South Carolina General Assembly
110th Session, 1993-1994
Journal of the Senate

Friday, February 11, 1994

(Local Session)

Indicates Matter Stricken
Indicates New Matter

The Senate assembled at 11:00 A.M., the hour to which it stood adjourned and was called to order by the ACTING PRESIDENT, Senator MOORE.

REPORT RECEIVED

JOINT LEGISLATIVE COMMITTEE FOR JUDICIAL SCREENING

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.

TRANSCRIPT OF HEARING OF JANUARY 12, 1994

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.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

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.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

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.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

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.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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 her and that they had had a long conversation, so that one was followed through.
Q. So you were notified Monday, January 10th, by mail?
A. Right.
Q. Federal Express?
A. That's right.
Q. Thank you, ma'am.
THE CHAIRMAN: Other questions? If not, thank you, Ms. Lewis, very much.
A. Thank you.
THE CHAIRMAN: Let me ask the Committee's -- check to see the Committee's pleasure, we've got -- we have had a number of people waiting during the day, but I know the hour is late. It's past -- it's about 6:20. We've got Mr. Longtin, Mr. Mayer and then we have several others who I think we anticipated that we would be hearing from tomorrow. The question is whether you want to proceed with the final two -- with two more to try to take care of Mr. Longtin and Mr. Mayer or do you want to wait until tomorrow? Let me just ask how you feel.
REPRESENTATIVE ALEXANDER: I have some people coming down tonight I promised to meet and they are responsible for my being here a lot and I would like to adjourn at this time.
SENATOR MOORE: Mr. Chairman, while I understand what Representative Alexander is speaking to, we do have two gentleman --
REPRESENTATIVE ALEXANDER: Yes.
SENATOR MOORE: -- who have been here quite a while. Do you think your folks could allow you another --
REPRESENTATIVE ALEXANDER: Well, I haven't had a chance to talk to them.
SENATOR MOORE: -- 30 minutes, so we could get through with these gentlemen and then start on the next round?
THE CHAIRMAN: Or I could -- I think as long as I have your proxy.
REPRESENTATIVE ALEXANDER: I have two proxies myself. Can I give you mine, too?
THE CHAIRMAN: You sure can. If you give me yours, that will give us enough of a quorum on the House side --
REPRESENTATIVE ALEXANDER: All right.
THE CHAIRMAN: -- to be able to operate. Why don't we do that, that way we can proceed through.
REPRESENTATIVE ALEXANDER: I'll be glad to.
THE CHAIRMAN: -- did -- John, Glenn, do you all have any objection to that?
SENATOR MCCONNELL: I have no objection at all.
SENATOR RUSSELL: None at all.
THE CHAIRMAN: Let's try to do that then. We will, and for the rest of the people that were here for the hearing, we will do Mr. Longtin's and Mr. Mayer's and then we'll conclude for the evening, so if there are other people that are waiting for their hearings, it will be tomorrow.
SENATOR RUSSELL: Mr. Chairman, what time are we going to start?
REPRESENTATIVE ALEXANDER: Yes, I'd like to know.
THE CHAIRMAN: 10:00 a.m. tomorrow in this room and in the afternoon, we're going to move to the Blatt building. Mr. Longtin, did I pronounce your name correctly?
MR. LONGTIN: Longtin, that's correct.
THE CHAIRMAN: All right. If you would please raise your right hand.
JAMES G. LONGTIN, having been duly sworn, testified as follows:
THE CHAIRMAN: Have you had a chance to review your Personal Data Questionnaire summary?
MR. LONGTIN: Yes, I have.
THE CHAIRMAN: And is that correct?
MR. LONGTIN: There is one change on violations I have listed.
THE CHAIRMAN: Yes, sir.
MR. LONGTIN: I found out subsequent to filling that out that the second one was not dismissed. That's a leash law violation.
THE CHAIRMAN: 29. All right.
MR. LONGTIN: I'm also currently applying to the Georgia Bar and they require copies. That's how it came to my attention.
THE CHAIRMAN: Okay. Municipal Summons from the City of Walterboro for violation of a leash law and you're saying the charge was not dismissed. That may require extensive questioning of you while you're up there.
MS. MCNAMEE: What kind of dog was it?
THE CHAIRMAN: All right. Any other changes or clarifications that need to be made?
MR. LONGTIN: No, sir.
THE CHAIRMAN: Is there any objection on your part to making the summary a part of your sworn testimony?
MR. LONGTIN: No, sir.
THE CHAIRMAN: That being the case, it shall be done and entered in the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. James G. Longtin
Home Address: Business Address:
100-A Hayne Street P. O. Box 973
Walterboro, SC 29488 Walterboro, SC 29488

2. He was born in Augusta, Georgia on July 31, 1955. He is presently 38 years old.

4. He is single.

5. Military Service: N/A

6. He attended Georgia Institute of Technology, 1973-1979, Bachelor of Chemical Engineering; and the University of South Carolina School of Law, 1982-1985, J.D.

8. Legal/Judicial education during the past five years:
He has attended CLE seminars on Trial Advocacy, Evidence, Civil Procedure, Criminal Law, Real Property, Bankruptcy, Ethics and Professional Responsibility, Probate, Divorce, Construction Law, and Patent Law.

9. Taught or Lectured: University of South Carolina Department of Continuing Education - Real Property and Agency Law course for prospective sales agents

12. Legal experience since graduation from law school:

Ackerman, Woodard and Butler 10/85 - 10/92

Associate Attorney: Full responsibility for handling a substantial litigation caseload from initial client contact through conduct of trial, in a law practice concentrating in commercial litigation. Also handled a variety of general practice matters, including criminal defense, divorce, real estate and probate.

13. Rating in Martindale-Hubbell:

14. Frequency of appearances in court:
Federal - approximately 4 times per year
State - approximately 25 times per year
Other -

15. Percentage of litigation:
Civil - 70%
Criminal - 15%
Domestic - 15%

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

Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:

18. Five (5) civil appeals:

23. Employment As a Judge Other Than Elected Judicial Office:
Special Referee - November 3, 1993 - Colleton County - 8 damages hearings

25. Occupation, business or profession other than the practice of law:
Chemical Engineer - Colonial Pipeline Company, 1979-1981, Project Engineer
Applied Engineering Company - 1981-1982, Project Engineer

26. Officer/director or management of business enterprise:
He is currently handling a small number of legal matters while seeking other employment.

29. Arrested or Charged:

Federal summons for illegal camping in Great Smoky Mountains National Park in 1986. Charge was dismissed.

Municipal summons from City of Walterboro for violation of leash law. Charge was dismissed.

45. Bar Associations and Professional Organizations:
South Carolina Bar

46. Civic, charitable, educational, social and fraternal organizations:
Head Start Policy Council Chairman, 1989-1991; Sertoma Club Program Chairman, 1990; Habitat for Humanity Local Board Member and Construction Committee Chairman, 1990-1992; Charleston Symphony Singers Guild, 1991-1993

48. Five (5) letters of recommendation:
(a) Gloria Godwin, AVP/Senior Officer
South Carolina National Bank
P. O. Drawer 1087, Walterboro, SC 29488
549-2571
(b) E. W. Bennett, Jr., Esquire
Alexander, Bennett & Associates
P. O. Drawer 739, Walterboro, SC 29488-0739
549-5586
(c) Jeffrey M. Butler, Esquire
Woodard & Butler
P. O. Box 1906, Walterboro, SC 29488
538-4566
(d) Shari Lee Smith, Esquire
Woodard & Butler
P. O. Box 1906, Walterboro, SC 29488
538-4566
(e) Thomas I. Howard, Esquire
Woodard & Butler
P. O. Box 1906, Walterboro, SC 29488
538-4566

BAR RESOLUTION: Colleton County

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
11/8/93 Special Referee; Court of Common Pleas; Colleton County

10. Extra-Judicial Community Involvement:
Past Chairman, Headstart Policy Council; Past Board Member, Colleton Habitat for Humanity
He has not used his judicial office to further these interests.

The Board of Commissioners on Grievances and Discipline report that no formal complaints or charges of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. I understand you have served as a special referee before; is that correct.
MR. LONGTIN: Yes. That's correct.
THE CHAIRMAN: The records of the applicable law enforcement agencies, being the Colleton County Sheriff's Department, Walterboro City Police Department, SLED and FBI, all of those records are negative. Judgement Rolls of Colleton County are negative. Federal Court records are negative. No complaints or statements were received and no witnesses are here to testify against you.

Now prior to turning you over to Ms. McNamee for questioning, I want to give you the same chance that we've given the others and that is to make a brief opening statement on your behalf.
MR. LONGTIN: In the interest of time, I'll waive an opening statement.
THE CHAIRMAN: All right. Thank you. Mr. Longtin waives opening statement. Ms. McNamee, if you would proceed with questioning.
MR. LONGTIN - EXAMINATION BY MS. MCNAMEE:
Q. Thank you. Mr. Longtin, you have filed for all three of the ALJ positions.
A. That's correct.
Q. It's not required, but have you -- are you prepared to choose one of them at this point or not? I mean we're only going to screen you once. I was just wondering.
A. I prefer to leave it as it is.
Q. Okay. What is your current employment situation?
A. I'm -- I was with the Ackerman law firm. That law firm dissolved and I'm currently -- I do not have an office at this time, but I'm currently handling cases and I'd say
-- I'm working part time about 50 percent.
Q. What is that practice? What kind of practice?
A. Legal. Civil. Civil court, Family and Common Pleas Court.
Q. Do you have any administrative law experience?
A. My only administrative law experience was an internship with the PSC at the time that Clay Carruth was there and I worked with him and he trained me.
Q. Okay.
A. I believe that was either three months or six months. It's been several years.
Q. Was that through -- in school?
A. That was in law school.
Q. You have been appointed a special referee in several damages hearings --
A. That's correct.
Q. -- according to your questionnaire. How would that experience help you as an ALJ?
A. I think it gives me some experience in a single judge situation where you need to hear from both sides and render a decision. I have a lot of experience in my practice with the Ackerman law firm in bench trials and I think I bring all that to the table in what I can offer as an administrative law judge.
Q. What was your most difficult administrative law experience as a practicing --
A. Administrative law experience?
Q. Yes. Uh-huh.
A. I don't recall any extremely difficult administrative law experiences that come to mind. You're talking about laws as -- in terms of PSC?
Q. No, just whenever. Any administrative law --
A. That's my only administrative law experience.
Q. What is your -- would you please describe for the group your work habits. Are you a person who works best under pressure of deadlines and leaves your research close to deadlines? Do you spread out your work, that kind of thing? Do you enjoy research?
A. I keep my calendar on the computer. I try to keep that up on both a weekly basis and a daily basis. I was responsible for the docket control while I was with the Ackerman law firm. That was a firm with seven attorneys at one time and eight attorneys at another time, so we had a fairly substantial case load and I managed the docket for the firm for approximately two years. Does that answer your question?

As far as research, I enjoy research and I think that for all the administrative law judges during the first year and the first two years that there will be a steep learning curve for all of us and I think that research among other things is the one thing that we'll all have to take on to get to the point where we can all become familiar with these different types of cases.
Q. I believe you have a scientific background.
A. I'm also a chemical engineer.
Q. How will you go about preparing yourself for the substantive law that you will face in these different hearings, and it's a wide variety?
A. When I have cases come before me, I intend to prepare thoroughly for it if I'm actually hearing the case and research. And as far as during the interim, between the time that I receive the appointment and actually go to work, I also would avail myself of any educational opportunity I could find to bring myself up to speed on administrative substantive law.
Q. You do not list any significant cases or appeals in your PDQ and --
A. I haven't --
Q. -- I just wonder if you would explain that.
A. I haven't handled any appeals other than Magistrate Court appeals and I couldn't think of any particular case that was outstanding in my mind at the time that I was answering the questionnaire.
Q. Well, how -- if you would help the Committee then, how can they best evaluate your qualifications for this job?
A. I have eight years of experience in civil practice, a good bit of that is in single judge, nonjury situations which is similar to the ALJ hearing environment. I've had experience in Family Court, in Common Pleas Court. I think in a wide variety of cases and I think all those are capabilities that I bring to the position.
Q. Have you been an active participant in the legal community in Walterboro? And by that, I --
A. There isn't any active Bar in Colleton County. There is a Colleton County Bar Association.
Q. Yes.
A. But it hardly ever meets.
Q. What is your attitude or your philosophy about being appointed to represent indigent criminal defendants?
A. I'm always -- I'm in favor of -- strongly in favor of public service and I think that every attorney should take every opportunity he can to --
Q. And do you --
A. -- serve the public in that regard.
Q. And you accept those appointments and represent those defendants --
A. Yes.
Q. -- when that comes up? Okay. The Administrative Law Division is going to have it's principal office in Columbia and I note that your principal residence is in Walterboro. Is this going to pose a problem for you?
A. If I received the appointment, I would strongly consider moving to Columbia.
Q. What -- you have given us some description of your managerial and administrative experience. I just want to ask you what distinguishes your candidacy for the chief judge from some of the others that we have for --
A. Well, I think there are several strong candidates here today and I've been sitting here listening to their testimony. I don't know that I have as much experience as the man that preceded me that's a commissioner. I don't have that kind of administrative judgeship experience, although I do a limited experience as special referee.

However, I do think I have the administrative and managerial ability as well as the experience as an attorney in a litigation practice to serve as an administrative law judge.
Q. When the Administrative Law judge presides over the rule-making hearings, would you describe how you plan to handle one of those? How do you see this reasonableness standard being applied?
A. I think that both sides are going to, you know, bring the issues -- are to frame the issues and I would just listen to the issues as they're framed by the parties and --
Q. What is your role in the regulatory process? What would your role be?
A. I think it's the departments -- I would enforce the regulations that were as interpreted by the departments and that's my primary function.
Q. And I'm also talking, though, about the other function of the ALJ and that is his role in the proposed rules and deciding on their reasonableness and the need for those regulations in holding hearings?
A. (No response).
Q. Is that -- well, okay. We'll just let that go.

Would you care to respond, Mr. Longtin, to the Bar's findings in your situation?
A. I didn't quite understand. I know what you're talking about, but I didn't quite understand. I mean, you know, I read what they stated, but it wasn't what we discussed at our interview and so I don't have any additional comment to it. No, I don't.
Q. And then they found you not qualified for the office of chief ALJ?
A. That's correct.
Q. Finally, have you ever been held in contempt or sanctioned by any court?
A. No. Never formally.
Q. Never formally? Would you like to expand on that?
A. I was -- Judge Howell, a circuit judge in the criminal court took my name off the appointment list for indigent appointments.
Q. And could you explain that? Why?
A. That was -- he said that I didn't have an adequate understanding of the federal law.
Q. That was just something orally said?
A. Right.
Q. Have you ever been the subject of a disciplinary action arising out of any employment?
A. No.
Q. And have you sought directly or indirectly the pledge of a legislator, a legislator's vote for this judgeship?
A. No.
Q. Have you spent any money on this?
A. None.
Q. Okay. I didn't --
A. Travel here.
Q. Excuse me?
A. Travel here.
Q. Are you aware of any solicitation that has been made without your authorization and without your request of any legislator or legislative vote?
A. No.
Q. That's all I have, Mr. Chairman.
THE CHAIRMAN: Any questions? 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 any caucus of the General Assembly?
A. No.
Q. Have you participated in a formalized interview process regarding this position other than this hearing today or a meeting with the Bar Association?
A. No.
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. No.
Q. Thank you, sir.
SENATOR MOORE: Mr. Chairman, I have a few questions.
EXAMINATION BY SENATOR MOORE:
Q. Mr. Longtin, do you recall the date you were contacted by the Bar as to scheduling the interview?
A. Last Tuesday at 4:00 o'clock.
Q. What day would that be?
MS. SATTERWHITE: January 4th.
Q. The 4th?
THE CHAIRMAN: We'll take judicial notice of the fact that was the 4th.
Q. What day did the interview take place?
A. I think they intended to set the interview up for Wednesday, but Wade Logan of Holmes and Thomson in Charleston called me on the 4th and he asked me to return the call.

I called him back and he was not in. We didn't get together until noon on Wednesday because I was in Family Court all day in trial, so we met Thursday morning at his office at 9:00 o'clock.
Q. That being what day?
MS. MCNAMEE: The 6th.
Q. And the interview took place at his office?
A. His office.
Q. In Charleston, is that what you said?
A. Right.
Q. And what's his name?
A. Wade Logan.
Q. Wade Logan. How many interviewers participated in your --
A. Just Wade.
Q. Just one person?
A. (Witness nods in the affirmative).
Q. And he was from Charleston?
A. That's correct.
Q. Did you have prior acquaintance of Mr. Logan? You knew him prior to this interview?
A. I've met him at roster meetings. I shook his hand. That's all I --
Q. Did you furnish a list of references?
A. No, I didn't.
Q. None?
A. None.
Q. And when were you notified of the results?
A. Monday morning by Federal Express.
Q. All right, sir. And I realize staff asked this question and I want to follow-up, and please understand I'm not asking this question in any way to embarrass you nor am I trying to throw rocks at any county bar or state bar or any group whatever, but as a nonattorney and listening and receiving -- listening to the contacts and receiving contacts over the years regarding judicial candidates from time to time I receive those letters from various bars endorsing someone. Please help me understand, you say the Colleton County Bar while it's not a very active bar, it nevertheless is a county bar?
A. Yes.
Q. You have a resolution included in your data that talks about Mr. James G. Longtin is fully qualified, or they have it in here, has the necessary education, training, experience and temperament and, of course, they -- undersigned members of the county bar being 31 of the 41 current members of the Colleton County Bar do hereby recommend Mr. James G. Longtin to this screening committee as a ALJ.

And, of course, I counted kind of quick. I guess I counted too quick. They said 31 of 41. I count 27 signatures, but in any event 27 folks, fellow lawyers in Colleton County where you're from have signed the resolution stating that you are qualified and have all the necessary training and education, judicial temperament, experience and you have an interview with one person from the State Bar and furnish no references and they merely state that concerns were expressed about his legal abilities to serve as an administrative law judge and you get a not qualified.
A. And --
Q. Help me understand why --
A. -- that's not what we discussed in our interview either, so I --
Q. All right, but you didn't -- if you didn't furnish any references and you only had one person to interview you, do you think they maybe contacted any of the signatures on this Resolution that state you are qualified?
A. I have no idea who they contacted, sir.
Q. Well, help me understand the next time I receive a letter from a county bar or state bar recommending someone, if a county bar says you're imminently qualified and the state bar says you're not qualified, does that mean somebody doesn't know what they're talking about? And I'm not asking you that to get you in here --
A. I hope that's a rhetorical question.
Q. Well, you've got to live with the Bar, I understand that, but those of us, you know, we sit through this last year and we asked and tried to work out something to have that input, so that it's not a politics process, it's a merit selection.

And we say we want to improve the system. We want merit selection. We want candidates who come before us to, you know, any and everybody who wants to participate in it, tell us more about it, but if we get a candidate such as yourself, and I'm not trying to use you as the guinea pig, but you're the only one out of 20 some odd candidates who received a not qualified, so I'm sorry, you're it.

How do we balance this or tell me how to make it settle in my mind that here's a resolution from a county bar, the people you deal with and live with, saying you're qualified, 27 signatures or whatever is on there; you have an interview by one person at the State Bar; you give no references, so therefore they don't contact any references you've given; they obviously contacted someone and say you're not qualified. Does that make any sense to someone sitting on a screening committee trying to apply any kind of balance to what I'm receiving?
A. I see where it could be extremely confusing.
Q. It's a little bit more than confusing. I'm very skeptical of either your county bar's resolution or the state bar or both, to tell you the truth. I mean I fail to see how a county bar that lives with you can say you're qualified, fully qualified, the necessary education, training, experience and temperament to effectively serve as an administrative law judge. People signed their signature on it and then we get something that says not qualified.

Is it a result of the one person you interviewed? Is it the result of something else? We have no way of knowing why they say you're not qualified because they have a closed process where we're here in an open process trying to give you that. I'm not on my soap box on you, but for the life of me, I don't understand that.
THE CHAIRMAN: Questions? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Thank you, Mr. Chairman. Just a couple more questions were you notified that more than one person was going to interview you from the Bar?
A. No, I just got a phone call at 4:00 o'clock on Tuesday asking me to return the phone call. That it was from the Bar Screening committee.
Q. Do you know of anybody in your hometown that was interviewed regarding your qualifications?
A. No, I do not.
Q. So you have no way of defending yourself against this finding of being unqualified?
A. No. Like I said, it -- what's on that disqualification paper is not what we discussed -- what Wade Logan and I discussed.
Q. What did -- if you don't mind, what were the questions? I mean, what were they interested in discussion with you about?
A. The only -- Wade said his only concern was what we brought up earlier that informal -- I don't know if you want to call it a sanction or whatever it was by Judge Howell when he removed me from the criminal indigent appointment list.
Q. And that's all he talked with you about? I mean that's the only concern he expressed?
A. He said -- I said, "Do you have any other concerns?" And he said, "No."
Q. How long did your discussion with the Bar committee last?
A. With Wade Logan, approximately a half hour.
Q. What else did he go over then with you?
A. We discussed my education, my legal experience, what types of cases I handled. He -- and maybe this is what they're addressing, I put on my PDQ that I had appeared in court over the years approximately 25 times a year and I'm not sure if they're saying that that's too many times or not enough times or what, but that's the only -- I was trying to read between the lines and I can't --
Q. Yes, I note it says you've got varied trial experience since being admitted to practice, although some concerns were raised about the volume of practice he's undertaken. Did -- the firm that you belonged to, is that a defense firm or a plaintiff's firm?
A. It's primarily a plaintiff's firm, but --
Q. Plaintiff's firm.
A. -- a small amount of defense work.
Q. Well, you know, I'm kind of like Senator Moore. I'm really getting confused by these Bar reports because we've had somebody in here today say that they got rated before they ever got talked to and now we've got somebody here that's been rated on the basis of one person and yet we got the whole -- almost the overwhelming majority of the bar saying your qualified. You know, if I was a starving scout, they couldn't sell me a bag of candy.
THE CHAIRMAN: Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q. My question is the same, if you've just concluded the hearing and a member of the -- one of the attorneys for the litigant before you asked you to go to lunch, what would you do?
A. It's the same as my policy as a special referee, I would decline.
SENATOR MOORE: I'm sorry. I didn't hear the answer. Your answer, sir. What was your answer?
A. I said it's the same as my policy as a special referee, I would decline.
SENATOR MOORE: Thank you.
THE CHAIRMAN: I've got some questions. I did a little criminal practice in my day and I must confess to you I've never heard of an attorney being removed from the appointment list and it concerns me.

Tell me. I've got to admit, I'm troubled by that. Tell me a little bit about when that happened, how long you had been practicing, whether you had appeared in Judge Howell's court prior to that time. Can you give me a little background on that?
A. I appeared before Judge Howell a number of times in Common Pleas Court, I believe, and possibly on some pleadings in General Sessions. I think this was my first trial in front of him in General Sessions.
THE CHAIRMAN: And did he -- was there an incident that occurred during the course of the trial that caused --
A. There --
THE CHAIRMAN: -- this to happen or --
A. There was a witness that was not available at the time that he needed to be available.
THE CHAIRMAN: And did Judge Howell, did he say that it was your responsibility to have that witness there, is that what he said?
A. That's basically what it was.
THE CHAIRMAN: What happened in the trial? Did -- was the person convicted? Was -- what was the result?
A. No, the trial stopped.
THE CHAIRMAN: Did he declare a mistrial?
A. Yes.
THE CHAIRMAN: And did you declare it on the basis of your representation?
A. He just declared a mistrial on the basis of the unavailability of the witness.
THE CHAIRMAN: And was it after that trial that he then said that you would be taken off the appointment list?
A. Yes.
THE CHAIRMAN: And are you still -- is your name still to off the appointment list?
A. He's no longer a Circuit judge.
THE CHAIRMAN: Well, I'm sure you have an appointment list there?
A. Okay. All right. And we've gone to a different process there. It's a contract attorney process.
THE CHAIRMAN: Okay.
A. And I submitted a bid to handle those representations once we went to contract attorney process.
THE CHAIRMAN: But was Judge Howell's -- I don't know whether Judge Howell can issue an order, but basically what he did was he removed you from the appointment list for Colleton County for indigent defense services during his tenure, is that what you're saying?
A. That's correct.
THE CHAIRMAN: And tell me again about the timing of this. Was this in the last few years? Was this early in your practice?
A. As I recall, approximately three years ago.
THE CHAIRMAN: And have you done any criminal work to speak of in the three years since then in General Sessions Court?
A. About the same amount. I was never doing a lot of criminal work and I'm -- about the same amount. It's always been one or two.
THE CHAIRMAN: I think your summary says, and I don't chose to hold you to these percentages, but you do about 15 percent criminal practice, is that fairly accurate?
A. Something like that, right.
THE CHAIRMAN: Okay.
A. It's not the majority by any means.
THE CHAIRMAN: Were there any other attorneys who were taken off of the appointment list that you're aware of in Colleton County?
A. No.
THE CHAIRMAN: What size bar do you have there? Is it -- I notice you said 41. 41 members is the number of people who reside in Colleton who practice law?
A. To my knowledge.
THE CHAIRMAN: Yes, sir. Okay. On your Bar Resolution from Colleton County, there -- you do have a number of signatures, but there are also some people who weren't on there. Did you solicit signatures on the Bar Resolution on your behalf?
A. I approached Mr. McLeod.
THE CHAIRMAN: He is an attorney there, I presume?
A. Walter McLeod.
THE CHAIRMAN: Okay.
A. He's the oldest member of the Bar and by being the oldest member of the Bar, he is also the Bar president. And I asked him if we could have a Bar meeting, so that we could raise the issue of that and he said there wouldn't be enough time to call a meeting of the Bar and he suggested that I draw something up according to his suggestions and we'd pass it around the members of the Bar for their signature.
THE CHAIRMAN: Did you pass it around to the members of the bar?
A. Yes, I did.
THE CHAIRMAN: And did you have anybody that refused to sign it?
A. Harold Mayer.
THE CHAIRMAN: All right. Let the record reflect, Mr. Mayer is seated behind you and is a candidate in this race?
A. And I didn't realize at the time he was a candidate. I was quite shocked when he said no.
THE CHAIRMAN: Were there any others to your knowledge?
A. No.
THE CHAIRMAN: Let me ask you a few other questions. I want to ask you about the status of your practice now. Do you have an office?
A. No, I don't.
THE CHAIRMAN: Are you working out of your home?
A. Yes.
THE CHAIRMAN: And do you have a secretarial service or something to assist you in your practice?
A. No, I do all my work.
THE CHAIRMAN: I notice in your references there are several people who appear to have been associated with you at one time in law practice. You were with a firm called Ackerman --
A. Ackerman, Woodard and Butler, right.
THE CHAIRMAN: And it looks like that after the breakup of that firm that Woodward and Butler stayed together; is that correct?
A. Right.
THE CHAIRMAN: Can you tell me the circumstances around your leaving that firm?
A. It was -- I'm not sure if you know the reason why the firm broke up, Mr. Ackerman was suspended from practicing law.
THE CHAIRMAN: I'm not familiar with him.
A. He was suspended from practicing law and the next day, a decision had to be made as to what was going to happen to the practice and they knew it was going to be a lot smaller practice because a lot of clients were not going to continue to forward business to the firm because of the circumstances concerning Mr. Ackerman's suspension and so they kept the practice and let associates go.
THE CHAIRMAN: And there is Ms. Shari Lee Smith who is also with that firm. Is she an associate there?
A. Yes.
THE CHAIRMAN: Was she an associate in the old firm?
A. Yes.
THE CHAIRMAN: All right. So they did keep some associates?
A. Right.
THE CHAIRMAN: How many did they let go?
A. Two.
THE CHAIRMAN: All right, yourself and one other?
A. Right.
THE CHAIRMAN: I don't think I have any further questions. Any other questions? If not, thank you, Mr. Longtin.
A. Thank you.
THE CHAIRMAN: All right, Mr. Mayer, you've been waiting patiently all day.
MR. MAYER: I probably should have gone and started --
THE CHAIRMAN: If would you please raise your right hand.
JACOB HAROLD MAYER, JR., having been duly affirmed, testified as follows:
THE CHAIRMAN: Your last screening I notice was March 7th, 1985. You apparently at that time were a candidate for the judge of the Family Court of the Fourteenth Judicial Circuit, Seat 1, that seat presently being held by Judge Black; is that correct?
MR. MAYER: That is correct.
THE CHAIRMAN: Have you had a chance to review your Personal Data Questionnaire summary?
MR. MAYER: Yes, sir, I did. There are two things that probably should be amended by way of supplementation. On Page 2, 17, part D, the Wilson case probably wouldn't mean anything to a lot of people, so it should probably say other than in Wilson versus Wilson, 270, South Carolina 216, 241, Southeast 2d, 566 (1977).

In regards to the case below that, in review my files to prepare to testify because I didn't know how much you'd asked me and my memory is not as good as it used to be, the Wright case was appealed by the defendant and I represented the plaintiffs continually in that, so it should be added under 18, Part C. It was appealed to the South Carolina Supreme Court. It was ultimately dismissed by the Supreme Court for the appellant's attorney's failure to properly protect the record.
THE CHAIRMAN: Any other changes?
MR. MAYER: None, sir.
THE CHAIRMAN: All right. The --
MR. MAYER: I would ask one thing, sir, and it doesn't matter. Ms. Satterwhite has told me that it doesn't matter, but I'm going to ask it anyhow, I would prefer if it is at all possible, the references to my divorces be eliminated from the public record.

It doesn't have anything to do with anything. It's not anything I'm ashamed of. It's not anything to be proud of. It's -- it doesn't really matter and I would prefer it be left out if possible. If you can't, I understand.
THE CHAIRMAN: We'll take that under consideration.
MR. MAYER: Thank you.
THE CHAIRMAN: Is there any objection to our making the summary with the amendments that you have stated a part of the record of your sworn testimony?
MR. MAYER: None at all, sir.
THE CHAIRMAN: There being none, that will be done at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Jacob Harold Mayer, Jr.
Home Address: Business Address:
205 Chamblee Road P. O. Box 1132
Walterboro, SC Walterboro, SC 29488-1132

2. He was born in Walterboro, South Carolina on May 23, 1944. He is presently 49 years old.

4. He was previously divorced on June 10, 1969; Marla M. Mayer (moving party); Superior Court of Chatham County, Georgia; Eastern Judicial Circuit; mental cruelty. He was also divorced on October 12, 1976; J. Harold Mayer, Jr. (moving party); Jasper County Court of Common Pleas; desertion. He was married to Ruth Augusta Coburn on August 31, 1979. He has one child: John-Michael Jacob, age 8.

5. Military Service: N/A
6. He attended the University of South Carolina, September, 1962 - August, 1966, B.S.; and the University of South Carolina School of Law, September, 1969 - May, 1972; J.D.

8. Legal/Judicial education during the past five years:
CLE has been varied including Probate, Personal Injury, Trial Strategy, Environmental Law, Legal Ethics, Drug & Alcohol Addiction, Insurance Law, and Alternative Dispute Resolution courses.

12. Legal experience since graduation from law school:
He practiced law in Jasper County from 1972-1977, initially as an associate with Luke N. Brown, Jr. and later as a partner with R. Thayer Rivers, Jr. Since 1977, he practiced solo in Walterboro, South Carolina except for November, 1982 to February, 1984, when he practiced with J. P. Harrelson and T. K. Alexander. His practice has been general with matters handled including Plaintiff's personal injury, criminal, domestic, real estate, probate, administrative, contracts and corporate law.

13. Rating in Martindale-Hubbell: BV

14. Frequency of appearances in court:
Federal - none
State - regularly (approximately 20-30 times per year)
Other -

NOTE REGARDING QUESTIONS #14, #15 AND #16: Mr. Mayer had closed his law office in March of 1991. The answers given to these questions are based upon the five-year period previous thereto in order to provide the Committee with as much information as possible.

15. Percentage of litigation:
Civil - 60%
Criminal - 20%
Domestic - 20%

16. Percentage of cases in trial courts:
Jury - 65%
Non-jury - 35%
Mostly sole counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Billups v. Nesbitt, et al. This action for wrongful death by drowning was unique as it involved issues of admiralty, strict liability, breach of express warranty and breach of implied warranty. This case, and companion cases, were successfully settled for Plaintiffs after one day of trial.
(b) State of Georgia v. Daley. This involved extradition proceedings in Jasper County, South Carolina and a murder trial in Superior Court, Chatham County, Georgia. The case presented jurisdiction issues as to the extradition and prosecution for a crime alleged to have occurred on a bridge to federal property ceded to the United States by the State of Georgia.
(c) State v. Matarazzo, 207 S.E.2d 93. This was an appeal to the South Carolina Supreme Court which presented the issue of whether or not a conviction for possession of marijuana with intent to distribute was proper when the appellant was absent when the offense occurred.
(d) Hiers v. Hiers. This was a highly contested action for divorce and equitable distribution of marital property. The case was tried prior to the Supreme Court having given few guidelines to equitable distribution other than the "Wilson" case.
(e) Wright, et al. v. Williams, etc. This case was an action for breach of contract to construct a church. The case was most difficult because of highly technical matters involving detailed plans and specifications. The case was tried fully to a successful verdict.

18. Five (5) civil appeals:
(a) Janice Benton Hiers, Respondent v. Thornwood D. Hiers, Jr., Appellant, S. C. Supreme Court, August 12, 1981 (appeal of case set forth in answer to 17(d) above), 81-MO-221.
(b) James W. Horton, Respondent v. The Hammett Co., Appellant, Appeal to S. C. Supreme Court, 1976. Settled on appeal prior to briefs being filed.

20. Judicial Office:

Appointed Deputy Recorder and later City Recorder for Walterboro (January, 1978 - March, 1979), jurisdiction over traffic offenses and misdemeanors not exceeding 30 days imprisonment or $200 fine.

Elected Magistrate for Colleton County (March - September, 1979), jurisdiction over traffic offenses and misdemeanors not exceeding 30 days imprisonment or $200 fine.

21. Five (5) Significant Orders or Opinions:

None of the decisions were of any major significance - no reported opinions

23. Employment As a Judge Other Than Elected Judicial Office:
Self-employed attorney

24. Unsuccessful Candidate:
Candidate for Family Court Judge, 14th Circuit, Seat #1, early 1985 (application dated February 12, 1985). Withdrew prior to election date.

25. Occupation, business or profession other than the practice of law:
Briefly engaged in Amway sales part-time from July through December, 1980

28. Financial Arrangements or Business Relationships (Conflict of Interest):
None. Should an unexpected conflict of interest arise, he would recuse himself from any judicial determinations.

32. Sued: He was joined as a Defendant in two suits concerning a lot he owns, but had no financial liability. Additionally, he was named as a Defendant in a timber contract dispute of his clients, because he owned an interest in a portion of the timber for legal fees earned.

45. Bar Associations and Professional Organizations:
South Carolina Bar; Florida Bar; Phi Alpha Delta (alumnus); former member of South Carolina Trial Lawyers Association; (no offices held)
46. Civic, charitable, educational, social and fraternal organizations:
St. Jude's Episcopal Church; Mason (American Lodge #98 A.F.M.); 32nd Degree-Scottish Rite (Dalcho Consistory); Pi Kappa Phi (alumnus); (no honors or awards).

47. He feels that he is most qualified for this position as his background and experience in the practice of law has been extensive. Additionally, his prior judicial experience as Deputy Recorder, Recorder and Magistrate would be helpful in carrying out both the administrative and judicial functions of the office. He sincerely believes that he possesses the character, moral fiber and temperament to execute the functions of this office to the highest standards which our citizens rightfully expect and deserve.

48. Five (5) letters of recommendation:
(a) J. Forest Eley, Vice President
First National Bank
P. O. Box 1167, Walterboro, SC 29488
549-1553
(b) Isaiah Crosby, President
Wildwood Landscape Contractors, Inc.
1706 Hampton Street, Walterboro, SC 29488
549-2575
(c) Gerald C. Smoak, Jr., Esquire
218 Carn Street, Walterboro, SC 29488
549-6673
(d) Harris L. Beach, Jr., Esquire
Kinard & Beach
P. O. Box 1122, Walterboro, SC 29488
549-5824
(e) R. Thayer Rivers, Jr., Esquire
P. O. Box 668, Ridgeland, SC 29936
726-8136

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
Deputy Recorder, City of Walterboro and Recorder, City of Walterboro (January, 1978 - March, 1979); Magistrate for Colleton County (March, 1979 - September, 1979); Walterboro District

10. Extra-Judicial Community Involvement:
At present he has no community involvement. He did serve as Chairman for the Colleton County United Way for the 1977-1978 campaign. To the best of his recollection, this was prior to his first appointment to judicial office.

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 Judicial Standards Commission has no record of reprimands against you in your service as City Reporter. The records of the applicable law enforcement agencies, being Colleton County Sheriff's Department, Walterboro City Police Department, SLED and FBI, all of those records are negative. The Judgement Rolls of Colleton County are negative. Federal Court records are negative and no complaints were received and we have no witnesses who are present to testify against you.

Before turning you over to Ms. McNamee for questioning, I'm going to give you the same opportunity that we've given the others and that is to make a brief opening statement.
MR. MAYER: Well, one correction, you said as far as City Recorder and as a Magistrate. I was a Magistrate for Colleton County.
THE CHAIRMAN: All right.
MR. MAYER: My statement will be very brief. First and foremost, I appreciate ya'll giving me the opportunity to appear here today. I appreciate you staying late and working overtime to let me get through and not to wait.

I think that we are embarking on what we would say a new process for handling decisions for administrative cases in South Carolina. I look at it as a challenge. I welcome the challenge.

I cannot sit here and tell you that I can answer all the questions that you may ask me concerning this, however in my law practice since 1972, I have been very adaptable and resourceful and if I don't know the answers, I know how to find the answers and I am confident that I can do the job and I would love the opportunity. Thank you.
THE CHAIRMAN: Thank you very much. Ms. McNamee.
MR. MAYER - EXAMINATION BY MS. MCNAMEE.
Q. Thank you. Mr. Mayer, you have filed for Seats 1 and 2. Have you chosen one of them at this time or do you want to leave that open?
A. I was going to leave it open. Prior to filing, I received certain information, I probably will run chiefly for Seat 1, but at the time, I wanted to leave it open. I filed for Seat 2 on the off chance that there may -- and we don't know what's going to happen. There may be some fallout concerning people who work for members of the General Assembly being appointed to certain offices or elected to certain offices. Kind of the fox guarding the hen house sort of analogy. I don't think that, but we never know what the public thinks and if that were a problem in any case, then I wouldn't want to close the opportunity to be there.
Q. Okay. Is --
A. But I am running chiefly for Seat 1.
Q. We're only going to talk to you one time.
A. I'll do it again.
Q. Is your legal office closed presently?
A. Yes, it is. I closed my office out in March of 1991 for a combination of reasons, primarily personal.
Q. You were previously screened as we've talked about in 1985 for a Family Court position. The cases which you site in your PDQ this time are the same ones, four out of five anyway, that you cited in that application. Would you explain that?
A. Certainly. On -- well, I guess when you first start out, cases are a lot more memorable than after you've been practicing for a while. These cases were certainly memorable to me. I have handled administrative cases that I did not put in there.

Quite frankly, I didn't mean to shoot myself in the foot, but I mean I wasn't trying to gauge it particularly for this thing. I was just giving a general reference background to the types of cases that I had handled. I think I answered your question.
Q. Thank you.
A. Did I leave off anything you wanted answered?
Q. No, sir. But you also have been a City Recorder and a Magistrate and I wondered, if you could please tell the group how those skills, working in those offices would help you or would be transferrable to duties of a chief a ALJ?
A. Well, first of all, having gone through that, you must have patience, you must have management skills and you need to have people skills. And when I say patience, sometimes it's hard to be patient at 3:00 o'clock in the morning when the citizens call you on the phone wanting you to come down and issue a warrant.

Insofar as management skills, you have to run a docket with a series of cases and you have to dispose of them in an orderly fashion. In most type cases, I don't think there is a requirement at the time, but we always tried to do it -- we tried to dispose of DUI cases promptly. DUI trial. Now, it's law I think that they have to be disposed of within a certain amount of time or you have to direct Court Administration and tell them why not and they want to know.

I feel like the prior experience in that regard and I put in my questionnaire that there is nothing of any significant importance in -- happened important when the jurisdiction is $200 or 30 days. It's hard to conceive of anything really significant happening.

I've handled some significant preliminary hearings in regard to major drug cases and bond hearings, but nothing really significant happens in Magistrate's Court. It's usually friends against friends, somebody complaining about the neighbor's dog.
Q. Why did you leave that position? Why did you leave it?
A. In 1979, I had to resign my Magistrate's position in order to be a candidate for the House of Representatives.
Q. I see.
A. It was my intention at the time I submitted my resignation to file for it. As it turned out, a friend of mine who had assured me he would not run decided to run. We would have split the same vote. Another friend who had said he wasn't going to run if I was going to run and I told him my reasons for not running, he got it in.

It got to where it would be two stage -- had a run off and maybe might have been two. I don't know. But there were about four or five candidates in it. I think Jack Gregory was a candidate at that time.

I had to do what I had to do to be eligible.
Q. I see.
A. But once it's done, you can't go back.
Q. Going back to the fact that your law office was open until 1991, first of all, have you resolved all those personal situations that caused you to close?
A. I will elaborate on that a little bit, so maybe you can understand. At the time my son was born, we were not aware of it, but he has a severe visual disability. We have had him to probably the best doctors that are available primarily the Storm Eye Institute in Charleston, the medical university. His situation is stable.

There is nothing that can be done for him under the current state of technology. The disease -- the defect was primarily of the retina. Retinas can be reattached, of course, if they detach, but his is in the optic nerve and the fact that his retina is hypo -- let me see if I can the whole word, it's either called oculoalbinism and hypopigmentation which means that his retina, like yours -- is not like yours and mine. The back of his retina is like a piece of film in a camera, it's black. His is not completely black. It's gray and the light actually bleeds through the retina, so short of a retinal transplant and knowing how to hook up the optic nerves, there is nothing that can be done.

His mother and I discussed it at the time that we found out how severe his problem was. She and I felt like he needed extra attention. We put him in a private school and God bless him, he's made the head master's list. So far he's making real good grades. He's a very bright child, but at this time his condition is stabilized. There is nothing more that either one of us can do. But I wanted to spend as much time with him as I possibly could at that point in time, so I had the wherewithal to do it and I did it. And I don't regret doing it and I'd do it again.
Q. When your law office was open, you said 35 percent of your practice was nonjury?
A. Right.
Q. Is this specific administrative law experience that you're talking about?
A. No. Not specifically there. That, of course, refers to the five years previous.
Q. Yes, sir.
A. So nonjury in that regard would primarily -- and I would think in terms of civil cases, these would be nonjury roster versus jury roster cases.
Q. The Administrative Law Division is going to have its principal office in Columbia and you live in Walterboro, does that pose a problem for you?
A. No, it does not. None at all. In fact --
Q. How will you accommodate that?
A. I'll be where I'm needed at my expense, if necessary. Down the road, it may well be this plays into my plan, too. If nothing happens with the current state of facts, he will never be able to drive and he will need to be in a place where there is public transportation where he can get along and get around, get to and from places.

Because with his vision now, which is corrected at best is twenty-one sixty in his best eye, he'll never be able to have a driver's license, so that was in the back of my mind. At the present time, I'd stay in Walterboro.
Q. What do you foresee doing as a chief law judge the first three months? How are you going to start up your office?
A. I see the first three months primarily as the ground zero for organization. I've heard it asked several other candidates and you've asked me, but I'll go ahead and volunteer, I think one of the biggest benefits of having a new administrative law judge organization is the fact that there will be a central organization to process these type of hearings rather than a piecemeal hearing officer here, hearing officer there.

It will give us more information. Of course, any decision you make is as good as the information and input you receive. I would consult with the members of both the Senate and the House who were instrumental in this bill to see exactly what their visions are insofar as setting it up and getting it running.

And I would look closely as other candidates have said to see very quickly what's going to have to be budgeted to carry this function out and that's going to need input from the various agencies as to what needs to be done now, how quick and so forth and so on, what kind of staff and support personnel we're going to -- we'll have to have word processing. We're going to have computer services, these sorts of things, but my plan would be to hit the ground running.
Q. And what are your relevant experiences that make you a good -- or the best candidate for Chief Administrative Law judge?
A. Well, you have to have managerial -- a sole practitioner has to have managerial abilities to survive. If you don't have managerial abilities, you don't win cases and you don't make money and you don't eat.

