Indicates Matter Stricken
Indicates New Matter

The House assembled at 10:00 A.M.

Deliberations were opened with prayer by the Chaplain of the House of Representatives, the Rev. Dr. Alton C. Clark as follows:

Eternal Father, we stand before You with heads bowed in reverence to show that You are our sovereign God upon Whom we depend. As we move into the schedule of this day with You by our side, we do not pray for easy lives, but that we may be stronger persons. We do not pray for tasks equal to our ability, but for ability equal to our tasks. We do not pray for simple solution to complex problems, but rather that You would show us the next step. So help us to work with such a measure of courage and wisdom that at the day's end it may be said: "Well done, good and faithful servant."

All day long enable us to say in confidence: "God is our Refuge and Strength." (Psalm 46:1a) Amen.

Pursuant to Rule 6.3, the House of Representatives was led in the Pledge of Allegiance to the Flag of the United States of America by the SPEAKER.

After corrections to the Journal of the proceedings of yesterday, the SPEAKER ordered it confirmed.

TO:             The Clerk of the Senate
The Clerk of the House
FROM:     James H. Hodges, Chairman

Judicial Screening Committee
DATE:     February 3, 1994

In compliance with the provisions of Act No. 119, 1975 S.C. Acts 122, it is respectfully requested that the following information be printed in the Journals of the Senate and the House.

Respectfully submitted,
/s/Rep. James H. Hodges, Chairman
/s/Senator Glenn F. McConnell, Vice Chairman
/s/Senator Thomas L. Moore
/s/Senator Edward E. Saleeby
/s/Senator John R. Russell
/s/Rep. M. O. Alexander
/s/Rep. Donald W. Beatty
/s/Rep. C. Lenoir Sturkie

The Screening Process

Pursuant to Act No. 119 of 1975 and Act. No. 181 of 1993, this Committee has considered the qualifications of candidates seeking election to the positions of Chief Justice of the South Carolina Supreme Court, Judge of the Tenth Judicial Circuit, Judge of the Family Court of the Sixth Judicial Circuit, Seat Number 2, and Administrative Law Judge, Seat Nos. 1, 2 and 3. In addition, the Committee was called upon to screen the Honorable Thomas B. Barrineau, Jr., for continued service as a retired judge.

The Judicial Screening Committee is charged by law to consider the qualifications of candidates for the Judiciary and Judge of the Administrative Law Judge Division. When notice is received that an individual intends to seek election or reelection to one of these positions, the Committee conducts a thorough investigation of the candidate. The Committee's investigation includes a review of the candidate's scholastic, employment, and financial history and, in particular, focuses on the candidate's adherence to a strong code of ethical behavior, be it to the Rules of Professional Conduct governing the attorneys practicing in South Carolina, the Code of Judicial Conduct regulating the activities of all judges in South Carolina, or the more generally accepted, but unwritten, rules of fairness and respect which should govern interaction between all of this state's citizens.

While Act 119 restricts this Committee to making findings of qualification or non-qualification, the Committee views its role to also include the obligation to consider candidates in the context of the position to which, if they are elected, they will serve and, to some degree, govern. To that end, this Committee has inquired as to the quality of justice delivered in the hearing and court rooms of South Carolina and has sought to impart, through its questioning, the view of the public it represents as to matters of judicial temperament, concern for an informed Bench and Administrative Law Judge, and the absoluteness of the Judicial Canons as to recusal for conflict of interest, prohibition on ex parte communication, and the disallowance of the acceptance of gifts. The Committee has also sought to impart its view that good temperament is an essential quality of a judge. Justice can surely prevail when a judge is courteous to litigants and lawyers alike. The Committee reiterates its displeasure with those candidates who strain the no pledging rule so as to come to the Committee with a "lock," albeit an informal one, on a judgeship. The Committee weighs heavily such activity in determining compliance with the screening and ethics legislation and, hence, the qualification of a candidate.

The Committee's report includes the Transcript of the Proceedings before the Screening Committee on January 12 and January 13, 1994. The Transcript does not include all exhibits offered by candidates or witnesses at the hearing because of the length of some exhibits. Exhibits which are not reproduced as a part of the Transcript may be viewed in the Office of the Judicial Screening Committee (Room 211 of the Gressette Building), since these exhibits were reviewed and considered by the Committee in making its findings.

THE CHAIRMAN:     I am going to call the Committee to order. This Screening Committee is pursuant to Act 119 of 1975 requiring a review of the candidates for judicial office. The function of the Committee is not to chose between candidates, but rather to declare whether or not the candidates who offer for positions on the bench are in our judgement qualified to fill the positions.

The inquiry which we undertake is a thorough one. It involves a complete personal and professional background check on every candidate. The candidate is investigated by the South Carolina Law Enforcement Division including court records. A Statement of Economic Interest is required. We receive a credit report. We receive reports from the Board of Commissioners on Grievances and Discipline with respect to attorneys and judges who are offering and from the Board of Commissioners on Judicial Standards with respect to sitting judges. The candidate's Personal Data Questionnaire details the personal history and professional experience and contains five letters of reference.

We are here today for the purpose of screening for the following vacancies:     First, the Chief Justice of the Supreme Court; following that, the Circuit Court for the Tenth Circuit, and following that, the Family Court for the Sixth Circuit, Seat 2, and then after that, the Administrative Law Judge Division, Seats 1, 2 and 3.

As I stated first on our agenda today is Chief Justice of the South Carolina Supreme Court. The only applicant that we have is Judge Archie Lee Chandler and the position is Chief Justice of the South Carolina Supreme Court.

Justice Chandler, I see you're seated in front of us. If you would please, would you raise your right hand.
ARCHIE LEE CHANDLER, having been duly sworn, testified as follows:
THE CHAIRMAN:     Your last screening was March 12th, 1992 when you were reelected Associate Justice of the South Carolina Supreme Court; is that correct?
JUSTICE CHANDLER:     Yes, sir. For a 10-year term.
THE CHAIRMAN:     And have you had a chance to review the Personal Data Questionnaire, the Personal Data Summary that we provided?
JUSTICE CHANDLER:     Yes, sir.
THE CHAIRMAN:     Is that correct?
JUSTICE CHANDLER:     Yes.
THE CHAIRMAN:     Does it require any type of clarification at all?
JUSTICE CHANDLER:     Not any that I know of.
THE CHAIRMAN:     Is there any objection to making the Summary a part of the record of your sworn testimony?
JUSTICE CHANDLER:     None whatsoever.
THE CHAIRMAN:     That being so, if we would make that a part of the transcript.

1.     Archie Lee Chandler
Home Address:                         Business Address:
103 Woodland Drive                 P. O. Box 9
Darlington, SC 29532             Darlington, SC 29532

2.     He was born in Orangeburg, South Carolina on December 16, 1922. He is presently 71 years old.

4.     He was married to Martha Nell Wilkins on December 30, 1945. He has one child:     Mrs. Robert Wilson Rouse (Jane Wilkins Chandler), age 46, presently a housewife and teacher of French at College of Charleston.

5.     Military Service:     Entered active service in the United States Army on May 31, 1943, as a Private, Serial No. 14115954; promoted to Private First Class and Corporal; Honorably Discharged August 7, 1944, to accept commission as Second Lieutenant, Infantry, Serial No. 0 547 369; Honorably Relieved on August 29, 1946, because of Demobilization after World War II, with Rank of First Lieutenant

Entered service in the South Carolina National Guard in 1946 as First Lieutenant, Infantry; transferred to Coast Artillary and promoted to Captain and Battery Commander, 678 AAA AW; Honorably Separated in 1954.

6.     He attended The Citadel, September 1939 - January 1940, (left due to lack of finances); George Washington University, January 1940 - June 1940, (left to return to The Citadel); The Citadel, September 1940 - May 1943, (left to enter active military service); George Washington University, January 1950 - August 1950, graduated, A.B., Political Science; the University of South Carolina Law School, September 1946 - November 1947, admitted to Bar.

8.     Legal/Judicial education during the past five years:
He has attended more than the minimum required hours of JCLE each year.

9.     Courses taught or lectures presented:
He has taught a class on Evidence at the Law School twice each year for the past four or five years and has taught Evidence at Bridge the Gap. He has also lectured at conferences of the South Carolina Trial Lawyers, South Carolina Defense Trial Lawyers, the South Carolina Bar, and at various CLE seminars. He has twice prepared and presided at the program of the annual Judicial Conference.

12.     Legal experience since graduation from law school:

Since admission to the Bar, his experience as an attorney has been as an active trial lawyer in Civil and Criminal Courts, State and Federal. His practice included pleading, preparing and trying of cases. As a Circuit Judge, he presided over Civil and Criminal Courts and, additionally, performed assigned administrative duties.

As an Associate Justice of the Supreme Court, his responsibility is to prepare opinions assigned to him and, equally, to participate in the decisions reached in opinions assigned to other members of the Court. Additionally, the Supreme Court is responsible for motions and writs of supersedeas as petitioned for by members of the Bar.

13.     Rating in Martindale-Hubbell:     Judges are listed but not rated in Martindale-Hubbell. His rating for 1976, his last year as an attorney, was "AV."

20.     Judicial Office:

He was elected to the South Carolina Circuit Court, with his term beginning in September, 1976, and at the end of his term in 1982, was reelected to the Bench, his term ending in 1988. As Circuit Judge, he had general jurisdiction as per the South Carolina Constitution and South Carolina statutes.

He was elected to the South Carolina Supreme Court on May 9, 1984, to fill the vacancy created by retirement of Chief Justice J. Woodrow Lewis. He was appointed for the remaining eight years of Associate Justice Littlejohn's term, upon his election as Chief Justice. He was reelected to a full ten-year term in 1992.

21.     Five significant Orders or Opinions Written:
(a)         McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985) (concurring opinion).
(b)         Hunter Bros. Systems, Inc. v. Brantly Const. Co., Inc., 286 S.C. 59, 332 S.E.2d 206 (1985).
(c)         Nichols v. S. C. Research Auth., 290 S.C. 415, 351 S.E.2d 155 (1986).
(d)         City of Abbeville, et al. v. Aiken Elec. Co-op, Inc., et al., 287 S.C. 361, 338 S.E.2d 831 (1985).
(e)         Bailey, et al. v. The State of S. C. and Aiken Co., et al., ___ S.C. ___, 424 S.E.2d 503 (1992).

22.     Public Office:

Darlington County Attorney, appointed by Legislative Delegation, January 1, 1963 - February 15, 1973

South Carolina House of Representatives, elected, 1973-1976

Florence-Darlington TEC Commission, appointed by Legislative Delegation, April 1962 - January 1973

South Carolina ETV Commission, appointed by Governor, 1961 - 1972

Darlington County Development Board, appointed by Legislative Delegation, 1964 - 1968

32.     Sued:     He was initially included as a Party-Defendant in an action for an accounting. Subsequently, he was dismissed as a Party-Defendant and the action proceeded against the other parties.

45.     Bar Associations and Professional Organizations:
Darlington County Bar Association; South Carolina Bar Association; American Bar Association

46.     Civic, charitable, educational, social, and fraternal organizations:
Darlington Chamber of Commerce; St. Matthews Episcopal Church; Darlington Men's Dance Club; Darlington Country Club; Palmetto Club, Columbia; American Legion; Veterans of Foreign Wars

48.     Five letters of reference:
(a)         Charles A. Hardin, Vice President
South Carolina National Bank
P. O. Box 515, Darlington, SC 29532
393-4076
(b)         Thomas E. McCutchen, Esquire
McCutchen, Blanton, Rhodes & Johnson
P. O. Drawer 11209, Columbia, SC 29211-1209
799-9791
(c)         Morrell L. Thomas, Jr., Publisher
The News and Press
P. O. Drawer 513, Darlington, SC 29532
393-3811
(d)         J. D. Todd, Jr., Esquire
Leatherwood, Walker, Todd & Mann
P. O. Box 87, Greenville, SC 29602-0087
242-6440
(e)         John M. Wilson, M.D.
Wilson Clinic and Hospital
P. O. Box 510, Darlington, SC 29532
395-1100

2.     Positions on the Bench:
September 26, 1976 - May 30, 1984; South Carolina Circuit Court; Fourth Judicial Circuit
May 31, 1984 - present; Associate Justice, South Carolina Supreme Court

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have ever been filed against you. Judicial Standards Commission has no record of reprimands against you.

The records of the applicable law enforcement agencies:     The Darlington County Sheriff's Department reports are negative; the Darlington City Police Department reports are negative; SLED and FBI records are negative. The Judgment Rolls of Darlington County, they appear to be negative. There is some record of federal court cases that appeared to involve, I believe, your judicial function?
JUSTICE CHANDLER:     That's correct.
THE CHAIRMAN:     There are four civil cases in which you were named as a defendant. Three of those were alleged violations of Civil Rights against you, you and multiple defendants. I presume that was in your capacity as -- in your judicial capacity?
JUSTICE CHANDLER:     That's correct, and they were dismissed.
THE CHAIRMAN:     And one was dismissed in 1986, according to our records, one was filed in 1991 and is still pending and one was dismissed in 1990 with a judgment for you against the plaintiff --
JUSTICE CHANDLER:     That's correct.
THE CHAIRMAN:     -- being entered in 1991.
JUSTICE CHANDLER:     That's correct.
THE CHAIRMAN:     The final action alleged a violation of due process under the 14th Amendment and it was dismissed in 1986. Okay. There -- we have received one complaint and one witness I understand is present to testify today, Ms. Satterwhite?
MS. SATTERWHITE:     (Nods in the affirmative).
THE CHAIRMAN:     Justice Chandler, I'm now going to turn the matter over to Mr. Elliott for questions.
MR. ELLIOTT:     Mr. Chairman, before we start, it's been customary for the Committee to take a motion to leave the record open as to all candidates. Would you want to do that at this time?
SENATOR MOORE:     So moved.
THE CHAIRMAN:     Senator Moore moves to leave the record open for all candidates who are being screened today. Representative Alexander seconds that motion. All in favor aye. Opposed, no. The ayes have it. Mr. Elliott, you may proceed.
JUSTICE CHANDLER - EXAMINATION BY MR. ELLIOTT:
Q.     Good morning.
A.     Good morning.
Q.     If I don't speak loudly enough, please let me know.
A.     I will.
Q.     Or if there is any document that you need that I have, please let me know and we'll provide it. Justice Chandler, you'll have a relatively short tenure on the bench as Chief justice, is it -- but is there a special project or special program or something you have had a burning desire to do through these years that you'd like to initiate or try to accomplish during that tenure?
A.     Mr. Elliott, I'd like to answer that in two ways. I gave a lot of thought to whether I would offer for this short time. I'm aware of the mandatory retirement age and I gave a lot of thought to that because I didn't want the General Assembly to be placed into unnecessary elections and that sort of thing. I didn't want the fact that it would be an honor for me to outweigh other considerations and I'm sincere when I tell you, I really gave a lot of consideration as to whether I would do it or not.

I talked with some people who I felt would tell me what they really thought rather than what I might want to hear and the consensus was unanimous that I would do it. And so I gave some weight to that inquiry that I made.

As to the other part of your question, I would have to say that I know that some things that I have on my mind cannot be accomplished in this short period of time, but I know just as well as that there are some things that I -- I'm real concerned about because I'm really interested in and were my term longer than it is, I would have more follow-up capability.     As it is, I would like to let the rest of my Court know about two or three things that I hope will be pursued. They are not really exciting type things, but they are things that in house go to making I think the system better and in the end, the public benefits.

One of the things that is plaguing the court system is case backlog and that's continuing to this day and anything that we can do to make the movement of cases more efficient is what we ought to do. I happen to be chairman of what we call the Ad Hoc Rules Committee that was the one some ten years ago that drew up and recommended to the Legislature and the Court approved the Civil Rules -- the Rules of Civil Procedure for the Circuit Court.

We've continued that committee at the request of Ex-chief Justice Littlejohn, to sort of be a screening mechanism when people want to make changes in the Rules, so we've stayed in place and one of the things that we're doing this year and next week will be presented to Chairman Hodges of the House Judiciary Committee and Chairman Williams of the Senate as required by the Constitution is a very significant change in one of our Rules. Now this is not an exciting activity, but it's very important.

It's a rule known as Rule 40(C)3 and we have recommended basic changes in that rule which we think is helpful to the Bar and to the Bench and to the movement of cases. I'm very interested in it and I can have some follow-up on that even in my short time. I'm very interested in that.

Then there is another undertaking that we are -- have gotten into which is a draft of a recommended rule of evidence. We lawyers know the difference between the Civil Procedure Rules and the evidence rules. We just -- until we got the Civil Rules -- the Rules of Civil Procedure into a packaged book, we dealt with hundreds of statutory provisions and all. That's been accomplished and the lawyers and the judges now can go right to that book. We want to recommend to the Supreme Court and then ultimately to the General Assembly, a set of Rules of Evidence as to what is admissible in court and what is not admissible.

We have some archaic Rules of Evidence that impede the trial of cases and in some cases really prevent as much disclosure as there ought to be. On the other hand -- and so the guide that we are going by -- and we're in that undertaking now, and the guide that we're going by is the Federal Rules of Civil Procedure. I mean the Federal Rules of Evidence. That doesn't mean that we are adopting the Federal Rules of Evidence.

We start with that as the guide and we will use their numbering system. It makes it easier for lawyers just -- for instance in the Civil Rules, they can go to the same number in the Federal and in the State rules now. Senator McConnell knows a good bit about that because I had to deal with him when we presented those rules. Had to answer some questions.

But we want to do that and we're not adopting the Federal Rules of Evidence, but we use that as a guide. We have some situations in South Carolina that just don't lend themselves to doing the Federal, but we will essentially be following the Federal Rules of Evidence. We hope to have that done.

Justice Toal is the head of that and she believes that we can have it done by the time of my retirement, that we would be in a position to have the Court approve it and then under the constitutional provisions take it over here. And that's a very, very important undertaking.

Another matter that I am concerned about is the extent, and I emphasize now the word extent, to which some attorney advertising is going. The United States Supreme Court -- and that's final. The United States Supreme Court has decreed that advertising can be practiced by members of the Bar. I do not read that decision, however, to go nearly as far as some of the advertising that I've seen, Walt Disney type quips and that sort of thing.

I don't want to say too much more about that, but our Court is actually looking into and other states have now acknowledged that the Supreme Court said you can do it, but now has it gone too far. And Iowa, particularly, and Florida are right now in the throes of looking into that and I want to look into that. I think that when advertising goes beyond a cut out point, then I think it's highly counterproductive to the Bar and to the stirring up of unnecessary litigation, et cetera, so I'm very interested in that.

I'm also interested in having a chance maybe possibly to sit down with the leadership -- the appropriate leadership in this area to say just exactly why we may need funding that the present Chief Justice, say, is requesting. I've been through all the Chairs. I don't mean that in any immodest way. I've practiced law for 29 years and then I was a circuit judge for eight and now I've been this for nine and I have been through Chairs and been able to see the viewpoint of Bench and Bar and ultimately the public. And I would like to have the -- my two cents worth as to some problems that we've really got that are borne of my experience. So those are some of the things that I would take my short time and work very hard at.
Q.     Thank you. One other question, being a Justice of the Court is a very time consuming and difficult job and you're noted for being very deliberate and thorough and giving great effort to achieve the correct result in a decision. How do you balance all that and the time pressures with the additional administrative duties you or any other chief justice face?
A.     Well, I would -- I'm sure the Lord delivered me with some deficits, but one of the pluses I got was a strong body and a workhorse attitude in my -- this is subjective. I'm talking about myself now.

There is sitting in this audience today, I see a person who is formerly on the South Carolina State Development Board and he was a vital cog in the local development -- industrial development and I was a country lawyer in Darlington, South Carolina and got involved as the Chairman of the local development board to go out and get industry and that's a job onto itself and we did it in two years. Got four premium, major industries and I just worked, I guess, around the clock. I just happened to see him sitting here. He knows about this.

The chief justice, if he's -- if he seeks this position, he knows ahead of time that he has added responsibilities and you'll see the Chief Justice staying at his desk and in his office after hours after the others have gone home. And you will see Mr. Rosen from Court Administration and Propes and those in his office and this happens to me in my office and you just take it, and I don't mean to be misunderstood in saying this, but the honor of being Chief Justice is a pretty good impetus to make you work hard for it.
Q.     Thank you. I don't have any other questions, Mr. Chairman.
THE CHAIRMAN:     All right, Mr. Elliott. Members of the Committee, any questions for Justice Chandler? Hearing none, thank you, Justice Chandler. We do have another witness. If you would stay with us, we'll ask you to return --
A.     All right.
THE CHAIRMAN:     -- if you wish to and --
A.     I will stay.
THE CHAIRMAN:     Thank you.
A.     Thank you, Mr. Chairman, and Members of the Committee.
THE CHAIRMAN:     Mr. Alexander Paul, would you come forward, please, sir.
MR. PAUL:     Where do you want me?
THE CHAIRMAN:     To this seat right -- that Justice Chandler was in. Thank you very much. Mr. Paul, please raise your right hand.
ALEXANDER PAUL, having been duly sworn, testified as follows:
THE CHAIRMAN:     Mr. Paul, let me tell you a little bit about the process that we'll use. We will -- Mr. Elliott will ask you some questions. We do have your complaint on record and all the Committee members have that and he will ask you some questions about the allegation you raised in your complaint.

As a matter of course, we leave the record open, so that if there are things that we hear that we want to further investigate, we have the ability to go back and do that at a later time, so Mr. Elliott will ask you some questions right now. Try if you can to condense your summary if you want to get into a summary of events after Mr. Elliott finishes his questioning, try if you can to condense it into a reasonable time frame because we do have other complaints we need to hear and we do have the power and the ability to go back and further investigate if we think that it is necessary.
MR. PAUL:     I think mine will be very short.
THE CHAIRMAN:     All right. Thank you.
MR. PAUL - EXAMINATION BY MR. ELLIOTT:
Q.     Your complaint with Justice Chandler relates to a lawsuit in which you were the defendant; is that correct?
A.     That's correct. In part.
Q.     All right. Let's get to the other part in just a minute. Let's first establish the lawsuit that you're talking about that generates part of your complaint against Justice Chandler. As I understand, that is a lawsuit brought against you in September of 1989 by a C.R. Cribb and Vacie Cribb; is that correct?
A.     That is correct. That is Alexander Paul and Darlington County.
Q.     Both as defendants?
A.     Correct.
Q.     In that suit, the plaintiffs were in part seeking to have a dirt road across your property declared as an easement to their benefit; is that correct?
A.     Right through my barnyard. That is correct.
Q.     And you contested that?
A.     Yes, sir.
Q.     Darlington County also as a defendant in that suit essentially agreed to the plaintiffs' claims; is that correct?
A.     Say that again.
Q.     The Defendant Darlington County in that lawsuit that even though they were the defendant, they essentially agreed to the claims made by the plaintiff in the sense that they agreed that the road was public and ought to be -- remain opened and that the County agreed to maintain that road; is that correct?
A.     Some of the representatives from Darlington County did, but the Darlington County did not itself I don't think agree with the decision, no, it did not.
Q.     All right. Well, let's get --
A.     We're talking -- we're talking about a County Council and so forth.
Q.     All right. Let's come to that in just a minute. We'll come back to that and I understand what you're saying. I'm just right now trying to establish a chronology of events, what the lawsuit was about and the procedure, the history that the case went through.

Then around November 12th, 1990, Woodrow Lewis sitting as a Special Master issued an order in your case in which he ruled for the plaintiffs, is that correct, and found the easement for the benefit of the Cribbs across your property; is that correct?
A.     That is correct.
Q.     Thereafter you appealed; is that correct? You appealed the Master -- Special Master's decision, his order, you appealed to the Supreme Court?
A.     With the assistance of an attorney.
Q.     Yes, sir. That's correct. I mean that is correct, you appealed --
A.     I wanted the point -- I wanted that to be clear.
Q.     And then October 12th, 1993, the Supreme Court affirmed the Special Master's order; is that correct?
A.     Upheld.
Q.     They upheld it. And Justice Chandler did not participate in that decision; is that correct?
A.     At that particular time, no.
Q.     Then you petitioned for a rehearing -- petitioned the Supreme Court for a rehearing; is that correct, sir?
A.     That is correct.
Q.     And at that point in time about, let's see, December 7th of 1993, the Supreme Court rejected or denied your petition for rehearing and Justice Chandler participated in that decision; is that correct?
A.     I was granted rights to proceed -- proceed with the -- for the petition for rehearing, that is correct.
Q.     And then there was a ruling on that petition and your petition was actually denied and no rehearing granted; is that correct?
A.     That is correct.
Q.     And that was a unanimous decision? There were five justices that signed that order and Justice Chandler was one of them; is that correct?
A.     That is correct.
Q.     As I understand your complaint, part of your complaint against Justice Chandler relates to a conflict of interest; is that correct?
A.     That is correct.
Q.     What's the nature of that conflict of interest as it arises out of this lawsuit?
A.     Justice Chandler was a former Darlington County -- attorney for Darlington County. Justice Chandler was a former law partner with an attorney involved in this case pending before the courts at that time. I think that was a conflict of interest.
Q.     Do you know how long ago it was that Justice Chandler was --
A.     I think that's irrelevant. I don't know.
Q.     If it was 18 years, do you think that that is sufficient time -- passage of time that Justice Chandler ought to be able to sit on one of these cases and participate?
A.     I don't think time has anything to do with it.
Q.     Your opinion is that he's forever barred once he's associated in the practice of law with an attorney from ever sitting as a judge on that case?
A.     In -- in this particular type case, yes.
Q.     How is this -- when you say this particular type of case, how is that different from any other case?
A.     Well, he was an attorney for Darlington County. He was in the law firm with John Milling. It's common knowledge in Darlington County.
Q.     All right, sir.
A.     And I can remember things very clearly when I was a child, so these things are not forgotten.
Q.     But in essence what you're saying is because Justice Chandler was at one point in time in the practice of law with John Milling who represented the plaintiffs in this lawsuit against you that he should not have participated in any decision against you; is that correct?
A.     That's one reason, yes. That is one strong reason.
Q.     Well, what's your other -- you have another complaint and it seems to me that it relates to his relationship or his practice as Darlington County attorney; is that correct?
A.     Yes.
Q.     Okay.
A.     His practice as a Darlington County attorney, but first of all, let us think in these terms, it's been ringing ever since this case has been brought up and ever since he's considered the position -- this prestigious position for Chief Justice of South Carolina, why would he be asking why this position can do so much for me instead of what I can do while I serve in this position. And that's very important to me with crime going on as it is today in our land. It's ridiculous and it's totally unacceptable.
MR. MOORE: Mr. Chairman, if I may?
THE CHAIRMAN:     Senator Moore.
SENATOR MOORE:     Sir, I'm trying -- Mr. Paul, I'm trying to follow your complaint. If you can tell -- you say that's one of the reasons that Justice Chandler participated in the rehearing denial. Are there any others parts in your complaint specifically? I'm trying to read through it as you talk. I don't see anything else. What else? You say that's one part of your complaint. Is there other specific comments as far as the complaint?
A.     Yes, to me, Justice Chandler has demonstrated in his track record does not respect the Constitutional rights of the citizens of this state and that being under the 5th Amendment and in my particular case, and I think it's very clear and pointed out very clearly that he does not respect the Constitutional rights.
MR. ELLIOTT:     So you --
SENATOR MOORE:     Mr. Chairman?
THE CHAIRMAN:     Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q.     What specifically are you speaking in regards to his demonstration? That he participated in the denial of the rehearing or what are you pointing to specifically?
A.     Well, how can he participate in the denial of my rehearing excepting that he had knowledge of everything that was in the case. Or if he did not have knowledge, then he should not have participated and if he had done these things, he should not -- if he did do these things, then he should not have participated anyway.
Q.     And then I suppose that's what you're telling us that specifically in your affidavit, you point to the fact that he participated in the denial of the rehearing and that's what you base your complaint upon?
A.     That's a broad statement, but I assume that that would be --
Q.     Well, I'm reading from your affidavit. Is there anything else specifically that Justice Chandler has demonstrated or participated in that leads to your conclusion other than his participation in the denial of the rehearing? Is there something specifically other than that in reading your affidavit? I can't find it and I'm asking you.
A.     I don't know if I know exactly how to answer your question and I'm --
Q.     I'm not an attorney, so I'm not trying to trick you.
A.     I'm a farmer from Darlington County and I'm a fellow that hadn't been in a barber's chair for 24 years. If I can't cut it myself, my wife helps me. Okay. To have this road and this property to pay for it.
Q.     All right, sir.
A.     I've never been to the beach and been swimming. And then have this property just taken from me and me believing in the Constitution of the United States. Did you also read what is happening across the other parts of the state? That was in the information that I sent. It has landowners, ranchers, farmers throughout this country baffled at what's happening.
MR. ELLIOTT:     Mr. Paul --
A.     I have lost -- I don't know why I have to say it, but it's just plumb unthinkable to me.
THE CHAIRMAN:     Mr. Paul, let's -- and let's try to focus again on this specific case and, Mr. Elliott -- Senator, I'm sorry, were you finished with your questioning?
A.     I want to be -- I'm -- if I'm not respectful, I want to be okay.
Q.     You haven't been disrespectful.
THE CHAIRMAN:     No, you have not --
A.     Please help me to be respectful, but help me to get my point across.
THE CHAIRMAN:     Let me see if I can help, Mr. Paul, and we're just trying to channel this into the form that we have here today. As I understand the nature of your specific complaint, it is that Justice Chandler through his relationship with this attorney that you referred to and his prior represent -- or his prior relationship and his prior representation of Darlington County as County attorney that that in your judgment should have disqualified him from participating in your case, is that fair to say?
A.     I'm in the thinking that Justice Chandler flexed his prestigious position in not ruling against a former chief justice himself. I knew that was against me and I believe that that stands true. Senator Lewis was a former chief justice himself.
THE CHAIRMAN:     All right, Mr. Elliott?
A.     But that doesn't -- that is no reason to disrespect the Constitution. What do we base our beliefs upon if we don't base it upon the Constitution?
RE-EXAMINATION BY MR. ELLIOTT:
Q.     Mr. Paul, I understand what you're saying about the constitutional issue. Your complaint in that regard is not just specific to Justice Chandler, is it? I mean you would have the same complaint against Woodrow Lewis who is a special master who ruled against you, would you not?
A.     I do, but when you get 84 sometimes you consider it.
Q.     And then the other justices of the Supreme Court that denied your petition for rehearing and the other four who actually affirmed the appeal from the Special Master, you'd have the same complaint against them, would you not?
A.     Not as strong.
Q.     But you would have the same complaint?
A.     It would have to be against them, yes.
Q.     Thank you. That's --
THE CHAIRMAN:     Thank you, Mr. Elliott. Any questions from the Committee members? If not, thank you very much, Mr. Paul. You may be seated again. Mr. Paul?
A.     Yes, sir.
THE CHAIRMAN:     I didn't know whether you -- thank you.
A.     There was five subjects that I wanted to point out.
THE CHAIRMAN:     We -- and we do have your affidavit as I've stated and your records and they're part of the record that the Committee members have to consider. Thank you very much. Justice Chandler.
JUSTICE CHANDLER:     I will be happy to --
THE CHAIRMAN:     Yes, sir, if you care to respond.
JUSTICE CHANDLER:     Yes, sir.
THE CHAIRMAN:     Take the witness chair again.
JUSTICE CHANDLER:     And --
THE CHAIRMAN:     I remind you're --
JUSTICE CHANDLER:     I'm not under oath.
THE CHAIRMAN:     -- still under oath.
JUSTICE CHANDLER:     I'd be placed --
THE CHAIRMAN:     You still are.
JUSTICE CHANDLER:     I have no quarrel whatsoever with Mr. Paul feeling the way that he does. I don't think he understands. There was never any impediment legally or ethically to my participating in this case from the very beginning.

Mr. Cribb represented by John Milling who came to my law office and was there a year and a half before, 18 years ago, I was elected a Circuit judge. For whatever it's worth, Mr. Milling was never a partner. He was simply a paid attorney there. He later after I left became a partner with Mr. Greer, but the Mr. Milling that he's talking about is a young graduate of the law school, stayed there. I was still in the firm for about a year and a half while he was there.

I also was County attorney until I was elected to the General Assembly in 1972. That was 22 years ago. There was no impediment to my sitting on the entire matter from the beginning, but out of an abundance of caution and concern where Darlington County has been a defendant, I've gone the extra mile and just recused myself because I was County attorney for 10 years. But under all the authorities that I know about and all the writers on the subject of what you should do and how long you should be out, I would certainly have had no impediment to hearing the case even with Darlington County being involved. But for the reason that I just said, I recused myself.

When the matter came up on rehearing, Mr. Paul made two motions. He made a motion to expedite it and in our Court move it up quicker for hearing and to grant a rehearing. Judge Lewis had ruled and Judge Cottingham had affirmed the ruling. The Court decided to expedite it and at the same time looked at the merits of it and it had enough in hand it felt to deny the rehearing.

Darlington County was no longer -- even though I'm going to repeat one more time, there would have been no breach on my part to have done it, but I just didn't do it. But when it came up for rehearing, Darlington County was no longer a party as Mr. Nettles -- Mr. Elliott's questions sort of suggested.

They did not object to the ruling of Judge Lewis and so forth, but they were no longer a party, so the only concern narrowed itself down to was there anything amiss in my participating in Mr. Paul's motion for a rehearing with Darlington County no longer even a party?

Judge Lewis had held that the road is a public road and the County didn't take objection to that. Mr. Milling and I have consulted with Professor John Freeman of the faculty of the law school here and I've asked him to -- only yesterday, I simply gave him Mr. Paul's file and complaint and I said, "You look at it. You are the recognized -- one of the recognized authorities in this area of what is ethical behavior and when should judges recuse and when they should not and how much time must elapse."

Even prior to calling on the Professor Freeman, I had looked myself and immediately found that no state requires that a person in the position I'm in here should recuse for maximum of seven years, and that was only one. Most of them are one to three years, but I did because I wanted the Committee and wanted Mr. Paul not to be saying -- to not feel that I'm the authority on this.

I went to an outside authority who has been recognized for this, Professor John Freeman. He took the file. He called -- I said when you come to a conclusion, please call me back. He called me back and he told me his conclusion. I asked him if he could write that up that. I wanted this Committee to have it.

He said that he would and I called Ms. Satterwhite and she said, "Please, fax that over." I said, "How about Professor Freeman bringing you the original with his signature because he told me he would do that." I called him back and he said he would do that. I asked Ms. Satterwhite this morning if she had gotten it and she said she had and that it had been furnished to the Committee.

I'm very interested in the Committee having John Freeman's -- Mr. John Freeman's opinion in this matter. I'm sorry that Mr. Paul feels aggrieved, but I simply think he's way off base in his complaint.
THE CHAIRMAN:     Mr. Elliott, any questions?
JUSTICE CHANDLER:     Anything, Mr. Elliott? I'll be happy to --
THE CHAIRMAN:     Let me ask a quick -- do we have the Freeman letter on file? Is that a part of the record? I would just state, we do have the Freeman letter that are available for -- and we can make it a part of the record that's in response to the issues that you've framed.
JUSTICE CHANDLER:     All right.
THE CHAIRMAN:     Are there any questions?
MR. ELLIOTT:     That's all.
THE CHAIRMAN:     Committee members? Thank you, Justice Chandler.
JUSTICE CHANDLER:     I thank you again.
THE CHAIRMAN:     That concludes our examination on the Chief Justice.
JUSTICE CHANDLER:     This gentleman I referred to is Mr. Bob Claussen. He's the -- you were -- I presume you were here for the banking things last night. He's the former president of the Bank of Hartsville.
THE CHAIRMAN:     Mr. Claussen. Thank you. Thank you very much and thank you, Mr. Paul. Next is the Circuit Court for the Tenth Judicial Circuit, Oconee and Anderson Counties. We have two candidates. I'm sorry.
MR. CLAUSSEN:     That's all right. I'm waiting for you to let me know what I should do.
THE CHAIRMAN:     I don't know that we need any further testimony.
MR. CLAUSSEN:     May I still say --
THE CHAIRMAN:     Yes, sir, you sure may if you care to.
MR. CLAUSSEN:     Senator, like you, I'm a banker, not a lawyer and I'm from Hartsville, South Carolina and I was president of the Bank of Hartsville for 20 years and I have known Justice Chandler since shortly after coming to Hartsville in nineteen and forty-seven and I have been associated with him in many, many community activities.

He's a man of the highest integrity in my opinion and with the associations that I have had with him and I feel that in any kind of activity that he's been in, he's helped bring industry in many, many over there in that area and he has tried to create jobs over there in our community and would help anywhere in the state during those times, fifties and sixties and seventies, that he could.

And I just want to highly recommend the Justice for this position of Chief Justice. Thank you very much.
THE CHAIRMAN:     Thank you, Mr. Claussen. Thank you very much. Next is the Tenth Judicial Circuit, Oconee and Anderson Counties, two candidates, Alexander S. Macaulay and Lowell W. Ross, Sr. The first will be Alexander Stephens Macaulay. Mr. Macaulay, if you would come forward please. Please raise your right hand, sir.
ALEXANDER STEPHENS MACAULAY, having been duly sworn, testified as follows:
THE CHAIRMAN:     Thank you. You may be seated. Have you had a chance to review the Personal Data Questionnaire Summary that was provided?
SENATOR MACAULAY:     Yes, Mr. Chairman.
THE CHAIRMAN:     Is it correct?
SENATOR MACAULAY:     Yes, sir.
THE CHAIRMAN:     Are there any clarifications that need to be made?
SENATOR MACAULAY:     The only thing I think I provided a supplemental update on the business about lobbyists or something like that, but I think it was submitted prior to the end of the year and I updated it on a separate letter. I believe that's about all.
THE CHAIRMAN:     I understand from Ms. Satterwhite, we do have that. Is there any objection to making the summary a part of the record of your sworn testimony?
SENATOR MACAULAY:     No.
THE CHAIRMAN:     It shall be done at the point.

1.     Alexander Stephens Macaulay
Home Address:                         Business Address:
P. O. Box 343                         P. O. Drawer 428
1420 West Main Street             10 Short Street
West Union, SC 29696         Walhalla, SC 29691

2.     He was born in Charleston County, South Carolina on January 31, 1942. He is presently 51 years old.

4.     He was married to Maria Locke Boineau on April 11, 1969. He has two children:     Maria Locke, age 23 (Middle School Teacher of the hearing impaired), and Alexander Stephens, age 21 (Senior, The Citadel).

5.     Military Service:     1964-1975; United States Army; Medical Service Corps; Captain (Reserves); 05-323644; Honorable Discharge 4 February 1975

6.     He attended The Citadel, 1959-1963, BA History; Western Carolina University, 1963 Summer Term, Organic Chemistry; Columbia College, 1963 Fall Term, Organic Chemistry; University of South Carolina, 1964 Spring and Summer Terms, Dental School; Medical College of Virginia, Dental School, 1964-1965, U.S. Army Contract; and the University of South Carolina, Law School, 1967-1970, JD.

8.     Legal/Judicial education during the past five years:
He has attended seminars approved or sponsored by the South Carolina Bar Continuing Legal Education Division.

12.     Legal experience since graduation from law school:

1970-1972:     Assistant Attorney General of South Carolina, civil and criminal, trial and appellate, and counsel for various State agencies (Department of Social Services, Alcoholic Beverage Control Commission, State Highway Department)

1973-present:     Private practice, civil and criminal, trial and appellate, plaintiff and defense, including torts, eminent domain, contracts, property, domestic and estate

13.     Rating in Martindale-Hubbell:     AV

14.     Frequency of appearances in court:
Federal - occasional
State -             often
Other -         seldom, if at all

15.     Percentage of litigation:
Civil - 85%
Criminal - 5%
Domestic - 10%

16.     Percentage of cases in trial courts:
Jury - 75%
Non-jury - 25%

In most cases, he has been sole or chief counsel; occasionally he has been associate counsel.

17.     Five (5) of the most significant litigated matters in either trial or appellate court:
(a)         Herman v. University of South Carolina, 341 F.Supp. 226 (D.C.S.C. 1971), aff'd, 457 F.2d 902 (4th Cir. 1972). Students may not participate in "sit-in" at public university with impunity.
(b)         McLamore v. State, 257 S.C. 413, 186 S.E.2d 250 (1972), cert. den. 93 S.Ct. 240, 409 U.S. 934, 34 L.Ed.2d. 189 (1972). Confinement at hard labor on the public works of the county is constitutional.
(c)         South Carolina State Highway Dept. v. Moody, 267 S.C. 130, 226 S.E.2d 423 (1976). Condemnation proceeding not proper proceeding to seek redress for a trespass and/or damages caused by negligence during construction.
(d)         Gray v. Leeke, 584 F.Supp. 650 (D.C.S.C. 1984). After South Carolina Supreme Court had dismissed appeal as being without merit, State v. Gray, 83-MO-88, writ of habeas corpus was granted, vacating conviction, finding that jury charge was "fundamentally unfair," violating Defendant's due process right.
(e)         McAlister v. State Farm Mut. Auto. Ins., 301 S.C. 113, 390 S.E.2d 383 (Ct.App. 1990). Automobile policy provision purporting to limit underinsured motorist coverage if insured is not driving described vehicle at time of accident is void.

18.     Five (5) civil appeals:
(a)         Winter v. Pratt, 258 S.C. 397, 189 S.E.2d 7 (1972), appeal dismissed, 93 S.Ct. 430, 409 U.S. 1003, 34 L.Ed.2d 294 (1972), annotation, 89 A.L.R.3d 543 (1979).
(b)         Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
(c)         Crescent Land & Timber Corp. v. Williams, 262 S.C. 671, 207 S.E.2d 98 (1974).
(d)         Southern Bank & Trust Co. v. Brown, 271 S.C. 260, 246 S.E.2d 598 (1978).
(e)         Bailey v. Rutledge, 291 S.C. 512, 354 S.E.2d 408 (Ct.App. 1987).

22.     Public Office:
Appointed to the State Board of Education from the Tenth Judicial Circuit, representing Anderson and Oconee Counties, 1979-1980

Elected to South Carolina Senate from:     District One, Seat Three, representing Abbeville, Anderson, Oconee and Pickens Counties, 1981-1984; District One, representing Anderson, Oconee and Pickens Counties, 1985-1992; and District One, representing Oconee and Pickens Counties, 1993 to present.

24.     Unsuccessful Candidate:     Unsuccessful in the June, 1970 Democratic Primary for nomination to be a candidate for the South Carolina House of Representatives from Richland County.

25.     Occupation, business or profession other than the practice of law:
Commissioned Officer, United States Army, active duty 1965-1967.
Vietnam:     1966-Intelligence Officer/Advisor, USARV/MACV; 1967-Medic, 2d Bn, 5th Cav, 1st Air Cavalry Division

26.     Officer or Director:     Sole practitioner, Miley and Macaulay, P.A., Walhalla, South Carolina, since 1988

32.     Sued:     When a member of the State Board of Education, he was a Defendant in John Plumley, et al. v. School District of Greenville County, South Carolina, et al., U.S.D.C.S.C., CA No. 80-1407-3, which was dismissed as to all Defendants.

37.     Lodging, Transportation, Entertainment, Food, Meals, Beverages, Money or Any Other Thing of Value From a Lobbyist or Lobbyist Principal
He attended The Citadel-Furman football game, October 16, 1993, and he paid for his ticket and meal.
October 30, 1993 - attended SC School Board's Association Convention; Myrtle Beach, South Carolina; to receive Outstanding Senator of the Year Award
November 4, 1993 - met with President Max Lennon and Staff at Clemson University and Members of Oconee, Pickens and Anderson Delegations; supper at President's Home
November 30, 1993 - breakfast with Pickens State Employees at Clemson
December 6, 1993 - breakfast with Oconee State Employees at Walhalla
December 30, 1993 - meeting with representatives of State Hospital Association, paid for own breakfast

45.     Bar Associations and Professional Organizations:
South Carolina Bar Association, 1970 - ; American Bar Association, 1970 - ; Oconee Bar Association, 1973 - (President, 1980)

46.     Civic, charitable, educational, social and fraternal organizations:
Walhalla Presbyterian Church (Deacon and Elder); Walhalla Rotary Club; Tri-State Trout Club; South Carolina Society of the Cincinnati; St. Andrew's Societies of Columbia and Upper South Carolina; Tarantella of Columbia; Oconee Assembly; and Columbia Cotillion

47.     He has been actively engaged in the practice of law since 1970, representing individuals and the State, plaintiffs and defendants, in civil and criminal matters in trials and on appeals, with cases tried, or ultimate disposition being made on appeal, in all levels of Courts of this State and the United States. More importantly, his life has been one of representation of people and public service requiring an appreciation for, and the maintenance of, a mutual respect between individuals, the public and their institutions, regardless of the matters involved.

48.     Five (5) letters of recommendation:
(a)         E. Lamar Bailes, Vice President
First Union National Bank of South Carolina
P. O. Box 68, Walhalla, SC 29691
638-9652
(b)         Cary C. Doyle, Esquire
Doyle & O'Rourke
P. O. Box 2125, Anderson, SC 29622
224-7111
(c)         Howard G. Pettit, Jr., Esquire
P. O. Box 190, Walhalla, SC 29691
638-3644
(d)         Dr. Roy Taylor, Pastor
Walhalla Presbyterian Church
P. O. Box 451, Walhalla, SC 29691
638-3627
(e)         Tim O. Hall, Jr., President & Chairman
Blue Ridge Bank of Walhalla
P. O. Box 430, Walhalla, SC 29691
638-5444

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have ever been filed against you. Records of the law enforcement agencies:     Oconee County Sheriff's Department are negative; Walhalla City Police Department records are negative; SLED and FBI records are negative. The Judgement Rolls of Oconee County are negative. Federal Court records are negative. No complaints were received. There are no witnesses present to testify.

I'll turn you over at this time to Mr. Elliott for questioning.
SENATOR MACAULAY:     Mr. Chairman, one thing I noticed on the report about judgements and I reported it in my personal questionnaire, I was a defendant in a case one time in federal court as a member of the State Board of Education, but that's been so long ago. I guess, what is it? And obviously, it's not individually, but as a named member of the Board, so I don't -- I did want to make that clear. It is reported in my questionnaire.
THE CHAIRMAN:     Okay.
MR. ELLIOTT:     Yes, sir, it is.
SENATOR MACAULAY:     Even though the report came back --
THE CHAIRMAN:     Senator Macaulay, what we have done we decided to do for the new candidates for positions is to allow them if they cared to, to make a short opening statement prior to questioning by the counsel. If you care to do that at this time, you may, or if you want us to proceed in the questioning, we can do that.
SENATOR MACAULAY:     I understand you have a full schedule, so if you'd like to go ahead and proceed, I'll be more than happy to.
THE COURT:     Thank you very much.
SENATOR MACAULAY - EXAMINATION BY MR. ELLIOTT:
Q.     Thank you, Senator. Why are you interested in leaving the Senate first of all?
A.     I was looking at the House action yesterday and the District seems to have passed out a bill that says if you serve more than 12 years, you're an anachronism and I've been here 14, so I guess maybe I'm just answering the call of the public.

