -- stated persons interviewed by
 4      the Committee indicated that Ms. Robinson was
 5      considered highly ethical.
 6                   With respect to professional and
 7      academic ability, the Committee gave Ms. Robinson
 8      an excellent rating in this area.
 9                   With respect to character, the
10      Committee reported that Ms. Robinson's outstanding
11      character was unquestioned.
12                   With respect to reputation, the
13      Committee stated Ms. Robinson enjoys a most
14      outstanding reputation in the community and among
15      her peers.
16                   With respect to physical and mental
17      health, the Committee states there is no evidence
18      that Ms. Robinson is not physically and mentally
19      capable of performing the duties required of a
20      judge of the Administrative Law Court.
21                   With respect to experience, the
22      Committee recognized Ms. Robinson's outstanding
23      legal experience.
24                   And with respect to judicial
25      temperament, the Committee gave Ms. Robinson a most
0097
 1      outstanding rating in this category.
 2                   And the Committee summarized -- the
 3      Midlands Citizens Advisory Committee found
 4      Ms. Robinson to be a most highly qualified and
 5      highly regarded candidate who would most ably serve
 6      on the Administrative Law Court in an outstanding
 7      manner.
 8                   And I would note, Mr. Chairman, that
 9      any concerns raised during the investigation
10      regarding Ms. Robinson were incorporated into the
11      questioning of Ms. Robinson today.
12                   I have no further questions.
13                   PROF. FREEMAN:  Thank you, Ms. Coombs.
14      Any Commission member have any questions?  Senator
15      Knotts.
16                   SEN. KNOTTS:  Ms. Robinson --
17                   MS. ROBINSON:  Yes.
18                   SEN. KNOTTS:  -- I know you worked
19      over at the LLR a long time, and I know your work
20      ethic over there.  And it's been very, very, very
21      good.
22                   Will you carry that -- will you commit
23      to carry that work ethic with you to the
24      Administrative Law judge?
25                   MS. ROBINSON:  Of course.
0098
 1                   SEN. KNOTTS:  With a work week of
 2      Monday through Friday like you do now?
 3                   MS. ROBINSON:  I do.  I do.  I think
 4      that judges should be very industrious, and I don't
 5      think that parties should be kept waiting to know
 6      the outcome of any case that they have pending
 7      before the court.
 8                   SEN. KNOTTS:  I appreciate the job
 9      you've done at the LLR also.
10                   MS. ROBINSON:  Thank you.
11                   PROF. FREEMAN:  Any other questions
12      from Commission members?  Hearing none, I --
13      anybody?  It's an easy morning for you.  It comes
14      from having an excellent record too.
15                   MS. ROBINSON:  Thank you.
16                   PROF. FREEMAN:  I want to remind you
17      that the record will remain open until publication
18      of the Commission's report.
19                   The report will be delivered to
20      members of the general assembly on Thursday,
21      April 23rd, and will become final at noon on
22      April 28th.  You may obtain commitments or pledges
23      starting at noon on April 28th.
24                   We thank you for offering as a
25      judicial candidate, and wish you the very best.
0099
 1      Thank you.
 2                   MS. ROBINSON:  Thank you, and thank
 3      you again for letting me appear before you.
 4                   (Ms. Robinson exits the room.)
 5                   (Off-the-record discussion.)
 6                   (Mr. Zimmerman enters the room.)
 7                   PROF. FREEMAN:  Good morning,
 8      Mr. Zimmerman.
 9                   MR. ZIMMERMAN:  Good morning,
10      Professor Freeman.
11                   PROF. FREEMAN:  We're getting to you a
12      little earlier today and I appreciate you indulging
13      us by coming earlier.
14                   Lee W. Zimmerman is an Administrative
15      Law Court position candidate for Seat Number 5.
16                   I ask you to please raise your right
17      hand.  Do you swear to tell the truth, the whole
18      truth, and nothing but the truth, so help you God?
19                   MR. ZIMMERMAN:  I do.
20                   PROF. FREEMAN:  The Judicial Merit
21      Selection Commission has thoroughly investigated
22      your qualifications for the bench.
23                   Our inquiry has focused on nine
24      evaluative criteria and has included a survey of
25      the bench and bar, a thorough study of your
0100
 1      application materials, verification of your
 2      compliance with state ethics laws, a search of
 3      newspaper articles in which your name appears, a
 4      study of previous screenings, and a check for
 5      economic conflicts of interest.