In addition to that, I have had a great deal of administrative background. I have appeared before the Board of Pharmacy concerning a license revocation. I have appeared before DHEC on two or three occasions. I have represented another attorney before the Board of Commissioners on Grievances and Discipline. I have represented a client in the matter of a disputed contract with United States government before the Armed Services Board of Contract disputes and that is under the --
Q. Are you currently practicing law?
A. I am not currently practicing right now. Well, I take that back. I have one friend that I do stuff for from time to time as needs to be done. That would, of course, Mr. Isaiah Crawford of the Wildewood Landscape Contractors, Incorporated.

I have been his attorney since, oh, I would say early eighties, '81, '82. I've handled numerous matters for his corporation. I have tried contract disputes for him, construction matters.

I have represented numerous members of his family in various capacities, traffic tickets, divorce, will needs doing, whatever.
Q. How will you go about making your decision in a case? What analytic process method would you use? Are you going to ask for proposed orders in each case? Are you going to write your own? What's your order going to look like?
A. That would depend on the case. Certain cases are usually fairly straight forward and it's been my experience over the years, the quicker you do something, the better it is. If you put something off, you bedevil yourself and create your own trap to fall in. Your memory fades and it's not quite as clear as it was at the very earliest.

In a complex case, I think it would probably be appropriate to have both sides submit a proposed order with supporting legal authority for it and you may end up writing your own order taking the best from both.
Q. What's going to be your standard of review, standard of evidence for your order?
A. I don't know that I understand your question. A standard of review of evidence?
Q. What -- when -- what's the burden on you when you're making that decision what the order is going to be?
A. What is the burden? I still don't --
Q. The preponderance of the evidence.
A. Oh, I -- oh, the --
THE CHAIRMAN: What's the burden that's required or the standard of proof required, I guess is the way to phrase it?
A. What's the standard of proof?
THE CHAIRMAN: Yes.
A. It'd be the preponderance of the evidence.
Q. What's your understanding about the rights of parties to intervene in administrative hearings? What is the law of standing?
A. As I understand, they would have to have some standing of sufficient nexus or connection to be able to be allowed to be an intervener.
Q. And does the ordinary taxpayer have that?
A. Well, it would depend on the particular type case you're talking about. I don't know that an ordinary taxpayer might have the right to intervene in a hearing between a citizen and the Tax Commission concerning an allowance or disallowance of a deduction that they took. I don't see where -- you know, I mean, if they want to be there, they can be there, but I don't see where they would particularly have the right to intervene.
Q. Okay.
A. If you have a complicated case concerning DHEC and there may well be good reason to allow some intervention, I suppose, but that's what -- I think that's what you're looking for.
Q. Could you go into how you have gone about you informing the legislators that you're interested in this job?
A. I have not really. Until yesterday, I just go around and spoke to people, shook hands, told them who I am, told some of them I know from 1985. I would have said I hadn't seen you since 1985. I have not solicited any candidates pledge directly or indirectly. Just basically say I'm here, I sent you a letter.

One person, he told me, "Well, that's good, but I didn't read it. I threw it in the trash can." I said,
"Thank you, Senator, but I'm here to see you and if you have any questions you'd like me to answer for you, I'd be glad to answer them." That's basically been it.

Insofar as the contact, I've had with the Legislature, I sent a letter to -- and I'm sure each one of this committee got one with a brief resume, not an extensive resume announcing my candidacy and I specifically stated therein that I was not seeking any support or vote from any party either directly or indirectly according to the appropriate code section and this Committee's interpretation thereof.
Q. We do not show any expenses on our behalf.
A. Well, the only expenses I would have would be for postage stamps for 170 people. It's about $79. I have not calculated it up and I will file it at the appropriate time.
Q. Have you ever been held in contempt or sanctioned by a court for any reason?
A. Not at any time.
Q. Have you ever been the subject of any disciplinary action in any court?
A. No, ma'am.
Q. And are you aware of any solicitation without your authorization or without your request of a legislator?
A. No, I'm not.
Q. Thank you.
THE CHAIRMAN: Questions? Senator McConnell. Surprise.
EXAMINATION BY SENATOR MCCONNELL:
Q. Have you sought the endorsement of any group of members of the General Assembly or the caucus of the General Assembly?
A. No, Senator, I have not.
Q. Have you participated in any formalized interview process --
A. No.
Q. -- other than doing this?
A. Other than going to the Bar. This -- I wouldn't say the Bar. This is the only formal process.
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. Have I had any contact with any member of the Bar Screening? I received a letter.
Q. Other than receiving your letter, which I think Senator Moore is going to examine you on that?
A. I received a call from Wade Logan. Other than that, no. And I met with Mr. Logan.
Q. Thank you.
THE CHAIRMAN: Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. Mr. Chairman.
A. I was looking for the letter, Senator. I know where you're coming from.
Q. All right.
THE CHAIRMAN: Let him at least ask the question first.
Q. Do you recall you were contacted -- that the Bar contacted you to set up the interview?
A. They contacted me Wednesday last week at approximately 4:35 p.m. and asked me to be in Columbia at 7:00 o'clock the next morning.
Q. To be in Columbia?
A. Yes. I asked Mr. Logan, I said, "Well, would it be permissible if I meet with you in Charleston? It's a lot shorter drive, if you'd want to do it that way." And he said, "No, someone else is supposed to join us in Columbia," the other party and I don't know who he was.

He just advised me Leevy Johnson was detained, but didn't show up. He talked to me for about five minutes.
Q. You don't feel Mr. Longtin was given preferential treatment going to Charleston and you had to come to Columbia?
A. Once you're on the road, it's just a matter of riding.
Q. All right, sir.
A. Counting miles.
Q. So your interview took place on Wednesday, you said the --
A. Thursday. Thursday.
Q. Thursday.
A. At 11:00 o'clock.
MS. SATTERWHITE: January the 6th.
A. I stopped by to say hello.
Q. January the 6th. How many interviewers participated in yours?
A. One.
Q. One person. Mr. Logan. And you obviously had -- he's from Charleston; is that correct?
A. That is correct.
Q. And you had known Mr. Logan prior to this?
A. I had seen him over at roster meetings and I think I may have met him one time when I was in Charleston with Gerald Smoak and we had a workers' comp. case, I think I spoke to him briefly, but I don't really know him.
Q. All right, sir.
A. And I don't think he really knows me.
Q. Just a casual acquaintance?
A. I know who he is.
Q. Did you furnish a list of references?
A. Yes, sir. I gave him five in addition to the five that I gave this committee. Well, I sent them to Mr. Wells at the Bar and I assume he had access to that.
Q. Are you aware if any of those references were contacted?
A. To the best of my knowledge, let me look at that list to be sure.
Q. Yes, sir.
A. One of the individuals I think was contacted before I ever even gave him a reference because he was a prior employer. To the best of my knowledge, two on that list were contacted and two of the original five. That's to my knowledge.
Q. And when and how were you notified of the results of that interview as far as your being found --
A. Monday morning about 9:45, 10:00 o'clock, a Federal Express man knocked on the door.
Q. Monday the 10th?
A. Yes.
Q. And their findings were qualified?
A. They said qualified, yes.
Q. Approximately how long was your interview with Mr. Logan?
A. Five to ten minutes.
Q. Five to ten minutes?
A. Very brief. When I had spoken with him on the phone, I asked him what was the purpose of our meeting. He said, "Well, it's to get an opportunity to get you to respond to anybody that may have said anything bad about you." He said, "But quite frankly, I've heard nothing but good things about you." I said, "Well, fine. What do we need to meet for?" He said, "Well, we kind of want to just eyeball you."
Q. Well --
A. See you face to face.
Q. Well, let me ask you if I were in your role of being interviewed and I was told everybody -- nothing but good was said, why would I get qualified rather than very qualified or well qualified?
A. Senator, that is a good question and I do not know the answer to it. I can say this, I was extremely dismayed that I did not get well qualified.
Q. And based on --
A. It hurts my feelings and my pride and I think it's an inaccurate reflection of how I've conducted myself all my legal career.
Q. All right, sir.
A. The types of cases I've handled, difficulty and complexity.
Q. Based on how I understand how the Bar operated the interviews or how the process worked, there is no way of knowing why you received qualified versus well qualified. If there was some concerns raised, there is no way of knowing what those concerns were and who raised them; is that correct?
A. Assassination in the dark. I don't know who raised them or why. I just -- I didn't mean to be lighthearted about it, but I guess that's what you would call it.
Q. No, sir, I believe you swung a big bat and that ball is going out completely out of the park. I don't have any more questions, Mr. Chairman.
THE CHAIRMAN: Thank you, Senator Moore.
A. You know, he asked me -- you know, he said nice things about me and he kind of jumped on me with some hard questions, one, why I closed my practice and one other thing and, of course, he said, "Well, I understand that you got a little bit fed up with the court appointment system," and I said, "Well, that is not entirely inaccurate." I said, "I was a little bit tired of it because some of us were bearing the burden more than others," I said, "but that wasn't the reason I closed my practice."

I think we all of us at the county bar recognized that some of us get more than our fair share of work than others. It wasn't -- and at that point.
THE CHAIRMAN: Thank you. Any other questions?
EXAMINATION BY SENATOR RUSSELL:
Q. Did you discuss any of your cases -- any of your practice cases you've had during your active --
A. With Mr. Logan?
Q. Yes.
A. No, sir. Not at all. He didn't ask me about the cases I put, one of them, of course, was a very complicated case. It's got a file this is about this thick on it. That was the -- both cases involved questions of admiralty, strict liability, implied warranty. It was an overlay of state and federal law and a right complicated matter to handle and I admit that I was assisted with others on the admiralty. I was so bound and that's how I got associated in the case, but I did all the pleadings myself and was complimented by the judge for them.
Q. You didn't discuss that case at all with Mr. Logan?
A. No.
Q. Did you -- excuse me --
A. He didn't ask me nothing. He didn't ask me about any cases.
Q. At the conclusion of the hearing if you are chosen for this position, one of the attorneys that appeared before you are an attorney that you might know that appeared before you regularly later came to you and asked you to go play a round of golf with him, would you go?
A. I wouldn't have any problem with that, Senator Russell. I don't play golf.
Q. Let me rephrase it.
A. The happiest day of my life was when I sold my brother-in-law my golf clubs.
Q. Would you accept a gift in the form of a meal or --
A. No, sir. No, sir. And I think it is important not only that things to be right, they have to look right. And I'm not saying that it might not be permissible you'll have lunch with somebody. When you're in the public eye, when you're in a judicial position, I think you have to give people the impression that you're fair and impartial.

While it may not compromise that if you went to lunch with somebody, it could certainly give the public who doesn't understand lawyers or the citizens out in -- that it was fair -- it did compromise your fairness and impartiality. And I think the best policy is to just to avoid and say, "Thank you, gentlemen. I appreciate it, but I'm going to have to decline. I've got other work to do."
Q. No further questions.
THE CHAIRMAN: Thank you, Mr. Mayer.
A. Thank you all so much. I appreciate you're getting through with us.
THE CHAIRMAN: Thank you for being so patient with us. All right. That concludes our hearings for tonight. We talked about an Executive Session, why don't we wait for tomorrow when we've got the rest of the members here?
SENATOR MCCONNELL: I think that'd be good.
THE CHAIRMAN: Okay.
(There being nothing further, the proceedings adjourned)

TRANSCRIPT OF HEARING OF JANUARY 13, 1994

THE CHAIRMAN: Call the meeting to order. And I would suggest to the members, we have a brief Executive Session. We have some administrative matters and a few other matters we need to take up. Motion from Senator McConnell. Second by Representative Alexander. All in favor, say aye. All opposed, no. The ayes have it. If you would help you us by clearing the room, we'll call when we're ready to start back. Thank you.

(Executive Session)
THE CHAIRMAN: Our first candidate for Administrative Law Judge, Seat 1, Sheila D. McMillan. Ms. McMillan is seated in front of me. Would you raise right hand, please.
SHEILA D. MCMILLAN, having been duly sworn, testified as follows:
THE CHAIRMAN: Ms. McMillan, have you had a chance to review your Personal Data Questionnaire Summary?
MS. MCMILLAN: Yes.
THE CHAIRMAN: Is it correct?
MS. MCMILLAN: Yes, it is.
THE CHAIRMAN: Are there any amendments or clarifications that need to be made?
MS. MCMILLAN: No.
THE CHAIRMAN: If not, do you have any objection to our making that summary a part of the transcript of the record at this time.
MS. MCMILLAN: No, I don't. No, I don't.
THE CHAIRMAN: It will be ordered at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Sheila D. McMillan
Home Address: Business Address:
125 Wood Court P. O. Box 142
Columbia, SC 29210 Columbia, SC 29202

2. She was born in Monroe, North Carolina on January 30, 1953. She is presently 40 years old.

4. She is single.

5. Military Service: N/A

6. She attended Winthrop University, August, 1970 - May, 1973, B.A.; the University of North Carolina-Charlotte, August, 1974 - August, 1975, M.A.; and the University of South Carolina School of Law, August, 1976 - May, 1979, J.D.

8. Legal/Judicial education during the past five years:
Her concentration has primarily been in areas that fall under the two Senate Committees she has staffed. However, she has done domestic, civil procedure and restructuring CLEs, etc.

9. Taught or Lectured: As President of the S. C. Black Lawyers, she initiated S. C. Black Lawyers' CLEs.

12. Legal experience since graduation from law school:

Domestic, SSI, Social Security, Consumer, Housing, Employment Security, etc. May, 1979 - January, 1981

Legislative, January, 1981 to present

13. Rating in Martindale-Hubbell: She is in Martindale-Hubbell. However, there is no rating, because she is a legislative attorney.

14. Frequency of appearances in court:
Federal -
State -
Other -

N/A

15. Percentage of litigation:
Civil -
Criminal -
Domestic -

N/A

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

N/A
17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Jacqueline Trotter v. Church. S. C. Supreme Court (successfully litigated)

All other files of legal services have been destroyed. Ms. Edna S. Primus can confirm this.

18. Five (5) civil appeals:

Files have been destroyed. See Question #17.

22. Public Office: 1983-1991, Winthrop University Board of Trustees (appointed)

25. Occupation, business or profession other than the practice of law:
Educator, Charlotte-Mecklenburg Schools, August, 1973 - July, 1974 and August, 1975 - July, 1976

29. Arrested or Charged:
Applicant was charged (among others) with shoplifting; found not guilty; civil suit was instituted against store for pattern of racially harassing behavior (1974).

45. Bar Associations and Professional Organizations:
South Carolina Bar (1979 - ); American Bar Association (1985 - 1989); NBA (1985 - 1989); S. C. Black Lawyers (1984 President); Columbia Lawyers (Vice President 1983)

46. Civic, charitable, educational, social and fraternal organizations:
Boys & Girls Club of the Midlands, Member, Board of Directors; Palmetto Legal Services, Board Vice-Chairman; American Red Cross of Central South Carolina, Member, Board of Directors; Alpha Kappa Alpha Sorority (Columbia Chapter), President

47. Ten for the Future Recognition, The Columbia Record, Columbia, South Carolina, 1985

The Roddey-McMillan Record, Winthrop University, Rock Hill (named in part in honor of)

Featured graduate in the Carolina Lawyer, The University of South Carolina

National Council of Negro Women, Columbia Section Award for Outstanding Black Woman Community Leader, 1993

48. Five (5) letters of recommendation:
(a) Caroline S. Newton, Assistant Vice President
South Carolina National Bank
165 Columbiana Drive, Columbia, SC 29212
771-3590
(b) Richard F. Dozier, Sr., D. Min.
Northminster Presbyterian Church (U.S.A.)
6717 David Street, Columbia, SC 29203
754-1812
(c) E. Michael Carlton, Esquire
P. O. Box 441, Lexington, SC 29071
359-5173
(d) John P. Freeman, Professor of Law
University of South Carolina School of Law
Columbia, SC 29208
777-4155
(e) Edna Smith Primus, Managing Attorney
Palmetto Legal Services
P. O. Box 2267, Columbia, SC 29202
799-9668

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

At this time I'll give you the opportunity if you wish to make a brief opening statement regarding your interest in this position and then I'll turn you over to Mr. Elliott, I believe for questioning.
MS. MCMILLAN: Well, I've been quite interested in being a judge for the last few years. I will be very candid with you, I didn't always have that interest and as I continued to read some of the opinions and actually in some of the state agencies when I went around to handle very similar cases to this, I became interested and I need to tell you that in some -- in many instances, I said to myself I really didn't agree with the way they, you know, had handled some things. A lot of things, I did agree with.

And I thought I could do this and I have expressed that interest for, you know, like I said, the last few years to some of my friends. But I really hadn't said anything or filed to be a judge because I was waiting on something that really attracted me. I wanted to find my niche. I'll will be quite honest with you, I had an interest in family court and then you came up with the Administrative Law court and I'm sure you've noted, I've been a legal services attorney. I was a managing attorney, so I have administrative skills. In fact, I was one of the few female attorneys in Lexington County a few years ago.

I really don't want you to think that I'm degrading my clients at all, but I need to say this, because of the type work that I did, most of my clients are or some of my clients, I will say, understood things at a very elementary level and for that reason as soon as they got a letter from a state agency and they understood that they were being denied benefits, they would come to Legal Services and, of course, you know, seek representation. And for that reason I was in and out of state agencies quite a bit and I'm very thankful, you know, for that experience.

And, in fact, I need to say to you that because I was a Legal Services attorney, I went to the Supreme Court right out of law school. My first year out of law school, argued it successfully and I was very proud of that and I am sure that if I had gone with a law firm, a major law firm that would have been handled by a senior partner. But it came in and it was my case and I was asked to give it up and I said I've done the work, so I went on and argued that.

But like I said, this area of administrative law seems like it's tailored for me.
THE CHAIRMAN: Thank you. Mr. Elliott.
MR. ELLIOTT: Thank you.
THE CHAIRMAN: Questions.
MS. MCMILLAN - EXAMINATION BY MR. ELLIOTT:
Q. One thing I did want to do, I didn't get a clear picture of it from your Personal Data Questionnaire, but your experience with Legal Services was from 1979, I think it was May until 1981 and you served as a managing attorney from what you just said.
A. In Lexington.
Q. What's a managing attorney? What does that mean? What does it entail?
A. At that time, and that's still the case I understand with Palmetto Legal Services which serves this area, the main office is here in Columbia and we have branch offices in Orangeburg or we did have in Orangeburg, Lexington and some other areas. That means that you are responsible -- you supervise that office and I was responsible for two counties, Lexington and Saluda counties, so I argued in both of those courts and I was responsible for running the, you know, the branch office. The only person that was over me would have been the Executive Director and then, of course, the Board.
Q. Let's talk about that for a minute, if we can. Because you manage -- you want to be the chief judge of the ALJ Division, so your managerial skills are going to be important. Specifically, what -- when you talk about managing that office, what -- how many people worked there, in what capacities, what kind of management did you perform as a managing attorney?
A. I had -- okay, I had a staff attorney under me, I had two paralegals and it may have been two or three secretaries -- administrative secretaries. Because we were just a branch, we had to report the number of cases monthly -- on a monthly basis to the main office, the type cases and to make -- you know, to ensure that everything was handled and flowed, you know, reasonably.
Q. Were you responsible for running the office and managing the case load?
A. Yes, I was.
Q. And since you left Legal Services, as I understand it, then that was in 1981, you have been working for the Senate; is that correct?
A. Yes.
Q. For various committees and as a research director?
A. That is correct. I need to tell you that after I was here at the Senate the case did ultimately or it was ultimately held -- I mean heard at the Supreme Court and I told them that I would certainly want to do that and they allowed me to do that. I did not want any compensation, but I felt strongly about my client and I certainly wanted the experience.
Q. Is that the only case you've handled since 1981?
A. Yes.
Q. When you said in your opening statement that you go around to state agencies to handle some of these cases, what do you mean you go around to state agencies to handle some of these cases? In what way are you handling cases?
A. Well, they would always receive letters -- of course, they wouldn't need representation --
Q. I'm sorry.
A. If they didn't have denial of benefits --
Q. Okay, I'm sorry. Let -- if I can, are you talking about that was before 1981?
A. Yes.
Q. So since 1981, there is just the one case?
A. Yes.
Q. How do you think the lack of trial experience or litigation in the last, well, 13 years will impact on you as an ALJ? Will it make any difference?
A. I will be honest with you, I really don't think so and I need to tell you this, in some areas when I read, you know, the new law about what an ALJ would be responsible for, I think that there were some areas that hadn't been addressed, but from what -- the type experience that I have had, I don't think it would negatively effect it in any way.
Q. What are the areas you think have not been addressed?
A. Well, we -- I was just looking at the personnel and actually asking three judges to do what in my understanding would have been a lot more personnel to do in that time and I am sure I did also see in a section that said that it would be addressed by the General Assembly.
Q. As a chief judge, and apparently you've been thinking about this, what are you going to do about -- what will you do about personnel and the budget? What are your thoughts on that?
A. I always work with whatever I have. It's not -- I just look upon it as a challenge. I wouldn't tell you that I could do the same thing that I could do if, you know, you actually had given me a budget and I had more personnel, but I certainly would do the best that I would do. And I need to specifically tell you that in two weeks, I would pull together those three people because I understand that on -- from February 16th to March 1st, then we would actually be sworn in, pull together everyone during that time period of two weeks and start because we need to come up with some court rules and just some procedures as to how we would handle things and it would be three of us working together. It wouldn't be -- because this -- it will be difficult, but it can be done and I need to tell you that I'm accustomed to operating with as little as possible.
Q. Well, I guess --
A. It's a challenge.
Q. Have you given any thought to the specifics of the budget in the sense that the funds that are available now for the remainder of the year are just pro rata amounts for the judges' salaries? Have you given any thought to what the rest of the budget would look like?
A. You mean for other personnel?
Q. That's right.
A. Yes, I have given some thought to that and I would ask the Legislature to certainly take some action on that and I think that they intend to do that.
Q. But no specifics that you have in mind right now?
A. No.
Q. You alluded to this a minute ago, but what would be your managerial style?
A. My managerial style, I would -- well, we'd have to have a system obviously, so that we would do things in a timely fashion and I understand because of -- well, in any case that you have, I should just exclude that. In any type case, it is always very important to clients and sometimes it really does affect them at levels that we normally wouldn't be affected, so I think that it would certainly have to be timely. And the first thing I would do would be to look at how we can handle things timely, but efficiently because that is, you know, an equal concern.
Q. You also mentioned that you didn't like the way the agencies were handling the cases and at -- that was one of the things you liked at Legal Services was representing, I guess, in a sense the underdog. Does that pose any problem for you in terms of fairness or bias of when you're sitting as an ALJ hearing these cases involving state agencies?
A. No. And I need to correct you on something because I think or it could be my mistake, I don't have a problem with, you know, the way the agencies handle them, but what I was indicating is that no client would ever come in if the agency wrote them and said, "You've been granted your benefits." And so what I was telling you is that the only time we ever saw them was when there was a denial of benefit.

I have been a plaintiff's attorney, but I have no problem. I'm a fair person and I can be impartial and I think my -- some people may know, I just call it as I see it and -- as the law is.
Q. On your Personal Data Questionnaire on question 17, it asks you to list the five most important or significant cases that you've personally handled and you indicated that -- you listed one, but you didn't list others because files had been destroyed?
A. Uh-huh.
Q. Could you explain that to me, what do you mean by files have been destroyed and --
A. Certainly.
Q. -- I guess to give you an opportunity to flesh that out a little bit if -- without case names if you'd like to do that and give that to Ms. Satterwhite?
A. Certainly. I contacted the Executive Director of Legal Services and they'll be happy to provide a letter or talk with any of you and tell you that they've -- they go back
-- they only keep cases so long and then they've been destroyed. And so given the time period, I just couldn't give you the names of cases.
Q. But could you do that without names? I mean supply that to Ms. Satterwhite?
MR. ELLIOTT: I mean would you permit her to do that, Mr. Chairman, if she wanted to do that just some description of what those cases --
A. Oh, okay. I did -- I did a lot of --
MR. ELLIOTT: -- For her without the case name.
THE CHAIRMAN: That'd be fine.
A. I'm sorry. I didn't hear you.
THE CHAIRMAN: That would be fine.
A. I did a lot of housing cases. Employment security was always a big concern with the type clients that I handled. Social Security disability, I did quite a bit of.

And I just thought of something I did handle Social Security case for disability successfully not many years ago. I guess about four years ago, and many of you may recall that, and I need to bring this up because I -- and I hope this is permissible because I think all of you know that I did have a serious car accident and to -- you know, to just make sure that I was getting back in touch with everything, I did my own social security and handled some work at home because I just needed to stay alert and be agile and I was successful in that for myself.

And I do have a letter here addressing my health that I would like to submit to the Committee. This is not the original, but I can provide that. Am I allowed to do that?
THE CHAIRMAN: You may. And let me say at this time, I don't think inquiries by the Committee into health are fair areas of discussion. If you care to do that on your own, that's fine, but don't feel as though you're compelled to do that because of some questions we may have. I don't think that's a fair area of consideration for us.
A. I wondered about that, but the Bar -- that came up at the Bar and I thought, well, let me just anticipate a little bit and bring this in here.
THE CHAIRMAN: We're a little more thorough than they are, so I -- but let me just -- and I say because I don't think that's a fair area of questioning for us, but I would be happy to incorporate it if you think it will be beneficial.
A. Well, I was led to believe, and I'm not trying to implicate the Bar, but I thought that it sounded like some people might bring that up down here or be concerned about that and I wanted them to know that I'll say it for the record.

I was covered by one particular insurance carrier. They had me for disability and they had me for some other policies. Since that time when you have a close call with death like that, you think about things and look at them, Senator McConnell, and say I'm not sure that I have enough and, you know, maybe I should do these things, so I went out and increased some things which meant that I had to go back through physicals and these insurance companies, I mean, thoroughly contacted all my doctors, then they sent their doctor out. They gave me blood work. Could not believe my blood pressure. I think it was better than it was prior to the accident.

And I understood that quite a few lawyers had brought that question up. They were concerned about my health and since there was so much concern about it, I thought, well, maybe the Legislature will be concerned about it, so I did obtain a letter that I wanted you to have to know that that should not be an issue.
THE CHAIRMAN: Let's do that. Let's incorporate it into the record since that is your stated desire. We'll do that.
A. Thank you.
THE CHAIRMAN: Mr. Beatty.
REPRESENTATIVE BEATTY: I would just like to say, Sheila, you were fortunate, you did get to talk to some members of the Bar. We've been informed that they've issued reports on some candidates without having talked to them at all, so you are fortunate you got to talk to one.
Q. You're not asked to comment on that. What's The Roddey-McMillan Record?
A. I'm extremely proud of that. That is a newspaper at Winthrop College that is named for me and the first black graduate of Winthrop and I was the first black trustee and some black students came to us and asked if they could use our names for the paper. Did I mention that?
Q. You were asked. I don't see any reason why not.
THE CHAIRMAN: It's in your PDQ.
A. Okay.
Q. You've worked in the political arena for 12 years, a long time, so you know a lot of people. What's going -- if you're an Administrative Law judge, what are you going to be able to do and not do in that area that you may have done in the past?
A. I don't think I would handle that any differently than I would have whether I had worked here or not, but I'm extremely happy that you did ask me that question. If I can get to that later, but I want to tell you that if I am -- no, when I am elected judge, I wouldn't do anything any differently than I would have.

I consider being a judge, being a lawyer a very serious matter and there is nothing -- I just wouldn't handle it any differently.
Q. Well, when you wouldn't handle it any differently, how do you handle it now? I mean do you get involved in campaigns -- political campaigns?
A. If it's --
Q. Are you involved in advancing particular issues or candidates?
A. No, I'm not. In fact, when the senator that I worked for in the last election -- we certainly -- and, well, I've just never been involved anyway because he's had a committee and -- but I think everyone here at the Legislature was very particular about how it was handled after the new ethics law, but I will say that it wasn't handled any differently than it had been before.
Q. And when you say working, you meant working with the Senate and the Committee?
A. Right.
Q. Rather than the campaign?
A. Uh-huh. And I may address this because you alluded to something and it made me think about the fact that I do work for the Legislature and I've never forgotten that. I think, if anything, I would probably have penalized myself more so than some of the others candidates who are not staff members here because I have not contacted any one and I've just really gone overboard.

In fact, I see people that I normally, you know, would stop and chat with just, you know, exchange a few pleasantries and for that reason, I speak and keep moving because I certainly would not want them to think that I'm trying to influence them in any way.
Q. Thank you. Have you ever been held in contempt or sanctioned by a court for any reason?
A. No, I haven't.
Q. Have you ever been the subject of a disciplinary action in the course of your public employment?
A. No, I haven't.
Q. And you do not report any campaign expenditures; is that correct?
A. That's correct.
Q. That's all the questions I have, Mr. Chairman?
THE CHAIRMAN: Thank you, Mr. Elliott. Questions from the members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Thank you, sir. First before I asked my other questions, Ms. McMillan, I also was an attorney for the Legal Aid.
A. I know that.
Q. So I have some feel for getting put out there on the front lines pretty early, but isn't it true that in that particular position that if they met the guidelines and any of the classifications of cases at that time that you pretty much had to take them?
A. That's true. Whatever came in. Whatever, that was it.
Q. And almost whatever volume that came in?
A. We don't want to talk about volume.
Q. Just a couple of quick questions for you. Have you sought the endorsement of any group of members of the General Assembly or any caucus of the General Assembly?
A. I have not. In fact, as you properly have noted that I've made no expenditures. Like I stated earlier -- for the same reason that I stated earlier, I've been concerned that many people may interpret the fact that I have worked at the Legislature as that of being an insider or, you know, perhaps she will be given preferential treatment, so for that reason, and I think I have -- I hope that I really haven't offended them, but I think I probably did offend a few people because they say, "Sheila knew me well enough that she could have said that to me." I kind of see that, you know, when I pass and just speak and keep moving and it's like "Why did we have to read it in the paper?"
Q. Have you participated in a formalized interview process with anyone other than this Committee or the Bar Association?
A. No, not a formalized.
Q. Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with member of the Bar Screening Committee, Bar employees or lobbyists representing the South Carolina Bar either before you were screened or after you were screened, but prior to the Bar's screening report being made public?
A. No. In fact, I have some friends down at the Bar, a lobbyist, in fact, that I was classmates with and she -- you know, she was very concerned when I did have the car accident and I was very reluctant and I thought about it and did not even list her as a person that you nor the Bar would even contact as a reference although she'd gone to undergrad with me and law school as a classmate, but I was afraid to use her.
Q. Just a couple more questions. Obviously, Senator Moore is not in here right now, so I'll cover his ground for him.
THE CHAIRMAN: Please assume his role of questioning and line of questioning.
Q. What was the date you were first contacted by the Bar representative?
A. I was contacted on a Monday and told to be there on Wednesday morning.
Q. And do you recall what date the interview took place?
A. No, but I do have it in my office somewhere.
THE CHAIRMAN: The Monday you refer to is that last week?
A. It had to be last week.
Q. Do you recall where the interview took place?
A. South Carolina Bar Building.
Q. How many interviewers participated?
A. I guess it would be counted as two and one person served as stenographer since the person that was supposed to do it didn't come and two of the people that were on my committee could not come because they were in court, so I think she did kind of fill in as she was being the stenographer and then there was one other. So two, I guess.
Q. So two, a stenographer and interviewer?
A. Yes, but now she was also an attorney, but I think she was just filling in.
Q. Did you have any previous acquaintances with any of the interviewers?
A. No, I didn't.
Q. Do you know from what sections of the state they came from?
A. I think one is from Columbia, but I'm not sure even sure about the other two.
Q. Did you furnish a list of references to the South Carolina Bar?
A. I did.
Q. How many names did they -- did you furnish to them?
A. Either three or five. I can't recall. I may have given you -- if I gave you five, then I think I gave them three or vice versa.
Q. Do you know whether any or all were contacted of your own personal knowledge --
A. I do.
Q. -- by the Bar?
A. I do. One person told me that they were contacted and they said that they called the person back twice and he never returned their calls and she told me that she was definitely going to call him back and I think by then, though, they were calling me to tell me that my letter was going to be released.
REPRESENTATIVE BEATTY: Can I interject something, please?
SENATOR MCCONNELL: Yes, sir, please.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q. Are you saying that your person who was contacted by the Bar never really talked to the Bar?
A. Right. Unless she finally did -- now, I'm not saying that the other people didn't. I'm just saying that she was the one person that told me that.
Q. And when you -- when she finally got in touch with you, your letter was going to be released?
A. She told me on a night and that morning, I got a call saying that your letter, you know, is in the mail and I said, "Really. What do you mean my letter?" I don't want to offend the Bar.
Q. No one seems to want to do that. I wonder why?
A. There are members of the Bar in the Legislature. You're one of them.
THE CHAIRMAN: Further questions?
RE-EXAMINATION BY SENATOR MCCONNELL:
Q. Just one more, when and how were you notified of the results? Can you tell me, do you know -- recall when the date was that you got the results from the Bar?
A. I've had a lot going on with my life lately. That had to be Monday. I would think it would -- it was like a Monday or --
Q. You're referring to this past Monday?
A. Uh-huh. Monday or Tuesday.
Q. I wanted to be precise because I saw somebody's pencil in the room move and I want to make sure we get it down accurately. All right. I have --
THE CHAIRMAN: Thank you, Senator McConnell.
REPRESENTATIVE ALEXANDER: One question.
THE CHAIRMAN: Representative Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. Approximately how long did the interview last when the Bar interviewed you? Could you just give us a rough estimate.
A. Well, I had to wait and then -- it would be hard for me to judge that because the attorney that came in and filled in, you know, as a stenographer and also did some questioning was not on my committee. And so I -- no, no, I'm not trying to make fun of the Bar.
SENATOR RUSSELL: I know.
A. But anyway what I was trying to tell you is that -- so we sat down and talked awhile and then the member of the Bar that was going to screen me came in and she apologized for being late, so I really -- I want to be fair to everyone. I wouldn't want --
Q. I understand. But you don't have to answer if you're not comfortable with it. I'm just one wondering.
REPRESENTATIVE BEATTY: Wait a minute.
A. Because like I said I was there for a while.
Q. Okay.
A. And I did talk with the other young lady, but we were just talking and it would be unfair for me to say that, how long I was there.
THE CHAIRMAN: Further questions? If not, thank you, Ms. McMillan. We appreciate your being here.
A. Now I assume you already have a letter from the Bar saying I'm qualified.
REPRESENTATIVE BEATTY: Not that anyone read it.
THE CHAIRMAN: They have forwarded to us their findings on all candidates. Our next candidate is Nicholas P. Sipe. Mr. Sipe, come forward please. If you would raise your right hand, sir.
NICHOLAS P. SIPE, having been duly sworn, testified as follows:
THE CHAIRMAN: Have you had a chance to review your Personal Data Questionnaire Summary?
MR. SIPE: Yes, I have.
THE CHAIRMAN: Is it correct?
MR. SIPE: It is correct.
THE CHAIRMAN: Are there any changes or clarifications that need to be made?
MR. SIPE: No changes.
THE CHAIRMAN: Do you have any objection at this time to our taking that summary and making it a part of the record?
MR. SIPE: No, I do not.
THE CHAIRMAN: Thank you. That will be done at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Nicholas P. Sipe
Home Address: Business Address:
6120 Yorkshire Drive Department of Revenue and Taxation
Columbia, SC 29209 Alcoholic Beverage Licensing
1205 Pendleton Street
Columbia, SC 29201

2. He was born in Hickory, North Carolina on April 19, 1946. He is presently 47 years old.
4. He was married to Bokson Lee Sipe on April 16, 1977. He has four children: James, age 26 (sales for Cameron and Barkley); Roger, age 24 (debt collection for Richland Memorial Hospital); Damon, age 14; and Amber, age 12.

5. Military Service: U. S. Army from October, 1968 to February, 1972; discharged as a Captain; and the South Carolina Army National Guard from March, 1972 to present. He is currently a Colonel and commands the 151st Field Artillery Bde.

6. He attended The Citadel, September, 1964 - June, 1968; BA in Political Science; and the University of South Carolina School of Law, September, 1972 - June, 1975, J.D.

8. Legal/Judicial education during the past five years:
The focus of his continuing legal education has been administrative law. However, he has also taken courses in domestic relations law and criminal procedure. In 1991, he obtained 40 hours CLE credit for basic law enforcement training at the S.C. Criminal Justice Academy.

9. Taught or Lectured: In October, 1992, he lectured at the Regional Conference of State Liquor Administrators on ethics in a regulatory agency. In June of 1993, he made a presentation to the National Conference of State Liquor Administrators in Nashville, Tennessee, on "The Ethical Dilemma: The Law, Accepted Practices, Personal Standards."

12. Legal experience since graduation from law school:

November, 1975 - April, 1977 Private practice of law. General practice of law with an emphasis on family and commercial law.
April, 1977 - April, 1979 Hearing officer and legal counsel for the ABC Commission. Held contested hearings; prosecuted administrative violations before the Commission; advised the ABC Commission on legal issues.
April, 1979 - June, 1993 As Executive Director of the ABC Commission, his job involved the day-to-day application of administrative law. He continued to periodically prosecute administrative violations in contested hearings and review all Commission orders. He also represented two to three pro bono clients per year.

13. Rating in Martindale-Hubbell: He is listed but not rated as he has not been in the private practice of law since 1977.

14. Frequency of appearances in court:
Federal - 0
State - 2 to 3 per year (Family Court)
Other - 15 to 20 contested cases per year before the ABC Commission.

15. Percentage of litigation:
Civil - 0
Criminal - 10% (advising ABC agents on criminal matters)
Domestic - 2%
Administrative - 88%

16. Percentage of cases in trial courts:
Jury - 0
Non-jury - 100%

Sole counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) SC ABC Commission v. Sandra S. McCray, d/b/a Zoe's. This was an action to close a business as a public nuisance. He prosecuted the case before the ABC Commission, which ordered the revocation of Ms. McCray's beer and wine permit. This case was important as it established that loitering, littering and criminal activity inside of and in front of a place of business is a public nuisance.
(b) SC ABC Commission v. Dennis W. Chestnut, d/b/a Studio 90 Disco. This was an action to revoke a beer and wine permit for repeated violations. The Commission ordered the revocation of Mr. Chestnut's beer and wine permit. This case was important as it established that the Commission would revoke a permit for continued after-hours operation.
(c) SC ABC Commission v. James H. Moss, President, Fine Liquors Limited. This was an action to revoke a liquor license for numerous instances of selling liquor on credit and delivering liquor. The Commission found Mr. Moss guilty and ordered the suspension of his license for 15 days and a $5,000 fine. This case was important as it established that credit and delivery prohibitions would be enforced.
(d) SC ABC Commission v. Joyce P. Carrigg, d/b/a The Outback. This was an action to suspend the beer and wine permit of Joyce Carrigg for permitting an underage person to possess wine and permitting the possession of marijuana. Ms. Carrigg's beer and wine permit was suspended for 180 days. This case was important as it affirmed the seriousness of permitting underaged consumption and drug use on premises.
(e) SC ABC Commission v. Peter K. Yau, d/b/a The Graduate. This was an action to revoke the beer and wine permit of Peter Yau for repeated violations of serving beer to persons under the legal age. The Commission ordered the revocation of Mr. Yau's permit. This case was important as it involved continued violations in a bar catering to college students and put other such bars on notice that they must exercise care to prevent underaged consumption.

18. Five (5) civil appeals:

None.

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

April, 1977 - April, 1979 Hearing Officer for SC ABC Commission. Deciding contested permit applications in contested hearings - supervised by Tip Raysor, Executive Director, SC ABC Commission.

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

April 1979 - June, 1993 Executive Director, SC Alcoholic Beverage Control Commission. Managed the day-to-day affairs of the agency

July, 1993 - current Chief of Alcoholic Beverage Licensing, SC Department of Revenue

30. Federal, State or Local Investigation:
While he was never accused of any crime nor questioned about any criminal wrongdoing, the activities of the ABC Commission and its senior employees were placed under intense scrutiny by SLED last year.

40. Expenditures Relating to Candidacy:
Postage; August 11, 1993; $52.20

45. Bar Associations and Professional Organizations:
S. C. Bar Association; National Guard Association of S. C. (President, 1989); Field Artillery Society of the S. C. Militia (President, 1990)

46. Civic, charitable, educational, social and fraternal organizations:
Columbia East Rotary Club (President, 1989), Paul Harris Fellow; Richland County Guardian ad Litem Program; S. C. Bar Pro Bono Program; Trenholm Road United Methodist Church; Order of the Palmetto - 1990

47. His service in state government since 1977 has shown him the tremendous impact that administrative law and regulations have on the lives of citizens of this state. He believes that experience, along with his extensive experience as an administrator, qualify him to serve as chief administrative law judge.

48. Five (5) letters of recommendation:
(a) F.M.C. Fralix, President
State Credit Union
P. O. Box 726, Columbia, SC 29202
343-0300
(b) B. Boykin Rose, Director
S. C. Department of Public Safety
5410 Broad River Road, Columbia, SC 29210-0426
896-7883
(c) Rev. Regi Thackston
Trenholm Road United Methodist Church
3401 Trenholm Road, Columbia, SC 29204
254-6695
(d) Major General T. Eston Marchant
The Adjutant General
#1 National Guard Road, Columbia, SC 29201-4766
748-4217
(e) Joe E. Berry, Jr., Esquire
Berry, Dunbar, Daniel, O'Conner, & Jordan
P. O. Box 11645, Columbia, SC 29211-1645
765-1030

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 applicable law enforcement agencies, being the Richland County Sheriff's Office, the Columbia City Police Department, SLED and FBI, are all negative. The Judgement Rolls of Richland County are negative. Federal court records are negative. No complaints or statements were received. No witnesses are present to testify against you.

At this time, I'll give you the chance to as we have the other candidates to make a brief opening statement followed by questions from Mr. Elliott.
MR. SIPE: In the interest of time, I'll waive any opening statements.
THE CHAIRMAN: Thank you very much. Mr. Elliott.
MR. SIPE - EXAMINATION BY MR. ELLIOTT:
Q. Good morning. You were Executive Director of the ABC Commission for 14 years, could you tell me what was your experience with the contested case process during that 14 years?
A. The -- my first two years with the agency, I was a hearing officer and actually heard contested violation and application cases. During the next couple of years after that, I would prosecute violations before the Commission and a fairly high volume of those, probably eight to ten a week.

As Executive Director, my actual involvement in contested cases was lower, but I would still from time to time on serious matters would prosecute the -- usually revocation and suspension actions before the commission.
Q. What would from time to time be?
A. Two to three to four a month, I would estimate it. It varied depending on the demands on it. We only had one other attorney. In many cases, it depended on the demands on his time. We would try to share that.

If he was gone, I would try to pitch in and help or also just the severity of the cases. There were some I wanted to personally become involved in.
Q. Could you speak to -- for a minute to your managerial responsibilities as the executive director of the agency?
A. I was responsible for the daily operation of the agency, the budgeting, hiring of personnel, the discharge of personnel, all aspects of just day to day administration.
Q. Most of your experience -- administrative experience seems to be with ABC licensing; is that correct?
A. That is correct.
Q. What do you know about the other areas of the substantive and procedural administrative law and what would you do to equip yourself to understand those areas in which you are less familiar?
A. Well, outside of ABC in areas of administrative law, my areas of actual experience are very limited. When I was in the private practice of law before coming with the State, I did appear before some administrative agencies, but that's been an awful long time ago and, of course, my memory of those would not be very strong, but I'm a quick study and I do my homework.

If I would have a case dealing with an agency with which I was not familiar, I would prepare myself for a hearing.
Q. And how would you do that?
A. By reading the law and reading the regulations.
Q. What are your thoughts on presiding over cases involving ABC licensing if you become an ALJ?
A. I would not see any problem or difficulty with doing that. I think while the rotation scheme that is set up is very healthy and valuable, I think that is good. But on the other hand, I think you need to build a level of expertise in a certain area, so I would not be at all uncomfortable with hearing ABC cases, but also think that needs to rotate, so you don't have someone that becomes too set in a particular area and keeps a broader view of the State administrative agency.
Q. Would you participate in any of the ABC licensing matters in which you prosecuted?
A. Oh, absolutely not.
Q. I notice on your Personal Data Questionnaire that you do some pro bono Family Court work?
A. Yes.
Q. How do you avoid a conflict there between your service with the State and performing those pro bono -- or handling those pro bono cases?
A. I haven't seen any conflict at all because the type of case that I handle has generally been in the Family Court. I have not taken anything that could possibly conflict with my state duties.
Q. Well, how do you handle the typing of pleadings, the appearances in court, the time you have to be away from the office?
A. I've taken annual leave to do that and, of course, all the pleadings, I have a PC and printer at home that I do that on my own time with my own equipment.
Q. Same sort of question, now how do you separate your public employment with seeking this position as ALJ?
A. I have not used any state time or equipment to do this and would not. Of course, all I've done up to this point is mailed out a letter to members of the General Assembly informing them of my candidacy and that was, of course, done on my time with my equipment.