In all seriousness, obviously, it's a vacancy in Oconee County in the resident judgeship and I feel that I might be able to offer something in that position, so it's one of those things that you have to do when it comes along.
Q.     You've been in the Senate, what, 13, 14 years, something of that nature?
A.     This is starting the 14th year, I believe.
Q.     14th year. And in that position you've been setting public policy based on your own personal beliefs and opinions and those as you perceive them from your constituents in your district. What role, if any, will that make in your -- play in your decision making as a judge?
A.     Well, I don't think that there is any question that the willingness to listen to not only both sides, but all sides because many times litigation I've been involved in has more than just two sides. It plays very heavily in public representation, as you mentioned.

If you go in to represent a constituency, you're going to have to be willing to listen to both sides and I think that's -- if anything else, it's a preparation for that to be able to listen or not. If you don't, you won't be in public life long. I think that's something that's fairly certain.

I think if nothing else it's -- to enter public service, the first thing you have to do is ask for consideration of somebody else and I think that's one of the most important things that somebody who sits in a position of judgment has to have is that ability to realize that the people who appear before you probably are not there because they want to be. More than likely, they're there because they're required to be and that not only goes to the parties, but also to the witnesses, jurors, everyone involved in the political or the judicial process.

And so the political exercise where you have to ask others for consideration, I think, brings to the bench the fact that you will be considerate of others as you have had to ask them to be considerate of you.
Q.     But do your opinions or public sentiment have any part in the decision making you would engage in as a judge?
A.     Sir Thomas More once said that he would give the devil the benefit of the law for his own safety's sake. Admittedly, there are certain things that you're aware of. They're a part of your own background and experiences and things like that, but I think that as a judge, your primary responsibility is to apply the law as it is found.

I think that this is perhaps one of the geniuses of our system. It provides the three branches of government where one is the law making body, one is the executive body that administers the law and the other is the one that is left to interpret the law. No, I feel that when it comes to the judicial process that what you hope to do is bring your experiences and to apply to the law as it's presented to you.
Q.     On your Personal Data Questionnaire, you reported that five percent of your practice was involved in criminal matters over the last five years. Would you address that for us, please? As a circuit judge, a large part of your experience will be with criminal matters. Are you prepared for that? How would you prepare yourself?
A.     Well, I think talking about the experiences, the experience covers all sides, I guess. I started off with the Attorney General's office prosecuting cases on the criminal side. In fact, what is -- I prosecuted a -- helped now Judge Goolsby prosecute a case that ended up with five capital sentences, one case on down in Aiken County. I think maybe Senator Moore remembers a motorcycle gang that came down there and killed two men and injured seriously two ladies, but the thing is all sorts of criminal cases.

As a young assistant, I tried a lot of other cases that might not have been so significant, but then as I say, perhaps the most significant, a capital case. By the way, the sentences were commuted and I think a Mr. Whisenot (phonetic) in the room here, The Greenville News did an article recently on people who had been sentenced to death who were later paroled and two of those who were paroled were out of those five that had been sentenced to death some 20 years before.

When I say that I participated less and less in criminal matters, I've tried some I guess you might say -- the most interesting criminal matters in the Tenth Circuit representing police officers that have been tried for bribery. The last case I tried, and I will be very candid with you, I didn't want to try it. It was a murder case involved a defendant from out of state in West Virginia that had killed one of our local people, and the lawyers probably understand this, I set a fee that I thought would be prohibitive and they accepted it and so that took care of my Thanksgiving and I prepared the case all Thanksgiving and I guess it was all right. The gentleman was acquitted and went back to West Virginia. But the thing is I haven't pursued criminal matters.

In fact, I'll be very candid with you, since being in the General Assembly and I think all of us that have served, including Mr. Ross, public service is a demanding thing. And so I have limited myself to domestic as well as criminal because I find both of those are the type practices that require particular attention and you're available and not so much when you're in the General Assembly, but I would put my experience in trying criminal matters over the 23 years as I say from white color crimes, bribery, extortion to physical violence against almost anybody in the Tenth Circuit.
Q.     The particular case you mentioned with the West Virginia gentleman, how recently was that?
A.     I guess three or four years ago.
Q.     Thank you, sir. I couldn't exactly tell from your Personal Data Questionnaire, but what percentage of your practice is appellate work and what percentage is trial work?
A.     I would say too much is appellate work. That provide -- that's also meaning the ones that I have to appeal because obviously I wasn't satisfied with what happened below and the others the ones that others appeal because they're not satisfied with what happened below, but a good bit of appellate work. I mean I've just recently argued a case in Appeals Court.

I could even, you know, suggest if you -- when I do time -- I mean when I do the percentages, I'm usually talking about how much of my time is involved in this sort of thing rather than the numbers or anything like that. I'd say maybe five, again, ten percent or something like that would have to go on appeal and I don't apologize about the appeal because on occasion, they have been to some effect.

In -- not that the Chief Justice or the Justice needs any protection here, but I can remember two occasions on cases I appealed reversed a former chief justice, two different occasions where they sat as trial judges at the time. So I mean I think the Supreme Court is very, you know, aware of what is the appropriate thing, so they're not controlled by just who the judge may be.
Q.     The case loads for trial courts are heavy and they continue to increase, so there is a great need to operate efficiently. How would you make your court operate efficiently and at the same time preserve the litigant's rights to a full and fair hearing?
A.     Well, as I say, I guess my strongest suit, if anything, is experience. Again, it's kind of like Walter Brennan said on The Real McCoys, "It's not brag, it's a fact." I participated in the most trials in one week in Oconee County. It's several -- I mean, gosh, 20 years ago maybe because I was still with the Attorney General. In fact, it was the summer before I came to Oconee County.

I had been with the Attorney General's Office. We tried nine cases to jury verdicts in four and a half days and then settled another five or six, but I mean the fact is that you can move cases. The way you do it in my experience, though, is using the attorneys.

The attorneys know what their cases are about when they're ready for trial and that sort of thing. I think if we give more consideration to the attorneys and the litigants in preparing cases for trial, that they -- you can move them quicker. I think one of the most difficult things to do is when you start getting into an arbitrary system that just dictates that you do this, that and the other.

You're trying to get your witnesses together and everything else, you find out people probably resist more than they are willing to cooperate. I think there are -- I think certain basic things I would like to see done and that is in the way that we draw juries and others, so that you use them more efficiently. We began to use that in Oconee County, not having the juries there all the time and trying to draw specific cases. I think using that sort of process, we cannot only move the cases, but move them more efficiently.

And I say efficiently because you asked me about appeals. One of the things that brings about appeal is a hastily tried case, one where you're not prepared and where you're sometimes pressed beyond what might be reasonable. Also I think that attorneys -- one of the things that is arbitration and things of that nature that we need to encourage more cooperation, if you would, between the Bar.

I think the Bar is ready to do this, particularly the trial part, the ones that have to find themselves in a courtroom. It's kind of like a forward pass, you know. I think it was Knute Rockne that said three things can happen with a forward pass, two of them were bad. Well, it's pretty much like trying a case. Three things can happen in the trial of a case. Only one of them is rule for you, otherwise, you end up with a mistrial or a verdict against you, so I think trial lawyers realize that. That's what we've got to do.
Q.     The Code of Judicial Conduct is pretty broad on what a judge can accept as social hospitality. What's your bright line test about that?
A.     I have very limited taste for what -- I really don't bother too much with anything really. I think the better rule is if there is any question at all, just, you know, decline and that's my bright line really.

I notice that with the Bar evaluation I was very impressed with it because I'm a sitting member of the General Assembly and I don't play golf and yet it was they found me qualified.

So I mean I really don't have a whole lot that I do that's accessible to, you know, influence or anything like that, so my bright line is just don't do it.
Q.     That extends to even a lunch with an attorney who might be appearing before you during that week?
A.     Well, Mr. Elliott, as you know, I've been here during the ethics thing and all and I -- we've gotten very used to that. I mean we buy our own cups of coffee, own lunches. It's -- you know, it's almost gone to the extreme that -- but, no, I have no problem just with a very bright line that says you just don't do it.
Q.     The Bar in their report on the candidates indicates that there is some concern expressed about your judicial temperament and willingness to listen to both sides. How would you respond to that?
A.     Well, actually, I didn't want to respond to it because I thought it was rather silly. My first response after 23 years of practicing law is that obviously that sort of thing is totally incredible because you cannot be a successful attorney if you don't listen to the other sides because that's how you find the weakness in your own case and you certainly don't want to dig a hole, so what you do is if you listen to the other side and you find your weakness, you move on to something where you can stand, where you've got solid ground. So obviously that is, you know, something that perhaps is as I say a bit incredible.

You'll notice in the Bar thing, and as I said, I really didn't want to get into it, but since it's been brought up. If I may, I have eight little packages here dealing with the Bar report. If I could introduce it or whatever. I'll wait to see what happened with it, but I think it's probably good for the Bar.
THE CHAIRMAN:     Senator, if you could just wait just a moment.
A.     Certainly.
THE CHAIRMAN:     We'll be glad to incorporate this into the record and I'll pass out a copy to each of the Committee members.
A.     As you'll notice this came out, it's dated the 7th. It actually was mailed on the 7th. As I say, I really -- I think it's probably important to the process that we go through in South Carolina on evaluating judges.

If you'll notice that the comment that gives me the most concern is the one that you addressed that I think is, says something to the effect that some have expressed concern, now they don't identify the some. A part of the package, of course, was letters written by attorneys who have tried cases with me and against me before the Bar did theirs.

Not only did they not identify the somes, so we don't know who they came from. We don't know if it was Chicken Little or maybe the gentleman that Diogenes was looking for all of those years, so we don't know how to judge the veracity of what the somes concern was.

More importantly, and that's what this little handout is, if you'll look the top of it is the little letter -- is the letter that was addressed to me on September the 7th saying that the Judicial Qualifications Committee met today, which I trust is the 7th, and made their deliberation and findings. And the second page are those findings, that they were talking about. The third should be either an Expressed Mail copy showing that it was not to be delivered until a weekday which means if it was mailed on Friday, it wouldn't be received until Monday which would have been the 11 -- was the 10th.

Now the most important thing is, and I don't know if ya'll know this, but my daughter was married on Saturday, January the 8th. And so rather than being in my office, if you'll look at the page, there's a telephone message there.

Rather than being in my office on January the 8th at 9:27 a.m., I was in Columbia, South Carolina getting ready to have my daughter married at noon, yet my office received a call. And this is an answering service that we have that's in effect on the weekend. And it's to Miley and Macaulay Office, which is M and M, Senator Macaulay, 1/8/94 at 9:27 a.m., a gentleman from the Bar Association is serving on it -- who leaves this message is serving on the Bar Judicial Committee and needs to talk to Senator Macaulay, ASAP, note hotel where he can be reached and put the number.

He talked to my wife at 9:40 a.m., but unfortunately, my son and I were getting the car prepared. We were getting the car prepared and getting it in front of the church, so nobody else could park there, so we weren't available at 9:40 a.m.

On the back is a further note that upon contact with Mrs. Macaulay, I called Mr. -- the gentleman back to advise of the fact that Mr. Macaulay's daughter's wedding on this day. He said he understood and that he would like to discuss getting an appointment with the Senator for Sunday, if possible, and he contacted Mrs. Macaulay back again.

Now, I did get the message and on Sunday, I was preparing for a case which was first up in Pickens County on Monday, so I returned the call. Now this was Sunday, January the 9th, two days after the report was made and mailed.

At that point, I had my first contact with the South Carolina Bar Association Screening Committee who is so concerned about willingness to listen to both sides.

Now, I'm glad they have that concern because obviously I have that concern because if you'll notice from the little fax sheet that is a part of this handout, at the front, my whole life has been based on practicing law where I have to listen to both sides. And as I point out there, I practice law in criminal court as a prosecuting attorney as well as a defense attorney. I practice in the civil court, Common Pleas, both as a plaintiff's attorney and as a defense attorney and I've had to listen to both sides. So I would be interested in knowing since the Bar Association did not see fit to contact me before they made their deliberations and recommendations is what they rely on.

At first, as I say, I was somewhat nonplused to be nice about it, but then I realized it was not an invidious process. It was a slipshod process. I grew up on a farm with mules and we had to shoe them and when you didn't shoe them with good shoes, they did, they slipped and, you know, kind of fall around.

But then I also thought about it, if it's anything, it's like a Walt Disney movie. You know, "The Gang That Couldn't Shoot Straight," with Don Knotts and the others. Well, that's what this is. They couldn't even shoot straight with their own people to tell them that they've already made the recommendation and rating before he talked to me. And we had a nice conversation.

He asked me why I wanted to be a judge, what I thought about sentences and all of that and he said the recommendation would be coming out Monday. Well, little did I realize that it was going to be coming out as we -- it already was in the mail as we talked.

My point -- and I say this, I don't care who the some were. I find it more important in practicing law that I know the source of the information that I receive. As I say, a part of this package are letters that had been submitted by attorneys from Oconee County, attorneys that have practiced against me as well as with me. And I -- and they were -- I think without exception, were all dated prior to the Bar's Recommendation.

An interesting thing, too, ya'll I think asked for five references. I think the Bar asked for another five or six. Well, the ones that I have had contact with, because this has kind of upset some people back home, but the ones I've had contact with whose names were submitted for references, they have not been contacted by the Bar.

And, in fact, two of them received letters from the Chair of the Judicial Qualifications Committee saying they would be contacted. They weren't contacted.

I make these observations solely for one purpose, that you be very careful not only in my case and Mr. Ross' case, but in all screenings because if this is the type of process that's being followed and printed in the paper without any sort of opportunity to respond, we have a very -- not dangerous, but a very sensitive situation here.

To be very frank with you, next to my family, my profession is about as important as anything to me --
Q.     Senator --
A.     -- and it has to be done in the open and with fairness, not with some secret --
Q.     Senator, I think the Committee and I hesitate to speak for them, but the Committee has been very careful about that and not placing too much stock in the Bar's comments for that very reason, but I did think it was important to allow you the opportunity to respond to that since this has been made public.
THE CHAIRMAN:     Representative Beatty has question.
REPRESENTATIVE BEATTY:     I want to make certain that the Senator was speaking with reference to the South Carolina Bar Association Screening Process as opposed to this Body's Screening process.
THE CHAIRMAN:     The record will reflect that you were referring to the South Carolina Bar Screening process?
A.     It is no question. I have nothing but the highest regard for a body that will permit people to appear before it and be heard rather than doing their judgments in the open. By the way, I think that's exactly one of the things that -- let me give you a little history.

As I said, I've been practicing 23 years and fortunately it's not the same way as it used to be, but I can remember going into court on Monday morning and having a judge tell me, "Well, I already know about your case." Obviously, that case was tried on the golf course the weekend before or the supper the night before.

I had -- that is not the way you operate a judicial system, a system of justice. It is the -- don't make the decisions in the board room, in the club room. Make them in the open courtroom where both sides can be heard and I think if anything -- if these -- the ones that made this decision, if they're suggesting anything, it's not that they want both sides heard. They want their side heard in that old system and as far as I'm concerned that's not the system that we use if I am fortunate enough to --
THE CHAIRMAN:     Mr. Elliott.
Q.     One final question, have you sought directly or indirectly the pledge of any legislator for you as a circuit judge?
A.     I have not sought directly or indirectly, but I tell you it's awfully hard when somebody who knows you're interested in it without, you know, somebody making a comment. I have tried very hard not to, what is it, in any way to respond effectively. I mean by effectively in a sense was to respond in any way to the casual comment, but I have -- notice has been made of the fact that I'm interested in the judgeship.

I might say that that notice has probably been for sometime because -- well, when I said I would have no opening comment, I saw my two colleagues right before Senator Russell came in, breathe a sigh of relief because normally I am as you found out since you asked the question rather expansive or can be.
SENATOR MOORE:     We were shocked, Mr. Chairman.
A.     But for me not to respond is about as much as I can do. I'm very -- I'm gratified that they would acknowledge that I am not completely ignored, but, no, I have not sought -- and I can say this, I have not received any commitment either.
Q.     Are you aware of any effort in that regard that you've not authorized or requested?
A.     No, I don't think so.
Q.     Thank you.
THE CHAIRMAN:     Senator, your -- one question, your Martindale-Hubbell rating which is a rating by your peers is AV; is that correct?
A.     Yes, sir.
THE CHAIRMAN:     Thank you.
A.     And it's been for several years.
THE CHAIRMAN:     Mr. Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q.     Yes, sir. Over the past ten days, I've been taken to task from some of my constituents that our criminals aren't being punished enough. Their sentences could be more severe and I listened very intensely and how would you tell me to respond to them now.
A.     Well, there are two things that come to my mind. I'm not so sure about the severity of the sentence as it is the certainty of the sentence. In other words, if somebody is sentenced to an offense -- for an offense, that it is certain that they will receive punishment and not, you know, in the door and out the door type of thing.

The second thing is the truth in sentencing. We have gotten to the point now that we really don't know what and I will say back in the times when I was doing more criminal practice and there were pleas and things like that, if somebody would come up to me and solicit or offer a plea, more than likely, I wouldn't know what the real time served was and I would go out and find a trustee, you know, in the court house and run the scenario about it and he could tell me probably within a few weeks, you know, the actual time served and all that.

So I think really what we need to do is to provide a system where we know what they're being sentenced to because it sounds awfully good to sentence a fellow to 100 years, knowing full well that the actual time served will probably be six or seven. I think we owe it to the public that we give them the truth in sentencing and the certainty that they will be sentenced if they're found guilty.
Q.     Should some of these sentencing guidelines be changed?
A.     Yes, sir. I'm afraid so. I have looked at some of the sentencing guidelines that the Judiciary uses right now and they've shown -- I've seen demonstrated certain inconsistencies in them. For example, I think second offense petty larceny, shoplifting has a more severe sentence than third offense grand larceny. You know, that's -- we do need to do something in that area.
THE CHAIRMAN:     Any more questions? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q.     Mr. Chairman, I just want to say to Senator Macaulay that I think it took some courage to put this up, but in particular, you've gotten no other communication regarding who all they talked to, I mean on this report, the Bar report, I'm referring to?
A.     None whatsoever. As I say, I do have -- we've got a small Bar and particularly Oconee County, but Oconee and Anderson and I was very fortunate two of those letters were solicited because you requested five and I got two attorneys, one from Oconee and one from Anderson, but the others were volunteered. You know, those were the ones who signed their names and, you know, came forward to do this and -- but, no, I had no contact. I don't know maybe Mr. Ross did. I'm not sure, but I had none whatsoever.

And as I say, the two that I talked to -- you know, three that I've talked to that were submitted as references have not been contacted and two of them had received letters from the Chair of the committee that they would be contacted and never were.
Q.     And --
A.     So I don't know where -- I don't know who the some are.
Q.     And subsequent to your receiving their findings, did that open process of theirs provide you with any notification that some of this stuff occurred after the fact? Did they ever --
A.     No. No, sir. The only -- if I hadn't had an answering service and I had been there Saturday morning, I would -- I probably wouldn't have any way to demonstrate exactly what did happen. No, to answer your question, I have no idea, you know, what --
THE CHAIRMAN:     Thank you.
A.     I want to tell you this, that if I am fortunate enough to, you know, be able to sit over a court of law that court of law will be handled in a much different way. It will be open to not all -- not just two sides, but all sides to include those who have concern.
THE CHAIRMAN:     Thank you, Senator Macaulay. Any further questions?
REPRESENTATIVE BEATTY:     Just one statement.
THE CHAIRMAN:     Representative Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q.     I appreciate your coming forward with this information about the Bar's process. Yours is not a unique experience. We had the same thing told to us last year in our screening process by members about the Bar screening have not contacted references or people in their community about them and yet having made a judgment as to their qualifications and I think that's a serious problem and you say it's -- you think it's a -- I believe your word was sensitive. I think it's serious and something that should be taken a look at.
THE CHAIRMAN:     Thank you, Representative Beatty. If there are no further questions, thank you, Senator --
SENATOR MOORE:     Mr. Chairman, I feel compelled to make one statement. I'm not going to say what I said to Senator McConnell. In serving with the senator from Oconee for the last, what is it, 14 years in the Senate, it is amazing to me that any concern would be expressed by anyone from any group about his willingness to listen to both sides.

I mean that is just probably to a fault he has been willing to listen to all sides. That's why we have filibusters and long talks. He's wanting us to hear the other side and wanting to hear others who speak and very seriously, Senator from Oconee, it is amazing to me that that can even be raised in whatever endeavor you're involved in. That is amazing to me.
THE CHAIRMAN:     Senator, and the Chair would take notice that the Sir Thomas More that you referenced earlier is not Sir Thomas Moore of Aiken County. They may --
SENATOR MOORE:     The only difference is he spells his name differently than I do.
A.     One O and an E. That's right.
THE CHAIRMAN:     Thank you very much. The next applicant is Lowell William Ross. Representative Ross, if you'd come forward please and have -- raise your right hand please, sir.
LOWELL WILLIAM ROSS, having been duly sworn, testified as follows:
THE CHAIRMAN:     Have you had a chance to review the Personal Data Questionnaire Summary?
MR. ROSS:     Yes, sir.
THE CHAIRMAN:     Is it correct?
MR. ROSS:     As far as I know.
THE CHAIRMAN:     Any clarifications need to be --
MR. ROSS:     No, except for ones that I sent in.
THE CHAIRMAN:     And we do have the changes that you referenced. Is there any objection to making the summary a part of your sworn testimony?
MR. ROSS:     No.
THE CHAIRMAN:     It shall be done at this point in the transcript.

1.     Lowell William Ross
Home Address:                     Business Address:
204 Mockingbird Street         811 123 By Pass
Seneca, SC 29678                 P. O. Box 99
Seneca, SC 29679-0099

2.     He was born in Westminster, South Carolina on March 13, 1932. He is presently 61 years old.

4.     He was previously divorced; August, 1968; Ann Derrick Ross; Richland County Court; Desertion. He was married to Carolyn Tuten on December 31, 1968. He has four children:     Lowell W., Jr., age 36 (attorney admitted in Illinois, pending application to S. C. Bar examination); Nancy Kay, age 34 (counselor, Chesterfield School System); Sharon Lynn, age 28 (certified to teach math, presently serving as substitute teacher in the Oconee School District and teaching home-bound students); and David Michael, age 25 (attorney, law clerk to the Honorable Dean Hall).

5.     Military Service:     Active Duty; June, 1954 - January, 1958; United States Air Force; First Lieutenant; Serial Number A03019390; Honorable Discharge

6.     He attended the University of South Carolina, September, 1949 - February, 1954, B.S. Degree; Clemson University, January, 1958 - June, 1958 (no degree); the University of South Carolina, September, 1958 - February, 1961, LLB Degree. He attended Clemson University for one semester after being discharged from the Air Force but before attending law school. He thought a semester spent in a college environment prior to attending law school would be helpful. He did not receive a degree.

8.     Legal/Judicial education during the past five years:
At the request of the South Carolina Bar, he attended a week-long seminar entitled Justice System Applications, sponsored by International Business Machine Corporation, October, 1988 (25+ hours); Corporations, Banking and Securities, S. C. Bar, Greenville, S.C., January 14, 1989 (3 hours); Laws of Automobile Insurance, S. C. Bar, Columbia, S.C., October 2, 1989 (2 hours); Computers and the Trial Lawyer, November 2-3, 1989, American Lawyers Association, Dallas Texas (4.5 hours); Trial and Appellate Advocacy and Torts & Ins. Practice, S. C. Bar, January 13, 1989, Greenville, S.C. (3 hours); Law of Workers' Compensation in South Carolina, S. C. Bar, November 30, 1990; Death and Taxes, S. C. Bar, September 10, 1993 (5 hours). In addition to the above, he attended several law-related seminars at the annual meeting of the National Association of Legislatures in Orlando, Florida (1991) and Cincinnati, Ohio (1992).

9.     Taught or Lectured:
He has presented numerous law-related lectures. During the years 1963-1969, when he practiced in Columbia, South Carolina, he gave lectures on the subject of federal practice in the Bridge-the-Gap program. During those years, he gave numerous lectures to lawyers and civic organizations on the effect of Gideon v. Wainwright and the legal services to the poor.

He presented a lecture to the Circuit Judges at the 1987 Annual Meeting of the South Carolina Circuit Judges Association, May 30, 1987, Hickory State Park, on Technology and the Courts.

He presented substantially the same lecture at a South Carolina Bar sponsored seminar on September 11, 1987, Charleston, South Carolina at the 1988 Annual Meeting of the South Carolina Bar Association, and a similar lecture at a seminar sponsored by the American Trial Lawyers Association, Dallas, Texas. On numerous occasions, he has presented short lectures at a number of other South Carolina Bar seminars that discussed law related technology.

10.     Published Books and Articles:     "Constitution Litigation, Construction Law, "South Carolina Trial Lawyers Bulletin, January-February, 1981; "Using Spreadsheets to Compute Valuations and Damages," The Lawyer's PC, January, 1987

12.     Legal experience since graduation from law school:
Associate; McKay, McKay, Black and Walker; April, 1961 - April, 1962
Law Clerk; United States District Judge, J. Robert Martin; April, 1962 - August, 1963
Associate; Rogers & McDonald (later Rogers, McDonald and Ross); August, 1963 - August, 1969
Moved from Columbia to Oconee County in August, 1969, and practiced as a solo practitioner - Walhalla, South Carolina from September 1, 1969 - December 30, 1969. Since 1970, he has practiced with Howard G. Pettit (Pettit & Ross and other names until 1981) and with Julian L. Stoudemire under various firm names, now Ross, Stoudemire, Ballenger & Sprouse, P.A. The firm moved from Walhalla, South Carolina to Seneca, South Carolina (present location) in 1985.
He has had a mixed and wide practice during his career. In the early days with the McKay firm, he represented insurance companies in defending motorists. He also did other defense practice and some corporate work.
During his tenure as law clerk to United States District Judge J. Robert Martin (April, 1962 - August, 1963), Judge Martin tried Monteith v. University of South Carolina and Brown v. South Carolina State Parks, that resulted in the desegregation of the University of South Carolina and the state parks. He assisted in the preparation of the court orders in these historic cases.
Upon returning to the practice with Rogers and McDonald, after his term as a law clerk, at first he was engaged in a Plaintiff's and domestic practice with some work in estates, real estate and corporate work. The character of the work gradually changed so that by the time he left the firm, he again was involved in a defense practice, but with some domestic, corporate and probate work.
Upon moving to Oconee County, the character of the practice was very similar to the practice he left. He was engaged by several insurance companies and for some time performed defense work with, of course, a general practice of a small county, including criminal work in Oconee, Pickens and Anderson Counties, with some work in the Federal Court.
In 1976, he was employed by the Oconee School District to represent it in litigation involving a school building. This litigation (Oconee County School District v. Bowen and Watson, et al.) involved some 10 Defendants and consumed 42 months. During this time, his practice consisted almost exclusively of handling this case. The case was concluded in 1981.
In the summer of 1981, he was engaged to manage an estate of S. Bruce Rochester, deceased, that owned several businesses and owned substantial real estate. For approximately 22 months, his practice was devoted almost exclusively to the management of the business affairs of the estate. While there were a great number of legal problems involved in the work, he engaged others to actually handle all litigation that arose.
Because of the complexities of the work involved during the years 1976-1983, he gave up all criminal and domestic practice and has handled a more limited number of matters since that time. He has been involved in professional malpractice cases, including physicians, architects and trustees. He has been associated by other lawyers to assist in complex cases.
Recently (November, 1992), he was engaged to act as conservator for J. A. Gallimore (now deceased) and for the remaining months of his life managed his business affairs, that included the management of a radio station. Since his death, he has represented the estate.
The character of his practice at the present time is generally corporate, probate and complex litigation.

13.     Rating in Martindale-Hubbell:     AV

14.     Frequency of appearances in court:
Federal - 4 cases
State - numerous, 25 or more
Other - S. C. Public Service Commission, 3 cases
Social Security Appeals - 3 cases

15.     Percentage of litigation:
Civil - 95%
Criminal - 1%
Domestic - none

16.     Percentage of cases in trial courts:
Jury - 5%
Non-jury - 95%

He is often associated in litigation by other counsel because of his expertise in various matters, and it is hard to characterize his involvement. He is chief counsel for his field of expertise, but often serves as associate counsel in the case. The ratio between chief counsel and associate counsel is approximately 50-50.

17.     Five (5) of the most significant litigated matters in either trial or appellate court:
(a)         Oconee School District v. Bowen and Watson, et al. (Non-Jury). This case was significant because of the complexity of the facts, the number of defendants involved and the method by which a very complex problem was solved.
(b)         Tamassee DAR School v. E. F. Hutton (Jury, but settled). This case was significant because of the complexity of the facts and the law involved.
(c)         Clanton v. Clanton (Non-Jury). He served as associate counsel. This case was significant because of the complexity of the case and the method by which it was concluded.
(d)         Tamassee DAR School v. Oconee School District (Federal Case - Non-Jury). This case was significant because of the character of the litigation - discrimination.
(e)         Rochester Real Estate v. City of Seneca (Federal - Non-Jury). This case was significant because of the character of the litigation - discrimination.

18.     Five (5) civil appeals:
(a)         City of Westminster v. Blue Ridge Electric, 295 S.C. 93, 366 S.E.2d 611 (S.C. App. 1988)
(b)         Stovall Building Supp. Inc. v. Mottet, 305 S.C. 28, 406 S.E.2d 176 (S.C. App. Nov., 1990)
(c)         BancOhio v. Martin, 306 S.C. 283, 409 S.E.2d 790 (Ct. App. June, 1991); 426 S.E.2d 773 (Sup. Ct. Feb., 1993)
(d)         Seneca River Sunday School v. Washington, unreported Opinion No. 93-UP-083 (S.C. App. March 22, 1993)
(e)         Fort Hill Gas Co. v. City of Easley, et al., Opinion No. 23789, February 1, 1993

22.     Public Office:
South Carolina House of Representatives (1970-1972), elected
South Carolina House of Representatives (1990-1992), elected

23.     Employment As a Judge Other Than Elected Judicial Office:
On three occasions he has served as sole arbiter or as a member of an arbitration panel. On two of the three, the litigation involved construction. In each case, he was selected by the parties and paid by the parties pursuant to either agreements or contracts. None of this work was within the past five years.

24.     Unsuccessful Candidate:
He was defeated for reelection for the South Carolina House of Representatives in 1972 and in 1992. He ran unsuccessfully for Oconee County Council in 1974.

25.     Occupation, business or profession other than the practice of law:
He is a licensed real estate broker and has developed three real estate subdivisions. As a broker, however, he does not solicit listings of property or have dealings in property of others. He has, from time to time, developed, bought and sold property since 1970.

He is a majority stockholder in Professional Properties, Inc., a South Carolina corporation that developed a small lake-front subdivision and owns property. The only other shareholder is Julian L. Stoudemire, his law partner. Professional Properties, Inc. also writes title insurance policies. He is the president and a director of that corporation.

26.     Officer/director or management of business enterprise:
He is a majority shareholder in Professional Properties, Inc., a South Carolina corporation that developed a small lake-front subdivision and owns property. The only other shareholder is Julian L. Stoudemire, his law partner. Professional Properties, Inc. also writes title insurance policies. He is the President and a Director of that corporation.

28.     Financial Arrangements or Business Relationships (Conflict of Interest):

As noted above, he owns the majority interest in Professional Properties, Inc. The other shareholder is his law partner, Julian L. Stoudemire.

He owns 1/2 interest in the law building that houses Ross, Stoudemire, Ballenger and Sprouse and Professional Properties, Inc. The other interest is owned by Julian L. Stoudemire, his law partner. He would dispose of his interest in the building.

He owns 1/2 interest in a law building occupied by Howard G. Pettit, Cary Doyle and the Guardian ad Litem program in Walhalla, South Carolina. The other 1/2 interest is owned by Howard G. Pettit, attorney. He would dispose of his interest.

He would cease any activity involving the writing of title insurance or any other business activity with any lawyer who could or might be involved in litigation before him.

32.     Sued:     In the early 1960's (1965?) he was sued by a child hit by a vehicle driven by his former wife. He was not in the car at the time. The case was of doubtful liability but was settled by his insurance company.

He managed the S. Bruce Rochester estate for approximately 22 months. He did not handle any legal work for the estate. Legal work for the estate was handled by other lawyers in the area, including the lawyers in his firm. The filing of the tax return for the estate was assigned to a member of his firm, Mr. Timothy Merrell, who was the associate in the firm (Ross, Stoudemire, and Merrell) charged with all probate and tax work. He was named as a Defendant in an action that alleged that the estate tax return was incorrect resulting in losses to the estate. He did assign the work to Mr. Merrell, but he did not take any part in the filing of the estate tax return and did not possess sufficient expertise to determine the correctness of the return. The case was settled.

36.     Lobbyist or Lobbyist Principal:
For a period of time (1985-1990) he was registered as a lobbyist for the South Carolina Bar Association. On a few occasions, he made presentations or contacts regarding pending legislation on behalf of the South Carolina Bar. He was not paid for this work and in general the activity related to such items as rules of court and other matters that affected the bar and public.

On one occasion several years ago (1982?), he appeared before a legislative committee on behalf of the Tamassee DAR School at a public hearing regarding pending legislation that related to children. He was paid for this appearance.

On another occasion in the 1980's, he appeared before a legislative committee on behalf of the S. C. Trial Lawyers Association regarding legislation that related to the statute of limitations of contractors and architects. He was not paid for this appearance.

45.     Bar Associations and Professional Organizations:
South Carolina Bar Association, member of Board of Directors, 1983-1986; member, South Carolina Bar Foundation, Board of Directors, 1981-1985 (President, 1984-1985) and Participating Fellow; member, Board of Commissioners on Grievances and Discipline, 1974-1977 (Chairman, 1976-1977); American Bar Association; Association of Trial Lawyers of America; South Carolina Trial Lawyers Association

46.     Civic, charitable, educational, social and fraternal organizations:
Member of Seneca Chamber of Commerce; Member of Seneca Sertoma Club; Member Episcopal Church of the Ascension of Seneca, South Carolina

48.     Five (5) letters of recommendation:
(a)         W. M. Steele, Vice President
Community First Bank
P. O. Box 459, Seneca, SC 29679-0459
882-2575
(b)         C. Thomas Cofield, III, Esquire
P. O. Box 448, Anderson, SC 29622
226-5678
(c)         R. F. Nalley
702 Ploma Drive, Seneca, SC 29678
882-3143
(d)         Henry E. "Jack" Jennings
409 Dougberry Street, Seneca, SC 29678
882-4558
(e)         Julian L. Stoudemire, Esquire
P. O. Box 99, Seneca, SC 29679-0099
882-1480

The Board of Commissioners on Grievances and Discipline reports, there are no formal complaints or charges of any kind have been filed against you. The records of the applicable law enforcement agencies: Oconee County Sheriff's Department are negative; Seneca City Police Department are negative; SLED and FBI records are negative. The Judgment Rolls of Oconee County are negative. The Federal Court records are negative.

We do have one complaint that's been received and one witness I understand who is present to testify and who will testify after you and you will be given a chance to respond to that.

We -- at this time, as I noted with Senator Macaulay, for new candidates such as yourself, we're giving you the opportunity to make a very brief, five minutes or less, opening statement, if you care to.
REPRESENTATIVE ROSS:     I waive opening statement.
THE CHAIRMAN:     We very much appreciate that waiver. I'll turn you over at this time to Mr. Elliott for questioning.
MR. ELLIOTT:     Thank you.
THE CHAIRMAN:     Thank you.
MR. ROSS - EXAMINATION BY MR. ELLIOTT:
Q.     Good morning.
A.     Good morning.
Q.     Your Personal Data Questionnaire indicates a more limited experience in the area of criminal law and really in jury trials as well. I think it was one percent of your practice over the last five years was in criminal law and then five percent during the same period was jury work. Could you give the Committee a little better feel for what those percentages represent in terms of numbers of cases?
A.     Well, it would be almost no criminal work because the world is such that no one person can do everything. And there is several people in my firm and there is no way that all of us can do -- go do everything, so I -- other people in the firm do criminal work.

I from time to time am in on conferences and examination of witnesses and those kinds of things, but in the last year or two, I've only been involved in one criminal trial and I didn't stay for the whole trial. In jury trials, that's some degree true, although I do jury work, you know, but what I do is I do everything I can to try to settle cases, so I don't have a jury trial.

A jury trial is a last resort for us for several reasons. One is the cost of litigation has become so expensive that you just absolutely eat up everything in the cost of litigation. I had a case I was supposed to try for Judge Anderson on Monday after Christmas and I worked all that weekend and finally got it settled on Sunday before it was to go to trial and that's the pattern that we've been in.

But I maintain that if Benjamin Perry came back, who was born in Oconee County in eighteen five and became the sixth lawyer in Greenville and was a famous lawyer of the day in the upstate, first, you know, he was a provisional governor of South Carolina after the Civil War, reestablished the government authority. I maintain if he came back, that he could go do trial work. He'd have to go get himself reeducated in the current changes, but particularly and truly in criminal law. You know, you would have to reeducate yourself with the latest developments and go to seminars and those kind of things, but the basic format of a jury trial and criminal trial hasn't changed and it's the same now as it's always been.

I mean, we've changed the rules and we've changed the -- we've got the comparative negligence and these kind of things, but the basic structure of it is -- it hasn't changed. It's just like I grew up with my father wiring houses. The fact I hadn't wired a house lately don't mean I can't, so that's -- I mean that's -- I don't believe there is any kind of detriment.
Q.     How would you bring yourself up to speed on those areas where you do have limited experience?
A.     Well, I wouldn't say I have limited experience at all. I have limited recent experiences. I mean -- well, one thing, too, is, of course, we have in the office -- in our office now all the opinions on computer from '69 and you know that's all coming out in disk, so that you can go back indefinitely, so that if you have a problem, you go to the computer and you punch up that problem as opposed to trying to keep yourself versed in everything that came down which is now impossible. No one can keep up with all these answers.

So I would, of course, bring myself up in the area of criminal law in terms of going to seminars and reading all the advance sheets and those kind of things as necessary. But I don't feel like that there is -- that my -- the fact that I hadn't tried a jury case in criminal law recently is any kind of detriment for the reason that I mentioned because -- or anybody else that is doing the kind of trial work and criminal cases I've done. It's just a matter of going back and doing it.
Q.     Your Personal Data Questionnaire indicates that your practice largely centers around complex cases.
A.     I've done a lot of complex cases, that's true.
Q.     What do you mean by complex cases? Could you give us some examples?
A.     Well, the Walhalla Middle School case which is some years ago which involved numerous defendant -- ten different defendants. You know, I think I -- there was a day we eventually worked out a way to settle it. We had 26 big notebooks with all the information stored in it.

I've been involved in complex securities cases in a variety of cases that are more complex. I've been associated and am associated by other lawyers to assist them with cases. Recently, I was associated with a lawyer in Anderson to assist him with a case that was tried in Columbia. I was recently -- last year assisted another lawyer in Seneca to help him with a case that involved a statutory construction which was tried and went on to appeal and that not -- it doesn't happen every day, but from time to time I am associated by other lawyers to assist in things that one reason or another they don't want to do, either it involves complex calculation, complex research, complex brief writing, those kind of things that I'm willing to sit down and do and have done, know how to do.
Q.     Your Personal Data Questionnaire also seems to indicate, and correct me if I'm wrong, that because it's -- you handled complex cases that you tend to focus on those and maybe handle a fewer number of cases?
A.     Fewer number of cases. That's true. That's true. Let me just say this about that. You know, everything is more complex than it used to be. I practiced law in Columbia for six years before I went back to -- a total of seven before I went back to Oconee County where I'm from. You know, it was a long time before I had a file that was larger than an expanded file. A long time. I don't have a case that's not in a bank box. You know, I don't think I have a case that's not in a bank box.

Some of the reason for that is because of discovery and computers and various things were more complex and you're able to handle a fewer number of things really if they are complex and other people handle other things that I
-- they assist me on things that -- the appellate work and things that are more complex.
Q.     As a circuit judge, obviously, you'd be required to handle a large number of cases, in the hundreds, will that be a problem for you?
A.     It wouldn't be a problem for me. Now keep in mind, I practiced law in Columbia for seven years and went back to Oconee County and practiced for 25 years. I've done everything that you can think about. I've tried breaches of peace cases in Winnsboro and I've tried assault cases in Eastover and I've tried every kind of case. I've gone to inquests in Gaston.

When I practiced in Columbia, I started doing defense work, then I was a law clerk for a federal judge, came back, practiced with Gene Rogers and Heyward McDonald in a plaintiff's practice. I handled criminal and plaintiff work and all kinds of things. By the time, I left six years later we were again back in defense work.

When I went to Oconee County, I did defense work. I've done hundreds of cases small and so I know how to do that and try to, when it's possible and the people want to, get those kind of cases settled with a pretrial conference. But it doesn't make any difference in terms of the trial of the case whether it involved a little bit or a lot. The basic mechanism is exactly the same.
Q.     I guess I was asking more in the sense of just managing a larger number of different varied situations and cases and if -- what is now and has been your practice?
A.     Well, I don't think that -- I think I'd be good doing that.
Q.     On your Personal Data Questionnaire, you also mention some involvement with the Estate of S. Bruce Rochester?
A.     True.
Q.     And it indicates that you managed the business affairs for that estate, but you -- and there were a number of legal problems, but you did not handle the legal work for that estate; is that correct?
A.     I did not handle any direct legal work for the estate. I did things -- maybe I did a deed and those kind of things and it all legally related -- a lot of it was related, but the litigation -- all the litigation, I farmed out to other lawyers.
Q.     I'm a little bit confused about what the relationship to that estate was. What role or --
A.     For me?
Q.     -- capacity -- yes, sir.
A.     Oh, yes. See, I was at a seminar -- briefly, I was at a seminar up in Wisconsin and one of the members of the family -- I had in the past represented the estate of a fellow who did, Bruce Rochester, but I was no longer involved in any way. It had gone to some other lawyer.

Anyway, they came to -- brought the materials up from Madison, Wisconsin, asked that I would function as
-- to take over and be general counsel, if you will, to the estate in trying to manage it and do whatever is necessary to be done and I fashioned a trusteeship. Really, had the -- had that done in Columbia as a matter of fact and it was before Walter Cox who now is on the Civil -- on the Military Court of Appeals.

We fashioned a trusteeship whereby under the direction of the court who would approve my fee and approve what was done, I would manage this estate. This estate owned an interest in a retirement community. It owned an interest in a plant nursery. It owned an interest in a construction company. It had a lot of debt on a 400 residential lot. It had -- this was the period of 21 percent interest. It had six houses on the market, that had been on the market for more than a year.

It was a big manageable problem and they wanted me to -- thought I could handle it and I agreed to do it and did do it under this fashion, unique hybrid trusteeship that I fashioned under the direction of the court whereby we handled the problems. We sold -- got the houses sold and did everything that you do to try to get the estate managed and finished and going. After a period of 22 months or something, then I resigned.
Q.     In your PDQ you also mention that there was lawsuit associated with that, that you're named as a defendant --
A.     Right.
Q.     -- regarding a tax return --
A.     Yes.
Q.     -- for the estate?
A.     The -- I was, as I said, the head general counsel. It was a unique position that I held under the supervision of the court responsible, though, for most of the activity, hire and fire and all that.

Before that time during the middle school case or sometime, we had hired in the firm a young lawyer from the trust department of a bank who we hired to do trust and wills and corporate work and that kind of thing. I turned the estate tax return and all those matters over to him and I didn't -- you know, I mean I selected people to do various work and it stayed principally based on who had time and who had extra needs.

A number of other lawyers, though, handled litigation involved in that. Not always my firm. A lawyer in Anderson handled a case in federal court involving a violation of the federal wage and hour law. Other lawyers in the community. There was enough legal work to go around. Anyway I assigned that work to him to handle it, do the estate.

After -- it was the last day before the -- I didn't
-- I suppose if somebody had assigned me the duty, if I had the duty of doing the tax return, I would have gone and taken whatever time, effort and energy it was to file the estate tax return, but I was not. I mean I had gotten out of that.

We had hired this young fellow from the trust department of a bank to do that kind of work and I got out of that business of trying to do -- file estate tax returns. And during this period of time, didn't have the time nor the expertise to deal with it and I turned it over to him.

Anyway after I got out of the estate after 22 months and on the day the statute of limitations ran, I was notified that the young lawyer who handled the estate and I were being sued because of mistakes that were made in preparation of a tax return and I main--- I didn't -- I was named -- well, I don't know why I was named, but anyway I was named, but I didn't prepare the tax return.

I didn't have the expertise or the time to prepare the tax return. Didn't file the tax return and so that was the -- how that went -- the way that was.
Q.     How did you select -- I believe it was Mr. Merritt in your firm?
A.     Right.
Q.     Did you select him based on the time he had available?
A.     Well, time available and we hired -- we had hired him out of a trust department of a bank. That was his expertise --
Q.     Expertise?
A.     -- was to do trust estates and file tax returns and that's why I hired him and he had the time to do it. And Mr. Stoudemire, my law partner here with me today, he handled some things involved in that estate. Jerry Fedder, a Senator, handled some things in that estate. Tom Cofield that I've -- a lawyer in Anderson handled the wage and hour law case that I tried in federal court. You know, there were a number of attorneys. Jim Williams, I think. Larry Brandon in my firm handled some other things.

There was a lot of legal business to go around and, you know, I picked him because I had confidence in his ability and we hired him to do that kind of work.
Q.     On your PDQ, you mentioned that you had some interest in some buildings and that you would, if elected to circuit court, would divest yourself --
A.     I would have to divest myself of those interests.
Q.     You also mentioned Professional Properties, Incorporated which writes title insurance and it looks like you and Mr. Stoudemire are the stockholders --
A.     Owners.
Q.     -- in that and you indicate that you would cease any activity relating to the writing of insurance?
A.     Yes, I get --
Q.     What do you mean by that?
A.     I wouldn't have anything to do with that. I'd get out of that entirely. Divest myself of any interest in it.
Q.     You'd no longer be an officer in that?
A.     Well, that title -- the corporation owns other property, but we would take -- I would get -- I would have no interest in the title business. I'd get it out of that corporation and anything that I had anything to do with it. I wouldn't have any interest in that.
Q.     I guess I'm interested a little bit in how you would build that Chinese wall between you, if you're an officer in that corporation --
A.     I just wouldn't write any more, but -- between the corporation -- now the corporation owns the property, real estate in addition to doing this title business. We just operate the title business through the corporation. The corporation would just cease to be involved in the title business completely.
Q.     All right.
A.     I'd still have an interest in the real estate that it owned, but it wouldn't be involved in the title business. Somebody else would do that. It wouldn't -- that would cease to be a part of this business activity.
Q.     What do you consider to be good judicial temperament?
A.     Well, you know, I was thinking about it on the way down here. Like Senator McConnell said, you know, I've been a number of times where the case was tried before I got there and I've also been to a few judges -- not recently, but I've been to judges who were discourteous and I can recite to you every single incident when that happened and tell you all the facts because it stuck in my mind very vividly and, you know, I'd never be a party to those kind of experiences that I've been subjected to.

I believe the only thing I've ever asked from any judge that I've ever appeared before, and there have been many across the state, is that they give me a fair hearing and listen to what I've got to say and they exercise their best judgement, the only thing I ask. And I guarantee you, I would listen to everybody and give everybody a fair hearing and I would be available and open and I can't say I'd make the practice of law fun, but I sure wouldn't punish people. I'd make it as pleasant as I possibly could for the litigant and the people in the court.