 6                   We have received no affidavits in
 7      opposition to your election, and no witnesses are
 8      present here to testify today.
 9                   Did you have a brief opening statement
10      that you would like to make at this time?
11                   MR. ZIMMERMAN:  Yes, I do.  I think
12      it's important for me in this case to make a short
13      statement.  I'm probably a little bit different
14      than most of the people you've talked to in the
15      last two days or three days.
16                   I am not a native South Carolinian.  I
17      did not go to law school at the University of South
18      Carolina.  I did not go to undergraduate at South
19      Carolina.  I'm a transplant here, arrived in the
20      year 2000.
21                   But I want to answer for you a
22      question that's been asked of me throughout nine
23      years here, which is you're not from around here,
24      are you?
25                   I grew up in Cincinnati, Ohio,
0101
 1      received a Congressional appointment at the United
 2      States Air Force Academy when I graduated from high
 3      school, spent four years in Colorado Springs, went
 4      on and got a master's degree through the Air Force.
 5      I met my wife at the University of Pittsburgh.  My
 6      future wife at the University of Pittsburgh.  I
 7      went to navigator training.
 8                   I was a navigator in the Air Force for
 9      three years, and I realized that there wasn't a
10      whole lot of future for navigators with new
11      electronic and satellite navigation systems.
12                   The Department of Defense had a
13      program to send career officers back to law school.
14      I went to law school at the University of Colorado
15      because I really liked Colorado, and then I spent
16      12 years as a JAG officer in the Air Force.
17                   My last assignment was in Texas, and
18      my wife received a PhD while in Texas.  And as she
19      remembers it, although I don't exactly remember it
20      the same way, she said that I got the first 20
21      years and she got the next 20 years.
22                   So when I retired from the Air Force
23      in 1993, we moved where she got her job.  And that
24      was at the University of Buffalo, Buffalo, New
25      York.
0102
 1                   So we moved to Buffalo, New York in
 2      1993.  She had a job at the University of Buffalo.
 3      I was just out of the Air Force, had no connections
 4      at all in Buffalo, knew no one there.
 5                   So I went through the rounds of
 6      applying to law firms and state agencies, and
 7      finally got on with the state agency, the
 8      Department of Environmental Conservation in New
 9      York.  I was working in what they call an inactive
10      hazardous waste site program.  Superfund basically.
11                   I was in a position that a woman had
12      before me who left after about eight years to go
13      take a job in Washington.  However, it was at the
14      time that Governor Pataki was elected, and I was
15      hired after his election and before he was
16      installed in his office.
17                   And when he was installed in office,
18      he said that everybody who got hired after he was
19      elected would be dismissed.
20                   So I spent a short period of time
21      working in that position.  I got on -- luckily I
22      got on with an environmental consulting firm there
23      in Buffalo who had a number of government
24      contracts.
25                   They had a woman who was on maternity
0103
 1      leave in their legal department, so I was hired a
 2      short time there.  It was supposed to be for six
 3      months.  I think I was there for about 14 months.
 4      Finally she was back, business had gone down, and I
 5      was laid off.
 6                   Once again, luckily there was a
 7      position open as a hearing officer for the State --
 8      New York State Department of Social Services.  So I
 9      was on the list.  Since I had been laid off or
10      fired by the state a few years earlier, I was on
11      the preferred hire list for that job.
12                   So I became a hearing officer for the
13      State of New York.  New York does not have an
14      Administrative Law Court such as South Carolina.
15      It's basically, I think, what the old hearing
16      officer program was here in South Carolina.
17                   So I conducted what they called their
18      fair hearings throughout the counties in western
19      New York, going into the county, having the county
20      Department of Social Services explain the adverse
21      action they took against someone receiving
22      temporary benefits, welfare, food stamps, Medicare.
23                   I did that for two years.  It was a
24      scheduled 20 cases a day, maybe 50 percent of the
25      people showed up for their hearing.  We had
0104
 1      hearings one day and wrote our draft decisions the
 2      next day.  And so I did that for two years.