Once this committee has rendered its report, I will take annual leave until the matter is resolved.
Q. You've been Executive Director of the ABC Commission and as you said, you managed the day to day affairs of the commission. I guess as my father used to say, "Are you bragging or complaining?"

It's been a rough time in the last several years, what responsibility do you bear for some of the troubles at the ABC Commission, if any?
A. I don't feel that I really bear any responsibility for what happened. Someone's criminal activity that's done out of my sight, I don't think I can -- I'm not going to sign off and bear any responsibility for that. Any activity of which I was aware of that was criminal, I reported it to the proper authority immediately upon my knowledge of the activity. And that was done on two separate occasions years before this thing came to a head, so I think I did the appropriate thing at the appropriate time and will not bear any responsibility for what transpired.

I also think it's a real shame. There are a tremendous number of dedicated and hard working employees that serve the public very, very well. Not only before this very troubling period, but during it and I don't think they should be slammed by the improper conduct of the -- of a few people.
Q. All right, sir. There were some indications of the commission handling at lot of the hiring decisions during the time you were Executive Director and some other similar kinds of allegations. As Executive Director was there any way you could have handled any of that differently?
A. Hiring decisions were a constant battle with the Commission. I worked very hard and we eventually were able to put into the law that agents would be hired based on specific criteria which we had a very sophisticated hiring procedure that was eventually put into place in response to the tremendous Commission input on the hiring decisions, so that situation had pretty much been fixed and a lot of the things that were in the paper were things that predated our formalized hiring policy.
Q. Did you initiate that formalized hiring policy?
A. Yes, I did.
Q. I also saw on your Personnel Data Questionnaire that you've lectured at the Regional Conference of State Liquor Administrators on ethics in a regulatory agency and made a presentation at the National Conference of State Liquor Administrators on certain ethical dilemmas. What was your message?
A. My message was basically telling them what can happen to an agency, especially an agency that regulates alcoholic beverages which is very vulnerable to people constantly pushing to obtain an advantage in the market place. The message was, though, you really have to exercise with caution everything -- any time you interact with the industry that you regulate, that you must maintain separation from that industry. And not only it has to be legal, it has to -- the appearances must be above reproach and that was generally my message to my fellow administrators.
Q. As an administrative law judge, what deference do you owe to an agency's interpretation of statutes?
A. Under existing case law, you owe deference to an agency's interpretation of the statutes and regulations that they are empowered to administer. However, that is not to rubber stamp what the agency is doing. I think also in the case law, once the agency has found fact, you're pretty much bound by those facts unless it's clearly wrong, but I think the role of administrative law judge is to make ultimately sure that the people are being treated fairly and that the agency is correctly interpreting the laws and regulations. And I certainly would not be rubber stamping an agency's interpretation of anything, but I think it would -- it needs to be given some deference and looked very closely as to why you're overturning something before you do.
Q. You mentioned the standard of which you would review the facts or the evidence?
A. Yes.
Q. What is that standard?
A. Well, under the existing -- if you're holding a hearing, of course, this is a -- the situation is changing as the administrative law judges come on. If the administrative law judge is the initial fact finder, then it's -- you'll be making your own determination of the facts.

On the other hand, if you're reviewing an agency decision, the standard is it must be clearly wrong I think before you can overrule it.
Q. What thought have you given to the resources and staff that the division will need?
A. I've given a great deal of thought to it. I'm extremely concerned with -- of course, as we know, the budget only gives salary for the administrative law judges for the remainder of this year and then I think a few thousand dollars of supplies and travel and whatnot.

The resourcing of this agency, which has to be up and running by March 1, is going to be a very serious problem and I'm not sure exactly how that -- can be accomplished without drawing on other existing agencies or the executive branch of government to borrow people to get this thing functioning because effective March 1, a lot of people will not have services, will not be able to obtain, for example, a beer and wine permit if it's contested until this division is up and running, so it must -- there can't be a long period of time where the agency is getting organized and -- organized and deciding how these things are going to be done.

It's really got to hit the ground running on the 1st of March. Numbers of personnel, I don't have an exact figure I can give you, but certainly court reporters are going to be required and secretarial assistance will be required.
Q. Where would you borrow resources or borrow office space? Would it be fair, for example, to move down to the Department of Revenue and Taxation?
A. Well, they might not smile at that, but I think you would have to look at the agencies that absorbed the functions, for example, the ABC commissioners, those functions and personnel were absorbed by the Department of Revenue and SLED, so for ABC matters. I think you would need to look to those agencies to provide those resources.
Q. Well, does that create any kind of conflict if you're going to be sitting and hearing their cases?
A. You would have to look at what roles those employees are playing. If it's merely court stenographer or if it's merely secretarial, I'm not sure that would be any problem at all. In fact, I don't think it would be.
Q. Have you ever been held in contempt or sanctioned by a court for any reason?
A. I have not.
Q. Have you ever been the subject of a disciplinary action in the course of your public employment?
A. I received a letter of reprimand approximately 12 years ago for making a written recommendation to the Commission on a hiring situation that offended them greatly. And I was reprimanded for doing so.
Q. Is that during the period of time when they were making the hiring decisions?
A. That is correct.
Q. Were there any others?
A. No.
Q. Have you sought directly or indirectly the pledge of a legislator's vote for you for the position of administrative law judge?
A. I have not.
Q. Are you aware of any solicitation without your authorization or request?
A. No.
Q. And I think we note that he's only -- you've only filed your campaign expenditures with this committee. You need to -- is that correct -- you need to file that with the House and Senate Ethics Committees as well.
A. Okay.
MR. MCCONNELL: Do any members of the committee have any questions?
SENATOR RUSSELL: You want me to go first?
SENATOR MCCONNELL: If you wish, go ahead. Senator.
EXAMINATION BY SENATOR RUSSELL:
Q. You've just completed a hearing and two of the individuals that appeared before have asked you to go to lunch with them, what will you do?
A. I would decline. I think it's probably legal to do so and perhaps ethical as long as if -- as long as I paid my own way, but I would still decline because I really think appearances are everything and if I'm sitting there smoking and joking with one or both of the attorneys that have just argued their case before me and a member of the public or one of the people that had the case comes in and sees that, they're automatically going to think the worst and that's just not the type of image that we need and I would not accept the invitation.
SENATOR MCCONNELL: Any other questions? I have a few for you.
EXAMINATION BY SENATOR MCCONNELL:
Q. 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 a formalized interview process other than this panel here or the South Carolina Bar?
A. No.
Q. Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the Bar Screening Committee, the South Carolina Bar employees or lobbyists representing the South Carolina Bar either before you were screened or after you were screened, but prior to the Bar's screening report being made public?
A. The only communication I had was a telephone call that I received telling me when and where to appear for my screening. It was a two-minute telephone call and, of course, the letter I received from the Bar asking that I provide the various information, which I provided, and that's the only communication I've had.
Q. All right. Some additional questions, Senator Moore is down on the floor at the moment. What was the date you were first contacted by the Bar representative?
A. I received a letter from the chairperson of the committee late November, I believe it was, asking that I provide additional references and information which I provided.

I received a telephone call Monday, I think that's December (sic) the 2nd from the chairman of the subcommittee that was going to do the interviewing and was told to appear the following Wednesday for the hearing.
Q. And did the interview occur on that date?
A. It did. Wednesday, I think around either the -- I think the 5th at the -- at the Bar Association.
Q. And the interview, it took place at the South Carolina Bar?
A. That is correct.
Q. And how many interviewers participated?
A. There was supposed to be three on the subcommittee. One of the interviewers, his wife was sick and did not appear, so there were two people there.
Q. And how long did that interview last?
A. I would estimate around 25 minutes. 20 to 25 minutes.
Q. And do you know from what section of the state those interviewers came from?
A. Yes. One was Richland County, one was Lexington County and the gentleman that was unable to appear because his wife was sick, I think was Greenville County or Anderson County, one of those. I'm not sure which.
Q. Did you have any previous acquaintance with any of those interviewers?
A. I knew the chairman of the subcommittee, yes. Just in a casual -- I've had some contact with him of a professional nature in my job as director of the ABC commission.
Q. Did you furnish a list of references?
A. I did.
Q. How many references did you give them?
A. Five.
Q. And do you know how many were contacted by the Bar of your knowledge?
A. I don't know. Three or four of the references have made contact with me in passing that they were contacted.
Q. And how were you notified of the results?
A. I received a letter in the mail. I think it came this past Monday.
Q. Mr. Chairman, I have no further questions.
THE CHAIRMAN: Thank you, Senator. Senator Moore, do you have any questions?
SENATOR MOORE: No, I think mine have been answered.
THE CHAIRMAN: Mr. Elliott.
RE-EXAMINATION BY MR. ELLIOTT:
Q. Just one thing, to sort of correct something I told you, I found my statement of your campaign expenditures. Do you have any expenditures beyond the fifty some odd dollars you reported?
A. I do not.
Q. Then you do not need to file with the --
A. When I cross a hundred dollars, is that when --
Q. Yes, sir.
A. Yes. I have not expended anything since I filed my report.
Q. Thank you.
THE CHAIRMAN: Questions from the Members? Any other questions? If not, thank you, Mr. Sipe.
REPRESENTATIVE BEATTY: Oh, one question.
THE CHAIRMAN: Representative Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q. Are you active in the Bar?
A. Active in the Bar, my membership is valid, but I'm as far as active, I do volunteer with the pro bono program and that's my only --
Q. Have you ever been active in the Bar?
A. I have not.
Q. You never served on any committees or anything of that nature?
A. I have not.
THE CHAIRMAN: Thank you very much.
A. Thank you.
THE CHAIRMAN: Our next candidate N. Steven Steinert. Mr. Steinert.
MR. STEINERT: Mr. Chairman.
THE CHAIRMAN: If you would raise your right hand please.
N. STEVEN STEINERT, having been duly sworn, testified as follows:
THE CHAIRMAN: Have you had a chance to review your Personal Data Questionnaire Summary?
MR. STEINERT: Yes, sir, I have.
THE CHAIRMAN: And is it correct?
MR. STEINERT: It is correct. I would make one comment on the financial disclosure, the potential conflict, I thought in terms of financial only and indicated that there were none. Having reviewed it again, realizing that my wife is the Chairman of the Board of a hospital in Charleston and also a member of a board of another hospital, I think the record needs to reflect that and I would recuse myself on any matter that related to CONs or any other hospital issue that would impact in the Charleston area.
THE CHAIRMAN: All right, the record will be amended to reflect that addition. Any other changes?
MR. STEINERT: Only I'm going to have to update postage on the financial side, a few dollars.
THE CHAIRMAN: Is there any objection to our making the summary a part of the record of your sworn testimony?
MR. STEINERT: No, sir, I don't believe so.
THE CHAIRMAN: Thank you, and we'll do that at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. N. Steven Steinert
Home Address: Business Address:
42 Hasell Street 15 Broad Street
Charleston, SC 29401 Charleston, SC 29401

2. He was born in Charleston, South Carolina.

4. He was married to Harriett Rittenberg on September 3, 1967. He has two children: Leslie, age 20; and Joanna, age 18.

5. Military Service: Sgt; U. S. Air Force Reserve; AF14990087; Honorable Discharge; 1967-1972

6. He attended the University of Virginia, 1963-1967, B.A., Government; the University of South Carolina, 1967-1969, M.A. in International Studies; Emory University, 1970-1972, Ph.D., Political Science; and the University of South Carolina, 1984-1987, J.D.

8. Legal/Judicial education during the past five years:
In addition to the required hours, he has taken a 50-hour course and has been certified as a mediator.

9. Taught or Lectured: No law-related courses, but he has taught both graduate and undergraduate courses at the College of Charleston. He is presently teaching Introduction to Urban Studies.

10. Published Books and Articles:

"The Quasi-Experiment as a Tool for the Study of Public Law," presented at the 1973 Annual Meeting of the American Political Science Association, New Orleans, Louisiana, September 4-8

"The Impact of Supreme Court Decisions as a Function of Personal Political Factors: An Experimental Approach;" GPSA Journal, II; Fall, 1974

Co-Author: "Southern Jews: Old Wine in New Bottles," presented at Virginia Conference on Urban Studies; Norfolk, Virginia; February 13-14, 1975

Co-Author: "Court Reform: State of the Art;" presented at 1975 meeting of the Midwest Political Science Association; San Antonio, Texas; April, 1975

Co-Author: "State Court Management: The State of the Art;" Public Service; January, 1976

Co-Author: "Southern Jews: Old Wine in New Bottles;" Jewish-Social Studies, XXXVII; Summer-Fall, 1976

Editor: South Atlantic Urban Studies; Vol. I; University of South Carolina Press; Columbia, South Carolina

Editor: South Atlantic Urban Studies; Vol. II; University of South Carolina Press; Columbia, South Carolina

12. Legal experience since graduation from law school:

January, 1986 - December, 1989 Associate, then partner - Finkel, Georgaklis, Goldberg, Sheftman, and Korn - Attorney in charge of Charleston office of Columbia law firm
January, 1990 - December, 1992 Associate; Wise & Cole; Charleston, South Carolina
January, 1993 - present solo practitioner - general civil practice

13. Rating in Martindale-Hubbell: Not listed in Martindale-Hubbell; cannot be considered until you have been in practice for five years. He has requested that he be rated.

14. Frequency of appearances in court:
Federal - once/year
State - three/year
Other - City and County Boards and Commissions: 8/year

15. Percentage of litigation:
Civil - 100%
Criminal - 0%
Domestic - 0%

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) Medical University of S. C., Housing Authority of the City of Charleston, Charleston County School Board, State PRT, State Department of Highways and Public Transportation, State Wildlife Department, et al. v. County of Charleston. Significant in the area of public finance. Challenge by tax exempt agencies to a county imposed user-fee. Resulted in creation of true user fee rather than a tax in the guise of a fee.
(b) DeLee v. South Carolina Department of Corrections. Presently pending in Federal Court. Raises substantive questions in area of sexual harassment. What is obligation of employer once he is made aware of impermissible behavior on part of his supervisory employee?
(c) State Resources, Inc. v. Gerald Arthur, et al. Presently pending in Federal Court. Interesting issue as to whether or not accountant, relying on data presented to him by client, has duty to unknown third parties.
(d) Botchie v. O'Dowd. Presently on remand from State Supreme Court. Significant question relating to limits on authority of a sheriff to fire a deputy. Can a deputy be fired for exercising a constitutionally protected right?
(e) Bunch v. City Council of the Isle of Palms. Successfully represented the Isle of Palms Council when mayor refused to recognize change in form of government. Presented novel issues of local governance.

18. Five (5) civil appeals:

He has not personally handled any appeals.

22. Public Office: Administrator, County of Charleston, 1979-1983, appointed

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

County Administrator; Charleston County, South Carolina; November, 1979 to August, 1983

Special Assistant to the Secretary; U. S. Department of Commerce; May, 1979 to November, 1979

Director of Congressional Relations; U. S. Department of Housing and Urban Development; April, 1977 to May, 1979
Associate Professor of Political Science and Director of Urban Studies; College of Charleston; Charleston, South Carolina, 1972 to 1977

Special Assistant to the Mayor; City of Charleston, January-June, 1976

Research Specialist, Atlanta Model Cities Program, 1969-1970

Urban Intern, U. S. Department of Housing and Urban Development, 1969

Page, U. S. House of Representatives, 1961-1963; Overseer of Pages, 1963

28. Financial Arrangements or Business Relationships (Conflict of Interest):
He is aware of no such arrangement or relationships. If there were to be such a conflict, he would immediately disclose the conflict and disqualify himself from any further involvement on the matter.

32. Sued: He was sued for legal malpractice. Case was dismissed for Plaintiff's failure to prosecute.

45. Bar Associations and Professional Organizations:
House of Delegates, South Carolina Bar; Chairman-Elect, Charleston Ballet Company; Board of Directors, Calhoun Corridor Project; Delegate, Government and Administrative Law Section, South Carolina Bar

46. Civic, charitable, educational, social and fraternal organizations:
Former: President, Charleston Trident Chamber of Commerce, 1991; President, Synagogue Emanu-El, 1991 and 1992; Board of Directors, Amazing Stage; Chairman, Citizens Task Force on Governmental Reform, 1988; Leadership South Carolina, 1987; Trustee, Charleston Memorial Hospital; Commissioner, Charleston Parks, Recreation and Tourism Commission; Board of Directors, National Association of County Administrators; Board of Directors, Jewish Community Center; Land Use Policy Steering Committee, National Association of Counties; South Carolina Association of Counties; International City Managers Association; American Society for Public Administration; American Political Science Association; Southern Political Science Association; Pi Sigma Alpha; Board of Directors, Charleston Museum; Co-Chairman, Citizens Advisory Committee on Land Use; Board of Directors, United Way Planning Board; Board of Directors, Charleston Opera Company
Awards: Charleston Trident Chamber of Commerce, Small Business Person of the Quarter, 1988; National Association of Counties Achievement Awards - 1980, 1981 and 1982; South Carolina Association of Counties Achievement Award, 1980; Fellowship and Graduate Assistantships, Emory University, University of South Carolina; National Science Foundation Award, Emory University

48. Five (5) letters of recommendation:
(a) John M. Jordan, Jr., Executive Vice President
National Bank of South Carolina
P. O. Box 1299, Charleston, SC 29402-1299
724-7023
(b) James D. Bradley, Chief Executive Officer
Charleston Trident Chamber of Commerce
P. O. Box 975, Charleston, SC 29402-0975
577-2510
(c) W. H. Nicholson, III, Esquire
Nicholson & Anderson
P. O. Box 457, Greenwood, SC 29648
229-7241
(d) Barry L. Gleim, Ed.D., President
Johnson & Wales University
PCC Box 1409, Charleston, SC 29403
727-3008
(e) Thomas S. Tisdale, Jr., Esquire
Young, Clement, Rivers & Tisdale
P. O. Box 993, Charleston, SC 29402
577-4000

We've checked with the applicable law enforcement agencies: Charleston County Sheriff's Office records are negative. Charleston City Police Department records, negative; SLED and FBI records as well are negative. The Judgement Rolls of Charleston County are negative. Federal Courts are negative as well. We have received no complaints. We do have a witness who is here to testify in your case. I think there may be several people who are here to testify in your review.

Prior to turning you over to Ms. McNamee for questioning, I would give you the opportunity that we have given the other candidates, and that is to make a brief opening statement.
MR. STEINERT: I would only -- thank you, Mr. Chairman, and I appreciate the opportunity. Human nature being what it is from time to time in this process, I've asked myself why I've subjected myself to it and it really occurred to me when I was in Spartanburg the other night at a meeting that Mr. Beatty and Mr. Russell were both at where the issue of -- belabored issue of day-care regs came up that had been put out by DSS. And I listened long and hard to what people were saying and it just struck me that if there had been an administrative law section in place and a judge said to DSS, you know, these regs are important that I don't understand them. They don't make sense. If I don't understand them in the context of this hearing, you're not going to be able to implement them around the state without a great deal of controversy and a great deal of confusion. Go back, write them in English and then let's have our hearing.

It struck me that there really is a wonderful opportunity to move forward in this state and to avoid so many of the problems that we now have as a result of not having an Administrative Law section and it also struck me that my background, both academic, administrative and legal, suited me for this position and I offered myself to you on that basis.

I would tell you that I have studied, taught and written about government. I have served in government at the state, federal, county and city levels. I have litigated against government in my years of private practice and I think I bring a fairly balanced view to the court.

I certainly am not antigovernment, but I'm not a captive of the agencies and while I certainly give deference to agency work, I understand the frustration of individuals trying to access the system and the need for individuals to access the system. You have asked questions about regionalism, for example. I think down the road this court should be regionalized. I think it should be made available to the people of this state. And for that reason I offer myself to you.

I would also simply comment on my services as County Administrator and both Executive Assistant to the Mayor of the City of Charleston. I ran a payroll of well over a thousand people, over forty million dollars, ran hospitals, police departments, libraries. At the College of Charleston, I started the Urban Studies program. I believe that the Administrative Law, the chief judge's position is going to be largely administrative. It's going to take somebody who understands how to run it and manage and get things done and I believe I can do that. I hope you give me the opportunity.
THE CHAIRMAN: Thank you, Mr. Steinert. Ms. McNamee.
MR. STEINERT - EXAMINATION BY MS. MCNAMEE:
Q. Thank you. Going into that, Mr. Steinert, what is your management style? What do you foresee being the way you will get this agency going?
A. Well, a court by it's very nature is collegial and I think that we would have to all function in terms of running the court, managing the court. I do think, though, that the major responsibility will be on the chief judge, both the case assignment, case rotation, lobbying, if that's the appropriate term, to get resources from the Legislature and I would take responsibility for those things.
Q. How would being the chief judge then effect your case load personally?
A. That, of course, remains to be seen, but I would expect that a substantial part of my time really would be administration and management at least early on. I don't think anybody really knows the answer to that question.
Q. Mr. Steinert, since you've graduated from law school, I believe it was 1987?
A. That's correct.
Q. You have worked for two different law firms and you are now a sole practitioner?
A. That's correct.
Q. This position that you seek here is a five-year position and commitment and I'm kind of weighing the two of them, I would like you to respond to the question, are you willing to make a five-year commitment --
A. Absolutely. What you've seen in the last seven years is the evolution of any individual who recently graduates from law school. I think it takes a while to find your niche and to figure out where you're comfortable. It has nothing to do with moving around for the sake of moving around.
Q. Can you tell us how like your solo practice?
A. I love my solo practice. The partnership meetings are wonderful. Very little disagreement.
Q. What is that practice? Can you describe that, please?
A. It is a totally civil practice. It's largely business and corporate, some small amount of plaintiff's work, but essentially, it's a business practice. And I do a lot of work with city and county agencies, administrative at the local level.
Q. You stated in your PDQ that you appear three times a year in state court and maybe eight times a year before city and county commissions. That was in your PDQ?
A. Yes.
Q. I guess that's correct. And is this the extent of your trial and courtroom experience and is this an adequate base of experience from which to become the chief ALJ?
A. I think it is and, you know, I've been in practice now six or seven years, six years plus. You tend to settle more cases than you litigate. At least I think if you're a good attorney, you do.

The cases that I have litigated that I've listed are substantial cases and the cases that I listed for you, I listed because I believed they indicate the administrative nature of the litigation practice. They are all cases that involve the government on one side or the other.

I represented the City Council of the Isle of Palms and it was a very peculiar case. It was the Isle of Palms versus the Isle of Palms in which the City Council was suing the mayor because the mayor refused to recognize the outcome of an election which changed the form of government.

I represented a number of state agencies in a case against County Council -- Charleston County Council on the constitutionality of the user fee. So those cases are -- I believe are substantial cases, they're interesting cases and they indicate the breadth of my knowledge of government.
Q. In your PDQ, you say you are seeking a Martindale-Hubbell rating. Have you made any progress or could you tell us --
A. They haven't written me back. I had understood that you could not seek one until at least five years. I forgot to do it until I saw the questionnaire and I said, yeah, I really need to do that and so I have written Martindale and asked for a rating, but have not heard from them.
Q. Judicial temperament, and I've asked this question of several people, has been described as having the qualities of patience and open-mindedness and courtesy, tact, firmness, understanding, compassion, humility. Which of these -- if you could rank them, which are the most important for an ALJ judge and why?
A. Well, I think it's difficult to rank those. I think they're all extremely important and I think judicial temperament is something you have or don't have. I don't believe it's an acquired skill.

I think you perhaps evolve over time based on what your own personal history is. I think you have to be open. You have to have a certain degree of caring. A lot of what we're going to do is going to be fairly boring, so you have to be very patient, but to rank things that comprise judicial temperament to me makes no sense. I don't mean to disparage the question.
Q. That's fine. Is any one of those qualities your strongest suit?
A. I've got to work on --
Q. Which of them are?
A. I've got to work on patience, but I am certainly open-minded and fair.
Q. Your experience as a county administrator, your teaching on the college level and your experience in Washington, how do they bring you skills for this job?
A. Well, the -- if you know anything at all about being a county administrator, particularly in a county like Charleston, you learn a tremendous amount. If you lived to tell the story, I think that in itself is an accomplishment. Seriously, it does give you the breadth of management, budgeting, personnel skills and, you know, the thing that I like so much about being county manager which is what I like about practicing the law is the intellectual requirement of learning new things all the time.

I mean you run a police department. You run EMS service. You run a library system. You have to manage the example of elected officials, how you deal with an elected sheriff, an elected Clerk of the Court. It gives you the skills that I think are going to be necessary for managing a collegial court. I mean you can't order when you're the county administrator the treasurer to do something. At least you can't order at the treasurer to do anything, but you learn how to work with them.

Same way with entrenched bureaucracies that you inherit even though people work with them, how you manage people, how you budget, how you budget with scarce resources, so I think that's important.

I was in Washington, I had two positions. One, I was special assistant to the Secretary of Commerce and the other, I was Director of Congressional Relations, Department of Housing and Urban Development.

At the Department of Housing and Urban Development, I managed a staff of about 50 political appointees, all of whom had their own agenda, all of whom felt that they were better than I and should have been director of the office or even Secretary of the department and again I think you learn those people skills that are going to be extremely important in this job.

One of the things that I believe this court should correct is the feeling amongst the general public that they don't have a chance when they come up against a state agency. It's a perception that may not be correct, but the perception is real and I think that having the skills of dealing with people who come to this court and being open and responsive to their needs within a structure is to be extremely important.
Q. Having been in the political arena this long, and I think we're talking about 20 years, at least or so, and with all the numerous friendships and the contacts that you have with all kinds of elected officials whether they are local, state or even federal, how will you handle the transition from this kind of environment to the ivory tower of a judgeship?
A. Well, I would certainly welcome it, but each man in his time plays many parts and I think it's the mark of success to be able to move and to adopt to the environment that you're in. I was a very different person as county administrator than I am now as a lawyer suing Charleston County. I don't see that as a problem and I think people who know me really respect me for that. I believe I'm evenhanded and fair in whatever context I operate in.
Q. You've lived most of your life in Charleston and you are a very active member of that community --
A. That's correct.
Q. -- by being the president of the Trident Chamber of Commerce and president of your synagogue at one point, hospital boards and PRT Commission for Charleston, now being the chairman of the Charleston Ballet. How many of these things will you continue -- will you be able to continue with? How will you structure your social contacts?
A. Since my term as president of the Chamber of Commerce is ended, I've really cut back on a tremendous amount of my civic activity. I think I'm on two or three boards now, including the ballet, and frankly I would welcome the opportunity to get off that board. I think all the those activities would be curtailed.

I mean I could not be in Columbia doing this job and be of service in Charleston.
Q. Does having the ALJ Division's principal office here in Columbia and you being a resident living in Charleston, does that pose any problem for you?
A. No, ma'am. Not really.
Q. How do you deal with that?
A. My children are both in school. One is 20 and one is 18. They're both away at school, so I don't have parental obligations. My wife and I, because of the nature of what she does and the nature of what I've done, we've been married 27 years and have lived in different cities separate and apart at various stages in our marriage and that's just not an issue.
Q. Can I ask you what is the Calhoun Corridor project?
A. We're trying to figure that out. It is -- in Washington, if you're familiar with the Pennsylvania Avenue Development Corporation, Calhoun Street is the major east west street in Charleston. A new bridge is just come in at one end, the aquarium is going at the other and the city is very concerned about how it develops and the city has put a board together to try and structure development along that corridor. It has really not made a great deal of progress and I plan to resign from that regardless of what happens.
Q. On your Statement of Economic Interest, you list a contingent liability in a Carolina Conference?
A. That's correct.
Q. Would you tell us about that?
A. It's -- it was a bad investment that I made. We, a group of us, required the principal to take out keyman insurance. He subsequently committed suicide. The insurance proceeds have been paid into the court in an intermediate (phonetic) action and we're waiting to see whether we're going to get them to cover our personal guaranties or whether the IRS is going to get them.
Q. As an administrative law judge, could you tell us a little bit about how you will go about making your decisions and writing them, the analytical process that you will go through.
A. Well, you know, I think we certainly need findings of fact and conclusions of law. If the issue, as I know you've asked others, whether they will do their own writing or whether to have lawyers prepare, I think a lot of that depends on the resources available to us.

If we can staff the court appropriately so that we have the resources, I would certainly prefer to do my own. I enjoy writing. I enjoy that exercise. I think it's going to be probably in the early days of the court much more important to move cases along and move them quickly and we're probably going to have to make some compromises.

I would certainly not give carte blanche to attorneys to prepare orders. I would require that they distribute them amongst themselves before giving it to me and reserve the right to add an amendment or change my mind.
Q. And how would you go about learning the substantive law of all these different areas that you need to know about?
A. You know, I think that the thing that I enjoy about practicing law the most is that every time a new client comes in the door, you need to learn something that you didn't know before. I spent my entire academic life avoiding science courses. Anything that -- in fact, I didn't want to major in political science because it sounded like science.

One of the first big cases I had came out of the medical university and it related to the synthesis of protein and the bonding of the molecules. I can tell you that I don't believe there will be any issue that I will ever no less about that will come before the ALJ than that and what do you do? You read. You talk to the parties. You get the facts and you go forward. And to me, I don't see any difference.

Here, you know, someone asked a question about whether we -- asked one of the candidates whether I thought that -- or whether they thought that there should be specialization amongst ALJ judges, I do not believe that. I think that it would be frankly a very, very, very boring job if one only heard cases arising out of a certain agency. I think you need to have good people who are flexible enough and bright enough to move across the range.
Q. Mr. Steinert, have you ever been held in contempt or sanctioned by a court for any reason?
A. I have not.
Q. Have you ever been the subject of a disciplinary action arising out of public employment?
A. I have not.
Q. Have you sought directly or indirectly the pledge of a legislator?
A. I have not.
Q. That's it.
THE CHAIRMAN: Questions? 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 any caucus of the General Assembly?
A. I have not.
Q. Have you participated in a formalized interview process other than the process here today or the process of the South Carolina Bar Association?
A. I have not.
Q. Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the South Carolina Bar Screening committee, South Carolina Bar employees, South Carolina Bar lobbyists representing the South Carolina Bar either before you were screened or after you were screened, but prior to the Bar's screening report being made public?
A. I did call Bob Wells on Tuesday afternoon about 2:00 o'clock. I had understood that the report was being made public at 12 o'clock and asked if I could have -- if he could fax to me everybody's rating. It was, you know, perverse curiosity on my part and he agreed to do that and he did fax me those ratings.
Q. Mr. Chairman, that concludes my remarks, but I know my colleague --
THE CHAIRMAN: Senator Moore, I believe may have a question or two.
EXAMINATION BY SENATOR MOORE:
Q. Mr. Steinert?
A. Yes, sir.
Q. What was the date you were first contacted by the Bar or Bar representative regarding your interview?
A. Senator McConnell, it was -- I was in my car -- no, no, just to get -- it was after your meeting in Georgetown, I was on my way back to Charleston that was Monday or Tuesday of last week.
Q. That being the 3rd or 4th?
A. Wasn't it Monday, Senator, that you had the meeting in Georgetown? It was Monday of last week.
Q. The 3rd?
A. Yes. I was asked to be in Columbia Tuesday morning at 11:00 o'clock.
Q. The 4th?
A. That's correct.
Q. And the interview took place at the Bar's office?
A. At the Bar. 30 minutes.
Q. How many interviewers participated?
A. One.
Q. One?
A. Yes, sir.
Q. From what section of the state did that --
A. Charleston.
Q. Did you have previous acquaintance --
A. Yes, I did.
Q. -- with that interviewer?
A. I did.
Q. Did you furnish a list of references?
A. I did.
Q. How many?
A. Five.
Q. Are you aware if any were contacted?
A. I honestly do not know.
Q. And you were notified of the results by fax as you just mentioned?
A. No, actually I got my results on Monday by Federal Express and then on Tuesday I asked for the results of everyone and I was notified by fax on Tuesday.
Q. And you practiced since January of '86 then?
A. That's correct. Yes, sir.
Q. Thank you.
THE CHAIRMAN: Any further questions? Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q. The door bell rings 42 Hasell Street, Joanna is home from school, she accepts a UPS package. You leave Broad Street and drive home and you find the package on the front doorstep or in the front hallway, open it and discover it's a gift from an attorney that appears before you in your capacity as Administrative Law Judge, what do you do with that package?
A. Well, I'd return it immediately. I mean it's no -- no question and --
Q. Any qualifications on that?
A. I can't imagine an attorney practicing before me sending me a gift. If it's -- what's the rule? $25 or less, you can accept it and report it, but I just -- I'd like feel like -- I'd feel uncomfortable getting it. I would just send it back.
Q. No further questions.
THE CHAIRMAN: Any other questions?
RE-EXAMINATION BY MS. MCNAMEE:
Q. Just one. Mr. Steinert, would you describe for the committee how you have gone about introducing yourself to the legislators? Have you traveled around to meet them or have you done it all here in Columbia?
A. I have mailed letters to everyone. I have been to Columbia and visited with as many members of the Richland County delegation personally as I could. I've been to a delegation meeting in Spartanburg. I've been to a delegation meeting in Greenville. I have been to a delegation meeting in Charleston and to a meeting in Georgetown that Senator McConnell chaired for the First Congressional District and I believe that that's it.

I introduced myself in all those instances and have never, never done other than ask -- than introduce myself, tell them who I am, give out my resume and I have made calls. I have made phone calls.
Q. Has anybody made any phone calls on your behalf?
A. Not that I'm aware of.
THE CHAIRMAN: Mr. Steinert, I have a question. I think we -- from what we have heard from all who have testified, everyone agrees that the chief ALJ slot is the most significant of this panel that we're electing because this person will shape the direction of the court and will make some rather serious decisions about the direction that the court will take over the next few years.

How would you convince reluctant legislators who felt as though a lawyer with seven years experience had inadequate experience to lead a court of this nature? What would you tell them to convince them that your length of legal experience was sufficient to assume a role like this?
A. I would ask that you look at my age, responsibilities that I've had in other circumstances and the quality of the legal work that I have done. I think my record quite honestly in terms of management, structure, start-up of the new things, speaks volumes. And again I believe that the variety of things that I have done in and the variety experiences that I have had would serve this court very well and I really do believe that as you do that the chief judge will shape this court. And, you know, I'm disappointed that no one asked me the question what you would do in those two weeks because --
THE CHAIRMAN: Well, why don't you answer it right now. I was getting ready to ask you that.
A. Unlike every other candidate, I don't believe we can get this court running in two weeks and I mean there is simply, physically no way that you can find space, hire staff, adopt rules and do every--- inventory what's out there, make those decisions in two weeks. It can't be done.

And I think the first thing the chief judge has got to do is to come to the Legislature and say either phase agencies in slowly or defer the start-up date, but don't let this court fall on under its own weight in two weeks and I believe that that's what will happen.

I don't believe anybody no matter how skillful can get this court up and running in two weeks.
THE CHAIRMAN: Thank you. Further questions? If not, Mr. Steinert, you can be seated again. We are going to ask you to come forward again --
A. Yes, sir.
THE CHAIRMAN: -- to respond to the witness who will testify. Our next witness is Mr. R. J. -- Ron McDaniel. Ronald McDaniel, is that correct?
MR. MCDANIEL: Yes, sir.
THE CHAIRMAN: And if you'd come forward, please. Would you raise your right hand.
RONALD MCDANIEL, having been duly sworn, testified as follows:
THE CHAIRMAN: Thank you very much. Let me -- before we start, Mr. McDaniel, I understand that you're here to testify about Mr. Steinert's candidacy for this seat as chief judge of the Administrative Law Division.

Ms. McNamee, our staff counsel, who I think you have spoken with on several occasions over the past few weeks will be questioning you in regard to your comments that you want to make.

I apologize if I interrupt at times, but I'm going to try to compartmentalize this and put it in a form that I think is significant for us as we consider his qualifications, so if I interrupt you from time to time, I may do so to try to channel the comments in the direction that I think we need to consider.
MR. MCDANIEL: That's good because I'm very uneasy.
THE CHAIRMAN: Okay. We understand that. We want you to feel at ease and we want you to be able to have your say about Mr. Steinert. Ms. McNamee.
MR. MCDANIEL - EXAMINATION BY MS. MCNAMEE:
Q. Mr. McDaniel, I understand and will try to relay to the best of my ability your complaints concerning Mr. Steinert's representation of you when you were his client back in 1989.

If you just let me go forward, maybe Mr. Hodges will help me with this a little bit. As I understand it, in 1989 you were in the insurance business. In 1989, you hired Mr. Steinert of the Finkel law firm to represent you in a lawsuit. This lawsuit was against the United States Fidelity & Guaranty Corporation, which is a big insurance company. We'll call it USF&G and persons including two people named Bernice on Algie Solomons who are from Ridgeland, South Carolina?
A. Estill.
Q. Okay. This lawsuit concerned your purchase from the Solomons of their agency business in Ridgeland and Estill if I'm not mistaken. Through that agency, they sold or they did business with USF&G?
THE CHAIRMAN: Let me -- can I interrupt you at this point, was Mr. Steinert involved in the original purchase of the agency or was it -- were you represented at that time?
A. No, sir.
THE CHAIRMAN: Please proceed.
A. The only attorney was Solomons.
Q. As I understand it, your lawsuit, the Solomons' attorney was Mr. Epting of the Wise & Cole law firm in Charleston?
A. His cousin.
Q. Your main causes of action as I understand it against USF&G and the Solomons in this lawsuit dealt with misrepresentations made to you about the business, about the relationship of the business and USF&G and how they dealt with financial losses that you felt you were suffering.

You allege that it was represented to you that USF&G would continue its relationship with the agency in Ridgeland after you purchased them. And I believe your lawsuit was based on those claims of misrepresentation of USF&G and the Solomons to you; is that correct?
A. My main concern was wrongful termination. USF&G had terminated my contract with them.
Q. Okay.
A. Yes, along with the other allegations.
Q. Okay. Yes, you said that USF&G had assured you that you could write business with them after you bought the business, but then afterwards they gave you notice that you couldn't write that business. You filed this lawsuit in March of 1989; is that correct?
A. (Witness nods in the affirmative).
Q. Did you have a written attorney-client relationship with Mr. Steinert?
A. Yes, ma'am.
Q. When you called the office for an attorney, whom did you ask for?
A. When I called their office?
Q. Yes, the Finkel firm.
A. Well, there was three attorneys working with him. Steve Steinert was the lead attorney.
Q. All right.
THE CHAIRMAN: Did you specifically hire Mr. Steinert or did you hire the law firm?
A. I asked for him. I didn't know anything about the Finkel Firm.
THE CHAIRMAN: Okay.
A. I went to Mr. Steinert first and he called Jerry Finkel down to review the case.
THE CHAIRMAN: All right.
Q. As I understand it, the purchase of these insurance agencies was accomplished financially by the Solomons financing it for you, is that they took a --
A. After I paid a substantial down payment.
Q. You paid a down payment and then you put up collateral, some of your personal -- or rather your real property and a note?
A. Yes, ma'am.
Q. After you filed the lawsuit against the Solomons and USF&G, an action was filed against you as I understand it, by the Wise & Cole law firm and this was an action to foreclose on the property and for payment of that note?
A. Yes, ma'am. I quit making payments to Mr. Solomons on the -- on the recommendation from Mr. Steinert.
Q. Is it fair to say all of this happened in the first half of 1989 until June of -- or so of 1989?
A. It went into '90.
Q. Excuse me?
A. It went into '90.
Q. But the -- what we've talked about so far went up that --
THE CHAIRMAN: The second lawsuit was filed in 1989 by the Solomons against you; is that correct?
A. I don't know the date of that lawsuit.
THE CHAIRMAN: But they did bring suit against you for foreclosure action on the note the money that they alleged you owed them?
A. Yes, sir.
THE CHAIRMAN: Is that correct?
A. Yes.
Q. As I understand it, the next steps in the progress of this lawsuit was discovery or depositions taken of the different parties involved. As I understand it, depositions were taken of the Solomons by Mr. Steinert to find out what they knew about this case and to get their testimony down, at least that's one --
A. Mr. Steinert asked -- we went to all depositions, all of us did except for the Solomons and Mr. Steinert asked me not to come to that one.
Q. All right.
A. And also asked Gail if she would not come up because he was handling it right there in Charleston, so he done that deposition all by himself.
THE CHAIRMAN: If you'd be -- for the record Gail is?
A. His assistant.
THE CHAIRMAN: Her name is --
A. Gail Lovett.
THE CHAIRMAN: All right.
Q. As I understand it, these depositions happened up until the beginning of August of 1989?
A. I'm not -- you probably have that. I don't remember those dates in that.
Q. As I understand it after those depositions, Mr. Steinert and you discussed what should -- what you should do next. He suggested to you that you settle the lawsuit with the Solomons and sign a covenant not to sue, so that you would not sue the Solomons any longer and in return the -- they would be a witness against the bigger defendant, USF&G?
A. That's the gist of it, yes.
Q. He asked you if would please sign that covenant not to sue. I understand that you had some reluctance to do that and you hesitated to do that and that from September through the end of November of 1989 --
A. August.
Q. Okay, August to the end of November, 1989, there were discussions between you and your attorney about whether or not you would sign that covenant not to sue and I understand that you were reluctant to do that because you felt that they had still owed you money and you wanted to make sure that you got the money that you say the Solomons owed you?
A. And I wanted Algie's deposition taken first because he had already lied to me on three or four other occasions.
THE CHAIRMAN: Now, whose deposition?
A. Mr. Solomons.
THE CHAIRMAN: All right, and you mentioned his first name?
A. Algie. Algernon Solomons.
THE CHAIRMAN: Okay.
A. The attorney that I bought the agency from.
Q. When did you agree to sign the covenant not to sue?
A. To this day, I haven't really agreed to sign it.
Q. Well, when did you sign it? Let me put it that way, sir.
A. I signed it on or about December the 2nd.
Q. Of 1989?
A. I believe it was '89. Stuck it in the mail to him and it got to Columbia on the 6th.
Q. Okay.
A. And on the 7th, Mr. Steinert gave his resignation.
Q. Did -- how often in that -- during that time period did you hear and talk to Mr. Steinert? And I'm talking about from August to December.
A. Numerous times. Numerous times.
Q. Numerous times?
A. He even made a visit. I guess it was under the cloak of coming to a deposition, but the deposition was of another attorney in town that the defendants were taking, USF&G.
Q. Is this that appointment that he --
A. At that --
Q. -- urged you to please --
A. That's when he told me that if I didn't sign it, I'd have to find an attorney. And I had responded to him then at that point in time, I had never ever really promised him I would sign it. I merely told him I would consider releasing them if I could get my money back from him, my $72,000 at that time it was, and take his deposition, so I would have a record of his testimony.
Q. Let me ask you right now, did you ever get your $72,000 back from him?
A. No, ma'am. He responded to me then that the covenant if I signed it would make provision for that.
Q. You did sign it? I mean you did sign the covenant in the end?
A. And he looked over at the other witness and told him if he was a friend of mine to please put enough pressure or enough sense in his head to sign it and his statement was, Algie don't have any money. USF&G has got the deep pockets and I can guarantee you six and a half million out of this, sign the agreement, so he can testify in your behalf.
Q. When did you find out that Mr. Steinert was leaving the Finkel law firm and going to work for Wise & Cole?
A. Gail Lovett called me the day she got the so called covenant not to sue.
Q. So that would have been early December?
A. It was on the 6th or the 7th of December.
THE CHAIRMAN: Can I interrupt at this point? Let me ask you a question about when the -- you know that some depositions were taken in August of 1989 and my notes show that you signed the covenant on December 2nd, 1989, so there are several months in there that transpired between the deposition and your signing the covenant. Were there any discussions that took place between you and Mr. Steinert during that period of time?
A. Yes. She asked that question. Yes, sir.
THE CHAIRMAN: Okay. I'm sorry.
A. Quite a few.
THE CHAIRMAN: I missed that. Well, did you -- did -- can I you tell me when they -- did they mail the covenant to you? You mentioned you mailed it back or was it physically handed to you?
A. They mailed it to me --
THE CHAIRMAN: Okay.
A. -- out of the Columbia office and then after I had signed it and sent it back, I got another amendment to it or addendum saying that the Wise & Cole firm made an error in it in that they hadn't named all the people to release in it and they added to it, they were some shareholders. And I refused to sign that.
THE CHAIRMAN: All right.
Q. Mr. McDaniel, did you ever recover from USF&G?
A. No, ma'am. Nothing. It's still up in the -- it's still active.
Q. In what ways do you believe you were hurt or prejudiced by signing that covenant not to sue?
A. Mr. Steinert sold me out. Like I wanted to say earlier, you know, I really was impressed with his little talk here. Just like Drew Epting was very impressed.
Q. Could you just please answer my question, how do you feel you were prejudiced by signing that covenant not to sue?
A. It released one of the defendants that done me wrong and he was aware of that because he recommended to sue him to start with.
Q. Did you ever receive personal knowledge -- did you ever get notice from Mr. Steinert that he was looking for other employment with the Wise & Cole law firm -- with anybody with the Wise & Cole law firm? Did he ever tell you he was looking for other employment?
A. Tell me he was looking for -- no, ma'am, he told me he was accepting other employment on December 14th. I got a letter from him.
Q. But before that point, he did not ask you or tell you that he was looking for anything else, any other employment?
A. No, ma'am. The only indication I had was back when he asked me not to go to the deposition of Algie Solomons.
Q. And how -- what was your indication at that point?
A. He said then that he knew Drew Epting, and they were close -- their office were close, and to prevent any expenses on my part or anybody else's part, he could take the deposition himself. I wasn't needed there.
Q. How was that an indication --
A. Because I was asked to go to every other deposition that we took of any of the USF&G employees and all because they would ask me questions to ask them.
THE CHAIRMAN: The Solomons' deposition was when?
A. Sometime in August.
THE CHAIRMAN: That was the August deposition you referred to that you were not asked to attend?
A. Yes, sir.
THE CHAIRMAN: Okay.
A. I was asked not to attend.
THE COURT: Questions from the members?
SENATOR MOORE: Mr. Chairman?
THE CHAIRMAN: Yes, sir. Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. How many other depositions were taken that you were in attendance?
A. 10, 11. Now, let me correct that, that's since the word go. There has been depositions after Steinert, so with Steinert, four.
Q. Four others in that time period. And prior to -- I believe you mentioned Gail is Mr. Steinert's assistant. Prior to her notifying you or telling you that Mr. Steinert was considering a move or change, you had had no discussion with Mr. Steinert about his possible change in jobs or whatever?
A. No, sir. It was a shock to Jerry Finkel according to what --
Q. So you mailed the covenant on the 5th you said? December --
A. I signed it December -- about December the 2nd and stuck it in the mail. They got it on like the 6th.
Q. And you were notified -- your conversation with Gail --
A. The very next morning, the 7th.
Q. Did you contact them or did they contact you?
A. She called me and said she had something to tell me. She acted very sincere like somebody died or something and she said no, I just needed to tell you that Steinert has informed -- Steve has informed the board this morning that he will be leaving the Finkel firm effective January 1.
Q. And you were notified by Mr. Steinert by mail on December the 14th?
A. 14th, yes, sir. And I got a letter from the Finkel firm on the 16th saying we want to continue representing you. It's an excellent case, we want to continue representing you and they was turning it over to Steve Husman, the lead attorney. And the letter went on to say that the Wise & Cole firm could not be representing Mr. Solomons. There was a conflict there. Steve had also told me that in his letter. There was a conflict, but Jerry Finkel wanted to continue to represent me.
REPRESENTATIVE BEATTY: A question --
THE CHAIRMAN: Representative Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q. Did you say there was some familial relationship between Mr. Solomons and the law firm that represented him in the firm that subsequently Mr. Steinert went to work for?
A. Did I say there was a relationship?
Q. Yes, family, cousins or something?
A. I understand that Drew Epting, one of the attorneys in the Wise & Cole firm, is the cousin to Algie Solomons.
Q. Okay, now is Algie Solomons also an attorney?
A. Yes, sir.
Q. Did Mr. Epting -- Epstein or Epting or whatever -- however you pronounce his name, was he involved in the litigation at all with the Wise & Cole firm?
A. He -- yes, sir, he is the one who drew up the covenant not to sue and put the other people in it. And I -- evidently, he was Mr. Solomons' lead attorney because that's who Steve corresponded with, my attorney, most of the time. All the letters I have are addressed to Drew Epting.
Q. And at what point, do you recall this covenant not to sue becoming an issue? When did it first -- when was it first mentioned to you as a recommendation?
A. As a recommendation for me to release Mr. Solomons?
Q. Yes.
A. After he took his deposition and I had seen him down -- Mr. Steinert, I had seen him down to Mr. Solomons' office which was right across the road from my office on three or four occasions without telling me he was there or contacting me.