I think we've gotten away from that and for a trial lawyer -- anybody who tries cases knows that to be a fact. We've lost a lot in the last several years in the way lawyers are treated and litigants are treated. Not necessarily from anybody's fault, but that's just kind of been the way it was written and that's very painful for the people who are out there, as I say, the people trying cases and I'd have no part of it and people would be treated courteously and fair and impartial in any court that I had anything to do with, like I've always wanted to be treated.
Q.     Now you've also, on the PDQ, indicated you've served as an arbitrator on a panel of arbitrators, so you've had a chance also to demonstrate that. Did you meet your own definition of judicial temperament?
A.     I did. I think I did. As a matter of fact, I've been selected now to be an arbitrator in a case. It hadn't been decided yet, but the people picked me out and called me up. There's all kind of conflict of interest and they disregarded that and waived all that if I'd agree to hear it. It involved a construction case. I'm not perfect now. I don't mean to tell you I'm perfect. I'm not perfect.

The other thing I have is nobody who knows me will tell you that they don't know where I stand. Everybody knows where I stand. I've -- and sometimes to a fault, but, anyway, I'm just what I am.
Q.     Briefly, I feel like I need to give you the same opportunity. The Bar made similar findings about that. Some people question your judicial temperament. How do you respond to that?
A.     Well, I just -- I think that is not true. My experience with the Bar was they called me, when, last Monday and said they wanted to interview me on Tuesday and I went down and met with the panel for 30 minutes or something.

I don't have any idea who they called or whatever, but I have confidence in the -- if that is a legitimate charge against me, people in this Legislature know it because a lot of people in the legislature know me. On other hand, if it's not a fair charge against me, they also know it because I work with people in the Legislature, in this Legislature and prior Legislatures, on a great many issues and with a great many number of people -- problems, and I think that my general reputation be it good or bad, there is nothing I can do about that, notwithstanding what the Bar said.

You know, I didn't pay much attention to what the Bar said because I feel like the people who know me -- if that's true, I can't do anything about it and I don't think it is and people who know me know that that's not a fair charge.
Q.     Have you sought directly or indirectly the pledge of a legislator's vote for you for circuit judge?
A.     No, I haven't done anything. I haven't approached anybody.
Q.     Are you aware of any solicitation on your behalf which you did not authorize or request?
A.     No.
Q.     And we don't have any -- no indication that you've had any campaign expenditures. Is that accurate?
A.     That is accurate except coming down here today.
Q.     Thank you. That's all.
A.     And coming to Columbia the other day for the meeting with the Bar is the only other thing I've done.
Q.     Thank you.
THE CHAIRMAN:     Mr. Ross, what's your Martindale-Hubbell rating?
A.     AV.
THE CHAIRMAN:     Any other questions? If not, thank you, and again, if you would just please be seated. You'll have a chance to respond to the testimony which we will now hear. Mr. Frank Kennard. Am I pronouncing that correctly.
MR. KENNARD:     You are. Thank you.
THE CHAIRMAN:     Thank you. Mr. Kennard, please raise your right hand.
FRANK L. KENNARD, having been duly sworn, testified as follows:
THE CHAIRMAN:     Thank you very much. I'm going to turn you over to Mr. Elliott, our staff counsel.
MR. KENNARD - EXAMINATION BY MR. ELLIOTT:
Q.     Good morning, Mr. Kennard.
A.     Good morning.
MR. ELLIOTT:     Mr. Chairman, Mr. Kennard a large part of his complaint relates to an order of the Public Service Commission and I have obtained a certified copy of that.
THE CHAIRMAN:     All right.
Q.     If we could, we need to establish -- since a lot of your complaint relates to that order, establish some of the facts in that order. Mr. Kennard, you're a resident of the Keowee Key subdivision?
A.     I am.
Q.     In Salem, South Carolina, is that where it's located?
A.     Yes.
Q.     If you would, if you would review for us for a minute those portions of the PSC order that relate to your complaint against Mr. Ross.
A.     Well, I would say first that my complaint against Mr. Ross it solely relates to actions involved in the Public Service Commission matter and the nature of my testimony is to reflect the report on his conduct at least as I observed it as adversely effecting his qualification to be a judge.

I have particular reference to the application of the South Carolina Public Service Commission, which you have a copy I believe for approval of the transfer of the Keowee Key subdivision water and sewer facilities from Realtec. Mr. Ross was representing the Keowee Key utilities, the supposed purchaser.

Having received a notice of this hearing and so forth, quite by acci--- I had learned independently that title to the real -- the sewer property -- water and sewer property had already been transferred and filed at the court house prior to the hearing.

Furthermore very accidently, I had never met Mr. Ross before in my life. I was at a function in South Carolina at which Mr. Ross came in the door and I introduced myself to him. I inquired was he the Ross of Ross, Stoudemire and he was and knowing that Ross, Stoudemire handled the legal work for Realtec who was the seller of the utility, I questioned him about the transfer that he was aware of it and I expressed my surprise that the transfer had been carried out before approval of the South Carolina Public Service Commission.

His response to me was, and I'm quoting as substantially accurately as I can remember it, one, he had handled the legal work personally and, two, it was a routine matter.

When the hearing finally took place and subsequent order of the Public Service Commission, the Commission stated in part in the hearing which you have a copy, it appears that everything associated with this transfer has been completed and all that was left for the Commission to do was quote rubber stamp the transfer and also the violation of the Commission's regulations are so egregious that the Commission must deny the transfer request.

There was an attempt to rectify the situation and application for a rehearing and a subsequent order issued by the Commission of which you have a copy states in part, quote, the attempt after the fact to rectify the violation is not sufficient. The Commission cannot tolerate the practice engaged in this by the Petitioners. While it may not have been the Petitioner's intention to avoid or to violate its rules and regulations such did happen and such should not be standard industry practice. And that's a quotation.

It is my view that Mr. Ross -- the candidate Ross by assisting his client in the egregious violation of the rules and regulations has demonstrated he's not qualified to be judge of the Circuit Court. I think you have copies of the various documents including the deed which he has initialed, the agreement, bill of sale, which he witnessed and the Public Service Commission orders. I have copies here if you need them.

I would also like to state that in response to the South Carolina Public Service Commission and in exercise of my right as a citizen, I was an intervener in the hearings before the Public Service Commission. Although I was only an intervener, Candidate Ross filed a petition in the Court of Common Pleas. That's case number 93, Common Pleas, 1980 seeking relief from the Public Service Commission order and naming me individually as a defendant, even though I was not a proper party for court review and the petition did not state a cause of action.

This case was dismissed in November 30, 1993 with prejudice. I do not take it lightly being named a defendant without proper cause. In my opinion, Candidate Ross' action in this case further demonstrates he's not qualified to be a judge of the Circuit Court.
Q.     Is that your --
A.     That's my testimony.
Q.     Well, Mr. Kennard, of your own personal knowledge, the only information you have about Mr. Ross' involvement relating to the transfer of the realty was based on your experience at that public meeting or at the public gathering where you ran into him; is that correct?
A.     I believe he was the -- represented his client in the Public Service Commission in 1987. He may have been there. I was at that hearing. He didn't know me. I didn't know him.
Q.     I mean with regard to --
A.     I've had no other contact whatsoever with him except in his -- the meeting directly that I speak of where I personally talked to him and where he may have appeared in the actual proceedings before the Public Service Commission.
Q.     And he mentioned the legal work was a routine matter. Did you have any idea -- was there any further discussion what that meant? What routine work was? What that legal work was?
A.     No, I did not. I would offer parenthetically that this whole proceeding which lasted almost two years and which ultimately resolved in the citizens of Keowee Key being able to buy the utility on the same terms as was originally proposed to sell, it took two years and a lot of effort before the Public Service Commission and the -- the deed and the transfer of the deed before the fact made me feel that it was, quote, a done deal, close quotes, and it's only because the Public Service Commission denied the situation in the first place that we were able then to do our homework and find out what was really involved here.
Q.     Since we don't know of our personal -- of your own personal knowledge, other than your conversation at that gathering; assuming Mr. Ross advised his client or advised Realtec -- Realtec was his client -- and he advised them about this transfer, do you have any information that would suggest whether this was an error in judgment or an intentional violation of the rules and regulations of the PSC, the Public Service Commission?
A.     I'm not a lawyer. I have no -- no knowledge. I could parenthetically add that in the reference to the filing by his -- as an attorney for his client and the appeal before the Common Pleas court, I received a copy of the complaint because I was named.

The complaint was incomplete. There was missing language from the complaint which I discovered, so I called his law office and said, "I need to understand why I'm being named a defendant in. You cannot read this complaint because there is language missing from it."

Following that, there was an amended complaint filed which was complete. At that time I said, "I don't understand why I'm being named as a defendant," but nonetheless, I was. I subsequently got a notice from the court making my attendance at the court for a roster meeting mandatory.

I called his office again and wanted to know what's going on here. I thought this case was being dismissed. Well, ultimately, it was. But I just think that -- I guess I would say it was sloppy legal work, certainly, and whether he -- how he advised his client in this whole proceeding, I don't know.
Q.     Or if that was his responsibility? I mean you don't really know if that's the case or not?
A.     I can only quote the language of the Public Service Commission order.
Q.     Does that order reference Mr. Ross at all?
A.     No, it refers to the egregious violation of the -- I don't know how -- he's acting as an attorney for his client, so his client -- the applicants were the ones who violated. That is to say, Realtec was his client and I assume Utilities, Inc., who was also a client -- not his client, but also an applicant, and -- but I believe technically it is his client who was applying to the Public Service Commission for the approval of the transfer.
Q.     And in a minute we'll ask Mr. Ross about his involvement and what his relationship was to Realtec. Thank you.
MR. ELLIOTT:     That's all I have.
REPRESENTATIVE ALEXANDER:     Let me have --
THE CHAIRMAN:     Yes. Mr. Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q.     Did Realtec furnish the residents of Keowee Key's water and waste treatment?
A.     Yes. Well --
Q.     Prior to the actual transfer of --
A.     The water and sewer service -- water and sanitary sewer service is part of the development and it was provided by the developer who since 1976 has been Realtec, so I believe the answer to your question is yes. At no time did they ever offer to sell the utility to us, the property owners.
Q.     None of your people had any representation with Realtec as -- did you know who owned it really at that time?
A.     Know who owns the --
Q.     Realtec, who owns it?
A.     Well, Realtec is a private corporation of which there is one shareholder and Lake Keowee Utilities, the corporate entity was originally a subsidiary of Realtec, but in 1986 there was a corporate reorganization and all the subsidiaries of Realtec were merged into one known as --
Q.     No one in your area had any financial interest in Realtec?
A.     To my knowledge, no. There is only one shareholder, that's Richard Ford.
Q.     Do you know who he is?
A.     Of course.
Q.     And where does he live?
A.     Well, he used to have a residence at Keowee Key. He's had a residence in Atlanta, but the scope of his activity and -- Mr. Ross can tell you, but I think he lives in Virginia. I'm not sure, but he sold his residence in Keowee Key within the past 12 months, but up until that time frame, he had a residence in Keowee Key. And as of the latest date that I know of he still is the sole shareholder of Realtec.

The utility actually finally was transferred by Realtec to the Keowee Key Property Owners Association, October 30th, 1993.
Q.     So you have a board of directors to operate it now?
A.     We are -- have commenced to operate it, yes, sir.
Q.     Okay.
REPRESENTATIVE ALEXANDER:     That's all.
THE CHAIRMAN:     Mr. Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q.     Mr. Kennard, is it your contention or allegation that Mr. Ross knowingly assisted his client in violation of the rules of the Public Service Commission?
A.     I don't know. You know you asked me knowingly, it seems to me that this modus operandi, or whatever you call it, routine may have been the basis of operation in the past. I don't know that.

All I know is that -- the scenario events, first, there was a purchase contract signed dated in December of 1991. This purchase contract had onerous conditions in it, which among other things provided for a bonus payment to the seller if an increase in rates of no less than one hundred percent were obtained by the seller.
Q.     I understand that, Mr. Kennard.
A.     Now --
Q.     My question, it doesn't necessarily lend itself to the contract -- the contents. I mean that's between two parties, even though they may not have been the best terms, I don't think that's the issue here. The issue, I think, goes to the character of Mr. Ross.
A.     Right.
Q.     And the question then becomes did he knowingly assist his client in violating the rules of the Public Service Commission?
A.     Well, I -- after all, he's an experienced lawyer, he knew what the rules were and his initials --
Q.     Now you say he --
A.     His initials are on the agreements.
Q.     Good question. You say he knows what the rules were?
A.     That's right.
Q.     Had he represented this client at any other time before the Public Service Commission in the sale of utilities to your knowledge?
A.     To my knowledge, I have no knowledge that he ever did.
Q.     Well, what is your knowledge?
A.     I know that he's been the counsel -- corporate counsel or provided corporate legal services to Realtec and -- for a number of years.
Q.     Prior to this transfer?
A.     And continuing to this day.
Q.     And it appears from the documents that I've reviewed that there was another law firm in Columbia involved in this transaction and, in fact, represented this utility before the Public Service Commission?
A.     Utilities, Inc. That's correct.
Q.     Now --
A.     That's Willoughby and Hoefer.
Q.     Then the question is were they involved at all prior to the Public Service hearing?
A.     Well --
Q.     Did they do the --
A.     They were -- they -- I don't know what the legal technicalities are. The applicant before the Public Service Commission was Realtec and I would assume that insofar as the transfer was concerned, Utilities, Inc. was a co-applicant or a joint applicant. I do not know technically. They were represented at the Public Service Commission, but they were representing only Utilities, Inc., not Realtec.
Q.     Did Mr. Ross represent Realtec in its initial application for approval when this sewer service was established?
A.     I have no way of knowing. The sewer -- the sewer service was established by Certainteed (phonetic) the prior, the original developer.
Q.     Well, did Mr. Ross handle the transfer between Realtec and Certainteed?
A.     He'd have to answer that. I don't know. It was a -- the transfer took place in 1976 and was legally between Certainteed Products or its subsidiary and a straw corporation known as Psi (phonetic) Corporation of which Mr. Ford and other unnamed people were the principals.
Q.     Was Mr. Ross at all involved in those transactions?
A.     I have no idea of that.
Q.     So then your knowledge of his knowledge of the rules and regulations of the Public Service Commission, you don't have a basis for that?
A.     Except that he was counsel as far as the -- the application in 1992 --
Q.     And the --
A.     -- for Realtec after -- and there was a lengthy process between the signing of the purchase agreement which took place in December, 1991 and the filing of an application before the Public Service Commission which was in March of 1992.
Q.     Who handled the filing of the application? Did Mr. Ross handle that?
A.     I believe his -- I assume his firm represented -- he was representing Realtec. He could answer that, but that three month period between signing of the agreement and the filing was the period in which the various legal work was done to provide a legal description of the property, a survey of the property and actually record the deed of transfer.
Q.     Well, Mr. Kennard, this is -- I'm getting to -- this is what I'm attempting to get to is the fact that deeds are drawn all the time by lawyers by someone that simply walks in the door and says I want to sell this property?
A.     Right.
Q.     Now does that put a burden on the lawyer to research the reasons why these folks are selling the property and whether or not it violates some law or some rule somewhere?
A.     Well, it seems to me, and I guess I'm just speaking what you would say as an individual, that when I go to a lawyer and I want some kind of a transaction, I expect the lawyer to, one, know how to do it; know, two, what the rules are for doing it and, number three, to give me some advice on the best way to do it, but he's acting as an attorney for me. He's not responsible for me.
Q.     Well, are you alleging then that the deed was transferred improperly?
A.     It was -- the deed was transferred legally correctly, I'm sure.
Q.     Are you alleging then that the agreement -- the sales agreement was done improperly?
A.     No, there is nothing wrong with somebody selling his property on any basis he wants to.
Q.     So there was nothing wrong with the legal work itself?
A.     I'm not judging that at all, but --
Q.     Okay.
A.     -- it was part of a -- of a procedure. Not legal, some legal, otherwise, I don't know how to describe it. It's a whole series of events and I'm saying that to my knowledge Mr. Ross acted as an attorney to his client in this -- in his participation, that is the client's participation, in these events and those events included an egregious violation according to the Public Service Commission of its rules.

That is the rules of the Public Service Commission of the State of South Carolina and I suggest that that is evidence that you're not qualified to be a judge when you don't go by the rules of a commission of a public body of South Carolina. That's all.
THE CHAIRMAN:     Mr. Kennard, and I think we're going to get to the heart of the matter on this, we need to inquire of Mr. Ross about the background on this representation. So any further questions? Mr. Elliott?
MR. ELLIOTT:     No, sir.
THE CHAIRMAN:     Thank you very much.
A.     Thank you.
THE CHAIRMAN:     Mr. Ross -- you're still under oath. If you wait just a second, we need to get set up. Mr. Ross?
MR. ROSS:     Yes.
THE CHAIRMAN:     I think the heart of the matter is your involvement with the transfer of the property. If you'd explain that to us, please, sir.
MR. ROSS:     Realtec is a land development company that developed the Keowee Key. Keowee Key is just basically a retirement community. Utilities, Inc. is a utility company that owns a number of utility systems in South Carolina and most of them I think are under the name of Carolina Water System or something like that. Maybe 20. They may own 20 systems.

Realtec has a lawyer who works for them in-house,
Gary Steadman. He's been with them for a long time. Utilities, Inc., of course, is headquartered up in Illinois or somewhere and they have all kind of in-house counsel.

I had -- I just -- this contract for the, you know, the two transfers and we don't want them confused, but the contract for the sale of this water and sewer system was negotiated between -- principally between a fellow named Jim Cameron and Gary Steadman, who is in-house counsel for Realtec. He's a lawyer admitted to practice in the state of Illinois and has been with them for years.

I didn't have anything to do with that contract. I never negotiated the contract. I didn't have anything to do with typing the contract or anything of the sort. They never -- nobody ever called me about the contract. They never consulted me about the contract. I didn't have anything to do with it.

At some point they called me and said they wanted me to handle the deeds and bill of sale and those kind of things which would transfer the asset from Realtec to Utilities, Inc. and they wanted me to help them with the closing. They came down in March.

At some point I went to the courthouse and got all the stuff together and I prepared the deeds and the bill of sale for the personal property and other things that had anything to do with it. They all came down to my office on March 6th. It took all day. It's nothing like a house closing where you have those kinds of things that they wanted, this party wanted that and whatever, so I attended all those kinds of things. Nobody ever consulted me about this.

Keep in mind we're talking about Utilities, Inc. who was buying this and who was really drawing the contract or the larger utility company. They were in the business. They're over at the Public Service Commission all the time.

I've never -- I had never handled a sale of a utility company of any kind. I've been over to the Public Service Commission, but I had never handled a sale of any kind of utility system over there. If they had called me about this contract or I had negotiated the contract, I don't know what I would have done, you know, but I don't -- I mean I didn't have anything to do with it. Didn't do it.

We did the closing on March the 6th. I delivered the deed, executed the -- had the people execution (sic) and my recollection the -- anything about the rules or whether or not this would fly with the Public Service Commission was never raised to me in any shape, form or fashion.

At the end of that day, you know, I gave Real--- you know, I gave Utilities, Inc., who was buying the system a bunch of files that I accumulated that were related to it. They had had me in the past -- Realtec had had me accumulate some costs on some things. I delivered all that stuff to them and put it out of my mind. I went on to something else. I did not participate in any manner in the transfer or the approval for the sale before the Public Service Commission.

I didn't prepare any document. Mr. -- Utilities, Inc. did the work. They did all that. They -- as far as I know I'm sure Utilities -- people from Mr. Willoughby's office -- Willoughby and Hoefer never talked to me about it. I gave no advice about it. Nobody talked to me about it. You know, I had done what I was asked to do and that was a deed and a bill of sale and a closing. And I never talked to anybody at the Public Service Commission about this deal.

Now, this was a big hoo-rah-rah (phonetic) in Oconee County and I probably did read newspaper account. They had a night meeting up in Oconee about it and all. I didn't go to the meeting. I never went over to the Public Service Commission. I didn't have anything to do with anything from then until the Public Service Commission had refused the transfer when Hoefer and Willoughby, somebody from their office sent the deed to my office and asked us if we would take that deed to the court house and record it. They had prepared it.

We did that. The next thing that happened was then
-- that I had anything to do with, I still was not involved in it. Then sometime in late November, December of 1992, they called me and said they were going to file a new application and would I -- they reconveyed the property and all that, would I represent Realtec in this new application, which I agreed to do. Went down to the Public -- came down to the Public Service Commission and reviewed the file of what had transpired in the past because I didn't know. And that was my involvement in it.
THE CHAIRMAN:     Mr. Elliott.
RE-EXAMINATION BY MR. ELLIOTT:
Q.     The events that the Public Service Commission found to be offensive or the egregious violation really hinged on the transfer, that is, and they cited the closing and the transfer of the deed prior to the application and approval of Public Service Commission?
A.     Yes, but even though the contract provided that it was a conditional sale. It said the transfer was good -- in effect only if approved by the Public Service Commission, but that's -- that's true.
Q.     Do you have any obligation when you're the draftsman of the deed and you're arranging the closing to look behind that to look at the contract of the transaction between the parties?
A.     Well, it depends on the circumstances. In this situation where I had two educated clients, Utilities, Inc. and Realtec. Utilities, Inc., you know, I mean they're over at the Public Service Commission all the time. I had no reason to go behind those people under the conditions. I had no reason to search that out.

If it had been my responsibility to negotiate this contract from the first instant, I probably would have gone to the Public Service Commission said "How about this?" simply because I had never done a transfer, you know. When you've never done something, you're a lot more careful than if you've done it in the past.

I probably -- because I know people over there and I'd probably have gone over there and I said "What do you think about this?" But I didn't have anything to do with the contract.

They told me -- my client told me to do the deed and I did the deed between two clients that I assumed knew what they were doing and they had negotiated that out and knew what they were about.
Q.     Okay. I don't have any further questions.
THE CHAIRMAN:     Mr. Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q.     So, Mr. Ross, is your testimony that your sole involvement in this situation as to the contract was to serve as a witness --
A.     Well, I prepared the deed.
Q.     You prepared the deed, but what about the contract?
A.     I don't think I witnessed the contract.
Q.     So you just witnessed the deed?
A.     Yes. I don't think I had anything to do with the contract. The contract was shipped to me from somewhere else.
THE CHAIRMAN:     Now, there is an agreement in the file, Mr. Ross. An agreement, bill of sale and assignment of easement, which you apparently witnessed.
A.     Yes, but that's not the contract. The original contract for the sale of the utility was prepared I believe by the Utilities, Inc. sent to Gary Steadman.
Q.     And that's their lawyer? Gary Steadman was someone else's lawyer --
A.     Realtec's lawyer.
Q.     Realtec's lawyer?
A.     Realtec's lawyer.
THE CHAIRMAN:     Now --
A.     Gary Steadman. The bill of sale and whatever you got, I don't know what you've got, but all that -- those documents connected with the deed was not the contract that we're talking about.

The contract that we're talking -- the original contract -- was for the sale was a contract between Utilities, Inc. and Realtec that was negotiated between those two people and it was dated -- I don't know when it was dated. It was dated sometime in '91 and provided for the sale of the utility subject to the approval of the Public Service Commission.
Q.     Now, it's my understanding that Mr. Kennard's allegations are that you assisted Realtec, I believe, in circumventing the rules; is that correct? I'm assuming that that is his allegation. You're saying that you didn't even have anything to do with this contract and that Realtec had another lawyer, in-house counsel named --
A.     Gary Steadman.
Q.     -- Gary Steadman.
A.     They got -- they did the contract. I did not negotiate the contract.
Q.     Now, who is Jim Cameron or someone --
A.     He's Utilities, Inc.. He's not a lawyer, but he's -- I don't know, but, you know, he is the man who negotiates for them, had a lot to do with the sale of this company, with the purchase of this system and I think he was the fellow who structured the deal.
Q.     So am I correct in summarizing in saying that what these folks did is walk in your office and say we want you to prepare the deed for the transfer of this particular piece of property?
A.     Well, I mean, they called me earlier and said we want you to get -- get your stuff together to prepare the deed to effect the legal transfer of our asset to Utilities, Inc. That is correct. They never sought my advice about it.
Q.     And you've not represented these Realty, Inc. -- Realtec rather, before the Public Service Commission before?
A.     Oh, yeah. Oh, I had done a rate increase back in '87. Yes, sir, I had done -- well, let me back up. It wasn't a rate increase. It was to establish rates.

Realtec for many, many years gave the water and sewer service away. They didn't charge anything for it and so we went and got rates established. You know, you can't charge rates unless the Public Service Commission approved it and so we went to the Public Service Commission and had the rates approved. That's the--
Q.     Mr. Ross, I have two other questions. The first being when Realtec purchased the utility, did you handle that purchase?
A.     No. When Realtec bought it, I didn't have anything to do with that.
Q.     At the time you transferred this property or handled the drafting of the deed, if you will, did you know whether or not Realtec or Utilities, Inc., I believe it is, had applied for approval?
A.     No, I knew they had not applied for approval. I knew they were going to. That's what the deed was -- the contract was conditional. It said in there that they were to meet -- apply for approval.
Q.     Well, now, let me ask you this very pertinent question. Did you know approval was required --
A.     Well, I know --
Q.     -- prior to the transfer?
A.     I know that approval is required in order to operate a utility system. I knew that they would have to get approval before they would be in charge of and own the system.
Q.     But did you know it was required before the transfer of the property from one utility to another?
A.     Well, I knew that the rules required that -- yes, I knew that the rules -- or that -- I knew that a permit would be -- I knew that a permit would be required for them to operate the system.
Q.     No, no. The question is did you know that approval was required prior to the transfer or the conveyance of the property?
A.     I didn't -- I didn't have any occasion to check that. I didn't --
Q.     You didn't know? You didn't know is what you're saying?
A.     I didn't know at that time. It's hard for me to go back and construct what I knew and didn't know, but I had no reason to look at that --
Q.     I understand.
A.     -- at that time.
THE CHAIRMAN:     Senator Moore, I think -- and let me pass down a question to this agreement that we referenced because I think it -- we've talked about it several times.
MR. ELLIOTT:     Mr. Chairman, if I might, I obtained a certified copy of what's filed, an Asset Purchase Agreement, with the Public Service Commission and it's dated November 26th, 1991.
A.     It's dated what?
MR. ELLIOTT:     November 26th, 1991. And it does not bear Mr. Ross' name anywhere on the document, but there is a bill of sale that you also have in your hand. It might be helpful if you distinguish between an asset purchase agreement from the bill of sale for us.
THE CHAIRMAN:     We're going to bring you a complete copy down, too.
A.     Yes, this is agreement, bill of sale and easement and I prepared these documents, but this is not the agreement we're talking about.
RE-EXAMINATION BY MR. ELLIOTT:
Q.     Here's an Asset Purchase Agreement, how does -- how is that distinguishable from a bill of sale?
A.     Which one?
Q.     The Asset Purchase Agreement and the bill of sale.
A.     Well, the Asset Purchase Agreement anticipates that there will be further documents. This is the document, the Assets Purchase Agreement dated 26 November 1991, I didn't have anything to do with it. It anticipates further documents will be and title will be transferred and approval if granted by the Public Service Commission and all kinds of things that subsequently happen.
Q.     And the bill of sale would be one of those documents, you're --
A.     The bill of sale is one of the documents that I prepared that effected the conveyance of the personal property and certain easement and that kind of thing, all subject to approval by the Public Service Commission.
Q.     It's one of the documents anticipated by the asset purchase agreement?
A.     Anticipated by the purchase agreement, but the 26 November document, I had nothing to do with it. Never -- I never consulted about it.
THE CHAIRMAN:     And that's the asset purchase agreement that Mr. Elliott made reference to that you had nothing to do with; is that correct?
A.     Right. The asset purchase agreement was negotiated between Gary Steadman and I'm also certain Jim Cameron. I've learned that subsequent, but, you know, I didn't know who negotiated the contract at the time. They never talked to me about it. They sent it to me at some point and said we want you to get up the deeds and handle the closing statement and that kind of thing.
MR. ELLIOTT:     That's all I have.
THE CHAIRMAN:     If you would be at ease for a moment. I think Senator Moore had a question and he's voting right now. Senator, you have a question?
EXAMINATION BY SENATOR MOORE:
Q.     Well, I guess my question was asked by Mr. Beatty. I was trying to figure, Mr. Ross, in preparing your work, were you aware of Public Service Commission approval while you were preparing it? I mean --
A.     I knew that --
Q.     What would cause you to -- in preparing the legal work is it necessary that you look into beyond the immediacy into the background to see what approval had been applied, had been approved or not?
A.     I was not assigned to do that. These were two experienced clients who come in here and, you know, experienced with the Public Service Commission. They didn't ask me about that.
Q.     Yes, sir. I understand that they didn't ask you that, but I guess being a nonattorney, not knowing enough about what your immediate task was in completing the work that you had been requested to do, was it a responsibility to look beyond or behind that to see if, in fact, approval had been granted? Should you have been aware of it if you weren't? I'm not saying that is wrong. I'm saying should you have been.
A.     I didn't deem it so. I did not deem it so. Now if -- every case depends on the circumstances. You know if some old person came in uneducated, I would look at -- advise them maybe different than say, well, do you want to do this, should you do this, this kind of thing.

Here I'm dealing with two -- with a lawyer who represents Realtec and an experienced utility company and they told me to do the deed. I did not deem it my responsibility to go behind what they had already agreed to do.
Q.     All right, sir. Mr. Chairman, if I may, there is quite a difference in what the complainant says at the function that ya'll both attended in April. From his report he says that your response to him that you had handled the legal work personally and, two, it was a routine matter.

I suppose you were -- if that, in fact, is what was said, you were speaking from the assigned work only that you were looking at rather than the whole question about the Public Service Commission?
A.     Yes, sir, that's the only thing I was involved in.
Q.     That's --
A.     This was a -- as I recall, this was a Republican fund-raiser and it was a dance.
Q.     Well, which leads to the point, I guess, you know, making mistakes and not being as careful, maybe that's one of the mistakes you made, going to a Republican dance being a Democrat.
A.     I went. I plead guilty. I went.
Q.     I'm only kidding, sir.
A.     And, you know, the question came up and I said the only -- my only -- what I'm telling you is my only involvement was doing the routine legal work. I mean I don't know whether -- I mean, you know, taking the circumstances where I was, I don't know that I specifically said deeds, but to me, it was not unlike a house closing. I had to do more work, but it was a routine deed and bill of sale that I just --
RE-EXAMINATION BY REPRESENTATIVE BEATTY:
Q.     One other question, Mr. Ross. Did you have occasion to review this water and sewer asset purchase agreement prior to your performing the work you did?
A.     Yes, sir.
Q.     Were you aware of paragraph 9 of the agreement? It states in effect that there will be a guarantee that all -- all necessary permits and licensing and easements will have been taken care of?
A.     Yes, sir. Well, that -- if you read the document it also has a curing clause. They will be by the time of the closing or they will supply them. They will be supplied.
Q.     That's my point. This agreement says that the things that we're complaining or investigating at this point would have been taken care of at the time that you did the closing? Is that not correct?
A.     That it would have been taken care of?
Q.     Yes, sir.
A.     Well --
Q.     My reading of paragraph 9 indicates that.
A.     Well, no, sir. You see, it's subject -- specifically subject to the approval of the Public Service Commission wherever that is.
Q.     No, I'm just saying Paragraph 9, settlement has or at closing will have all necessary permits and licenses and easements.
A.     Well, that --
Q.     Does that make reference to the Public Service Commission approval as well?
A.     No. That had to do with the easements, DHEC licenses and all those kind of thing.
REPRESENTATIVE BEATTY:     Okay. I'm finished.
THE CHAIRMAN:     All right. Thank you. Thank you, Mr. Ross.
SENATOR RUSSELL:     May I ask one question?
THE CHAIRMAN:     Yes, I'm sorry. Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q.     I'm not going to delay anybody on this. Lowell, you earlier in your original career had the opportunity to clerk for one of the South Carolina legend -- judicial legend, Judge --
A.     Martin.
Q.     -- Martin, correct?
A.     Yes, sir.
Q.     And you -- in that capacity you had the opportunity to be in court as I did because I clerked for Judge Hemphill and see Judge Martin in action.
A.     I did many times.
Q.     Would you fashion your judicial temperament along that of Judge Martin?
A.     No.
Q.     That's enough. That's all you need to say.
A.     More like Justice Littlejohn.
Q.     That's all you need to say.
THE CHAIRMAN:     Or Justice Russell, how about that?
A.     Or Justice Russell, yes.
THE CHAIRMAN:     Thank you very much. All right. That concludes the testimony on Lowell Ross. The next seat is the Family Court of the Sixth Judicial Circuit, Seat 2, we have one candidate, Walter B. Brown, Jr. Mr. Brown, please raise your right hand.
WALTER B. BROWN, JR., having been duly sworn, testified as follows:
THE CHAIRMAN:     Mr. Brown, have you had a chance to review the Personal Data Questionnaire Summary that we provided?
MR. BROWN:     Yes, I have.
THE CHAIRMAN:     Is it correct?
MR. BROWN:     Yes, sir, it is.
THE CHAIRMAN:     Any clarifications or changes need to be made?
MR. BROWN:     None that I'm aware of.
THE CHAIRMAN:     Is there any objection to our at this time making the summary a part of the record of your sworn testimony?
MR. BROWN:     No objection.
THE CHAIRMAN:     That being the case, it shall be done at this point.

1.     Walter B. Brown, Jr.
Home Address:                                 Business Address:
423 Bratton Street                             P. O. Box 41
Winnsboro, SC 29180                     120 North Vanderhorst Street
Winnsboro, SC 29180

2.     He was born in Columbia, South Carolina on April 10, 1947. He is presently 46 years old.

4.     He was married to Harvey Newson Walker on April 12, 1975. He has two children:     Frances Walker, age 15, and Katherine Anne, age 12.

5.     Military Service:     South Carolina Army National Guard; 1969-1975; Rank E-5; ***-**-****; Retired; Honorable Discharge 1975

6.     He attended the University of South Carolina, 1965-1969, Bachelor of Science Degree; and the University of South Carolina School of Law, 1970-1973; J.D.

8.     Legal/Judicial education during the past five years:
He has attended CLE seminars at the USC Law School.

12.     Legal experience since graduation from law school:
General Practice of Law, 1974-1993
He has practiced in Winnsboro, 1974-1993. The practice consists of criminal (magistrate and General Sessions), civil, social security, real estate, bank law and town attorney.

13.     Rating in Martindale-Hubbell:     A.V.

14.     Frequency of appearances in court:
Federal - only once in the last five years
State - Family Court each month; General Sessions Court 4-5 times

a year; Magistrates' Court monthly
Other - Social Security Administration hearings 5-6 times a year

15.     Percentage of litigation:
Civil - 5%
Criminal - 15%
Domestic - 30%

16.     Percentage of cases in trial courts:
Jury - 95%
Non-jury - 5%

Sole Counsel

17.     Five (5) of the most significant litigated matters in either trial or appellate court:
(a)             State v. Max Spencer Peake. General Sessions - Death penalty case
(b)             Other numerous felony trials in the last 20 years

20.     Judicial Office:
City Recorder for the Town of Winnsboro, 1976-1980, appointed by Town Council. At the time, jurisdiction was limited to offenses inside the town limits, and punishment was $100 or 30 days.

23.     Employment As a Judge Other Than Elected Judicial Office:
City Recorder, Town of Winnsboro, 1976-1980, Town Council

25.     Occupation, business or profession other than the practice of law:
Lobbyist for South Carolina Association of Motion Picture Theatre Owners, 1983-1993; Lobbyist for South Carolina Trial Lawyers Association, 1985-1986

32.     Sued:     Sued by Beverly and Kim Hooper in the Court of Common Pleas for Fairfield County. The Plaintiff dismissed the action. He was sued in Federal Court by a former criminal client. It is dismissed by the Court for lack of merit. This was an attempt at PCR through Federal Court.

36.     Lobbyist or Lobbyist Principal:
1983-1993, South Carolina Association of Motion Picture Theatre Owners
1985-1986, South Carolina Association of Trial Lawyers

45.     Bar Associations and Professional Organizations:
Fairfield County Bar; South Carolina Bar Association; American Bar Association

46.     Civic, charitable, educational, social and fraternal organizations:
Fairfield County Chamber of Commerce; The Palmetto Club of Columbia; Fairfield Country Club (Director)

47.     He has practiced law primarily in the Sixth Judicial Circuit for 19 years. He has had an active domestic practice in addition to his other areas of practice. He thinks he has a compassionate understanding of what parties are going through who appear in Family Court. He has the temperament needed to be reasonable and firm to all parties and their attorneys.

Having been married for 18 years and with two teen-age daughters, he thinks that his experience gives him an insight into the problems that children and families face in our modern society.

He has enjoyed his four years of service as City Recorder for the Town of Winnsboro and thinks he would be an excellent judge.

48.     Five (5) letters of recommendation:
(a)         William A. Harwell, President
Bank of Ridgeway
P. O. Box 8, Palmer Street, Ridgeway, SC 29130
337-2251
(b)         Kenneth G. Goode, Esquire
P. O. Box 488, Winnsboro, SC 29180
635-5912
(c)         Gedney M. Howe, III, Esquire
P. O. Box 1034, Charleston, SC 29402
722-8048
(d)         John A. Martin, Esquire
P. O. Box 298, Winnsboro, SC 29180
635-4912
(e)         Dr. Roger A. Gaddy
511 W. Moultrie Street, Winnsboro, SC 29180
635-6487

BAR RESOLUTION:     Fairfield County

2.         Positions on the Bench:
Town of Winnsboro; City Recorder; 2/1976 to July/1980

The Judicial Standards Commission has no record of reprimands against you. I understand you previously served as the City Recorder in the town of Winnsboro.
MR. BROWN:     Yes, sir, I did.
THE CHAIRMAN:     The records of the appropriate law enforcement agencies:     Fairfield County Sheriff's Department, Winnsboro City Police Department, SLED and FBI records are all negative. The Judgement Rolls of Fairfield County are negative. The Federal court records show no judgements or criminal actions against you.

There apparently was a civil case in which you and other Fairfield County officials were named as defendants. This case was a prisoner's civil rights action which was dismissed in 1985; is that correct?
MR. BROWN:     That's correct, yes.
THE CHAIRMAN:     There are no complainants or there are no statements that we've received that complained against you and no witnesses present to testify against you.

At this time, I'll turn you over to Ms. McNamee for questioning. I would say that you have the right to a brief opening statement which I would encourage you to waive if you would being the only candidate in the race.
MR. BROWN:     I'll be more than happy to waive that.
THE CHAIRMAN:     Thank you so much, Mr. Brown. Ms. McNamee.
MR. BROWN - EXAMINATION BY MS. MCNAMEE:
Q.     Mr. Brown, I would like to start by asking you about judicial temperament which has been described as having -- has the qualities of patience, open-mindedness, courteous, tact, firmness, understanding, compassion and humility. Which of those do you think is most important to a Family Court judge to have and why?
A.     Well, I think for one thing you have to be compassionate. You have to understand those two people -- in most cases those two people or those parents, if it's not a divorce matter, are there for their day in court and they expect to have the opportunity to have their side of any matter heard and, of course, you've got to be understanding of that and that's going to require a good bit of patience as well as understanding of their feelings about being in court that day because that is their one opportunity to be there.
Q.     Which of these qualities is your strongest?
A.     I feel like I'm a very patient person and understanding person. I know after practicing law for some 20 years, you have to be able to listen to both sides of any situation, so I feel that those three would probably be the characteristics that I would bring into this job to be the understanding and patience and willingness to listen to both sides.
Q.     Is there any weak point you'd like to -- one point that you need to work on? I mean --
A.     You know, I hadn't been a judge since I was a lttle City Recorder in the town of Winnsboro back in the early eighties or late seventies and, you know, I think it's going to certainly take a good bit of time before I can, I think, rule in cases as well as, say, somebody like Judge Barrineau who served our circuit so well for the last 14 years or any of the other judges we have presently sitting on the Family Court bench. But I think that the thing is that you have to learn in a hurry that you've got to rule one way or the other and somebody is going to be displeased with whatever you do and that's going to always be the case in Family Court and in most cases, you know, there are no winners in Family Court anyway. At least that's been my experiences in 20 years.
Q.     Talking about judges, what judges have been influential to you in your career and is there any one model that you will -- one person that you would model your service after?
A.     Well, the Sixth Judicial Circuit has been blessed with good judges, Judge -- well, all the way back to when Judge Gregg -- Judge George Coleman from Winnsboro, who Mr. Elliott used to work with long years ago, Judge Barrineau, Judge Mobley, Judge Rushing today, all of whom I think have set excellent examples and I've watched all of them in court and tried to -- will try to emulate certain things that all of them have done.

There are other Family Court judges that I've practiced before in the last 20 years that -- you know, that I would sort of like to pattern some of my judicial actions after, but I don't think any one particular judge that I would point out or pick out as being the one person that I would want to be the most like.
Q.     Would you tell this Committee about your work ethic, how you meet deadlines, how you plan to run your court and --
A.     Well, you know, I think Court Administration is going to help take care of some of that, but I certainly would plan to just meet whatever deadlines are necessary.

I know that all judges have a heavy burden as far as case loads. The Sixth Circuit fortunately at least Fairfield and Chester County are not as bad as Lancaster, but I don't foresee that as being any problem. I certainly think that I would act judicially and expeditiously in whatever matters are before me and don't think that's going to be any problem.
Q.     You stated in your questionnaire that 30 percent of your practice is domestic work and you also said that five percent of your practice was nonjury. Can you explain that. How about --
A.     Well, you know, I'm not sure that I completely followed some of the questions in the questionnaire as far as the percentages were concerned. As far as nonjury, I was referring to civil matters that were referred rather than being heard by a jury.

Obviously, all Family Court matters are nonjury and I had a -- I would say I used the figure 30 percent, but my domestic practice is probably larger than that, but obviously that's nonjury.
Q.     Is there any area of specialty in your domestic practice?
A.     No, ma'am. I'm a small town lawyer and I've enjoyed doing that for the last 20 years and hope that I provided a good service to my clients and, fortunately, none of them are here to object to the way I represented them in the last 20 years this morning and I'm right proud of that.

But, you know, when you practice law in a small town, it's just whatever comes in the door that day. If you feel like you're qualified to handle it -- and I feel that I've been qualified to do the things that I've done, and fortunately for me a lot of that has been domestic work and I think people, you know, have a certain amount of trust in my ability to practice law in the Family Court and that's one of the reasons why I want to be the judge of the Sixth Judicial Circuit.
Q.     Well, that was my next question. What was the driving reason for you to want to now at this point become a Family Court judge?
A.     Well, I didn't want to bring this up on the record, but Walter Brown is here today and I know a lot of ya'll on this Committee might know Walter Brown, a lot of ya'll don't know Walter B. Brown, Jr. and there is a total different person before you today from the Walter Brown ya'll might know.
SENATOR MOORE:     Mr. Chairman, I was going to save my question until you finished, but may I ask the question, do you think the Committee should be made aware of any long term psychological defects you may have as a result of having the name Walter B. Brown?
A.     Well, I think the most important thing that you need to understand is he wasn't there to influence us a whole lot.
SENATOR MOORE:     Okay.
A.     I think you can appreciate that, but I think one thing -- one characteristic that I think I did get from him, that's enjoying being around people and understanding people and I think being understanding of other people and their feelings is an important part of what a Family Court judge has to do. And that is one thing and I think I did get it from Walter Brown.

There are a lot of things I wouldn't want to take credit for his having given me, but that's one that I would. Thank you, sir.
Q.     Mr. Brown, will you tell us how you will go about making a decision in a case? Will you ask for proposed orders from both sides? Would you write your own? What are you not allowed to do before writing an order based upon the Canons?
A.     You know, the majority of the judges that I practice before in the Family Court like to rule, and I would like to be able to rule immediately. I don't think it's good to have clients leave the courtroom without knowing what the judge is going to do.

If at times the case is so complex or complicated to where a proposed order might be necessary from each of the two sides then that would be the way that I might go about it. I would think very seldom that I would write an order, but rather to have the two lawyers provide me with a proposed orders as to the way to rule.

But I would hope that most of the cases that are there, the majority of the cases would be ruled on while the litigants are in the courtroom, so that they'll know where they stand when they leave.
Q.     Will you announce your decision before you asked for proposed orders?
A.     If a decision can't be made from the bench that day, I may ask for proposed orders without at least at that time announcing any decision.
Q.     Living in a small town like Winnsboro and practicing there your whole career, would you explain to the Committee how you plan to handle any situations of ex parte communication and social engagements, any conflicts of interest that you might see arising since you are in a relatively small, intimate professional circle there?
A.     Well, for the last 14 years, I've had the opportunity to practice before Judge Barrineau, who was a good friend of mine prior to his going on the bench, and I've seen Judge Barrineau over the years and known that he drew the line when he became a judge.

And the social events as far as being invited or participated in, you know, you have to cut those kind of things out. I'm thoroughly familiar with the Ethics legislation -- that this Legislature passed the last couple of years and it's not going to bother me as far as socializing is concerned.

I -- in that respect, I'm not a lot like Walter Brown, but at the same time, ex parte communication is just something that you can't have and it's just not going to happen in my court. It's never happened in any
-- before any judge that I know of that's ever sat in the Sixth Circuit. Certainly, not that I've had any dealings with and certainly not with Judge Barrineau or Judge Mobley.
Q.     And what about gifts or any --
A.     You know, I got ready to put down on there that I have received some gifts from a lobbyist, but I don't know that I had to do that because it said that if it wasn't my wife or my children or -- I forgot what the degree of kinship it had to be -- I have received some things from a lobbyist, but the only one that I've ever been aware of and he's a vice president of Southern Railroad.
Q.     Are you currently a lobbyist for the motion picture --
A.     I was during the last legislative session, but I am not currently. I resigned when I decided to run for this position.
Q.     That is my question. So have you accepted any monies from them since you made your decision to run?
A.     No, ma'am. I have not.
Q.     Our records show that you have not claimed any expenses for this; is that true as of today?
A.     Yes, ma'am. I didn't have to come as far as Mr. Ross or Senator Macaulay. I only had to come 25 miles, so a couple of dollars worth of gas.
Q.     In your PDQ, you state that you have insight into the problems children and families face today because you are the parent of teenagers and being a parent myself and I think you have the rapt interest and attention of all parents in this audience, if you could please expand upon that and give us some insight on how that would help you be a Family Court judge.
A.     Well, I think -- in talking about temperament, I think you've got to be understanding of people. First of all, teenagers today, the peer pressure on teenagers today is unbelievable and, of course, I'm sure all of you that have children understand the problems that teenagers face today with regard to drugs and crime and the other types of things that we face on a day to day basis and I would like to be able to sit here and tell you that I feel like I can really make a difference, but I hope I can make a difference in the lives of teenagers in Fairfield County or anybody else that would appear before me in the Sixth Circuit or anywhere else in South Carolina.

But, you know, I think having the benefit of having two daughters certainly makes me a little more qualified than somebody who may not have children who became a Family Court judge and that was my reason for putting that in the PDQ.
Q.     And this does -- is really a follow-up, but the problem of juvenile crime is such a growing one in South Carolina, have you thought about that and would you share with this Committee any of your ideas on the best way to deal with that problem of juvenile crime? You live in a relatively rural area, does that make a difference?
A.     No. Unfortunately, there is just as much crime and the same types of crime you'll find in Fairfield, Chester or Lancaster or any other rural county as you will in a county like Richland. I think you have to just take them on a case by case basis.