 3                   Then finally a position in the
 4      environmental -- back again in DEC became available
 5      in New York, and I transferred to do environmental
 6      work there.  I spent two years in the Buffalo
 7      office of the State Department of Environmental
 8      Conservation, mainly being an enforcement officer
 9      under violations.  I would talk to the program
10      people, help them draft the notice of violation,
11      and then go to the violator and try to work out an
12      agreement on how they would correct their
13      violations and what penalty they would pay.
14                   In the meantime, in 1999 I decided to
15      run for the local suburban school district, the
16      school board of education, which I did.  I was
17      elected.  And the board in my first year on,
18      elected me as vice president of the school board in
19      Williamsville, New York.
20                   As things go, we were going along
21      pretty well, and then my wife got offered a job at
22      the University of South Carolina in the library
23      school.  So it didn't take us long to decide
24      that -- to leave Buffalo and come to South
25      Carolina.  She came here in January of 2000.
0105
 1                   I once again knew no one here, went
 2      through contacting law firms, state agencies and
 3      signed up to take the bar exam, which I did in July
 4      of 2000.
 5                   I stayed in New York.  Our children
 6      were in college at that point.  I stayed in New
 7      York and continued to work at the DEC and studied
 8      for the bar exam.  Took the bar in around September
 9      of 2000.
10                   The separation was too much, so I came
11      to South Carolina with no job.  Interestingly --
12      and maybe fate had it -- when I was here taking the
13      bar exam in July, there was an advertisement in The
14      State Newspaper that weekend for the Safety-Kleen
15      Corporation, who I knew a little bit about, but not
16      much, advertising for an environmental lawyer.  I
17      responded to that ad.
18                   When I got down here, I found out I
19      passed the bar exam.  I called the general counsel
20      for Safety-Kleen, and they hired me as a contract
21      lawyer, I think, for about six months.
22                   I became a full-fledged member of
23      their legal department, handling mainly their --
24      they were already in bankruptcy when I was hired
25      and dealing mainly with resolving environmental
0106
 1      violations that they had in the State of New
 2      Jersey.
 3                   Also I worked on the Pinewood
 4      Hazardous Waste Landfill.  I was on the team that
 5      negotiated with DHEC as far as how to make sure
 6      that the Pinewood facility was closed according to
 7      the law and regulations, and how it would be taken
 8      care of for the next hundred years, which I think
 9      we were very successful at doing.  Although the
10      annuity was with AIG.  So I think that that part of
11      AIG is still viable.
12                   Safety-Kleen, as part of their
13      reorganization, moved their corporate headquarters
14      to Dallas, Texas.  I had already lived in Dallas,
15      Texas for four years, I had no reason to go back to
16      Dallas, Texas.
17                   But while I was at Safety-Kleen, I
18      worked with McNair Law Firm, as well as other law
19      firms in town.  I talked to them and was hired in
20      July of 2000 at McNair Law Firm working in their
21      regulatory branch, and have been very happy.
22                   My wife has been successful here.
23      Last year she was appointed as the associate dean
24      for academic affairs for the graduate school at
25      USC.  I've been very happy at McNair and we have
0107
 1      lived here longer than anywhere else we've ever
 2      lived since we've been married, and we intend to
 3      stay.
 4                   So that's how I got here.  That's my
 5      answer that sort of prevents you from going to
 6      lunch right away, but I thought it was important to
 7      tell you a little bit about my background.
 8                   PROF. FREEMAN:  Thank you, and we
 9      appreciate that.  Please answer any questions that
10      Ms. Shuler has for you.
11                   MS. SHULER:  Mr. Chairman, members of
12      the Commission, I have a few key procedural matters
13      to take care of with Mr. Zimmerman.
14      BY MS. SHULER:
15             Q.    Mr. Zimmerman, you have before you
16      your personal data questionnaire you submitted as
17      part of your application.
18                   Are there any amendments that you
19      would like to make at this time to your PDQ?
20             A.    No.  I reviewed this last night.  The
21      only amendment is, we bought a new car a couple of
22      weeks ago.  So I guess my financial statement -- I
23      have the same amount of assets.  I just have a
24      little bit more debt.  But besides that, everything
25      is correct.
0108
 1                   MS. SHULER:  At this time,
 2      Mr. Chairman, I would ask that Mr. Zimmerman's PDQ
 3      be entered as an exhibit into the record.
 4                   PROF. FREEMAN:  Without objection, it
 5      will be entered into the record at this point.