I'm going to say this -- don't pin me to the exact date because that's by telephone. The latter part of September, middle of September when he came to me and said I got a great idea, and evidently he had convinced the rest of the Finkel firm.
Q. Did he tell you why he wanted to recommend that you sign this covenant not to sue?
A. He said Algie's deposition matched mine almost exactly and he -- that he would make an excellent witness against USF&G and him being an attorney, he used words similar to he's an expert witness and also he was there with -- on April the 4th when you talked to USF&G and his deposition is almost exactly what yours is.
Q. Now this covenant not to sue had also -- it also included some foreclosure action that they had --
A. No, sir.
Q. -- started against you?
A. When I sued Mr. Solomons, Mr. Steinert told me to quit making the payments. Don't make them any more payments. It appears to me that you've already paid him more than what the agency is worth, so I didn't. And then --
Q. When was this? What -- when was this that you were advised not make any more payments?
A. Well, let's see, I made 18 payments. I bought it July 20th, so when the 19th come due is when he told me not to pay it. I didn't. And then Mr. Solomons said wait a minute, you put up all this property. If you don't make the payments, we're going to foreclose on you. Nothing I can do about it. I'm not going to make any payments because my attorney told me not to.
Q. But was this covered all in the covenant not to sue?
A. What, the --
Q. Them for whatever reason dismissing their foreclosure or not pursue it?
A. He agreed -- he agreed to put that on hold or --
MS. MCNAMEE: Stay?
A. Stay or just made a motion to the court or something in Jasper County to hold it until my bill was settled with USF&G.
Q. Was that a part of the covenant not to sue or was it written --
A. It was a -- that was mentioned. I don't know the exact wording, but that was part of the deal that he would stay from foreclosing until the USF&G deal was settled, but he didn't.
Q. Okay.
THE CHAIRMAN: Were there any other --
A. I have essentially lost my home and everything.
THE CHAIRMAN: Were there any other financial terms other than the agreement that that action would be stayed? I mean, was there a requirement that he pay you any money or that he take any other action?
A. Well, I have some letters from Mr. Steinert to Mr. Epting saying that we would hire a mutually agreed accountant to figure out how much Mr. Steinert (sic) owed me. That this would be part --
MS. MCNAMEE: Mr. Solomons owed you?
A. Mr. Solomons owed me. I'm sorry. This would be part of the processing. But when the covenant not to the sue was finalized, it didn't come out like that. It was just very poorly worded as to there will be a mutually agreed accountant to decide whether credits are due or owed. Nothing else, but the previous letters that I have in the files state that, you know, he owes me money and they need to get them an accountant and I went ahead and hired an accountant to figure it out. This was back in the early stages and it came to $72,000.

I sent it to Mr. Solomons and told him to abide by the covenant not to sue. He informed me that the accountant that I got was not reputable. And I told him, I said, well, he's got a license and he's bonded, so I've already done my duty, you do yours. You hire anybody. I don't care who they are. No question as long as they are licensed and bonded. He never made an effort to do that. He just flat out and told -- said he just didn't owe me that.
THE CHAIRMAN: But there was a provision in the covenant that made some reference to an accounting or to some manner in which you could resolve --
A. It made --
THE CHAIRMAN: -- perhaps resolve what he owed you?
A. It made a reference to it.
THE CHAIRMAN: All right.
A. Both parties hiring a --
THE CHAIRMAN: And you're saying that has not -- to this date that's not been resolved? You have submitted some numbers to Mr. Solomons and he denies that they're valid?
A. Yes. Right.
THE CHAIRMAN: Has there been some subsequent action on that covenant to try to enforce that provision?
A. Yes. He's -- Mr. Solomons has since went ahead and went through the foreclosure on the house. I couldn't defend it because those documents that he was referring to in that particular case were not to my discretion and I just couldn't defend it. And he ended up getting a final notice evicting me from my home.
THE CHAIRMAN: I thought part of the covenant was that he was going to wait until the USF&G action had been resolved?
A. I did, too, sir. You got that right.
THE CHAIRMAN: Do we have the covenant?
MS. MCNAMEE: I don't --
THE CHAIRMAN: Do we have a copy --
A. He kept saying -- he kept saying that it had been resolved and I kept saying, no, it hasn't.
THE CHAIRMAN: All right. I'm sorry. Mr. Sturkie, you had some questions.
EXAMINATION BY REPRESENTATIVE STURKIE:
Q. Basically it was dealing with the covenant not the sue. I'm trying to understand what is still pending in this matter? Is it your case against USF&G?
A. Yes, sir.
Q. And who is representing you at this point in time?
A. Pro se.
Q. And your --
THE CHAIRMAN: Perhaps you or Mr. Steinert can get us a copy of the covenant, so we can take a look at it. I'm -- Mr. Steinert may have it. We'll wait until you testify. Thank you.
Q. Was -- you mentioned there were three -- two other attorneys that were working on this case when you initially went to the Finkel law firm. I think you said Mr. Steinert was the lead attorney?
A. No, sir, I went to Mr. Steinert first and he involved Mr. Finkel and then Mr. Finkel assigned Mr. Steinert, Ms. Lovett and I forget one of the other attorney's name and Steve Husman.
Q. Had you ever had any contact with these other attorneys other than Mr. Steinert?
A. Almost daily.
Q. When you -- did they go over this covenant not to sue --
A. Yes.
Q. -- with you?
A. No. They didn't go over it with me, but they went over it and agreed with Mr. Steinert.
Q. Let me ask you, did they ever explain to you what this covenant not to sue contained, any of the attorneys that you were working with?
A. Yes. Mr. Steinert did.
Q. I guess what I'm trying to understand is your point of contention is it that you signed something that was not explained to you and it turned out to be something different or is it the fact that the attorney you hired you feel that he left you high and dry and he just, you know, left -- I'm trying to understand the point of your contention here as far as, you know, you say you did sign the covenant not to sue and I guess what I'm trying to say, to get to the point, is was that covenant not to sue gone over with you and did or did you not understand that or was it the way it was explained to you, did it turn out that that was not the way?
A. That's right.
Q. So you're saying then it was explained to you, but in looking at it after you signed it, it was not what it was told to you or represented to you it was?
A. That and the fact that I don't think the covenant not to sue shouldn't have even been -- existed. I mean these people, Steve Steinert and the whole firm recommended at the beginning that I sue the Solomons. That was the main
-- that guy, Steve Steinert's remark was that guy sold you something that he didn't have.

At that point in time, he didn't know the Solomons because he called them things like crooks and everything else. And they all recommended I sue the Solomons and then all of a sudden after Mr. Steinert -- I've got to kind of -- let me word this the way I want to word it.

After Mr. Steinert found out who Mr. Solomons was -- now I don't have any proof of this or whatever, but it's an inference and it falls right in there. After he found out who Mr. Solomons was his attitude changed toward me and all of it. Mr. Solomons then was not a bad person because from some -- some letters that was written, it's quite evident that Mr. Steinert was trying to get a position with the Wise & Cole firm where Mr. Epting worked.

I guess what I'm trying to say -- I'm trying to read between the lines and say, hey, that man offered him a job if he could get his first cousin released from this lawsuit because he really put the pressure on me from October to November to sign this covenant not to sue that you agreed to sign. Steve, I didn't agree to sign it. I merely told you I would consider releasing him if the man paid me my money.

Well, that ain't what you told me. You told me you'd sign the damn thing, so sign it or you get you another lawyer. And then when he told -- this -- this was all said in front of another attorney.
Q. And which attorney was that?
A. A guy by the name of Tootle that Mr. McDonald was taking his deposition of. Steve Steinert shows up. This is the guy he told to put some pressure on me to get me to sign it.
THE CHAIRMAN: Mr. McDonald is -- is it Heyward McDonald?
A. Heyward was USF&G's attorney.
THE CHAIRMAN: All right. He represents USF&G.
SENATOR MOORE: Mr. Chairman.
THE CHAIRMAN: Senator Moore.
RE-EXAMINATION BY SENATOR MOORE:
Q. Mr. McDaniel, let -- as I understand it from August or thereabouts, late August until early December, the discussion about the covenant not to sue was discussed, while you had concerns nevertheless you reluctantly as you state signed the covenant not to sue in early December; is that --
A. Well, the man offered me six and a half million dollars.
Q. All right. I understand.
A. And put the pressure on me something bad.
Q. But as a part of the -- what you understood the covenant not to sue was also that the Solomons would not pursue their legal action against you as far as foreclosure on your real property?
A. Until --
Q. Was that your understanding?
A. Until the USF&G --
Q. Until the --
A. -- deal was finalized.
Q. Finalized. And since then you're saying that the foreclosure has happened and you've lost your home?
A. Plus my office building, my properties I had. I've lost everything.
Q. The Solomons foreclosed on you?
A. Yes, sir. He made out like a champ.
RE-EXAMINATION BY REPRESENTATIVE STURKIE:
Q. You say you're representing yourself pro se. Is this a Circuit Court case? What -- is this a federal court, state circuit?
A. State.
Q. Okay. And it was filed back in 1989?
A. The Finkel firm filed it, right.
Q. Has it been -- has the matter been -- on USF&G, that has not been heard yet or has there been any hearings on that?
A. Well, it was -- we -- we went to court on March -- I believe it was '90 and we started the proceedings. You know, I really can't discuss that because it's sealed. Judge Moore has sealed that and I prefer not to -- unless you demand me to do it.
Q. I just wanted to know what the status was.
THE CHAIRMAN: That's okay. Representative Beatty.
REEXAMINATION BY REPRESENTATIVE BEATTY:
Q. Sir, I'm trying to get to the bottom of the importance of this covenant not to sue. The crux of your situation was that USF&G said they would allow you to write insurance for them if you bought or after you bought the Solomons firm?
A. They told Mr. Solomons that, yes, that they needed someone who knew what they were doing and I was a good choice. They run a background check on me and all.
Q. Was Mr. Solomons writing USF&G policies at that time?
A. As an agent for them.
Q. He was an agent for them?
A. Right. Yes, sir.
Q. But after you bought the agency from the Solomons Brothers or Mr. Solomons, then USF&G said no?
A. Two -- two weeks after I was -- gave them my money and went in there, USF&G sent me a letter saying that they were going to due to losses and mix of business. I approached the manager and he said don't worry about that. He said I'll talk to the home office into it because they -- I don't think they know you.

See, the local boys were doing something that the national boys didn't know what they were doing in Baltimore. And I think maybe that the deal was between USF&G and Mr. Solomons.

I'm going to say this, from what I've read and what I see now, it was, look, Mr. Solomons, you need to sell that agency, pawn it off on anybody you can because we're going to withdraw from -- in that area because now I see letters and things that USF&G has wrote and the statement has been made, we've never won a case in Jasper or Hampton County. The politics down there are too strong. We're going to pull out of the two counties. We don't want to have anything to do with those two counties. This is way back in '87, '88 before they started really having statewide trouble maybe with insurance for the state. I have some indications that USF&G people told Mr. Solomons that.
Q. Well, let me ask one other question. Usually when you sign a covenant not to sue there is some benefit, you receive some kind of benefit and you're saying that the foreclosure stay, as you say, are you saying that that was the only benefit you were to receive?
A. No, I was to receive the $72,000 after the audit was run and he was -- he was to hold off on the foreclosure and his benefit was, of course, I would drop him from the lawsuit, but I received none of the money and got foreclosed on my house.
THE CHAIRMAN: Representative Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. If you had not signed the covenant, what position would it have put you in at that time?
A. According to Mr. Steinert, I would have had to find another lawyer and I couldn't have gotten my $15,000 back I paid him. I mean that was what I was told if I didn't sign it.
THE CHAIRMAN: Senator Moore.
FURTHER EXAMINATION BY SENATOR MOORE:
Q. Mr. McDaniel, including what you paid for the business, and I'm sure you consider that a loss at this point, what
-- the monies that you've paid for the business, the loss of real property, what do you consider your loses to date?
A. Well, sir, my losses -- the agency was making $200,000 a year. That's what they told me. That's what I paid for it. I paid them 180. That's been since '87. $200,000 a year since then plus appreciation plus my house I lost --
Q. Well, I understand --
A. I've had -- well, I'll put it to you, I've had a professor of economics study my case and he came up last year -- it's been a year since he done it -- 5.7 million dollars.
Q. All right, sir. And I understand that certainly should enhance your active --
A. That doesn't count my house.
Q. -- your active case that's pending, but I guess my question is, if you had to put a number, not what your potential loss of earnings, and I certainly appreciate that, but your out-of-pocket costs, the monies that you have paid for the business, the agency, all the monies that you've taken out of your checking account and your savings account?
A. $325,000.
Q. Does not include the loss of your house?
A. Does not include any loss of any kind other than what I paid out.
Q. What would you say losses for your real property would be at this point, the foreclosure and all? What do you --
A. Well, the house appraised at $225,000. I had an office building appraised at 65,000. I had a restaurant and an apartment building, I had a $45,000 note on it. And I had another piece of property that was just vacant property that was just $45,000. And --
Q. What did you say your out of pocket, a while ago, two --
A. My actual money that I spent out is $325,000.
Q. Three twenty-five and just what you went over, I quickly added in my head or trying to keep up with you, 400, so that amounts to about 725,000. Of that, how much has been legal fees as far as attorneys, accounting?
A. $62,200.
Q. You know that pretty quickly.
A. Yes, sir. They get paid very well.
Q. Thank you, sir.
THE CHAIRMAN: The original suit that was filed against the Solomons and the USF&G, tell me -- the allegations against the Solomons in that, was fraud one of them?
A. Yes, sir.
THE CHAIRMAN: And --
A. Conspiracy, fraud.
THE CHAIRMAN: And the accounting that you referred to, was that part of your original action? Did you ask for some accounting in that of money --
A. In the original?
THE CHAIRMAN: Yes, sir. In the original suit against them, were you asking for an accounting of monies?
A. Well, there -- there was some mentioning about some credits that was due me because I had had a hold harmless from Algie and there was -- USF&G was saying that there was some bookkeeping that needed to be cleaned up, yes, sir.
THE CHAIRMAN: All right. So that would have -- because of that bookkeeping, I presume you overpaid him and he -- as a result, he owed you some money, is that what you're referring to?
A. You're speaking of Algie?
THE CHAIRMAN: Algie is Mr. Solomons; is that correct?
A. Yes, I overpaid. At the beginning, I had overpaid him.
THE CHAIRMAN: And that was a basis of a suit as well, the fraud and the misrepresentation and the conspiracy and --
A. Yes, sir.
THE CHAIRMAN: -- also you were asking for an accounting of some monies that should have been paid back to you?
A. By USF&G.
THE CHAIRMAN: As a result of some adjustments made between USF&G and the agency?
A. Yes. Right.
THE CHAIRMAN: Is that correct?
A. Right.
THE CHAIRMAN: Do you remember any of the other allegations that you made in the suit other than fraud and conspiracy? Are there any other --
A. Yeah, there was nine of them. We accused USF&G of violating the mandate to write back in '87, violation of 38-77-110, violation of 38-77-940.
THE CHAIRMAN: And I'm more interested really in the Solomons right now. I'm sorry I -- focus on them.
A. Those are the allegations in the lawsuit.
THE CHAIRMAN: All right. The -- between the August deposition and the December signature, do you have any -- did you ever hear any discussion or did Mr. Steinert ever mention to you that he was having discussions with this law firm about employment?
A. About what, sir?
THE CHAIRMAN: About employment with them with the Wise firm?
A. No. No. He never once ever told me nothing about that and evidently, it was a shock to the Finkel firm, too.
THE CHAIRMAN: And the first time you heard about the covenant not to sue was when to your knowledge?
A. About a month after he took the deposition. Probably sometime in the latter part of September.
THE CHAIRMAN: September of '89?
A. He came up with the idea of, okay, I got an idea. We need to covenant out the Solomons.
THE CHAIRMAN: And is it your testimony that it was December before you actually agreed to sign that document, the covenant?
Q. Yes, sir.
THE CHAIRMAN: Further questions? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Thank you. Let me follow up on an earlier answer that made. You -- and if I'm incorrect in my summation of your responses, let me know. You indicated that at time that he asked you about the covenant not to sue, you indicated that you were going to get, I think, a stay on the foreclosure and accounting and monies back which were due. Was there anything else you were going to get?
A. (Witness shakes head in the negative).
Q. After the deposition was taken of -- I believe the name was Solomons, is it? Solomons? Mr. Solomons. Did you get an apprisal of what the gist of his testimony was or did you have an opportunity to read his deposition?
A. I asked Steve Steinert for the deposition. I finally got it, but it was like, you know, ridiculously long before I got it. I don't know when I --
Q. Did you --
A. -- received it, but it was -- it was after I had signed the covenant.
Q. Pardon?
A. It was after I had signed the covenant.
Q. Because you got a copy of the deposition?
A. Yes.
Q. Did you get a summation of the deposition from Mr. Steinert prior to that?
A. Yes, sir.
Q. Prior to signing the covenant?
A. Yes, sir.
Q. And was the deposition friendly to your position or --
A. Mr. Steinert said it was almost identical to my testimony and that would make -- he would make an excellent witness to back up what I said happened at the April 4th meeting.
Q. And since you've read the -- have you read the deposition?
A. Yes, sir.
Q. Since you read the deposition, was that an accurate statement that his testimony was like yours?
A. Well, his testimony in his deposition was not like mine in that he would not answer questions yes or no. It was I guess a legal -- a lawyer's answer which was not a yes or a no. It was maybe.

He answered questions like, I think Steinert ask him, "Did USF&G ever tell you they were withdrawing from your agency?" And Mr. Solomons' response was something like, "One time they would and one time they wouldn't and nobody could understand what they were saying. Yes, they did tell me they were having problems, but then they come right back in the same breath and said that there weren't no problems if I sold it." You know, this to me is not a straight answer and I don't know how Steve arrived at Algie backing up my statement to a T out of that, but he did.
Q. The allegation against USF&G, do you recall specifically I mean why you were suing them?
A. Yes, sir. The main reason we sued -- the main reason for the lawsuit, period, was wrongful termination. They had
-- two weeks after I bought the agency, sent me a letter saying they were going to withdraw from that agency. And the reason they gave for withdrawal was the losses and the mix of business.

At that point in time, I did not know what the laws of South Carolina was, but now I do, but Mr. Steinert did and he informed me several times that they couldn't do that, that was against the law.
Q. Previous -- excuse me. Go ahead. I'm sorry.
A. And when I would ask him what he mean -- what he meant, he said, "You know, you don't need to concern yourself with that. They've wrongfully terminated you. We've got the proof that they have. Mr. Solomons sold you something that he didn't own."

Now, this is back at the beginning of the lawsuit before he knew who Solomons was. I think he explained to me sometime -- if I'm wrong here, correct me. He explained it to me one time that we've got like a tripod. If one leg is gets broken out from under it, we're going to still win anyway the way we're suing. If USF&G is found guilty, then Algie is innocent. If USF&G is found innocent, then Algie is guilty. I don't know what that meant, but he was the attorney and I was very impressed with the lawsuit that they filed, although I don't know whether Steve Steinert actually done the lawsuit or Gail Lovett.

After talking to several people, I'm more inclined that Ms. Lovett done the lawsuit because they said it was a very good lawsuit.
Q. Had you been in the insurance business prior to buying this agency?
A. Yes, sir.
Q. In the same town or what?
A. No, sir, in Virginia. I was an agent for Nationwide Insurance for 19 years up there.
Q. And were you living down in Hampton and Jasper wherever this --
A. This area I had decided to retire in. That's the reason I bought the agency. I owned a piece of property in Myrtle Beach. I some friends in Beaufort who live in Beaufort.
Q. But you had never sold insurance in South Carolina previous to this, I mean as an agent?
A. Not as an agent, but as a nonresident agent, I had -- yes, I done some brokerage stuff down here from Virginia because I had sold a lot of -- I was involved in Hugo. I had a lot of insurers there at Myrtle Beach.
Q. And how did you learn about this particular agency being for sale?
A. I came down to spend a couple of weeks with friends of mine and I just went around to offices and knocked on doors and asked them was the agency for sale. I went to the one in Ridgeland and I asked the girl -- the clerk at the desk, was the agency for sale. She looked at me and said you must be from heaven because this agency is a mess. You need to go talk to Mr. Solomons over in Estill. I think he wants to sell it. That's how I got started in it.
Q. I have no further questions.
THE CHAIRMAN: Questions? Ms. McNamee, any more questions?
MS. MCNAMEE: I don't know if you brought the covenant not to sue, but we would like a copy of that, if you do.
THE CHAIRMAN: We would. I think -- and if you don't, I think Mr. Steinert does have it. Let me suggest to the members, it's one o'clock. Does anyone have any objection to breaking for an hour for lunch? We can get the covenant during that time and allow the staff to look at it and then we'll call Mr. Steinert back up if he cares to respond.

We -- you know, we originally were scheduled to be at the Blatt Building at 2:00 o'clock. We're going to have to move the things over there anyway, we might as well do it.
MS. MCNAMEE: And move back there.
THE CHAIRMAN: We'll move back to the Blatt Building. We will be 516, which is the Judiciary Committee Room in the Blatt Building. Does everybody know where that is?
MR. ROSEN: Mr. Chairman, would it proper for me to ask a question before we adjourn? We have a couple of these lawyers who were in the firm representing this gentleman.
THE CHAIRMAN: Yes.
MR. ROSEN: But they have an attorney-client privilege.
THE CHAIRMAN: Yes.
MR. ROSEN: They can't talk about what they talked to this gentleman about and I just wonder if he would waive that privilege, so we can put them on the stand, if you all would want to have it.
MR. MCDANIEL: Sir, I'm not ever going to waive anything that has anything to do with a lawyer anymore.
THE CHAIRMAN: I think you've --
MR. ROSEN: That's fine, your Honor.
THE CHAIRMAN: -- answered my question.
MR. ROSEN: When they take the stand, they'll be able to testify, but not as to any communications.
THE CHAIRMAN: Right.
MR. ROSEN: But there is a lot of other stuff there.
THE CHAIRMAN: All right.
MR. STEINERT: Mr. Chairman, just so there is no misunderstanding on the part of the committee, I certainly do want an opportunity to respond.
THE CHAIRMAN: Yes, sir.
MR. STEINERT: And will respond and perhaps I could provide some documents to Ms. McNamee before we get back together to make --
THE CHAIRMAN: If you could do it during the break, that'd be very helpful and we have some that Mr. McDaniel has already forwarded to us which we have passed out.
SENATOR MOORE: Mr. Chairman, to give the staff the time to review the covenant and get all this paraphernalia back over there, do you want to make it 2:30?
THE CHAIRMAN: Yes, sir. We can make it 2:30. Let me just say that by moving it to 2:30, we need to make a committee decision about whether we want to push on into the evening or whether we want to come back tomorrow.
REPRESENTATIVE ALEXANDER: Come back tomorrow. I get tired about 6:00 or 7:00 o'clock. It's a long drive home and you don't need to be driving home at night either.
SENATOR MOORE: It --
THE CHAIRMAN: Do you want to wait --
SENATOR MCCONNELL: I'll have to go buy some clothes.
THE CHAIRMAN: I'd rather stay if we could, but there --
SENATOR MOORE: I would vote to stay in all due respect to my colleague from Greenville.
THE CHAIRMAN: We'll take a proxy and we'll drive you back to the home. 2:30 at 516 of the Blatt Building.

(A lunch break was taken)
THE CHAIRMAN: We'll continue the screening for Mr. Steinert. For purposes of the other candidates who are here, we are several hours behind. I think it's fair to say that we hope we'll be able to move -- to work through the afternoon and hopefully into the early evening, so we can get as much of this done as possible. Our desire is to finish today, if we can.

We are -- we have two candidates. We have -- we need to conclude this hearing and then Mr. Stevens is next on Seat 1 and then we will pick Seat 2 up where we have four candidates, I believe, to screen. Two of them have already been screened and so for purposes of the other candidates, that's where we are now. We have two -- the remainder of testimony on one candidate and then we have one more after that and then we'll pick up Seat 2.

We're to start again on the Steinert hearing. I believe, Mr. McDaniel, said that you had about a two-minute statement that you wanted to conclude with that you thought might help narrow the focus of your -- the issue you wanted to raise with us.

Would you come forward, please, to the podium? There is a microphone there. And you're still under oath.
MR. MCDANIEL: Thank you, Mr. Chairman. What I think I may have not gotten the point across is my reason for being up here, and I want to make it clear that I don't think that we or me or anyone up here can try this case.

The documents that we spent some time on this morning such as the covenant not to sue is really immaterial to what I'm up here for. Mr. Steinert doesn't know, as the two candidates this morning spoke to very eloquently, the importance of appearance of impropriety. You know, he couldn't wait -- I think that's all been proven. He couldn't wait six months, a year or what have you, to resign the Finkel firm.

Within minutes after he read the covenant not to sue, he stands up and says, "I'll be leaving this firm. I'm gone." I think that's what I'm trying to get to. A judge needs to know his -- and like those two candidates spoke to this morning, appearance of propriety ought to be there. Thank you. That's all I wanted to say.
THE CHAIRMAN: Yes, sir. Are there any -- does anyone have any questions that were raised with Mr. McDaniel? Thank you very much. Mr. Steinert, you're still under oath.
MR. STEINERT: Thank you, Mr. Chairman, for the opportunity to reply. Obviously, the allegations made this morning I take very seriously and for that reason and only for that reason, I have asked my attorneys to be with me. Not to interfere in the proceeding, but to give me whatever counsel they might and with me, I have Morris Rosen and Brewton Hagood of the firm of Rosen, Rosen & Hagood in Charleston.

I also had submitted at break to the committee three affidavits, an affidavit from Stephen Husman, an affidavit from Gail Lovett and an affidavit from Drew Epting.

Mr. Husman and Ms. Lovett are here. They are available for your questions after I conclude my remarks if you so choose.
THE CHAIRMAN: Let me just say this, I have read their affidavits and I don't have any questions about them. If other members do, we'll be glad to ask questions, but they basically summarize the dates and times of -- with regard to the execution of these documents and the firm's representation; is that correct.
MR. STEINERT: That's correct. And the role that they played and they essentially will corroborate -- do corroborate what I'm about to tell you in terms of the reasons for the covenant and the timing of the covenant. I think those are the two substantive issues to be addressed and then we can talk about some other allegations Mr. McDaniel made this morning.

Mr. McDaniel was correct. He did come to see me. I did agree to represent him. I did, in fact, call Jerry Finkel, the senior partner at my law firm, to meet with Mr. McDaniel. I was -- had been out of law school for about two years. This was the biggest case and the most complicated case that had come in my door and I felt that before I agreed to represent him, I needed some senior advice.

Jerry Finkel reviewed the case, thought it was good and also thought that I was not prepared to handle the case and assigned Steve Husman who is the senior litigator -- who was the senior litigator in our firm to really manage the case and develop the strategy. I maintained client contact with Mr. McDaniel.

It is also true that at the outset of the lawsuit, we all felt we had a very good case against both USF&G and the Solomons family. As lawsuits evolve, information available becomes available, strategic decisions need to be made and I'd like to begin by telling you we felt that the covenant not to sue was critical for Mr. McDaniel in the development of this lawsuit.

When Mr. McDaniel came to us, he gave us amongst other documents, the Buy-Sell agreement prepared by Algie Solomons. The thrust of our lawsuit against the Solomons was misrepresentation, fraud, fraudulent inducement to contract, conspiracy due to the fact that Algie Solomons knew and did not tell Mr. McDaniel that USF&G would no longer write policies for him.

In the course of the lawsuit going through all the documents, box after box after box of documents, we discovered the original draft of the Buy-Sell agreement prepared for Mr. McDaniel by Algie Solomons. I have provided that to the Committee during the break. If you have a copy or if you don't, let me just call your attention to Paragraph 6 on Page 5. This is a document prepared by Algie Solomons for Mr. McDaniel. You will see that Paragraph 6 has been scratched out and replaced with some other language. The scratching out and language replacement was done by Mr. McDaniel.

Mr. McDaniel took this draft, scratched out Paragraph 6. Paragraph 6 says, "The buyer" -- that is Mr. McDaniel --"acknowledges that the seller" -- the Solomons family -- "has made no representations with respect to any right on the part of the seller to sell or deliver any of its agency contracts with the various insurance companies that it has represented during the course of the conduct of its insurance agency business. The buyer" Mr. McDaniel, "assumes the risk that all such agency contracts and other arrangements may be canceled at will and without notice by any of the insurance companies with which the seller has placed policies of insurance. The seller makes no representation that any of such contracts or arrangements are assignable to the buyer."

Once we discovered this draft in which Mr. Solomons clearly has told Mr. McDaniel there are some problems I can't warrant what I'm selling you, we felt that we had a Rule 11 obligation, if you will, to dismiss the Solomons. There was no reason to keep them in. Ethically, we couldn't keep them in. And it also, however, provided us with an opportunity to do some real good for Mr. McDaniel in this case.

There was a critical meeting that Mr. McDaniel had on April 15th prior to the purchase of the agencies at USF&G. The only people attending this meeting were Mr. Solomons -- Algie Solomons, Mr. McDaniel and several USF&G officials. It was Mr. McDaniel's contention that at that meeting USF&G committed to remain with him, to stick with him, that he could turn these agencies around, they would do what they could to help him. We took the depositions of all the USF&G officials who were at that meeting.

Every one of them, arm and arm, denied that any such conversations took place, so all we had was Mr. McDaniel on the one hand, several USF&G officials on the other saying we never said that. The only other person at the meeting was Algie Solomons. We were suing Algie Solomons, but we needed his testimony.

I will point out to you just parenthetically that the decision to buy this agency was really based on what USF&G said at that April 15th meeting, not on anything Algie Solomons said. So we had an ethical reason to -- that we had to get -- dismiss the lawsuit against the Solomons. We have a good pragmatic reason. We'd like to get testimony from Mr. Solomons to corroborate Mr. McDaniel and, thirdly, Mr. McDaniel is facing foreclosure.

He is facing being thrown out of every piece of property that he owns. In fact, let me just set the record -- I never told him not to pay Algie Solomons. No lawyer would do that. I never did it. The fact of the matter is he didn't pay because he couldn't pay. He was in over his head. He was hocked up to his neck and he was about to be foreclosed on.

We did, in fact, sign and get an order and the order is attached to Mr. Epting's affidavit, to stay the foreclosure. He was not kicked out of his home. The agreement was that the foreclosure would be stayed until the conclusion of the case against USF&G.

Now, I don't know what happened after January. I do know in spite of what Mr. McDaniel will tell you, that that case was settled. The case was settled at the courthouse. The jury was impaneled, the lawsuit was ready to start and they settled. The settlement is sealed. I don't know what's in it, but the matter with USF&G is concluded and there was a settlement. And my assumption is based on what Mr. McDaniel's said today, if there was a foreclosure, it was after the settlement with USF&G. Mr. McDaniel probably did not begin paying again and they foreclosed. I can only surmise that, I don't know.

But as to my responsibility, we got a signed order of foreclosure and the committee -- a signed order staying the foreclosure and the committee has that. We were afraid of the foreclosure proceeding, not only because it would create incredible personal hardship on Mr. McDaniel and we honestly felt that in Hampton County we were not going to win this matter, we would have had to raise as defenses to the foreclosure those arguments that we would assert in the underlying case. We were concerned about issue preclusion, we were concerned about res judicata. We were concerned that we would make those arguments, lose and not be able to preserve them for the underlying case. So for all of those reasons, it was important that we get rid of that foreclosure issue.

Finally, we had, if you will, a mixed bag of defendants. I went -- I did go to Estill. I went one time, not four times as Mr. McDaniel testified. I went one time to meet with the Solomons, to interview them, to size them up and I can tell you that there is not a jury in this state that would have found against this nice little old lady who bakes apple pies in her house in Estill. And it was going to confuse the jury and from a strategic point of view, we were much better off focusing on USF&G, the big insurance company from Baltimore, and not mix the jury up with allegations against the Solomons. So for all of those reasons, a decision was made and it was -- to execute this covenant not to sue.

Now, I think the next substantive question that we need to address is the timing. First of all, let me say that this decision was not my decision. I participated in the decision. The strategy, if you will, was that of Steve Husman who is in the hearing room today and Gail Lovett and I together -- Steve was really the architect of the strategy. It was developed on August the 6th in a meeting that we had in Columbia.

We have memos that I would like to provide the Committee in Gail Lovett's hand from our meetings on August 6th and August 7th and our meeting with the client in the afternoon of August 7th.

On -- at the meeting on August the 7th, Ron McDaniel agrees that he will execute the covenant not to sue. He's very concerned about the foreclosure. He understands where we're going. He agrees, but he doesn't trust Algie Solomons and he says, "I don't want to sign a covenant not to sue until you take Solomons' deposition." And I said, "Ron, I think that's a good idea. I'm pretty comfortable that I know what he's going to say, but let's get him under oath. Let's make sure."

We scheduled that deposition for August 30th. The deposition is held in Charleston on August 30th. Ron is correct. I suggested he not come and I suggested that he not come because I thought that if he did come, the deal would blow up. The bad blood between Mr. Solomons and Ms. -- Mr. McDaniel was so deep that we were dealing with a very fragile, fragile relationship and we needed to hold it together.

He told you this morning that Gail Lovett was told by me not to be there, the fact of the matter is that's not true. Gail was there and we have her deposition notes that I will hand into the Committee. I think nine pages of notes to show, in fact, that she was there.

We weren't hiding anything from Mr. McDaniel. It took us a little while to get him the transcript. Something happened in Charleston a few weeks after this August 30th deposition. It was Hurricane Hugo. My office was destroyed. All of our files were gone. I can assure you I don't know when I sent the transcript to Ron McDaniel, but you can be certain that he got it as soon as I did. I assume that the court reporter took a little longer than normal.

Anybody who knew Charleston at all during that period can testify to the chaos we were in. This is not a Hurricane Hugo defense. It is simply the reality of what we were facing.

But August the 30th when we took that deposition that was Ron McDaniel's contingent criteria. If Algie Solomons does okay under oath, then we've got a deal. In fact, we had a deal as far as I was concerned and as far as every lawyer in this case was concerned on August 30th. In fact, Drew Epting with the firm of Wise & Cole performs. We get the consent order to stay the foreclosure. We do every--- he does everything that he agreed to do.

It is important again to understand that this is August 30th. We have Hugo somewhere around September 21st, I think it was. There was no consideration on my
part at this point of leaving the Finkel law firm and certainly of going with Wise & Cole.

I have a good friend, a colleague, a partner of mine in the Finkel law firm, Gregg Meyers. Gregg for personal reasons had become disenchanted with where he was and wanted to move on. Gregg is not from Charleston. He didn't know a lot of lawyers. He asked if I would make inquiries on his behalf with some of the major firms.

I called Dewey Wise and went to see Dewey on Gregg's behalf at the end of October. The deal is struck in August, the end of August. No question about my leaving the Finkel firm.

My first -- and I'm not splitting hairs. I'm not talking about I had a conversation, I really -- the first contact with Dewey Wise is the end of October and it was on Gregg Meyer's behalf. At that meeting, Dewey says,
"Are you interested in coming with me?" And I said,
"Well, to tell you the truth, I'm kind of wavering. I'm not sure what I'm going to do. We've got some problems, but I'm going to stick it out with the Finkel firm for a while, but thank you. But in any event this isn't a package deal, I want you to consider Gregg."

December 2nd, we have a meeting at the Finkel law firm. Gregg Meyers has been offered a job by Wise & Cole. He tells the partners in the Finkel law firm that he's leaving. Fairly traumatic, not terribly pleasant meeting. And I tell them, "Guys, you know, I've really -- I've given this a lot of thought. I'm not going to leave you high and dry." We were the only two lawyers in the Charleston office. "I'll stay with you as many months as you want, but this thing is just not working. The hurricane has destroyed the office. We just got -- there is too much going on and I want to start looking myself." They say to me, "Well, if you want to start looking, start looking, but we think you need to be out of here soon. We -- you know, we'll make arrangements."

It was at that point that I went back to Dewey and said, "Listen, essentially I'm going to be on the street. I'd like you to consider hiring me."

I also interviewed with two other firms and their date -- the daytimers of the partners will reflect that. I had a lunch with Wade Logan at Holmes and Thomson essentially looking for a job at the same point in time. And I also had a meeting with Dick Riley at Nelson, Mullins looking for a job, so the idea that somehow I believe Mr. McDaniel said I cut a deal with Drew that if I got his cousin out of the case, they would give me a job, anybody who knows Drew Epting or knows how law firms work, that's -- it just doesn't make any sense. The dates aren't right.

I would also point out to you that Mr. McDaniel was not left high and dry. The Finkel firm continued to represent him, represented him for several months. He then -- they asked to be a relieved of counsel. He got additional counsel from Augusta. I believe his case was continued and then settled. That settlement has been sealed.

Just in terms of miscellaneous things that were said this morning, let me make the record clear that I never ever suggested Ron McDaniel would get 6.5 million dollars from USF&G. You don't have to be a good lawyer to know that you don't do that and I never would and never did.

I never advised him not to pay the Solomons. I never told Gail Lovett not to come to the deposition. I did provide him a transcript as soon as it was possible. And in a nutshell, there was absolutely no -- no collusion on the part of any lawyers.

I was part of a team of lawyers that provided Ron McDaniel with the highest quality representation that we could. Thank you. I'll answer any questions and -- excuse me.

Mr. Rosen did point out that I neglected to tell you that when we took the deposition of Algie Solomons, it did, in fact, confirm Mr. McDaniel's story and was very important for us to have.
THE CHAIRMAN: Questions from the Committee Members?
SENATOR MOORE: Mr. Chairman?
THE CHAIRMAN: Yes, sir. Senator Moore.
MR. STEINERT - EXAMINATION BY SENATOR MOORE:
Q. Sir, you may -- you went over part of the answers to the questions I'm going to give you, but also in sort of a litany of explanation and it would help me to hear them, so I --
A. Sure.
Q. -- to those specific questions. You made mention of the Buy-Sell agreement that you had to, you know, rummage through boxes and finally found it. When did the Buy-Sell agreement you talked about become known to you?
A. I honestly can't give you a date, but it would have been prior to the August 6th meeting, so sometime in the summer after the lawsuit had been brought prior to the August 6th meeting.
Q. The covenant not to sue --
A. Excuse me. Excuse me just a minute. The consensus is June or July, but we don't know.
Q. June or July?
A. Yes, sir.
Q. The covenant not to sue is dated October 31, 1989. I believe earlier Mr. McDaniel had stated that he received it early November. Do you recall when you first began to draft that covenant?
A. That covenant was drafted by Gail Lovett and reviewed by Steve Husman, both of whom are here. I did not draft the covenant.
Q. All right.
A. We were all lawyers on the case and frankly what had happened at that point, I was out of an office in Charleston. We were in temporary quarters, so the leg work and the -- was essentially coming out of Columbia for the months after the storm.
Q. Do you recall when you first read the covenant?
A. No, sir. I'm sorry, I don't. We had drafts that went back and forth before we sent it to Mr. McDaniel.
Q. And you made mention to this, but I'm going to ask you another way, if you would, when did you first have communication with the Wise firm as to your potential employment?
A. It was raised in passing at the end of -- at that meeting in October. I never really pursued it until December 2nd
-- after the December 2nd meeting with the Finkel firm. I was pursuing other employment in that they were an option.
Q. In October in passing the comment was made about are you interested, which came from --
A. Right.
Q. -- Mr. Wise, you said?
A. That's correct.
Q. But as far as any serious discussion as to your employment with the Wise firm, was it December? Is that what you're saying?
A. That is correct, yes, sir.
Q. The first week in December?
A. The first week in December.
Q. And the other -- your discussion with Mr. Wise in October on behalf of someone else, in passing comment was made, but the serious discussion in December, did that inquiry originate with you?
A. It did.
Q. Or someone from the Wise firm?
A. No, with me.
Q. When did you finalize your decision to proceed with working with the Wise firm?
A. Shortly thereafter. That -- probably that first week in December. Once I went back to Dewey, it didn't take very long. It all happened very quickly.
Q. And within that same week you notified the Wise firm of your decision?
A. You mean the Finkel firm?
Q. No, the Wise firm.
A. I notified them, you know, when they made the offer.
Q. And this again is the first week in December?
A. I think so. It's the first or second --
Q. I understand from memory --
A. It's the first or second week, but...
Q. And when did you notify the Finkel firm?
A. Well, the Finkel firm knew on December 2nd that I was -- they said -- after our conversation, they said they wanted me gone by the first of the year because they -- you know, once you made up your mind to leave, they thought it was best that we just do that and so that was fine, so they knew I was leaving.