Certainly, you hope that you can change the direction that the child may be headed. At the same time, recently there has been some publication about some proposed ideas that have come out of Columbia with regard to the possibility of sending teenagers to some type of boot camp or whatever rather than sending them to R and E and then to John G. Richards and hopefully some sentences like that may become available that would help them.

But, you know, I think at this time that we'd have to just use what we have available to us to try to deter them from pursuing a life of crime because as you know the young people today are so influenced by the -- by their older peers with regard to this -- the drug problem that we are faced with in this country and when they see the drug dealers with the big cars and the fancy jewelry, it tends to make those teenagers think that's the way to go rather than going to school and hopefully, you know, I can address that problem on a day to day basis with each of these individuals and hopefully help somebody. But I realize that is a problem.
Q.     You have introduced I believe a resolution from the Fairfield County Bar endorsing your candidacy?
A.     Yes, ma'am.
Q.     And I'd like to ask you the same question Mr. Elliott asked the other candidates, have you sought directly or indirectly the pledge of any legislature -- legislator to vote for you for Family Court --
A.     No, ma'am. I spoke to a couple of legislators before I decided to run just to -- because I respected their opinions with regard to my ability and with regard to the position as it was going to become available or open, but I've sought no pledges and I think probably the biggest disappointment about running for this is that nobody ran against me, so Walter Brown doesn't get to go out and work for me, so I don't think he solicited any votes for me either.
Q.     And are you aware of any solicitation without your authorization or request of any legislator?
A.     I'm not aware of any and I certainly don't think there's been any since I have no opposition.
Q.     I have no other question.
THE CHAIRMAN:     You have an A rating by Martindale-Hubbell; is that correct?
A.     AV, yes, sir.
THE CHAIRMAN:     Thank you very much. Any questions?
REPRESENTATIVE ALEXANDER:     Yes, sir.
THE CHAIRMAN:     Mr. Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q.     Some judges are classified as the hanging judge. We had one classified as the sexist judge. How would you like to be classified if you were elected?
A.     Well, I hope they just call me the fairest judge. I don't know whether -- about that, but that would be the way I would like to be categorized -- characterized.
Q.     You know, the General -- some of the public says we're not sentencing them, our criminals, severely enough?
A.     Yes, sir. I don't care to get into any ladies' magazines --
Q.     How do you respond to that?
A.     -- I can tell you that. You know as far as teenagers are concerned, you know, after practicing law for 20 years, you see the same defendants. It seems like when you have a term of court, you go in and you see these same people are there every time you have court and it's the same way with the teenagers.

The judges will send them down for R and E in hopes that they'll get their attention and then the next term of court they're right back in trouble again. I don't know what it's going to take, but I think we're going to have, you know, crack down on these teenagers who are habitually in the Family Court.
Q.     And you would do that?
A.     Yes, sir. I feel like we would have to do that.
THE CHAIRMAN:     Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q.     Mr. Brown, that leads me to my question or comment, you say that because of the problems of sending them out to R and E, the problem we've faced in the past at DYS right now, we've got the overcrowding lawsuit.

It seems as though in times past it might have been from the standpoint of convenience or just frustration or whatever, a lot of kids who were sent -- because of truancy problems sent to DYS and they become very educated and that's why they come back and that's why they end up there for a long time.

I certainly hope, and I'm not asking you to set -- state to this committee what your plans are as far as truancy because you'll have to look at it on each individual basis and what's going on, but I certainly hope that it will be a different mentality of just, well, let's just send them up to DYS because of school truancies or some other I guess you'd say nonviolent cases or nonviolent offenses or some determining factors rather than just conveniently shipping them to DYS where they become very educated very quickly and then you see them again and you send them up for a lot longer. That's what's been going on in fact.
A.     Yes, I recognize that the simplest way in so many cases is just send them to R and E and I agree with you, you know, once they've been in the system, they get educated in a hurry and I certainly would hope that the -- I know our local school system where I've done most of my practice, I think they're doing a little bit better job on the truancy and staying in behind the parents in hopes of cutting down on the situations where you have to send them somewhere because they don't go to school, but I certainly don't want to be using the system as a means to force children going to school if at all possible.
Q.     Thank you.
A.     Yes, sir.
THE CHAIRMAN:     Thank you, Mr. Brown. Any further questions? If not, we appreciate it. That concludes the applicants for the Family Court Seat for the Sixth Judicial Circuit. We do have a screening for a retired Judge Thomas B. Barrineau, Jr. Judge Barrineau, if you'd come forward, please. Please raise your right hand.
THOMAS B. BARRINEAU, JR., having been duly sworn, testified as follows:
THE CHAIRMAN:     Judge Barrineau, your last screening was February 27, 1990 when you were reelected to the Family Court Seat for the Sixth Judicial Circuit. Have you had a chance to review the Personal Data Questionnaire summary?
JUDGE BARRINEAU:     Yes, I have.
THE CHAIRMAN:     Is that correct?
JUDGE BARRINEAU:     Yes, sir. It is correct.
THE CHAIRMAN:     Are there any clarifications that need to be made or changes?
JUDGE BARRINEAU:     No, sir. I think it's fine.
THE CHAIRMAN:     Do you have any objection to our making the summary a part of the record of your sworn testimony?
JUDGE BARRINEAU:     No. No, sir, I'd be glad for you to.
THE CHAIRMAN:     And that's so ordered.

1.     Thomas B. Barrineau, Jr.
Home Address:                     Business Address:
Route 2, Box 25T                 P. O. Box 366
Winnsboro, SC 29180         Winnsboro, SC 29180

2.     He was born in Florence County, South Carolina on August 7, 1939. He is presently 54 years old.

4.     He was married to Valeria Elizabeth Blair on July 29, 1963. He has three children:     Elizabeth Blair Barrineau Hemlepp, age 27 (homemaker); Thomas Basil, III, age 25 (deputy with Richland County Sheriff's Department); and Ray Blair, age 21 (full-time student, Charleston University).

5.     Military Service:     South Carolina National Guard, 1960-1966 Enlisted Man, Honorable Discharge

6.     He attended the University of South Carolina, 1959-1963, A.B., Journalism; and the University of South Carolina Law School, 1963-1966, J.D.

8.     Legal/Judicial education during the past five years:
He has complied with all requirements pertaining to continued legal education for judges.

10.     Published Books and Articles:     Law Review Article

12.     Legal experience since graduation from law school:

1966-1967         With Horger & Horger Firm in Orangeburg, South Carolina
1967-1969         General Practice with Senator John Martin in Winnsboro, South Carolina
1969-1980         General Practice in Winnsboro, South Carolina
1969-1980         Part-Time Probate Judge of Fairfield County in Winnsboro, South Carolina
1980-1982         Judge of the Family Court, Sixth Judicial Circuit
1982-1986         Judge of the Family Court, Sixth Judicial Circuit
1986-1990         Judge of the Family Court, Sixth Judicial Circuit
1990-present     Judge of the Family Court, Sixth Judicial Circuit

13.     Rating in Martindale-Hubbell:     He is listed but not rated because of his present position as Family Court Judge. Martindale-Hubbell does not rate judges.

20.     Judicial Office:
Fairfield County Probate Judge, 1969-1980, elected
Family Court Judge; Sixth Judicial Circuit; July, 1980-1982; elected
Family Court Judge, Sixth Judicial Circuit, 1982-1986, elected
Family Court Judge, Sixth Judicial Circuit, 1986-1990, elected
Family Court Judge, Sixth Judicial Circuit, 1990-present, elected

21.     Five (5) Significant Orders or Opinions:
(a)         Martha Anderson Hunt v. Jefferson Davis Hunt, III, a/k/a Jeff D. Hunt, Jr. and Jeff Hunt Machinery Company. This was a Lexington County case which was under appeal to Supreme Court. This case involved large financial division where it was hard to distinguish between marital and non-marital property.
(b)         C. Carl Johnson v. Terry Cobb Johnson. This was a Greenwood County case which was under appeal to Supreme Court. This is a landmark case pertaining to awarding of full alimony where marriage was of short duration.
(c)         Chester County Department of Social Services v. Joe L. Coleman, et al. This was a Chester County case which was under appeal to Supreme Court. Order giving jurisdiction to Tribal Court in a case involving full-blooded Sioux Indians who were abused by their parents while living in South Carolina.
(d)         Cathy Martin Bagnal, f/k/a Cathy Lee Martin v. John DuRant Martin. This was a Horry County case which was under appeal to Supreme Court. Very serious allegations of child sexual molestation.
(e)         Oscar and Mildred Harrison v. S. C. Department of Social Services Adoption Birth Parents Services. This was a Chester County case. An adoption of a very young child by an elderly couple who had custody of the child for the past five years.

These are five cases that come to mind immediately; however, he does not feel that these cases are any more important or more significant than any of the other hundreds of cases he has heard in the past years. All cases are important and significant in his opinion.

22.     Public Office:     Probate Judge of Fairfield County, 1969-1980

45.     Bar Association and Professional Organizations:
South Carolina Bar Association; American Bar Association

46.     Civic, charitable, educational, social and fraternal organizations:
First Methodist Church; Alumni Association, University of South Carolina; Gamecock     Club, University of South Carolina

48.     Five (5) letters of recommendation:
(a)         M. Stephen Brakefield, Senior Vice President
Bank of Ridgeway
P. O. Box 888, Winnsboro, SC 29180
635-5500
(b)         F. Creighton McMaster, President
Winnsboro Petroleum Company
P. O. Drawer 449, Winnsboro, SC 29180
635-4668
(c)         Brooks P. Goldsmith, Esquire
P. O. Box 2227, Lancaster, SC 29721-2227
286-6989
(d)         John A. Martin, Esquire
P. O. Box 298, Winnsboro, SC 29180
635-4912
(e)         Honorable Timothy C. Wilkes
Box 127, Winnsboro, SC 29180
635-6696

2.     Positions on the Bench:

1980-1982             Judge of the Family Court, Sixth Judicial Circuit, Seat #2
1982-1986             Judge of the Family Court, Sixth Judicial Circuit, Seat #2
1986-1990             Judge of the Family Court, Sixth Judicial Circuit, Seat #2
1990-present         Judge of the Family Court, Sixth Judicial Circuit, Seat #2

The Board of Commissioners on Grievances and Discipline reports there are no complaints or charges of any kind have been filed against you. The Judicial Standards Commission has no record of reprimands against you. The records of the appropriate law enforcement agencies, that being the Fairfield County Sheriff's Department, the Winnsboro City Police Department and SLED and FBI records, are negative. The Judgement Rolls of Fairfield County are negative. The Federal Court records are negative. Is all that correct?
JUDGE BARRINEAU:     That's correct.
THE CHAIRMAN:     We do have one complaint that we have received and one witness who -- I understand two witnesses who are here and present to testify. At this time I'm going to ask Ms. McNamee if she would ask you a few questions.
JUDGE BARRINEAU:     All right. Thank you.
JUDGE BARRINEAU - EXAMINATION BY MS. MCNAMEE:
Q.     Judge Barrineau, would you expound a little bit for the Committee on your philosophy of the appropriate demeanor for a judge in the courtroom?
A.     Well, I think a judge has to be patient and listen to the testimony from both sides of the case and then make a decision based on what he hears in the courtroom only. That's my position. I try to be fair, but stern. And that's always been my philosophy.
Q.     Is it ever appropriate to -- you say stern, would you lose your temper --
A.     I don't allow -- there is not much levity in Family Court and I don't allow much levity in the courtroom and I'm always very serious. I treat the people with respect and I call them Mr. and Mrs. and I want formality in the courtroom and decorum and that's what I try to maintain in the courtroom at all times, so --
Q.     What is the way you run your court? Could you just explain a little bit about the hours of your work day, the way you've -- when you arrive for court and sort of the routine, sir.
A.     Well, I travel the Sixth Circuit. I arrive generally at 9:30 because some of the lawyers have expressed to me that they like to go to their office, open the mail and arrange their desk and do things before they actually have to run to the courtroom at 9:30, so I generally start at 9:30. And in the smaller counties where all the lawyers are located, you know, across the street from the courthouses and all, we generally just set -- in a lot of counties, we have court only once a month for a week at a time, so I generally set my cases for 9:30 and 2:00 o'clock.

That's the way I've been doing it all these years, so -- in a large county -- when you're in Richland County or Greenville County or Charleston or Myrtle Beach or one of the other counties where the close proximity of the law offices are not at the courthouse, then, you know, we schedule them every 15 minutes, every 30 minutes, every hour, whatever.
Q.     And coming from again the same small town that we just talked about with Mr. Brown, does that create any problems when you talk about the standards for recusing yourself or disqualifying yourself being in a small legal community? In that way, what are your bright line tests there?
A.     Well, you have to take each objection -- if somebody objects to you hearing a case, you have to weigh that as to the reasons why and so forth. In a small town, you naturally know everybody and everybody knows you and just a mere acquaintance shouldn't disqualify you from hearing a case because if you did that, you'd never hear any case and there'd always be another judge assigned to your home town because you actually know everybody and, you know, you have to take it on a case by case basis. And if they have a real personal feeling that they would be prejudiced in the case, I generally recuse myself.

I don't force it on them. But, you know, you have to bear in mind, too, that when you do recuse yourself, and a lot of judges do it on the spur of the moment or just for any reason or knowing someone or having been friends with someone's mother or something like that, then that involves having to send another judge, pull him out of another circuit, send him in there for a day or two to hear that particular case and it breaks down and disrupts the system and so forth, so you need to weigh each case and be sure that there is a legitimate objection to your hearing the case.

I have recused myself on many cases.
Q.     Could you give an example of two of those?
A.     Well, you have to excuse me. I've got a terrible cold and I'm so dry I can't hardy speak, but I can't think of one specifically at the moment. I recused myself on cases involving local attorneys.

We have an attorney that he was involved in a case at this time and I didn't want to hear his case. I don't know. I can't think of anything specifically at the moment.
Q.     Was there a specific reason why you didn't want to hear that case or --
A.     Well, because he practiced --
Q.     -- he was a defendant or a plaintiff?
A.     He was practiced before -- but he was actually a litigant in a case and so I have -- we have another judge there I believe tomorrow to hear his case.
Q.     Okay.
A.     But he's coming out of Rock Hill just for that one case.
Q.     What -- Judge Barrineau, having been on the bench for 14 years, what are the most significant changes that you have observed in Family Court during this tenure?
A.     Well, I'm going to tell you, one of them is this, where we are today. I can remember 14 years ago coming in here with Senator Smith from Florence and Bill McLeod who was another judge candidate and the three of us sitting in this same room and he filled out two forms and that was essentially it and now you see what we've evolved into today.

All the discovery and the -- provided to the attorneys and so forth in cases have just bloomed and blossomed and grown and the case law itself has just spread further and further and further like a rising tide. It's just becoming more detailed and more intricate now than it ever has been before and we're looking at what used to be a general rule, we're looking at exceptions to the exceptions to the exception under microscopes and accepting motions on those type things now, so it's really more complicated and more detailed now than it was probably 14 years ago.
Q.     What part of being a judge have you enjoyed the most?
A.     Well, I enjoy all of it because like Mr. Brown, I enjoy dealing with people and I'd never make an appellate judge because they don't ever deal with people, but I like being in the courtroom and I like to deal with people's problems. I enjoy adoptions. I don't enjoy custody cases or custody fights and so forth, but you realize that in almost all cases, 50 percent of the people who leave the courtroom are not satisfied.

Now occasionally you have a case where both parties are very happy when they leave such as in a divorce or something like that where they hate each other, you know, and sometimes they all leave mad. And I consider if they both leave mad, maybe I've done a little bit better job than I did if both leave happy or one leaves mad and one leaves happy and so forth.
Q.     What do you foresee is your role as a retired judge?
A.     Well, I -- you know, I don't know. I've always loved the State of South Carolina. I love the judiciary. I love the Bar. Lawyers are my best friends. I've got a plaque in my office that says that. And I just like the legal system and I've been involved in it for all these years.

I was a probate judge for ten years prior to this in Fairfield County, so I've always served in the Judiciary and it's just kind of hard to let go sometimes and I don't know that I'll ever, you know, substitute or do it. I'm going to take about six months off and just clear my head and get away and make some real hard decisions, but I didn't want to cut off my opportunity to do it if I decided, you know, to do it later.

I've been assured by Court Administration that if I elect to do it that they will keep me busy in different parts of the state, so -- but it's a nonpaying job. I mean I'm offering my services to the State essentially free. You have to pay me per diem if I go and serve, but you don't have to pay me any additional money other than my retirement, so it's a free service to the State and not many people do it and I just felt like it was an opportunity for me to continue to do something that I've loved all these years and I'd hate to cut the umbilical cord totally, so I don't know. That's it.
THE CHAIRMAN:     Thank you, Judge Barrineau. Questions?
REPRESENTATIVE ALEXANDER:     Yes, I'd like to ask --
THE CHAIRMAN:     Mr. Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q.     We hear a lot of complaints about fathers not providing child support. What could we do to cause a change in this? I've read of places where they really have clamped down on this, withholding pay and that kind of thing and what could we do to say to require them --
A.     Well, we've tried to -- we run the gamut so to speak on it in my opinion. We've done everything. I think we're doing a pretty fair job in South Carolina of enforcing child support. I'm adamant about that.

I require the child support and I'm not very sympathetic to people who have a history or long record of not paying. If they pay regularly or have tried in the past to pay and it's obvious that they stopped at some point because they lost their job, then I'm sympathetic with them. But we have them that go back and they pay maybe four times in the last five years and they got a bill for 12 or 15,000 dollars and so forth. I've tried everything. I've tried -- we lock them up and give them an opportunity to pay out -- pay part of the money and get out. Do different things like that.

I put them to public service working on the weekends for the County and that kind of thing, picking up litter, and all that sort of backfired on me because I had them pick it up on 321 which is where I live and I'm sure whoever was supervising would point out my house and for several weeks after that I had a lot of garbage in my driveway, but as a revenge factor, I think. But I've done -- I've tried about everything that I know to try to influence -- but I think we do a pretty good job of it.

The Attorney General's office keeps up with it and they come in once a week in our counties -- in our three counties, and we have what we call Father's Day and it's not totally Father's Day. It's Mother's Day, too, in some respects, but we collect a good bit of money when they're brought in. I don't know of anything else we can do. We've held them up to public demeanor and all of that. I mean they put the names and pictures on posters and do all that. I don't know whether that does any good or not.
Q.     Is it not true that some are withholding pay where they work?
A.     Oh, they would do that. Yes, sir. We always have them sign up for wage withholding when they come in pay up. If they aren't already signed up, we sign them up automatically.
Q.     But you can require them to do that?
A.     We automatically do that.
Q.     Automatically. Good.
A.     There are exceptions, of course. If they're self-employed, we don't have any way of withholding, but we do that automatically.
THE CHAIRMAN:     Any other questions? If not, Judge Barrineau, if you'll be seated. We do have some witnesses and you'll be given the opportunity to reply.
A.     All right. Thank you very much.
THE CHAIRMAN:     We have two witnesses, Amy and Thomas H. Rockwell.
MR. ROCKWELL:     Yes, sir.
THE CHAIRMAN:     Before you testify, if it's possible, if the allegations are repetitive, you know, our desire would be to try to summarize them with one witness. If you have separate incidences you want to refer to obviously, we need to hear from both of you. But our desire would be if we could do it through one witness that we would like to hear from that witness.

Again, if you've got separate allegations you want to deal with or if there are separate things you'd like to talk about, we'd be glad to hear from both of you.
MR. ROCKWELL:     Why don't you --
MS. ROCKWELL:     I really would like for both of us to speak.
THE CHAIRMAN:     Okay. That's fine. And what we'll do is we will hear from Mr. Rockwell first.
MR. ROCKWELL:     Right. Yes, sir.
THE CHAIRMAN:     Mr. Rockwell, if you'd come forward please.
MR. ROCKWELL:     Rockwell.
THE CHAIRMAN:     Rockwell. I'm sorry.
MR. ROCKWELL:     Yes.
THE CHAIRMAN:     If you would please raise your right hand.
THOMAS H. ROCKWELL, having been duly sworn, testified as follows:
THE COURT:     All right. Mr. Rockwell, Ms. McNamee will ask you some questions and again we do have your summaries with us, the affidavits which have been filed, so we have -- the Committee members do have information on the allegations that you made --
MR. ROCKWELL:     Right.
THE CHAIRMAN:     -- that you'll be testifying to, so we'll try not to be too repetitive about it because we do have basic information about it. I'm going to turn you over now to Ms. McNamee to ask some specific questions.
JUDGE BARRINEAU:     Mr. Chairman, could I ask a question?
THE CHAIRMAN:     Yes, sir.
JUDGE BARRINEAU:     Are there two affidavits or just one affidavit that's been signed --
THE CHAIRMAN:     I believe both --
MS. ROCKWELL:     Both --
THE CHAIRMAN:     -- have signed one affidavit. Yes, sir.
JUDGE BARRINEAU:     Okay, well, I -- that was the only one that I was aware of.
THE CHAIRMAN:     Yes, there are two signatures on the witness affidavit form.
JUDGE BARRINEAU:     All right. Thank you.
THE CHAIRMAN:     All right.
MR. ROCKWELL - EXAMINATION BY MS. MCNAMEE:
Q.     Mr. Rockwell, I understand that your complaints against Judge Barrineau revolve around him placing four children -- Mrs. Rockwell's four children in foster homes; is that correct?
A.     That's basically it, but there is a little bit more that has developed since then.
Q.     Is it -- it began with this in 1991; is that correct?
A.     Yes, ma'am.
Q.     And that there has been ongoing problems with your situation with the children in foster care with DSS, with the courts, with Judge Barrineau and with the schools; is that correct?
A.     Yes, ma'am.
Q.     I understand also from your affidavit that you have been held in contempt by Judge Barrineau?
A.     Yes, ma'am, on December 13th, 1992.
Q.     1992 or '91?
A.     1991. Excuse me.
Q.     And I understand that from your affidavit that you -- that the judge had you arrested or you -- was called -- police were called October 1, 1993 for making some threats to him and his secretary?
A.     Allegedly making some threats to his secretary.
Q.     All right.
A.     But what I -- I've been advised by my attorney to tread lightly on this issue, but there seems to be some discrepancy as whether or not talking to his secretary would constitute a court official or pointing out that the judge -- point out to the newspaper about his hearing cases involving that were instigated by ex-Sheriff Leroy Montgomery.
Q.     Just a minute, please, sir.
A.     Okay.
Q.     And I understand from your complaint that one of the issues that you -- is that DSS put your children in an unsafe home -- foster homes?
A.     Yes.
Q.     All right. I understand from your complaint that you allege that there is a conflict of interest because the judge and the former sheriff owned property together and that you say the judge ruled on matters concerning that sheriff; is that correct?
A.     Yes, I had contact -- we had contact with the Fairfield County Sheriff's Department before the children were ever removed. Sheriff Mont--- ex-Sheriff Montgomery come out to our house four or five times during the month of April of '91. He also came out May 7th, the day the ex parte order was signed. He found no problem that day or he would have taken the children. Numerous times he was out, he found no problem.

Mr. Montgomery and I had a slight, I guess you might call it an altercation that day where we had a disagreement over certain things that he had told my wife's son and then it seems that without benefit of a hospital report, physician's report, medical report and also with DSS files saying that not enough was given for an ex parte order that day that an ex parte order was signed by James -- by Judge Barrineau with James Holcomb initiating it.
Q.     Mr. Holcomb is the head of the --
A.     Fairfield --
Q.     -- Fairfield County DSS; is that correct?
A.     -- County director of DSS, yes, ma'am.
Q.     And it was their petition -- it was upon their petition that the order was signed; is that correct?
A.     It was -- according to Mr. Holcomb and we attempted to get him here. We've attempted to get him in court. It was upon -- Leroy Montgomery also had something to do with that ex parte order.
Q.     I understand that your affidavit also complains that the judge failed to enforce DSS working towards the reunification of your family?
A.     Yes, ma'am.
Q.     And -- well, that is the substance of the complaint as I understood it from the affidavit, Mr. Hodges.
THE CHAIRMAN:     Are there any specific questions from the members about that allegation? All right.
A.     For the record, has the panel seen the foster home?
Q.     That is part of our record.
A.     Okay.
THE CHAIRMAN:     We do. In fact, while you were -- I was reading your comments. This is summarized under A, is that correct, of the Personal Data questionnaire we have?
A.     Yes. Yes, sir. And also has the panel seen the letter sent from Judge Barrineau to my wife dated December 18th, 1993 because he also states in here, and I do quote from this letter, "I was never very comfortable with the foster care situation concerning your children and expressed that opinion to the attorneys in chambers on several occasions."
THE CHAIRMAN:     Why don't we do this? Why don't we get copies of that because we don't have it or any of the information that you want us to look at?
A.     Yes.
THE CHAIRMAN:     Why don't we get copies of that?
A.     Okay.
THE CHAIRMAN:     We'll have someone do that.
SENATOR MOORE:     Mr. Chairman?
MS. ROCKWELL:     I did supply it to the office, so possibly --
THE CHAIRMAN:     Okay. I'm sorry. We do have them and we'll make copies of them for the members.
SENATOR MOORE:     Mr. --
A.     I believe also in your packet of information there, ma'am, you have three copies of the Winnsboro newspaper also.
THE CHAIRMAN:     That's the Herald Examiner or Herald --
A.     Herald Independent.
THE CHAIRMAN:     -- Independent that you referenced?
A.     Yes.
SENATOR MOORE:     Mr. Chairman?
REPRESENTATIVE ALEXANDER:     It's not in here.
SENATOR MCCONNELL:     It's not in our material.
REPRESENTATIVE ALEXANDER:     It's not in our materials.
MS. MCNAMEE:     No, what you gentleman have is the affidavit.
REPRESENTATIVE ALEXANDER:     That's all we have is the affidavit.
SENATOR MOORE:     Well, Mr. Chairman, I had made some notes. I wanted to ask about the letter to the newspaper, if I may ask Mr. Rockwell.
EXAMINATION BY SENATOR MOORE:
Q.     I know both you and your wife signed the affidavit. Who prepared the affidavit?
A.     My wife and I jointly prepared it.
Q.     Whose handwriting or the printing is this?
A.     It's in my handwriting.
Q.     All right, so I'll ask my question of you then, please, sir. Under Character -- you don't have your pages numbered, so I'll just have to refer to a page. I guess the first page after -- the first page beginning the dialog, the narrative?
A.     Okay.
Q.     You mention a -- that Judge Barrineau despite pending case versus --
A.     THR.
Q.     -- THR?
A.     Myself, yes, sir.
Q.     -- publicly wrote to the Herald Independent newspaper. Was that a Letter to the Editor?
A.     Yes, sir.
Q.     And that's what you've made -- just made mention to that we have a copy of?
MS. MCNAMEE:     We are making copies.
A.     Yes, my wife wrote two letters to the paper. She wrote one letter, I believe it was December 16th was the print date, which caused Judge Barrineau to respond to us on this letter. But what had happened was the Herald Independent didn't print the entire letter because they said they weren't going to open themselves up to a lawsuit unless we provided proof. Proof being land records showing joint --
Q.     All right, sir. Thank you. I just want to make -- that letter because it was referred to and we -- I didn't have it in my packet here, so I wanted to make sure I saw that.

About four or five pages later you say that Judge Barrineau came into court with a preconceived idea to send us to jail. He admits it on the transcript.
A.     Yes. And I have that transcript and I'm probably going to be -- my wife and I will probably be the one to suffer because I did not provide it, but I could access that transcript.

It says right in there, it says, you're very lucky you came in with an attorney today because I already had set in my mind that you two were going to jail today for contempt, quote, unquote.
Q.     All right. Mr. Chairman, if I may is ask one more quick question?
THE CHAIRMAN:     Yes, sir.
Q.     In the signed -- the signature page of your affidavit, our questions about stating any other facts you feel are pertinent to the screening of this judicial candidate and you mention six other references, you make reference to arrest of DSS workers in Aiken County. Would you elaborate a little bit how Judge Barrineau has any involvement in that particular matter or are you just making mention of that as a matter of coincidences or whatever that these things have happened since you filed
-- since your case has been heard?
A.     What I'm basically trying to do is that in the newspaper, Judge Barrineau states that I made many false allegations against numerous people in the community, what I'm trying to maintain and I maintained for two and a half years -- I've been ordered to get psychological evaluations for the quote unquote allegations I've made.

I'm allegating (sic) that on March 14th, 1991 and March 18th, 1991 that two DSS workers removed my wife's children from Geiger Elementary in Ridgeway and took them to a train that was stopped on the tracks near Simpson on route 34, that the Fairfield County Sheriff's Department had knowledge of this, that they investigated it and came back with nothing had occurred, that the children kept maintaining that this had occurred and the ex parte order was as a result of an attempt to down our allegations.
Q.     All right, sir. Well, I guess my specific question to you under -- you made mention of arrest of DSS workers in Aiken County. I have some real --
A.     Yes, sir.
Q.     -- familiar knowledge with that in that the mother whose child died in foster care --
A.     Well, some --
Q.     -- came to me -- if you'll let me finish my question, then I'll be glad --
A.     I'm sorry.
Q.     -- to hear your answer.
A.     Yes, sir.
Q.     What involvement in our capacity as screening Judge Barrineau today does the arrest of DSS workers in Aiken County have to do with our questioning him or talking with you and responding?
A.     I think that it's not directly tied in because, of course, it's a different judicial circuit, but I think what it does tie in with is that the possibility of wrongdoing by DSS workers is present.

The fact that DSS will cover up for themselves, that DSS will falsify paperwork, that DSS will not act always on reports of abuse in the foster home. My wife and I both made reports of abuse in the foster home. We were told that we had mental problems for making false allegations against people in the community, so I guess, sir, basically what I'm attempting to do to show that, yes, the possibility that my allegations are true, it does exist.
Q.     But -- all right, sir. But there is --
A.     Yes.
Q.     -- nothing directly pertinent to the screening of Judge Barrineau in regards to what's going on as far as DSS workers arrested in Aiken County. You're speaking indirectly?
A.     Yes.
Q.     But you don't know of anything directly?
A.     No, sir.
Q.     Thank you.
THE CHAIRMAN:     Thank you, Senator Moore. Any other questions?
REPRESENTATIVE ALEXANDER:     Yes, sir.
THE CHAIRMAN:     Representative Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q.     Where are the children today?
A.     They're still in foster care. What was ironic was we tried -- they -- three of them lived in this house. My wife's son lived with another couple. They all want to adopt the children. They've all stated publicly they want to adopt them. They've all worked against my wife and I. They've been dealing with the psychologist.

It took a year and two months to get the case transferred out of Fairfield County, even though my wife and I had moved to a Richland County in July of '91 and now three of the children reside in Lexington County, one other of the children resides in Richland County, but Richland County DSS is supervising this whole deal. So that's another inaccuracy present.
THE CHAIRMAN:     Any follow-up? Any other questions?
SENATOR MCCONNELL:     Yes, sir.
THE CHAIRMAN:     Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q.     I guess the missing link that I don't understand, why were the children removed?
A.     Ex parte order signed on April 2nd alleging physical abuse and on ex parte order on -- they took one of the children on April 2nd. The court case in Chester County. I was present there with the other three children. I was not allowed in to testify. My name was put all over that transcript.

When we went to appeal it, we found two different court orders for the same day and we found now that the transcript has been destroyed, so they reprimanded the court reporter. Then they came -- as I said on May 7th, Leroy Montgomery came to our house, wanted to know what information I had that the Sheriff's Department was involved with taking the kids from school and allegedly putting them on this train and he talked to Chris who was nine years old at the time. I disagreed with what he told Chris. He told Chris to drop this whole deal. I talked to Leroy Montgomery about it. He left upset.

They came that night at 10:30 at night with an ex parte order saying that parents' emotional instability cannot guarantee safety of children in the house. There was no hospital reports. There's no medical reports and there's no doctor reports.
THE CHAIRMAN:     Let me ask a question about this, was there a permanent custody order that was entered in the case following the temporary?
A.     No, sir, the case is still ongoing.
THE CHAIRMAN:     Has it been appealed or is it still under review by the Family Court?
A.     It's under review. It was appealed. The appeal was turned down, which I learned was our fault due to the shoddy attorney work on the appeal because the one attorney that represented us the day the hearing was set on July 10th, 1991, resigned 20 minutes before court.

Judge Barrineau refused to grant a continuance that day. He cut off our visitation despite reports from DSS that three days before that, quote, unquote, a fruitful visit between Tom and Amy and the children. We appealed that on July 10th. They turned out down the appeal, but they advised us to proceed under I believe it's Rule 60(b) which is irregularities or new information or whatever, but these are the children the day they were taken, we went to State DSS. That's May 7th.

I asked Mr. Holcomb what grounds he had for taking the children on signing the ex parte order. He said,
"Well, you all were acting crazy." I said, "Well, what does acting crazy constitute?" "Well," he said, "you were going everywhere." We went to SLED that day. I talked to a Jeremiah Davis. He saw nothing wrong with the children. I went to the State Department of Education that day. We went to the Sheriff's Department. They declined to give us a report and they -- Leroy Montgomery came that night and took the children.
THE CHAIRMAN:     All right. I believe Representative Beatty has a question.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q.     Mr. Chairman, I'm trying to get to the bottom of the allegation. Your allegation is exactly what that the judge has done that makes him unfit?
A.     Okay, first of all, my allegation is that he never should have heard the case. You asked him earlier point blank has he --
Q.     Is it because of the conflict of interest you make reference to?
A.     With the Sheriff's Department, exactly. With him owning land with Leroy Montgomery. He had a business relationship with him. He should not have gotten legally involved in any case --
Q.     Did Leroy Montgomery appear at this hearing?
A.     He was there, but he did not testify. We wanted him to testify.
Q.     So there is a conflict of interest allegation. What is the next allegation?
A.     The next allegation is the failure by either his lack of knowledge of the law, which I find interesting because he said the biggest change he's noticed in the past has been the changes during his tenure were more detailed evidence presented, case law has become more detailed and intricate. There has been numerous --
Q.     So you're saying he didn't know what the law -- the applicable law was to your case?
A.     For example, letting foster children go out of state. What is the law on that? Because they've been taken out of state without petitioning the court numerous times.
Q.     So didn't know the law as to allowing foster children to leave the state and a conflict of interest in hearing the case?
A.     And also I don't believe -- I don't want to sling dirt, but I believe he failed to hear both sides of the story. If you review the transcripts, my wife and I have had no more than 30 words spoken total. Any time we tried to speak -- there is one transcript where my wife said,
"But, your Honor, I want to speak. These are my children." He said, "Sit your ass down. Speak through your attorney." That's the transcript of October 21st, 1991.
Q.     Temperament, not knowing the applicable law --
A.     Is that knowing the law?
Q.     -- and conflict of interest. Those are the three allegations we're making here?
A.     And failure to adequately supervise DSS to go by their federally mandated job which is to reunify the family.
Q.     Now that I understand what the allegations are --
A.     Yes, sir.
Q.     -- let's get back to the original removal of the children. What happened to initiate this?
A.     On April -- this is still involved in the court ongoing case in Richland County. This is why my attorney has told me to move slowly on this.
Q.     Well, what I'm trying to get at is how did the case get before Judge Barrineau?
A.     The case April 2nd -- and I will say this in fairness to Judge Barrineau, the one where I was not allowed into the courtroom and where there are two court orders for the same hearing and where the transcript is missing was heard by a Judge Mobley. So I should have been clear on that. I apologize for that. That was heard on Judge Mobley. The first time it went before Judge Barrineau was May 15th, 1991 on the --
Q.     So Judge Barrineau was not the original judge who removed -- authorized the removal of the children?
A.     Judge Barrineau author--- the children were taken in sets. One was removed on April 2nd. We had further problems during April. My wife was arrested on a charge of harassment, which there is no charge. Bubba Montgomery came out to the house four --
Q.     No, no, no. My question --
A.     -- or five times --
Q.     Excuse me. My question is --
A.     Okay.
Q.     -- the first judge involved in this case was who?
A.     Judge Mobley only because he was hearing the cases that day.
Q.     So the children had been taken into protective custody?
A.     No, one of the children.
Q.     One had been taken into protective custody. Judge Mobley heard that one?
A.     Right. Right.
Q.     And then the other, the second set were taken --
A.     By an ex parte order almost a month and -- almost 35 days later signed by Judge Barrineau.
Q.     All right. Protective custody. They were taken into protective custody, but then when you had your hearing, who heard that?
A.     Judge Barrineau. And he's heard every one since the case was transferred --
Q.     So it's your allegation --
A.     Until transferred --
Q.     -- then that hearing with Judge Barrineau that he did not hear your side of the story, his temperament was bad, didn't know the law and the third one was --
A.     That --
Q.     -- conflict of interest?
A.     That was -- the first one was definitely a conflict of interest. That day we made a motion that he should remove himself based on his relationship with Leroy Montgomery.
THE CHAIRMAN:     Yes, I think we understand that.
A.     Fine.
THE CHAIRMAN:     Mr. Beatty.
Q.     I want to know what part did Leroy Montgomery -- was he just an officer that came out and took the children or did he testify against you at the hearing? What did he do?
A.     What did he do? We made four -- he made four trips out to our house during the month of April while we still had had the other three children. All he wanted to know was what proof I had that his Sheriff's Department was involved in the removal of the children from the school, Geiger Elementary, and placing them on this train.
Q.     Now why would there be a conflict of interest for Judge Barrineau if that's all -- if that's what Sheriff Montgomery did?
A.     Because I'm alleging that it happened. The children were alleging that it happened. My wife saw the train and the Sheriff's department comes back with a report that says this incident never occurred and we've got the Norfolk Southern records that show there was a train on the track that day.
Q.     I see what you're saying, but I'm -- I'll leave it alone.
THE CHAIRMAN:     Okay. Questions? Senator McConnell.
RE-EXAMINATION BY SENATOR MCCONNELL:
Q.     I just want to make sure because I am confused about it. And please just try to give me some short answers to some quick questions. When the first child was taken, was the Sheriff the complainant? Did he sign the affidavit to take the child?
A.     The Sheriff's Department, yes.
Q.     But did the Sheriff?
MS. ROCKWELL:     The Sheriff initiated it. He did initiate it. He was not the one per se to do it.
A.     I believe Terry --
MS. ROCKWELL:     Terry Williams was the one.
THE CHAIRMAN:     And we'll have -- you're not under oath yet and Ms. Rockwell will be testifying soon. We'll ask you about that.
Q.     Did DSS make a complaint or did they file to take protective custody?
A.     No, the Sheriff's Department did.
Q.     They made the application to the Family Court?
A.     Right.
Q.     And you said it was physical abuse, that the child had --
A.     Alleged --
Q.     -- been hit?
A.     Alleged --
Q.     Alleged.
A.     -- physical abuse with no photographs, no nothing. No doctor's reports, no hospital reports.
Q.     Did the child have any bruises on her?
A.     No.
Q.     Him or her?
A.     Not when he left the house, no.
Q.     But when they got custody, did the child have a bruise? Do you know?
A.     No.
Q.     Have you had a full hearing on the merits on this case yet?
A.     Yes.
Q.     And before what judge was that had?
A.     Judge Barrineau.
Q.     And he issued a final decision and then you appealed it?
A.     I don't believe it's final. I believe it's ongoing. He did rule it -- issue a decision, but I don't believe it's final because we've been back in front -- we were back in front of Judge Barrineau five or six times and we've since -- once it was transferred to Richland County been in three times, so, yes, it's still open. They haven't TPR'd or anything like that.
Q.     But I want to make sure I understand your testimony. It was not the Sheriff who signed the affidavit?
A.     The affidavit for removal?
Q.     Yes, sir.
A.     It was the Sheriff's Department on the -- there was two affidavits of Removal, April 2nd and May 7th. The Sheriff's Department was involved in the first one and DSS James Holcomb signed -- petitioned the court for the second one, but the second one was signed by Judge Barrineau.
Q.     I have no further questions.
THE CHAIRMAN:     Representative Beatty, you have a question.
RE-EXAMINATION BY REPRESENTATIVE BEATTY:
Q.     So DSS initiated the second set as you called it when they came and took the remainder of your children?
A.     I'm allegating that DSS did it on the paperwork, but I'm allegating that Mr. Holcomb has -- I want to say this correctly. I'm allegating that the Sheriff's Department was behind it even though Holcomb signed it.

I've got -- you've got in your record there, DSS notes from that same day that says not enough is needed for ex parte order to be signed. We went to SLED that day. Jeremiah Davis saw the children. Bubba Montgomery saw the children that day.
Q.     And did any of these people appear at the hearing before Judge Barrineau after DSS and Mr. Holcomb took the children into protective custody?
A.     They were in court, but, no, they did not testify.
Q.     Was there a reason for their not testifying?
A.     A disagreement between my attorney and myself. The attorney said you shouldn't fight these people and this opens up another can of worms because my attorney that day was Walter B. Brown.

We had sat in his office the night before and I said what do we need to prepare for tomorrow and B. Brown told me, "Do they have any marks on them? Do they have any hospital reports, doctor's reports?" I said, "No." He said, "then you're getting your kids back tomorrow." I said, "Well, you better petition under discovery of evidence to see exactly what they're going to present tomorrow." B. Brown said, "No, don't worry about it, you're getting your kids back." We went into court the next day. They had called 20 witnesses. B. Brown said, "You can't fight these people."
Q.     So are you telling me then that the witnesses that you say saw these children the day that they were picked up and saw there were no bruises or anything of those things, any harm to the children, were not allowed to testify? Were they in that 20 number that you're speaking of?
A.     Yes. Leroy Montgomery was present in the courtroom that day. Bobby Byrd was present in the courtroom that day, but, no, Jeremiah Davis from SLED was not present.
Q.     Your bottom line is that DSS had no reason to take those children into protective custody and Judge Barrineau allowed them to do so and he did this by a conflict of interest, not knowing the law and bad temperament?
A.     And failure to hear both sides of the story, yes.
THE CHAIRMAN:     Thank you, Mr. Rockwell. Next is Ms. Amy -- Mrs. Amy W. Rockwell. If you would raise your right hand, please.
AMY W. ROCKWELL, having been duly sworn, testified and deposed as follows:
THE CHAIRMAN:     Ms. McNamee has some questions. Do you have any questions?
MS. MCNAMEE:     No.
THE CHAIRMAN:     The affidavit --
MS. MCNAMEE:     The affidavit is signed by both of them.
THE CHAIRMAN:     Okay, the affidavit is signed by both parties. I understand you had a specific area of the complaint that you wanted to talk about or the affidavit; is that correct?
MS. ROCKWELL:     That is true. I would like to correct one thing. This case did not just initiate on April the 2nd of 1991. My son was assaulted by a teacher in one of ninety. I had already had a criminal case against this teacher in court.

Now I had already been through my preliminary hearing and I had also been to the Grand Jury. I notice there were irregularities in it because whenever I went to check up on the case, it had been one year. In six of ninety was when we had our preliminary hearing and ten of ninety is when we had our Grand Jury. I was given a true bill.

One of ninety-one, I was taking my children to Geiger Elementary because it was still in the district, but yet a different school for my child. Fairfield Primary was the original school. So what happened was whenever I contacted the Solicitor's office in Chester, I asked for them what was the status of this case. They told me the case was dropped. I said "No. This case was not dropped. I didn't drop it." "You didn't have to," he said, "The solicitor did." I said "No, that's not true. That's not right. We've already been through the Grand Jury."

So I asked them, I said, "Well, what exactly are you saying dropped this case?" They said, "Well, there's initials besides the solicitor's initials and it was dropped in six of ninety." I said, "No. How can a case be dropped in six of ninety when I had a Grand Jury in ten of ninety?"
THE CHAIRMAN:     Now, tell me how this ties in to Judge Barrineau. Is this --
A.     Because this is how this initiated the taking of my children. My children were harassed repeatedly. I went to Fairfield County to try to get assistance in stopping the harassment.

I filed notices with the school board. It was Polly Parker at the time. Sheriff Montgomery, I filed notices with him. I tried to get them to look into the real issues of this case. It continued to be harassing towards my children.

It was getting to the point to where what used to be enjoyable going to school became they did not want to attend school. It came to the point to where my children were coming home saying that the social workers and it was not every social worker. It was two particular social workers. Tina Fuller and Patsy Black would come into their school telling them that they were going to a foster home if they testified against this teacher.

So I went to Sheriff Montgomery at the time. I asked him to please look in this situation. Terry Williams had also been involved in this activity and she worked for the Sheriff's Department. Whenever I asked him to investigate this, he told me there was no way that they could be involved with a court case.

Mr. Holcomb, I went to him. He was the director of Social Services. He assured me there was no way that my children could be harassed about this court case, that they're not supposed to do that.

So Mr. Ellsworth, the Department of Social Services supervisor, told me he would get someone to look into this for me. Instead my children got removed from school, off the school grounds while I still had custody.

The Norfolk Southern what he's talking about is there is a train site that was on highway 34, Simpson area. The train stopped on the tracks right across from the Kennedy store. Norfolk Southern verified that there was activity on the tracks on March the 14th and March the 18th of 1991. There were two people service -- working on the tracks that day.

My children were taken on this train in attempt to bribe them and show them that they could get special little favors if they just didn't tell me what was going on and if they did not testify against this teacher. So this really angered me that they would remove my children and try to undermine our family and I saw chaos just occurring and it was really -- you know, I was going to the agencies that were supposed to be policing and they were not.

So Sheriff Montgomery came out to our house several times. He asked us to drop the case. He told my son point blank in the yard, "Go tell your mom you lied on the teacher for hitting you." My son came in crying. He was in tears. Tom talked to him outside.

Tom came in and got right in Sheriff's Montgomery's face and said, "Look, this woman has a hard enough job raising these children. There is no way that you should encourage a child to lie to a parent." We were angry. We told him we were going to SLED and we were going to have this. If Fairfield County would not look into this situation, we would go elsewhere.

My son, Anthony, the one that they took first, was the most adamant in saying Tina wore a pink dress, it was a blue car, it had an emblem on it. He was descriptive. He was not just saying, oh, she came and got me and then he couldn't explain. He was being very precise in his accusations. It got to the point where I had to start staying at school with my children to keep them from getting harassed at school.
THE CHAIRMAN:     Now, connect it again to Judge Barrineau because we're talking about -- it sounds like the relationship --
MS. ROCKWELL:     And it does come into Judge Barrineau because he's --
THE CHAIRMAN:     All right, but help us move to that point.
MS. ROCKWELL:     Okay.
THE CHAIRMAN:     And I'm not -- I think we need to move to that point where Judge Barrineau is involved because it sounds like this relates to some concerns about Sheriff Montgomery.
MS. ROCKWELL:     And it does.
THE CHAIRMAN:     And I think they've been outlined adequately by your husband as far as the --
MS. ROCKWELL:     Right.
THE CHAIRMAN:     -- relationship.
MS. ROCKWELL:     And the involvement that I feel that was the biggest conflict is that, A, they're business partners. They are -- Sheriff Montgomery and Mr. Barrineau are business partners and friends confidant.
THE CHAIRMAN:     And that relates to the ownership of land issue that you mentioned?
MS. ROCKWELL:     Yes, it does and along with a personal level.
THE CHAIRMAN:     Okay.
MS. ROCKWELL:     So there is a certain amount of trust between the two of them and I feel that that influenced terribly the decisions that he made. I was not allowed to speak in court. And I do have transcripts at home that if you would like for me to provide you, I just got from an attorney where I said, "Sir, may I please say something?"
"Sit your ass down." Another transcript, I said, "But, sir, we have complied with these orders," December the 13th, 1991. We showed compliance of all the things that they had accused us of.