 6                   (EXH. 6, PDQ, was marked for
 7      identification.)
 8      BY MS. SHULER:
 9             Q.    Mr. Zimmerman, you also have before
10      you the sworn statement providing detailed answers
11      to over 30 questions regarding judicial conduct,
12      statutory qualifications, office administration and
13      temperament.
14                   Are there any amendments you would
15      like to make at this time to your sworn statement?
16             A.    I know I was very careful when I
17      prepared this.  And I have -- I guess I've spent
18      more than $42 now on postage stamps.  It's probably
19      $84, but that's the only change there.
20                   MS. SHULER:  Mr. Chairman, at this
21      time I would like to offer Mr. Zimmerman's sworn
22      statement and his oral amendment concerning the
23      increased postage amount as part of the hearing
24      record.
25                   PROF. FREEMAN:  Without objection, it
0109
 1      will be entered into the record at this point in
 2      the transcript.
 3                   (EXH. 6A, Sworn Statement, was marked
 4      for identification.)
 5                   MS. SHULER:  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, Mr. Zimmerman
 9      meets the statutory requirements for this position
10      regarding age, residence and years of practice.
11      BY MS. SHULER:
12             Q.    Mr. Zimmerman, after practicing law
13      for 28 years, why do you now want to serve as a
14      judge on the Administrative Law Court?
15             A.    A very good question.  Before I do
16      that, let me make a correction.  I notice that
17      there's an e-mail here that I had sent to
18      Ms. Shuler at the end of March that did amend my
19      PDQ.  So there is an amendment.
20                   MS. SHULER:  I would like to offer
21      that e-mail that Mr. Zimmerman sent to me as an
22      amendment to his PDQ as part of the record at this
23      time.
24                   MR. ZIMMERMAN:  It was just
25      supplementing that I have an account at Wachovia
0110
 1      Bank.  But most of my banking is done through
 2      Pentagon Federal Credit Union in Virginia.
 3                   PROF. FREEMAN:  That amendment will be
 4      made at this point in the transcript.
 5                   MS. SHULER:  And just to clarify, we
 6      require candidates to submit a letter from their
 7      banker.
 8                   And sometimes some of the bigger banks
 9      will not submit a letter saying that the candidate
10      has an account in good standing.  They just list
11      the checking account and the checking account
12      balance.
13                   So I asked Mr. Zimmerman to follow up
14      with another bank to give us a letter in good
15      standing.  And that's the result of his amendment.
16                   MR. ZIMMERMAN:  Probably the second
17      most asked question of me is, Why do you want to be
18      an ALJ, which first came from my wife and then from
19      some of the other lawyers at the Administrative
20      Law -- at McNair.
21                   And I thought long and hard about it.
22      And it's not -- I'm probably also not the typical
23      candidate that even would say, Well, I've been
24      thinking about being a judge since I was in law
25      school, because I think that judgeship is a
0111
 1      pinnacle of a legal career.  I never really felt
 2      that way.
 3                   But as I got into McNair, which was
 4      the first private firm I've ever been with, I enjoy
 5      what I do and I'm busy and I think, you know, I do
 6      my job well there.
 7                   I realize that in the private practice
 8      of law, you spend a lot of time researching and
 9      doing things for days and weeks on end, and it
10      results maybe in a settlement, or a lawsuit, or
11      something that maybe it's an important case, but
12      you're not doing what I consider to be something
13      important every day.
14                   And I think an Administrative Law
15      judge does something important every day; important
16      to the legal system, important to state government,
17      important to the people that appear before you in
18      the Administrative Law Court.
19                   I'm at the stage of my career where
20      that's what I want to do.  I want to do something
21      important every day.
22                   Most of my career since arriving at
23      the Air Force Academy and looking at a regulation
24      that told me how to fold my underwear or roll my
25      socks and put them in a drawer, has been working
0112
 1      with regulations and statutes.
 2                   I think that I recognize the
 3      importance in the way a government runs by statutes
 4      and regulations.  I think of the importance to the
 5      citizens of the state of the Administrative Law
 6      Court.
 7                   I tell people -- and a lot of them
 8      disagree with me -- but I think except for maybe
 9      the decisions out of the State Supreme Court, the
10      decisions that the Administrative Law Court makes
11      impacts more citizens in South Carolina than the
12      decisions of any other court.