I guess I notified them that I had gone with Wise & Cole, you know, simultaneously to Dewey. I mean it was all -- it all happened. There was no secret.
Q. Well, help me understand something. Your colleague that was in Charleston that you were speaking to the Wise firm on behalf, what's his name?
A. Gregg Meyers.
Q. Meyers. When did he notify the Wise firm of his departure?
A. I would say probably immediately after the meeting we had in Columbia with the partners of the Finkel firm on December 2nd. I would think that he -- this may be in Drew Epting's affidavit. I'm not sure, but I would think that Gregg probably let them know that December 3rd.
Q. All right.
A. Very close.
Q. And you stated that that was a pretty traumatic meeting?
A. That's correct.
Q. Was it traumatic in the sense that they were surprised that your colleague was leaving?
A. That's correct.
Q. And then did that trauma stretch into saying, "Well, you may as well go ahead and look, too?" I mean I don't -- help me understand the difference between your colleague they didn't expect to leave and was traumatized by his departure, then they tell you, "Well, you may as well leave also," in essence, that's what --
A. Well, no, it didn't go exactly that way.
Q. Well --
A. They said to me, "Well, what does this mean about you?" And I said, "Guys, I need to leave, too." In other words, I told them I was leaving, but my -- I feel a strong fiduciary duty to you. I'm running the Charleston office. You don't have anybody else down there. I don't have a job. I don't have a place to go. I will stay with you as long as you want in order for you to find somebody or make some decisions about what you want to do with the Charleston office.
Q. All right, sir. I wanted to clarify that in my mind. I guess I wasn't following as close. They were shocked, if you will, traumatized that your colleague was leaving and you at the same time pretty much informed them that you had intentions of leaving also, but that you would stick around until --
A. That's correct.
Q. -- it's appropriate for both; they, in turn, said,"Well, it's appropriate now?"
A. That's right.
Q. Okay.
A. Or the first of the year. It was three weeks to clear out.
Q. All right. And is your informing your client, a former client, Mr. McDaniel, of your decision occurred?
A. I want to say the date is December 14th and it was the first thing I did once I determined to go with Wise & Cole. I mean that was the first thing I felt I had to do.
Q. That's all I have right now.
A. Thank you, Senator. Any questions?
THE CHAIRMAN: I have one. Looking at the -- I see the affidavit you provided us from Mr. Epting who is the attorney with the Wise firm in Charleston; is that correct?
A. That's right. Yes, sir.
THE CHAIRMAN: The -- I've had another copy of that same letter and there is a blind PS or a copy of a letter he references in his letter -- in his affidavit and it has a blind PS to you. It's dated November 6th, 1989.

It looks like a letter to Mr. Solomons actually, but you get a copy in which he says, "Please find the consent order staying our action. Likewise be advised that the covenant not to sue or further litigation have been prepared," and Mr. Epting apparently encloses copies of those documents to Mr. Solomons and there is a PS -- sends you copies. There is a blind PS that says, "Please get things signed by Mr. McDaniel, so that we can move on to bigger and better things. I spoke with Dewey about your visit to our firm. We certainly were flattered."

Can you help me work through that? That's in November of 1989. What is he referencing there?
A. He is referencing my visit to the firm which was at the end of October when I spoke to him about Gregg when the conversation from Dewey came up about whether I would be interested. Dewey apparently mentioned it to Drew in passing and what Drew says in his affidavit is that I was president elect of the Chamber of Commerce. They would be thrilled essentially -- they were thrilled that I had come by. That is all it is and it is no more, but I can't speak for Drew Epting.
THE CHAIRMAN: I'm not asking you to. I'm just trying to better --
A. But that's what it is.
THE CHAIRMAN: All right.
A. Yes, sir.
THE CHAIRMAN: The idea of being flattered was or the conduct that took place was that you -- when he mentioned would you be interested, you apparently said I might be or --
A. Right.
THE CHAIRMAN: -- possibly, but that was the end of the discussion there?
A. That's it.
THE CHAIRMAN: And the next discussion you had after that November meeting or meeting at the end of October was in December with them?
A. Yes, sir.
THE CHAIRMAN: Further questions?
REPRESENTATIVE ALEXANDER: Yes, sir.
THE CHAIRMAN: Mr. Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. The covenant, who initiated the covenant to begin with? To start, who was it that suggested that there would be a covenant not to sue? I'd like to know that.
A. To the best of my memory, I believe it was Mr. Husman. He is here today and can corroborate that, and I just turned and asked him and he shook his head and said that it was.
Q. How did he get the information that he should follow through?
A. Well, Mr. Husman was the principal litigator on the case and so all of the information was being shared by all of us and it was part of this major meeting we had on August 6th as we went through all of the options that he came up with the idea of the covenant not to sue.
Q. Did he involve you in drawing up this covenant?
A. The -- I did not draw the covenant at all. It was drawn by Gail Lovett. It was reviewed by Mr. Husman. We had copies that went back and forth. I may have made some editorial changes. I can't remember. But, in fact, it was sent to Mr. McDaniel from the Columbia office by Ms. Lovett.
Q. Was he aware that this was being prepared? To your knowledge, was he aware --
A. Mr. McDaniel?
Q. Yes, sir.
A. Yes, sir. Absolutely. I want to make that very, very clear. Strategy is developed amongst the lawyers August 6th. We meet with Mr. McDaniel on August 7th. We have attorney's notes that reflect what happened at that meeting. Mr. McDaniel says fine, let's go with it, but I want to take -- I want you to take Algie Solomons' deposition on the 30th. No surprises at all.
Q. Why was he so interested in Mr. Solomons' deposition in your opinion?
A. He had come not to trust Mr. Solomons. He was involved in what was a very bad business deal. He didn't want to take -- get off face value that Mr. Solomons would do what Mr. Solomons said he was going to do and he wanted them on the record.
Q. You are the one that took the covenant to him for signature; is that correct, Mr. Steinert?
A. No, sir. It was mailed to him by Ms. Lovett.
Q. And at what point did you sit down and go over this with him?
A. We went over it several times. The reference that he made today, the last meeting I had with him was a deposition in Beaufort where a lawyer who had represented Mr. Solomons in some earlier negotiations, a fellow named Ken Tootle was being deposed by Heyward McDonald. I went to that deposition as you would expect I would as Mr. McDaniel's lawyer.

Ken Tootle was a good friend of Mr. McDaniel's. I spoke with Ken Tootle about essentially a client management problem that I was having. We had entered into an agreement. The other side had performed. I honestly felt that we would probably be facing a motion to compel the terms of the settlement if we didn't go forward. It was not to Mr. McDaniel's interest not to sign.

In fact, I thought that the case was being seriously jeopardized and undermined by his failure to sign. I discussed this with Tootle who is a lawyer. I explained the reasoning and the logic and the rationale and said, Ken, you are a friend of Ron McDaniel's. I don't seem to be able to get anywhere with him on this. Would you discuss it with him. He agreed.

I don't know whether he had a subsequent conversation with Mr. McDaniel or not, but a week later -- I mean I wasn't sitting there with a gun to his head or anything and said sign. A week later, he mails it back signed. And this is the end of November that we're talking about.
REPRESENTATIVE BEATTY: One question.
THE CHAIRMAN: Representative Beatty.
EXAMINATION BY REPRESENTATIVE BEATTY:
Q. At what point did Mr. McDaniel go into default on the note that was being foreclosed, the mortgage?
A. It had to be early summer. I would guess, but I don't know that for sure.
Q. That was during the time that you were representing him?
A. Absolutely. Yes, sir.
Q. And his not paying the payment was in -- was due to his not being able to?
A. Absolutely.
THE CHAIRMAN: Let me ask you one final question. You provided a copy of the original purchase agreement or a copy of the original draft. I believe it was sent to Mr. McDaniel and you referenced this Paragraph 6 which was the one -- was the paragraph in which the reference to contracts, I presume, with contracts with USF&G, that paragraph was included in the draft that Mr. Solomons did and then this is Mr. McDaniel's writing where new contents are placed in there?
A. Yes, sir.
THE CHAIRMAN: Do you know whether this was -- the changes that he suggested were incorporated into the final contract?
A. To the best of my memory, it was and the reason we brought the lawsuit against Mr. Solomons was that this was not in the final document.
THE CHAIRMAN: And that was my question. They apparently did
-- for whatever reason, after he sent this, back Mr. Solomons agreed to delete that language that dealt with the insurance companies, correct?
A. That's correct. Now, it was clear to everyone and I don't think there is any denying this by any party that when the agency was purchased, Mr. McDaniel knew of the problems not necessarily with that USF&G, although he understood it was shaky, but with every other company that had serviced and written for those agencies, they had all pulled out.
THE CHAIRMAN: And you've answered my question which is that when the final contract -- the final document did not include this Paragraph 6 that Mr. Solomons had drafted?
A. That's correct, sir.
THE CHAIRMAN: Other questions from the Members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Mr. Steinert, I guess my question just to follow-up that last statement, you said that he knew that all of them had pulled out, but what was he buying?
A. I think he bought a very sick agency or agencies, but believed in his own ability to turn them around. Mr. Solomons, Algie Solomons' father, had been, I guess, the general agent or whatever you -- the appropriate term was, he died. Mrs. Solomons who was essentially the bookkeeper was trying to hold them together and she wasn't doing a very good job of it. Algie Solomons, her son, was a lawyer. He wasn't all that interested in the business.

And I really believe that what Mr. McDaniel felt was that he was a skilled, talented insurance agent and that there was a real market down there and given his skills, expertise and ability, he could turn it around, so he was buying what they call the book of business.
Q. Well, if that was -- my follow-up, I mean is there $100,000 worth of equipment and stuff in that business? Do you know or --
A. I don't know and I did not represent Mr. McDaniel at the sale. I had nothing to do with that.
Q. Thank you.
THE CHAIRMAN: Thank you. Any further questions? Thank you, Mr. Steinert.
A. Thank you. Mr. Chairman, I have some of Ms. Lovett's notes from these meetings on August 6th and 7th and also her notes from the deposition of Mr. Solomons on August 30th. Would you like to have those as part of the record?
THE CHAIRMAN: You are welcome to pass those forward to us and we will include those in the record. I don't know how helpful they'll be until I look at them, so why don't we go ahead and put them in the record.
A. That's fine.
THE CHAIRMAN: And let me remind both Mr. Steinert and Mr. McDaniel that we leave the record open after these hearings and that if there are any other documents that you wish for the committee to consider prior to it undertaking a final decision, we would welcome your forwarding them to us. But if you would past those forward.
MR. STEINERT: Thank you very much.
THE CHAIRMAN: Thank you. Ray Nelson Stevens. Mr. Stevens, come forward please.
MR. STEVENS: Mr. Chairman.
THE CHAIRMAN: If you'd raise your right hand.
RAY NELSON STEVENS, having been duly sworn, testified as follows:
THE COURT: Mr. Stevens, have you had a chance to review the Personal Data Questionnaire Summary?
MR. STEVENS: Yes, I have.
THE CHAIRMAN: And is it correct?
MR. STEVENS: The only minor change is my daughter who used to four is now five.
THE CHAIRMAN: Congratulations.
MR. STEVENS: Well, I've aged greatly in the process myself.
THE CHAIRMAN: Several of us have that same feeling. Any other clarifications that need to be made?
MR. STEVENS: No, there are not.
THE CHAIRMAN: Do you have any objection to our making the summary a part of the record of your testimony?
MR. STEVENS: No objection.
THE CHAIRMAN: That will be ordered at this time.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Ray Nelson Stevens
Home Address: Business Address:
77 Middle Creek Road S. C. Attorney General's Office
Irmo, SC 29063 Tax Division
P. O. Box 125
Columbia, SC 29214

2. He was born in Toccoa, Georgia on October 7, 1949. He is presently 44 years old.

4. He was married to Janice Louise Shapiro on December 22, 1973. He has three children: Ryan Nelson, age 16; Alan Austin, age 12; and Leah Suzanne, age 5.

5. Military Service: N/A

6. He attended the University of South Carolina-Aiken, 1967-1969, Associate Degree in Business; the University of South Carolina, 1969-1971, B.S. in Accounting; the University of South Carolina, Engineering Graduate School, 1971-1972 (left for full-time employment with Internal Revenue Service); the University of South Carolina, graduate school (part-time), 1973-1975, M.B.A.; the University of South Carolina School of Law, 1975-1978, J.D.; and William and Mary School of Law, 1979-1980, Master of Law in Taxation.

8. Legal/Judicial education during the past five years:
June, 1989; Federation of Tax Administrators; General review of state and local tax litigation and legislation; 12.25
October, 1989; National Institute on State and Local Taxation; Review of state and local litigation and legislation; 11.5
January, 1990; Keys to Effective Trial Advocacy; Trial techniques; 6.0
May, 1990; Appellate Practice in South Carolina; Review of appellate practice and techniques; 6.5
January, 1991; Supreme Court Practice Seminar; United States Supreme Court practice and techniques; 9.75
March, 1991; Legal Ethics; Ethics in advertising, solicitation, and conflicts of interest; 6.0
March, 1992; Civil and Criminal Litigation; Review of civil and criminal litigation in state and local taxation; 2.5
August, 1993; Government Duties; Restructured state government and the state of administrative law; 6.0
September, 1993; Civil Law Update; Administrative Procedures update, 1993 Restructuring Act; 3.0
October, 1993; Southeastern Attorneys Conference; Tax cases and legislation of concern for southeastern states; 8.0

9. Taught or Lectured:
A. Law Related Courses Taught
1. Taught Fundamental of Federal Tax at Midlands Technical College for one semester; basic course in taxation of partnerships, corporations, and estates
2. Guest lectures at USC Law School in Professor Quirk's State and Local Tax classes:
a. Duties and functions of county officials in property taxation;
b. Taxation of railroads under Federal A-R Act
B. Lecturer at Bar Associations
Presentations to the Greenville County Tax Bar:
1. Remedies and Procedures for Suits Against State Officials
2. Administrative Procedures Before the South Carolina Tax Commission
C. Continued Legal Education Lectures
1. Federation of Tax Administrators: Lecture on the use of the Civil Rights Statute of 42 USC Section 1983 in state court to recover tax funds
2. Southeastern Association of Tax Attorneys:
a. Lecture on problems with collecting taxes while a party is in bankruptcy under an automatic stay of collection
b. Lecture on nexus and jurisdiction of South Carolina over businesses incorporated as Delaware Holding Companies

10. Published Books and Articles:

"Unwanted Assets Spun Off Prior to Acquisition of Wanted Assets," 1980 South Carolina Bar publication

"The Use of Title 42 USC Section 1983 in State Tax Litigation," 1988 REVENUE ADMINISTRATION, page 63

"Delaware Subsidiaries Can Still Reduce Tax But More Planning Needed," March/April 1992 THE JOURNAL OF MULTISTATE TAXATION, page 4

12. Legal experience since graduation from law school:

1978; Stophel, Caldwell, Heggie (Chattanooga, TN; now known as Caldwell, Heggie & Helton); General corporate practice with emphasis on taxation

1979; United States Internal Revenue Service; Examination of Federal estate and gift tax returns as an Estate and Gift Tax Attorney

1980 to present; Chief Deputy Attorney General, Director of Tax Division of SC Attorney General's Office; Issuance of Attorney General opinions; advise Commissioners of Dept. of Revenue on all administrataive hearings in tax and ABC; advise county and municipal officials on budget, school and finance matters; litigation and defense of State at all levels from administrative hearings to trial in state and federal courts including S. C. Supreme Court and U. S. Supreme Court

13. Rating in Martindale-Hubbell: not rated; not in private practice

14. Frequency of appearances in court:

Federal Court Appearances from 1989 to present
1. Federal District Court - two times
2. U. S. Supreme Court - three times; once on brief in chief; twice on brief in Opposition to Petition for Writ of Certiorari

State Court Appearances from 1989 to present
1. Trial Court - 21 times; 10 appearances with case settled before trial; 11 appearances with trial conducted
2. S. C. Court of Appeals - 3 times; once as primary attorney; twice as secondary attorney
3. S. C. Supreme Court - 12 times; 8 times as primary attorney; 4 times as secondary attorney

Other: Administrative Hearings from 1989 to present
1. S. C. Tax Board of Review - twice
2. South Carolina Tax Commission - 75 (average 15 a year) as advisor to the Commissioners; one time representing a party

15. Percentage of litigation:
Civil - 100%
Criminal -
Domestic -

16. Percentage of cases in trial courts:
Jury -
Non-jury - 100%

Sole counsel with other attorneys in office listed in name only on the pleadings

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Spencer v. South Carolina Tax Commission, 316 S.E.2d 386 (South Carolina Supreme Court May 15, 1984). This case determined that 42 USC Section 1983 could not be used in state court to recover taxes paid and correspondingly denied attorney fees normally available under 42 USC Section 1988.
(b) Reyelt v. State of South Carolina (United States District Court 6:93-1491-3). This suit will determine the constitutionality of the regulation of video poker in South Carolina with the attacks based upon vagueness, free speech, involuntary taking, impairment of contract, equal protection, commerce clause and privileges and immunity claims.
(c) Geoffrey v. South Carolina Tax Commission (South Carolina Supreme Court July 6, 1993). This suit determined that the use of an intangible (trademark) in South Carolina subjected the owner of the intangible to income taxation even though the owner has no physical presence in South Carolina. Further, such taxation does not violate Due Process or the Commerce Clause.
(d) Lowenstein v. South Carolina Tax Commission, 378 S.E.2d 272 (South Carolina Court of Appeals May 12, 1989). This suit determined that the payee of interest income is taxable on such interest income where the income is part of the taxpayer's unitary business. Accordingly, Due Process is not violated by such taxation.
(e) Gaston Copper v. South Carolina Tax Commission (trial level; Lexington County, Case No. 92-DP-32-0503). This case determined that the FOIA does not prevent disclosure of confidential contract documents and pollution investigation documents when such are given to the South Carolina Tax Commission as part of an attempt to reduce a property tax assessment.

18. Five (5) civil appeals:
(a) Geoffrey v. South Carolina Tax Commission, ___ SC ___, ___S.E.2d ___ (South Carolina Supreme Court July 6, 1993)
(b) South Carolina Tax Commission v. South Carolina Tax Board of Review and Collins Music Company, 305 SC 183, 407 S.E.2d 627 (South Carolina Supreme Court May 6, 1991)
(c) Thayer v. South Carolina Tax Commission, 307 SC 6, 413 S.E.2d 810 (South Carolina Supreme Court January 13, 1992)
(d) NCR v. South Carolina Tax Commission, 304 SC 1, 403 S.E.2d 666 (South Carolina Supreme Court May 6, 1991)
(e) Lowenstein v. South Carolina Tax Commission, 298 SC 93, 378 S.E.2d 272 (South Carolina Court of Appeals March 13, 1989)

25. Occupation, business or profession other than the practice of law:
1972-1975; Internal Revenue Service; Revenue Agent; Greenville, South Carolina; examined individual, partnership and corporate tax returns

40. Expenditures Relating to Candidacy:

$10.90 Office Max - stationery supplies 8/10/93
$13.63 Office Max - stationery supplies 8/18/93
$28.35 Kinko's - copy letters 8/18/93
$86.84 P. O. - postage 8/20/93
$2.10 K-Mart - stationery supplies 9/28/93
$23.21 Southern Bell - phone calls 10/11/93
$16.21 Kinko's - copy briefs 11/2/93
$13.19 Kinko's - copy brief, typing 11/3/93

TOTAL: $194.43

45. Bar Associations and Professional Organizations:
Member of Tax Section of South Carolina Bar; Past Chairman of the Attorneys & Appeals Section of the Federation of Tax Administrators, 1989; Member of South Carolina Association of Auditors, Treasurers and Tax Collectors

46. Civic, charitable, educational, social and fraternal organizations:
Past President and past Vice-President of Chapin Elementary PTO; Past Co-Chairman of the Budget Advisory Committee to School District Five of Lexington and Richland Counties; Past Vice-President of Shadowood Cove Civic Association

47. Deacon at First Baptist Church of Columbia, South Carolina; Sunday School teacher of an adult class; service, as an officer and as a member, on numerous committees such as Endowment Committee, Revival Committee, Budget Planning Committee and Stewardship Committee

48. Five (5) letters of recommendation:
(a) Alfred H. Barnett, III, Senior Vice President
The First Savings Bank
1201 Main Street, Columbia, SC 29201
251-3184
(b) Joe L. Allen, Jr., Esquire
109 Windsor Point Road, Columbia, SC 29223
788-3888
(c) Dr. Wendell R. Estep
First Baptist Church of Columbia
P. O. Box 1000, Columbia, SC 29202
256-4251
(d) S. Hunter Howard, Jr.
South Carolina Chamber of Commerce
Suite 1810, 1201 Main Street, Columbia, SC 29201
799-4601
(e) Honorable Robert E. McNair
McNair & Sanford
P. O. Box 11390, Columbia, SC 29211
799-9800

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 applicable law enforcement agencies, being the Richland County Sheriff's Office, Columbia City Police, SLED and FBI, all of those are negative. The Judgement Rolls of Richland County are negative and the Federal Courts as well. No complaints or statements were received. No witnesses are present to testify.

Prior to turning you over to counsel for questioning, I would offer you the same chance that we've offered the others and that's to make a brief opening statement.
MR. STEVENS: If the Committee will not hold it against me, I will not belabor the point and we can go ahead with the examination.
THE CHAIRMAN: We will not hold it against you, I will assure.
MR. STEVENS: Thank you.
THE CHAIRMAN: Ms. McNamee or Mr. Elliott? Ms. McNamee.
MR. STEVENS - EXAMINATION BY MS. MCNAMEE:
Q. Mr. Stevens, your PDQ states that on the average of 15 times a year, you are involved in hearings of the Tax Commission as the advisor to the commission -- to the commissioners, I assume. Would you please explain that role?
A. What we do is when a matter comes before the now Department of Revenue, a hearing is set up and notice is given to the Attorney General. It comes to my section and I will assign an attorney to act as advisor to the commissioners.

The number that you have before you is during a time period where I myself was acting as a advisor to them and on average 15 is probably low. It just depends on how many hearings they have.

During the course of the hearing, once it's concluded and the commissioners begin their deliberations, more often than not we are asked for our thoughts and usually what we do is give pros and cons of each position and they make their decision and we write a finding or what we call a finding for them. And the finding would consist of findings of facts, conclusions of law and then an order of the Department of Revenue.
Q. Who is representing the Tax Commission at this time?
A. Who is representing?
Q. Representing -- yes, the Tax Commission.
A. A division of the Department of Revenue will bring the case. Of course, the taxpayer is either representing himself or an attorney and then the commissioners hear it and then we advise when they ask us.
Q. In your opinion is it important that administrative law judges have a specialty of knowledge --
A. Well, I think the short answer is no because the idea behind the administrative law judge is that they become something of a specialist in an area of administrative law. It's not absolutely critical that they already have a specialty in a particular area of law. I think it is helpful. I think it shows the ability to master at least a designated area of the law.

I think the more important criteria is whether or not the individual has enough exposure to administrative law, has demonstrated the ability to accomplish the mastery of administrative law and then apply that to all types of hearings, whether it's DHEC, Tax Commission or any of the appeals that may come from some of the licensing boards.
Q. How will you prepare yourself in the areas that you're not familiar with?
A. Well, I think the obvious thing to do is that we are fortunate in our state to be a code state and that is most of what we're looking act is statutory law. Most of the rules and regulations are by way of regulations which are annotated in the law.

A party should before you even take on a hearing of a particular type review the statutes, become familiar with the regulations. If there are court cases on it, it would behoove an individual to read them. I think you just have to immerse yourself in a particular area of law that you're going to be having a hearing on.
Q. Would you do that before the hearing --
A. Yes.
Q. -- as the --
A. Yes.
Q. -- ALJ judge? Would you tell this committee what you think the office of chief judge is about?
A. Well, I think --
Q. What kind of organizational skills does that person need?
A. Well, I think an organizational skill that is necessary is the ability to take what is essentially an embryo and allow it to grow in a meaningful -- and not in a situation where it falls flat on its face. We've heard, and you've heard testimony, in which some individuals say that well, it can't be up and running by March 1st, others who say that there is no problem in having it up by March 1st. I think what you have to do in the organizational skills area is you identify those elements that are critical.

Number one is you have to have some sort of system set up to docket the cases the first thing that's got to happen. Once an appeal comes in, it's going to go to the Administrative Law Judge Division and then it has to be docketed. I think that's the first order of priority.

The second one is going to be having a schedule to hear those hearings. I don't think you should rush out and begin having hearings immediately. I think you have to have the facilities to have the hearings. You have to give some thought to the convenience of the parties that you're going to hear.

As you know, ABC hearings now are held in the locale in which the problem arose. Ideally, I think that would be a long term goal of administrative law judges.

Initially funding would be a problem. I don't think you could do that, but organizationally first priority is a docketing system. Second one is facilities in which to hold it. The third one would be a little longer term and that is some sort of system of rotating the judges.

I do think initially you would have to draw upon the strengths of your judges. Specialization would not be one of my goals, but it would certainly be a very good resource in the early stages of all of this.
Q. If you were elected, how would you handle the Revenue Department cases that came up?
A. Well, I think initially I would have to recuse myself from any case that I had a substantial part in. As you know, it would be a year from now before tax cases do, in fact, reach the administrative law judge. Hopefully by that time any cases that I have had direct involvement in would either have been resolved or all of the ones that we'll be hearing hopefully would be new.

I think it probably -- initially, again drawing on the strengths of the judges, it probably would behoove the administrative law judges to have a person with expertise hearing those tax cases and that would be with the understanding that there was no conflict of interest.

In fact, probably what I would do is fully disclose at the time the hearing began that I had some input into that agency and if there was an objection to it, we would know that early on and assign another judge to it.
Q. How will you use or be bound by the previous decisions of the agencies in a previous era?
A. Well, those decisions, of course, are made by the agency and I believe the administrative law judges are that, they are administrative law judges. It is not the province of an administrative law judge to dismiss agency findings.

In fact, one of the primary duties of the administrative law judges will be to be sure that agencies do, in fact, apply their policies and procedures in a uniform fashion. If a position is taken which is contrary to their established position, it is the duty of administrative law judge to bring that the attention of the agency and correct them.

It is not a rubber stamp type of approach, but it is certainly a full awareness that administrative agencies do operate by rules and procedures and that is what governs us, all of us, as citizens when we appear before those agencies.
Q. We've haven't used this term yet, but would you say then that there is a role for Stare Decisis?
A. As you may know, our Supreme Court has told us that Stare Decisis is not a principle that applies to administrative hearings; however, they were quick to go on to point out that agencies could not on day one make a decision and then day two make a contrary decision, so I think they are bound in the terms of rational and reasonable decisions, but they are not bound by the strict terms of Stare Decisis.
Q. What was your most valuable administrative law experience and why?
A. My most -- I'm sorry the --
Q. Valuable? Valuable --
A. Yes.
Q. -- administrative law experience and why?
A. I guess initially it would be a matter which ended up in the US Supreme Court. We had what seemed to be a rather innocuous statute that taxed individuals a little differently in North Carolina than it did in South Carolina and while we certainly recognized we had some problems with the statute, the procedural questions overwhelmed the substantive ones.

By the time we finally got to court, the issue was whether or not a taxpayer could sue the state as a violation of civil rights for having taxed the person incorrectly. The reason for that is that the taxpayer, if he won would be able to recover attorney's fees.

When the matter finally resolved itself in the United States Supreme Court, unfortunately or fortunately, depending on how you look at it, that court split four to four and that upheld the lower court which was fortunately was in our favor, so the answer has not been -- the question has not been decided, but at least for South Carolina, we know what the law in our state is. So that was my most interesting one.
Q. Is it also your most difficult?
A. Yes, it was. There's a couple of war stories I could tell you, but I won't in the interest of time.
Q. Would you please describe your method of separating your work for the state and your efforts to obtain this ALJ position?
A. I've done two things. One is the obvious one, anytime I appear here or any place else where I am doing something to further the Administrative Law Judge position, I'm on annual leave. Secondly, we do have occasions where some legislators may need an opinion from our office and I have directed that all of those opinions go to someone else, not to me.
Q. Could you also describe the ways you have gone about trying to acquaint yourself -- or acquaint legislators with you?
A. I sent out a letter early on in which I attached a resume, explained what I thought my qualifications are. I have made a few phone calls to individuals always being careful to tell them I am not soliciting, but simply introducing myself, asking them did they receive the letter and do they have any questions and that's pretty much what I have done.
Q. We have a economic statement from you of $194; is that correct to date?
A. That's correct.
Q. And have you ever been held in contempt or sanctioned by a court?
A. No, I have not.
Q. And have you ever been the subject of a disciplinary action arising out of your public employment?
A. No, I have not.
Q. You have only been in public employment, is that correct, since you --
A. When I got out of law school, I was attracted to a law firm in Chattanooga, Tennessee. I was there for a year and then I was attracted back home to South Carolina.

It was a good firm. It was just a little too far away from parents and grandchild was currently new, so it was time to come back home. But I had been in private practice for -- I think it was right at a year or a little over a year with a Chattanooga law firm.
Q. Have you ever sought directly or indirectly the pledge of a legislator's vote?
A. No, I have not.
Q. And are you aware of any solicitation without your authorization?
A. No, I am not. I know some people have written some letters recommending me, but I have not gotten any copies and do not know the contents of those letters.
Q. Thank you.
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 of a caucus of the General Assembly?
A. No, sir.
Q. Have you participated in a formalized interview process other than this screening hearing or one by the Bar Association?
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've heard that question several times and I think I know what you're asking, but I was contacted by the Bar by telephone asking me to appear before them, which I did. And I believe the date I appeared before them was on January the 5th.

We had what amounted to about a 20 minute, maybe 25 minute interview and then I think by letter dated the 7th, which was received by me on the 10th, I received their recommendation. That was the extent of my contact.
Q. And no other contact?
A. No, sir.
THE CHAIRMAN: Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. You said the interview with the Bar took place what date?
A. My notes say January the 5th. It was about 1:30 as I recall.
Q. How many interviewers participated?
A. I had two. One of them was Morris Rosen and quite frankly, I forgot the other gentleman's name, but I believe his last name was King.
Q. And do you know what part of the state the two interviewers reside?
A. No. Mr. Rosen, of course, is from Charleston. The other gentleman I did not know and I don't know where he is from.
Q. So of the two you had previous acquaintance with Mr. Rosen and --
A. I knew Mr. Rosen in a professional capacity. We've litigated a case together.
Q. Did you furnish a list of references?
A. Yes, I gave him five. Or I gave the Bar five. I did not give them to him.
Q. Have you any knowledge as to if any or all of the references were contacted?
A. I do not know if they contacted any of them.
Q. And when and how were you notified of the results of the Bar rating?
A. I received a letter. As I say, I think the letter was dated January the 7th. I received it on January 10th.
Q. By mail?
A. Yes.
Q. Thank you, sir.
THE CHAIRMAN: Senator? Other questions? Thank you very much, Mr. Stevens.
A. Thank you.
THE CHAIRMAN: That concludes the candidates for Seat 1. Now, we're ready to start on Seat 2. The first candidate is Stephen P. Bates. Mr. Bates, if would you please raise your right hand.
STEPHEN P. BATES, having been duly sworn, testified as follows:
THE CHAIRMAN: Mr. Bates, have you had a chance to review your Personal Data Questionnaire Summary?
MR. BATES: Yes, sir.
THE CHAIRMAN: Is it correct?
MR. BATES: There are two corrections on the amount of money spent on long distance telephone calls, I probably spent an additional 20, 25 dollars on those. On my net worth statement, since I've submitted that application, I have signed a contract to buy an unimproved lot adjacent to my residence.
THE CHAIRMAN: All right, sir. Any other changes?
MR. BATES: That's it.
THE CHAIRMAN: Any objection to including that as a summary of your transcript -- a summary along with your testimony as a part of your record?
MR. BATES: No, sir, Mr. Chairman.
THE CHAIRMAN: That will be done.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Stephen P. Bates
Home Address: Business Address:
4606 Arcadia Road 914 Richland Street, Suite A-200
Columbia, SC 29206 Columbia, SC 29201

2. He was born in Columbia, South Carolina on August 11, 1962. He is presently 31 years old.

4. He is single.

5. Military Service: N/A.

6. He attended Presbyterian College, 1980-1984, Bachelor of Science Degree in Political Science; and the University of South Carolina School of Law, 1984-1987, J.D.

8. Legal/Judicial education during the past five years:
He has fulfilled all MCLE and LEPR requirements, attending and/or participating in seminars dealing predominately with State Government issues.

9. Taught or Lectured:

December 19, 1991; Municipal and County Attorney Institute; Seminar on Effects of 1991 Ethics Act on Local Government

August 6, 1993; South Carolina Bar; Seminar on Administrative Law Judge Division

October 8, 1993; South Carolina Bar; Circuit Court Bench and Bar Update - Seminar on Administrative Law Judge Division

12. Legal experience since graduation from law school:
May, 1987 - December, 1988: Associate with Turner, Padget, Graham & Laney, P.A. in Columbia, South Carolina. Practice included general litigation and workers' compensation work.
December, 1988 - October, 1993: Counsel to the Speaker of the South Carolina House of Representatives, Robert J. Sheheen.
January, 1989 - January, 1991: Staff Counsel for The Joint Legislative Committee for Judicial Screening.
January, 1991 - October, 1993: Staff Counsel for the South Carolina House Legislative Ethics Committee.
November, 1993 - present: Private practice with Roy D. Bates. Practice predominately involves litigation and appellate work on cases dealing with local government issues.

13. Rating in Martindale-Hubbell: No rating; assumes because of employment with the General Assembly.

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

15. Percentage of litigation:
Civil - 100% of all litigation
Criminal -
Domestic -

16. Percentage of cases in trial courts:
Jury -
Non-jury - 100%

Chief Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Burton, et al. v. Sheheen, et al. 793 F.Supp 1329 (D.C.S.C. 1992). Chief Counsel for the South Carolina House of Representatives in three-week trial before three-judge panel regarding legislative and congressional redistricting.
(b) John Keitt Hare v. Group Therapy, et al. (87-CP-40-3711). Richland County Jury Trial before Judge Bristow involving issues of assault, negligent hiring, and negligent supervision of employees.
(c) Jane Hagood Reese v. Mary Moore (87-CP-40-5639). Represented Pro Bono Defendant in personal injury action in jury trial before Judge Connor in Richland County.
(d) W. C. Rahn v. James C. Jarrell, Individually and d/b/a Estill Service (88-CP-25-37). Property damage case in Hampton County involving issues of default status of Defendant and prior damages.
(e) Nadelda Jones v. Kevin Pleasant (Civil Case No. 116-C775756). Lexington County Magistrate Case involving breach of contract and conversion claims.

18. Five (5) civil appeals:
(a) Statewide Reapportionment Advisory Committee, et al. v. Theodore, et al., 92-155 and Campbell v. Theodore, 92-219 (U.S. June 14, 1993).
(b) Kneece v. Kneece, 370 S.E.2d 288 (S.C. App. 1988).

25. Occupation, business or profession other than the practice of law:
None, except for part-time or summer jobs during high school and college.

29. Arrested or Charged: Yes. On March 26, 1982, at about 2 a.m., while camping with some college friends in the Sumter National Forest near Clinton, South Carolina, they were approached by a game warden. They were cited for camping on game management land without a permit and littering. He paid a $60 fine to Magistrate Jim Braswell in Clinton.

40. Expenditures Relating to Candidacy:
9/93 - 10/93
Postage: $99.18
Long Distance Telephone Calls: Approximately $15.00

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

46. Civic, charitable, educational, social and fraternal organizations:
Presbyterian College Alumni Association, member of Fundraiser Steering Committee, member of Scotsman Club (Athletic Booster Club); Sigma Nu Alumni Association, Zeta Theta Chapter, President, Vice President; Richland Northeast High School Alumni Association, President; North Trenholm Baptist Church; Rosewood Drive Study Committee; Eastminster Presbyterian Church, Youth Basketball Coach

48. Five (5) letters of recommendation:
(a) Bruce Wrenn, Banking Officer
South Carolina National Bank
10134 Two Notch Road, Columbia, SC 29223
771-3536
(b) James R. Courie, Esquire
Turner, Padget, Graham & Laney, P.A.
P. O. Box 1473, Columbia, SC 29202
254-2200
(c) Larry E. Gentry, Esquire
P. O. Box 673, Saluda, SC 29138
445-8165
(d) Isadore E. Lourie, Esquire
Lourie, Curlee, Barrett & Safran
P. O. Box 12089, Columbia, SC 29211
799-9805
(e) Virginia Crocker Lloyd
117 River Birch Lane, Columbia, SC 29206
738-9322

The Board of Commissioners on Grievances and Discipline reports no formal complaints or charges of any kind have ever been filed against you. Records of the applicable law enforcement agencies, Richland County Sheriff's Office, Columbia City Police, SLED and FBI, are negative. The Judgement Rolls of Richland County are negative and Federal Courts as well. No complaints or statements were received. No witnesses are present to testify. We'll give you a chance at this time to make a brief opening statement if you'd like.
MR. BATES: Just one note. I'm sure all the members of the Committee are aware of this, but for the record, I'm not the Steve Bates with the ACLU.
THE CHAIRMAN: All right. Questions will come from Ms. McNamee. Ms. McNamee.
MR. BATES - EXAMINATION BY MS. MCNAMEE:
Q. Thank you. Mr. Bates, I just note that you have not filed with the House or Senate Ethics Committee? Would you be doing that soon?
A. Pardon?
Q. You have not filed your statement with the House or the Senate Ethics Committee to our knowledge?
A. All right. Okay. I was not aware of that. I thought there was a notation that that would be forwarded from this committee, but I'll make sure that's done.
Q. Could you just clarify -- okay. Fine. Mr. Bates, who is your role model as a judge? Who do you think exemplifies those characteristics that you think are important in a judge?
A. I don't know that I've thought about that as a specific individual. Obviously, I have some role models as far as people I think who practice law in the manner in which they do that and the way they conduct themselves professionally and gain respect and probably the two that fall into that category, neither one of them being judges, would be the two that I have worked most closely with in my professional life and that would be House Speaker Bob Sheheen and my father, Roy Bates.
Q. Do the characteristics that you admire in those gentleman, would they be the characteristics that you'd like to emulate as an administrative law judge and what would they be?
A. I think those traits are probably transferrable to just about any profession and that would be to act with integrity and fairness, to be diligent and hard working and treat people like you'd want to be treated and to be straight forward.
Q. What is your concept, your idea of what this administrative law judge position is about?
A. I think that it has to be seen in the context of the piece of legislation in which it was included, the Restructuring Act. As all the members of the panel are well aware that that was a comprehensive piece of legislation that changes the way that this state will do and does do business including abolishing a great number of state boards and commissions.

I think in doing that, in transferring the decision making and conflict resolving functions of those former agencies and changing those over to a new division that we are saying that we want that -- those processes done in a more professional manner and also be done in a more objective manner where instead of having staff members from the effected agency involved in the decision making process where there is some contested case, that you have some outside authority sitting in judgment of those cases and you also have people with law degrees and expertise better able to deal with evidentiary problems in helping to build a good record in case there is some question of law to be taken to a higher level and into the judicial system.
Q. Your trial experience is somewhat limited. Would you like to comment on that? How you think that would effect your candidacy? What do you do to make up for that?
A. Sure. I went into private practice straight from law school. I worked as a law clerk for -- all through law school for the Columbia firm of Turner, Padget, Graham and Laney and was an associate with them for a while and then came to the State House to be legal counsel to the Speaker and held that post for five years.

And during that time very definitely had limited trial experience as the Speaker's counsel with one major exception. I represented the House of Representatives in the reapportionment trial before a three-judge panel and that was an experience within itself. There were probably 27, 28 lawyers involved in the trial aspect alone.

But apart from that, I've also represented the Speaker's interest in some other pieces of litigation. There is a case which at one time was a companion case to the reapportionment case, there were some citizens in the low country challenging the constitutionality of the county legislative delegation which is still pending.

I had also represented the Speaker in some interest in a case in which he was a defendant which former Representative B.J. Gordon brought suit having to do with some House rules and suspend members about upon indictment. I've been involved in some DYS litigation on a suit regarding overcrowding of some institutions there.

Apart from that, I've also taken part as staff counsel for some -- for a committee or joint committees of the General Assembly, one of which being this committee here. Between -- for two years, I was the staff counsel and sat where you sit now asking these questions.

And for about three, three and a half years, I also served as staff counsel for the House Ethics Committee and gave them legal advice, helped in drafting Ethics opinions and helping in conduct hearings, both public and executive session hearings, involving complaints and allegations against members or other investigations, so it's kind of been kind of a hodgepodge. It may not be the stereotypical experience in a courtroom that many lawyers have, but I think it's been beneficial.
Q. How will you go about making your decision in a case? What will you do?
A. I think I would approach it as probably all the others candidates have or will answer that -- with an open mind, prepare myself, look at the pleadings before the parties come in to adjudicate the case and listen to the witnesses and accept any evidence.

I think it's important to make decisions evidentiary or dispositive issues of a case in a somewhat expeditious manner. I know that some people get fed up with having objections -- rulings and objections held over until a later time until the record is cold and that type of thing, but at the same time, I would like to be very cautious especially at the outset to make sure I make a fair and informed decision.
Q. As an administrative law judge, you would also be presiding over the rule-making hearings and this is going to be a new ball game, could you give us some of your ideas on that, the decision of what is reasonable? How do you --
A. That's going to be something that's going to have to be developed, I think. I know that language has been used by other states. I think Minnesota uses that same standard in reviewing proposed regulation. In having worked for the Legislature, I know that there are many legislators that are concerned whenever a huge package of proposed regulations comes across their desk and because either time constraints or because it's very technical language, many of them feel uneasy on the content -- on passing on what the content is. And I think that whether or not the proposed regs are found to be reasonable or needed, the fact that someone else has taken the time to preside over those hearings and to make those findings and present those to the General Assembly will be a great benefit to the members.

They can know that someone objective from outside the agency has taken a look at those regs and has listened to input from those who will be effected by the regs. I can't give you a pat answer for what the definition of need or reasonableness will be. I think that's going to be a question of fact and that's one of the reasons that you'll have an ALJ to hear those.
Q. Do you perceive this as being a sentence -- these regs are reasonable and needed or do you expect yourself to be perhaps writing some sort of little --
A. Having seen some of the regs come through, I don't believe many of them, you'd be able to surmise in one sentence whether they're reasonable or needed, that you'd most likely have to have a much more detailed report than that.
Q. This goes back a ways, Mr. Bates, but have you been camping on camp management land lately?
A. I've stayed away from those areas since about 1982.
Q. That's all cleared up. Yesterday we had a gentleman say that the leash law violation was still outstanding, so this one is not outstanding, is it?
A. I hope not.
Q. Would you please explain briefly how you've gone about discussing your candidacy with members of the Legislature and what you've done in that regard?
A. The first decision I made in this process was whether or not I was going to run for this position. Very soon after that, probably in the next breath, I had to come to the decision of how I'd go about doing that and the decision I made, and I consulted with the Speaker on that, and it was -- a mutual decision would be that I would resign my position as counsel to the Speaker simultaneously with submitting my application for this position.

Being involved in some things with the House of Representatives that my job required me to do, I felt that at worst there was some very serious conflicts. Since the issue of reapportionment is still hanging over the General Assembly and I was involved at the trial level and on the legislative side and the fact that I helped draft opinions for the Ethics Committee, there is very obviously if one were so inclined room for misusing that discretion.

At the very best, there would be the possibility for appearance of some impropriety. The General Assembly has been too good to me and my career for me to want to do anything to bring any type of political fallout to it and my entire career up here, I found that it's always best to take the high road whenever you come to a fork in the road.

I was fortunate enough -- my father is a private practitioner here in Columbia. I was fortunate enough to be able to go into practice with him, so on November 1 when I submitted my application to the Screening Committee, I tendered my resignation to the Speaker and went back into the private practice of law.

Prior to resigning, I did send one letter out informing members of the General Assembly that I intended to do just that. I used my father's office to have those typed and mailed out and then upon resigning and going into private practice, I sent out a double letter accompanied with a resume.

I made a number of telephone calls and made some visits to legislators at their home towns, at their places of business and have since tried to contact as many as possible in person or by telephone to inform them of my plans and discuss my qualifications. I've been standing out in the lobby with a lot of my peers.
Q. How do you like it?
A. It's a humbling process.
Q. Have you ever been held contempt or sanctioned by a court for any reason?
A. No.
Q. Have you ever been the subject of a disciplinary action as a public employee?
A. No.
Q. And finally have you sought directly or indirectly the pledge of a legislator's vote for your candidacy?
A. No, I have not.
Q. That's all I have.
THE CHAIRMAN: Questions from the members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Have you sought the endorsement by any group of members of the General Assembly or the caucus of the General Assembly?
A. No, sir.
Q. Have you participated in a formalized interview process other than this particular process here or the one at the South Carolina Bar Association?
A. No, sir.
Q. And have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the South Carolina Bar Screening Committee, South Carolina Bar employees or lobbyists representing the South Carolina Bar either before you were screened or after you were screened, but prior to the Bar's screening report being made public?
A. Yes, sir. I had one discussion after I had submitted the requested information, a list of references to the Bar. That was about December 1st when I submitted that list of references and that information.