They accused me of forging -- signing checks that the State had given me. That was not true. I even had to do the leg work on this and went to the State Department of Financial Services and had to get them to prove that these child support checks were not coming to me.

They were staying within DSS, but DSS had such a big financial problem that they had a real mess up in their financial situation, but it showed that I did not receive those checks. So they couldn't throw us in jail on that.

Another thing was they said that we did not have mental health appointments. They kept insisting Fairfield County this, Fairfield County that, even though we lived in Richland County, so we had to adhere to these Fairfield County places.
THE CHAIRMAN:     But these are all related to the concerns --
MS. ROCKWELL:     To Judge Barrineau.
THE CHAIRMAN:     -- you have with DSS, are they not?
MS. ROCKWELL:     Judge Barrineau.
THE CHAIRMAN:     The mental health appointments, I mean is that something that DSS --
MS. ROCKWELL:     Judge Barrineau signed the order for it.
THE CHAIRMAN:     Okay.
MS. ROCKWELL:     So we went to the mental health appointments. We went and got appointments. They would not per se see us prior to court. We received the order on December the 4th of 1991. By my understanding of the law, you're supposed to get 30 days to comply with the order upon receipt. I was not given this by DSS. I was not given this by the Solicitor's office. I had to go and personally obtain this myself.

My attorney did not receive this until like the first week in December, which was Mr. McCormick at the time. So we went and got appointment cards and presented it to the court that, yes, we had an appointment, but it was a week or so after the court date. It was on the 19th. I did supply a copy of those to you. So we should not have been held in contempt, but we were held in contempt. And every courtroom that we have had, it's been like a circus there.

They would have people in there that were in no way related to our case, sitting in on our cases. Whenever I would try to testify, anything that was beneficial to our case was not allowed in court, anything that was detrimental, falsified, et cetera was allowed by Judge Barrineau, so we did not get a fair hearing and I believe that had we gotten a fair hearing, my children would not be where they are at right now because these court orders have been used against us.

Since there has been a judge to say, "Oh, yes, there is a finding of threat of harm here," that order has carried out tremendously and every one looks at this order and this is fact, but it is not fact. Instead it has been a piece of paper that has been maneuvered through the court system to appear as fact and my children are victims terribly.

To this day, we have tried to make Judge Barrineau aware, 207 Evans Street. This house was not fit to be a foster home, yet $900 a month was received to keep my kids there. Three children lived in this home. Rat infested. It was terrible. This house is not something that should have been used. These people are in financial stress. They have foreclosed on this home. They had another house to go in default. They had to order it back and somehow that involved B. Brown.
THE CHAIRMAN:     All right.
MS. ROCKWELL:     This is the situation that has occurred with a group of people in Fairfield County that feel that they are above the law and Judge Barrineau has worked in union effort to work with his friends and not in the best interest of my children.

Had he worked in the best interest of my children, he would have never allowed my children to live in a house that looked like this that's only a couple of blocks from the court house. He would have never allowed my children to be placed outside of family members. He would have never allowed my children to be placed with people who had adoption goals.

Now my children were jerked out of my home because they alleged assault, yet my children had no bruises on them, no hospital reports. There was nothing that should have removed my children. My children should have been protected.

We went to the State Department of Social Services, asked to be put under a witness protection program prior to this removal of my children. I was told there was no such thing, but yet my children are suffering and Judge Barrineau I believe could have been more available to me. I believe he could have been more willing to listen to the facts of the case, looking at all issues and not just what the State presented to him.

I believe that my children are not the only children that are suffering this. I believe that if it has occurred to me, than it has occurred prior to me.
THE CHAIRMAN:     Ms. --
MS. ROCKWELL:     And I feel that in his case, it should be investigated.
THE CHAIRMAN:     Ms. Rockwell, and our role here is to determine the qualifications of Judge Barrineau to sit as a retired judge. You know, talking --
MS. ROCKWELL:     My --
THE CHAIRMAN:     -- about other cases that may be out there, we're limited to what we have before us and what's on the record, so --
MS. ROCKWELL:     I understand.
THE CHAIRMAN:     -- please understand that. Now I think we understand the thrust of your and your husband's allegations. Are there any specific questions from the Committee members? All right. Thank you. Thank you very much.
MS. ROCKWELL:     Well, I would like to say this, I believe that it would be in the best interest of our society that we do try to find a judge that is going to listen to both sides and present -- what is presented before him, allow the people who are the defendants to at least have a hearsay in court.

I don't believe that it would be in the best interest of the courts to allow Judge Barrineau to further hear any cases. I believe that him being removed from his position, letting him retire, would be in the best interest of all children everywhere.
THE CHAIRMAN:     Thank you.
MS. ROCKWELL:     And I do hope and I pray that you do not allow him to be a judge any further. This is not what I feel is in benefit to any family. My family has been destroyed and whenever you have one family that's been destroyed, that's one too many.

You know, that is something that should not have occurred. I understand I have to keep in different areas, you know, who can do what --
THE CHAIRMAN:     Thank you. I appreciate your testimony.
MS. ROCKWELL:     Please consider that.
THE CHAIRMAN:     Judge Barrineau. You're still under oath.
JUDGE BARRINEAU:     Well --
THE CHAIRMAN:     Let me just --
JUDGE BARRINEAU: -- first of all, let me --
THE CHAIRMAN:     Let me suggest. Mr. Beatty, I think, succinctly stated what the issues are here and if you could try to respond to those. I think the questions that have been raised as I understand them relate to an alleged conflict of interest because of a business relationship with the judge -- with the former Sheriff Montgomery and also some questions about your proper application of the law and some temperament questions.
JUDGE BARRINEAU:     All right, first of all, the judge is -- let me address the application of the law. She just says that I didn't know the law pertaining to removal of children from the state. I didn't know the children had been removed from the state until she brought it to my attention at some point and I brought the DSS in and admonished them about removing those children from the state. And they said it wouldn't happen again. And I assumed that it never happened again because I never had another complaint, but that's my response to that part of it.

She says in her complaint that I'm -- I acted as God or king or whatever in one place in her complaint, she must think I am God or king or something if she thinks I can go around and inspect every foster care home that DSS chooses to place a child in.

I had no knowledge of where those children were placed. I wasn't interest in where they were placed. That's DSS' responsibility. Mr. Griswald gets $50,000 a year more than I do to administer those kind of situations. I'm not charged with that responsibility. I'm not charged with inspecting DSS or making them abide by the federal law. That's not my responsibility. I'm to hear the cases in the courtroom and to rule on the facts that I hear in the courtroom.

I don't know what she did with Sheriff Montgomery on the train. I have no knowledge of that. All I know is what was presented in that courtroom and the evidence.

Now, you want to know why there were no bruises on the children because she held them underwater. She held them underwater. That was the report that I got from the Sheriff's Department and the testimony in the case. There wasn't any bruises from holding them under water. That's the way she controlled her children.

As far as me telling her to sit down and whatever, all of the transcripts and all of the things that she's alleged have been -- has been appealed to the Supreme Court or should have been appealed to the Supreme Court. If I didn't apply the law right, if I didn't listen to the facts right, she had a right to appeal and she had a right to have me reversed. That wasn't done. She -- he say it's his fault because he had a bad lawyer or whatever, I don't know. He had six lawyers in the case.
JUDGE BARRINEAU:     And there has never been any objection to Sheriff Montgomery testifying in my court or any conflict of interest because of that. He's never testified in my court.
JUDGE BARRINEAU:     But I've never had an objection and that affidavit, if they asked me to recuse myself in that case, it was not because of any ownership of property between myself and Sheriff Montgomery.

Sheriff Montgomery and I have owned that property for several years. It's a little old store on Main Street in Winnsboro and there's another little tract out in the country of one acre, I think. It has nothing to do with any conflict of interest in the courtroom, so I don't have -- you don't have to have anything to hide behind in regards to that. I'll be happy to answer any question that you might have.
THE CHAIRMAN:     Thank you. Questions?
EXAMINATION BY SENATOR RUSSELL:
Q.     Your testimony is you never communicated with the Sheriff?
A.     Outside the courtroom, I never talked to the Sheriff about this case. He came to the courtroom, but he didn't testify. All the officers that investigated it testified as I recall. This was in 1991.

By the way, this case was removed from Fairfield County by their motion over a year ago. All the children are now in foster care in Richland County. The DSS in Richland County was supervising the children. All the connecting parts of the case are now in Richland County.

They moved to transfer the case to Richland County. I granted the motion and so now it's in Richland County and it's on going. It's still continuing on. And let me point out one thing, one of the letters I wrote them -- this is it right here.
THE CHAIRMAN:     Does everyone have a copy? All the members?
A.     Yes, everybody has got a copy, I think, provided, but I did write her. She wrote a letter to the Editor in the paper and said I was in cahoots with DSS and all of these things in the newspaper, so I responded in that letter to her because I didn't even know her address prior to that time.

But I wrote her a letter and said apparently your lawyer in this case did not keep you very well informed. At one point in the case, I tried to persuade DSS to allow your parents, the Walshes, to have placement or custody of the children. DSS objected adamantly. Unfortunately I was not successful at the time and the children stayed in foster care. I was never very comfortable with the foster care situation concerning your children and expressed that opinion to the attorneys in Chambers. I also told the attorneys on both sides that I wanted all efforts made toward returning the children to you -- to them.

I tried. The problem was that they wouldn't obey any of the orders that I had issued. They kept interfering with placement of the children. They would go and see them at inopportune times and interfere with the routines of the children and so forth, so they ruled them in on a rule to show cause. I held them in contempt and locked them up overnight, one night.

Also I want to point out to you that I wrote this letter in response to the allegations in the paper about the foster care home and the conditions of the foster care home, and in the second paragraph, I said the purpose of this letter is to inquire as to what experts you are talking about concerning -- consenting to fire traps being allowed in the foster care facility. Naturally, I would be concerned about that and if you have any complaint to make, I would be more than happy to hear about it and we'll try to rectify the situation. If DSS is not doing their job in any way, I want to know about it, so that I can get an explanation and corrective measures can be taken immediately. Please write down your concerns and I will look into them and get an explanation.

I've tried everything I can do to talk to these people. I've tried to -- I wrote them this letter out of my own initiative to try to explain to them that I was on their side more so than probably anybody else in the courtroom.

It's always been my position in custody cases where DSS is removing them, that I'm the last bastion or I'm the last person that stands between children or between DSS and the parents of these children and so I always try to give the benefit of the doubt to the parents.

I try to work with them. I try to rehabilitate. I try to get them to cooperate with the programs to get these children to come back into the home, even require DSS to supervise the visitation and to supervise periodically by visiting the houses and do all of these things and check on these children. I'm very much concerned about the welfare of the children in the Sixth Circuit and in the State of South Carolina and I want to know what's happening, but I cannot be charged with the responsibility of knowing every foster care -- every foster home they put these children in as not safe or whatever they might allege. But I've tried everything to convince these people that I was on their side in the case in the beginning, the entire time it was with me and I had every intention of trying to reunite these children with them at some point in the process. And if the case was still in my court, they may have these children back today, but I didn't remove the case. They removed it to Richland County on their own initiative.
THE CHAIRMAN:     Thank you, Judge. Questions? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q.     Just a couple real quick. Judge, would it be a fair statement then that the case before you, you had to pass on whether or not the children were at risk and what was in the best interest of the children first?
A.     That's right. They'd bring you an ex parte order and it's signed. Sometimes they bring it in the middle of the night and the judge is always available to handle those matters. They'd come in and they'd tell you what the danger is to these children and so forth.

I don't know if this was brought in the middle of the night, but it was brought to me and said that the children were in danger and asked that they be removed. And I don't know what the affidavit covered and said or what at this point, but I was convinced by that agent, whoever it was, that it was necessary to remove those three children at that time and I did it. And then subsequently the hearings occurred after that.
Q.     And secondly from your comments I pick out, your philosophy is that where possible or where the objectives can be achieved that you try to put the families back together in that setting?
A.     I make DSS go out of their way. I make them provide homebound service. I make them go and counsel with the people and try to reunite these children with their people and unfortunately these people would not cooperate long enough for me to get those children back to them.

They kept interfering with the order and disobeying the orders and it became necessary for me to try to shock them into some reality and lock them up and so I held them in contempt for interfering with the order and locked them up and then -- you know, ever since -- this thing has been going three years.

I've lived with these people for three years. I've had the Sheriff's Department patrolling my house for almost three years. It worries me that they are so adamant and so fixed on me as apparently the head ringmaster of the circle of friends, so to speak, in Fairfield County. The School Board has been attacked by them. The Department of Social Services has been attacked by them. The teachers at the school. The courtroom is full of people because all of these people have been accused of something and they were all in that courtroom.

Every time we had a hearing, the whole courtroom was full of people from the school house and from DSS and everywhere else and they were all afraid and it comes down to me that I'm the last -- the buck stops here, so to speak and here I am and I'm the ultimate decision maker and I made the decisions I thought were in the best interest of those children and I'd do it again today.
Q.     Lastly, the question to you is there was no financial gain for you or benefit at all by making a decision on these children, was there?
A.     No. No. No. I wish we could sell that property. We've been trying to sell it for ten years.
Q.     Thank you, sir.
THE CHAIRMAN:     Thank you. Further questions? Thank you, Judge Barrineau.
A.     Thank you very much.
THE CHAIRMAN:     Mr. Rockwell, let me -- our normal course of action is not to allow witnesses to reply. We allow a reply by the original -- the candidate. What I'll tell you, though, is the record is kept open. If there is further information that you want our staff counsel to consider, you're welcome to forward that to them and we are allowed to further investigate prior to issuing -- we just take information under advisement today, but, you know, we can go back and forth all day.
MR. ROCKWELL:     I'm not allowed one reply?
THE CHAIRMAN:     No, sir. I prefer you -- if you want to send something in writing to us, we'd be glad to do that or further information. You mentioned a transcript, we'd be glad to take a look at it.
MS. ROCKWELL:     Then may we leave it today because I was just slandered while he was under oath.
THE CHAIRMAN:     You may leave anything you want to with staff today.
MS. ROCKWELL:     Okay.
THE CHAIRMAN:     For the Committee purposes, we start administrative law judge hearings in 15 minutes.
REPRESENTATIVE ALEXANDER:     Where is that hour lunch we were going to take?
THE CHAIRMAN:     We're not going to do that, are we? How long of a break do ya'll want to take? You want to take an hour break to -- or you want to break until 3:00 o'clock? Let's break until 3:00 o'clock.
MS. ROCKWELL:     I do have one question that is not going to be in any way derogatory. Can I get a copy of this transcript?
MS. SATTERWHITE:     I'll send you a copy of the journal once it's printed in the House and Senate. It's no charge and I'll automatically send it to you.
MS. ROCKWELL:     Thank you very much.
THE CHAIRMAN:     3:00 o'clock, we will reconvene.

(A lunch break was taken)
THE CHAIRMAN:     We'll begin the afternoon session and the first group that we will review will be the Administrative Law Judge candidates for Seat 1 and I believe we have taken them in alphabetical order, have we not? The first candidate is Herbert Clay Carruth, Jr. Mr. Carruth, can you step forward, please. Raise your right hand.
HERBERT CLAY CARRUTH, JR., having been duly sworn, testified as follows:
THE CHAIRMAN:     Thank you. If you would be seated, please.
MR. CARRUTH:     Yes, sir.
THE CHAIRMAN:     I'm going to review a few questions with you and then have counsel ask you further questions as well. Have you had a chance to review the Personal Data Questionnaire summary provided?
MR. CARRUTH:     Yes, sir, I have.
THE CHAIRMAN:     Is that accurate?
MR. CARRUTH:     It is with the exception that on the CLE listed there is 22 hours from the Buckley School of Public Speaking which is not on there, but is something that the Bar has a record of and I've just filed my CLE report. It was amended from that list.
THE CHAIRMAN:     All right, I think we can supplement your record to show that.
MR. CARRUTH:     Thank you.
THE CHAIRMAN:     You can forward us that information, if you choose. Are there any other clarifications that need to be made in your record?
MR. CARRUTH:     Not that occur to me at this time.
THE CHAIRMAN:     Do you have any objection to us making the summary a part of record?
MR. CARRUTH:     No, sir. Not at all.
THE CHAIRMAN:     It will be so ordered.

1.     Herbert Clay Carruth, Jr.
Home Address:                         Business Address:
1603 Lyttleton Street                 305 Gressette Building
Camden, SC 29020                 Columbia, SC 29202

2.     He was born in Athens, Georgia on August 15, 1948. He is presently 45 years old.

4.     He was married to Anne West on December 16, 1978. He has three children:     Herbert Clay, III, age 8; George West, age 5; and Carl West "Cotton," age 2.

5.     Military Service:     2/28/69 - 2/22/71; U. S. Army; Sp/4; RA12816944; Honorable Discharge; Present status - civilian

6.     He attended the University of South Carolina and Presbyterian College, 1966-1968, courses in Business Administration and Arts and Sciences; service in the U.S. Army, 1969-1971; the University of South Carolina, 1971-1973, B.A. in Philosophy, Art History Cognate; the University of South Carolina Graduate School, 1973-1976, Comparative Literature (Ph.D. Candidate, by-passed M.A.); the University of Tennessee School of Law, 1977-1979, transferred to the University of South Carolina School of Law in June of 1979; and the University of South Carolina School of Law, 1979-1980, J.D. in December of 1980.

8.     Legal/Judicial education during the past five years:

8/27/93             S. C. Bar "6th Annual Hospital and Health Law Seminar" (6.5 hours)
8/6/93                 S. C. Bar "Restructured State Government and The State of Administrative Law" (6.0 hours)
4/16/93             S. C. Bar "Winning Trial Techniques" (6.0 hours)
1/8/93                 S. C. Bar "42 U.S.C. Section 1983, The S. C. Tort Claims Act and Government Liability" (6.0 hours)
9/11/92             S. C. Bar "5th Annual Hospital and Health Law Seminar" (6.5 hours)
8/14/92             S. C. Bar "Important Developments in Environmental Law" (6.0 hours)
12/20/91             S. C. Bar "This was the Year That Was" (6.5 hours)
12/6/91             S. C. Bar "Legal Ethics and Professional Responsibility" (6.0 hours)
10/19/90             S. C. Bar "Criminal Practice in South Carolina" (6.0 hours)
5/11/90             S. C. Bar "Appellate Practice in South Carolina" (6.5 hours)

3/9/90                 S.C.C.J.A. "Mock DUI Trial" (6.0 hours)
2/21/90             S.C.C.J.A. "Update on the Law" (6.0 hours)
12/8/89             S. C. Bar "General Practice Update and Hugo-Related Insurance Issues" (6.0 hours)
12/1/89             S.C. Bar "Bankruptcy:     Recent Developments on Important Issues for 1990 and Beyond" (6.0 hours)

9.     Taught or Lectured:
He has delivered lectures on recently passed legislation and currently pending bills and regulations which concern health care to the following groups on the dates indicated:

8/29/92             Rock Hill, SC Chapter of American Association of Retired Persons
11/17/92             Legislative Monitoring Task Force, SC Allied Health Alliance
1/21/93             SC State Legislative Committee of the American Association of Retired Persons
2/17/93             USC College of Nursing, NURS 720 Class ("Community Nursing and Health Services:     Planning and Delivery")
7/12/93             USC College of Nursing, NURS 403 Class ("Policies and Politics")
9/16/93             SC Anesthesiology Office Managers
9/30/93             USC College of Nursing, NURS 720 Class ("Community Nursing and Health Services")
10/8/93             SC Association of Rehabilitation Facilities 1st Annual Conference

12.     Legal experience since graduation from law school:

12/90-Present     DIRECTOR OF RESEARCH AND ATTORNEY TO THE S. C. SENATE AFFAIRS COMMITTEE. Responsibilities include constituent assistance for Committee members and other members of the General Assembly; research on bills, regulations, statewide appointments, and other matters referred to the Committee, as well as coordinating the scheduling of Committee and subcommittee meetings and the setting of agendas for same.
5/85-12/90         STAFF COUNSEL - PUBLIC SERVICE COMMISSION OF SOUTH CAROLINA. Responsibilities included working with accountants, economists, and other staff members to prepare Commission Staff's cases in rate and other application proceedings. Utility rate cases involved application to per book figures of accounting and pro forma adjustments to determine rate base, as well as application of different models and methodologies (primarily DCF and CAPM) to determine cost of debt and equity capital; also, use of regulatory legal principles to determine reasonable rates of return overall and on various components.
Transportation cases involved use of motor carriers' operating ratios and various other factors to determine reasonable rates, determination of public convenience and necessity, as well as fitness and ability to perform motor carrier services for hire, and construction and application of the Commission's Statutes and Regulations regarding its economic and safety jurisdiction, prosecuting cases as warranted; also, railroad abandonments and bus route and schedule changes.
General legal duties included composition and preparation of Commission Orders, Briefs and Memoranda, rendering of advice to the Commission and Commission Staff; and representation of the Commission and Staff in agency proceedings and in appellate practice before the State's Circuit Courts, Court of Appeals and Supreme Court.
6/84-4/85         ASSISTANT ATTORNEY GENERAL, CHILD SUPPORT ENFORCEMENT DIVISION, OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA. Responsibilities included representation of South Carolina Department of Social Services in paternity, support and contempt hearings in the Family Courts of South Carolina, as well as drafting all necessary pleadings and orders.
4/82-6/84         STAFF ATTORNEY, OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA. Attorney for the State's Division of General Services, assigned to the South Carolina Insurance Reserve Fund. Responsibilities included general contract negotiation and approval of lease/purchase agreements, personal service contracts, leases of property and easements, requests for proposals, bid solicitations, specifications preparation and other procurement procedures under the State's Consolidated Procurement Code; advice to State agencies and political subdivisions relative to liability of the State, its agencies and political subdivisions as well as officers, employees and volunteers to suit in tort in State and Federal Courts, as well as advice as to availability of comprehensive general liability, fire and extended coverage insurance, drafting of policies and endorsements, negotiation and settlement of claims, legislative research, interpretation of statutes and regulations, and drafting of proposed legislation. Also served as Hearing Examiner for the South Carolina Manufactured Housing Board and the Pyrotechnic Safety Board.

13.     Rating in Martindale-Hubbell:     He is listed in Martindale-Hubbell as a Staff Counsel for the Public Service Commission. He is not rated as his experience has been in state government service.

14.     Frequency of appearances in court:
Federal -             None
State -                 Since he became Research Director and Attorney to the Senate Medical Affairs Committee in January of 1991, his duties have not involved court appearances. From 1985 through 1990, as Staff Counsel to the Public Service Commission, he occasionally appeared in Magistrate's Court, Circuit Court, the Court of Appeals and the Supreme Court. Most of his practice at the Public Service Commission involved administrative law and participation in agency contested case hearings as described below.

Other -             From 1985 through 1990, he appeared before the Public Service Commission in agency contested case hearings approximately twice a week. These administrative law cases and hearings concerned applications for certificates of public convenience and necessity, regulation promulgation, rate cases, rules to show cause involving utilities and motor carriers for violations of statutory and regulatory standards, and generic proceedings.

15.     Percentage of litigation:
Civil - 98%
Criminal - 2%
Domestic - None

16.     Percentage of cases in trial courts:
Jury - 2%
Non-Jury - 98%

Sole Counsel

17.     Five (5) of the most significant litigated matters in either trial or appellate court:
(a)         Application of Williston Telephone Company, Inc. for Authority to Change Certain of its Intrastate Rates and Charges and for Changes in Depreciation Rates. Public Service Commission Docket No. 85-182-C (SCPSC Order No. 85-1108).
This case represents a fairly typical example of the application of rate-making principles to a small to medium-sized telephone utility in South Carolina. The process involves the application of accounting and pro forma adjustments to test year financial and operating figures which have been normalized, as appropriate. An appropriate rate base is figured based on the net value of utility's tangible and intangible property and capital devoted to provision of telephone service. Rate of return on rate base is the general methodology for determining reasonable and fair rates and charges to enable the utility to realize sufficient revenue to achieve a certain permitted overall rate of return, given the utility's capital structure.
(b)         Application of United Cities Gas Company for an Increase in its Rates and Charges. Public Service Commission Docket No. 86-199-G (SCPSC Order No. 86-1114).
This case represents the application of rate-making principles to a gas utility in South Carolina. Determination is made of a fair and reasonable overall rate of return on rate base and the required additional revenue to enable the utility to achieve this overall rate of return. The revenue is allocated. The capital structure of the utility is determined, based on the amount and ratio of debt and equity. Cost of equity capital is figured using Capital Asset Pricing Model and Discounted Cash Flow Methodology. The Public Service Commission determined, among other things, that the utility's proposed rates and charges would generate an excessive amount of revenue, indicating an unreasonable return on common equity. Therefore, the Commission declined to approve the proposed schedule of rates and charges filed by the utility and made its own determination of fair and reasonable rates based on its finding of a fair and reasonable return on common equity.
This case illustrates the importance of return on common equity in the ratemaking scheme, since the other components of the overall rate of return, such as the cost of debt and the dividends on preferred stock, are fixed.
(c)         Petition of the Commission Staff for a Rule to Show Cause Against Howard Lisk, Inc. ... Concerning Failure to Comply with the Statutes and Regulations Pertaining to Motor Carriers Enforced and Administered by this Commission. Public Service Commission Docket No. 88-694-T (SCPSC Orders No. 89-206 and No. 90-973).
This cases involves the intervention of a competing motor carrier in a Rule to Show Cause (RTSC) proceeding against a motor carrier for undercharges and operations exceeding the scope of its authority. Intervention in an RTSC is highly unusual. The case illustrates the very competitive conditions within certain segments of the motor carrier industry, the economic power of shippers to dictate rates within these segments, and South Carolina's adherence to the "filed rate doctrine" in its regulation of motor carriers.
(d)         Application of Vale Service Co., Inc. for Approval to Operate a Water System and Approval of a Schedule of Rates and Charges for Water Service Provided to Customers in Aiken County, South Carolina. Public Service Commission Docket No. 89-336-W (SCPSC Order No. 90-716).
In this "establishment" case, approval of rates and charges is based on certain estimates and projections as to which the Intervenor Consumer Advocate took exception and offered alternatives as "Proposed Findings" after the conclusion of a hearing at which he presented no testimony or exhibit.
The Commission concluded that the proposed findings lacked an evidentiary basis in the record and therefore did not require a separate ruling upon each as a "proposed finding of fact" pursuant to S.C. Code Ann. Section 1-23-350 (Law. Co-op. Revised 1986). Nonetheless, the Commission considered the points raised by the Consumer Advocate and disposed of them in its order approving the utilities' proposed rates and charges.
(e)         Application of Huckabee Hound, Inc. ... to Transfer Class E Certification Nos. 133-D and 211-G to Con-Way Southern Express, Inc. ...Public Service Commission Docket No. 880-655-T (SCPSC Order No. 89-333).
This hotly contested case involving a proposed transfer of Class E motor carrier authority to operate as a common carrier of general commodities illustrates the resistance of certificated carriers in this market segment to market entry by another carrier, particularly when that carrier is a large, nationwide, well-capitalized entity.
The Intervenors in this case opposed the transfer on the ground that the transferor of the motor carrier authority at issue had not been actively engaged in operations within the full scope of that authority sufficient to qualify the authority for transfer under the Commission's Regulations.
The Intervenor also asserted that the nature of the intrastate South Carolina statewide general commodities carriage market at that time was such that entry of a new carrier such as Con-Way Southern into that market would be destructive of competition and would adversely affect the general public interest in accessible quality motor carrier service. This case involved the videotape deposition of a nationally-recognized authority on the market economics of motor carrier operations.
The Commission found substantial compliance with its regulations and determined that the motor carrier authority at issue was not "dormant" and that its transfer would not adversely affect the public interest in a competition market.

18.     Five (5) civil appeals:
(a)         Anderson Armored Car Service, Inc. v. S.C. Public Service Commission, 366 S.E.2d 444 (S.C. App. 1988). Opinion No. 1117, heard 11-16-87, filed 3-14-88.
(b)         Welch Moving & Storage Co., Inc. v. The Public Service Commission of S.C., 377 S.E.2d 133 (S.C. App. 1989). Opinion No. 1289, heard 12-12-88, filed 2-6-89.
(c)         Welch Moving & Storage Co., Inc. v. The Public Service Commission of S.C., 391 S.E.2d 556 (S.C. 1990). Opinion No. 23188, heard 1-22-90, filed 4-2-90.
(d)         Hilton Head Center of S.C., Inc. v. The Public Service Commission of S.C. and Hilton Head Plantation Utilities, Inc., 362 S.E.2d 176 (S.C. 1987). Opinion No. 22793, heard 9-23-87, filed 11-9-87.
(e)         Red Bus Systems, Inc. d/b/a Kannapolis Transit Co. v. S.C. Public Service Commission, et al. Docket No. 87-CP-40-2995, Order of Judge Kinon dated 9-17-87.

25.     Occupation, business or profession other than the practice of law:
Carpenter's Helper, M&N Construction Co., 1981-1982

40.     Expenditures Relating to Candidacy:
The following expenditures occurred on or about July 30, 1993:
Stationery                     $94.99
Postage Stamps             $58.00
Mailing Labels             $23.27

45.     Bar Associations and Professional Organizations:
South Carolina Bar

46.     Civic, charitable, educational, social and fraternal organizations:
Transportation Lawyers Association; Springdale Hall Club; Camden Country Club; Friends of Kershaw County Library; National Conference of State Transportation Specialists - Education Committee and Rails Committee; Camden K-5 PTA; Buckley School of Public Speaking - Orator's Award; Tennessee Squire

47.     During his professional development, he has worked to acquire knowledge and skill concerning administrative law practice and pertinent regulatory precepts. For example, while working at the Public Service Commission, he attended three national seminars concerning utility and transportation regulation. In addition, he sought an understanding not only of the law, but also of the subject matter involved.

In his service as staff counsel to several governmental agencies, he has sought to discharge matters assigned to him promptly. It has also been important to him to treat with respect co-workers, opposing counsel and all persons having business before or contacts with the agency.

48.     Five (5) letters of recommendation:
(a)         Kenneth L. Lannigan, Vice President
Merrill Lynch
P. O. Box 11269, Columbia, SC 29211
733-2152
(b)         Robert T. Bockman, Esquire
McNair & Sanford, P.A.
P. O. Box 11390, Columbia, SC 29211
799-9800
(c)         Sarena D. Burch, Esquire
P. O. Box 102407, Columbia, SC 29224-2407
699-3182
(d)         Arthur G. Fusco, Esquire
Sherrill and Rogers, PC
P. O. Box 100200, Columbia, SC 29202-3200
771-7900
(e)         Susan A. Lake, Esquire
Nexsen Pruet Jacobs & Pollard
P. O. Drawer 2426, Columbia, SC 29202
253-8257

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have been filed against you. The records of the appropriate law enforcement agencies, that being the Kershaw County Sheriff's Department, the Camden City Police Department, SLED and FBI records, are all negative. The Judgement Rolls of Kershaw County are negative and the Federal Courts as well. We have had no complaints and no witnesses are present to testify against you.

I'm going to turn you over to Mr. Elliott for questioning.
MR. CARRUTH - EXAMINATION BY MR. ELLIOTT:
Q.     Thank you. Good morning.
A.     Good morning.
Q.     Afternoon, I guess.
THE CHAIRMAN:     Before -- let me tell you something that we have decided to do for Administrative Law judge candidates and that's to give you the right if you choose to give a brief opening statement about your desire to serve as an Administrative Law judge and when I say brief, I mean brief, five minutes or less. If you choose to do that, you may. If you choose to waive it, it won't be held against you in any way.
A.     Thank you. In that case, I'd like to waive it in the interest of economy generally because ya'll have a lot of folks to process.
THE CHAIRMAN:     Thank you. Mr. Elliott.
Q.     From looking at your Personal Data Questionnaire, it looks like you have a fair amount of experience in administrative contested case proceedings through your work with the Public Service Commission and I see that you even served as a hearing officer on occasion from '92 -- 1982 to 1984. However, most of your experience is with the Public Service Commission. What do you know about the substantive and procedure of administrative law that relates to other agencies?
A.     Well, to the extent that you can universalize because whatever your experience has been, if it's not unlike that other places, what you learn in specific circumstances, you can import. It's kind of hard to tell how to articulate it except that as far as what the courts have said -- what the Court of Appeals and what the Supreme Court have said, these matters are generally applicable and I think everybody who keeps up with administrative law, every practitioner is aware of what the case law is and I think it's generally applicable as far as construction and application of the APA. And as far as the regulations and procedural regulations of the agencies, there is a great deal of similarity agency to agency.

The two with which I'm most familiar with, the PSCs and DHECs, and they track pretty much the general provisions of the law as are reflected in the statutory law and the case law which is developed. And I think other than that, I'm not sure how to answer that.
Q.     We -- yes, I think you have, but I would say you don't have experience with ABC licensing and you might not know much about that at this time?
A.     That's true except what I read in the paper. I don't know a lot about it. Never have had a case over there.
Q.     How would you propose to go about learning that given that ALJs take office March 1 and are supposed to be up and running? What would you do to get yourself ready?
A.     Read and talk to people. Talk to some people who have had experience there. I would try to ascertain just what particulars I need to know about procedures and what the substances involved in their licensure procedures and their violation hearings and things like that.

You can pick up some things and especially if you've been at this for a while in any particular area you can intuit rather easily and rather quickly right much from just reading a few printed words and I think first of all, I'd have recourse to that part of the code which pertains to it. I think part of it's recently been redone. I have glanced at that and I haven't seen anything in there that strikes me as strange or surprises me given what my experience in other areas has been.
Q.     While you were at the Public Service Commission, and I think that was five and a half years you were there; is that correct?
A.     That's correct.
Q.     I believe you said you appeared about -- approximately two times a week before the Commission during that period of time or in court in some fashion during that period of time?
A.     (Witness nods in the affirmative).
Q.     So you do have some litigation type experience?
A.     (Witness nods in the affirmative).
Q.     How will that benefit you as an ALJ and would it make any difference if you did not have that?
A.     I appreciate the question. Having that experience, I think it's a plus. People have the tendency to play their trumps if they've got something they tend to value greatly. If they don't have it, especially if a rival does have it, they tend to denigrate it.

It's possible to look at this much the same way. People who don't have much of it say for a position like this it's not essential and according to the paperwork the official paperwork, it's not as a practical matter and as a substantive matter, I think some of it helps.

When it comes to the fine points of qualification, you know, when somebody is well qualified, super qualified based on how much of this particular thing he has as a criterion, I wouldn't fight you for the difference and I think it might even be fair to say it's like beauty in the eyes of the beholder, but I do think it's been a big help to me and I think that a certain amount of it is essential for your understanding.

You can't get away from procedure no matter what else is supposed to be involved and substantive in the proposition and I think a familiarization with the procedure is essential, having undergone it yourself, having dealt with all kinds of people, having dealt before tribunals and having taken that and gone before appellate courts and accounted for it and having some experience to make you aware of how they view these matters, I would think is a very important qualification, but I wouldn't set myself as any great arbitrator of how much of it is necessary.
Q.     You have some stock. What would be your ethical considerations, for example, if you owned stock in a hospital and a question of the certificate of need for that particular hospital came before you as an ALJ?
A.     That would in my mind put forth a rather stark set of circumstances dictating disqualification. That's -- as to that particular matter, we don't have a delineating standard in my regard and that's a conflict that requires you to disqualify yourself.

There is a narrow provision I think in the Judicial Canons for some sort of remittal of disqualification and I think that that can be applicable generally in the area of a financial conflict of interest if I'm not mistaken.

But what you've just described to me seems so stark that the important thing is first the disqualification and then if you get down the road after the disqualification, you shouldn't -- should there be a desire of the parties and their attorney for you to go on for any reason, then the remittal procedure is provided for in the Canons of Ethics.
Q.     You're a Senate staff member. You have been, I think, since 1990 --
A.     That's correct.
Q.     -- if I remember correctly. If you're elected as an ALJ, what's your responsibility if legislators seek your support in political campaigns or your counsel in other political matters?
A.     Well, the same as would be the case for any other judge and we would be governed according to the statute by the Canons that are applicable to judicial members and that is politics in general is verboten, strictly out of bounds. It's just not to indicate any participation in any fashion. I would think that if a straight up person possessed a modicum of sophistication wouldn't really broach the subject with you and I hope that would be the case.

Most cases, it can be turned away gently. If gently doesn't work, it needs to be turned away nonetheless. There is no participation.
Q.     What have you done and what do you plan to do to avoid any kind of conflict between your public duties as a member of the staff and your efforts to become an ALJ?
A.     I have not campaigned.
Q.     Well, for example --
A.     Except for sending around a letter toward the end of the summer to all the members of the General Assembly telling them who I was, in general terms what I had done and tell them I was interested in running for ALJ. I haven't campaigned.
Q.     Well, for example, members of the Senate will come to you for -- to have bills drafted or to seek some assistance with constituent matters, what will be your approach to that?
A.     Do my job the way I always have. I'm paid by the taxpayers to do a certain job and the way I do the job if you'll forgive this and I hope it doesn't seem full of presumption, but it's an important job and I take it seriously and instead of leaving it and leaving some folks in the lurch to go do something else like campaigning, if it got to be something for which campaigning in my mind was in order and was required, go on annual leave, do something like that to do that. That's one matter.

But as far as doing the job, you not only can do the job without campaigning, you should do it. You're required to do it, morally, ethically, legally without campaigning and if you do it that way, that should not present a problem not withstanding the appearance it might have to some people and what some people might read into the situation.

And in my regard it's not ethically required that somebody in a position like mine interested in running for a position like this quit his job, but I can envision circumstances in the race where that might be required, where it would be required and upon reaching that bridge, I certainly would cross it in the right direction.
Q.     What criteria did you use to select your -- the cases you listed as the most significant cases that you've personally handled that you listed on your Personal Data Questionnaire, what criteria did you use and what do those cases tell the Committee about you?
A.     They tell what kind of cases I had over the run of years at the Commission. I started out just taking a proportional share. There were four lawyers on the staff and had a lot of work to do and each just took about a fourth of everything there was out there. After a few years, we began to specialize a little bit and I became among other things the lawyer for the Transportation Division out there.

Before that, I had done some electric cases and water and sewer cases and some telecommunications cases, gas utility cases and what I tried to do was choose some cases that were not particularly significant to me in that they were unusual given the run of cases out there, but were fairly exemplary of the work out there and illustrated the peculiarity of that work, what there is about it that makes it different than work at DHEC or ABC or the Real Estate Commission or anything else and illustrate some of the concepts that you deal with there.
Q.     And they're fairly representative of the kind of issues you handled at the PSC?
A.     Pretty much.
Q.     As I said, the division will be up and running March 1st and you've applied to be the chief judge of the ALJ Division. Have you given any thought to what the rules for the administration of the division would be?
A.     Yes, I have, and, frankly, because this doesn't come out of nowhere and we have experience in this state with the APA and we have considerable administrative experience in the state and I've been a part of some of that, I think what I have done at the PSC and what I have known about other agencies and the way they do things will certainly guide me. I know some expert practitioners of administrative law.

I think there's nothing wrong with asking an expert advice on particular matters. I think that for an chief ALJ to consult with the other ALJs is not only desirable, it's essential. I think to consult to some extent with the agency personnel and the agencies will be feeders.

The statute puts the duty on the agencies to notify the ALJ Division in the event of contested cases, to establish whatever docketing system will be needed. You have to rely on what knowledge you've acquired in your experience and you also are aware that other people might know more and might be able to offer some insight and you should not be shy about asking them.

I wasn't privy to the development of it here at the General Assembly, so I really don't know what came out during the deliberations as the different committees treated this particular restructuring bill and except for what I can intuit, I'm not sure in each and every case what they had in mind.
Q.     I guess I'm asking is what your first day might look like on the job, what your first week might be like? What's your --
A.     Well, you're going to have to hire a clerk. It's important and you're going to hire a clerk with some -- in my opinion, with some administrative law experience with a penchant for organization, someone who is a clear thinker who can get along well with people and someone who can facilitate the establishment of a docketing system and someone who is aware of what the standards are that are applicable upon review and who knows the day in, day out experience of adjudicating these matters and how they come to you and what can happen when they leave you, how to establish your order, what different kinds of order you'll have, what you're going to do, what's going to determine whether you do it or whether a lawyer writes the order, different things like that.

Everything from housekeeping to any rules of practice and procedure that may be need to be developed, specifically apart from the statutory provisions.
Q.     How would you describe your management style?
A.     Consultation, collaboration. I'm not an autocrat.
Q.     Have you had any experience managing people, setting up an agency, budgeting or anything of that nature?
A.     I have not done that. I have not set up an agency. I have not set up a budget. I have managed people from time to time -- investigators, secretaries, administrative assistants, train and supervised people from clerks, things like that, but I have never managed any kind of organ of government.
Q.     What is it that makes you especially qualified to be the chief judge of the ALJ Division?
A.     Well, I say I hope again without any presumption that if I did not feel qualified or even well qualified for the job, I wouldn't be running for it. I think my integrity, my ability to get along with people, my willingness to within proper parameters accommodate people, my record as a public servant in that regard as well as the experience I've gained at the Division of General Services, in the Attorney General's office, at the Public Service Commission and here at the General Assembly, frankly, for the last three years have given me the kind of insight that to me would be greatly beneficial if not essential to just doing the job as ALJ, let alone being the chief judge and it should help as the chief judge as well.

Why I have valued my work here at the General Assembly is that it has given me insight into these agency concerns that, frankly, I would have had no way of developing before. Any kind of -- any consideration that would apply to the agency's regulation promulgation process is something that I am much better equipped to deal with now by virtue of my experience here than I would have been before I got here.

The issues raised by the members and by their constituents from time to time here as well as those raised by agency personnel have given me I think pretty good insight into what's real reasonable and what's not, how you ascertain that and the necessity of a particular regulation promulgated in certain language. The right questions to ask.
Q.     You did have some familiarity with the APA as I understand it. Have you given any thought to what kind of discovery is available under the APA in a contested case?
A.     Well, historically, discovery in lots of agency practice around here has been a matter pursued according to the agency regulations for procedures. These have reflected to some extent what civil practice takes, generally.

There are some references in the APA which are pertinent and might help perhaps, but for the most the discovery matters have depended upon what people import from civil practice frankly to the particular agency arena that might set law apart from say domestic law or criminal law or something like that and I think a knowledge of that is very important and I would rely heavily upon it.

In my experience, the rules that we have used have been derived substantially -- you know, the various discovery devices come from requests for admission, interrogatories, things like that, data request in the case of the Public Service Commission. You know, matters peculiar to public utilities, things that have to do with cost accounting rendering and things like that, you know, subpoena duces tecum. You come bring the books, this is what we want is one way to get at it an agency data request just requires you to bring the books. We want you to give us the pertinent data.
Q.     Have you ever been held in contempt or sanctioned by a court for any reason?
A.     No.
Q.     Have you ever been the subject of a disciplinary action as a state employee?
A.     No.
Q.     Have you sought directly or indirectly the pledge of a legislator in support of your candidacy for the chief judge of the ALJ Division?
A.     No, I have not.
Q.     Are you aware of any other solicitation that was performed either without your authorization or your request?
A.     No, I am not.
Q.     And our expenditure records show that you've spent $176.26 on your campaign. Is that accurate as of today?
A.     Yes.
Q.     That's all the questions I have, Mr. Chairman.
THE CHAIRMAN:     Questions from the members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q.     Thank you, Mr. Chairman. Have you sought the endorsement of any group of members of the General Assembly or the caucus of the General Assembly?
A.     No, sir, I have not.
Q.     Have you participated in any formalized interview process outside of the Bar Association regarding this appointment?
A.     No, sir, I have not.
Q.     Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the Bar Screening committee, the Bar employees or their lobbyists representing the Bar either before you were screened by them or after you were screened by them, but prior to their issuance of a report?
A.     It sounds like the answer to that is no, but I'd appreciate it if you'd begin the question again.
Q.     I'll say it again because it's a very technical question. Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the Bar Screening Committee, the Bar employees or lobbyists representing the Bar either before you were screened or after you were screened, but prior to the Bar's screening report being made public?
A.     Oh, absolutely not. It was easier after I could get a handle on it. I apologize for making you repeat it.
Q.     Okay.
REPRESENTATIVE BEATTY:     Just one question.
THE CHAIRMAN:     Representative Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q.     Looking to your employment history, it appears that you have spent most of your legal life defending the governmental decisions. Do you feel you can be fair to folk on the other side?
A.     Yes, I do. And I've had words from time to time with some of my government lawyers colleagues because some of them are a little more inclined to view the agencies as just doing the Lord's work. I think that that's the way for them to feel and they should and they should do their work like that's what it is. But I've always been conscious that the general public interest might well lie somewhere else, not withstanding the part I might have to play in particular proceedings and, frankly, I've been able to do my job pretty much cognizant of that.

I've been lucky enough not to be put in situations where I had to take an agency's side and advance an agency's interest in circumstances that I thought were clearly inconsistent with the general public interest. I'm aware that that's a luxury not every public servant has experienced.
THE CHAIRMAN:     Other questions? Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q.     Just one simple scenario. You've finished your hearing
-- this is assuming that you have concluded your hearing and the attorneys that appear before you one or both or all, if more, came to you and invited you to lunch, what would you do?
A.     The easiest thing to do, and any time you have to think about it, you ought to say no. It would be easy for me just to say no, thank you and just not go with them.

Trying to figure out whether everybody is involved and if I pay for my own, everything would be okay or something like that, to me, would kill too many brain cells in an unworthy cause. It's just easier to have -- a judge doesn't have to be a hermit, but a judge shouldn't be looking for something to fly up and hit him in the face. He shouldn't invite it.

It can make you a lonely person, but like the Canons or the commentary to the Canons clearly puts forth, there are certain ascriptions put on your conduct that an ordinary person in any other walk of life would justly bridle at, but it's part of being a judge and if you don't understand that, you really shouldn't apply.
Q.     Are you a golfer?
A.     No.
Q.     I don't need to ask the next one.
THE CHAIRMAN:     Any other questions? I have one for you, Mr. Carruth.
A.     Yes.
THE CHAIRMAN:     My question deals with the next two years of our Administrative Law Division. You're going to have six judges and it seems as though there are a couple of key questions that will need the input of the chief judge on them. First, would be areas of specialty and whether or not you would choose to try to devote one or more positions to specialized areas. Next year, tax obviously will be one of the big questions and the other is regional representation and whether or not you would feel that the division should move towards having regional offices and trying to rotate one or several of the attorneys into different areas of the state. I would like to know your thought on that?
A.     I don't mean to beg the question, but as to the latter, I don't have a basis right now for prognosticating a need for establishment of regional offices. As to the former, as I said to you, we have -- we developed areas of expertise when I was on the staff at the Public Service Commission. I would be amenable to that notwithstanding the statutory provision that six -- every six months at least on a subject matter basis rotation occur.

There could still -- here again, to raise the Canons again, the commentary to -- I reckon it is Canon 3, the one that says avoid any appearance of a conflict or anything that would lead somebody rationally to conclude that one might exist. I think the commentary says when you're dealing with judges who have been agency lawyers that that might be a problem and it's like so many other things in law, it's complicated.