13                   We've got big environmental cases, we
14      have tax cases, we have inmate cases.  It's the
15      court where the average citizen, when they feel
16      grieved by state agency decisions, has the right to
17      come and expect a fair hearing.  A full and fair
18      hearing, and a full and fair decision by the judge.
19      And that's important.
20                   I've represented mom and pop
21      convenience stores before the ALJ.  I've
22      represented small farmers who wanted to start a
23      poultry farm before the ALJ.  And those cases are
24      important to those people.
25                   I think that the Administrative Law
0113
 1      Court is their main line to get justice from a
 2      state agency, and I think it's important.
 3                   So, a long answer to your question.
 4             Q.    Thank you.  I note that you're a
 5      licensed attorney in three states, Colorado, New
 6      York, and South Carolina, and that you have an LLM
 7      in environmental law.
 8                   Can you explain to the Commission how
 9      you feel your legal and professional experience
10      thus far will assist you to be an effective
11      Administrative Law Court judge?
12             A.    Well, as I said, for my career, I have
13      been interpreting statutes and regulations, arguing
14      cases based on statutes and regulations.
15                   I think the experience in different
16      state systems, as I explained in New York, where
17      they don't have Administrative Law Court hearing
18      officers.  Colorado, I never really practiced.  I
19      was licensed in Colorado because I went to law
20      school in Colorado.  I didn't really practice law
21      in Colorado except on military installations.
22                   But it's still knowing how a state
23      agency works.  I think it's important -- I think
24      more important than my education or my -- where
25      I've been admitted, is just the fact that I've been
0114
 1      dealing with different state agencies throughout my
 2      career, state and federal agencies throughout my
 3      career.
 4                   And I think that experience lets me
 5      see it from the agency side, since I was an agency
 6      attorney in New York.  But also being in-house
 7      counsel at Safe-Kleen and being with the McNair Law
 8      Firm, allows me to see the side from businesses and
 9      representing small convenience store owners or
10      farmers.  It allows me to see it from that angle.
11                   So I think it's all, you know, an
12      accumulation of 58 years to get me where I am
13      today.
14             Q.    Thank you.  Mr. Zimmerman, although
15      you address this in your sworn affidavit, will you
16      explain to the Commission members what you believe
17      to be the appropriate demeanor for a judge?
18             A.    I think the most important is, the
19      judge needs to remember it's the judge that sets
20      the example for everyone in the courtroom.  So his
21      demeanor or her demeanor is important because the
22      people who are there take their cue from the
23      judge's demeanor.
24                   So I think patience, listening,
25      understanding but being firm when necessary, to not
0115
 1      allow the courtroom to get out of control.  It's
 2      important.
 3                   So I think probably patience,
 4      understanding, listening would be sort of the
 5      hallmarks of the demeanor of a judge.
 6             Q.    Thank you.  Mr. Zimmerman, if you're
 7      selected to the Administrative Law Court, what
 8      would you like your legacy to be known for when you
 9      leave the court?
10             A.    I guess a good man, a fair judge,
11      someone who fairly applied the law and gave fair
12      hearings to those people who came before me.
13             Q.    Thank you.  Mr. Zimmerman, I think
14      that you really answered this in your opening
15      statement, but do you have anything additional that
16      you would like to add to explain the reason for
17      changing your legal positions when you left the Air
18      Force from 1993 to 2000, anything additional?
19             A.    I think I explained it in the opening
20      statement.  I'd like to -- my agreement with my
21      wife as far as I got the first 20 years and she got
22      the second 20, because I now understand what she
23      went through for those 20 years when I was moving
24      around in the Air Force and she was put into those
25      positions where she did not know anybody and had to
0116
 1      go to school districts and try to get a job at the
 2      local school district.
 3                   That was the position I was in in New
 4      York and, you know, I took what was available.  And
 5      when I felt something was more in line with what my
 6      background experience called for, I went into a new
 7      job.
 8             Q.    Thank you.  Mr. Zimmerman, I'd like to
 9      cover some housekeeping issues with you.
10                   Have you sought or received the pledge
11      of any legislator prior to this day?
12             A.    I have not.
13             Q.    Have you sought or have you been
14      offered a conditional pledge of support of any
15      legislator pending the outcome of your screening?
16             A.    I have not.
17             Q.    Have you asked any third party to
18      contact members of the general assembly on your
19      behalf?