A day or two later I was contacted by Betsy Gray who was the chairman of the Bar's Judicial Qualifications Committee in a telephone conversation and she told me that they would -- they had a prohibition against interviewing or speaking to any legislators about candidates and I had listed Speaker Sheheen as one of my references.

And when I inquired as to why there was a prohibition to speaking to legislators, I was informed that they wanted to avoid any problem with the pledge rule, commitment rule.

They were afraid that getting a recommendation or evaluation of one's work from a legislator might rise to the level of giving a pledge. I told her that I didn't think that was the case, that this was a third party making inquiry and that I didn't think it would cause a problem just giving an evaluation of someone's past work performance, but -- and she was very pleasant about it and asked if I wanted to include anybody else in his place. And I informed her that about everybody I'd worked for for the last five years was a legislator.

And then she mentioned any -- if I wanted to include names of any other lawyers or judges. At which point I asked her a question. And I told her that I had thought about listing a current Circuit judge as one of my references and listed -- one of my references to this committee, but had looked at the Canons of Judicial Ethics, and I don't remember the specific number, but -- which prohibits a member of the judiciary from being involved in political activities. And in my interpretation, I felt uncomfortable asking the judge to be a reference for me because I feel like running for a position elected by the General Assembly and having someone act as a reference for you would be a political activity. And so I told her to feel free to ask anybody else she wanted to talk to. I didn't offer any other references at that time.

That's the only other contact I had besides a staff member calling me to set up an interview at the Bar Association on January the 5th.
THE CHAIRMAN: Thank you, Senator. Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. Mr. Bates, what is the day you were first contacted by the Bar regarding the interview?
A. I received -- about the interview?
Q. Yes.
A. I was called on January the 4th, which was a Tuesday and the interview was the next day.
Q. And where did it take place?
A. It took place at the State Bar offices.
Q. And how many interviewers participated in your interview?
A. There were two, Mr. Morris Rosen from Charleston and Mr. Howard King from Sumter.
Q. Did you have a previous acquaintances with any -- either one of those gentlemen?
A. I knew both of their names by reputation, but I had never met either one of them.
Q. You said you did furnish a list of references?
A. Yes, sir.
Q. How many did you furnish?
A. In addition to the five that were on the list for this committee, there were an additional five and they said they would not speak to Speaker Sheheen, so I guess nine total.
Q. To your knowledge, were any of your references contacted?
A. I checked around before I went to my interview to find out and did not talk to all of the people I had listed, but none of the people that I talked to had been contacted prior to my interview.

During my interview, Mr. King asked me if I had any questions and I asked him what their intended process was for contacting references and he said, "Well, if we haven't already contacted them, we will." And I said,
"Well, you know, there are several I know that have not been."

Subsequent to that, the next day, three of the people that I listed informed me that they had been contacted. And I can't speak for the rest of them. I haven't asked them.
Q. When and how were you notified of the results?
A. I received a hand-delivered letter on Monday, January 10th in my office.
Q. And I see in their list as far as finding you qualified, they state that your limited experience in legal advocacy is of some concern. Thank you.
THE CHAIRMAN: Other questions?
EXAMINATION BY SENATOR RUSSELL:.
Q. Sir, you're at lunch with a colleague from Presbyterian College and a person you went to the University of South Carolina law school with and they're an attorney that appear before you many times in your court or in your hearing in your capacity as a hearing officer and they start to discuss a case that is coming up with you in the future, how are you going to handle that?
A. I hope if they have that kind of training that they wouldn't do that in the first place. I would just try to stop it as soon as it started to come out of the mouth and admonish them that I would not be able to discuss any other matter whether it be pending or possibly coming up before me.

I think most attorneys and hopefully all the ones that I know wouldn't try to do that in the first place, but for two reasons, they would be good attorneys and, second of all, because they know that I wouldn't tolerate that type of activity.
Q. Would you have any trouble with a lunch?
A. With having lunch?
Q. Uh-huh.
A. If they had a matter pending before me or --
Q. Or regularly appear before you and they're also your friend? They're also your friend from college and law school?
A. Well, I think that judges have to be a lot more careful about appearances and even though there never would be any impropriety that they've got to avoid that appearance. I can't say that I'm going to cut off all friendships with people that practice administrative law, but there would definitely have to be some well defined boundaries.
THE CHAIRMAN: Mr. Bates, one of the concerns I have is the -- trying to build an experienced group of administrative law judges. With that in mind, is this something you plan -- you would plan if elected on giving a lengthy period of service to or just another step in your career?
A. Well, I don't know what the next step would be at this point, so, no, I very seriously look at this as a challenge and as a large career type position.

I can't tell you that I would want to do that for the rest of my professional career or not, but I think that since this is a new endeavor, that it requires dedication at the very beginning to put the time and effort to make sure that it's done right.
THE CHAIRMAN: All right. Further questions? If not, thank you, Mr. Bates.
A. Thank you.
THE CHAIRMAN: The next is Karen Lynn Kanes. Ms. Kanes, if you'd raise your right hand, please.
KAREN LYNN KANES, having been duly sworn, testified as follows:
THE CHAIRMAN: Have you had a chance to review the Personal Data Questionnaire Summary?
MS. KANES: Yes, I have.
THE CHAIRMAN: And is it correct?
MS. KANES: It is.
THE CHAIRMAN: Are there any amendments or clarifications that need to be --
MS. KANES: No, there are not.
THE CHAIRMAN: Is there any objection to our at this time making that summary a part of the record of your sworn testimony?
MS. KANES: There are none.
THE CHAIRMAN: All right. That will be ordered at this time.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Karen Lynn Kanes
Home Address: Business Address:
1775 Reidville-Sharon Road Spartanburg County Courthouse
Greer, SC 29651 Spartanburg County Magistrate Court
180 Magnolia Street
Spartanburg, SC 29301

2. She was born in Houston, Texas on August 14, 1962. She is presently 31 years old.

4. She was previously divorced on July 20, 1989; Family Court of the Thirteenth Judicial Circuit; James Lafon Rogers (moving party); ground of one year's continuous separation. She was married to Michael Murphy Armor on May 31, 1992. She has no children.

5. Military Service: N/A

6. She attended Goucher College, 1980-1983, Bachelor of Arts in 1983; and the University of South Carolina School of Law, 1983-1986, J.D. in 1986.

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

Mandatory Continuing Legal Education, 1988-1993, a sundry of classes non-specific ranging from Worker's Compensation to Evidentiary Issues.

Mandatory Judicial Education, 1992 to present, classes attended as incoming Magistrate coupled with mandatory annual magistrate conference.

9. Taught or Lectured: Magistrate's Orientation School (June 16, 1993); Legal Authority and Administrative Procedures Involved in Sentencing Alternatives including Jurisdiction, Venue, Sentencing and Fees

10. Published Books and Articles: THE CONSTITUTION OF SOUTH CAROLINA, Volume I: The Relationship of the Legislative, Executive, and Judicial Branches, by James Lowell Underwood, date of publish 1986 (see pages xiii-xiv Acknowledgments for research)

12. Legal experience since graduation from law school:

Staff Attorney (1986-1987), Office of Senate Research: Drafted and researched legislation. Participated in administrative procedures and hearings. Represented Senators in litigation.
Assistant Circuit Solicitor (1987-1988), Spartanburg Solicitor's Office: Represented State and prosecuted cases in Family and General Sessions Court. Litigated matters including child abuse and rape. Primary litigant for all Protective Service matters.
King, Hray and Kanes (1990-1992), partner King and Hray (1989-1990) associate: Litigated routinely in Probate, Magistrate, Family, Circuit and Appellate Courts. Practiced before administrative boards and commissions specifically the Worker's Compensation Commission and ABC Commission. Researched/drafted appellate briefs, legal memorandum and pleadings.
Magistrate (June, 1992 to January, 1993) Chief Magistrate (January, 1993 to present). Presided over civil and criminal court both jury and non-jury trials. Routinely researched legal issues. Drafted legal memorandum and orders. Presented arguments for and successfully obtained funding from County Council to restructure court system. Researched and prioritized goals to implement restructure. Instituted novel approach to reduce case backlog resulting in reduction of jury trial case load of approximately two thousand to two hundred pending. Developed approaches to deal more efficiently with general public. Managed personnel, including Magistrates in excess forty persons. Prepared and presented budget for FY 1993-1994. Magistrate (June, 1992 to January, 1993). Presided over traffic court bench trials and civil, criminal and traffic jury trials. Implemented Spartanburg County's first centralized Traffic Court System. Developed courtroom procedure and shared training with District Magistrates.

13. Rating in Martindale-Hubbell: Rating prior to Magistrate appointment; Martindale-Hubbell (1992) A rating

14. Frequency of appearances in court:
Federal - N/A
State - regular appearances prior to appointment as Magistrate
Other -

15. Percentage of litigation:
Answers below pertain directly to employment during specified time.
Civil - (1989-1992) one-third of practice with King Hray and Kanes (King Hray and Kanes a/k/a King and Hray [1989])
Criminal - (1987-1988) total practice as assistant solicitor
Domestic - (1989-1992) one third of practice with King Hray and Kanes

16. Percentage of cases in trial courts:
Jury - (1989-1992) estimated five to ten percent
Non-jury - (1989-1992) estimated twenty percent civil non-jury; estimated thirty percent domestic non-jury; estimated twenty percent worker's compensation

Other than appellate work, service was mainly sole in nature. Note, however, much work originated from the earlier year as associate.

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Billy Ray Short, Employee, Claimant v. Peeler Rug Compant, Employer, Kansas City Fire and Marine Insurance Company, Carrier, Defendants. W.C.C. File No. 9005828. Claimant sustained permanent, total disability. Liability was questionable. Appeal upheld lower decision. The case was significant by the complexities in the factual history. Moreover, Claimant's limited mental state (functional illiterate, mild retardation) made the trial challenging. The Claimant was awarded compensation.
(b) In the matter of: Shari L. Whitlow, Pres. S.U.V., Inc. d/b/a Ellite. This matter was the predecessor to a series of cases wherein he represented the City of Spartanburg. The cases all involved requests for alcohol permits in a volatile area of the City. The significance of the case was its impact on the community by restricting permits in questionable/dangerous area. The case was heard before the Alcoholic Beverage Control Commission, order rendered August 27, 1990.
(c) Katherine P. Bridges ("Kippy"), Plaintiff v. Donald E. Bridges, Defendant. Case Number: 91-DR-11-539. The Defendant was the partner in a large insurance company, thus the division of property was extremely complicated. The case was significant in both the results and legal complexities. More than five experts in evaluation of Insurance companies were retained or consulted. This in conjunction with diverse facts made the case unique.
(d) Robert A. Osment, Plaintiff v. Cynthia Phillips and Charles A. Cerney, Case Number: 91-11-16. The significant feature of this case was the convoluted facts. Representing the Plaintiff, the facts represented by the investigating officer were not similar. The case was settled after arguments had begun, and the settlement was one of the few in which all parties were reasonably satisfied.
(e) In the matter of: Alice Pack, Social Security Matter ***-**-****. The Claimant sought benefits after suffering physical impairment. The case was significant in the pleasure she felt personally in the award received to the Claimant.

18. Five (5) civil appeals:

(a) Duke Power Company, Respondent v. David C. Thornton and Vesta L. Thornton, Appellants Case No. 89-CP-42-1273

20. Judicial Office:

Chief Magistrate (January, 1993 until present). Appointed Chief Magistrate by Chief Justice of the South Carolina Supreme Court. Jurisdiction limited to $2,500 in civil matters and a sundry of offenses against property limited to less than $1,000. Remanded cases by consent of both parties also are included in jurisdiction. A majority of cases in Magistrate jurisdiction are defined by penalty of $200 or 30 days in jail for criminal convictions. Appeals from the Highway Department are also heard de novo by the Chief Magistrate.

Magistrate (June, 1992 until January, 1993). Jurisdiction includes all the above with the exception of Appeals from the Highway Department.

21. Five (5) Significant Orders or Opinions:
(a) State of South Carolina v. Brenda Poole (S130871 - Spartanburg Magistrate Court)
(b) The State v. Arthur G. Hopper (Spartanburg Circuit Court).

45. Bar Associations and Professional Organizations:
South Carolina Bar Association (1986 until present); Spartanburg County Bar Association (1987 until present); Spartanburg Young Trial Lawyers (1988 until present); Chairperson, Spartanburg County Family Law Committee (1992); Judicial Task Force on Gender Fairness in the Courts (1993 until present); South Carolina Commission on Alternative Dispute Resolution (1993 until present); South Carolina Association of Summary Court Judges (1992 until present)

46. Civic, charitable, educational, social and fraternal organizations:
Board of Trustees: Nominated Spartanburg County YMCA Executive Comm. (October, 1993 until 1996); Spartanburg Little Theatre (1990-1993); Spartanburg County Children's Shelter (1992); SAFE Homes Network for Abused Women (1989-1992); Department of Mental Health; Children's Coalition Against Sexual Abuse (1990-1992); DSS Treatment Team (1988-1992)
Volunteer: Habitat for Humanity (1992 until present); Seeds of Faith Ministries Soup Kitchen (1992 until present); Mobile Meals a/k/a Meals on Wheels (1989 until 1992); Spartanburg Young Running Club (1990 until present)

47. Marathon 26.2 miles: Top seven Female, South Carolina Marathon (1982, 84, 86, 87, 89, 90); Top five Female, Grand Father Mountain Marathon (1989, 90, 93); Boston Marathon (qualified 1982, 83, 84, 86, 88, 89, 90, 91, and 93) (participant 1989)

48. Five (5) letters of recommendation:
(a) Susan B. Gamble, Assistant Vice President
Nationsbank
1000 Pine Street, Spartanburg, SC 29303
594-6472
(b) H. Spencer King, Esquire
1451 East Main Street, Spartanburg, SC 29301
582-4365
(c) Ben Harrison, Esquire
Harrison & Hayes
P. O. Box 5367, Spartanburg, SC 29304
542-2990
(d) Honorable Bruce Littlejohn
Chief Justice-Retired
P. O. Box 2526, Spartanburg, SC 29304-2526
585-3363
(e) Professor James L. Underwood
University of South Carolina School of Law
Columbia, SC 29208
777-4155

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
Chief Magistrate (January, 1993 to present)
Magistrate (June, 1992 until January, 1993)

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 Judicial Standards Commission has no record of reprimands against you. I understand you're currently serving as the Chief Magistrate of Spartanburg County; is that correct?
MS. KANES: That is correct.
THE CHAIRMAN: The records of the applicable law enforcement agencies, being Spartanburg County Sheriff's Office, Spartanburg and Greer City Police Department, SLED and FBI records, are all negative. The Judgment Rolls of Spartanburg County are negative. Federal Court records are negative. No complaints or statements have been received. No witnesses are present to testify against you.

Again, prior to turning you over to Ms. McNamee for questioning, I'll offer you the opportunity to make a brief opening statement.
MS. KANES: I will waive that. Thank you, sir.
THE CHAIRMAN: Thank you very much. Ms. McNamee.
MS. KANES - EXAMINATION BY MS. MCNAMEE:
Q. Ms. Kanes, will you pull the microphone closer to you and speak into it. We're having a little trouble. Thank you. Ms. Kanes, you have been out of law school for seven years; is that correct?
A. That is correct. Is this better now?
Q. Yes. Talk up a little bit. And I read from your Personal Data Questionnaire that you have made several career moves. You have worked for the Senate in the Research office. You have been in the Spartanburg Solicitor's Office. You have been in private practice as an associate and a partner and now a Magistrate and then as now the Chief Magistrate and I ask you as I did one other person, do you see this move -- the desire to be an administrative law judge as a real commitment on your part to be there for the three years? Can you expand on that?
A. I intend to stay there if I am so fortunate to be chosen.
Q. What would you describe was the most important characteristic of judicial temperament of a good judge, one who is -- you have a lot of experience, so you can really speak to this.
A. I think every person deserves to treated with respect and I don't care what the person -- or who the person is or who they know, I think that every person that comes before you should be listened to and they should be given respect.

And I think as a judge sometimes particularly when there is a good bit of stress, the tendency is to move very quickly and forget that and I think having litigated and having tried so many cases, I learned that it is very important to treat people always with integrity and respect.

I think patience is also very important, particularly dependent upon the subject matter. If it is a difficult subject matter, again, and you're moving a lot of cases or you have deadlines, sometimes your -- because you have such a responsibility, you have to constantly fight the trend to cut a person off or to limit them. And I think that you as a judge have an absolute obligation to give every person that right.
Q. What are the skills that you bring to this job?
A. I have -- as I began the Senate Research, I can draft legislation. I can write regulations.
Q. Do you write regulations? Is that research?
A. Well, what I did, I did a little bit of work for one of the Senators, Tom Pope, and he had at that time a good bit of regulatory work that was coming before him and he would send it down to me. I would review them and then send it back and I guess I was not writing them, but I was editing them, so I'm very familiar with regulations from a promulgation standpoint.

With respect to drafting law, though, I did do a good bit of that work. There is one member of your board that I drafted legislation for specifically. The way it was in Senate Research, Senators would find people and they would send -- or it was my experience that they would send a good bit of their work to one person who was familiar with the subject matter.

From there I began litigation. I went directly into the Solicitor's Office. I prosecuted rape cases toward the end of my career. At the onset, I worked with Protective Services and I did primarily child abuse cases and I did a lot of courtroom work and then I went to civil litigation and tried cases before boards and agencies.
Q. Which ones?
A. ABC, Workers' Comp. Board. I did a little bit of regulatory work with DHEC. I worked with Assistant City Attorney Spencer King. He actually was the City Attorney for asbestos cases. They would deem me the Assistant City attorney and I would do some work. I was never the front on that. I was, however, the front on the ABC commission cases.

I tried I would say close to 200 cases before the Workers' Comp. Board. I went all the way appellate -- appellate work, appealed from there to the full Commission and likewise from there to the Circuit Court. I tried cases before the Court of Appeals and I've done two writs of certiorari which were denied at the Supreme Court, so I have done extensive litigation.

And then as Magistrate, when I took over there was a docket of over 2,000 cases. We have at this point 203 cases on the docket. That means that you have 2,000 plus jury trials which we disposed of in less than a year's period of time.

When I was given the position, I was also given the opportunity to go before our county council and they entitled me a certain amount of money and that money enabled me to do a restructure of that court system.

That restructure is what we're working under now and because of that restructure, we have a certain procedure that was not there before and if we can follow that procedure, we'll never have to work as hard as we have this past year.
Q. What is that procedure?
A. Essentially, we centralized both our traffic court as well as our jury dockets. When I say we centralized, we do have not judge shopping. We don't have, for instance -- some judges that people feel are easier on, say, officers, for instance, so they can't go to one area and just try their cases before the judge of their choice. We rotate judges in so that every person is given a fair shot.

Then with respect to the jury trials, what we do is we've had a marathon session, a two-day session, Monday and Tuesday session the last year. We never get a Monday or a Tuesday off. And we just -- what I do is I sit in front and I call -- Monday morning, we do what is called a voir dire, which is a series of questions that we pose to see if anyone has any predispositions on certain types of cases.

I have a gal that takes that and she comes up with a grid and all attorneys now come in and pick this grid up and then we have a session of court at 9:00 o'clock, 1:00 o'clock and 3:00 o'clock. We have three courtrooms functioning at full capacity. Those three courtrooms that are functioning because we are limited by our physical structure, we just hear cases at 9:00 o'clock, 1:00 o'clock and 3:00 o'clock and we don't stop and we go as late as we can, much like you all. We do this for two days.

After that we do Wednesdays, Thursdays and Fridays just bench trials and that's primarily what you would be doing -- or one would be doing as an administrative law judge.
Q. The kinds of cases that you would be hearing as an administrative law judge will probably be quite different than the cases you hear as a magistrate?
A. They will --
Q. How will you prepare?
A. Sure. They will be different, but my experience prior to becoming magistrate is very consistent with that. I think initially when I looked at the statutes under which the administrative law judgeships followed and the breadth of those statutes, I was a little concerned and then I pulled each of those statutes and started really delving as well as some of the regulations, pilotage, for example, taxation law. Those were two of the areas of my primary concern.

What I found is, for instance, with my domestic work, and I did some pretty extensive domestic work toward the end of my practice of litigation, I learned a lot or self-taught a lot because I handled quite a few very complicated cases. So I guess my point is I think that when you delve into something, you can learn it. That was the text.

The pilotage is the one area that I think is not on my forefront, however, I think that I can learn it quickly.
Q. Did you say pilotage?
A. The waterways, the coastal area.
Q. Oh, so you're talking about the Coastal Council kind of --
A. That's right.
Q. You own a good deal of stock, as I understand, for instance, some hospital stock, drug stocks, how will you handle any kind of issues that might come up before you as an administrative law judge?
A. I believe that we have an absolute imperative position of having no appearance of impropriety so much so that I recuse myself if I ever feel that there is a question of anything because I believe that one's integrity is the only thing we are carry.

If I ever thought that what I was handling in terms of my court case would in any way impart any type of impartiality on what I was doing, I would recuse myself. There would be no question.
Q. You have a -- you've lived in Spartanburg for quite a long time now. Does it matter to you that the office of the ALJs would be down here in Columbia? How will you handle that?
A. It does not matter to me.
Q. Will you be down here?
A. Certainly. I'll be wherever I'm sent.
Q. Have you made any expenditures for your --
A. Less than a hundred dollars. I -- frankly, the only expenditures I have is with the -- I sent a resume and a cover letter and I went to My Personal Secretary, which is a place down the street from the courthouse, and I do not have that. I know it was less than a hundred dollars, I would say. I don't know the exact figure, but it was less than a hundred dollars.
Q. Would you please submit a report of that?
A. Certainly.
Q. Thank you. Do you have any tax liens or any other indications of financial trouble?
A. No, ma'am. I do not.
Q. What do you do presently when lawyer legislators appear before you --
A. In terms of what?
Q. -- in Magistrate's Court? Well, I guess --
A. Do I pay them deference, is that the question?
Q. Well --
A. No. No.
Q. Does anything different happen?
A. Absolutely not.
Q. Has it happened? Have you had them?
A. I'll tell you what, when I came there -- there was such a lax atmosphere. The police officers would come back behind our panels and they would sit and chat with our staff and it appalled me because I think this appearance of impropriety is absolutely integral to having people respect the judiciary and so I asked that they remove themselves.

I pay absolutely no preference to any person regardless of their position, regardless of their color, regardless of their sex. I think that every person needs to be treated exactly the same.
Q. Could you tell us how you have gone about campaigning? You're not campaigning yet, so I don't mean that, but introducing yourself to legislators?
A. I've just done that. I've --
Q. Down here or up there?
A. All over. Anywhere I can get in, I will go and introduce myself. Anywhere.
Q. Have you ever been found in contempt by a court? Would you go into that quickly.
A. Sure. My second year of private practice, I tried a case before Judge Mendell Rivers. There was at that point a Family judge that had an edict that said if you exceeded 30 minutes, you were to request a pretrial. I went over four minutes. It was 34 minutes and 22 seconds, I believe and, I was cited for contempt.

It was brought to the Supreme Court and it was vacated and in the Supreme Court order, Justice Toal said that you could not adjudicate on a time clock and that it was overly broad and unfair.
Q. Not only did they vacate it, but they sort of created a standard there --
A. There was -- yes, ma'am. There was found to be no wilfulness in it and, frankly, it was -- I think it was an interesting experience.
Q. Especially a couple of years out of law school?
A. Yes.
Q. Have you ever been the subject of a disciplinary action arising out of any public employment?
A. No. I believe this is in the packet and it didn't come out. I was a little surprised in the packet that was -- or what was read initially. There was one gentleman that brought a grievance against me particularly -- specifically against me as a judge.

The case was one where he was suing for malicious prosecution against another person and the -- it was dismissed. They said that there was no merit to it. That it was a legal issue that he had and he never appealed, but that was brought and it was never documented by the Supreme Court.
Q. Have you ever --
A. Or by Court Administration, excuse me.
Q. Have you sought directly or indirectly the pledge of a legislator's vote?
A. No. But I do want to tell you this, when I decided to run for this office, I spoke with two of my local delegation, both of which told me to look at the Ethics laws. This is before -- this is when the law just came out before I ever received a packet even. At which point I did look at the Ethics law and since then, no, ma'am.
THE CHAIRMAN: Questions from the Members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Before I start my usual questions, have you ever heard of the term Robitis?
A. Robitis?
Q. It's where the robes on a judge become so heavy, it scrambles their brains and --
A. Yes, sir, I actually have heard of that term. Chief Justice Harwell uses it. He says heavy of robe.
Q. Based on that experience you had, it sounds like to me, you've been a victim of it.
A. I can tell you this, I think the best way to treat people very well is to be beaten up yourself. I hate to say it, but I believe that. I think had I not had the experiences that I had, perhaps I would not try so hard to be as clean as I can be.
Q. Let me ask you very quickly, have you sought the endorsement of any group of members of the General Assembly or caucus of the General Assembly?
A. No, sir, I have not.
Q. Have you participated in a formalized interview process other than this screening Committee's process or the South Carolina Bar's process?
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, the Bar's employees or their 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, I have not.
Q. Thank you.
THE CHAIRMAN: Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. Ms. Kanes, I have several questions regarding the Bar interview itself. What was the date you were first contacted by a member of the Bar or representative of the Bar regarding your interview?
A. January the 6th at 4:15 p.m.
Q. What date did the interview take place?
A. January the 7th at 8:00 o'clock a.m.
Q. Where did it take place? Where did the interview take place?
A. I'm really embarrassed, but it was one of the things I was going to check into. It was in Columbia, but I don't know. It was at a law firm of one of the persons that --
Q. But it was in Columbia?
A. Yes, sir.
Q. That's the place. How many interviewers participated?
A. There were two.
Q. Do you know what sections of the state they reside in?
A. I did not know these women, never heard of them before. As a matter of fact when the call came in, I was so surprised, I never asked. There was one lady that -- one was from Rock Hill, one was from Columbia. Those were the two that were present. And the third, I believe, was from Myrtle Beach, but I'm not sure of that.
Q. Did you have any previous acquaintance with any of the interviewers?
A. No, sir. Never heard of them. Did not know they existed prior to this.
Q. Did you furnish a list of references?
A. Yes, sir. I did.
Q. How many?
A. I believe there were -- the request was for five and I submitted five.
Q. Do you have any knowledge if your -- that any of that list were contacted?
A. I had two judges on the list. Both judges contacted me
-- I'm sorry. There was one judge on that list. When I was trying a case, he came by my window and I assume because we are in a different section of the court house that he was indicating to me that he had been contacted, but I'm not sure. I am sure that two of the other persons were contacted because I received telephone calls subsequently.
Q. When and how were you notified of the results?
A. I received an Express Mail package on Monday, January the 10th.
Q. Of your five references, did you list any legislators?
A. No, sir, I did not.
Q. I don't have any more questions.
THE CHAIRMAN: Other questions? Mr. Alexander.
EXAMINATION BY REPRESENTATIVE ALEXANDER:
Q. I notice from your resume, you were in private practice prior to becoming a magistrate?
A. Yes, sir.
Q. I'm really interested and I'm not criticizing magistrates, but let me say that up front, but how did you decide to leave a private practice to become a magistrate? I'd like to know that.
A. When I was approached the first time, I laughed. Literally, I laughed. I laughed. And I went back to my office and I began thinking about it and perhaps it's not very wise to say this, but I have always wanted to be a judge.

That's just something -- I think each person has a characteristic or a trait or something that we feel very comfortable with. Some people it's a very traditional home life, some people it's -- I don't know. This was something that I really, really felt comfortable with and -- or wanted to do and I knew likewise that the Magistrate's Court had some problems and it was a challenge. And I thought it would be a new challenge to see if it would -- if it could work.
Q. Have you been happy with the work?
A. Yes, sir, I have. We have -- and I say this not lightly, we have a great group of people. We have four full-time magistrates and eight part-time magistrates. And they are a very, very solid group of people and I can -- there is one thing I'm really proud of, they're just a really great group of people and they've bonded and they work well together.
Q. Would they hate to lose you?
A. I'd hate to lose -- there is a part of me frankly, and I don't know if I'm going to be given that opportunity, sir, but there is a part of me that's a little sad actually, yes.
THE CHAIRMAN: Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q. Judge Kanes, you have just concluded a hearing and one of the attorneys that appeared before you asked you to go to lunch with him, how would you react to that?
A. I don't go to lunch, sir.
Q. What about if it was a friend that you had known for a long time?
A. If it was a nonattorney and they were in town then I would, but I never eat lunch with attorneys.
Q. But you do eat lunch?
A. I --
Q. To correct your statement you never eat lunch?
A. If it was -- Senator Russell, if it was someone from out of town that called in and said, "Karen, I'm coming into town, do you want to go to lunch?" And it didn't conflict, sure, I would, but I really don't as a practice eat with my colleagues.

And that's not to say I don't have friends on the Bar, because I do. I'm crazy about the Spartanburg Bar. I just as a practice don't eat lunch. It takes a very, very special occasion for me to go to lunch with people.
THE CHAIRMAN: Judge, what's the biggest challenge you think the administrative -- the panel of three that we elect of administrative law judges will face in the first 60 days of its practice?
A. I think it's twofold. I think everything that can work effectively revolves around money and I think the first thing that has to be decided is where and how much funding is going to be granted.

I understand the positions themselves have been funded, but I think a lot -- you have to know what your base is in order to start creating something. Secondly, whoever leads this is going to have to be very, very good at molding people because I think if it's not done properly, it will be fragmented and if there is a fragmentation from the onset, I don't know how successful this can be.
THE CHAIRMAN: Thank you very much. Other questions from the members? Thank you, Judge.
A. Thank you all. I really have appreciated it. I look at you all and you all are so fatigued right now and thank you all.
THE CHAIRMAN: Thank you. The next candidate is Delbert H. Singleton, Jr. Mr. Singleton, if you'd come forward please. Please raise your rights hand.
DELBERT H. SINGLETON, JR., having been duly sworn, testified as follows:
THE CHAIRMAN: Have you had a chance to review your Personal Data Questionnaire Summary?
MR. SINGLETON: Yes, sir, I have.
THE CHAIRMAN: And is it correct?
MR. SINGLETON: It is pretty much correct. I would just note on Item Number 4, I guess it's a matter of semantics where it says, "He has one child," I would like that corrected to reflect, "They have one child."
THE CHAIRMAN: Okay. Any other clarifications or changes that need to be made?
MR. SINGLETON: I believe that's all, sir.
THE CHAIRMAN: Any objection to our making the Summary a part of the record of your sworn testimony?
MR. SINGLETON: No objection, sir.
THE CHAIRMAN: That being the case, it will be done at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Delbert H. Singleton, Jr.
Home Address: Business Address:
916 Betsy Drive P. O. Box 11549
Columbia, SC 29210 Columbia, SC 29211

2. He was born in Manning, South Carolina on November 19, 1961. He is presently 32 years old.

4. He was married to Deirdra Felicia Toland on June 10, 1989. They have one child: Eryka Denise Williams, age two.

5. Military Service: N/A

6. He attended the University of South Carolina, August, 1979 to August, 1983, BS in Criminal Justice; and the University of South Carolina School of Law, August, 1984 to May, 1987, J.D.

8. Legal/Judicial education during the past five years:
His continuing legal education has included courses in criminal law, appellate practice, legal ethics, and courses designed for government lawyers.

9. Taught or Lectured: He lectured at the Sixth Annual Attorney General's Law Enforcement Leadership Conference. He presented an overview of South Carolina Appellate Decisions. This course was approved for CLE credit.

12. Legal experience since graduation from law school:
May to October, 1987 - handicapped discrimination law
October, 1987 to present - criminal law

13. Rating in Martindale-Hubbell: He is listed in Martindale-Hubbell; however, as a government attorney he has not been rated.

14. Frequency of appearances in court:
Federal - none
State - very frequent. 3 to 5 days a month
Other -

15. Percentage of litigation:
Civil - 50%
Criminal - 50%
Domestic - None

He handles post-conviction relief cases which are civil matters of a criminal nature.

16. Percentage of cases in trial courts:
Jury - None
Non-jury - 100%

He most often served as sole counsel.

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Clark v. State, Op. No. 23897 (S.C. Ct. filed July 12, 1993) (Davis Adv. Sh. No. 19 at 25). This case is significant because the Supreme Court reversed the lower court's finding that a new trial should be granted because of after discovered evidence. The Court also concluded that the State did not violate Brady v. Maryland, 373 U.E. 83 (1963).
(b) Geter v. State, ___ S.C. ___, 409 S.E.2d 582 (1991). This case is significant because the Supreme Court held that although trial counsel's performance was deficient, his representation was not ineffective because no prejudice was shown.
(c) Graves v. State, ___ S.C. ___, 422 S.E.2d 125 (1991). This case is significant because the Supreme Court further explained the test to determine whether a Defendant knowingly and intelligently waived his right to counsel.
(d) Robinson v. State, ___ S.C. ___, 417 S.E.2d 88 (1992). This case is significant because the Supreme Court for the first time addressed the relationship between the battered woman's syndrome and the law of self-defense as it is defined in South Carolina.
(e) Starnes v. State, ___ S.C. ___, 414 S.E.2d 582 (1991) (refiled Dec. 2, 1991). This case is significant because the Supreme Court, in part, ruled that a Defendant did not have a due process right to be present at a hearing to determine the necessity of videotaped testimony by victim.

18. Five (5) civil appeals:
(a) Same as 17(a) above.
(b) Same as 17(b) above.
(c) Same as 17(c) above.
(d) Same as 17(d) above.
(e) Same as 17(e) above.

22. Public Office: He is an Assistant Attorney General.

25. Occupation, business or profession other than the practice of law:
From November, 1983 to July, 1984, and May, 1985 to December, 1985, he was an installment loan adjuster for South Carolina National Bank. His duties included maintaining installment loans and customer relations.

28. Financial Arrangements or Business Relationships (Conflict of Interest):
His wife is employed with the Health and Human Services Finance Commission as an attorney in the Bureau of Administrative Services. She represents the agency in matters involving contract procurement and termination. If these matters are contested, she will possibly appear before an ALJ. He would, of course, recuse himself in matters involving her agency.

40. Expenditures Relating to Candidacy:
He has spent $41.00 for envelopes and paper on October 21, 1993. He has spent $1.00 for a telephone call on November 1, 1993.

45. Bar Associations and Professional Organizations:
South Carolina Bar Association

46. Civic, charitable, educational, social and fraternal organizations:
Trustee at Green Hill Baptist Church Alcolu, SC; Alpha Phi Alpha Fraternity, Inc.; Masonic Lodge #144; Phi Alpha Delta Legal Fraternity; Outstanding Young Man of America 1988.

47. He believes that his reputation in the Attorney General's Office and the legal is that of a strong advocate for his client's position. He believes those who have worked with him over the past six years find him to be hardworking, skilled, organized, and a courteous lawyer. He has been responsible for handling, at one point, a caseload of over 300 cases and numerous appeals in the South Carolina Supreme Court. During the past two years, he has served as the supervisor for the post-conviction relief section in the Attorney General's office. In that capacity, he has been responsible for the disposition of these cases in as timely a manner as possible. He believes that his courtroom experience and appellate work makes him very qualified to serve as an Administrative Law Judge.

48. Five (5) letters of recommendation:
(a) Beverly McDuffie, Customer Service
NBSC
P. O. Box 1457, Columbia, SC 29202-1457
256-6300
(b) Honorable T. Travis Medlock
Attorney General
P. O. Box 11549, Columbia, SC 29211
734-3970
(c) Donald J. Zelenka
Chief Deputy Attorney General
P. O. Box 11549, Columbia, SC 29211
734-3660
(d) Rev. James Hudley
1417 Buncombs Road, Florence, SC 29501
669-1202
(e) Joseph D. Shine, Esquire
P. O. Box 12193, Columbia, SC 29211
734-2320

The Board of Commissioners on Grievances and Disciplines reports that no formal complaints have ever been filed against you. The records of the applicable law enforcement agencies, Richland County Sheriff's Office, Columbia City Police Department are negative. SLED and FBI record, are negative. The Judgement Rolls of Richland County are negative. The Federal Court records show no judgements or criminal actions against you.

Apparently, you have been named in several civil actions in your capacity as an Assistant Attorney General by various persons in the Department of Corrections; is that correct?
MR. SINGLETON: Apparently so. I'm surprised to see that there aren't many more listed than that.
THE CHAIRMAN: It looks like from our records that all of those, a summary judgement has been granted and there is some record of that. No complaints or statements have been received against you. No witnesses are present to testify against you.

Prior to turning you over to Mr. Elliott for questioning, I would give you the chance to make a brief opening statement, if you so desire.
MR. SINGLETON: Sir, I have a brief opening statement, however I have prepared a written statement for the committee, if the committee would like to receive it --
THE CHAIRMAN: All right.
MR. SINGLETON: -- I can make that available.
THE CHAIRMAN: What we'll do is we will be happy to incorporate that into the record for you, okay.
MR. SINGLETON: Thank you. And one additional thing, I think you said earlier that no formal complaints have been filed against me. I will say as I indicated in my Personal Data Questionnaire that one inmate pursuant to my duties as an attorney for the Attorney General's office handling Post Conviction Relief matters filed a grievance which was dismissed by the Board.

INTRODUCTORY REMARKS:

Chairman Hodges and members of the Committee, good afternoon. I am Delbert H. Singleton, Jr., and I am a candidate for Administrative Law Judge, Seat #2.

I have been married to Deirdra T. Singleton nearly five years. We have a daughter, Eryka, who is three years old.

I am a 1979 honor graduate of Manning High School, Manning, South Carolina. I attended the University of South Carolina where I received a Bachelor of Science degree in Criminal Justice in 1983. In May, 1987, I received my Juris Doctorate from the University of South Carolina School of Law. I was admitted to the South Carolina Bar in November, 1987, and I have also been admitted to practice in the United States District Court in the South Carolina District.

I have been employed with the Attorney General's Office since October, 1987, in the Post-Conviction Relief Section. Presently, I am an Assistant Attorney General and Chief of the Post-Conviction Relief Section. My duties include supervision of the Post-Conviction Relief attorney staff and coordination of administrative matters concerning the Post-Conviction Relief Section. I also represent the State of South Carolina in all stages of Post-Conviction Relief proceedings. Further, my duties include drafting responsive pleadings, detailed judicial orders from Post Conviction Relief hearings, legal memorandums, and appellate briefs in the South Carolina Supreme Court.

At any given time since being employed with the Attorney General's Office, I have been responsible for a caseload of over 130 to 325 state court actions brought by inmates challenging their convictions. I have also handled numerous appeals before the South Carolina Supreme Court. As supervisor for all state Post-Conviction Relief cases, I was responsible for over 2,700 files in 1992.

On occasion, I have served as counsel for the Fire Marshal Appeals Panel. As counsel for the Panel, I had to be familiar with the Administrative Procedures Act. I provided the Panel with legal advise concerning issues raised during appeal hearings. I was also responsible for preparing detailed orders outlining the Panel's findings of fact and conclusions of law.

While I have been practicing law for six years, I believe that my work experience during the past six years makes me very qualified to serve as an Administrative Law Judge. Not only do I believe that I possess the necessary experience for this judicial position, I also possess the temperament and the ability to come to sound legal conclusions which will enable me to effectively serve as an Administrative Law Judge. During my six years of practice, I believe I have developed a reputation in the legal community of being a hardworking, organized, courteous lawyer, who has served as a strong advocate for his client. I am very self-disciplined, timely, and attentive to detail which I believe to be strong positive qualities for an Administrative Law Judge.

THE CHAIRMAN: All right. Mr. Elliot.
MR. SINGLETON - EXAMINATION BY MR. ELLIOTT:
Q. Let me first go over your PDQ for a minute, your Personal Data Questionnaire, because I didn't see very clearly that there is an indication that you worked in the area of handicapped discrimination law. How about explain that a little bit more? In what capacity? What were your duties?
A. In 1986, I was a law clerk with the South Carolina Protection and Advocacy System for the Handicapped. In 1987, after graduating law school, they hired me to work in their Florence office as an advocate. Basically, what my responsibility was while I worked in these -- in the Florence office was to attend what we call IEP meetings which are Educational Improvement -- Educational --
Q. Individualized --
A. Individualized Educational Plans for students in the school systems and that is what I did along with handicapped discrimination law as it came into the agency.
Q. Since then you've been with the Attorney General's office for six years?
A. That's correct.
Q. And I notice you list it as -- your practice as being 50 percent criminal and 50 percent civil. Is the civil the Post Conviction Relief?
A. Actually, the way the statute is written, Post Conviction Relief is a civil proceeding, that aspect of it. The filing of the pleadings, handling interrogatories, doing depositions, that's the civil nature. That's the 50 percent I'm talking about.

The other 50 percent criminal, the nature of the beast that we deal with is criminal in nature. We, of course, handle matters involving inmates who have been convicted and sentenced and they come into court challenging their sentences and conviction. That aspect of it is criminal.
Q. So -- but all of it is criminal in nature?
A. It is criminal in nature, but the pleadings, of course, are civil pleadings held in the Court of Common Pleas.
Q. As a PCR attorney, I note you spend three to five days a month in court; is that correct?
A. On the average that may be a little on the low side, but that's pretty much correct.
Q. What's a typical day for a PCR attorney? Is that one case, two cases?
A. For a typical day -- usually when we go out to a term of court, we're usually -- and it's a week long term of court, we're talking about eight cases per day and these are cases that can be over in all of five minutes by virtue of an applicant withdrawing or cases that -- I've been involved in cases that have gone on for two weeks, so it's going to vary upon the facts in the case, depending on the attorneys involved in the case and the issues involved in the case as well.
Q. It's a heavy case load?
A. It's an extremely heavy case load. To give you a indication, when I first started working for the AG's office in '87, I walked out of -- basically out of law school with no criminal experience and was assigned a five circuit case load and I think at that time that case load was probably anywhere from 300 to 325 cases in those five circuits that covered all of the state.

Now, we have a little bit more staff members on, so the case load has reduced, but it is an extremely heavy case load.
Q. And I take it you probably end up usually drafting the orders in those matters?
A. I draft every order depending on the judge that I appear before in cases in which we win and on occasion in cases in which we lose. We try to get the judges to have the other side prepare those cases -- prepare those orders, but they prefer us to do them for whatever reasons.

But, yes, I have extensive experience in drafting orders to include findings of facts and conclusions of law based on the issues that were raised in the application and issues that were raised during the hearing and we are bound to write the orders based upon everything that was raised.
Q. What's your record of processing those? How long does it take you and do you have a backlog? Does it take you 30 days, 60 days to turn around an order?
A. On the average, it takes me anywhere from about 30 to 45 days to do an order. I'm not going to stand up here and tell you that I've not taken longer on an order, but I'll give you an example.

In the fall of 19 either 88 or 89, I had about a period of six weeks where I was in court five out of those six weeks. We're talking about doing in that particular instance in excess of a hundred plus orders. And I'm not talking about one or two page orders. I'm talking on the average orders being six, seven, eight pages long.

There is just no way that a person can possibly do that many orders having been in court, out of court -- I mean out of your office for, you know, five out of six weeks and be expected to do orders in 30 days. That's an instance where it may have taken me 60 days or a little longer to do orders, but pretty much, I'd say about 95, 96, 97, 98 percent of the time, my orders are done within 30 to 45 days or so.
Q. How do you think those orders are going to compare to the ones you'll have to draft as an Administrative Law Judge as far as complication and length of time to turn those around?
A. Well, fortunately, I'm assigned as a PCR attorney in the office, I've had the experience of -- it's been a couple of years since I've done one. I've had the experience of doing the Fire Marshall Appeal orders. I served as a -- I was the back up attorney for our office for the panel. I served as their attorney to give them advice and to prepare their orders for them after hearings before the Fire Marshall Appeals Panel and comparing what -- the way that those orders were drafted or the way that we drafted those orders to what -- and the way that we draft Post Conviction Relief orders, the only thing that is different is just the style as far as I'm concerned. The style and the law that you're dealing with, that's the difference that I see in terms of drafting those orders.
Q. All right. Let me ask you, are you assigned to represent any other agencies for the Attorney General's office?
A. I am assigned to represent other agencies. The agency that comes to mind right now is the Department of Juvenile Justice, if I'm not mistaken, however, you know, it's very rare that I get questions from them or anything of that nature.
Q. Since you do have limited experience in the administrative law area, how will you prepare yourself for that? For example, right now, are you aware of the considerations that underlie what's a contested case?
A. I have been reviewing the statutes and I'm still getting familiar with the 15 Administrative Law Judge statutes, but I do that just as I would do any Post Conviction Relief case that I'm preparing for prior to the case being called or hearing, to become familiar with the issues involved, to research the rules and regulations that apply and research any available law and apply the regulations and the rules, whatever procedures or existing case law that may apply to the facts and circumstances of that particular case.
Q. You have fairly extensive litigation experience. Do you think it makes any difference whether you have that or not? Is it going to be of help to you or would it matter if you didn't have it at all?
A. Oh, I think it's going to be of tremendous help because you've got -- you bring into that position the opportunity to be able to look at parties who are opposing each other.