The very background that would give a judge expertise as to such matters and familiarity with such matters also causes according to the official commentary to the Canon, the rules that are supposed to be applicable to require that judge to disqualify himself, and I'll be honest with you, I don't know how to resolve that. I don't know how anybody else should resolve that.

You want to take advantage of the expertise that's there and you want things to be fair. You very much want things to appear to be fair as well and as to whether or not the usual consideration apply, whether somebody's previous affiliation with and affinity for certain folks as an agency might cause him to be more for them or against them. That's an issue. You know, he might favor them. He might have a bias for the agency perspective. He might tend to rubber stamp them in the eyes of some folks. At the same time, in an effort to bend over backwards not to do that he might unduly put upon the agency and might not be as receptive to their reasonable arguments.
THE CHAIRMAN:     Further questions? If not, thank you, Mr. Carruth.
A.     Thank you.
THE CHAIRMAN:     The next candidate is John J. Fantry, Jr. Please raise your right hand.
JOHN JOSEPH FANTRY, JR., having been duly sworn, testified as follows:
THE CHAIRMAN:     I'm going to review a few things with you prior to turning you over to our staff counsel for questioning. First, have you had a chance to review the Personal Data Questionnaire summary?
MR. FANTRY:     Yes, I have.
THE CHAIRMAN:     Is that correct?
MR. FANTRY:     That is correct except for the most recent expenditures as far as this campaign is concerned, that should be modified to approximately $179.
THE CHAIRMAN:     If you have -- do you have that in writing?
MR. FANTRY:     That would be filed with the update on the campaign --
THE CHAIRMAN:     Okay.
MR. FANTRY:     -- report that's due at the quarter.
THE CHAIRMAN:     Any other changes?
MR. FANTRY:     No.
THE CHAIRMAN:     Do you have any objection at this point to making the summary a part of your record?
MR. FANTRY:     No objections whatsoever.
THE CHAIRMAN:     Thank you. It will be done.

1.     John Joseph Fantry, Jr.
Home Address:                         Business Address:
102 Marion Avenue                 1310 Lady Street, #600
Winnsboro, SC 29180             Columbia, SC 29201

2.     He was born in New York, New York on August 28, 1949. He is presently 44 years old.

4.     He was married to Catherine H. Fantry on December 26, 1970. He has one child:     Regan Christine, age 13.

5.     Military Service:     N/A

6.     He attended Mount St. Mary's College, 1967-1971, B.S. in History; and the University of South Carolina School of Law, 1971-1974, J.D.

8.     Legal/Judicial education during the past five years:
In the past five years he has attended in excess of 12 hours per year of CLE courses as well as non-certified courses. These have covered such topics as legal ethics, personnel and employment law, rules of court, jury trials, environmental law, utility law, and economic development and municipal government.

9.     Taught or Lectured:     He has taught courses in Trustee Liability and Directors' and Officers' Liability under the Business Corporation Act.

12.     Legal experience since graduation from law school:
After graduation in 1974, he served as staff attorney to the SC Electric Cooperatives Association until 1979, when he became General Counsel, working primarily on matters relating to state and federal regulatory law and analysis, and drafting and interpretation of legislation. In 1985, he went into private practice and in 1986, he joined the law firm with which he is now associated. His practice primarily deals with civil and administrative and regulatory law.

13.     Rating in Martindale-Hubbell:     He is not rated, but he is listed as of 1992 in that the law firm he is associated with chose not to list until 1992.

14.     Frequency of appearances in court:
Federal - None
State - Approximately every 60-90 days
Other-Appearance on an as-needed basis before the SC Tax Commission, DHEC, PSC, WCC, Labor Department, Coastal Council, and Ethics Commission

15.     Percentage of litigation:
Civil - 90%
Criminal - 10%
Domestic - 0%

16.     Percentage of cases in trial court:
Jury - 20%
Non-jury - 80%

Associate Counsel

17.     Five (5) of the most significant litigated matters in either trial or appellate court:
(a)         Duke Power Co. v. PSC, Bd. of Public Works of the City of Gaffney, and Broad River Electric Coop., 387 S.E.2d 241 (1989), clarified the principles of the requirement of a Certificate of Necessity and Convenience under SC Code Section 58-27-1230.
(b)         Broad River Electric Coop. v. PSC, Bd. of Public Works of the City of Gaffney, Duke Power Co., Saluda River Electric Coop., Thomas R. Lipscomb, and the SC Dept. of Consumer Affairs, established the right of the PSC to order the removal of lines built by a municipality without a Certificate of Necessity and Convenience. This case was the first time the PSC was not able to certify electric lines after construction and the municipality was ordered to disassemble the lines.
(c)         Miles v. Town of Ridgeway, 92-CP-20-90, pending Supreme Court, challenged the statutory at-will employment powers of a mayor under SC Code Section 5-9-30.
(d)         Hamilton v. Oswego Water Co., 92-CP-43-349, was the first South Carolina case testing the 1988 Business Corporation Act's inclusion of a non-profit corporation, or more specifically, the interpretation of SC Code Section 33-20-103 (1988).
(e)         Chambers of SC v. City Council of Lee County and Mid American Waste Systems, Inc., 434 S.E.2d 279 (1993), tested the applicability of the SC Procurement Code to a county which failed to adopt a code within the prescribed statutory period, and its effect on contracts negotiated without such a code.

18.     Five (5) civil appeals:
(a)         Broad River Electric Coop. v. PSC, Bd. of Public Works of the City of Gaffney, Duke Power Co., Saluda River Electric Coop., Thomas R. Lipscomb, and the SC Dept. of Consumer Affairs, appealed to Supreme Court, appeal dropped, presently in Circuit Court for contempt.
(b)         Chambers of SC v. City Council of Lee County and Mid American Waste Systems, Inc., Supreme Court, 7/12/93, 434 S.E.2d 279 (1993).
(c)         Miles v. Town of Ridgeway, Supreme Court, pending.

20.     Judicial Office:     He was appointed a hearing officer for the SC Department of Revenue and Taxation Alcoholic Beverage Licensing Division to serve in the interim period from 7/1/93 to 2/28/94.

21.     Significant Orders or Opinions:

In light of the short time which he has served and the limited scope of authority, he does not feel any of his rulings warrant elaboration.

20.     Public Office:

Gubernatorial appointment to SC Rural Water & Sewer Grants Advisory Commission, 1980-1986

Presidential appointment, board member, District 50 Selective Service System, 1986-present; elected Board Chairman 1988-present

Lexington County Council appointment, board member, Richland/Lexington Council on Aging, 1979-1983

Lexington County Council appointment, Chairman, Lexington County Economic Advisory Council, 1977-1983
26.     Officer/director or management of business enterprise:
With the exception of his ownership interest in Lewis, Rogers & Lark, P.A., he is not aware of any financial arrangement or business relationship which in any way would constitute or create a possible conflict of interest in the position he seeks. This would be corrected by the sale of his interest in the firm. He has represented certain electric cooperatives, municipalities, and water companies before DHEC, PSC, Tax Commission, and the Labor Department. For one year, he would recuse himself from cases involving a former client; thereafter, he would recuse himself from any matter he had worked on involving a former client.

36.     Lobbyist or Lobbyist Principal:
He was registered as a lobbyist for the Electric Cooperatives of South Carolina, Inc. from 1975 through 1984.

37.     Lodging, Transportation, Entertainment, Food, Meals, Beverages, Money or Any Other Thing of Value From a Lobbyist or Lobbyist Principal

The law firm with which he is associated presently performs legal services for the Electric Cooperatives of South Carolina, Inc., a lobbyist's principal, for which they bill on an hourly basis. He has not received anything from any lobbyist or lobbyist's principal.

40.     Expenditures Relating to Candidacy:
Postage in the amount of $.87 on 10/27/93 for letters to his references.

45.     Bar Associations and Professional Organizations:
South Carolina Bar Association; American Bar Association; Richland County Bar Association; Fairfield County Bar Association

46.     Civic, charitable, educational, social and fraternal organizations:
Toastmasters International - Area Governor for SC; Fairfield Country Club - Board of Directors, 1987-1989; Fairfield County Education Foundation - Vice President, 1989-1990

48.     Five (5) letters of recommendation:
(a)         Lisa M. Shoemaker, Branch Manager
Columbia Teacher's Federal Credit Union
2320 Washington Street, Columbia, SC 29201
252-5700
(b)         Honorable Marion C. Smith
Magistrate - District 2
Fairfield County Summary Court
P. O. Box 423, Winnsboro, SC 29180
635-4525
(c)         C. Pinckney Roberts, Esquire
P. O. Box 694, Columbia, SC 29202
779-4975
(d)         Charles L. Compton, Esquire
Vice President of Corp. Relations and General Counsel
Saluda River Electric Cooperative, Inc.
P. O. Box 929, Laurens, SC 29360
682-3169
(e)         John Jacques
667 Ferry Street, Mt. Pleasant, SC 29464
884-9556

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have been filed against you. We've also reviewed the records of the applicable law enforcement agencies:     Fairfield County Sheriff's Department, Winnsboro City Police Department, SLED and FBI records, all are negative. The Judgement Rolls of Fairfield County are negative and the Federal Courts as well. No complaints or statements were received and we have no witnesses who are present to testify against you.

I'll now turn you over to Mr. Elliott for questioning.
MR. FANTRY:     Mr. Chairman, before -- I'd like to take a moment to take the privilege of an opening comment.
THE CHAIRMAN:     Sure. You have that right.
MR. FANTRY:     I do have copies of the particular statement for the Committee and for the reporter and I will remain within the appropriate time.

Mr. Chairman, Members of the Committee, health, safety and public welfare is the constitutional foundation which the General Assembly uses in prescribing duties and responsibilities for the individual.

It is for health, safety and the public welfare that South Carolina requires the licensing of lawyers, cosmetologists, water system operators and a host other professionals. It is for health, safety and general welfare that South Carolina assigns electric, gas, telephone services. It permits water and waste water facilities. It protects navigable and scenic rivers. It oversees the opening and closing of landfills and establishes sediment control standards for construction.

It is for health, safety and general welfare that South Carolina issues permits for beer and wine sales, licenses underground gas tanks and promotes economic development and when the men and the women of the General Assembly have completed their task of prescribing the duties and responsibilities of the individual and the governor has signed that into law, it is the job of the state agency to implement and enforce those duties with a reasonable and equal hand.

To enhance the equity in application and the public perception of that equity, the roles of the fact finder and the regulator have been separated through the creation of the Administrative Law Judge Division. These judges are persons not assigned to any one agency who with knowledge of the Rules of Evidence and existing South Carolina case law serve as the preliminary tester of agency actions.

Whether that test be in the role of a hearing officer when public hearings are requested for development of new regulations, hearing officer for appeal an agency decision and when that agency has no Board of Commission or hearing officer for an appeal from a Board of Commission which is denied professional certificate, it is the responsibility of the Administrative Law judge to see that the actions of the agency and the individuals appearing before them are appropriately documented with findings of facts and conclusions of law which will protect the party's right for judicial review.

It's my understanding and belief that the role of the administrative law judge is to assist the departments of government to which they are assigned to carry out the activities and directive of the law by seeing that the departments follow their own regulations, to assist the citizens by bringing clarity and uniformity to the proceedings in which the citizens so infrequently participate and to ease the burden of the judiciary by providing a record suitable for review.

In November of this year I will celebrate my 20th year as having the privilege of representing individuals before courts and tribunals in South Carolina. I consider myself fortunate during these years to be involved with clients who provide public services within South Carolina.

My involvement with services such as electricity, water, telephone, fire and, yes, even police protection has educated me in the process of reading and applying administrative regulations including the permitting, licensing and enforcement proceedings. It has also provided me the opportunity for petitioning the General Assembly to create or modify laws that better define the duties, rights and public obligations of those responsibilities and the people that are providing those services.

The restructuring of the South Carolina government last year created the opportunity to be a part of bringing to life the vision of the General Assembly through development of the first set of regulations for the Administrative Law Judge Division and the testing of that plan through service as a judge.

This is an intellectual challenge. A challenge that a student such as myself of law and government couldn't pass up and that's why I sit before you today.
THE CHAIRMAN:     Thank you, Mr. Fantry. Mr. Elliott.
MR. FANTRY - EXAMINATION BY MR. ELLIOTT:
Q.     As you indicated in your opening statement, you have pretty extensive administrative law experience or it appears to be so from your statement -- in your PDQ, but it looks like most of that is in the area of utilities and the Public Service Commission; is that corrects?
A.     No. I have appeared before the South Carolina Tax Commission --
Q.     Well --
A.     -- doing -- dealing with abandoned property.
Q.     I was going to say, if you would, if you would develop that. I was going to mention that --
A.     I'll be glad to do that.
Q.     -- but if you'd develop that a little bit for us.
A.     In 19, approximately, seventy -- 70 attached to the Appropriations Bill, there was an abandoned property tax law that was introduced in the South Carolina. In this area, the South Carolina Tax Commission would identify properties and accounts that were left in banks or interest in property, it would be reported and collected by the South Carolina Tax Commission after being held for seven years.

In representing the South Carolina Electric Cooperative Association, there came to be an interest in equity called Capital Credit in which it's accrued over a number of years and because of their rotating cycles, at that time it was 12 to 15 years, you would find that some individuals had moved out of the area and couldn't be located.

There was some questions for the South Carolina Tax Commission dealing with, first of all, when that amount became payable because the time period ran. They also questioned about -- there was a question of whether or not an individual had the right by bylaw to donate that to the corporation rather than leave it a -- to the state, a similar process that was used.

We appeared before hearings before the Tax Commission as to, first of all the constitutionality of the act, where it was attached to the Appropriation Bill and we felt at that particular time that the law had been implemented in violation of the South Carolina Constitution as far as not being in the title correctly.

South Carolina Supreme Court ruled --
Q.     I think you -- if you want, don't develop it on a case by case basis, but if you'd give some overview. I mean I know your serving as an interim -- as an ABC hearing officer --
A.     I will be glad to do that.
Q.     -- and how many have you -- hearing cases have you had, that sort of thing. Not a case by case basis. Thank you?
A.     And I appreciate that because it's a long and arduous trip we were about to take.
THE CHAIRMAN:     We don't want to take quite that long a trip.
A.     I have represented individuals before the Residential Homebuilders Commission. I have represented the water companies in applying for environmental permits such as the 208 plan. I have worked with volunteer fire departments in, first of all, obtaining federal and state funding and also the permitting process and training process that deal with it and general counsel for the Electric Cooperative Association.

I was involved in developing that legal department which handled training for job safety and treatment -- safety instructors and worked with the Labor Department as far as safety rules and regulation and implementation to business.

I am a City attorney for the town of Ridgeway and have dealt with interchange at the police department in personnel, employment problems, ethical applications and from time to time have worked with members of the Legisatures in responding to specific questions as to new laws and regulations and applications to companies that I have represented.
Q.     Thank you. It looks like you have some litigation experience, but it's not extensive and I believe you indicated that you appear in court four to six times a year and apparently it's usually, it's as associate counsel; is that correct?
A.     Yes, for many years my responsibility has been second seat, I guess is the way to -- as general counsel for South Carolina Electric Cooperative Association, though, there were a number of pieces of legislation that were first passed and then challenged, the constitutional cases.

My responsibility was to develop the case and hire the law firm that would try the case and be -- participate with them in the development of the pleadings.

Since going into private practice in 1986, I have been working with -- or my particular law firm, again, in that area of a regulation and constitutional challenges. Generally, there are five to six attorneys dealing with the case.

My responsibility has been involved in interpreting the law, especially research, regarding the constitutional application and writing memorandum and briefs for -- in support of the trial counsel's presentation.
Q.     Sitting as an ABC hearing officer, have you found that it would have been any different if you had had any more litigation experience or would it matter if you had any at all?
A.     I think it's been very help to me sitting as an ABC hearing officer this year to get a feel for what the law judges are going to experience because you sit in both capacities. One, you're hearing as an initial fact finder for a license -- a beer and wine license in which you are trying to establish the record, so that the agency can appeal.

In the law enforcement area, you are actually I would consider it the tribunal looking for whether or not there is any rational basis in fact for the application of the citing and understanding that you are not actually making the initial decision, but supporting the application of the agency. So it gives you both sides of what I think the ALJ will be doing with all of the agencies which they have been assigned to.
Q.     If you're elected as an ALJ, what do you understand to be your ethical considerations about extrajudicial activities?
A.     Extrajudicial activities will -- it will be an interesting application because there are two codes of ethics that apply as I understand it. There will be the South Carolina Ethics Acts, which deals with the State employees and other departments, and since the ALJs will not be attached to the judiciary per se, but under the Governor's office that I think those will very applicable to review. The other will be the judicial standards to apply as far as conflicts are concerned, public participation in elections, anything that would draw attention or notoriety to you outside of the area of law.

And as the judicial standards say that they encourage your participation so long as it's not in a legal capacity and so long as it does not discredit or draw attention to the judiciary in an improper way.
Q.     Did the cases -- your most significant cases that you listed in answer to the Question 17 on the PDQ, do they say anything special to this committee about you? What criteria did you use to select your cases?
A.     Well, I think that one of the criteria that I used in this was a case -- the cases which would indicate the bringing together of the legislative intent in an Act and in the application of that intent by the agency or body that was supposed to carry that out. The Legal Chambers Development Corporation, which appears as Lee County is one that I remember from my report, dealt with whether or not a municipality that had not adopted a procurement code had, in fact, acted in accordance with the Procurement Code standard which is only applied to municipal and county governments through a one provision section in that area.

I had to review that town's -- I had to review how they administer their procurement. I had to determine and review how the council had acted historically and I think it required the idea to be able to translate, apply regulations and then balance the equities of the situation. It's a very interesting case.

I lost that case on laches which is very surprising, but it's still out there and you have to -- you need to know and advise your clients about that at all times.
THE CHAIRMAN:     That's the landfill case; is that right?
A.     That is the landfill case.
Q.     You mentioned legislative intent. As an ALJ, what would be your deference to the interpretation of a statute by an agency?
A.     I think you have to give large -- in fact, the case law says that you give deference to the interpretation of the statute by the -- an agency when there is reasonable application. You apply that statute and the agency's interpretation.

It will not be the ALJ's position to make law. That will be for the judiciary and ultimately for the Supreme Court and the Legislature to change any principles and precedents. That's something I think an ALJ will have to resist sometimes to do something you really like to in your heart and understand that you are administering the regulations and that's the process that we're dealing with.
Q.     You mention in your PDQ recusal regarding former clients and that you would do so. What would be your understanding of other situations where you would need to disqualify yourself?
A.     I think that there is a specific -- a very good outline in the Ethics Bill in the qualifications ask you what would be the reasons to recuse yourself and that is whether you've had any -- if there is any economic interest other than an interest which is greater than the general public, whether or not a member of your immediate family has a interest in it.

I believe that if you worked on that matter specifically or you have access to information through your previous contacts that would or even give the appearance that there would -- could be some information coming out other than through the hearing process, those things I would waive.

It is my belief that that is a decision that the hearing officer and the judge should make. This is the Circuit Court judge makes and that would be reviewed by other bodies if they felt that the process was improper.
Q.     As a Chief Administrative Law judge, how are you going to handle the case load? What kind of priorities are you going to set for cases? What are your thoughts on that?
A.     The time table for getting started is relatively short. I think one of the initial things that I would like to do is to call upon each of the agencies in which we have been assigned services and responsibilities to determine, and they should have the records of what their case loads were last year, what the number of hearings were, what their turnaround time was.

I know the Tax and Revenue Division is doing statistics on how many of these special hearings they've held during the interim period, but that item needs to be brought together. I think the judges and their staff need to go through that and really develop as a team the way we'll approach the work load and the processing and the expertise.

I think this is one time that while there is an initial person that is going to theoretically say here is the rules and here is hiring the staff and because of the uniqueness of what needs to be put together and the fact that all of us who are running for judge positions Seat 1, 2 and 3 are going to be coming on board fresh, we need to develop a hearing procedure as a team method, though, I would be responsible for what occurred.
Q.     Well, along that line, if you're responsible -- all the ALJs are elected. You don't really have any authority to fire or select or anything of that nature as with regard to ALJs. How do you manage that situation when you are ultimately responsible for the success of the individual ALJs and the division to some extent rests on your shoulders?
A.     I think you manage that the same way that you deal with clients or individuals in public life. You listen. You express a firm -- from what your commitment is. You deal with what you can. If you need to, you go to other sources as far as that there is not a circumstance which can't be controlled administratively.

I presume as a part of the division of the Governor's office that we might get some guidance in that area. It's public relations work and one on one both with people you work with, your staff, and the people that you listen to their cases about.
Q.     Have you ever been held in contempt or sanctioned by a court for any reason?
A.     No, I have not.
Q.     Have you sought directly or indirectly the pledge of a legislator's vote for you as -- for Seat 1 of the ALJ Division?
A.     No, I have not.
Q.     Are you aware of any solicitation without your authorization or request for a legislator's vote for you?
A.     I'm aware of none.
Q.     You mentioned a correction to your campaign expenditure filing and did I hear you correctly to change that to one seventy-nine? There is a discrepancy between some of the reports.
A.     I would say it was 58 cents when I first started because I mailed one letter. Since that time, I've sent correspondence to the members of the Legislature announcing my candidacy. I have sent letters to friends around the state advising them of my candidacy and asking them after this Committee reports to possibly help me and I have paid my office for any copies of such things and reports and things that I do here and all that will be -- being reported.

My understanding is it will be the first quarter in January during -- according the Act, five days before the election and two weeks after, I believe.
Q.     That's all the questions I have.
THE CHAIRMAN:     Questions from the Members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q.     Have you sought any endorsement from the General Assembly or the caucus of the General Assembly?
A.     No, I have not.
Q.     Have you participated in any formalized interview process outside of this one and the Bar Association's process?
A.     No, I have not.
Q.     Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the Bar Screening Committee, the Bar's employees or the lobbyists representing the Bar either before you were screened or after you were screened, but prior to the Bar's Screening Report being made public?
A.     No, I did not.
Q.     Thank you.
THE CHAIRMAN:     Thank you, Senator. Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q.     Your hearing has just concluded. The attorneys that appeared before you ask you to go to lunch, what would you do?
A.     I would -- depending on what the case load are, I would probably accept an invitation to lunch from fellow attorneys. One of the things that would be in there the fact, that we may have lunch together is I don't think a bad view.

If they offer to buy me a lunch, I believe that can be done, but it would be reported on my economic interest statement declared as something that I've received. There is question in my mind if the attorney happened to be a registered lobbyist how would I treat them because that's -- they have a very different procedure and they would not be able if I was a House Member or Senator to buy me lunch, but I think the Judiciary is exempt in that area and I'd have to double check it, so I'd apply the standards of the South Carolina Code and the rulings of the South Carolina Commission as I know them to those situations.
THE CHAIRMAN:     Any other questions? Mr. Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q.     Just one question that Mr. Elliott asked the previous candidate. This is going to require a lot of managerial
-- no, I shouldn't say experience, but acumen if you will, do you have any experience in that area?
A.     I have a little experience in that area. I established the Legal Department in South Carolina Electric Cooperative Association. I was its first attorney and handled its budget from 1974 to 1985. We represented 22 corporations, electric cooperatives around the state and I provided and budgeted for training of board members and attorneys and their managers, so all that budgetary responsibility was mine.

I went into private practice in 1985 --
Q.     Excuse me, not to cut you off, but how many people did you manage in this process, the previous experience you're talking about?
A.     I had four people in my department. I had a budget of a little over $400,000.
Q.     Thank you.
THE CHAIRMAN:     Any further questions? Mr. Fantry, what -- during the first three months, what do you think the biggest challenge is going to be of the Chief Administrative Law judge?
A.     What is going to be the biggest challenge?
THE CHAIRMAN:     What do you think is going to be the most significant challenge that the Chief will face during, and I pick the first three months because I would deem that to be the start-up time?
A.     I think that the -- I think it's just going to be spending a lot of hours on the road together and gather information. There will be some hearings that will have to proceed and I'm kind of a little flustered by that question. I see it getting the hearing schedules from the different agencies, dividing those up, assigning it by past experience and --
THE CHAIRMAN:     Well --
A.     Quite frankly, I'm kind of lost. I'd have to say it's going to be a marvelously exciting job, but I do --
THE CHAIRMAN:     Have you given any thoughts to staffing? Other than the other judges that will be appointed, have you given any thought to staffing needs and the direction you'd like to see that agency take with respect to staffing?
A.     I have not seen any budgetary information in the statutes that I've reviewed any staffing ability other than the fact that we will be obtaining a clerk -- the clerk for the department -- and whatever that budget provides in secretarial staff.

I think we need to look at the dollars and cents and how we will mesh with the rest of the Governor's department in utilizing services to see how that would come together.

And let me correct something for the Senator because I don't want to mislead or even leave the impression of misleading on that budget. That $400,000 budget was for the entire association which I was a member. My specific individual budget was about 115,000, but as a group that we developed our budget to take to the board every year and I worked as general counsel on every department's budget, so that was the area.
THE CHAIRMAN:     Senator.
RE-EXAMINATION BY REPRESENTATIVE BEATTY:
Q.     If you needed help in setting up this -- I'm sorry, were you --
THE CHAIRMAN:     No, sir. Why don't you finish up, Don?
Q.     If you needed assistance in setting up the ALJ system, where would you look first?
A.     Where would I look first in -- I would look first in consultation with the Division of Governors since that's because they've handled and worked with a lot of this agency reconstruction and they will have some ideas, then the directors and staff persons of the agencies who we will be working with or for who will be able to identify their specific problems concerned.

While there is uniformity in the Administrative Procedures Act, in my working with agencies in South Carolina, each has different specific concerns and they have generally come up in special regulations as to how they deal with that, so we have to take those into consideration.
Q.     Would you rule out dealing with Court Administration?
A.     No, I have no problem with working with Court Administration at all.
THE CHAIRMAN:     Any more questions?
SENATOR MOORE:     I have --
THE CHAIRMAN:     Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q.     Mr. Fantry, in regards to the interview by the Bar, when were you contacted that they had planned to interview you?
A.     I think I got a call the night before the -- two days before the interview on a Monday evening.
Q.     When did the interview take place?
A.     It took place on Wednesday morning at 8:00 o'clock.
Q.     What day is that, do you remember?
A.     It was a Wednesday. It was a Wednesday. Excuse me, I'm sorry.
Q.     The date --
A.     The particular day, I had a deposition that day. I believe it was the 7th of January. I'll go back and look.
Q.     Where did it take place? And I don't mean -- was it at their office, your office?
A.     It is was at the South Carolina Bar Association's office.
Q.     How many participants or interviewers?
A.     There were three.
Q.     Do you know what part of the state they resided?
A.     There was a lady from Rock Hill, South Carolina. There was a lady from Myrtle Beach. And a staff member didn't sit in on that. I'm sorry, there were only two during hearing.
Q.     Two interviewers?
A.     Two interviewers.
Q.     Did you know the interviewers prior to the --
A.     No, I did not.
Q.     When were you notified of the results?
A.     I received a letter in the mail Monday.
Q.     Notified by mail?
A.     Yes, sir.
Q.     Thank you.
THE CHAIRMAN:     Further questions? If not, thank you, Mr. Fantry.
A.     Thank you.
THE CHAIRMAN:     Let me state for the Members purposes, we talked earlier about Martindale-Hubbell ratings where applicable and we do have that for all the Administrative Law Judge candidates, where and whys for those who have been engaged in private practice. We're going to pass those out because that question has come up during screening on a number of candidates, so we have those for you and I think we discussed the significance of that a little earlier.

Our next candidate is Samuel L. Finklea, III. Mr. Finklea. If you would please, raise your right hand.
SAMUEL L. FINKLEA, III, having been duly sworn, testified as follows:
THE CHAIRMAN:     Am I pronouncing your name right? It's Finklea?
MR. FINKLEA:     Yes.
THE CHAIRMAN:     Thank you. Have you have had a chance to review the Personal Data Questionnaire summary?
MR. FINKLEA:     Yes, sir.
THE CHAIRMAN:     Is that -- is it accurate?
MR. FINKLEA:     Yes, sir.
THE CHAIRMAN:     Are there any points that need to be clarified or amendments that need to be made at this time?
MR. FINKLEA:     No, sir.
THE CHAIRMAN:     Is there any objection to us making it a part of the record at this time?
MR. FINKLEA:     No, sir.
THE CHAIRMAN:     All right, that shall be done.

1.     Samuel L. Finklea, III
Home Address:                                 Business Address:
7823 Charles Towne Drive             Office of General Counsel
Columbia, SC 29209                     S. C. Department of Health and
Environmental Control
2600 Bull Street
Columbia, SC 29201

2.     He was born in Columbia, South Carolina on August 18, 1946. He is presently 47 years old.

4.     He was divorced February 11, 1980; Samuel L. Finklea, III (moving party); Family Court, Richland County, South Carolina; one year's continuous separation. He has no children.

5.     Military Service:     S. C. Air National Guard; August 16, 1968 - present; Lieutenant Colonel; Serial No. ***-**-**** (formerly AF25112468); active reserve

6.     He attended Duke University, 1963-1967, B.S. in Physics; the University of South Carolina, 1967-1975, M.S. in Physics in 1969 and Ph.D. in Physics in 1975; the University of South Carolina, 1981-1984, J.D.

8.     Legal/Judicial education during the past five years:

National Institute of Trial Advocacy (Southern Reg), 1988

Natural Resources Seminar, S. C. Bar Mid-Year, 1989

Hazardous Waste and Superfund, ALI-ABA, 1989

Criminal Enforcement of Environmental Law, S. C. Bar, 1990

Clean Air Act Amendments of 1990; ABA; Charlotte, North Carolina; 1990

EPA Region IV State-Federal Environmental Attorneys Conference; Atlanta, Georgia; 1991 and 1993

HMCRI Federal Environmental Restoration Conference; Vienna, Virginia; April, 1992

Bankruptcy for Government Lawyers, NAAG, New Orleans, 1993

9.     Taught or Lectured:

"Environmental Enforcement on Military Installations;" Attorney General - Military Lawyers' Conference; 1987, 1989, 1990, 1992

EPA Region IV State-Federal Environmental Attorneys Conference; Atlanta, Georgia; Overview of Wetlands Regulations; May, 1991

EPA Region IV State-Federal Environmental Attorneys Conference; Atlanta, Georgia; Wetlands Issues; July, 1993

Health Physics Society Short Course:     NORM (Naturally Occurring Radioactive Material) Regulation; Columbus, Ohio; June, 1992

S. C. Bar Meeting:
January, 1989:     Greenville, South Carolina; "Out-of-State Limitation of Hazardous Waste"
June, 1992:     Asheville, North Carolina; Procedures before State Agencies"
January, 1993:     Charleston, South Carolina; "Procedures before State Agencies"

10.     Published Books and Articles:

"New DHEC Procedures for Contested Cases," 4 SC Lawyer May/June 1993, p. 41

Orders of the Board of Health and Environmental Control, 1975-1992, SC DHEC, 1993

"Radon Contingency Clauses:     Necessary in SC?" 2 SC Lawyer Jan/Feb 1991, p. 41

"Hazardous Waste" SC Jurisprudence Environmental Law, (in press)

"Ionizing Radiation" SC Jurisprudence Environmental Law, (in press)

"Investigations of the Bonding Mechanism in Pyrite Using the Mossbauer Effect and X-Ray Crystallography," S. L. Finklea, L. Cathey, and E.L. Amma; A32 Acta Crystallographica 529 (1976)

"Magnetic Characteristics of CuFeCl4,AgFeCl4, and TlFeCl4 Near the Neel Temperatures," E.R. Jones, M.E. Hendricks, S.L. Finklea, III, L. Cathey, T. Auel, and E.L. Amma; 52 Journal of Chemical Physics 1922 (1970)

"Exchange Coupling Between Pairs of Fe(III) Ions in FeF3 3H20 at Low Temperatures," E.R. Jones, M.E. Hendricks, L. Cathey, S.L. Finklea, T. Auel, and E.L. Amma; 8 Solid State Communications 1657 (1970)

12.     Legal experience since graduation from law school:

Staff Attorney, 1985-present, SC Department of Health and Environmental Control

litigation as lead attorney representing agency in administrative hearings, state and federal district court, trials and appellate argument; areas of practice include solid and hazardous waste (RCRA, CERCLA, and state law); water pollution (Clean Water Act, Safe Drinking Water Act, and state law, including underground storage tanks); air pollution (Clean Air Act and state law, including asbestos); radiation control; health licensing; and health regulation;

regulatory and statutory drafting; principal draftsman of complete revision of "contested case" regulation for agency; legal counsellor to agency Board and staff

13.     Rating in Martindale-Hubbell:     not rated

14.     Frequency of appearances in court:

Federal:
6th Circuit Court of Appeals:     once
District Court, District of SC:     once (lead), twice (second chair)
Bankruptcy Court, District of SC:     twice
District Court, Western District of Michigan:     twice
U. S. Supreme Court:     once (on brief only)

State:
Supreme Court:     once
Court of Appeals:     four times
Circuit Court:     twelve times (lead), twice (second chair)

Other:
Magistrate's Court, three jury trials, one non-jury
Administrative Hearings, forty-two hearings (lead)

15.     Percentage of litigation:
Civil - all cases except four cited below
Criminal - three cases in magistrate's court
Domestic - one case as court-appointed counsel

16.     Percentage of cases in trial courts:
Jury - three cases in magistrate's court
Non-jury - all others

17.     Five (5) of the most significant litigated matters in either trial or appellate court:
(a)         Michigan Coalition of Radioactive Materials Users v. Griepentrog, 769 Fed.Supp. 999 (WD Mich 1991); stay gr. 945 F.2d 150; rev, 954 F.2d 1174 (6th Cir., 1992) withstood challenge to state's implementation of the Low-Level Radioactive Waste Policy Amendments Act.
(b)         City of Beaufort v. DHEC and Beaufort-Jasper Water and Sewer Authority; Board of Health and Environmental Control Order 92-6-B; July 9, 1992:     challenge to area-wide pollution control planning authority under Section 208 of the Clean Water Act.
(c)         Richland County Northeast Gold CAMOUFLAGE v. DHEC and Ridgeway Mining Co., Board of Health and Environmental Control Order 88-9-B; 29-day hearing to defend comprehensive air, water and mining permit.
(d)         Stono River EPA v. DHEC and Buzzard's Roost Marina, 406 S.E.2d 340 (S.C. 1991):     affirmed principle that due process right to a hearing to contest agency decisions may exist independently of statutory grant of right to hearing.
(e)         Northeast Sanitary Landfill, Inc. v. DHEC, Docket No. 3:90-2296-17, Order of Judge Joseph Anderson, 1/3/92:     limited state's ability to control flow of solid waste by means of regional planning.

18.     Five (5) civil appeals:
(a)         Geronimo v. DHEC and Kiawah River Associates; Civil Action 91-CP-10-2850; Order of Judge William S. Howard; August 8, 1992.
(b)         Stono River EPA v. DHEC and Buzzard's Roost Marina, 406 S.E.2d 340 (S.C. 1991).
(c)         Sandhill v. DHEC and Sierra Club; Civil Action 90-CP-22-264; Order of Judge Drew; July 9, 1992.

(d)         DHEC v. Armstrong, 359 S.E.2d 302 (S.C. App. 1987).
(e)         Michigan Coalition of Radioactive Material Users v. Griepentrog, 769 Fed.Supp. 999 (WD Mich 1991); stay gr. 945 F.2d 150; rev, 954 F.2d 1174 (6th Cir., 1992).

25.     Occupation, business or profession other than the practice of law:

Michelin Americas Research Corporation, 1976 - research on physical properties of tire textiles

SC Department of Health and Environmental Control, 1977-1985 - Bureau of Radiological Health; emergency response for radiological accidents; drafting regulations; health physics evaluations; licensee inspections

SC Department of Health and Environmental Control, 1985-1993 - Office of General Counsel; represent agency in administrative hearings, state and federal court

26.     Officer/director or management of business enterprise:
Windswept Farms, a start-up venture to engage in silviculture; partner and legal counsel

40.     Expenditures Relating to Candidacy:
Stationery; $25.00; August 9, 1993
Postage; $58.00; August 9, 1993
Postage; $11.00; November 2, 1993
Copying; $21.00; August 12, 1993
Copying; $7.00; November 2, 1993
Long Distance; $75.00; passim

45.     Bar Associations and Professional Organizations:
South Carolina Bar Association, 1984-present; American Bar Association, 1984-present; Health Physics Society, 1978-present; Conference of Radiation Control Program Directors, 1978-present; National Guard Association of the United States, 1975-present; National Guard Association of South Carolina, 1975-present; American Society of Military Comptrollers, 1992-present

46.     Civic, charitable, educational, social and fraternal organizations:
Lake Murray Sailing Club

48.     Five (5) letters of recommendation:
(a)         Bobby Chestnut, Assistant Vice President
NationsBank
1301 Gervais Street, Columbia, SC 29201
929-5472
(b)         Elizabeth B. Partlow
145 Fox Run Drive, Hopkins, SC 29061
(c)         James Patrick Hudson, Esquire
#5 Foxwood Knoll, Blythewood, SC 29016
786-8445
(d)         James S. Chandler, Jr., Esquire
P. O. Box 279, Pawleys Island, SC 29585
527-0078
(e)         Ellison D. Smith, IV, Esquire
Smith, Bundy & Bybee
P. O. Box 579, Charleston, SC 29401
577-6302

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have ever been filed against you. The records of the appropriate law enforcement agencies, that being Richland County Sheriff's Department, Columbia City Police Department, SLED and FBI records, are all negative. The Judgement Rolls of Richland County are negative. Federal court records as well are negative. No complaints have been received regarding you and no witnesses are present to testify against you.

At this time, I will turn you over to Ms. McNamee for questioning.
MR. FINKLEA:     May I have my one minute, please?
THE CHAIRMAN:     You may have your -- I'm sorry. I keep forgetting that. You may have your up to five minutes to give your opening statement.
MR. FINKLEA:     Thank you. I've been a lawyer for DHEC for nine years and during that time, it has become clear to me that people -- that the kinds of cases which will come before the ALJ division arise because people have been told by an agency either that they can't do something that they want to do or that they have to do something they don't want to do. That is the distressing to corporate members, but it's more distressing to private citizens who in some cases can't comprehend why they can't use their property as they see fit. Sometimes there are good reasons and when you work for agencies, you like to think in every case where we make a decision adverse to somebody's private interest that there are good sound technical reasons for doing that.

The role of ALJ division is going to be to give those people a fair hearing and treat them decently and honorably and at the same time to ensure that the agency has followed its own rules and there is ample evidence in the record to support the agency's decision or else the decision must be reversed, otherwise the Circuit Court is going to reserve it and nobody's purposes are being served. Thank you.
THE CHAIRMAN:     Thank you very much. Ms. McNamee.
MR. FINKLEA - EXAMINATION BY MS. MCNAMEE:
Q.     Thank you. Mr. Finklea, can we talk first about judicial temperament, please. What in your mind is the appropriate demeanor for a judge and all the different qualities we talked -- I talked about this morning.

Patience, open-mindedness, courtesy, tact, firmness, understanding, compassion and humility, which of these do you think is most important for an ALJ, Administrative Law judge or the chief, either one and why?
A.     Patience. And I choose that one because I'm going to define it very broadly. Patience means you're not short tempered with the litigants. Patience means that you listen to the positions before -- and listen to all sides of the position before you make the decision. Patience means that you take the time to determine what the applicable law is.

The ALJ is going to be hearing cases coming out of many agencies. I'm most familiar with DHEC's regulations. We probably administer more regulations than any other agency in the state. I don't rely on my memory when it comes down to the point of making a decision. I take the time to look up the applicable law, look up the regulation.

And so I think that in viewing all of those as aspects of patience, that's why I choose that as the most important.
Q.     How will you go about educating yourself about those areas of substantive law that you are not familiar with?
A.     Well, as several questions -- and several of the Committee members have asked questions about the start-up period and you're going to elect three members who are going to bring -- three ALJs who bring a broad basis of experience to the division and those are certainly resources and a consultation among judges is allowed by the Canons and it's always been my practice to -- insofar as it's allowed by the rules of government, my conduct as an attorney, I tend to do the same with the Canons of Judicial Ethics to consult with people when I have a question.

In the conduct of a contested case, it's expected that the litigants are going to bring forth the applicable law. If an agency doesn't bring forth the applicable law, then something -- then subsequently has its decision reversed, then it's the agency's fault.

I have a little more patience in cases of litigants pro se. In a case like that, I'd have to pay particular -- assuming I didn't know the substantive law, I would pay particular attention to be sure that I understood it before I made a ruling adverse to that litigant.

It would be my intention to build as broad a base as possible with the experience among the ALJs just so there wouldn't be one individual who was the entire corporate repository of knowledge in a particular area. I would intend to do that by rotating assignments judiciously and
whatever means that appear to be necessary.
Q.     One quick follow up question, do you expect the parties in a contested case to educate you as to the law, educate you as to the facts? Discuss that for a minute, please.
A.     Well, under the Rules of Civil Procedure, a Rule 16 brief is supposed to list the applicable law. A brief is obviously always partisan, but I would expect the parties to -- if they are truly in opposition to, between them, flush out all the areas. I don't intend to rely solely on the briefs of the litigants. Never have. Don't intend to start now. I've done my own research since I started law school. I intend to keep doing it.
Q.     What is your -- what are your work habits and the way you meet your deadlines, the way you set out your schedule for the day, your hours that you work, et cetera? How does this -- how do you then foresee this being in place when you're a Chief ALJ assuming you get it?
A.     Well, I typically work 7:30 to 5:00, but later if I have to. My preference is to -- is not to get down to the last minute. I pulled an all nighter when I was a junior in college and didn't like it and haven't done it since. So I keep my schedule on a computer and so I know what I've -- all the deadlines I've got for the next seven weeks.

So it's typically -- if I had a slack time with no deadline pressing that day, then that's the opportunity to work on things that are going to be due the next week or the week after. And I know from my past practice which cases are going to require the most time, so the ones that I can assign a fixed period of time to work on it -- some things I know are going to take me an hour or two and I can leave that until I have an hour or two. Sometimes when I don't know the answers, you know, I'm going to have to be more open-ended and I have to go by that.
Q.     Throughout your career and you have a very extensive career if I might say as a scientist working for DHEC and then as an attorney as you said for the past ten years, you have argued the agency's position in hearings, state and federal court, federal district -- federal district courts and also the Federal Sixth Circuit Court of Appeals and argued very avidly, enthusiastically. Do you perceive it will be a difficult switch for you to make to switch from that avid advocate of the State's position to now being the neutral, noninvolved decision maker who then has to weigh both sides of the issue?
A.     Well, I think I've been successful in making a transition from being the technical expert to being the legal expert. I still find myself wanting to argue with technical experts by virtue of my previous training. I think I know something about the subject, but they are up to date and current and they're working in it all the time and they're responsible for it and I believe I've been able to make that separation.

I don't foresee that I'm going to have any difficulty in making the transition from being the arbitrator that's required by the ALJ. It's clear what the standard of review is and being a blind advocate for the agency is going to result in reversals and we won't serve anybody's purposes.
Q.     How will you make use of expert witnesses in areas you know nothing about?
A.     Do you mean experts called by parties or experts called by the division -- by the ALJ?
Q.     Well, in either way. If there is a situation that comes up that has not been briefed by the parties and you feel you need some additional information or expertise about something, what will you do?
A.     Well, the Canons -- the commentary of the Canons suggests that one perfect way to do that is to solicit an Amicus for the -- during the hearing itself, the ALJs are in a better position from the point of view of being able to find out the facts than judges are because they can engage in more extensive questioning of the witness.

That's typically done now by hearing officers in DHEC hearings and I think it's an appropriate way to get answers to questions that the parties don't want to ask.
Q.     What has been your managerial experience?
A.     I have been responsible for the budgets for the Administrative Division I work for at DHEC in terms of keeping track of what the budget was and what our planned expenses were. Working for a state agency, you are somewhat limited in your ability to control the budget because you're given a certain number of positions and the money to fund those positions flows from that, rather than being given a pot of money to manage personnel like you can in the private sector.

I'm also comptroller in my Guard unit and -- on the weekends, Guardsman, and the people who work for me manage the budget there, so we'd have more flexibility and actually reprogram the money during the course of the year as you'll see what's going to be necessary to meet the mission for the rest of the year.
Q.     What does --
A.     I have never --
Q.     I'm sorry. Go ahead.
A.     I was going to say I haven't directly supervised a large organization before, but I have been responsible for managing ad hoc groups, bringing people from various organizations together who on a voluntarily basis to meet to do produce a product with a fixed end point and with some objective grading.
Q.     What are your recommendations for getting this court started hearing cases? Is this going to be up and running March 1? What will you have to do to get started?
A.     How much time do I have --
Q.     March 1.
A.     -- to answer the question? Okay, the first thing, living space. The ALJ has got to have a place to hang their hat up, so talk to General Services about borrowing office space for three ALJs and a couple of support staff. I would not rush into hiring a clerk because that is a critical part of the organization. There is $15,000 in the Restructuring Act which is really just start-up money, but it would be enough to hire a good temp. for a few weeks.

The Division is going to need access to word processing. It's going to need access to a library. Those don't have to be purchased. The libraries in this complex that would be -- I'm sure would be made available as necessary.

The finding out the skills of the ALJs who are elected is going to be -- have to be done early and that process will start the process of team building, deciding who has which skills, who should be assigned to which agencies first.

As far as rules are concerned, the Administrative Procedures Act applies across the board. The individual agencies have procedural rules which apply in hearings for cases brought from them. There are probably going to be some procedural rules that will be required of the Division such as how you file, how the agency transmits a contested case to the agency, how the various briefs are filed.

We propose to do that by an interim order under -- the Statute requires that it would have to be submitted to the General Assembly. I think the Chief ALJ has the authority under the statute to issue interim orders to carry the division over until the permanent regulations are in place.

I would talk to Clyde Davis assuming that he's not occupied in other duties or Rita Mims, assuming she hasn't the state for Florida as to what needs to be done to set up the division.
Q.     Talking about the case load which we all expect is going to be a hefty case load, if you had, for example, a case that was a contested case from DHEC that was going to be a two-month case, you are experienced to know that that's not unusual because of the complicated issues and the number of parties involved, how would you decide which ALJ heard those? Is that something you would hear?

I assume that you feel that you would be the most knowledgeable to hear that case in that area. Would you sit on that case and if not, how would the length of that hearing effect your deciding what the rotation would be, for instance?
A.     Let me back into my answer to that one. First, I think that even though after the rotation is set up, there are going to be certain -- that are likely to be circumstances where an ALJ is going to have to be assigned into it, to hear cases coming out of another assigned area.

I found that at DHEC that we try as we might to assign cases by geographical area or by subject area, we never could predict where the case load was going to increase. It's cyclic and you had to make adjustments.

If such a case came up, not to denigrate the abilities of the other candidates, but from what I know of the candidates running for Seats 2 and 3, I think during the six months -- first six months at least, I'm going to be the one that who knows the most about DHEC issues. If one of them has other comparable experience, then the substantive law can be picked up by that ALJ. And so those are the factors that I would look at before I made the decision.

As far as if a question came up about my hearing a case arising out of DHEC during that period of time, the Canons have already been discussed, if it was a case that involved a matter which I directly participated as an attorney for DHEC, I can't hear it no matter what. Somebody else is going to have to do it.