20             A.    I have, but I've explained to them
21      about the 24-hour rule and they -- they couldn't do
22      it until May 5th and I guess that has now changed
23      to April 28th.
24             Q.    Right.  Have you contacted any members
25      of the Commission?
0117
 1             A.    I have not.
 2             Q.    Do you understand that you are
 3      prohibited from seeking a pledge or commitment
 4      until 48 hours after the formal release of the
 5      Commission's report and, as you just said, it is
 6      now noon on April 28th?
 7             A.    I understand.
 8             Q.    Have you reviewed the Commission's
 9      guidelines on pledging?
10             A.    I have.
11             Q.    Are you aware of the penalty for
12      violating the pledging rules, that is, it's a
13      misdemeanor and, if convicted, you will be fined
14      not more than a thousand dollars or imprisoned not
15      more than 90 days?
16             A.    Yes.
17                   MS. SHULER:  I would note that the
18      Midlands Citizens Committee found Mr. Zimmerman to
19      be a highly qualified and a highly regarded
20      candidate who would most ably serve on the
21      Administrative Law Court.
22                   I would just note for the record that
23      any concerns raised during the investigation
24      concerning Mr. Zimmerman were incorporated into his
25      questioning today.
0118
 1                   Mr. Chairman, I have no further
 2      questions for Mr. Zimmerman.
 3                   PROF. FREEMAN:  Thank you, Ms. Shuler.
 4                   Questions from the Commission members?
 5      Yes, Senator Knotts.
 6                   SEN. KNOTTS:  Thank you,
 7      Mr. Zimmerman, for wanting to serve as an
 8      Administrative Law judge.
 9                   Can you tell me when your wife's 20
10      years is up, so we'll know whenever -- that you're
11      not going to be just up and gone?  I know exactly
12      what you're going through, but --
13                   MR. ZIMMERMAN:  We haven't discussed
14      who gets the next 20 years after her 20 years.
15                   SEN. KNOTTS:  Who do you think's going
16      to get the next 20 years, whoever's got the best
17      job?
18                   MR. ZIMMERMAN:  No.  I think we'll
19      make that decision jointly.  But we are very happy
20      in South Carolina.  I've been welcomed here.  I
21      know being with McNair has helped me in the legal
22      community with connections that they have.
23                   My first day at McNair, Governor
24      McNair came into my office and sat down and talked
25      to me for 45 minutes just to find out about me.
0119
 1      And that's sort of the reception that I've gotten
 2      from most people that I've met in South Carolina.
 3                   I'm retired from the Air Force.  We
 4      live right outside the gate of Fort Jackson.  I
 5      took up golf five years ago.  And we don't know of
 6      a better place to live.  So I think we're going to
 7      stay here for a long time.
 8                   SEN. KNOTTS:  Now, since you brought
 9      up the fact that you took up golf, do you intend to
10      work five days a week as an Administrative Law
11      judge or are you going to have an afternoon off
12      every week?
13                   MR. ZIMMERMAN:  No.  I will
14      definitely, you know, put in my five or six or
15      seven days a week.  I usually work six days a week
16      now, and you do what's necessary.
17                   SEN. KNOTTS:  Thank you.
18                   PROF. FREEMAN:  Any other questions
19      from the members of the Commission?  Senator Ford.
20                   SEN. FORD:  Since I've been on this
21      Commission, every candidate talks about the same
22      demeanor of a judge.  And that sounds good when
23      you're a candidate.
24                   With your experience, what causes
25      judges, once they're on the bench, to change their
0120
 1      demeanor?  And would that happen to you?
 2                   MR. ZIMMERMAN:  Well, I don't know if
 3      judges change --
 4                   SEN. FORD:  Oh, yes, sir.  I've been
 5      before 43 judges.
 6                   MR. ZIMMERMAN:  -- from what they say
 7      to what they do.  Maybe a change of what they say.
 8                   But I think the demeanor -- me
 9      personally, the demeanor you see today is the same
10      demeanor I have had since my parents raised me back
11      in Cincinnati.  It's the same demeanor I will
12      probably have for the rest of my life.
13                   And I think that --
14                   SEN. FORD:  But nothing would cause
15      you to change your demeanor?
16                   MR. ZIMMERMAN:  I don't think so.  It
17      takes a lot for me to get very upset.