Having had that experience, you can somewhat size them up in terms of their presentation, in terms of the evidence that they're presenting and I think it's helpful in that sense that you've had that experience and it will be a benefit to you, I believe.
Q. I want to ask you, who your role model -- well, if Judge Rivers would be your role model for judicial temperament, but I won't do that. Who would be your role model for judicial temperament?
A. I thought about that question when that question was first asked of someone else earlier. There are any number of people who come to mind that are on the bench. I think of Judge Bristow who I appear before quite often, a man of great patience. I found him to be, it was my experience. Great patience, great intellect, fairness impartiality.

People -- someone not on the bench, there are two people that I've worked for in the past few years Don Zelenka and Joseph Shine. Both are very knowledgeable men. I think they are professional and I think those are some of the qualities that a person in this profession whether that person is a judge or an attorney should espouse, professionalism, fairness and impartiality. And I think all of those people carry with them a great amount of respect for themselves and the others that they encounter.
Q. In essence you've made application for a job and that job is Administrative Law Judge. What is that job you've applied for? What do you think it is?
A. I think that that job is one in which the Legislature recognized the need to have people of a higher training to listen to issues involving administrative matters. I see that job of one in which you need to be adept at being fair, being impartial in resolving those issues, but primarily one person who has the ability, the capability of handling administrative matters.
Q. I think that you noted that your wife works for Health and Human Services Finance Commission and she's an attorney there?
A. That's correct.
Q. You would recuse yourself in cases -- it appears all cases involving Health and Human Services Finance Commission?
A. To avoid the air of any impropriety, I would recuse as long as she works there, myself and -- from any cases involving Health and Human Services Finance Commission.
Q. Do you have any feel for how many cases that would be?
A. She is directly involved in procurement matters involving the Health and Human Services Finance Commission. And as I understand that might also flow into other agencies, maybe DSS, but any cases in their office -- I'm not sure how many cases, but she's primarily responsible for procurement matters.

She's also in -- she also handles some employee grievance matters, if I'm not correct -- not mistaken about that.
Q. I applaud your recusal. I guess I'm asking partly, what that's going to do to your effectiveness?
A. I don't think that that is going to cause me to be any less effective in this position. There are other areas that are out there to be sought after in the Administrative Law Judge area. I don't -- I'm not aware of the number of cases that would come from that agency, but I think overall we're talking about just that particular agency and I can imagine that that represents only a certain portion of the amount of cases that I believe are going to be out there, so I don't see that that will be a particular hinderance to me in being an administrative law judge.
Q. You indicated also that you have a fairly active life outside of the office, being involved in a couple of fraternities and a trustee for a church, how will being an administrative law judge impact your outside or extrajudicial activities?
A. I don't think that it is going to impact that greatly. I listed those because the questionnaire wanted to know those things of which you are a member. I am -- one of those organizations, my fraternity, I'm not an active member. People have been getting me to be active, but because of my work schedule at the office, that precludes me from being active in a lot of things.

The thing that I'm most primarily active in is with my church and I always take time out for that and there will never be anything or anyone that will interfere with that and that's something that I can separate from this. Any meetings that I have concerning church are on the weekend and would not interfere with my duties as an Administrative Law Judge.
Q. Attorney General Medlock is running for governor, and I'm not asking you whether you support him or not, but suppose he comes to you and asks for you to work on his campaign, what would be your answer?
A. What would be my answer is this if Mr. Medlock comes to me at this point and he asks me to work in his campaign -- active to work --
Q. I want you to understand, I'm not asking if you support him or not. It's a hypothetical. I mean what would be your responsibility under the Code of Judicial Conduct?
A. At this point, I would not -- to avoid the air of any impropriety would not engage in that.
Q. What have you done or plan to do to avoid conflicts between your job as an Attorney General and your efforts to become an administrative law judge?
A. Whenever I've had to do something, I have taken leave as I am taking today or I work those things around my lunch hour.
Q. Have you ever been held in contempt or sanctioned by a court?
A. No, I have not.
Q. Have you been the subject of a disciplinary action in the course of your employment?
A. No, I have not.
Q. Have you sought directly or indirectly the pledge of a legislator's vote?
A. No, I have not.
Q. Are you aware of any solicitation without your authorization or request?
A. I certainly am not.
Q. That's all the questions I have, Mr. Chairman.
THE CHAIRMAN: Questions from the members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. 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've not sought any endorsement.
Q. Have you participated in a formalized interview process other than this process here today or the South Carolina Bar Association?
A. I will say no and I'll qualify that. I've not participated in any other formalized interview process. I will say informally I have spoken with Senator Matthews and Representative Cobb-Hunter back on or about October the 11th of 1993, sometime at 5:00 o'clock in the afternoon or thereafter for about five minutes to discuss with them my qualifications, a little bit about my background and that's it.
Q. And, lastly, have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the Bar's Screening Committee, South Carolina 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. If I understand --
Q. And I mean other than a call over there to book in your interview date or to find out how you did.
A. The only things I've done, I've had any contact was just the call to set up the meetings, the call back to schedule it and then going over there.

I will also say this, on December 5th of '93 and December 8th, I did meet with the Columbia's Lawyers Association. I did not ask them to seek any pledges for me, but just to meet with them and let them know who I am and what I was doing. Pretty much like I'm doing today, letting ya'll know who I am and what I'm doing.
Q. All right. Thank you, sir. Mr. Chairman.
THE CHAIRMAN: Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. Mr. Singleton, in regards to the Bar interview, do you recall the date you were contacted by the Bar or representative of the Bar to schedule the interview?
A. If I recall correct, the first day that I was contacted would have been December 30th. I was out on annual leave. I came back into the office on, I believe it was January 3rd. I got a message from my secretary that Solicitor Donnie Myers had called me. Not knowing why he called, I returned his call. He was not available.

He then called me back and told me that he was a member of the committee and wanted to schedule the committee -- subcommittee wanted to meet with me and I scheduled a date to meet with them as being 10:30, January the 5th. It would have been a Wednesday.
Q. Where did the interview take place?
A. The interview took place at the South Carolina Bar. I believe the address is 950 Taylor Street, if I'm not mistaken.
Q. How many interviewers participated in your interview?
A. There were two present. Solicitor Myers was present as well as I believe his name is Bobby Thomas. I believe he is a member of the Richland County Bar, if I'm not mistaken.
Q. From what section of the state do they reside? I think you pretty much identified them, so it would be Lexington and Richland?
A. Yes, sir. Solicitor Myers is from Lexington and I think Mr. Thomas is from Richland, if I'm not mistaken.
Q. Did you have any previous acquaintance with either of the interviewers? Obviously, you do Mr. Myers?
A. Certainly, because I handle the Eleventh Judicial Circuit and I had some acquaintance with Mr. Myers. Mr. Thomas, I have a vague recollection of having met him in my capacity as a PCR attorney for the office, but I can't say positive. He just struck me as someone that I had met before and I can't say where, but to answer your question, I think it would be no.
Q. Did you furnish a list of references --
A. I did.
Q. -- to the interviewers?
A. I did.
Q. Were those references different than the five you have listed on your PDQ?
A. They were different.
Q. They were different. Do you have any knowledge if the references you listed have been contacted?
A. I have secondhand knowledge that my wife -- that one reference was contacted.
Q. And when and how were you notified of the results?
A. On Monday, I was in court, as usual. I was in court. A hand-delivered letter was received by my secretary in my office and I don't know what time, but I received it from her Monday afternoon when I returned to my office.
Q. January --
A. January 10th. I'm sorry.
Q. Thank you very much.
THE CHAIRMAN: Further questions. Senator Russell.
EXAMINATION BY SENATOR RUSSELL:
Q. You've just left the Elite Epicurean restaurant where you ate with a group of your friends, not attorneys, and as you go back the fellow who paid for everybody said, well, somebody paid our bill. A month later when you're in a hearing one of the attorneys says, well, I was glad to, you know, help you pay your meal there or something. What are you going to do about that if that ever happens? You find out -- in other words, that you didn't know at the time --
A. Unbeknownst to me --
Q. Yes.
A. -- an attorney paid for my lunch.
Q. Yes, sir.
A. I have an obligation to report that and to report that attorney. I mean if he did -- if he undertook an action unknown to me to pay for my lunch, he's aware of the rules as well as I am of something that's improper. He should not have done it.
Q. Not that I think that would ever happen knowing attorneys, but --
A. No, sir, because I don't eat at the Elite. Never have.
THE CHAIRMAN: Further questions. Thank you very much. We're going to take about a ten-minute break.
DOCTOR FALTAS: I'm sorry. I'm Doctor Marie Faltas.
THE CHAIRMAN: Yes, ma'am.
DOCTOR FALTAS: And I've waited patiently since 2:00 o'clock. I'm the witness of -- hopefully here to testify against Mr. Whittleton and I have other obligations and if at all possible, if you could defer that break until you hear my testimony, I would be very grateful.
THE CHAIRMAN: We'll be glad to do that. I presume that means your testimony is going to be -- we hope you'll be able to compartmentalize it or get it down to ten minutes or so, is that possible?
DOCTOR FALTAS: Yes.
THE CHAIRMAN: Thank you very much. The next candidate is Mr. Whittleton, John Henry Whittleton, Sr.
MR. WHITTLETON: Mr. Chairman.
THE CHAIRMAN: Mr. Whittleton.
MR. WHITTLETON: Yes.
THE CHAIRMAN: Will you raise your right hand, please.
JOHN HENRY WHITTLETON, SR., having been duly sworn, testified as follows:
THE CHAIRMAN: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. WHITTLETON: Yes, I have.
THE CHAIRMAN: Is it correct?
MR. WHITTLETON: It is. Mr. Chairman, I would only ask that I neglected to mention my private practice in question -- I believe it is Question 9. And the estimation given on -- in Question 40 about expenditures related to the candidacy, the long distance amount is an estimation and that's about as accurate -- it's been far less than that, but I cannot give you an exact amount at this time.
THE CHAIRMAN: All right, sir. Any other changes?
MR. WHITTLETON: That's all.
THE CHAIRMAN: Do you have any objection to our making the summary a part of the record of your sworn testimony?
MR. WHITTLETON: No, I don't.
THE CHAIRMAN: It will be done at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. John Henry Whittleton, Sr.
Home Address: Business Address:
74 Forest Trail Court S. C. Human Affairs Commission
Columbia, SC 29212 2611 Forest Drive
Columbia, SC 29240

2. He was born in Harlem, New York on November 11, 1951. He is presently 42 years old.

4. He was married to Celestine Singleton on October 5, 1971. He has three children: Vanessa A. (Ampro Security); Melissa China (Morris College student); and John, Jr.

5. Military Service: Active Duty 11/1/71 to 11/4/74; Honorable Discharge 1977; US Army E-4 (Corporal), U. S. Army Reserve June 1, 1979 to Present; US Army E-8 (Master Sergeant)
6. He attended Benedict College, 1/1/75 to 5/1/78, graduated; and the University of South Carolina Law School, 9/1/78 to 5/1/81, graduated.

8. Legal/Judicial education during the past five years:
He has maintained or exceeded CLE credits by attending various CLE classes.

9. Taught or Lectured: He has taught Substantive Criminal Law and Procedures at the S. C. Criminal Justice Academy from 7/1/85 to 10/1/87.

10. Published Books and Articles: Jail Suicides, published, 1986, South Carolina Criminal Justice Academy; Periodicals; Legal Updates; Palmetto State Reporter

12. Legal experience since graduation from law school:

Police Law Enforcement (i.e. patrol procedures, crime prevention, etc.), 10/1/91 to 2/1/83
Incarceration Law (Inmates Rights and Incarceration Procedures), 2/1/83 to 2/1/85
Substantative Criminal Law and Procedures (Statutory Crimes, Common Law, Constitution Rights of Defendants), 7/1/85 to 10/1/87
Solicitor's Office, Criminal Prosecution
Discrimination Law, Title VII, Human Affairs Law

13. Rating in Martindale-Hubbell: He is not listed; reason is unknown.

14. Frequency of appearances in court:
Federal - one case
State - 25 cases
Other - one worker's compensation

15. Percentage of litigation:
Civil - 60%
Criminal - 20%
Domestic - 20%

16. Percentage of cases in trial courts:
Jury - 15%
Non-jury - 85%

Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) State v. Willie Durant, (unreported). The Defendant was charged with three counts of criminal sexual conduct against his 14-year-old step-daughter who had a baby as a result. He prosecuted the case for over a year and a half. Finally, using blood samples from the mother, child and Defendant, the blood confirmed the Defendant's guilt. The Defendant received an 18-year sentence.
(b) Judith E. Miranda v. Augustin Miranda. His client, the Plaintiff, had to serve a missing out-of-state Defendant for child support for five children. Service was by publication. The Defendant was a naturalized citizen whose whereabouts were unknown.
(c) State v. Kenneth Daniels, (unreported). He represented the Defendant, a young male attending USC who is also in the US Army Reserve, charged with breaking and entering an automobile, grand larceny. He was able to have the Defendant placed in PTI, and the charges dismissed.
(d) State v. Raymond Barno. His client was charged with DUI, second offense with a refusal. He was able to prevent suspension of his driver's license and to get him a not guilty verdict by the jury.
(e) State v. William Braxter (?). The 65-year-old Defendant was charged with sexually molesting a 9-year-old girl. Using the testimony of her sister, the Defendant was found guilty and sentenced to three years in jail.

18. Five (5) civil appeals:

None.

25. Occupation, business or profession other than the practice of law:
Deputy Sheriff, Richland County Sheriff's Department, 10/1/81 to 2/1/83; Criminologist, S. C. Criminal Justice Academy, 2/1/83 to 7/1/85; Division Director, Human Affairs Commission, supervise investigation of Title VII cases; U.S. Army Reserve, June 1, 1979-present, assigned to various infantry companies

26. Officer or Director: Division Director with the Human Affairs Commission

40. Expenditures Relating to Candidacy:

$250 - stationery and postage
$50 - long distance telephone calls

45. Bar Associations and Professional Organizations:
South Carolina Bar Association; Richland County Bar Association; Columbia Lawyers Association (he has never held office in these associations)

46. Civic, charitable, educational, social and fraternal organizations:
Palmetto State Law Enforcement Officers Association (served as legal counsel to the Midland Chapter and occasionally for the State Association); S. C. State Employee Association; NAACP; NRA Committee member

47. His life's social and professional experiences have prepared him for a judgeship position. He has served in correction, police, police training and the Solicitor's office. Presently as a Division Director with Human Affairs, he arbitrates facts between parties daily. These experiences should speak well of his abilities.

48. Five (5) letters of recommendation:
(a) Katie M. Bolden, Customer Service Representation
South Carolina National Bank
3500 Forest Drive, Columbia, SC 29204
771-3504
(b) Larry C. Smith, Esquire
1314 Lincoln Street, Suite 302, Columbia, SC 29201
252-2029
(c) Kenneth W. Gaines, Esquire
1314 Lincoln Street, Suite 302, Columbia, SC 29201
252-2029
(d) Charles Johnson, Esquire
P. O. Box 12426, Columbia, SC 29211
256-1964
(e) John A. O'Leary, Esquire
P. O. Box 164, Columbia, SC 29202
779-5556

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have been filed against you. Records of the applicable law enforcement agencies, Richland and Lexington County Sheriff's Office, Columbia City Police, SLED and FBI records, are all negative. The Judgement Rolls of Richland County are negative. Federal Court records are negative. We have received one complaint and do have one witness present to testify, the lady who spoke earlier.
MR. WHITTLETON: Yes, sir.
THE CHAIRMAN: Prior to that, the first thing that we would like to do is give you a chance to make a brief opening statement followed by questioning from Mr. Elliott.
MR. WHITTLETON: Well, I have prepared some remarks, but I defer those remarks and have them admitted into the record later.
THE CHAIRMAN: All right. We'll be happy to enter them into the official record.
MR. WHITTLETON: Thank you.

INTRODUCTORY REMARKS:

I appreciate this opportunity to present my candidacy to the committee.

If time spent in preparation is time spent wisely, then I have spent the last twenty years in preparation for such an opportunity as this.

The childhood decision is mine to become a lawyer was only a fanciful vision. Being New York City born, and yet raised by my great grandfather in the woods of Wedgefield in Sumter County, I learned while living and working on a one mule farm that dedication to effort and humble self-respect were ideas good and successful people are made of.

Back then, being a Judge was no life long goal or ambition of mine. But my values, beliefs, temperament and experiences have provided me all of the traits necessary to be a successful Judge. Almost anyone can learn the rules of procedure and court administration, but a Judge must be the embodiment of the standard he or she hold for others. No one person can experience the trials and temptations of everyone, but each of us must be able to decide not only what is legal, but what is good and socially beneficial. This is especially true for Judges.

I learned many of these lessons while working with the Department of Correction, being a full-time student at Benedict College and the University of South Carolina Law School. What better place than CCI to learn the benefits of the carrot and the stick.

In the 7 years I spent in and around police work and police officers as both officer and professor, the resounding theme has always been unselfish service first, and last. Judges are no different, for they owe their creation to the people, to whom is more dedication owed, than to one's own creators.

Working as a prosecutor and defense lawyer, I learned to decide the difference between social justice and victim vengeance. Duty must override passion and prejudices because the social will is at stake.

Presently as a Division Director with the State Human Affairs Commission many of my life experiences come to bear. My Division will investigate and issue decisions in over 450 cases this year. The experiences I have received as a police officer, criminologist and prosecutor helps me not only to decide what evidence is relevant but also to decide how and why that evidence is obtained.

Routinely, fact finding conferences are held where I sit to decide the applicable law, rules of evidence and submit what I think to be the appropriate determination.

The goals and aspirations of us all should be to serve in that capacity best suited to out ability and personality. It is my decision that the information before you help made me the man that I am, it is my hope that the man that I am is the Judge this body decides it needs.

THE CHAIRMAN: Mr. Elliott.
MR. WHITTLETON - EXAMINATION BY MR. ELLIOTT:
Q. Thank you. Mr. Whittleton, first let's look at your Personal Data Questionnaire for a minute and it was I think one -- and maybe it's been corrected on later copies because a date -- I think it's question 12, it is just a date about some employment that I think should be 10/1/91 instead of 10/1/81. Is it --
THE CHAIRMAN: Right. I see that. 12, Police Law Enforcement, that should be -- we should amend that to be 10/1/81 to 2/1/83; is that correct?
Q. Would that be correct?
A. That's correct.
Q. Would you please -- because your resume wasn't listed this way, could you please briefly run down, and I do mean briefly, who you worked for because it isn't -- it wasn't clear on here who you worked for and what your duties were and time frames?
A. It might be helpful if I could have this resume passed out.
Q. So it would be contained in your resume?
A. That's correct.
Q. Short of getting that right now, can you help me to get a fix on your litigation experience?
A. Okay. Starting back in 1987, I joined the Third Circuit Solicitor's office as an assistant. I prosecuted cases there for a little over two years in that capacity, left there and came to the Human Affairs Commission in 1989. Was promoted in November of that year to the position of Division Director and at the same time I opened a private law practice.

I've been in private practice and working at the Human Affairs Commission as a Division Director since that time. The percentage of time that I spent in litigation, I wouldn't know how to break out that ratio, but I do practice law in both the General Sessions Court and Common Pleas as well as Family Court, Magistrate's Court and other administrative agencies up until the time that they passed the administrative -- the Ethics Act, which in essence says State employees could no longer present cases on behalf of clients before State agencies which I think was around 1992. '91, '92, around that time. So I've been in litigation in the courtrooms since 1987.
Q. Are you -- you're employed at the Human Affairs Commission right now?
A. That's correct.
Q. And it looks like you also have a private practice on the --
A. That's correct.
Q. -- in addition to that. Exactly -- could you tell me exactly what it is you do for Human Affairs? What your responsibilities and duties are?
A. Presently, I serve as Division Director. In a year's time, I will issue determinations and decisions in over 450 cases involving labor law and claims -- complaints of discrimination.

What I do is I have six investigators working for me. Cases that come through our Intake Division have been assigned to my area, I then assign investigators. At various times, I work or supervise the investigator's work. They will submit to me recommendations of their findings. We will then draft a determination and submit it to the agency for a final determination.

In addition to that, I conduct fact finding hearings on many of these cases depending upon the complicated nature of a particular case. If appropriate, I grant the appropriate decision and again issue it to the agency for the appropriate action.
Q. When you hold fact finding hearings, what is your role in those hearings, sir?
A. As a --
Q. Are you the hearing officer?
A. In -- pretty much, and I don't want to give legal terms, but because the Human Affairs Commission is a neutral administrative investigatory agency, I have before me the respondent employer on one side and the complaining party on the other and pretty much try to conduct the proceedings as much as a hearing as possible adhering to the Rules of Evidence and court decorum, et cetera. That's correct.
Q. About how often would that occur?
A. I have fact finding conferences about two to three times per month.
Q. And in there, too, do you ever appear before the commission? Are there not in a sense contested case hearings before the commission?
A. No. No. What happens is in my capacity as Division Director once I determine the disposition on a case on the division level, I submit it to the Deputy Commissioner for his approval. If he agrees with my determination, then he submits it to legal counsel for their review and the case is then issued -- our determination is then issued, so I don't appear before the actual panel of commissioners.

Our board of commissioners act as an advisory body over administrative matters and very rarely do we get involved in actual hearings.
Q. So when you operate as a hearing officer, you're operating under the APA?
A. That's correct.
Q. And I think I remember from the Human Affairs statutes that there are variations for example in discovery for Human Affairs versus what's normally available under the Administrative Procedures Act. Are you familiar with that?
A. Yes. What -- under our regulations, what happens is that a party can be -- can require if they desire information from us they have given to us or information that they were directly involved in us acquiring, i.e., we got indirectly through some source that they identified.

Other than that, our investigatory notes or other matters remain confidential as a matter of discretion. If he wants to disclose -- a party can request that if so he choose. It does not damage our investigation or it doesn't reflect badly upon the agency, we, too, can give that information out. If a case -- a person requests a notice of right to sue, the case goes to court and, of course, the ordinary rules of discovery would apply and we have to comply with the rules applied, et cetera.
Q. What do you know about substantive and procedural law outside of the Human Affairs Commission area?
A. I taught Substantive Criminal law and Criminal Procedures at the Criminal Justice Academy to both Magistrates and police officers for a number of years. Magistrates are required to take continuing legal education in this state and I was the attorney assigned to the Criminal Justice Academy for two years to do that and I also taught Substantive Criminal Law to police officers as well.

As a practicing attorney, of course, I have to be familiar with those things because I deal with them in my private practice since 1989.
Q. What do you consider to be this job that you've applied for as an administrative law judge?
A. I see the position as being one created by the State to alleviate the problem of court backlog and remedy many of the problems that have been identified in the Circuit Court system as it existed prior to the reorganization.

It is my hope that one of the things it will do as a practicing attorney is allow us to deal with matters more expeditiously between parties without having to wait to get on the civil dockets in most counties. And as a person aspiring for the position, I would hope to bring to the position the kind of compassion and education and experience both from the standpoint of a litigator and a person wanting relief in the system that I think such a position as a judge can provide.
Q. What's your general understanding of when an ALJ will sit in an appellate capacity?
A. In going through the rules, it appears as if that a person who receives an administrative decision issued by an agency who wants to appeal that decision, then goes directly to the administrative judge who then issues a determination after conducting a hearing. That seems to be the mechanism.

I had some problem trying to figure out when -- particularly as in my agency, if the agency prevails again, then it appears that if the person's only remedy after having -- that is the administrative judge rules in favor of the agency to support the agency's decision, at that point the individual has no right other than to go back now to the Circuit Court.

Hopefully that won't happen that often where we end up with the backlog that we currently have.
Q. You believe the ALJ provisions apply to the Human Affairs Commission?
A. The law itself does not apply. There is no statutory reference to the Human Affairs Code within the administrative law unless I overlooked it. I don't think I did, but I was using that by way of analogy.
Q. Thank you. How do you define ex parte communications and what would you do about them?
A. As a trial lawyer, ex parte communications are that which take place between a judge and the opposition without me having the opportunity to express my disposition on a particular issue being discussed.

In the Human Affairs Commission, there is no ex parte proceeding, i.e., persons can come to us as they see fit and we reserve the right to entertain their presentations and arguments as we see fit, so there is a distinction.

If we're going to talk in terms of ex parte administrative matters, I understand that the rules would apply to an administrative judge as they would to any circuit judge.
Q. Have you ever been held in contempt or sanctioned by a court?
A. No, I have not.
Q. I want to ask you one other thing, what criteria did you use to select those five cases you've listed as your most significant that you were personally involved in?
A. Well, there was some difficulty on my part trying to be as honest as I could and recalling names of persons and parties and putting that information to paper, so what I did was simply recall cases that I could remember and identity parties.

It was difficult to recount or recall cases that might have been the most significant to me in terms of knowing individual names, so their significance is articulated on that sheet to the extent that it is, but may not necessarily reflect the cases that I have the most passion for or I thought were the most significant --
Q. Just --
A. -- I guess, and the short of it, is that list reflects cases that I can remember and not necessarily the cases that I have passions for.
Q. Which ones would be the ones you have passions for?
A. The ones whose names I cannot remember exactly.
Q. I mean, what would be the subject matter?
A. They were the types of cases having to deal one with disadvantaged persons that I was able to litigate cases and prevail. One case is in there, the Willie Durant case, is a case involving a lady who -- her stepfather adopted her at the age of five or six and then at the age of 14 he decided to have sex with her, to which she gave birth to a child he denied. It took me some two years to prosecute that case, but I finally got him and he's doing 18 years in jail, cases of that kind.
Q. Are there any of those kind of cases -- that might come before you as an ALJ that you would have some sort of preconceived notion of what the outcome ought to be?
A. No. No. I wouldn't have any preconceived notions as to the outcome until I heard the facts.
Q. Have you been the subject of any disciplinary action in the course of your public employment?
A. No, sir, I have not.
Q. In the course of any employment?
A. No.
Q. Have you sought directly or indirectly the pledge of a legislator's vote for you?
A. No, I have not.
Q. Are you aware of any solicitation without your authorization or request to vote for you for administrative law judge?
A. I know of none. No, sir.
Q. Thank you. That's all I have, Mr. Chairman.
THE CHAIRMAN: Thank you, Mr. Elliott. Questions? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Thank you. Have you sought the endorsement of any group of Members of the General Assembly or any caucus of the General Assembly?
A. No, sir, I have not.
Q. Have you participated in a formalized interview process other than this one today or the one by the South Carolina Bar?
A. There was an interview that -- and the word interview was used by the person speaking to me. I met with Senator Matthews and Representative Gilda Cobb-Hunter, I believe. They invited me over to speak with me about my candidacy. Whether or not that would be considered a formal interview or not, I don't think so.
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. No. No.
Q. Thank you, sir.
SENATOR MOORE: Mr. Chairman.
THE CHAIRMAN: Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. Mr. Whittleton, I have several questions regarding the Bar interview. Do you recall the date you were first contacted by the Bar as to scheduling the interview?
A. It was December 30th. Solicitor Donnie Myers called me at my office.
Q. What date did the interview take place?
A. Wednesday, I think, of last week would have the been 5th.
Q. Where did it take place?
A. At the Bar building on Taylor Street.
Q. How many interviewers participated in your interview?
A. There were two, Solicitor Myers and another gentleman whose name I cannot remember offhand right now.
Q. Do you recall what section of the state he may have resided?
A. I think it was here in Richland County.
Q. So Richland County and, of course, Solicitor Myers is Lexington County?
A. That's correct.
Q. Do you have any previous acquaintance with the interviewers?
A. When I was assistant solicitor for the Third Circuit, I had the occasion to meet Donnie on several matters and discuss things with him. While I was at the Criminal Justice Academy, many of his officers came through my courtroom and I had the occasion to become very familiar with the Solicitor. That's correct.
Q. I assume you like other candidates furnished a list of references?
A. Yes, I did.
Q. How many did you --
A. Five.
Q. Do you have any knowledge if any of those references were contacted after your interview?
A. No, sir. I do not. I did not contact any of them even before I submitted their names or after.
Q. When and how were you notified of the results?
A. Someone from the Bar's office called me and said that they had some material for me and I said I'd be out and I could just stop by and pick up, so I went by and got it.
Q. What date was that?
A. That was Thursday of last week which would be the 7th or 8th.
Q. Thank you, sir. I don't have any more questions, Mr. Chairman.
THE CHAIRMAN: Other questions?
EXAMINATION BY SENATOR RUSSELL:
Q. Sir, you understand what the appearance of impropriety means?
A. Yes, sir, I do.
Q. And if elected, you would follow that avoidance of the appearance of impropriety?
A. I have tried to live the last 42 years in accordance with that principle, yes, sir.
Q. Thank you.
THE CHAIRMAN: Other questions? If not, thank you. Mr. Whittleton, you may sit down and we will give you a chance to respond to the testimony of the next witness, so if you would stay with us, please.
A. Okay.
THE CHAIRMAN: Our next witness is Ms. Assaad-Faltas, am I --
DOCTOR FALTAS: Doctor.
THE CHAIRMAN: Doctor Assaad-Faltas, I'm sorry. Am I pronouncing your name correctly?
DOCTOR FALTAS: You're doing the best you can.
THE CHAIRMAN: As close as I possibly can, that's correct. Please, if you would come forward.
DOCTOR FALTAS: May I be affirmed for religious reasons?
THE CHAIRMAN: Yes, ma'am, you may.
MARIE-THERESE H. ASSAAD-FALTAS, having been duly affirmed, testified as follows:
THE CHAIRMAN: Now, we have -- let me say that we do have and all the members have in their files, a document we received January 10th of 1994 which is an affidavit, a witness affidavit, filed by the witness which details the allegations or the points that she wishes the committee to know about. And now I'll ask Mr. Elliott if you would ask the Doctor some questions.
DOCTOR FALTAS - EXAMINATION BY MR. ELLIOTT:
Q. Thank you. Your complaint against Mr. Whittleton relates to the complaint you filed with the Human Affairs Commission; is that correct?
A. It does, but sitting here -- and I feel very strongly about it, but sitting here and listening to some of his testimony, I became even more concerned about other things. The fact that he told you that he was involved in private practice, that, in fact, he started private practice as soon as he got a state agency job. My understanding is that that's not exactly permitted unless his appointment with the State Human Affairs Commission was part time.

I was also even more concerned about some of his responses to your questions. Frankly, they were too pat such as when he said that he tried to avoid appearance of impropriety for 42 years --
Q. Let's stick to the complaint.
A. Okay.
Q. And if you have a specific complaint against him in that regard, we'll get to that --
A. Yes.
Q. -- in the discussion of the complaint --
A. Yes. My understanding from your question to him is that you construed my complaint as being limited to his having engaged in ex parte communication.
Q. No, it is not. Let me ask you the questions and --
A. Okay.
Q. -- proceed through your complaint.
A. Okay.
Q. I'm just going to establish the basis and I'm going to let you talk about your complaint.
A. Okay.
Q. The complaint filed with the Human Affairs Commission was against your former employer, USC; is that correct?
A. At that time, they were technically still my employer --
Q. I see.
A. -- because I had been dismissed, but not discharged and that was the position they took before the Human Affairs Commission. In fact, while the complaint was before the Human Affairs Commission, a professional committee by the medical school in which I was --
THE CHAIRMAN: I think --
Q. I'll give you the opportunity --
THE CHAIRMAN: -- that Mr. Elliott is going to get into that?
A. Okay.
THE CHAIRMAN: He has some things that he needs to establish for the record.
Q. Yes. Just to get us to the point where we're homed in on what it is --
A. Right.
Q. -- that is your complaint. As an employee of the Human Affairs Commission, what was Mr. Whittleton's relationship to your complaint?
A. Actually --
Q. Was he the investigator, supervised your investigation, what did he do?
A. He was supervisor to the investigator, however, you have to distinguish when the complaint is against the State agency as opposed to when the complaint is against a private employer. This, the South Carolina Legislature, has specifically given the Human Affairs Commission much broader powers over state agencies when they are employers and when there is a complaint against them.
Q. Let -- we'll come to that.
A. Yes.
Q. Has there been a disposition of your complaint by the Human Affairs Commission?
A. They dumped it.
Q. I'm sorry?
A. They dumped it.
Q. Dumped it, d-u-m-p-e-d?
A. Yes, they dumped it over to the Federal EEOC in the manner that --
Q. They waived it to the Equal Employment Opportunity Commission --
A. But they waived it after they had long lost the right to waive it. In fact, there is nothing, nothing in the procedures that would allow them to waive it after an investigation has taken place.
Q. Is there anything -- let's just --
THE CHAIRMAN: Let's Mr. --
Q. Let's get --
THE CHAIRMAN: Just a minute, Mr. Elliott. If you would -- Doctor, if you would, let Mr. Elliott --
A. Okay.
THE CHAIRMAN: -- establish --
A. Okay.
THE CHAIRMAN: We have a certain manner in which we need the testimony because we do have your affidavit which I think details your allegations, but Mr. Elliott has some specific questions he does need to establish --
A. Okay.
THE CHAIRMAN: -- for us. If you would allow him to do that, please.
A. Right.
Q. And what did Mr. Whittleton have to do with the waiver of your complaint to the Equal Employment Opportunity Commission?
A. Everything. He -- that you have to understand that there is nothing in the Human Affairs law that allows them to waive the complaint that long after intake. They either waive it at intake saying this is something that's going to be investigated from the start by the Federal EEOC or once they take ownership of it and proceed with it, they have to see it to completion.

And what has happened is that after I had properly and in a timely manner filed my complaints, cooperated in every way, presented every document, the employer's own professional review committee decided that the complaints or the charges that were given for my termination were indeed pretexture and unfounded.

So the Commission -- the Human Affairs Commission had their work done for them by the very employer. It was a case where the employer's own professional committee said the reasons given to fire this doctor were false and unsubstantiated.

And at that time, the University's own counsel to my understanding told the Commission, okay, the University acknowledges that they have -- we have wronged Doctor Faltas. Let's see if we can resolve this. It was very wise because my specialty is in Preventive Medicine. If you just treat the symptom, but do not treat the underlying disease, the symptom will recur. It's not treatment if you just treat the symptom, so what was asked and that was reasonable -- in fact, that is the entire idea behind Title 7 and behind the South Carolina Human Affairs Law is that whoever is guilty of violation of Title 7 or the Human Affairs Law, in my case it was religious harassment, should be disciplined for it, otherwise they would be free to do it again. So --
Q. Please try to stick to how this reflects to whether Mr. Whittleton is qualified or not qualified to be an administrative law judge?
A. He's not qualified at all for two reasons. His own writing and that was one of the attachments that I gave you. He says consequently any -- before that, and that's the letter that is written on November 3rd, 1993 to my attorney, Mr. James Merritt.

This article significantly impacts our ability to gather information. Frankly, this is nothing short of bull shit. The Human Affairs Commission has subpoena power and they are an investigative agency and if they were going to rely on the wrongdoer employer volunteering information against interests, they are never going to protect the right of the employee.

So his reasoning was that because the people who were found having done wrong, having violated both Title 7 and the Human Affairs Law were not going to volunteer further information against interests, then the Commission could no longer -- could no longer do its job.

That is specifically why the General Assembly of South Carolina had given them subpoena power which is particularly broader over State agencies such as the University of South Carolina.

The other -- the other sentence that followed it says -- it says consequently, any factual determination by the South Carolina Human Affairs Commission in this matter will be subject to attack. Well, what else is new? Whenever a judge sits between two opposing parties it is to be expected that if he was for Party A, Party B is going to not like it. If he was for Party B, Party A is not going to like it, so a judge who even entertains, entertains, let it cross his mind, the fact that his ruling or his findings will be attacked by a party shouldn't even think about sitting as a judge.
Q. So you think he doesn't have the intestinal fortitude to make a ruling and stand up for it based upon the evidence before him, is that it?
A. How -- he didn't -- he didn't have -- he didn't have the spine to carry through an investigation or a recommendation where the university itself said we have done wrong because the woman who was most involved in the wrongdoing went to the office and made a scene. And what has happened wasn't just if he had recused himself and let someone else speak from when it -- he had -- he had
-- the investigation had gone along that would have been fine, but when they dumped it to the Federal EEOC, first it's located in Greenville. Second, the Federal EEOC would start from square one.

Well, justice delayed is justice denied. Even if the Federal EEOC were to make findings exactly as the Human Affairs Commission had essentially made, which is
-- there was indeed likelihood that I was discriminated against because I'm Christian, if -- even that would come one year later, then when it would have been made by the Human Affairs Commission, so in that sense, I was very wronged.

The most -- even shocking thing is that -- and I -- and I wrote this in my letter to Commissioner Ham is if someone sees that when there is recommendation to discipline them for having violated the South Carolina Human Affairs law and they go to the Human Affairs Commission and see -- and make a scene and see that based on that, the Human Affairs Commission washes its hands of it, what kind of a precedent does that set?

Why doesn't anyone else who is accused of any wrongdoing by the police go and make a scene with the police and then the police say, okay, we'll not investigate that. This is shocking. And as legislators, I think -- I urge you to look at what this South Carolina Human Affairs Commission in its entirety has been doing with the two million annual budget.
THE CHAIRMAN: Now that's not our job here today. Our job is to talk about the qualifications of Mr. Whittleton and we --
A. Of course, but --
THE CHAIRMAN: I think we need to --
A. But you can't -- but you can't separate your other existence.
THE CHAIRMAN: Well, our other existence resumes on Tuesday. Today, we're focusing on Judicial candidates.
A. Yes.
THE CHAIRMAN: I appreciate your testimony on that.
A. You have -- you have to understand that also the fact that he says that the letter had been disclosed. The letter was written to the University and it was the University that has disclosed it and what I submitted to you -- there is a fax from the University to me saying that this is the letter that the Human Affairs Commission sent us and what was reported in the newspaper was verbatim from the letter.

He claims that he could no longer proceed because the newspaper distorted it. Well, he could have called the newspapers with a correction, but there is -- I've given you the newspapers and you have the letter before you. The newspaper report is almost verbatim from the letter.
THE CHAIRMAN: All right. Thank you. And we have -- we do have your affidavit which encloses all those materials. I was examining those a moment ago. I think we have all that in the record.
A. I'd just like to -- to add that this wasn't without any impact on my career. After -- before he dumped my case, the University was offering to reinstate me although they were trying to attach unacceptable conditions to the reinstatement when he bowed out of it, they terminated me again for no reason.

So this shows you what happens when an enforcement agency just bows out.
THE CHAIRMAN: Thank you, Doctor.
A. Thank you. May I either ask if whether you will hear his response to that because I may have a rebuttal or what --
THE CHAIRMAN: No, ma'am. We're not going to have any rebuttal. You know, we -- our rules are that we allow the party who was applying to respond and we keep our record open in the event their witness wants to give us more information. We will do that, but the problem is that he would be able to rebut you and we'd be here all day hearing those responses.

But you may respond in writing to anything that is not in our record that comes up when he testifies, if you care to do that, but we're not going to take any more oral testimony after his response. But we do leave the record open if you want to forward some written material.
A. When will you hear his response, so I know if I can sit listen to it?
THE CHAIRMAN: Well, we plan on hearing it right now.
A. You're not going to take your long planned break yet?
THE CHAIRMAN: Well, I think that now that we're this far into it, I think we'll go ahead and stay and hear Mr. Whittleton. I think his response is going to be brief, I hope.
MR. WHITTLETON: I have an affidavit that I'd like to submit to the members.
THE CHAIRMAN: If you'll pass those forward.
MR. WHITTLETON: It's from both myself and from -- and this one.
DOCTOR FALTAS: Can I get a copy of it.
THE CHAIRMAN: Before -- we will give you a copy, but if there are enough. Are there enough to go around, Mr. Whittleton, for all the members?
MR. WHITTLETON: Yes, there is.
THE CHAIRMAN: And is there an extra copy that we can give to the Doctor?
MR. WHITTLETON: If that's the Chairman's decision.
THE CHAIRMAN: I just want to know if there are enough or if we need to --
MR. WHITTLETON: There's enough.
THE CHAIRMAN: We will do that.
DOCTOR FALTAS: Thank you.
THE CHAIRMAN: You may proceed.
MR. WHITTLETON: Yes, sir. I'm going to ask that I be allowed to go through this affidavit and if at any point any of the members would like to question me as to any of this, please feel free.

I, John H. Whittleton, state the following: Presently I'm employed as a Division Director with the State Human Affairs Commission. In that capacity, my duties include supervision of six investigators regarding discrimination and employment complaints.

I have first met Doctor Marie Faltas after she filed a charge with the Commission which after was later assigned to my division and Ann Coggiola was the investigator, I assigned -- who I assigned to the case. Ann came to me sometime later and said Doctor Faltas was being very difficult during that investigation and she wanted me to become involved with the investigation.

Sometime thereafter, Doctor Faltas came into the office to meet with Ann and me. At first, Doctor Faltas was very nice and cooperative, but as the meeting continued, she became more -- much more difficult. Finally, it was agreed that she was to submit to us a list of demands she wanted in order to settle her complaint and we would in turn contact USC.

I don't remember exactly how Ann came to have Doctor Faltas' demands, but I told Ann to prepare a letter containing those things Faltas was asking for and sent it to USC. Ann prepared the letter, came to my office and read me the letter and I said, fine, send it.

I believe the next day, Ann came back and said Doctor Faltas is being difficult again and she is demanding a copy of the letter. I sent the letter to USC. I said to her, fine, go ahead and send the letter.

On the following Monday morning, my immediate superior, Deputy Commissioner Gist asked me about an article in The State paper which ran that weekend. I told him I hadn't read it, but that I would check and see.

Later that day when I got around to reading the article, and I'm paraphrasing this for the sake of time, he had read it and was upset by it. That the letter -- that the letter had appeared. It had distorted our position in the matter and he wanted the case waived and we talked about the reasons why the case ought to be waived.

First, Doctor Faltas -- that the -- well, let me stick with my reasons. First off, we all -- we had Doctor Faltas -- case charge, an incomplete response from USC, that standing alone would not be enough for us to do anything and USC understood that, but the media and the public didn't know and Doctor Faltas knew that we had not completed the investigation, so therefore we could not issue a cause of termination.

Second, for the Commission to issue a cause of termination, three internal interviews must take place plus one external review by a federal agency, i.e. when we issue a cause of termination, it has to go to EEOC to be approved.

The Division Director must agree. The Deputy Commissioner must agree and legal counsel must also agree. All three must be satisfied with every aspect of the case. Any one of the three can remand the case back to the investigator for whatever reason appropriate and more importantly, no decision of one is binding on the other. Each is independent. None of these very relevant facts appeared in The State article.

Also during that same day, Doctor Altekruse, one of USC's -- one of the people named as being one of the culprits in all of this had been calling the Deputy Commissioner and wanted to see him. He deferred the matter to me. I then called her. She insisted on coming to our office. She came that afternoon. He had left.
DOCTOR FALTAS: She --
MR. WHITTLETON: She came to -- Doctor Altekruse came to the office and brought some information and requested that it be held confidential.

The Deputy Commissioner insisted again that the case be waived. As Deputy Commissioner -- this is the paragraph on the second page that I'd ask all of you to read and pay careful attention to. As Deputy Commissioner, Mr. Gist has absolute authority short of the commission over all administrative disposition concerning cases. He can direct where appropriate the administrative disposition on any case within my division and I am without authority to question his decision at all. No disposition concerning any case in order of compliance, and there are two other divisions, is final unless the Deputy Commissioner agrees with that disposition.

I think that's the crux of what I heard Doctor Faltas say. She said I dumped her case. It was not my decision. In our organizational structure, I'm a Division Director reporting to a Deputy Commissioner.

When I make a recommendation or determination, I submit it for his approval. He has absolute authority to remand that case back to me, dissatisfied with the disposition, dissatisfied with the case file, dissatisfied with my recommendation.

On the day that the -- the day after the article ran, he read it. His inclination as based on his experience said the case ought to be waived. When I read the article, my insistence was that the case ought to be waived. When I spoke to him, we discussed the variables as to why. He agreed. I agreed. The Commission agreed and the case was waived.

And let me add this, this was on that Monday. The Deputy Commissioner had he had his way, the case would have been waived Monday afternoon. It would have been in the mail. I asked him that we not waive the case until we got a response from USC on the possibility of settlement.

They had received a demand. Cliff Scott, who was the assistant staff counsel at USC was out because he had a death in his family. Terry Potter called me and said that the department heads were out and that he would get back to me. It took two weeks for Terry to come back to me and tell me that the only thing that they would offer her was a lot less than what it was she was willing to accept, so when Terry said that then I simply waived the case as directed by the Deputy Commissioner.