I think that my history is as far as -- but that I'd certainly make it clear to the litigants that if I chose to take the case what my experience with DHEC was and give them the opportunity to object. It's standard practice in such circumstances.
Q.     What is your most valuable administrative law experience? Would you elaborate on that?
A.     It would have to be more or other -- one or another of the septic tank cases that I've heard. That's as close as I would want to get to domestic relations. It's a situation where it typically comes up because somebody has acquired property that's either spent a long time paying on it or they've gotten land of theirs property and want to pull a mobile home on it. The most heartbreaking ones are the ones where they want to pull a mobile home on it, so Granny doesn't have to be going to the privy. The agency denies the septic tank permit. What that taught me is that there is a human side to these cases.
Q.     Nobody has yet really gotten into your role as an ALJ in hearings on proposed regulation. What do you foresee your goal is there and how will you define the standard called reasonableness?
A.     I was hoping I'd have a little bit more time to think about the answer to that question before I actually had to face it. That determination is not going to be made in a vacuum.

The public hearing is intended to bring out all the elements of pro and con for regulation. I know that in hearings that involve DHEC regulations, there are typically environmental groups who are all in favor of more regulations and industrial groups who want less regulation. I hesitate to predict in advance what is going to be reasonable in a given case.
Q.     What has been your method of separating your work for the State and your efforts to obtain this position? How have you done that?
A.     Make sure I've got a leave slip on file every time I come over here.
Q.     Excuse me?
A.     Make sure I have a leave slip on file every time I come over here and I -- if -- only take time off from work to campaign when my work load allows it.
Q.     And have you ever been held in contempt or sanctioned by a court for any reason?
A.     No, ma'am.
Q.     And have you ever been the subject of a disciplinary action arising out of your public employment?
A.     No, ma'am.
Q.     Have you sought directly or indirectly the pledge of a legislator's vote for this job?
A.     No, ma'am.
Q.     And are you aware of any solicitation that was perhaps done without your authorization or your request of a legislator or a legislator's vote for you?
A.     Some of my friends have sent me copies of letters that they had sent their delegations members saying what a great guy I am.
Q.     That's all I have.
THE CHAIRMAN:     Questions from the Members?
REPRESENTATIVE ALEXANDER:     Yes, sir.
THE CHAIRMAN:     Mr. Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q.     In what way do you feel this new system we're embarking on for the Administrative Law judges will be an improvement over what we've done in South Carolina over the past years?
A.     It's going to provide a base line of consistent rules and the agency rules of -- this particular agency's rules are still going to apply, but the ALJ Division is going to provide a unified base of procedures that's going to provide one point of contact and it's going to provide trained attorneys as hearing officers who will have the benefit of not only the law in cases provided to them, but also their previous decisions which I anticipate will be compiled in one reporter of the ALJ Division.

That's something I've worked on at DHEC. I have a -- we have court orders going back to 1975. I anticipate starting such a system here.
Q.     That's all.
THE CHAIRMAN:     Thank you. Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q.     Thank you, Mr. Chairman. Have you sought the endorsement of any group of members of the General Assembly or of any caucus of the General Assembly?
A.     No, sir.
Q.     Have you participated in a formalized interview process other than with the Bar Association and with this committee?
A.     No, sir.
Q.     Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the Bar Screening Committee, Bar employees or lobbyists representing the Bar either before you were screened or after you were screened, but prior to the Bar's screening report being made public?
A.     I was first contacted by the Bar and I cannot remember now whether it was a phone call or a letter asking me to submit a copy of the materials that I submitted to this committee and also the names of five other references.

I got a call on Monday, the 4th, asking me to appear for an interview on Wednesday, the 7th. I met Betsy Gray and Bob Erwin and Gwen Fuller at the Bar offices on Wednesday, the 7th.

I got a letter transmitting the Bar recommendations at my office on Monday and that's the only contact I've had with the Bar.
Q.     Thank you.
SENATOR MOORE:     Mr. Chairman.
THE CHAIRMAN:     Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q.     I have some more questions in regards to the Bar interview, Mr. Finklea, but first of all I thought we might want to explore your findings on "The Investigations of the Bonding Mechanism in Pyrite Using the Mossbauer Effect and X-Ray Crystallography."

Okay, the date you were first contacted by the Bar representative was Monday, the 4th, you said?
A.     I got a call before that asking me to submit the documentation.
Q.     So what day were you first contacted by the Bar?
A.     I really don't remember.
Q.     All right.
A.     If I got a letter, I can find it, but I don't -- wasn't prepared to answer that question. I'm not sure I brought that file.
Q.     Where did the interview take place? I think you said the Bar office?
A.     Yes, sir.
Q.     How many interviewers participated in your interview?
A.     There were three individuals that I identified were in the room.
Q.     Do you know what part of the state they reside?
A.     I believe Betsy Gray lives in Columbia. I don't know about the other two.
Q.     Do you have any previous acquaintance with any of the interviewers?
A.     I believe I've seen Ms. Gray in either court or in Bar -- in Richland meetings, but I didn't know any of the three of them.
Q.     And you say you did furnish the list of references?
A.     Yes, sir.
Q.     Five, you said?
A.     Yes.
Q.     Were they contacted to your knowledge?
A.     Some of them were.
Q.     But not all? You don't know?
A.     I don't know.
Q.     But you knew -- you have some knowledge that some of the five you referenced, somebody was contacted?
A.     Yes, sir.
Q.     And when and how were you notified of the results?
A.     I got a letter Monday.
Q.     This past Monday, the 10th?
A.     Yes, sir. It stated that the entire list would be made public yesterday.
Q.     And the day -- what was the date of the letter giving you your findings?
A.     January the 7th.
THE CHAIRMAN:     Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q.     Representative Sturkie says that he tried to take Physics successfully three times at Carolina. He noticed on your PDQ not only did you major in it at Duke, but you have a Master's and Ph.D. He wanted to commend you, but he's embarrassed to say anything. It's outstanding.
REPRESENTATIVE STURKIE:     I can't even spell Physics.
Q.     Sir, if you had -- if you were to pick the phone up and it was group of -- it was an attorney that appeared before you regularly in your capacity as administrative hearing officer and he had two tickets to the Duke Blue Devils National Semifinals, would you accept them? What would you do in that situation, seriously?
A.     I would decline with extreme regret.
Q.     No further questions.
THE CHAIRMAN:     Any more questions? All right. Thank you very much.
A.     Thank you. Will you need anymore today?
THE CHAIRMAN:     No.
A.     Thank you.
THE CHAIRMAN:     Thank you. Let's do this, let's take about a fifteen minute break, if we could, and then we'll pick back up around -- about ten til.

(A short break was taken)
HE CHAIRMAN:     Our next applicant is Selma Thorn Jones. Ms. Jones is seated in front of us. If you will raise your right hand please.
SELMA THORN JONES, having been duly sworn, testified as follows:
THE CHAIRMAN:     Have you had a chance to review the Personal Data Questionnaire summary?
MS. JONES:     Yes, I have.
THE CHAIRMAN:     And is that correct?
MS. JONES:     Yes, it is.
THE CHAIRMAN:     Are there any amendments that need to be made?
MS. JONES:     Not to that.
THE CHAIRMAN:     Is there any objection to making the Summary a part of the record of your sworn testimony?
MS. JONES:     No objection.
THE CHAIRMAN:     If not, it's so ordered.

1.     Selma Thorn Jones
Home Address:                         Business Address:
2410 Duncan Street                 P. O. Box 1987
Columbia, SC 29205             Columbia, SC 29202

2.     She was born in Greenwood, South Carolina on June 21, 1955. She is presently 38 years old.

4.     She is single.

5.     Military Service:     N/A

6.     She attended Emory University, 1973-1977, B.A.; the University of Arizona, Summer 1973, returned to Emory University; the University of South Carolina Law School, 1977-1980, J.D.

8.     Legal/Judicial education during the past five years:
During the past five years continuing legal education consists of seminars on evidence and trial techniques. In 1989, she attended the National College of District Attorneys' Trial Advocacy Course in Los Angeles, California for a week-long seminar.

9.     Taught or Lectured:

Family Court Seminar lecturer - SC Bar, CLE Division, Child Protection - The Court and the Process - 1981

Reserve Officers Training Instructor - Abbeville Police Department - 1983

Solicitor's Office Training Team - She instructed new Assistant Solicitors on basic trial technique and case management - 1993

10.     Published Books and Articles:     Co-Author - "Synopsis of Selected Statutes Relating to Child Abuse and Neglect," South Carolina Children's Code (G11-G19)

12.     Legal experience since graduation from law school:

1980-1983         Family Court - DSS abuse and neglect cases and juvenile prosecution
1983-1987         Supervisor of Family Court Lawyers, General Sessions caseload, including felony cases
1987-1988         Family Court and Civil Practice, Office of Kermit King
1988-1991         General Sessions caseload
1992-1993         Instructor of Training Team in Fifth Circuit Solicitor's Office

13.     Rating in Martindale-Hubbell:     1985, BV

14.     Frequency of appearances in court:
Federal - none
State - weekly
Other -

15.     Percentage of litigation:
Civil - 5% (CPNJ) (Criminal Magistrate Appeals)
Criminal - 95%
Domestic -

16.     Percentage of cases in trial courts:
Jury - 90%
Non-Jury - 10%

Sole Counsel

17.     Five (5) of the most significant litigated matters in either trial or appellate court:
(a)         State v. Duane Mitchell; first DNA case tried in Richland County General Sessions; co-counsel.
(b)         State v. Rantley Johnson; 427 S.E.2d 718 (1993); sole counsel; cited in South Eastern Reporter System.
(c)         State v. John Allen Butler; first murder case she tried as sole counsel; January 27 and 28, 1982.
(d)         Co-counsel on five death penalty cases, including State v. Elmore, 332 S.E.2d 762, 286 S.C. 70 Cert. Gr. and vacated. Elmore v. South Carolina, 106 S.Ct. 1942, 476 U.S. 1101 90 L.Ed.2d 353, appeal after remand 386 S.E.2d 769, 300 S.C. 130, cert. den. 110 S.Ct. 2633, 110 L.Ed. 652 reh. den. 111 S.Ct. 9, 111 L.Ed. 824 and State v. Freddie Singleton, 326 S.E.2d 153, 284 S.C. 388, cert. den. 105 S.Ct. 2346, 471 U.S. 1111, 85 L.E.2d 863
(e)         State v. Hartpence - The first criminal sexual conduct with minor she tried. Defense counsel was John Delgado. The Supreme Court affirmed the conviction and sentence pursuant to Rule 23 on March 16, 1987.

18.     Five (5) civil appeals:
(a)         She argued once before the South Carolina Supreme Court. She represented the Respondent. The matter was affirmed. She handled the case for another attorney who was not available for the argument. He had written the brief.
(b)         She wrote one Appellate Brief while employed at Kermit King's office. The matter was settled before argument. It was a domestic relations appeal.

22.     Public Office:     She has been an Assistant Solicitor for 12 years.

45.     Bar Associations and Professional Organizations:
South Carolina Bar Association; Richland County Bar Association

46.     Civic, charitable, educational, social and fraternal organizations:
She was more active in civic matters while living in Greenwood. She is a member of good standing of Trinity Cathedral. She has been a Laubac tutor for adults learning to read. This summer she was a leader in the production of an animation film project for youth.

47.     She is honest, fair and diligent. She is independent and has much legal experience.

48.     Five (5) letters of recommendation:
(a)         Terry G. Cline, Jr., Loan Officer
The First Savings Bank
2001 Assembly Street, Suite 204, Columbia, SC 29201-2153
251-3110
(b)         Hugh S. Roberts, Esquire
P. O. Box 11893, Columbia, SC 29211
252-3121
(c)         Howard B. Stravitz, Associate Professor of Law
University of South Carolina School of Law
Columbia, SC 29208
777-4155
(d)         Richland A. Harpootlian, Solicitor
Fifth Judicial Circuit
P. O. Box 1987, Columbia, SC 29202
748-4785
(e)         Kermit S. King, Esquire
King & Vernon, P.A.
P. O. Box 7667, Columbia, SC 29202
779-3090

The Board of Commissioners on Grievances and Discipline has reported that no formal complaints have ever been filed against you. The records of the applicable law enforcement agencies, the Richland County Sheriff's Office, the Columbia City Police Department, SLED and FBI records, are all negative. The judgment Rolls of Richland County are negative. Federal court records are negative. No complaints have been received. No witnesses are present to testify against you.

At this time, we'll allow you the opportunity if you so desire to give a brief opening statement, followed by questions by Ms. McNamee.
MS. JONES:     Thank you, Mr. Chairman, and I will briefly, although some of these may be questions that you would ask me, I don't know. You may have a different set of questions. You've altered them a little from candidate to candidate.

First, let me thank you for the opportunity to come before you. Last year as the old way of doing things became unsatisfactory, ya'll, the State Legislature, worked quickly to restore public trust and creating new avenues for administrative review. My understanding of this law is to promote efficiency, fairness and professionalism.

I come before you today offering myself as a candidate for that position. I feel that I have qualities of honesty, industry and intelligence which would enable me to effectively serve in this public position.

I believe there to be three areas that you would be looking for experience. One, the legal area, I have been 12 years in the Solicitor's Office, the executive branch of government. I have been in courtrooms for all of that time.

I did serve one year in civil practice and although I only have one year civil practice, that was under the Kermit King, one of the finest lawyers in the state.

I will say that I have been termed a hard-nosed prosecutor and I will simply say that I understand that there is a difference in an advocate and a judge and I understand that difference and would perform differently as an advocate -- as a judge.

Administrative skills are certainly required for this position. In the Solicitor's office, originally I worked in the Family Court area where I was responsible for dockets in four counties with the Department of Youth Services, the Department of DSS and I alone was responsible for that. Later as the case loads increased, I became in charge of other lawyers who were responsible for that. I've also been responsible for General Sessions dockets and dockets that included a thousand cases.

I have -- I'm currently managing the training team in the Solicitor's office which was started under this administration by me and I've had to deal with nine lawyers under my supervision. Including in those nine lawyers are some private lawyers, not only the public sector lawyers because there is also another program which Solicitor Harpootlian started which allows private attorneys to serve an internship in the Solicitor's office without pay, only giving their services which I have been responsible for. That was kicked off last year.

And, of course, the last area would be integrity which as ya'll began to -- as this new division is developed, I'm sure that professionalism is what our Legislature was looking for and I think I possess some independence that would allow me to serve in that capacity.

Now I'll thank you for the opportunity to speak to you and I will answer any questions that you may have.
THE CHAIRMAN:     Thank you, Ms. Jones. Ms. McNamee.
MS. JONES - EXAMINATION BY MS. MCNAMEE:
Q.     Ms. Jones, what is the appropriate demeanor for a judge?
A.     I think a judge first and foremost should probably be courteous. I thought about that and I do think patience used to be the best and maybe that's the -- covers everything speaking of patience, but recently there has been concern among the Bar when judges are not courteous to other lawyers.

In this state -- every judge in this state has been a lawyer prior to becoming a judge, at least those that
their requirement is to be a judge. The Magistrates are not required to be -- I mean, judges that are required to be lawyers, which is different.

Sometimes we've had people become judges for -- upon graduation from law school, but in our state generally judges have been lawyers before and I think the Bar is concerned about judges on the bench not being courteous to other lawyers and having served in a courtroom, I would -- and having been in courtrooms and observed lawyers that received punishment by a judge who was in a bad mood or whatever, I would certainly think that one of the -- the demeanor of a judge should be courteous.

They should be kind. They should be fair. They should be firm, but courteous. I think it's important to maintain respect in a courtroom.
Q.     And I think you did talk about this in your opening statement, but are these the qualities and the demeanor of a Solicitor which is your experience, and if not, how do you resolve all that?
A.     All right, at times they are, but not always. As a solicitor, there are times that I have had to be rather dogmatic in my approach. At work if we have a huge volume of cases that we're responsible for moving, a solicitor has a quasi-judicial aspect to the job initially.

When you receive a case, you must determine whether or not the facts warrant proceeding with the case. Once the quasi-judicial determination is made and you proceed with the case, then you step into the shoes of an advocate and you become someone who is there to present the case to the court and you would be required to act zealously and I have in the past, but I think those are all qualities of a good solicitor.

A judge is not an advocate of a position. The judge is there to interpret the law and enforce the law as a judge and to listen to -- both a solicitor and a judge are there to interpret the law and as a lawyer, they're often times -- any lawyer has to interpret the law to make decisions, but as a lawyer you're an advocate. You're trying to advocate a particular position. As a judge, you're there to hear both sides and to be fair.
Q.     I would agree that a solicitor has a very stressful job. I would agree that probably these ALJs are going to have very stressful jobs, also. I just wondered how do you deal with that stress. You as a solicitor now, how do you deal with stress and --
A.     Well --
Q.     Because it's going to --
A.     Stress. I think organization is the key to deal with matters, to try to look for problems that may arise and resolve them. I'm not sure I understand your question. If you can ask that another --
Q.     Well, stress is a part of a lawyer's life, I guess, and as a solicitor, you certainly have to operate every day under a lot of stress. The stresses of the chief ALJ's job will be different, but they're going to be there, too.

It gets into your -- the management skills and how you plan to organize your office, if you want to get into that, too. How do you plan to be the --
A.     Well, we --
Q.     -- chief ALJ?
A.     All right, normally under stress, I think most people take a deep breath if they find themselves in a stressful situation. Stress is not something that -- stress is how you respond to things rather than what actually happens in your life, so it did become stressful, take a deep breath and try to remain calm and move forward.

As far as organization of the office, I mean do you want to go into that at this time?
Q.     Yes.
A.     I think whoever becomes the chief judge, which I filed for that seat, will have quite a job beginning March 1st. I have made contact with the Chief Judge in Maryland, Chief Halk (phonetic) and have -- they have an Administrative Law Judge Division in Maryland. As a matter of fact, our Legislature modeled what we have here not exactly, but they used Maryland and Minnesota.

I contacted the Chief Judge in Maryland because he was closer and spoke with him and he has had -- his position is different from ours where he -- how he got there and how he started his job is very different from what we have here. He has 55 lawyers and judges under him.
Q.     What did he start out with?
A.     He started -- he just started this in 1990 and he -- they did it a little differently. He was a Governor's appointee and then he hired -- and he hired from those that were working as hearing officers. This is different and -- but it look him about three months to set it up.

He is quite willing for me to come up there and visit with him to see how they managed and set up their office, although it is not -- as I said, theirs much bigger. They have 19 courtrooms. They designed their own building. Ours would be much smaller in scale, but hopefully as professional as --
Q.     What will you do March 1?
A.     I would -- if I were elected February 16th, I would begin February 16th.
Q.     Okay.
A.     And I would -- as I stated, one of my first contacts would be to talk with that judge and also there -- there are 18 states that have this legislation. Not every state does. We're number 18. The last person that set it up was South Dakota. They were number 17. A woman -- I might contact her and I would intend to visit Baltimore to see how they set theirs up and to actually spend the day. He told me he would spend time with me himself.

Of course, there would be a lot of management that had to be done down here. I agree with what some of the other candidates have said and speaking of -- they're going to be three judges that are elected. I think that it would be very -- even though the Chief Judge would have to make the final decision, I think it would be important for all three persons to pool their wisdom because this is a -- one thing, I haven't mentioned and I'll use this opportunity to mention it. This is a frontier to the state.

It's a new beginning and that in the practice of law is very unusual because normally lawyers are looking in the past to find answers instead of looking to the future and I -- that's one reason that I filed for this position because it is a -- it's new and it's going to be developed and whoever is at the helm of that ship is going to decide how it floats.
Q.     Your practice is as you said in your PDQ, 95 percent criminal and 90 percent before a jury.
A.     Yes.
Q.     Of course, the ALJ, he will -- this person will operate in a very different capacity since that work is totally civil and he is the sole practitioner -- sole decision maker, excuse me, and so how do you plan on making that transition? Is there extra education you need? What -- how do you plan to do that?
A.     I attended the only seminar we had at the end of the year on Administrative Law. I have served under single judges and not juries at an earlier time in my career. The first six years of my career, I practiced before Family Court judges and there is no jury in the Family Court system, so I've had experience with the single judges, also.
Q.     Uh-huh.
A.     Education would be important, I think, for all members who -- anyone that is elected as a judge in this area. Cross -- possible cross-training would be important dealing with some of those that are hearing officers now in one area -- if anyone is elected that has experience in one area and there is another judge that's elected that experience in that area, there will be, you know, some cross-training of those judges with each other.
Q.     What have you done to avoid conflicts between your employment as a solicitor and these efforts to become an ALJ?
A.     What conflicts are you asking about?
Q.     Well --
A.     Ethically?
Q.     Ethical conflicts of using your time that you are on the job as a solicitor to do any campaigning, that kind of stuff, how have you --
A.     Oh, no. I would never --
Q.     -- kept those things separate?
A.     No, no, no. I would -- I have -- any time that I am -- well, first, you saw that I had stationery printed to send a letter to each of the legislators. That's in my financial statement that you have before you. And any time that I would spend over here, I would take as annual leave from my office or possibly a leave of absence. Whatever is necessary.

Currently, I don't know when ya'll will report, I know it's important to be available when you do report as far as this committee and I have worked to have someone in my office take over some of the responsibilities. I have done that because ya'll could report next week, and I don't know, and I've worked along those lines, having some of my work delegated to other persons.
Q.     And what is the extent of your administrative law experience?
A.     I have not been a judge in any capacity, I'm sure that's what you're asking, nor have I practiced before administrative hearings.
Q.     Please describe how you have gone about introducing yourself to legislators. Have you done this individually? Have you done it to groups? I don't want to preempt Senator McConnell.
A.     I have introduced myself to some legislators. My -- as I understand the law, we are able to introduce ourselves and to discuss our qualifications for the position. First, I presume that could be either written or oral and I've exercised both rights.

I have sent a letter to each legislator, a brief letter with a resume and I have met a few legislators and introduced myself. I have not asked for any pledge or commitment or anything. And --
Q.     Are you aware of any solicitation without your authorization or your request of a legislator or a legislator's vote for you? Has anyone done that?
A.     No. Not that I'm aware of. I'm not aware of any.
Q.     And we have an expenditure amount here that you have reported to the Senate Ethics and the House Ethics, are there any additions or changes to be made to that?
A.     One addition, at this time. I, of course, will file mine at the end, but I have -- I spent $45 on a parking place.
Q.     Okay. That's important to have.
A.     Right here at the State House.
Q.     You could spend a lot more than that on tickets. I have no more questions.
THE CHAIRMAN:     Thank you. Questions from the Members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q.     Thank you, sir. Have you sought the endorsement of any group of members of the General Assembly or the caucus of the General Assembly?
A.     I have not.
Q.     Have you participated in any formalized interview process other than the Bar Association or this process here?
A.     I have not.
Q.     Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the Bar Screening Committee, Bar employees or lobbyists representing the Bar either before you were screened or after you were screened, but prior to the Bar's screening report being made public?
A.     Yes. I received a call from a person on Betsy Gray's staff to appear Wednesday at 11:00 o'clock. I probably had more than one conversation with her in trying to schedule that one. I also -- oh, before that, when we were asked to send our -- a copy of our -- what are those?
MS. MCNAMEE:     PDQs.
THE CHAIRMAN:     Personal Data Questionnaires.
A.     I took mine over and I think later contacted Bob Wells. I got a call from -- this was strange. I had a note on my desk from Bob Wells, I think, and I called him back and he said he didn't have anything for me.

I did offer at that time, I said I have five people listed as you requested, but I would be glad to give additional names if you would like because the committee may have problems reaching people over Christmas. It was just a courtesy on my part offering to give more than the five because I know sometimes it's difficult to get in touch with people with busy schedules.

And in an abundance of caution, I hope I haven't violated anything by doing this, but I did speak with one of the members of the screening committee. I presumed it was after -- I presume that it was after they had determined. They met with us on Wednesday and my understanding was they were to meet that afternoon and make their decision that afternoon and I knew one of the members and I did talk -- I spoke with him.
Q.     No one has contacted you regarding your candidacy, a member of the Bar Screening Committee?
A.     I don't think so. I don't remember. I mean, but it was before it became public. Your question said before --
Q.     Yes. Okay. Thank you.
THE CHAIRMAN:     Mr. Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q.     You indicated you had talked to your counterpart up in Maryland, the administrative law judge there, what we're all interested in, name several ways you think this system is going to be an improvement over the system we've operated under previously.
A.     Well, I presume what ya'll had hoped in enacting this was to have this new system more efficient and for it to be very fair and very -- I would state, two, efficient and professionalism. I think that's my understanding of what you were looking for when this was enacted.
Q.     Okay. Thank you. That's all.
THE CHAIRMAN:     Representative Sturkie.
EXAMINATION BY REPRESENTATIVE STURKIE:
Q.     Ms. Jones, you spoke that this was going to be a tremendous undertaking to get this together, put together and to get it organized. Is there anything that -- I guess my question would be, are you committed should you get this position to utilize the skills and the time that would be necessary to put this together?

In other words, a lot of times I think in the some
-- there is some misconception somewhere that, you know, state employees go from 9:00 to 5:00 and don't be near an exit door at 5:00 o'clock. Don't be around. And I think because of the backlog of work that is awaiting, that time is going to be of the essence and is there anything that would prevent you to commit the time that would be necessary to get this organized and put it together?
A.     No. And I appreciate you asking that because it gives me another opportunity to say something nice about myself. I work now probably from 8:30 in the morning until 7:00 o'clock at night, every night and often go in on the weekend. I'm in a job that I can for a long -- that I've done for a long time, so obviously, I am one that thinks that being around is -- I mean I don't mind working.

I'm somebody I enjoy working and I think that if I didn't -- I think this job will require -- I think the first two years will be very important. I think it will be -- require a lot of dedication of whoever becomes the chief judge to create one that --
Q.     Well, one final question, in your philosophy about the decisions that are -- that the administrative law judges make, I know that in some circuit courts and I think it's because of the tremendous work load that the judges face, many times, the judges will have the attorneys to prepare proposed orders for signature and I have noticed on some occasions maybe being on the losing side, that some of these orders maybe somewhat slanted or you can't help many times but enter your personal feelings into some of these orders and I know in some of the other screenings that we have been in some of the judges have that policy, some write their own orders. What would be your philosophy as the chief judge to the policy of how much influence would be writing decisions, you know, of these orders?
A.     I would like to believe having been on the other side of the fence when I've been asked to write orders that I would write my own orders, but if it were necessary in any given case to require a lawyer to write it, I think my philosophy would be -- and this is a projection, if I were asking a lawyer on either side, I would -- I think the best way of handling it would be to write a letter to both attorneys stating in the letter what you intend for it to contain and then the lawyer that writes it, you would also ask him to allow the other lawyer to review. And I would put a paragraph in there reserving my ability not only to alter the order, but to alter the decision of the order and I think that would protect me from any problems in that area.
THE CHAIRMAN:     Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q.     Ms. Jones, in reference to the Bar interview, what was the date you were first contacted by a Bar representative? A specific day, if you can --
A.     I had pulled out my files back there just to look that up for you and to be quite honest with you, I'm not sure. I didn't write it down.
Q.     Okay.
A.     I've kept the note until I agreed upon the date and time.
Q.     Okay.
A.     I kept the note from Betsy Gray's secretary. Betsy Gray was out of town and I think it was on -- at first, it seemed like it was the day before, but it must have been two days before because I know Betsy and I spoke on two separate days and we did not speak on the day I went to the interview.
Q.     What was the date of the interview?
A.     It was a Wednesday. I'm sure I have that on my calendar.
Q.     January? December?
A.     No, it was just -- I think it was the first Wednesday in January.
Q.     Last week?
A.     Yes.
Q.     What day is that?
A.     I've got --
MS. SATTERWHITE:     This is the 12th.
A.     It'd be the 5th.
THE CHAIRMAN:     It'd be the 5th. We'll take notice that that would be the 5th.
A.     If you want me to my file is back here, I'll look at it. I'm sure I put a big star several times --
Q.     It's going to be in the Journal. It's going to be reviewed several times.
A.     It was Wednesday, the 5th.
Q.     January 5th?
A.     That's correct.
Q.     Where did the interview take place, please?
A.     In the Bar Building, South Carolina Bar.
Q.     How many interviewers participated in your interview?
A.     Two. There were supposed to be three, but Terry Richardson was in a trial.
Q.     Do you know what part of the state the two who interviewed you --
A.     Are from?
Q.     -- resided? Yes.
A.     Yes. Betsy Gray, I believe lives here and now exactly where the other interviewer lives, I'm not sure. He practices in the Horry County, Myrtle Beach area and he is moving his practice to Greenville. He works for one of the large firms that has offices in both places. Nelson, Mullins.
Q.     And so I assume --
A.     I think he's going back and forth. Greenville and Charleston -- right now, Greenville and Myrtle Beach. I'm not sure exactly where he has his home.
Q.     Greenville and Myrtle Beach. So you did have previous acquaintance with your interviewers?
A.     I did not know Betsy Gray before I went in and had never -- and did not speak with her before I went. I did know one of the -- the other one, Bob Logan.
Q.     Okay.
A.     He practiced in Greenville for a long time and I'm from Greenville.
Q.     And that -- previously, I think you mentioned this. You had furnished a list of references to the interviewers?
A.     Yes.
Q.     Or to the Bar?
A.     That was the only other contact.
Q.     What? How many, five? Did you say five?
A.     Five. Five other than the five we had given ya'll. I don't think a lot of mine were contacted.
Q.     You don't know if any were contacted or --
A.     I did hear that one was contacted, but I didn't speak with that person. His secretary just -- I know some that were not contacted. Even during the interview they said, you know, they were unable to reach and they named one of those names. He was on vacation. So I know some were not.
Q.     Okay.
A.     And everybody -- nobody -- I only talked with one person that said she was interviewed and that was my -- you have to give a name of one person that's just a personal reference and not a lawyer and I know she was interviewed.
Q.     When and how were you notified of the results?
A.     Do I have to answer that? I read it in this morning's paper at 6:00 o'clock this morning.
Q.     You weren't notified by mail?
A.     I had taken an annual -- I was notified by mail. As soon as I -- I found out that the results were out last night at dinner and I did not -- I just -- I knew it would be in this morning's paper and I -- I did not get it at my home. I called my office today and the letter was there in my office.
Q.     So the letter has been received at your office, though?
A.     Yes.
Q.     But you have not seen the letter yet?
A.     No, I have not.
Q.     Thank you.
THE CHAIRMAN:     Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q.     Upon concluding the hearing one of the attorneys or the participants ask you to go to lunch, how would you handle that?
A.     Oh, this is just me, I would say no. I just -- not -- I usually eat lunch with my staff or a friend and I'm sure that when I finish business in court, I wouldn't care to go on out and have lunch with the litigant in front of me. That's going to sound good on the record, isn't it? Uh, oh.
THE CHAIRMAN:     Any other questions? Yes, and let me ask you one and Ms. McNamee has a few questions. Something that has given me some cause for concern, let's say in the first round of judges for hypothetical purposes, we don't elect anybody that has a tax background and we arrive at next year's elections when we have the Tax Commission rolling in or the Tax Commission positions rolling into the Administrative Law Division and we don't elect anybody with a tax background, what are you going to do? Do you think you need somebody with a tax specialty to be able to help with the cases that involve the Tax Commission or do you think we can get by with just some good solid lawyers who understand good general legal principles?
A.     Mr. Chairman, I think that cross training would be important during this next year and this would be an opportunity to have the three judges that are elected this year to work with the Tax Commission over the next year, so these lawyers could become educated in that area of law before that happens in 1995 when the three more judges are added.
THE CHAIRMAN:     Some agency people have advocated -- I'm going to say agency people -- have advocated that we allocate one position to someone who has a specialty in tax. Have you got any personal feelings on that?
A.     As I understand this law, we would be rotating which areas we were in, so all judges would eventually want to be knowledgeable in all areas.
THE CHAIRMAN:     Do you think that's a problem for someone who doesn't have a specialty background, let's say, in DHEC or tax? Do you think it's a peculiar problem for a lawyer that they would not be able to overcome with a little experience?
A.     No, I don't think it would be a problem that a good lawyer would not be able to overcome and I don't know of anyone that has expertise in all areas that these judges would be required to administer, therefore anyone elected is going to be learning. This is a new project, so I don't think that would be a problem. A good lawyer can interpret law in new areas.
THE CHAIRMAN:     Thank you. Ms. McNamee.
RE-EXAMINATION BY MS. MCNAMEE:
Q.     Have you ever been held in contempt or sanctioned by a court for any reason?
A.     No.
Q.     And have you ever been the subject of a disciplinary action arising out of your public employment, that would be a verbal reprimand, written reprimand or transfer or demoted out of the department?
A.     No.
Q.     Thank you.
THE CHAIRMAN:     Any more questions? Thank you, Ms. Jones.
A.     Thank you. Is that all?
THE CHAIRMAN:     Yes.
A.     Thank you.
THE CHAIRMAN:     The next is Marvin Frank KittrellRoss.
MR. KITTRELL:     How are you?
THE CHAIRMAN:     How are you? Would you please raise your right hand?
MARVIN FRANK KITTRELL, having been duly sworn, testified as follows:
THE CHAIRMAN:     Have you had a chance to review the Personal Data Questionnaire summary?
MR. KITTRELL:     On several occasions.
THE CHAIRMAN:     Good. Okay. Is it correct?
MR. KITTRELL:     It's correct.
THE CHAIRMAN:     Are there any amendments that we need to make today?
MR. KITTRELL:     29 cent roll of stamps.
THE CHAIRMAN:     All right, so 29 cent roll of stamps --
MR. KITTRELL:     $29 --
THE CHAIRMAN:     -- in additional expenditures.
MR. KITTRELL:     $29 roll of stamps, yes, sir.
THE CHAIRMAN:     Any other changes that you would propose to make at this time?
MR. KITTRELL:     No, sir.
THE CHAIRMAN:     Do you have any objection to our making the summary a part of our record of your sworn testimony?
MR. KITTRELL:     No.
THE CHAIRMAN:     That being the case, it's so ordered.

1.     Marvin Frank Kittrell
Home Address:                             Business Address:
100 Granby Crossing - #606         S. C. Workers' Compensation
Cayce, SC 29033                         Commission
612 Marion Street, P. O. Box 1715
Columbia, SC 29202-1715

2.     He was born in Daytona Beach, Florida on October 3, 1941. He is presently 52 years old.

4.     He was previously divorced on December 30, 1977, from Rebecca Carruthers Kittrell by the Family Court, Newberry, South Carolina. Applicant, as moving party in the action, obtained the divorce on the ground of one year's separation. He was also divorced on January 6, 1992, from Julia Wagner Kittrell by the Family Court, Spartanburg, South Carolina. Applicant, as moving party in the action, obtained the divorce on the ground of one year's separation. He has two children:     Constance Erica, age 21 (senior at the University of South Carolina and employed as a page in the Senate during the 1993 Legislative Session); and Benjamin Christian, age 8.

5.     Military Service:     United States Navy; 1965-1968 (active duty); 1969-1971 (active reserve); attained the rank of Lieutenant; Honorable Discharge; Serial number 699748

6.     He attended Coker College in Hartsville, South Carolina, 1959-1960, transferred; Furman University in Greenville, South Carolina, 1960-1963, Bachelors Degree in History; the University of South Carolina School of Law, 1963-1964 (left to teach school one year and perform military service) and 1969-1971, J.D.; and the University of Florida in Gainesville, Florida, 1975-1976, Master of Law Degree in Taxation.

8.     Legal/Judicial education during the past five years:

1993 to date         15th Annual Educational Conference on Workers' Compensation; Myrtle Beach, South Carolina; October 27-30, 1993
Restructured State Government and the State of Administrative Law; CLE seminar at USC Law School; August 6, 1993
Administrative Law:     Workers' Compensation course; The National Judicial College; Reno, Nevada; March 19-21, 1993
1992                     14th Annual Educational Conference on Workers' Compensation; Hilton Head Island, South Carolina; October 18-21, 1992
13th Annual Workers' Compensation Medical Seminar; Charleston, South Carolina; June 12-14, 1992
1991                     13th Annual Educational Conference on Workers' Compensation; Myrtle Beach, South Carolina; October 27-30, 1991
12th Annual Workers' Compensation Medical Seminar; Myrtle Beach, South Carolina; April 12, 1991
24th Annual Joint Meeting, South Carolina Defense Trial Attorneys' Association and Claims Management Association of South Carolina; Asheville, North Carolina; July 18-20, 1991
1990                     12th Annual Educational Conference on Workers' Compensation; Hilton Head Island, South Carolina; October 14-17, 1990
Workers' Compensation in South Carolina; NBI; USC Law School; Columbia, South Carolina; May 4, 1990
Legal Ethics and Professional Responsibility, SC-BAR-CLE; Trident College; Charleston, South Carolina; March 16, 1990
1989                     Claims seminar; Chicago Title Insurance Company; Marriott Hotel; Columbia, South Carolina; May 17, 1989
Lender Liability in South Carolina; NBI; Radisson Hotel; Columbia, South Carolina; March 10, 1989
1988                     Basic Probate in South Carolina; NBI; Hyatt Hotel; Greenville, South Carolina; May 3, 1988
South Carolina Eminent Domain Procedure; Wampee Plantation; Pinopolis, South Carolina; South Carolina Public Service Authority Seminar with Roy Bates; April 18, 1988
Underwriting Seminar; Chicago Title Insurance Company; Marriott Hotel; Columbia, South Carolina; April 26, 1988
So You Want to be a Workers' Comp. Attorney; SC-BAR-CLE; USC Law School; Columbia, South Carolina; March 11, 1988
1987                     Practice Under the New South Carolina Uniform Probate Code; Winthrop College and York Bar Association; Winthrop College; Rock Hill, South Carolina; August 28, 1987
Practical Aspects of the New Probate Code, SC-BAR-CLE; USC Law School; Columbia, South Carolina; April 24, 1987
Current Developments in Estate Planning; SC-BAR-CLE; USC Law School; Columbia, South Carolina; March 13, 1987
1986                     Estate Planning Council Seminar; Columbia Estate Planning Council; Columbia, South Carolina; September 19, 1986
Current Issues in Family Court; SC-BAR-CLE; USC Law School; Columbia, South Carolina; April 25, 1986
Southern Federal Tax Institute; Atlanta, Georgia;
September 29-October 3, 1986
The New Probate Code, SC-BAR-CLE; USC Law School; Columbia, South Carolina; September 5, 1986
Estate Planning & Probate in South Carolina-Beyond the Basics; NBI; Best Western Motel; Columbia, South Carolina;
December 6, 1986

9.     Taught or Lectured:     He has spoken or participated in panel discussions at the following:
(a)         15th Annual Educational Conference on Workers' Compensation; Myrtle Beach, South Carolina; October 28, 1993
(b)         24th Annual Joint Meeting; South Carolina Defense Trial Attorneys' Association and Claims Management Association of South Carolina; Asheville, North Carolina; July 19, 1991
(c)         13th Annual Educational Conference on Workers' Compensation; Myrtle Beach, South Carolina; October 28, 1991

12.     Legal experience since graduation from law school:

April, 1971 - August, 1971: Adjudication Officer; Veterans Administration; Assembly Street; Columbia, South Carolina. In this job he reviewed requests from veterans and/or their dependents for various VA benefits, reviewed the various laws and regulations applicable thereto, and authorized such where allowable and appropriate.
August, 1971 - February, 1973:     During this period, he practiced with the law firm of Dennis and Dennis in Moncks Corner, South Carolina. His practice was general in nature with emphasis on real estate, family, tort and criminal law.
February, 1973 - August, 1975:     He served as a Trust Officer with the South Carolina National Bank during this period, first as a "new business development officer" in Columbia, South Carolina and later in the same position in Charleston, South Carolina.
August, 1975 - June, 1976:     He attended the University of Florida School of Law taxation program this year, obtaining his graduate degree in taxation.
June, 1976 - November, 1976:     The law firm of Stuckey and Wise in Charleston, South Carolina offered him a position upon graduation from tax school. He stayed with them for this short period before returning to the corporate trust department of South Carolina National Bank in Columbia, South Carolina.
November, 1976 - August, 1977:     As an officer in the corporate trust offices of South Carolina National Bank, he analyzed their new business development statewide, assisting the officers in the field.
August, 1977 - September 30, 1990:     The late Eugene C. Griffith and he practiced together in Newberry, South Carolina, the first few years in association with several attorneys in their Columbia, South Carolina office (2512 Devine Street), under the name of Griffith, Mays, Foster and Kittrell. Subsequently, they separated the offices into two firms and they practiced under the firm name of Griffith & Kittrell until his closure of the office on September 30, 1990 (Gene having passed suddenly on April 20, 1990, and Mr. Kittrell having taken a position as a Commissioner on the Workers' Compensation Commission). Gene Griffith primarily handled the appellate and federal practice, and he concentrated more in estate planning, real estate, family and business law.

13.     Rating in Martindale-Hubbell:     BV

14.     Frequency of appearances in court:
Federal - Social Security Administrative Law Judge (3-4 times annually [estimated])
State - Family Courts (40 times); Probate Court (4-5 times); Common Pleas (3 times)
Other - General Sessions (occasionally for a plea)

15.     Percentage of litigation:
Civil - 35%
Criminal - 5%
Domestic - 60%

16.     Percentage of cases in trial courts:
Jury - 2-3%
Non-jury - remainder

sole

17.     Five (5) of the most significant litigated matters in either trial or appellate court:
(a)         Charles Kyzer v. Lisa Turner Kyzer, 89-DR-36-435, Newberry Family Court. This case involved an action for divorce, alimony, equitable division, child support and child custody. The issues were tried two full days on May 8, 1990 and June 13, 1990. Primary issues litigated were divorce on the ground of adultery against the Defendant and child custody from Judge Frank Rogers.
(b)         Ronnie Amick v. Ann Amick, 90-DR-36-57, Newberry County, Family Court. This domestic case involved requests for divorce, child custody and support. It was heard before The Honorable John Rucker in Newberry County on August 24, 1990. The primary issue for consideration for adjudication was custody of two little children. Although the guardian ad litem (local attorney) recommended custody with the mother, the trial judge believed the contentions and argument of the plaintiff/father, granting him full custody of the children.
(c)         Martha Sease, Individually and as Trustee of the Estate of J. Ellerbee Sease, deceased, David Sease and Emmie Q. Sease v. Phillip T. Wilson, Nan O. Cain, B. Allan Oxner, M. Allan Oxner and Olin B. Cannon, Jr., 86-CP-36-234, Newberry County Court of Common Pleas. This non-jury case, tried before The Honorable James E. Moore on January 29, 1988, involved the usage of a road and whether it was a public or private road. His clients contended it was a public or neighborhood road. The defendants contended it was a private road and that plaintiffs had no right to use it without their consent. Plaintiffs had leased their properties to hunters and alleged lost income and sought damages, the hunters being denied the use of the road by the defendants. The court found the road not to be a public road, but continued usage to the plaintiffs, their heirs and assigns, for personal use and for logging purposes. In that plaintiffs testified to no loss of income, no damages were allowed.
(d)         Yahya Abassi Eleaderani v. William H. White, Mary Frances R. White, Robert E. Summer, David B. Summer, Jr., Kenneth W. Riebe and Summer Real Estate, 79-CP-36-201, Newberry County Court of Common Pleas. Plaintiff entered into a contract with the defendants, William H. White and Mary Frances White, to purchase their restaurant. The other defendants, as principals of Summer Real Estate, handled the real estate deal and were his clients. As part of the contract, the sellers were to install a new heating and air conditioning system and drop ceiling by closing. When such was not completed at closing date, plaintiff sued for breach of contract, non-performance of contract, return of earnest money, damages and rescission of contract, alleging "time of the essence." Sellers and his client counterclaimed, alleging specific performance, that the sellers had substantially complied with the terms of the contract, and further that the purchaser had interfered with the completion of the improvements. It was declared a mistrial; however, Judge Francis Nicholson listened to post-trial motions and granted a directed verdict for the plaintiff, allowed rescission of the contract and granted $10,000.00 damages to the plaintiff.
(d)         Sandra C. Tipton, Petitioner v. Sherry Harmon, Respondent, 85ES18-00056, Probate Court for Dorchester County. This non-jury case was brought by the petitioner, claiming to be the common-law wife of the deceased. The respondent, answered, both individually and as a beneficiary/daughter of the deceased and as the Personal Representative of her father's estate. In this case which took two days to try, Gene Dukes, co-counsel and he, as attorneys for the estate were able to show to the court's satisfaction there was no marriage, no "holding out as husband and wife" by the deceased, and used the Dead Man's Statute to prevent the petitioner from testifying as to any conversations and relationship she had with the deceased in that she was a party in interest and stood to gain from such.

18.     Five (5) civil appeals:

None

20.     Judicial Office:
From November 16, 1990, to date he has served as a Commissioner with the South Carolina Workers' Compensation Commission, having statewide jurisdiction. This is a quasi-judicial position, appointed by the Governor, by and with the advice and consent of the Senate. On the average he hears and issues decisions on 50 to 75 cases monthly, each involving different factual and interesting legal issues.

Jurisdiction is limited to injuries occurring on the job and benefits allocable thereto under our decisional and statutory law.

Also, he serves as an Informal Hearing Officer on 30 to 70 cases monthly (whenever his schedule will allow), negotiating settlement between injured workers and insurance carriers. One week a month he sits with his other six fellow commissioners at the commission office in Columbia as an en banc appellate panel, hearing appeals from the single commissioner level. They handle approximately 50 to 70 monthly for which orders must be issued, also.