18                   SEN. FORD:  Not a prosecutor?
19                   MR. ZIMMERMAN:  A prosecutor getting
20      me upset?
21                   SEN. FORD:  Yeah.
22                   MR. ZIMMERMAN:  No, I'm a judge.
23                   SEN. FORD:  A lawyer?
24                   MR. ZIMMERMAN:  (Shakes head.)
25                   SEN. FORD:  What about a detective
0121
 1      from Lexington County?
 2                   MR. ZIMMERMAN:  No.  You know, one of
 3      the positions I had in the Air Force is, I was
 4      chief military justice at the Air Force Academy and
 5      also at Eielson Air Force base in Alaska.  I
 6      prosecuted cases there.  I worked with military
 7      police, security police as they're called in the
 8      Air Force, with the Office of Special Investigation
 9      investigators.  A big murder case that I had when I
10      first became a lawyer in Colorado Springs was being
11      investigated by El Paso County detectives.  I had a
12      good relationship with them.  FBI agents.  My
13      son-in-law is a captain in the Air Force as a
14      special agent with the Office of Special
15      Investigations.
16                   So I can get along with them.  I got
17      along with people at Safety-Kleen.  I got along
18      with the county Department of Social Services
19      workers that I was there critiquing their work.
20      And whether it was a decision for or against them,
21      I think I had their respect and I respected them.
22                   SEN. FORD:  So what we see now would
23      be a Judge Zimmerman?
24                   MR. ZIMMERMAN:  I hope so.
25                   PROF. FREEMAN:  Any other questions
0122
 1      from members of the Commission?
 2                   Well, let me thank you for offering
 3      for this position.  And I want to remind you that
 4      the record will remain open until publication of
 5      the Commission's report.
 6                   The report will be delivered to the
 7      members of the general assembly on Thursday,
 8      April 23rd, and will become final on noon on
 9      April 28th.  You may obtain commitments or pledges
10      starting at noon on April 28th.
11                   And with that, we thank you for
12      offering for this judicial opening and appreciate
13      your comments here today.
14                   MR. ZIMMERMAN:  Thank you.  And I'd
15      like to thank the Commission for all the hard work
16      you do in this position.
17                   SEN. FORD:  Do you know what you have
18      to do now as a candidate?
19                   MR. ZIMMERMAN:  I'm sorry?
20                   SEN. FORD:  Do you know what you have
21      to do now as a candidate?
22                   MR. ZIMMERMAN:  Well, I have to wait
23      to see whether I'm nominated or not.
24                   SEN. FORD:  Okay.  Let's say if you
25      were a candidate --
0123
 1                   MR. ZIMMERMAN:  I've been over to the
 2      State House, down to the parking garage, shaking
 3      hands and going to the receptions and everything
 4      like that, you know.  So yes, sir.
 5                   REP. CLEMMONS:  Governor McNair is his
 6      golfing buddy.  He's explained the situation.
 7                   SEN. FORD:  Okay.
 8                   MR. ZIMMERMAN:  Thank you.
 9                   PROF. FREEMAN:  Let's take a
10      two-minute break.  When we resume, we will be in
11      executive session.  Let's make it five minutes.
12                   (A recess was taken from 12:21 p.m. to
13      12:25 p.m.)
14                   PROF. FREEMAN:  Let's go into
15      executive session.  Is there any objection to that?
16      I don't think we need a motion.
17                   (The members went into Executive
18      Session at 12:25 p.m.)
19                         *  *  *  *  *
20   
21   
22   
23   
24   
25   
0131
 1                   (The members came out of Executive
 2      Session at 12:32 p.m.)
 3                   PROF. FREEMAN:  Okay.  We're out of
 4      executive session.  Is there a motion that we find
 5      each of these candidates qualified?
 6                   SEN. FORD:  So moved.
 7                   PROF. FREEMAN:  Second?
 8                   MR. SELLERS:  Second.
 9                   PROF. FREEMAN:  Any discussion?  All
10      in favor say "aye."
11                   (Members respond.)
12                   PROF. FREEMAN:  Opposed?  Nobody says
13      no.
14                   Now the issue is voting.  Shall we
15      take them one of at a time?
16                   MS. SHULER:  Who has a proxy to vote?
17                   REP. CLEMMONS:  I do.
18                   MS. SHULER:  So really all that
19      qualifies has to be nine votes then.
20                   PROF. FREEMAN:  Tell me, why would
21      there be nine?
22                   MS. SHULER:  Senator McConnell recused
23      himself.
24                   PROF. FREEMAN:  Oh, that's right.
25      Okay.  That's right.
0132
 1                   MS. SHULER:  So we only have nine
 2      votes today.
 3                   PROF. FREEMAN:  Okay.  We'll start
 4      with Ms. Edwards.  All in favor of finding Latonya
 5      Edwards qualified and nominated, raise your right
 6      hand.
 7                   MS. SHULER:  One, two, three, four,
 8      five -- seven.
 9                   PROF. FREEMAN:  Christopher Holmes,
10      all in favor of finding him qualified and
11      nominated, raise your right hand.
12                   MS. SHULER:  Are you voting on proxy?
13                   REP. CLEMMONS:  I'm voting myself
14      and for --
15                   PROF. FREEMAN:  Phillip Lenski, all in
16      favor of finding him qualified and nominated.
17                   MS. SHULER:  Eight.
18                   PROF. FREEMAN:  Carol McMahan, all in
19      favor of finding her qualified and nominated.
20                   Shirley Robinson, all in favor of
21      finding her qualified and nominated.
22                   MS. McLESTER:  Shirley Robinson.
23                   REP. CLEMMONS:  And I'm voting two.
24                   PROF. FREEMAN:  Lee Zimmerman, all in
25      favor of finding him qualified and nominated.
0133
 1                   MS. SHULER:  Okay.  So we had seven,
 2      eight, five.
 3                   PROF. FREEMAN:  The nominees -- we've
 4      got three nominees, majority votes, because we have
 5      one recusal.  So there are nine votes being counted
 6      here.
 7                   Number one is Mr. Lenski with eight
 8      out of nine, Latonya Edwards seven out of nine, and
 9      Shirley Robinson five out of nine.  They will be
10      put forward as nominated.
11                   MS. SHULER:  That's everything.
12                   PROF. FREEMAN:  Thank you for coming
13      today and helping me out.
14                   MR. HARRELL:  Fantastic job,
15      Professor.
16                   MS. McLESTER:  You're doing a great
17      job.
18                   MS. SHULER:  Everyone pass their
19      ballots up and pass their comment sheets up.  Thank
20      you.
21                   (The proceeding concluded at
22      12:35 p.m.)
23   
24   
25   
0134
 1   
 2                    CERTIFICATE OF REPORTER
 3   
 4           I, Sonia I. Mendez, Court Reporter and Notary
        Public for the State of South Carolina at Large, do
 5      hereby certify:
 6           That the foregoing proceedings were taken
        before me on the date and at the time mentioned on
 7      page 1 and the proceedings were recorded
        stenographically by me and were thereafter
 8      transcribed under my direction; that the foregoing
        transcript as typed is a true, accurate and
 9      complete record of the proceedings to the best of
        my ability.
10   
             I further certify that I am neither related to
11      nor counsel for any party to the cause pending or
        interested in the events thereof.
12   
             Witness my hand, I have hereunto affixed my
13      official seal this 20th day of April 2009, at
        Columbia, Richland County, South Carolina.
14   
15   
16   
17   
                     ____________________________________
18                   Sonia I. Mendez,
                     Court Reporter, Notary Public
19                   State of South Carolina
                     at Large.
20                   My Commission expires
                     March 23, 2017.
21   
22   
23   
24   
25   
0135
 1   
                             I N D E X
 2   
 3      CANDIDATE                                     Page
 4      LATONYA EDWARDS                               30
 5      CHRISTOPHER McGOWAN HOLMES                    47
 6      S. PHILIP LENSKI                              65
 7      CAROL I. McMAHAN                              77
 8      SHIRLEY C. ROBINSON                           88
 9      LEE W. ZIMMERMAN                              99
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                          E X H I B I T S
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                                                      Page
12   
        1                                             31
13   
        1A                                            33
14   
        2                                             49
15   
        2A                                            50
16   
        3                                             68
17   
        3A                                            69
18   
        4                                             82
19   
        4A                                            83
20   
        5                                             91
21   
        5A                                            91
22   
        6                                             108
23   
        6A                                            109
24   
25