21     Five (5) Significant Orders or Opinions:
(a)         David Wilson, Jr., Employee/Claimant v. Georgetown County, Employee, and State Workers' Compensation Fund, Carrier, defendants, W.C.C. File #9037551, decided November 5, 1991. The employee, when called by Georgetown County for jury duty, refused to serve due to religious convictions and was allowed by the circuit court as an alternative to perform work as directed by the clerk of court. While cleaning windows outside the courthouse on a ladder, he fell injuring his back. claimant alleged he was an employee at the time, performing services for the defendant, being under the control of the clerk. He was found to be a dual employee of Georgetown County and Georgetown Steel, his other employee. The case is on appeal to the S. C. Supreme Court.
(b)         Charles L. Pulliam, Employee/Claimant v. Carter and Crawley, Inc., Employer, and Pacific Indemnity Company, Insurer, Defendants, W.C.C. File #9100490, decided January 10, 1992. Claimant was hired in South Carolina and sent by his employer to perform labor at a jobsite in Mississippi. Although he had finished his regular work on a Friday, the next morning claimant drove from his motel, stopping at a restaurant for breakfast, toward the worksite. While on the way he wrecked his auto while avoiding a deer that ran in the roadway. His purpose for travelling to the jobsite was to assist the employer in loading equipment so it could be transported back to South Carolina. Such activity, argued the claimant, invoked the "special errand" doctrine to establish his claim that he was acting within the course and scope of his employment when the accident occurred. The case was found compensable.
(c)         Richard Lee Cato, Employee/Claimant v. T. W. Owens & Sons Trucking, Inc., Liberty Mutual Insurance Company, Carrier, defendants, W.C.C. File #9307697, decided August 19, 1993. Claimant, a trucker, lived in Greenville, S.C.; however, corporate headquarters of the defendant/employer was in Georgia. The issue was whether South Carolina had jurisdiction, claimant alleging it does under the provisions of South Carolina Code Section 42-15-10, such section permitting an employee to bring a claim in (1) the state where hired, (2) the state where injured, or (3) the state where his employment is located. Since the claimant was injured in Georgia, testimony revolved around the other two criteria. It was found that his "base of operation" or place of employment was Greenville, S.C.
(d)         Thurmond Glover, employee v. Suitt Construction Co., employer and The Aetna Casualty & Surety Co., Carrier/Defendants, W.C.C. #8756114, decided January 10, 1993. This case involved brain damage suffered by the claimant in a closed head injury from a fall off a 12-foot ladder. Claimant was awarded lifetime benefits under Section 42-9-10 of the 1976 Code of Laws, as amended, by Commissioner Thomas Marchant. Claimant sought before him a lump sum payment of his lifetime award and lump sum award of attorneys fees based on his life expectancy computed pursuant to the mortality Tables contained in S.C. Code Ann. Section 19-1-150 to establish present day value. Defendants alleged lump sum awards were not allowed in brain damage cases pursuant to Section 42-9-10. The request for partial lump sum attorneys fees was granted. The case is on appeal to the S.C. Supreme Court.
(e)         James C. McCreery, Employee/Claimant v. Covenant Presbyterian Church, Employer, and Auto-Owners Insurance Co., Carrier/Defendants, W.C.C. #8560936, decided March 6, 1992. The issues in this case were tried before him on two separate days in Georgetown County. It had previously been to the S.C. Supreme Court where it was determined that a Form 15 filed with the Commission is a perfunctory award/order, the parties being bound by all provision therein (excepting average weekly wage amount). The issues before him were whether the claimant had reached maximum medical healing, was entitled to any permanent disability award together with the issues of penalties, fines and interest. An order of Judge Hubert Long from Lexington, S.C. had to be interpreted by him in order to make his decision. Claimant was found to have permanent disability to both his lower extremities which supported an award for loss of earning capacity under S.C. Code Ann. Section 42-9-20. Extensive fines and penalties were also assessed against the defendants.

23.     Employment As a Judge Other Than Elected Judicial Office:
See Question #12 above

25.     Occupation, business or profession other than the practice of law:
For several years during the 1980's, he built several single family residences in the corporate names of ERBEN, Inc. and Loblolly, Inc., all under his Residential Home Builder's license number 005556.

32.     Sued:
Six cases (82-CP-36-008; 84-CP-76-140; 85-CP-36-208; 86-CP-36-218; 87-CP-36-201; and 89-CP-36-214), filed by the first mortgage holder in foreclosure actions against the owner of the real property, listed Marvin F. Kittrell as a party defendant in that he held a secured second mortgage on the same real property.

He has never been sued professionally (as an attorney), but has been listed as a co-defendant in his fiduciary status as a Guardian ad Litem (79-CP-76-1180), escrow agent (85-CP-36-80) and trustee (87-CP-36-36). All three of the latter were friendly actions as to him.

40.     Expenditures Relating to Candidacy:
$150.00 for personal stationery, calling cards and postage
$29.00 for postage

46.     Civic, charitable, educational, social and fraternal organizations:
Rotary Club, Newberry, South Carolina (President, 1979-1980); Southern Association of Workers Compensation Administrators

48.     Five (5) letters of recommendation:
(a)         E. Monte Bowers, Executive Vice-President
Midlands National Bank
P. O. Box 335, Newberry, SC 29108
364-7300
(b)         J. Louis Grant, CPA
Robinson Grant & Co., P.A.
P. O. Drawer 6148, Hilton Head Island, SC 29938-6148
785-8476
(c)         Terry L. Kunkle, D.M.D.
Kunkle & Myers
119 Library Street, Moncks Corner, SC 29461
761-8065
(d)         H. Mills Gallivan, Esquire
Gibbes & Clarkson, P.A.
P. O. Box 10589, Greenville, SC 29603
271-9580
(e)         Richard J. Foster, Esquire
Foster & Sullivan
P. O. Box 2146, Greenville, SC 29602
232-5662

The Board of Commissioners on Grievances and Discipline reports that no formal complaints have ever been filed against you. The records of the applicable law enforcement agencies, that being the Lexington County Sheriff's Office, the Cayce City Police Department, SLED and FBI records, they're all negative. Judgement Rolls of Lexington County are negative. Federal Court records are negative. No complaints were received. No witnesses are present to testify against you.

At this time, I'll give you the opportunity that we've given the other candidates to make a short opening statement. If you chose not to do so, then we'll lead into some questioning by Mr. Elliott.
MR. KITTRELL:     I really don't have an opening statement. I think my background is fairly clear based upon the information that I furnished to you generally.
THE CHAIRMAN:     Okay. Mr. Elliott.
MR. KITTRELL - EXAMINATION BY MR. ELLIOTT:
Q.     Thank you. Why are you interested in becoming a chief judge of the ALJ division? I believe you've been -- had your position on the Workers' Compensation Commission for a little over three years. You still have three years left in that term. Why do you want to make the change?
A.     Well, I have an extensive background in trial experience and different areas of the law. I have a tax degree which I am not utilizing now which I did utilize some in my law practice and this position has just come -- has just become available. It has not been available until this legislation was passed last year, so I think that I do have those abilities in my background, educational experience and work history, to try to take -- to try different kinds of cases and that's my primary purpose at this time what I'd like to do.
Q.     What is your commitment to this particular job?
A.     Full time.
Q.     Well, I mean would you --
A.     The job -- the new job or --
Q.     -- To finish out your term --
A.     The job --
Q.     -- or to finish the ALJ?
A.     -- the job as a commissioner now.
Q.     The Chief Justice position -- Chief Judge position, would you fill out your term -- is your commitment to filling out your term?
A.     As a commissioner?
Q.     No, sir. As a Chief Judge of the ALJ Division.
A.     Yes, I would want to serve the entire five years. Yes.
Q.     What aspects of your experience at the Workers' Compensation Commission are going to be valuable to you in this job that you've applied for, the ALJ position, and what ways are they going to be valuable to you?
A.     Well, I've been -- many people call us administrative law judges over there, we reply to a commissioner. Technically, we try cases for three out of four weeks each month and we sit as the trier of facts and apply the law to those facts that are presented to us. I think that is a strong credential that I have to present to all of you and also to the Legislature in consideration of my candidacy.

Also the third week -- the fourth week of each month, we sit as an appellate panel and we then review briefs that are filed by attorneys on both sides on cases that have been appealed from a single commissioner. And we sit and we listen to ten minute arguments from each attorney. We then have to make a decision whether there is substantial evidence on the record to support the decision of a single commissioner or whether it should be reversed, amended, remanded or whatever. I think that offers -- I think that is an additional credential that I have in my background.

Also as one of the seven commissioners, we have the sole responsibility of running a state agency and that's an additional hat I wear over there. We have 80 plus employees over there and are responsible for that budget over there running that agency, so those are what I think I have to offer from that standpoint.

With regard to managerial skills, if I could speak to that, if you would like to hear that further.
Q.     Please.
A.     When I was in the Navy, the first two years in the Navy, I was a flag lieutenant to an admiral. I was responsible for running the Flag Division which consisted of 125 enlisted men. That was my responsibility for almost a year and a half. I had 12 chiefs and the rest were enlisted men under E-6 and below.

I did that and then my last year in the military, I ran with three other officers an operation in Vietnam, so I think I have a vast experience of running -- of handling different people and it would be from a managerial -- as a manager.
Q.     You mentioned your tax degree. What other -- what do you know about the substantive and procedural law, administrative law in other areas other than Workers' Compensation Commission and perhaps tax?
A.     My experience in administrative law was probably one or two cases before the ABC Commission, numerous cases in the Social Security arena, several cases before the Residential Homebuilders Commission. I don't have any experience in Environmental law over there, but I would think as any good circuit judge will tell you and I know this is not a Circuit Court, but if we're going to have to hear cases in all areas of law, we're going to have to do the same thing they do.

We're going to have to sit and listen to the facts, research the law and maybe have briefs submitted to us with regard to the respective positions and then evaluate that and learn as we go along just as all judges do. I don't have expertise in every area of the law, though. I will admit that.
Q.     Do you practice law now?
A.     No. As a Commissioner, it's a full time job.
Q.     Full time, Worker's Compensation Commission. What do you think your first day will look like come March 1st? What will you be doing that first day, that first week?
A.     Well, there is not a place for us to meet from what I understand, so I would imagine the first day would be a matter of meetings, meeting with people with different agencies, larger agencies perhaps for such as DHEC, Labor, Tax -- Department of Tax and Revenue, talking with all these people and trying to get some ideas as to what the case load is going to be and try to assimilate -- trying to work with the three judges, trying to work with the staffs over here to put together this legislation and also even before that, talking with these people and trying to get this thing up and running.

It's going to take a lot of work and it's not something -- I don't think that the three Administrative Law judges are going to be able to do it by themselves. I think there is still going to have to be some input and some work with the Legislature itself.

There is going to have to be some additional funding to set up some of the positions that are going to be required to have this court run in an efficient manner.
Q.     Well, in that area have you given any thought to what the budget would be --
A.     No, sir.
Q.     -- when you take the office -- all right.
A.     I know that there is going to have -- unless we hire court reporters, we're going to have -- from court reporting agencies or companies around town, we're going to have to hire some court reporters and we know they're 24 to $30,000 a year salaries to start off with there, so we're looking at -- you know, we're probably looking at three of those to start off with.

I think there's a Clerk of Court that's mandated by the legislation. I'm not sure how quick that's going to be, you know, something that -- someone can come on board. It'd have to be evaluated carefully.
Q.     How would you get a grasp on what you needed to start as far as a budget? We're going -- when you take office as a chief judge of the ALJ Division, the budget process is well underway for 94-95, something needs to be done fairly quickly.
A.     I would hope to be able to meet with Court Administration and get some guidelines, some help and assistance from them and also of people on the staff of the Supreme Court and also the Court of Appeals and also talk with administrative courts in other states that have those.
Q.     As the chief judge, what steps would you take to make sure the case load is moving?
A.     Hopefully, the Clerk of Court will do that, but until that's set up, that's just an evaluation that one's going to have to do on a weekly basis, see what the volume of the cases are, see what the status of them are.

I would think that you can't move one case ahead of another case. You know, I think you're going to have to still try your cases based upon the dates in which they were filed, you know, with the court.
Q.     All right. As Workers' Compensation Commissioner, you function in a quasi-judicial capacity?
A.     Correct.
Q.     Is there any kind of code of conduct that you adhere to in that capacity?
A.     Well, we are subject to the State Ethics Commission and, of course, they have advisory opinions from time to time over there that we were made -- that we're acquainted with by our executive director, but I think the Canons of Ethics applicable to members of the judiciary should be applicable to us also even though we're not a part of the judiciary branch, I think we think we should still abide by those Canons.
Q.     I understand that you're now engaged and have been dating Ms. Kathryn Williams?
A.     Yes, sir.
Q.     Congratulations and best wishes to you. What do you do about her cases when they come before you at the Workers' Compensation Commission?
A.     Ms. Will--- I have been recused with regard to any of her cases for in excess of two years now. Whenever my relationship with her developed to the extent that it was different from any other attorney who appeared before me, I made that known to Walter Hundley, chairman of our commission, all of my fellow commissioners, to the members of the Workers' Compensation Bar and to the industry and all the staff at the Commission.

That's been -- and I have -- even when I was hearing her cases, the most I heard was two or three cases and several appeals, but I have distanced myself completely from her and her practice for over two years.
Q.     I see. Are there ever any other discussions about her even -- no matter how --
A.     No.
Q.     -- innocuous with the other commissioners?
A.     No, sir.
Q.     On your statement of economic interest, you report a very minuscule interest in the Robert Mills' building, which is -- I believe is leased by the Budget and Control Board and there is a sublease to DHEC as --
A.     That is formerly -- and Bob Mays, Robert Foster, Bill Booth and several other people here in Columbia have a law office up on Devine Street. Gene Griffith and I originally practiced law with them from '79 through the end of the '89, I believe, and Bob Mays would put together partnership deals and from time to time would ask Gene if I -- Gene if he wanted a small piece of it.

I think my interest is less than one tenth of one percent. I really don't know very much about it, but in that I -- you know, it's something insignificant and minute interest. I felt I needed to put it down.
Q.     Would it have any impact on you in hearing cases from the Department of Health and Environmental Control?
A.     I can't see how it would have any impact at all.
Q.     Do you feel you would need to recuse yourself from those cases?
A.     No, sir.
Q.     All right.
A.     I don't think I receive any income from it. I'm -- hopefully, some day I may receive some interest, but maybe not. Maybe partnership -- these days.
Q.     On your Personal Data Questionnaire, you reported that you had been a codefendant in your status as a guardian ad litem, an escrow agent and trustee. If you would, briefly explain those actions, the allegations -- if there are any allegations against you for fraud, deceit or violation of your fiduciary duty?
A.     No. No. It would have been -- it would be when I would be appointed guardian ad litem maybe in a Family Court action to represent some minor child or trustee in a court and probate court or something like that. These are just normal fiduciary positions that attorneys take in their law practice at the request of some fellow attorney. As a commissioner, I named lawyers as guardian ad litem to represent minor children all the time. That's what they involve.
Q.     All right, sir. But what would be the nature of the allegations against you? I mean, you might be named as a guardian --
A.     There wasn't any -- well, I think there may have been a foreclosure action or there may have been some -- I really don't know the particulars of those cases. I went back and looked at them, but because they were all situations where there was never any action brought against me in a personal -- you know, in a personal nature, and I read all those actions.

I went to Newberry and looked at all those court documents and pulled all the files themselves, but there was never anything to impute my character or had anything to do with credibility whatsoever. I'm not -- I can't recall the nature of those cases, but --
Q.     Are any violation of your fiduciary duty or --
A.     No, sir. No violation of any duty I had.
Q.     You reported that you serve as an informal hearing officer on about 30 to 70 cases a month, negotiating settlement between injured workers and insurance carriers. Tell me a little bit about that. I mean is there a potential for conflict there for your position as a Workers' Compensation Commissioner?
A.     No. That's the initial stage where we try to get both sides together and see if we can help them negotiate out a settlement.
Q.     Is that --
A.     And then if they can't, then we schedule it for a hearing before --
Q.     That is part of your employment --
A.     Yes.
Q.     -- as a Workers' Compensation Commissioner?
A.     That's part of my duty as a commissioner.
Q.     As a Workers' Compensation Commissioner, legislators appear before you from time to time, have you continued to hear their cases while you're seeking the position of ALJ?
A.     I'm not sure I've heard any. I don't think I've heard any. I don't think I've heard any.
Q.     Well, after your --
A.     That I recall.
Q.     Well, after this screening and you're determined to be either qualified or unqualified, what will be your practice? How will you handle the situation when a legislator comes before you?
A.     Well, I would think that I would have to let him try the case unless -- because that's the normal practice now, they practice now in Court of Common Pleas and they practice before State agencies now. And until that practice changed, I would think that they would have to be given that right to come try the case.
Q.     How do you avoid any appearance of pressure on the legislator or any appearance of impropriety by you hearing a case of someone that you may be soliciting or seeking their vote?
A.     Oh, you're talking about this process now or if I were elected judge and then subsequently --
Q.     I'm sorry. As a Workers' Compensation Commissioner in the interim between the screening and the time of the election.
A.     Well, I haven't heard any. I think if someone were to come before me, then I think I might give some consideration to that. Maybe have it scheduled before another commissioner.
Q.     On your Personal Data Questionnaire -- excuse me, your statement --
A.     I don't know but of several who really do very much workers' compensation practice, but I've been primarily in the Upstate over the last year.
Q.     On your Statement of Economic Interest, you mentioned a golfing round at Kiawah Island.
A.     Yes.
Q.     That was apparently provided to you by the Turner, Padget, Graham and Laney law firm who apparently appeared before the Workers' Compensation Commission on occasions?
A.     Yes.
Q.     And you did report that you paid them back for that trip. Is it reported in that sense that they -- because of their relationship being that they appear before the Workers' Compensation Commission?
A.     We were down at a medical seminar in Charleston. At the time, Workers' Compensation Medical Seminar. Bill Clyburn and I went out to play with lawyers from that firm and numerous other firms. Just a lot of people went out to play at Kiawah and I thought I had -- sometimes it's difficult when you're playing with lawyers to fight them over who is going to pay for the bill and what happened was they just wrote a check for the whole thing and I thought I had reimbursed them and then when I filled out my Ethics thing out the following year, I recognized I hadn't so -- and Bill Clyburn, my fellow commissioner hadn't either. We both reimbursed the firm at that time. It was oversight on my part.
Q.     Well, one thing I would mention, a lot of people would take issue with you whether lawyers would fight to pick up the tab or not, but nevertheless --
A.     Well, I amend that part.
Q.     Have there been other golfing rounds similar to this one that you've reported in your Statement of Economic Interest?
A.     No, there haven't been any others. I play with my son who is eight years of age. We play at Furman about every weekend when we can, but that's the extent of my golfing right now.
Q.     But as a --
SENATOR MOORE:     Does he lobby you, too?
A.     Let me tell you, he is quite a little golfer. He really is.
Q.     As an Administrative Law judge, what would be your practice in this situation when you have some attorneys who are going to be appearing before you this week, next week or sometime soon and they offer to take you out for a round of golf?
A.     I'm not going to let them do it.
Q.     Have you ever been held in contempt or sanctioned by a court for any reason?
A.     No, sir.
Q.     Have you directly -- sought directly or indirectly the pledge of a legislator for your --
A.     No, sir.
Q.     Are you aware of any solicitation on your behalf --
A.     No, sir.
Q.     -- by others? Okay. And our records show that you've filed your expenditure report with the Committee, but not with the Senate and House Ethics Committees, so you might want to look into that because the law does require that.
A.     With the Senate Ethics Committee --
Q.     The Senate and House Ethics Committee.
A.     Thank you very much for telling me that.
Q.     That's all the questions I have.
THE CHAIRMAN:     Questions from the Members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q.     Have you sought the endorsement of any group of members or caucus of the General Assembly?
A.     I don't know any group of members or any caucus, Senator, so I have not done so, no, sir.
Q.     Have you participated in a formalized interview process other than the Bar Screening Committee or this committee?
A.     No, sir.
Q.     Have you directly or indirectly had any meeting or conversations pertaining to your candidacy with members of the Bar Screening Committee, Bar employees or lobbyists representing the Bar either before you were screened or after you were screened, but prior to the Bar's screening report being made public?
A.     No, sir.
Q.     Thank you.
THE CHAIRMAN:     Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q.     Commissioner, do you recall the date you were first contacted by the representative of the Bar?
A.     I well do.
Q.     Okay.
A.     I was sitting in Moncks Corner and my office -- I had just finished trying my last case and I called my office to check and see if I had any cases that settled for Wednesday morning in Moncks Corner. He said, "Yes, all of your cases are settled and marked off. You're to be here at 10:00 o'clock in the morning," so that's when I got in my car.
Q.     So what date was that, do you remember?
A.     That would have been last Tuesday afternoon about 4:00 o'clock.
Q.     What day is that?
MS. SATTERWHITE:     January 4th.
Q.     January 4th. And what date did the interview take place?
A.     It was last Wednesday morning at 10:00 o'clock at the Bar office here in Columbia. The three attorneys were Colden Battey of Beaufort, Rock Wise of Greenwood and a lady from Orangeburg, I think her name was Gwendolyn Fuller.
Q.     Where does she reside, do you know?
A.     Sir?
Q.     What part of the state does she reside?
A.     I think she's from Orangeburg.
Q.     Orangeburg. I see.
A.     I did know Colden Battey from -- he appeared before me on one occasion some two years ago in Beaufort in one workers' comp. case. I had never met the other two before.
Q.     Did you furnish a list of references?
A.     I furnished five names, yes, sir.
Q.     Do you know if any of them were contacted?
A.     I think three or four were, yes, sir.
Q.     And when and how were you notified of the results?
A.     The letter was mailed to my apartment here in Columbia. I live -- well, I imagine it's Cayce. I live on the river down -- I live in an apartment complex and I live right across the river in Cayce.

It was delivered Monday afternoon around 3:00 or 4:00 o'clock and that's when I found out, sir.
Q.     Do you recall what date -- what the date of the letter was?
A.     I think I have it over here in the --
Q.     Would you look?
A.     Would you like me to look?
Q.     I would.
A.     I think I have it over here. I don't know why I brought it, but I did. I'm sorry. I didn't bring it with me.
Q.     I have no more questions, Mr. Chairman.
THE CHAIRMAN:     Thank you, Senator. Any other questions? Commissioner, let me ask you about if someone who was acting in a judicial -- quasi-judicial capacity right now, what safeguards have you taken to ensure that -- I'm sure that many of the comp. lawyers that appear in front of you are aware of your candidacy. What safeguards have you taken to ensure that they don't actively evolve too early in efforts to try to solicit support for your election?
A.     What efforts have I taken what now?
THE CHAIRMAN:     Well, probably a better way to ask it is this, have you talked to any comp. lawyers -- any workers' comp. lawyers who appear in front of you about helping you at some point time to be elected to this position?
A.     I've apprised many of them now I'm running and a lot of the reason is because we have to get orders prepared and get things, you know, taken care of.

I would imagine in idle conversation, I have mentioned it to many of them I'm running because a lot of them are old friends of mine on both sides of the bar. I haven't utilized that relationship in any way nor asked them to help or assist me in my -- you know, in my candidacy, though.
THE CHAIRMAN:     Thank you.
A.     If I could ask for one other thing with regard to the way I do my orders that might be of interest to you, there was an Attorney General opinion written by Cam Lewis of some four or five years ago. He's an old friend of mine and when I first went on the Commission, Cam and I were talking about ex parte and so forth in regard to orders and I've made it a practice to send a letter if I ask an attorney to draw up a proposed order for me.

I outline in the letter or in an attachment the facts as I see them in the case, the -- my rulings and my order, all of that, and any law, either case law or otherwise that I want to incorporate in the order. I send a copy of that letter to opposing counsel and I ask the lawyer if he has any problems with drawing the order, please let me know.

You know, I don't require anyone to draw an order for me. Because of case load, we don't have time to draw all of our orders over there and then when it comes in, a copy is furnished to opposing counsel and he has a minimum of ten days to get in a written objection to me. And, of course, under our -- we have Court of Appeals cases in the state which allows any judge or commissioner to change their mind on any order anyhow until they affix their signature to it, so I still reserve that right.

You know, I scratch through a good bit of the orders and change them around a good bit, but that's my practice in the way that the orders are prepared.
THE CHAIRMAN:     Thank you, Commissioner. Any further questions? Thank you very much.
A.     Thank you all very much.
THE CHAIRMAN:     Our next candidate is Nora B. Lewis. Ms. Lewis, if you'd come forward, please.
NORA B. LEWIS, having been duly sworn, testified as follows:.
THE CHAIRMAN:     Mrs. Lewis, have you had a chance to review the Personal Data Questionnaire Summary?
MS. LEWIS:     I have.
THE CHAIRMAN:     Are the facts correct in that Summary?
MS. LEWIS:     Yes, sir.
THE CHAIRMAN:     Are there any additions or clarifications you'd like to make?
MS. LEWIS:     No, sir, except experience as far as ALJ is concerned, I have appeared before the Residential Homebuilders Commission. I had -- I hadn't really thought about that and the Manufacturers Housing Board and I don't know that I put -- I think I did, though, that I appear quite frequently at federal -- in Social Security Disability hearings before the Federal ALJ.
THE CHAIRMAN:     Are there any other changes that you would note at this time?
MS. LEWIS:     No, sir.
THE CHAIRMAN:     If not, is there any objection to making the summary a part of the record of your sworn testimony?
MS. LEWIS:     No, sir.
THE CHAIRMAN:     Thank you. It will be done at this point.

1.     Nora B. Lewis
Home Address:                     Business Address:
198 Lewis Drive                 311 West Main Street
Jonesville, SC 29353         P. O. Box 236
Union, SC 29379

2.     She was born in Columbia, South Carolina on August 5, 1935. She is presently 58 years old.

4.     She was previously divorced in March of 1977; William S. Bailes, Sr. (moving party); Fairfax County of Domestic Relations, Fairfax, Virginia; one year's continuous separation. She was married to Harold Lamar Lewis on May 7, 1977. She has three children:     William J. Bailes, Jr., age 34 (Environmental Technician, Union Camp); Thomas E. Bailes; age 32 (realtor); and Robert Owen Bailes, age 26 (disabled).

5.     Military Service:     N/A

6.     She attended Winthrop College, 1953-1956 and Summer of 1958, B.A. in 1959; and William & Mary-Marshall Wythe School of Law, 1972-1975, J.D. in 1975. Between 1959 and 1972, she took various math and education courses at Illinois Institute of Technology, University of Florida and University of Virginia primarily for the purpose of maintaining teacher's certificate.

8.     Legal/Judicial education during the past five years:
Average of 12-15 hours of approved courses covering a variety of topics, family law, criminal law and ethics

9.     Taught or Lectured:     Taught Business Law at USC-Union, 1983

10.     Published Books and Articles:     Layman's Guide to Virginia Law - Editor, 1976. Also author of Chapter 4, Real Estate Transfers, in same

12.     Legal experience since graduation from law school:

1976-1977         General practice as Associate with Neely, Otter, Belk and Beerman in Anderson, South Carolina. Specialized in tax law, general practice
1977-1980         Solo Practice in Union, South Carolina. General practice.
1980-1988         Public Defender (part-time) and general practice.
1988-present     General solo practice - no bankruptcy.

13.     Rating in Martindale-Hubbell:     To her knowledge, she is not rated in Martindale-Hubbell, although she is listed. She has never subscribed to Martindale-Hubbell.

14.     Frequency of appearances in court:
Federal - 0
State - Average of 3 per week
Other - Social Security Disability Hearings, 10 to 12 per year

15.     Percentage of litigation:
Civil - 20%
Criminal - 15%
Domestic - 65%

16.     Percentage of cases in trial courts:
Jury - 10%
Non-jury - 90%

Sole Counsel

17.     Five (5) of the most significant litigated matters in either trial or appellate court:
(a)         Wortman v. City of Spartanburg (425 S.E.2d 18). This case was significant in that it arose out of the arrest of Wortman for possession of out-of-state lottery tickets. It raised a number of questions related to immunity of the city and the legality of possession of out-of-state lottery tickets. The matter of these lottery tickets has been the subject of much controversy in the past few years.
(b)         Plante v. State (92-CP-44-191). This post-conviction relief action resulted from a guilty plea entered by Plante during the time that the case was on appeal to the Supreme Court. Plante contended that the Circuit Court did not have jurisdiction to take the plea. PCR Judge agreed. State appealed.
(c)         State v. Curtis L. Harris (unreported). As Public Defender, she was lead Counsel for the Defendant in this capital murder case. Although Harris was convicted, they were successful in obtaining a life sentence which is, in and of itself, of utmost significance.
(d)         State v. James Wilbanks (unreported). This capital murder case was one of the most publicized and gruesome rape-murder cases ever heard in Union County. Wilbanks was convicted but given a life sentence. As co-counsel for Wilbanks, she thinks it is significant that his life was spared.
(e)         Woodsby v. Kelly, 93-DR-44-249. Child custody case wherein cases were brought simultaneously in Ohio and South Carolina. Abuse was alleged, making the case more complicated, as the children are in Ohio and the alleged abusive father is in South Carolina. So far as she has been successful in her contention on behalf of Plaintiffs that exclusive jurisdiction lies in South Carolina.

18.     Five (5) civil appeals:
(a)         Marvin Gary Wortman v. City of Spartanburg; Appeal from Spartanburg County Court of Common Pleas; December 7, 1992. ___ S.C. ___, 425 S.E.2d 18.
(b)         Jeffrey Scott Plante v. State of South Carolina, Writ of Certiorari from Post Conviction Relief filed in Union County, heard in York County Court of Common Pleas by the Honorable John C. Hayes, III, appealed by State to Supreme Court. Respondent's Reply filed September 22, 1993. Not yet decided.
As a point of information, she rarely does appeals because the clients that she represents are usually not able to afford appeals.

22.     Public Office:     Public Defender for Union County; September, 1980 - January, 1988; appointed

23.     Employment As a Judge Other Than Elected Judicial Office:
ABC Hearing Officer

24.     Unsuccessful Candidate:
1988 - Ran for Solicitor of 16th Judicial Circuit of South Carolina

25.     Occupation, business or profession other than the practice of law:
1959-1960     Taught High School Math at Boiling Springs High School - Spartanburg County, South Carolina
1962-1963     Taught High School Math in Shenandoah County, Virginia
1963-1964     Taught High School Math in Shenandoah County, Virginia
1965-1966     Taught Junior High School Math in Pensacola, Florida
1969-1972     Taught Junior High School Math in Norfolk, Virginia

26.     Officer or Director:     She has run her own solo practice of law since 1977. She is a partner in a farming operation owned by her husband and herself. They raise sheep.

45.     Bar Associations and Professional Organizations:
Union County Bar Association (President) November, 1991 to present

46.     Civic, charitable, educational, social and fraternal organizations:
Civitan Club, Board of Directors; Union Services, Board of Directors; Union Services Parent/Relative Support Group, President 1992 to date; Mt. Tabor Presbyterian Church, Elder and Clerk of Sessions, 1991 to date

47.     Reared in the home of college graduate parents who were active in community affairs, she first married a career naval aviator and, in order to assist in his career and meet the requirements of a naval officer's wife, learned protocol and social niceties which has stood her in good stead. Teaching high school math both before her children were born and after they reached school age, taught her patience, the value of consistency and the importance of maintaining a sense of humor. The fact that she successfully completed law school at William and Mary when her children were 8, 14 and 16 years of age (the youngest one being developmentally delayed), was the first female president of the Student Bar Association, passed both the Virginia and South Carolina bar exams the same year that she graduated from law school and has had a successful practice of law as the only female lawyer in a small southern town, should indicate her organizational abilities as well as her ability to overcome obstacles, her determination and her ability to get along with people. Her major fault is that she takes on cases because of the issues or the justice of the cause rather than whether they are financially rewarding. Her second marriage is to a farmer, and she has numerous duties and responsibilities on the farm which she handles without letting them interfere with her law practice. Since July 1, 1993, acting as a Hearing Officer in the ABC cases has convinced her that she would be a good Administrative Law Judge and would enjoy it.

48.     Five (5) letters of recommendation:
(a)         O. Dennis Campbell, Vice President
Arthur State Bank
P. O. Drawer 769, Union, SC 29379
427-1213
(b)         Honorable June Miller, Clerk of Court
Union County
P. O. Drawer 6, Union, SC 29379
429-1630
(c)         Robert E. Guess, Esquire
P. O. Box 278, Union, SC 29379-0278
427-5657
(d)         H. Pearson Cooper, Executive Director
Union County Disabilities and Special Needs Board
P. O. Box 903, Union, SC 29379
427-7651
(e)         Honorable Janie G. Goree, Mayor
Town of Carlisle
3911 Fish Dam Avenue, Carlisle, SC 29031
427-1505

The Board of Commissioners on Grievances and Discipline reports that there are no formal complaints that have been filed against you. The records of the applicable law enforcement agencies, being the Union County Sheriff's Office, the Union City Police Department, SLED and FBI records, are all negative. Judgement Rolls of Union County are negative. Federal Court records are negative. No complaints or statements were received. No witnesses that have asked to be present to testify against you.

At this time, I give you the chance that we've given the other candidates to make a brief opening statement followed by questioning by Mr. Elliott.
MS. LEWIS:     In the interest of brevity, I don't think I need to make an opening statement.
THE CHAIRMAN:     Thank you very much. Mr. Elliott.
MS. LEWIS - EXAMINATION BY MR. ELLIOTT:
Q.     Let's start off on this just a minute about your administrative law experience. I notice that you have -- you are hearing ABC cases in the interim before the ALJ Division is established and you went over that a little bit in your opening statement. How many cases are we talking about? How extensive is that experience?
A.     I was trying to remember because I didn't count them up, but I started -- my first cases were scheduled on July 1, the day that the change took place. And I would say around a dozen.

They did not call me -- once -- I don't know whether it was coincidental or what, but I was not -- typically, they would call me and say can you do a hearing on such and such a date and once I announced that I was going to run for this position, I didn't get any more calls, so I'd say August, September -- no. July, August and September, I had hearings quite regularly and I'd say maybe a dozen or so of them. And they were all over the state and that I'd like to add is really one of the reasons or the main reason that I decided to apply for this judgeship because I really enjoyed doing those hearings and felt comfortable doing them.

You know how you go into a job, if you feel like you do it well, you're comfortable with it and I was comfortable with it after the first hearing or two. I was very fortunate in that Mr. Harrison who used to be an ABC commissioner was the attorney on one -- I think the second and third hearings that I had or something like that and he was so helpful.

In doing these hearings, we not only had to preside, but we had to run a tape machine. We had to be court reporter. Everything. And I was -- he really was very helpful to me and when -- after I got through with the hearing, we only had ten days to get our orders in also which was some time pressure if you've got anything else to do which I did, and he invited me to call me him if I had any questions about anything that went on and I called him.

When I had made my decision, I called him and asked him if it would be out of order for -- to ask him to prepare me a proposed order and I more wanted to see what the orders should look like. He had been a commissioner and had done them before and then I also got sample orders from the ladies in the ABC office. They sent me some samples and I didn't use his order, but I used it as a sample to go by.

And from then -- once -- and then we had a training session. I think it was in late July that we had a training session and from then on, it was all right. We had August and September, as I say, I was doing hearings and I'd say there were a dozen of them all together or maybe more.
Q.     And then just briefly, the Social Security cases and Residential Homebuilders and the other administrative law experience you mentioned, about how many cases would that have been?
A.     Oh, goodness, I go before the -- I have gone before the Social Security ALJ, I'd say on an average of probably once a month. You know, sometimes there would be two or three one month and then one for a stretch and they've been -- I've been to Richmond for one. I've been to Charlotte for several and to Greenville, but most of mine are in Greenville.
Q.     Going back to what you mentioned a minute ago, the ten-day requirement about the rules of the ABC cases, have you been able to meet that ten-day requirement?
A.     Yes, sir. But it's -- you know, it's been a push.
Q.     And I may have misunderstood, but you said there was a -- the occasion where you asked for the proposed order?
A.     Right.
Q.     That was in an actual case? I mean it just --
A.     Right.
Q.     -- wasn't to obtain a sample?
A.     Right.
Q.     Did you communicate with the other side the request for the proposed order from Mr. Harrison?
A.     I'm trying to think who was on the other side of the case. There wasn't an attorney on the other side. There was a -- the chief spokesman was a law enforcement officer. I don't know if they were from Anderson or where they were from and I did communicate to both of them.

As matter of fact, the law enforcement officer had done such a wonderful job of preparing for the case and I asked him if he would send me copies of -- I think he cited some cases and I asked him to send me copies of those.
Q.     Well, let's talk --
A.     Mr. Harrison knew that, too. I mean --
Q.     I take it from what you're saying your policy is -- what is your policy about ex parte communications?
A.     Well, there wouldn't be any ex parte communications except that type of thing where you would talk to both sides, give both sides the ample -- or the same opportunity to submit briefs, but no discussion of the case.

But it's been over the years now in civil court, family court, any kind of court, when a judge has withheld his decision, they have, you know, called the office later on. If they don't give a decision right then, and at these ABC hearings, we didn't, or I didn't ever give my hearing -- my decisions right that minute, the judges would call and often they'd announce it from the bench.

They would call the prevailing attorney, whoever -- whose ever side won and say prepare me an order and outlined what they wanted in the order and then sometimes they'd say, "Submit it to the other side before you send it to me," but quite frequently it just went straight to the judge and if it met with his approval, he would sign it and send it on.
Q.     I take it from what you said, that would not be your practice?
A.     No. Huh-uh.
Q.     I got the impression from reading your Personal Data Questionnaire that you didn't know anything about ABC cases before you became a hearing officer; is that correct?
A.     Well, I had never appeared in one. I mean I was familiar with the law as far as you know you're familiar with the law on anything. And I had looked into it to some extent because some people had come to me about applying for licenses, but I have a habit of if when -- in my private practice, when people come to me, if they don't need representation, you know, I tell them I think you can do this by yourself and if I looked into the situation and saw that they didn't need representation and they could do it by themselves, I didn't see any point in bothering with them, so I had looked into it to that point, to that extent.
Q.     Maybe it wasn't the case there, but in a month, March 1, you're going to be dropped into a situation suddenly where there apparently is a great deal of substantive and procedural law that you don't know a great deal about, how are you going to go about learning what you need to know?
A.     Well, I think on the basis that you have to learn -- I don't know about the procedural because I think the procedural law in administrative cases goes -- you know, it carries over from one to the other. I don't see that there would be any problem procedurally.

As far as the substantive law is concerned, it's my habit this -- when you have a case coming before you on these ABC cases, when I had one coming before me that was a particular kind of violation, they would outline the case a little bit. I'd know a little bit about what it was about and then I looked it up -- you know, study up on it before that hearing on the law.
Q.     All right.
A.     And I think another thing as far as getting ready on all of this, I think a resource -- what maybe is a possible resource for helping us in organizing it is the National Center for State Courts in Williamsburg, Virginia. It's my understanding that that's what they are there for is to help states in any -- you know, at any court level that they need help. And they should have -- I would think they should have excellent ideas.

They would have all the -- rather than having to go state to state to find out what models to go by, they should have it all right there.
Q.     All right. In a contested case hearing when one of the parties is not represented by an attorney, and I assume you have had that situation in ABC cases frequently, how much leeway do you allow the unrepresented party in leading witnesses and presenting hearsay?
A.     That's a difficult question to answer. I think you allow them more than you -- certainly more than you would allow, you know, an attorney who knows better, but you want to give -- if you use the same standard with a layperson as you do with an attorney, they think you're being unfair and you've got to be fair.

And, for instance, if they want to submit some piece of evidence that is clearly hearsay, what's the harm in letting him submit it as long as the other attorney doesn't strenuously object to it and, you know, as a judge that this is hearsay and you give it the value -- in making your decision, you give it the value.
Q.     Well, doesn't that in some sense prejudice the person whose represented by an attorney?
A.     No, I don't think so.
Q.     What managerial experience do you have?
A.     My primary managerial experience is managing my -- well, my family life and my business life and doing it all and doing it well, if you see what I mean.

When my children were small, I had three small children. My husband was a naval aviator. He was overseas one year or so. He was in Vietnam and I had the entire responsibility of the children, all the household business and everything as well as teaching school. And I did it. And I always managed to get -- you know, get it done.

When I went into the law practice -- well, I went to law school and ran my household and my law career and was president of the Student Bar Association my third year. I was the first woman they ever had as a Student Bar president at William and Mary. And they -- you just have to be extremely -- to get all that done, you have to be extremely organized and I think that's the key to good management is to be organized.
Q.     As a chief judge, have you given any -- you mention in your Personal Data Questionnaire that I think you call yourself a cause attorney or someone who represents special causes or has a special feeling for certain issues and questions. Have you given any thought to what kind of cases you're going to give priority to as the Chief Judge of the ALJ Division? I mean are you going to be more interested in professional and occupational licensing, ABC licensings, certificates of needs? Have you given any thought to that kind of process?
A.     I think if you're talking about which cases come first as far as in order of -- in sequence, I can foresee -- I took the training as a Baby-net officer. And, you know, Baby-net only applies for I think it's the first -- I know it's the first three years of a child's life.

If you delay too long with a Baby-net hearing, it's too late. I think there -- I can foresee that there would be cases that would come up that would have to be heard -- that just by the nature of the case, it was more important that it be heard first, even though it might have been filed later.

And if you're talking about the importance of the case, I don't -- I mean every case is important. If it's important enough to have a contested case before us, they're all important.
Q.     Back to the notion of being a cause attorney, what are some of those causes that have special meaning to you, particularly any that might come up in the administrative law area?
A.     Well, my primary -- it seems like it always boils down to somebody that has been -- something -- they've been mistreated in some manner. Arrested for no cause, without just cause, and that type of thing.

One of the cases that I cited in here was a man who was arrested because he owned -- only because he, they said, had possession of lottery tickets from Florida. And, you know, he was put in jail and kept a while and they called it -- I think the warrant was gambling in public and it just -- you know, we spent -- Ralph Phillips and I did that case together and we spent untold hours on it.

I think our jury award finally after we got back from appeal and everything, after we won the appeal of the Summary Judgement, the jury gave the man $1500. We weren't real amply rewarded for our time, but we won our
-- you know, it was a cause.
Q.     Well, what -- are you going to have preconceived notions about any of these cases, these human kind of issues, when they come before you as an ALJ --
A.     No, the --
Q.     -- or what are you going to do about those?
A.     The causes that I've -- that have always aroused my interest or have gotten me involved in a nonfinancial rewarding law practice are individual -- they're on an individual basis. They aren't causes like social issue causes. Does that answer your question?
Q.     Yes, I understand what you mean, but --
A.     Now, I --
Q.     -- individuals -- you know, cases can come to you in that same context as an ALJ where you might have an individual that you have some special sympathy for?
A.     Well, I suppose that if it were that severe that I felt that it would warp my judgement, I would have to recuse myself and send it to another ALJ because I do have -- I mean I can foresee -- I don't think there would be many of these, but I have a child that's developmentally delayed, a 26-year-old son whose developmentally delayed, and I'm very interested in and sensitive to the disabilities issues and I think the ALJ will be hearing a certain amount of those. And I work -- well, with the Civitans who deal with disabilties and with Union Services, which I'm on the board there, which is a disabilities organization, and they -- but I don't think that would taint my judgment as far as --
Q.     One thing you did mention is that you have a tendency to take these cases that are not financially rewarding; what happens when it turns out not to be financial rewarding? Do you continue the representation? Do you drop it? What standard do you use and --
A.     I try not to take another one. I feel a responsibility once you take a case, you can't just drop it. And I feel a responsibility to carry through with it, but I just try not to do that again.
Q.     It's come to our attention that there was a situation involving some overpayment of fees while you were a public defender, which you subsequently repaid. Would you please --
A.     That was a misunderstanding between the County and me.
Q.     And that has been repaid?
A.     Yes. They were all paid back.
Q.     Have you ever been held in contempt or sanctioned by a court for any reason?
A.     No, sir. The only thing -- I've been up dozens of times for it due to public defender on those Post Conviction Relief hearings where the -- you know, people claim we're incompetent counsel and there was one in which I was -- they said I had a conflict of interest because I represented two defendants. That was a long time ago.

Two defendants that pled guilty -- codefendants that pled guilty and that's a no-no now, and so when they came back to court and said that was a conflict of interest, they said that was a conflict, but I don't know whether those things are really sanctions or --
Q.     Well, I have a copy of an order in South Carolina Courier versus Hallman --
A.     Oh, that was -- let's see, Ralph Phillips and I represented a -- some people in those Lottery courier service cases in Spartanburg and the -- and they were found -- I believe what -- that was the one that the people were found not guilty or something and they wanted to sue the Attorney General and the -- or the Solicitor and I believe they -- the court decided that it was a spurious case and fined me $250 and Ralph $250.
Q.     Have you sought directly or indirectly the pledge of any legislator's vote for you as ALJ?
A.     No, sir.
Q.     And are you aware of any solicitation without your authorization or request?
A.     Not that I know of, no.
Q.     And we don't have any report of campaign expenditures; is that correct?
A.     I sent a letter to each -- I have difficulty with this because I use my letterhead from my office and I don't know what it cost per thing. Twenty-nine cents per legislator. I sent each one a letter announcing that I was running and sent them a copy of my resume.
Q.     But you have not exceeded $100?
A.     Oh, no.
Q.     I don't have any other questions.
A.     Does a trip down -- excuse me. Does a trip down to the Bar interview count? Do I have to count mileage? That is an expense, campaign --
THE CHAIRMAN:     I don't think so.
Q.     It excludes travel and lodging.
THE CHAIRMAN:     Thank you. Questions from the Members? Senator McConnell.
SENATOR MCCONNELL:     Thank you.
THE CHAIRMAN:     Surprise.
EXAMINATION BY SENATOR MCCONNELL:
Q.     Have you sought the endorsement of any group or members of the General Assembly or caucus of the General Assembly?
A.     No, sir.
Q.     Have you participated in a formalized interview process other than the Bar Association's process and this one here?
A.     No, sir.
Q.     Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the Bar Screening Committee, Bar employees or lobbyists representing the Bar either before you were screened or after you were screened, but prior to the Bar Screening report being made public?
A.     No, sir. The only time I talked with them was when they called to set up the meeting.
Q.     Thank you.
SENATOR MOORE:     Mr. Chairman?
THE CHAIRMAN:     Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q.     Ms. Lewis?
A.     Yes, sir.
Q.     Do you recall the first date you were contacted by a Bar representative?
A.     I think before -- and I don't remember whether it was by letter or by phone call, but sometime before the holidays. They asked us to submit a copy of our PDQ, is that what it is, and I believe a resume. And I did that and I could look at my file at home, I don't have it with me, and tell you what -- it seems like to me that we had to have those in in early November.
Q.     But they in turn contacted you to set up the interview --
A.     Right.
Q.     -- to confirm --
A.     Now to set up the interview, I know the dates on that. They called me on Monday, January the 3rd --
Q.     Yes.
A.     -- and asked me if I could meet with them on Wednesday, January the 5th. They called my office either I -- it must have been Thursday. It was either Wednesday afternoon after I had -- well, while I was still gone or Thursday and asked my secretary for the street address. They said they were sending me something Federal Express and the girls didn't understand whether it was this committee or whether Ms. Satterwhite was calling. They didn't know who was calling.

Somebody from Columbia called and said they were sending us something Federal Express, so Friday, when we hadn't received it Friday -- and Federal Express is always next day -- well, I waited until Monday and we still hadn't received it, so I told the girls to see if they could track down what it was we were supposed to be getting. I knew it had something to do with the hearing today and I was afraid that I wouldn't get it in time to be adequately prepared, so they called. I'm sure they bugged Ms. Satterwhite to death and I don't know who else they called, but they said they couldn't find out anything and then after they made all these calls, in walks Federal Express with the letter from the Bar. That was this past Monday, the day before yesterday.
Q.     But --
A.     And it was dated -- if I remember right, and I didn't bring it with me, I believe it was dated the 7th.
Q.     So you answered some of the questions, but the interview took place on the 5th? Is that what you said?
A.     Yes. It took place on the 5th.
Q.     Here in Columbia --
A.     Yes.
Q.     -- at the Bar office?
A.     Yes.
Q.     How many interviewers participated in this?
A.     There were two and it was my understanding that there was supposed to be three, but Mike Glenn who was the only one
-- well, the one -- the group that I knew the best was in Europe and he couldn't be there and there was a lady from Rock Hill whose name I've forgotten and I had just --
THE CHAIRMAN:     Beverly Carroll?
A.     Yes, I had met her before. Uh-huh. I had known her and then there was another lady, but I don't know where she was from, so that I only talked with two of them. They said that Mike was in Europe and couldn't be there. And evidently they assigned three people to each candidate, you know, and those three were assigned to me as best I could figure out. And --
Q.     Did you furnish them a list of references?
A.     Right. And that was back in November I furnished it. As a matter of fact, I gave them five and said, "In case you can't reach any of these, here are two or three more."
Q.     Were any of them contacted, do you know?
A.     I know that one of them was and I didn't ask the others, but the -- one of the ones that I gave called my house and I wasn't there and she left a message on the answering machine and said that Mike Glenn had been in touch with