In his affidavit, which you now have in front of you, he points out to you, he had read my affidavit and accepts it as the factual history and he points out that if he gives me a directive, I would be insubordinate not to follow that directive. It just so happens in this particular position, I agreed with his directive. And that's the crux of all of this. And I will -- I'll entertain any questions that the Committee have.
THE CHAIRMAN: Questions from the Members? There being none, thank you very much. That concludes the hearing on Mr. John H. Whittleton. We will now take a ten minute break fifteen? Let's come back at 6:00, so a little past 6:00 o'clock.
THE CHAIRMAN: Our next applicant is Ralph K. "Tripp" Anderson, III.
RALPH K. "TRIPP" ANDERSON, III, having been duly sworn, testified as follows:
THE CHAIRMAN: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. ANDERSON: Yes, sir.
THE CHAIRMAN: Is it correct?
MR. ANDERSON: Yes, sir.
THE CHAIRMAN: Need to be any changes or clarifications?
MR. ANDERSON: No, sir.
THE CHAIRMAN: In that case, is there any objection to our making the summary a part of the record of your sworn testimony?
MR. ANDERSON: No, sir.
THE CHAIRMAN: That being the case, it will be done in the transcript at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Ralph K. "Tripp" Anderson, III
Home Address: Business Address:
321 Fallen Oak Drive P. O. Box 11549
Columbia, SC 29223 Columbia, SC 29211

2. He was born in Florence, South Carolina on October 13, 1959. He is presently 34 years old.

4. He is married to Janet LeVeque Anderson. He has no children.

5. Military Service: N/A

6. He attended Francis Marion College, August, 1976 to August, 1980; Bachelor of Science; and the University of South Carolina School of Law, August, 1981 to May, 1984, J.D.

8. Legal/Judicial education during the past five years:
In the past five years, he has focused his continuing legal education on trial advocacy, administrative law and criminal law.

9. Taught or Lectured:
S.C. Bar CLE - "Hiring and Firing" (lectured on employment law)
S.C. Bar CLE - "Ethics Act" (lectured on the Ethics Act)
Instructed the Supreme Court legal staff on the Ethics Act (January 5, 1993)

12. Legal experience since graduation from law school:

When he began working at the Attorney General's Office, his responsibilities encompassed the full-time extradition functions in the Criminal Division.
In time, and at his request, he was given additional work and transferred to the Prosecution Section, where he handled prosecution duties as well as his extradition duties. Thereafter, he also took on the responsibility as Counsel to The Ethics Commission.
With the passage of the Statewide Grand Jury Act, he occupied two offices, one in the Prosecution Section and one in the Statewide Grand Jury Section.
Afterwards, he left the Grand Jury Section to return to the Government and Civil Litigation Division/Prosecution Section, where he presently performs the following duties:
(1) Criminal Prosecution
(2) Counsel to the Ethics Commission
(3) Committee Attorney for the State Employee Grievance Committee
(4) Extradition
(5) Prosecutor for the Engineering and Land Surveyor's Board
(6) Medical Board Prosecutions, Attorney (General Opinions and Criminal Appeals, on occasion)

13. Rating in Martindale-Hubbell: He does not know if he is listed in Martindale-Hubbell. He has never requested to be evaluated by Martindale-Hubbell since he is a state employee.

14. Frequency of appearances in court:
Federal - none
State - 20 times a year
Other -

15. Percentage of litigation:
Civil - 75%
Criminal - 25%
Domestic - None

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

Chief Counsel
17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) State v. Dwight L. Bennett. This was a felony DUI case in which the victim suffered horrible physical injuries and lost the baby she was carrying. This case was used as an example as to the need to increase felony DUI punishment.
(b) Georgia v. Richard Daniel Starrett - a'ffd., Richard Daniel Starrett v. William C. Wallace. Starrett was convicted of several heinous crimes in South Carolina. Afterwards, George sought his extradition in an attempt to convict him under the death penalty. Starrett challenged the Attorney General's Office authority to hold extradition hearings.
(c) State v. Michael Goings. Goings was a Cayce police officer charged with assault and battery of a high and aggravated nature.
(d) State v. Herbert Pearson and Terrance Singleton. The Defendants in this case were accomplices in the armed robbery, attempted murder and murder of attendants at an Exxon station.
(e) State v. William Keith Victor. After the Defendant was convicted of murder and kidnapping, he was given the death penalty. His case was later reversed on appeal and sent to the Attorney General's Office. This prosecution, under difficult circumstances, resulted in the Defendant's plea to murder and the aggravating circumstances of kidnapping.

18. Five (5) civil appeals:
(a) Bergin Moses Mosteller v. James R. Metts
(b) Dennis G. Mitchell v. State of SC
(c) Ex Parte, Bobby M. Stichert v. Carroll Heath
(d) Patrick C. Lynn, et al. v. State of SC

(e) Paul David Tasker v. M. L. Brown, Jr.

22. Public Office: Assistant Attorney General since 1985.

23. Employment As a Judge Other Than Elected Judicial Office:
State Employee Grievance Committee Attorney (quasi-judicial). Since 1989, he has served as a committee attorney for the State Employee Grievance Committee. Section 8-17-340, S.C. Code Ann. (1976) provides that "The committee attorney shall determine the order and relevance of the testimony and the appearance of witnesses, and shall rule on all motions and all legal issues. The parties shall be bound by the decisions of the . . . committee attorney insofar as such hearings are concerned.

25. Occupation, business or profession other than the practice of law:
Self-employed salesman - March 26, 1980 to August, 1980
Florence School District #1 - Summers (1973-1975)

40. Expenditures Relating to Candidacy:
At present, no expenditures have been made.

45. Bar Associations and Professional Organizations:
South Carolina Bar Association

46. Civic, charitable, educational, social and fraternal organizations:
S. C. Policy Review Committee for S. C. Vocational Rehabilitation

47. Although he lives and works in Columbia, for demographic purposes, he is a resident of Florence County.

48. Five (5) letters of recommendation:
(a) Jack Montgomery, Vice President/City Executive
First Union National Bank
P. O. Box 728, Columbia, SC 29202
251-4449
(b) Richard C. Jones, Esquire
Jones & Seth
P. O. Box 1268, Sumter, SC 29151-1268
778-1006
(c) John R. Lincoln, Pastor
Shandon Baptist Church
819 Woodrow Street, Columbia, SC 29205
799-0652
(d) Gary R. Baker, Executive Director
State Ethics Commission
P. O. Box 11926, Columbia, SC 29211
253-4192
(e) Donald J. Zelenka
Chief Deputy Attorney General
P. O. Box 11549, Columbia, SC 29211
734-3660

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 applicable law enforcement agencies, I believe Richland and Florence Counties, because you are -- you live in Columbia at this time, but you are a resident of Florence as well, right? You have --
MR. ANDERSON: Correct.
THE CHAIRMAN: -- residency there. Both offices' reports are negative. Columbia and Florence City Police Departments are negative. The SLED and FBI records are negative as well as the Judgement Rolls of the Federal Court and Richland County and Florence County courts are negative. No complaints have been received against you. No person has asked to testify against you.

Prior to turning you over to Ms. McNamee for questioning I'll give you the opportunity, if you desire, to give a brief opening statement.
MR. ANDERSON: I'll waive that.
THE CHAIRMAN: Thank you very much.
MR. ANDERSON - EXAMINATION BY MS. MCNAMEE:
Q. Mr. Anderson, this is not a trick question or anything, but who is your role model for a judge who has good judicial temperament, because at least one person will be reading this transcript?
A. I think the obvious answer would be my father, but there is another and I'll address him, and that's John Hamilton Smith. I have a lot of respect for him, his temperament. He's a fair judge who is erudite on the law and I was always impressed by him.
Q. What are the particular qualities that you think an administrative law judge needs to have?
A. Senator Jennings wrote an article on administrative law judges in the, I think it was the South Carolina Trial Lawyers, and in there he described the driving force behind the Administrative Law Division and its enactment, was the need for professionalism, consistency in the rulings and efficiency, the perception of impartiality and independence, and the final one was actual fairness.

And I thought that encompasses real well the need of what an administrative law judge -- of what an administrative law judge needs to be. But it also has, I think, an interesting intellectual type of approach to the way he used each one of those words and what they really mean.
Q. You have, with the Attorney General's Office, been responsible for working with the Ethics Commission; isn't that correct?
A. Yes.
Q. What is your administrative law experience in the AG's office?
A. As counsel for the Ethics Commission would be one, and I've also been a prosecutor for the medical board cases, for engineering and land surveying board cases. I'm the Governor's Extradition Hearing Officer and I'm the committee attorney for employee grievance hearings.
Q. And, on the average, how many hearings every month are you involved in? Or every week?
A. It would be -- it would be about two every other -- or two or three every other week. That would be the easiest way for me to put it.
Q. This position of ALJ Number Three is a bit unique. How would you describe it?
A. By unique you mean --
Q. Well, it's a little different --
A. -- only one year?
Q. Yes.
A. I would think that it would -- obviously, if someone wants this job they would want it for one -- more than one year. So it would be unique in that hopefully you would do a quality service of one year and, therefore, come back before this body of the legislator -- legislators and demonstrate that you've done good work and should be renominated again or be reelected.
Q. How would you prepare yourself for those areas that you are not very familiar with? Let's say DHEC or let's say those kinds of contested cases.
A. Get the law down, read it, research it. Especially when you know a case is coming before you and you know the subject matter, research that particular area, make sure that you're knowledgeable on the law.

I think the best approach would obviously be -- we, the Administrative Law Division needs to get together and develop training that encompasses the whole wide area of all the administrative law judges and -- a CLE type concept. And then for specific matters that come before you, then that's where you need to specifically get the statutes and case law down concerning that particular matter.
Q. Will you tell this committee about your work habits, your work ethics?
A. I think my work habits are, I work long hours, I take very few vacations and I take my work very seriously.
Q. Why do you want to be an ALJ at this point in your career?
A. As a committee attorney for employee grievance cases, I enjoy that. I act as a judge. It equates out in a judicial capacity because I rule on evidence and all the motions, and I enjoy administrative law.
Q. How have you gone about exposing your candidacy, your desires, to members of the General Assembly?
A. I have sent letters out notifying the members of the General Assembly of my candidacy and I've also called some of them through long distance calls.
Q. How do you separate your job with the state government from this effort?
A. I have -- anytime that I've worked on the ALJ position I've done it at home. I've even tried to avoid using the phone at the office at all. I may have used it two or three times at the office during a lunch hour type period, but I've even avoided receiving or using the phone at all -- the state phones at all.
Q. Have you expended any monies at all on this campaign?
A. Yes.
Q. Will you be furnishing that to the committee? I don't --
A. I've filed it with the House and Senate Ethics Committee, and I also have, I think, a copy of one letter with me.
Q. We just have to check our files.
A. Okay. I filed it today.
Q. Oh.
A. I've been in a murder trial since last Monday and it didn't end until this -- or it began Monday a week ago, it didn't end until this Tuesday, and I called and found out that there was a grace period and, therefore, I filed it today.
Q. Have you ever been held in contempt or sanctioned by any court?
A. No.
Q. Have you ever been the subject of a disciplinary action arising out of your public employment?
A. I had one fellow file a letter against me, a Charles Rouse (phonetic), but that letter was dismissed by Doctor
-- or Dan Byrd (phonetic), as Chairman, before it went any further.
Q. In your work at the Attorney General's Office, has there ever been an occasion for you to be disciplined in that work?
A. No.
Q. Have you sought directly or indirectly the pledge of a legislator's vote for your candidacy?
A. Absolutely not.
Q. But are you aware of any solicitation, perhaps, that you didn't ask for --
A. No.
THE CHAIRMAN: Thank you. Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Thank you. 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 this one today or the one with the Bar Association?
A. No, sir.
Q. Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the South Carolina 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. With the Bar Screening Committee.
Q. Was that just the contact where you had the interview?
A. I did not have an interview. I was in that murder trial and I couldn't get out of it, so they called me at home on the phone and asked me some questions late one night after I got back from York -- Columbia, at home.
SENATOR MCCONNELL: Mr. Chairman, that concludes my questions. I think my colleagues are excited.
THE CHAIRMAN: Yes. Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. Mr. Anderson, do you remember the date that you were contacted by the Bar regarding an interview or an informal interview?
A. It was the week of January 3rd. Like I said, I was in that trial and I had my mind devoted fully on that trial. I think it was Wednesday or Thursday and it was approximately 10:00 at night.
Q. So that being, I suppose, the interview that was conducted for you?
A. Yes, sir. I talked to an individual named Howard King.
Q. So, of course, the interview took place over the phone at your home and one interviewer participated in that single telephone call, right?
A. Yes, sir.
Q. And you gave the gentleman's name. Do you know what part of the state he resides?
A. He told me Sumter and, in fact, he called me and I called him back and I recognized that exchange.
Q. You did not have any previous acquaintance with the interviewer?
A. No, none at all.
Q. You furnished a list of references to the Bar?
A. Yes, sir.
Q. How many were there?
A. Five.
Q. Do you have any knowledge if any of those five have been contacted?
A. One of those told me he had been contacted. And in talking to Mr. King, he also told me that he had contacted another one.
Q. When and how were you notified of the results?
A. Someone told me it was in the paper. Apparently it was sent to my office, but I didn't get back in time to read it or see it.
Q. Finally, have you ever been disciplined by a judge any time during your life?
A. By my father.
THE CHAIRMAN: Other questions? Thank you very much, Mr. Anderson. Our next candidate is Curtis Glenn Clark. Mr. Clark, will you come forward, please.
CURTIS G. CLARK, having been duly sworn, testified as follows:
THE CHAIRMAN: Mr. Clark, have you had a chance to review the Personal Data Questionnaire?
MR. CLARK: Yes, sir.
THE CHAIRMAN: And it's correct?
MR. CLARK: Three, if I may. I have small corrections on the
-- Question 21, five significant orders or opinions. The one reported under number A is now under appeal. That appeal was filed right at the same time that I was -- had made my report.

On Question 25 about occupation or business, on the second page, first full sentence, it reads, "The partner bought him out." We actually bought out my partner, so that should be corrected.

And on Question 46 about civic responsibility, civic involvement, I've left off a couple of things, but they are reported in Question 10 of the addendum, so I don't need to -- know that it needs to be added there.
THE CHAIRMAN: Any other changes that you'd like to make at this time?
MR. CLARK: No, sir.
THE CHAIRMAN: Do you have any objection to our making the summary part of the record of your sworn testimony?
MR. CLARK: None at all, sir.
THE CHAIRMAN: Then we will do that at this time.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Curtis Glenn Clark
Home Address: Business Address:
111 Cabin Road P. O. Box 1210
Greenwood, SC 29646 Room 102, County Courthouse
Greenwood, SC 29648

2. He was born in McCormick, South Carolina on October 13, 1953. He is presently 40 years old.

4. He was married to Paula Kate McCutcheon on May 15, 1982. He has four children: Matthew Curtis, age 10; Daniel Glenn, age 9; Lili Kate, age 4; and Mary Katherine, born September 1, 1993.

5. Military Service: N/A

6. He attended Clemson University, 1971 to 1974 (graduated in 3 years), Bachelor of Arts - major, Political Science; (attended summer sessions at the University of South Carolina during summers of 1972 and 1973 and transferred credits); and the University of South Carolina School of Law, 1974 to 1977, J.D.

8. Legal/Judicial education during the past five years:
Since he has been Probate Judge in Greenwood for seven years, his continuing judicial education has focused on that area during the past five years. He has attended all yearly probate judges' JCLEs. In addition, he attended the National College of Probate Judges' week-long, semi-annual sessions in the Spring and Fall of 1988, Spring and Fall of 1990; Spring of 1992 and is scheduled to attend the Fall, 1993 session in Charleston, South Carolina. He also has attended the 1989, 1991 and 1993 annual S. C. Bar meetings and bar real estate CLEs in 1988 and 1990. He attended a S. C. Bar evidence CLE in 1989. He also attended S. C. Bar sponsored Probate and Estate CLEs (for bar in general) in 1989, 1991 and 1992. In March of 1993, he attended a National Business Institute day-long training seminar on Estate Planning and Trusts.

9. Taught or Lectured: He taught Constitutional Law for Police Officers and Business Law at Piedmont Technical College from February, 1978, until the end of the Fall Quarter, 1980. One of these quarters, he taught Constitutional Law for Police Officers at Newberry College under a Newberry-Tec joint schooling program. He also was a lecturer of Business Law at Lander College (now Lander University) from 1979 to 1984 (4 years).

He assembled the materials and taught a one-evening course for the Greenwood Bar on the (then) new South Carolina Probate Code on June 25, 1987, that was accredited for three CLE hours. A version of this seminar was also conducted by him for law office personnel, the medical community, and the business community at large as potential creditors of estates. In 1988, he was one of three attorney probate judges that prepared materials on jury trials and put on a mock jury trial as part of the Probate Judges JCLE.

In 1989, he was a lecturer in the Court Administration sponsored New Probate Judges' training session. His topic was judicial (mental illness and chemical dependency) commitments. Being the very first training session put on by Court Administration, he was also a student. At the 1989 Probate Judges' JCLE, he was a topic preparer and discussion group leader.

In 1990, he was asked to coordinate the program and served as moderator for the Probate Judges' JCLE. In 1991, he again instructed new Probate Judges on judicial commitments at the Court Administration sponsored training session. In 1992, he prepared materials on Guardianships and Health Care Proceedings, and spoke to Associate Probate Judges and court personnel about that topic at the Court Administration training session. In January 1993, he revised and expanded his materials and lectured on the topic of Guardianships, Protected Proceedings, and Health Care Proceedings at the annual Court Administration sponsored training session for Probate Court personnel. In May of 1993, he again was a group discussion leader and panel member at the Probate Judges' CLE, which was a bench/bar CLE for the first time.

12. Legal experience since graduation from law school:

After being admitted to the Bar, he moved to Ninety Six, South Carolina and opened his law office there in January, 1978. His practice was a general civil practice, with the majority of his work being real estate and domestic practice. He also drew wills, wrote letters of complaint, handled several social security disability or other administrative agency matters and pursued a smattering of accident cases or collection cases. He accepted a very few summary court level criminal cases. In mid-1979, he purchased a house and moved his law office from 120 to 201 Saluda Street in Ninety Six. In late 1983, he met Billy Garrett, a young attorney, and opened a law office in Greenwood, sharing office space with him. That office opened in January, 1984. Since his office in Ninety Six was in his home, he also kept that office open. His practice continued as before but grew in numbers with real estate closings and domestic cases still dominating his practice; but with him still handling a variety of other civil matters. Because of the caseload, he gave up teaching. He still refused most criminal cases, and all beyond the summary court level. He could do no estate work, being Associate Probate Judge. In early 1986, he decided to seek election as Probate Judge, to succeed retiring Judge Traskas, had opposition but was successful in the primary, and closed his practice at the end of 1986 to become judge.

13. Rating in Martindale-Hubbell: He had consulted Martindale-Hubbell for 1981 and 1988 (he became Probate Judge in 1987). He was listed in both, but was not rated. Both still list him under the Ninety Six town listing, and both show his first office address of 120 Saluda Street, from which he moved in mid-1979. Apparently Martindale did not keep up with his moves.

14. Frequency of appearances in court:
Federal - 0%
State - 15% - as standing special referee for Greenwood County
Other - 85% - During the last five years and more, all appearances have been as presiding judge over either probate court cases or as special referee for the Circuit Court.

15. Percentage of litigation:
Civil - 100%
Criminal - 0%
Domestic - 0%

16. Percentage of cases in trial courts:
Jury - 0%
Non-jury - 100%
Presiding Judge

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Rufus W. Butler v. Parke, Davis and Company, d/b/a Deseret Medical Company, James Melvin Mayfield, Ron H. Gambrell, Carl Cooper and Robert Hayes, 84-CP-04-615 (Anderson County case). This was a discrimination case, filed with the Human Affairs Commission, taken to the state courts, removed to the federal district courts, remanded back to the circuit court, heard by the Master, appealed to the circuit court, and ultimately appealed but dismissed shortly thereafter to the Supreme Court. No appeals court decision was made in this case. The complexity of the litigation and the number of reviewing bodies and appearances makes this case significant.
(b) Greenwood Savings and Loan Association v. Ray W. McCarson, Marion I. Teasley, E. John Lease and Mary B. Lease, 84-CP-24-94. This case involved several issues that make it significant. These issues include priority of mortgages; effect of a mortgage subordination; can a subordination be limited in time; if a subordination is limited, can it be unilaterally extended; how much notice and consent is required from another lienholder to modify an agreement; legal benefits given to purchase money mortgage and/or a construction mortgage; and fraud. This case was settled after extensive discovery, legal research and negotiation. It was not tried or appealed.
These are the only two cases he handled that involved any unique legal issues.

18. Five (5) civil appeals:
(a) Clayton B. Allen, Petitioner - Appellant v. William Carlos Allen, Respondent. This is an appeal of a Family Court Order of Judge Walter T. Lake, dated January 31, 1983, filed as part of Judgment Roll Number 32582 in the Greenwood County Clerk of Court's office. He represented Respondent in this appeal, involving the question of the authority of a Family Court to make an equitable distribution of property pursuant to an annulment action.
This case is the only appeal he was involved with that reached the brief stage of an appeal. It was dismissed several weeks before scheduled arguments due to an opinion being issued by the Supreme Court in the case of White v. White, which both attorneys agreed was controlling on our issue before the Court.

20. Judicial Office: He was (part-time) Associate Probate Judge for Greenwood County from November 9, 1978, until he was sworn in as Probate Judge in January, 1987. As Associate Judge, he was appointed by the Probate Judge and served at her pleasure. He was elected Probate Judge for Greenwood County in 1986, and took office in January, 1987. His second term ends at the end of 1994. The probate courts are courts of limited jurisdiction. That jurisdiction changed in 1987 due to the passage of the South Carolina Probate Code.

As it currently exists, subject matter jurisdiction for the probate courts is found at Section 62-1-302, and includes estate administration - including wills and determination of heirs; guardianships for the person of incapacitated adults; conservatorship of the funds and assets of incapacitated adults and minors; trusts - both lifetime and testamentary; wrongful death settlements; minor settlements up to $10,000 (by Supreme Court order); involuntary commitments for mental illness, chemical dependency, mental retardation, pulmonary tuberculosis and AIDS treatment; veteran's guardianships; regulation of powers of attorney and actions of the attorney-in-fact; and health care matters including Declarations of a Desire for a Natural Death (living wills) and Health Care Powers of Attorney, and the Adult Health Care Consent Act; and issuance of marriage licenses.

21. Five (5) Significant Orders or Opinions:
(a) Kristina Shanell Childs by her duly appointed Guardian ad Litem, Sarah Frances Childs v. Pauline Williams Norman as Personal Representative of the Estate of Odell Norman, Sr., Estate File No. 93ES240008. This is an action for an omitted child's share in an estate by an illegitiment child. It needs review and possible amendment by the legislature of statute. (Now under appeal)
(b) Standards Federal Savings Bank v. H. & W Builders, et al. and Ruth M. Norman as Trustee of the T. H. Maxwell, Jr. Trust v. H & W Builders, et al., Case No. 90-CP-24-420 (Judgment Roll 44235). He was the special referee for the circuit court. It involves a variety of issues including subordination agreements and appraisal rights in a deficiency request. It is on appeal.
(c) Ex Parte Belton V. O'Dell, In Re Estate of James Thomas O'Dell, Deceased, Brenda Peppers, Personal Representative, Estate Case 89ES0100178. He heard this case as Special Probate Judge for Abbeville County. It involves a claim in a family partnership.
(d) Goldome Credit Corporation v. William A. Norman, et al., 87-CP-24-599. He heard this case as a special referee. It involves priority of mortgages in a foreclosure action due to use of different names by mortgagor and the issue of notice and duty to examine different possible listings.
(e) Estate of Donald T. Redick, deceased, Kym I. Redick, Personal Representative, Estate Case No. 89ES2400256. There are a series of orders issued in this estate in a short time. They include proof and determination of a claim, removal of an estate representative, tracing of estate proceeds and seizing items purchased with those funds, and appointment of a special estate representative.

23. Employment As a Judge Other Than Elected Judicial Office:
He was Associate Probate Judge for Greenwood County from November 9, 1978, until becoming judge in January, 1987. He served part time, was appointed Associate by Judge Rosemary M. Trakas, and served at her pleasure and under her supervision. By statute, he could do anything the probate judge could do; however, his function was to hold contested hearings with unusual or complex issues, give the judge legal advice, act as back-up on after hours (nights, weekends and holidays) commitments, and to take charge of the office and ensure its continued operation during the judge's absence due to illness, vacation or other reason.

Since taking over the office of Probate Judge, he also has acted as standing Special Referee for the Circuit Court. This would be considered an at-will position. His duties in that capacity would be defined in each case by an order of reference signed by the circuit judge. These are normally foreclosure of mortgage proceedings or supplementary proceedings to allow a creditor to attempt to collect on a judgment. However, there may be any of a variety of non-jury cases. He may be able to enter a final order in the case, or he may simply be taking testimony and making a report to the court or some other administrative function in the case. Last year, according to his count, he held 60 or 70 hearings as special referee. The special referee generally does the same thing as a Master-in-Equity, but has to be authorized to act on a case-by-case basis through the order of reference issued by a circuit judge.

25. Occupation, business or profession other than the practice of law:
In 1981 or so, he invested in a small partnership known as WBC Trophy & Awards. He was to be a silent partner in the three-way partnership. This retail awards business was based in the managing partner's jewelry store. In 1985, the managing partner declared bankruptcy and closed his jewelry store. WBC became a two-way partnership. In 1988, the name was changed to Southern Trophy and Awards. In 1991, his partner, who managed the business from his storefront operation, closed his business. He bought the partner out of the trophy company, moved it to a family-owned location next to Judge Clark's wife's beauty shop and pressed her into service managing the trophy company along with running her store. She handles the day-to-day operations of this recognition award and advertising product business. Judge Clark still helps out at night, on weekends (mostly) and during peak times, or on unusual project. Southern Trophy and Awards is currently located at 514 Ninety Six Highway, Greenwood, South Carolina 29646 (telephone number 227-2777).

He was also a partner in a short-term jewelry business - Greenwood Gold and Gems - that was organized to attempt to continue the jewelry business of the first withdrawing partner of the trophy company. It was a three-way partnership, with an on-site managing partner (not him); but the business lasted for less than a year - six or eight months - and closed in late Winter or Spring of 1986.

26. Officer/director or management of business enterprise:
His wife and he own and operate Southern Trophy and Awards, a recognition awards and advertising products business. They took over the operation of the business in 1991. His wife manages the store, located at 514 Ninety Six Highway, Greenwood, and he helps with unusual or heavy workloads.
28. Financial Arrangements or Business Relationships (Conflict of Interest):
He knows of no financial arrangements or business relationships that he has, or has had, which could result in a conflict of interest. If a Greenwood attorney, a relative or his past partner in the trophy business should, somehow, be involved in a case before him, he would handle it like he does possible conflicts in a probate case. If the matter involved someone he is acquainted with, he would inform all other parties to the action of his prior contact or relationship. If it was a relative or someone he felt more involved with; of if the other parties to the case could not fully evaluate or respond appropriately, or otherwise be adversely affected such that he would not be sure that publication of the past relationship would satisfactorily address the problem, he would recuse himself and transfer the matter to another hearing officers who could be more impartial.

29. Arrested or Charged:
In August, 1974, he was charged in Georgia with fishing without a license. He posted the fine as bond and did not appear or contest the matter.

32. Sued: He was sued by Matthew Bender in 1987 about his book account. He had been having difficulty with getting his account to accurately reflect returned books and supplements sent to him on approval, and the price quoted by the salesperson on some book "deals." The salesperson had left the company. When explained to the attorney for Matthew Bender, Phillip Brown of the Pavilack Law Firm, the attorney helped him straighten out the account and the suit was settled.

39. Use of Government Personnel, Equipment, Materials or an Office Building in an Election Campaign:
He knows of none. He typed his application himself.

40. Expenditures Relating to Candidacy:
Early October; $5.80 (book of stamps)
October 27, 1993; $1.56; postage
He also made several long distance calls that he does not have the phone bills on yet.

45. Bar Associations and Professional Organizations:
South Carolina Bar; Greenwood County Bar Association, Secretary-Treasurer (1984-1986); National College of Probate Judges, President (1988-1989), Assn. Representative to Assn. of Counties Board of Directors (1989-1990), Mental Health Committee Chairperson (1987-1988 and 1990-1991), Probate Code Committee Chairperson (1991 to present)

46. Civic, charitable, educational, social and fraternal organizations:
Ninety Six Elementary School PTO, Secretary (1991-1992); Ninety Six Elementary School Improvement Council (1992-1993), Chairperson (1993-current school year)

47. He has been very fortunate to have the opportunity to be a part of a number of efforts or groups that were not reported elsewhere in this questionnaire. Pursuant to several tragic public incidents involving the mentally ill, including the Oakland School shooting in Greenwood in September, 1988, the Department of Mental Health set up the Citizens Panel on Mental Health Issues in 1989, and asked him to participate as a panel member. The group identified issues and defined goals and solution (some realistic-some not) to the issues and set these out in a concluding report. To the best of his memory, he was the only probate judge on the group.
Court Administration asked him to be a member of its Probate Judges' Advisory Committee for the year 1989, and reappointed him in 1990, 1991 and 1992. This group gives input and guidance from the judges on projects and issues identified as needing attention by Court Administration.
He served on two legislative committees. On both, there were only two probate judges, with a different second judge on both. The first was the Health Care Consent Legislative Study Committee, which met in 1989, and reviewed the status of health care laws and needs in South Carolina. The main product of this committee was the Adult Health Care Consent Act (which addresses who may make health care decisions in the absence of a health care agent from a written appointment), but it also had impact on changes in the living will statute and the Health Care Power of Attorney. The second committee was the South Carolina Probate Code Joint Study Committee, which met in 1989 and early 1990. The purpose of this committee was to review the impact of the 1987 South Carolina Probate Code and to make recommendations for changes in statutes and procedure, with an emphasis on "hands on" practical applications. The proposed revisions were many in number, and the material to be reviewed was extensive. The bill that resulted was, he believes, some 75 to 100 pages in length.
Within the Probate Judges' Association, he was Chairperson of a 1992 Ad Hoc Committee to revise the probate fee schedule. The bill that resulted from this committee's work passed the Senate (Bill 497) this past legislative session and is pending in the House. It represents the last major pre-probate code (pre-1987) statutes to be revised.
What all this means is that he can hopefully demonstrate that he has the requisite ability to be a beneficial Administrative Law Judge. There are not many cases that would require the judge to be a probate expert, so this, in and of itself, is not a viable attribute. He does not profess to know or be an expert on the agency rules for all the state agencies coming under the administrative law judge jurisdiction. He doesn't think anyone else seeking this position can claim to be knowledgeable of more than one or two agencies at most. He has done some reading on the administrative law judge duties and state agency reorganization and structure, and he has some knowledge of the Administrative Procedures Act. Over the next several weeks and months he will do more reading.
His background of a general law practice and involvement in a variety of types of cases, both as lawyer and probate judge/special referee and his attendance of numerous legal education seminars hopefully shows that he is eager to learn about his area or areas of the law and legal principles in general. By attending national seminars, he not only wants to know what they can anticipate or should be doing, but how others has handled or are approaching the same topics or problems and what they see as the issues to come. By serving on legislative committees, he is willing to try to implement needed revision or address new and coming issues for our people and state.
Being asked to be President of the Probate Judges' Association when the upcoming judge was not able to serve, he feels shows confidence in him by his fellow judges, the ones who know, and his ability to effectively lead and respond to the issues facing the organization. Please note two things about this appointment: (1) he had been judge for less than two years and had not been another officer and did not have the benefit of "moving through the ranks;" and (2) the judges were still trying to learn, revise and become comfortable with a new probate code slightly over a year old.
The most important things he can offer for this position are two. First, he has proven judicial experience. He has a seven-year history of seeing many issues brought before him and addressing a variety of questions as probate judge and special referee for the circuit courts. From his participation in seminars, both state and local, he has tried to pass the knowledge and experience gained from his exposure on to others. An informed public and bar makes for less, or at least more defined problems.
More importantly, his judicial experience has occurred while implementing a new set of laws and procedures within the court. As he has told people, the only thing that did not change in the Greenwood Probate Court during his first year in office was the paint on the walls. Forget his years of experience as Associate Probate Judge. This was just something he had to unlearn, or re-think, with the changes in both probate code and commitment laws when he took office. The transition was major, and he had to not only learn and be able to implement the new laws and procedures, but he also had to retrain his court staff, the bar and the public. All this caused him to put in some long hours at times in a job that can, and does, involve after hours commitments periodically anyway. He has a supportive and understanding family. Hard work does not scare him.
Since the position of Administration Law Judge is new, no one has experience in that job. The new Administrative Law Judges will have to define their roles, educate themselves on the law and their duties, and then educate the agencies involved, the court staff (if any) and the bar and other contacts or users of this new agency on its structure. His prior experience in court transition and development would be a benefit in this process. It is very important that this entity start out on a solid footing and progress from there.

48. Five (5) letters of recommendation:
(a) Hilda L. Williams, Assistant Vice-President
NationsBank
102 East Main Street, Ninety Six, SC 29666
942-1635
(b) William B. Patrick, Jr., Esquire
McDonald, Bradford, Patrick & Tinsley
P. O. Box 1547, Greenwood, SC 29648
229-2511
(c) Watson L. Dorn, Esquire
Callison, Dorn, Thomason & McCravy, P.A.
P. O. Box 3208, Greenwood, SC 29648
223-8111
(d) Billy J. Garrett, Jr., Esquire
Garrett, Whiting & Associates, P.C.
P. O. Drawer 3388, Greenwood, SC 29648
229-8000
(e) Honorable Raymond C. Eubanks, Jr.
Judge, Probate Court, County of Spartanburg
Spartanburg County Courthouse, Spartanburg, SC 29301
596-2556

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

2. Positions on the Bench:
Associate Probate Judge of Greenwood County: November 9, 1978 to December 31, 1986
Probate Judge of Greenwood County: January, 1987 to present

10. Extra-Judicial Community Involvement:
In his immediate community, he was a member of the Ninety Six Chamber of Commerce until shortly before leaving his law practice. He was on the Board of Directors several years in the early 1980's, and was President in 1983. He was also involved in the Ninety Six Jaycees for several years during its off-and-on existence. He is a member of St. Paul United Methodist Church in Ninety Six, where he is finishing up a four-year term as chairperson of the Council of Ministries. Prior to that he was on the Administrative Board for three years. Also in the early 1980's, he was legal advisor of the Greenwood Area Rape Crisis Council and helped in training sessions for new council members. He was asked to be a board member since he has been Probate Judge but declined pursuant to an advisory opinion recommending against accepting. He has not used his judicial office to further any interest.

The Board of Commissioners on Grievances and Discipline reports no formal complaints have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. The records of the applicable law enforcement agencies, that being the Greenwood County Sheriff's Office, Greenwood City Police Department, SLED and FBI records, are all negative. Judgement Rolls of Greenwood County are negative. Federal court records are negative. No complaints or statements were received, no witnesses have asked to be present to testify against you. Now, prior to turning you over to Ms. McNamee for questioning, you have the right to make a brief opening statement. I see you have passed forward a written statement that we will be happy to incorporate in our record for you.
MR. CLARK: I'll waive reading that, then.
THE CHAIRMAN: All right. And let me tell you and the others, too, please don't -- because of the late hour, please don't feel limited. If you would care to read it instead, we'd be happy to hear it. We don't -- I don't want you all to be punished because you're near the end rather than near the first in this process.
MR. CLARK: I appreciate that, Mr. Chairman, but you can read it as well as you can listen, so --
THE CHAIRMAN: All right. Thank you very much. I hope I can read better than I can listen sometimes, but we will be happy to incorporate this into the record. Thank you.

INTRODUCTORY REMARKS:

You find before you at this time a nervous but steadfast individual. Nervous because I am about to undertake a process unfamiliar to me - one that promises to unfold about me as I get further into it. further, my fate is in the hands of many people I do not know, and who do not know me at this time. Yet, I am steadied by the knowledge that we share a common goal in this venture - picking the best qualified and most capable individuals who can develop a well functioning Administrative Law Judge Division - an ALJ Division that can respond to the needs of the state, its agencies, and its citizens.

Yet, it is my steadfast belief that I am a well qualified and capable individual who can well fulfill the job of Administrative Law Judge. This belief is based upon my legal and judicial experiences - which, I feel, amounts to a proven track record. As you have my materials before you, I will touch on the highlights only, in the interest of time.

How am I qualified? The basic qualifications are being a South Carolina citizen for at least five years, and being an Attorney admitted to practice in South Carolina for a period of at least five years. I am a lifelong resident of South Carolina. After graduating from the University of South Carolina School of Law in 1977, I moved to Ninety Six and opened a law office of my own. I practiced law for nine (9) years in Ninety Six and Greenwood. So I, along with everyone else who has applied for this important position, meet the basic requirement of the job.

The two main duties of the position of Administrative Law Judge, in very simplistic terms, will be, first, to preside in contested cases before a number of state agencies. These cases will involve ratemaking, price fixing, and licensing matters. The second main duty will be to preside at public hearings on regulation promulgation by departments with a single director. Such regulations should be based on need, reasonableness and benefit. In performing these two main tasks, the Administrative Law Judges will rotate through areas and departments on a subject matter basis, but no less frequently than every six months. As a final caveat, one of the first jobs will be to determine the role and direction of the Administrative Law Judge Division, and to develop and set forth its own division rules, subject to review and approval by the General Assembly.

How does my background benefit me in accomplishing such duties? First, in presiding over contested hearings, I have seven years of full time, and eight years of part time, judicial experience as Associate Probate Judge and Probate Judge of Greenwood County. In addition, while being Probate Judge, I have acted as in the capacity of Special Referee for the Circuit Courts of Greenwood County.

In my practice of law, I had a smattering of hearings involving state agencies. I was involved in cases that included the ABC Commission, DHEC, South Carolina Workmen's Compensation Commission, and Residential Home Builders Commission. I also had a handful of cases involving social security disability claims before a federal Administrative Law Judge.

As Probate Judge and Associate Probate Judge, I have held at least two thousand mental health hearings in Department of Mental Health facilities. These have involved protecting the rights of the individual patient, in some cases "substituting judgment" for him or her based on a perception of what is in the patient's best interest, and assigning appropriate weight to the report and concerns of the Department of Mental Health. This does not even start to include the number of estate and special referee hearings I have held. So I have a vast experience in presiding over hearings in a setting similar to the one that I envision Administrative Law Judges to work in.

Concerning agency regulation proceedings, I have been fortunate to be a member of two legislative study committees and a number of Probate Judges committees on forms development and law revision. The Health Care Law task force resulted in significant developments in health care legislation, and the Probate Code joint study committee resulted in review and a major revision of the South Carolina Probate Code. I served four one year terms on the South Carolina Court Administration Probate Judge Advisory Committee, a "policy direction" group. And most recently, I was chairperson of the Probate Judges Ad Hoc Committee to revise probate court fees - which resulted in a piece of legislation that passed the Senate last term and is currently in the House.

In rotating subject matter, I have heard a variety of cases as Probate Judge and Special Referee, often wearing both hats in the same day. And I would remind you that it will be important for the initial Administrative Law Judges to be able to review the charges placed upon them and develop a plan as to how best carry out these charges; and to develop set of procedures to effectively and efficiently accomplish these tasks and train a staff to help facilitate the tasks facing the Judges. Within six months of my taking office as Probate Judge major additions were made in mental health laws and the Probate Code was completely revised. I had to learn these changes, train my staff, educate area lawyers and the public, and to implement these changes on a timely and orderly basis. Having done it once, I feel I can do it again as an Administrative Law Judge.

Through all this, I have tried to remember that I am here to serve the public. My role in each of the over three thousand hearings that I have held as a judge is to insure that the people's rights have been preserved and protected. Further, that they have been fully exposed to the law and an even and informed application of the law to their case. They deserve no less. In closing, I would like to read short excerpts from two letters I received in a one week period this past year. Since I have not obtained permission from the authors, I will use no names, although I have the originals here for verification.

First - "I wanted you to know how much I appreciate the patience and understanding you showed me and my family . . . Your understanding went beyond what is probably necessary in your position as Probate Judge. Thank you for not making us feel like a number in this automated society we live in."

And - "I want to thank you for taking time out from your personal schedule to assist us . . . I cannot tell you how comforting it is to know that public officials will still go out of their way to help the citizens of their county."

THE CHAIRMAN: Ms. McNamee, any questions?
MR. CLARK - EXAMINATION BY MS. MCNAMEE:
Q. Thank you. Mr. Clark, I agree with your first sentence there. I'm about as nervous as you are, probably. Mr. Clark, you are now a probate judge, and I understand it's a full time position for you.
A. Yes.
Q. Would you tell us, please, how this job will -- does give you the experience that you need to be an administrative law judge?
A. I believe it gives me a good deal of experience. We've
-- I have put in the statement, held over 2,000 mental health hearings at Department of Mental Health facilities, a number of other proceedings and hearings.

Most of our hearings are nonjury hearings, although, as you are probably aware under the Probate Code now, jury trials are allowed. But the majority of our proceedings are nonjury hearings, have parties -- particularly where we -- mental health hearings or at state agencies, have agency representatives there, individuals, so that I would envision proceedings to a large extent as being very similar to -- on a structural basis as the proceedings held by administrative law judges.
Q. Would you say that the kind of law that you need to interpret at this time is the same, easier to interpret or more difficult to interpret than the kind of administrative law questions you will be asked to deal with?
A. I think that's very difficult to answer. It is very -- like it will be with the administrative law judge job, we may have a question that involves ownership of a bank account and turn around and have a will contest, and the next one I may hear is a special referee matter that has something totally foreign to the probate code in that.

So it takes -- it's going to take -- well, it's going to take somebody with some good basic legal skills, across the board knowledge conducting hearings, evidence, decorum, courtroom decorum, this type of thing.

And then I think, as many people have said prior to me, it's going to take a lot of research on individual cases under the -- if I read the statutes that involve administrative judge -- law judge position, there will be at least a 30-day review period or review notice filed, so that you'll have some notice of what's coming up and you can pull those individual statutes and review the law in those areas and be prepared to be able to at least have some knowledge of the substantive matters that is before the court at that point in time.
Q. At this point in your career, why are you interested in taking a job that is a one year job?
A. Well, I come up for reelection at the end of this year anyway, so it's -- I have no guarantee to stay where I'm at. It is, of course, a publicly elected job being a probate judge. So it is a move that would be -- I consider to be a forward move.

It's to a position, it's going to be brand new, it's going to have challenges, give me a chance to help carve out some of the responsibilities of that position and to be able to assign some of the duties and tasks that -- and form it into a cohesive unit of something that we can do. So I look at it as a forward move. The money's better than what I'm making as probate judge, and I've done a lot in the probate area. I think I've done a lot of what can be done there.
Q. What other kinds of administrative law experience do you have besides in probate?
A. I have been special referee, kind of a standing special referee for Greenwood County during the time that I've been probate judge. We have no Master In Equity and by custom or by whatever, these have gotten to be referred to me. So I've heard a lot of nonjury matters for the Circuit Court, particularly supplemental proceedings in collection matters and these types of proceedings, mortgage foreclosure actions, virtually any type of administrative proceedings.
Q. But are there any matters that involve the interpretation of administrative law rather than civil law?
A. No.
Q. ABC Commission hearings or whatever?
A. No. When I was practicing law I did have, you know, a smattering of cases before some of the administrative agencies, but -- as an attorney, not as a judge.
Q. If you would, describe for the committee your work ethic?
A. My work ethic?
Q. Yes, sir.
A. Is to help the people that come into our court. You have to remember that the Probate Court has two sides. We have an administrative court as well as a judicial court. This makes it very difficult for me as a judge, but I think it's very, very important to remember that we're there to serve the people.

I think this can carry over into something that would not be as hands-on with the people, have as much public contact as probate -- the administrative judge job as it does now as a probate judge. But it's something that we have to remember, that we're there to serve the people, to protect their rights and make sure they have their day in court and their say, and that it is -- I think the paramount reason that the administrative judge position is being created -- division is being created to be able to avoid some of those close improprieties or appearance of improprieties with some of the governing agencies making decisions, and so it puts it as another reviewing body in there to remove those appearances.
Q. In your work as a probate judge, I imagine that you have a lot of contact with individuals who have problems and so, whether they're representing themselves or whatever, you talk to people quite a bit, and what I'd like to ask you about is ex parte communication.

How do you expect that you will handle a situation if you're approached by an attorney about a pending case, how would you handle that?
A. How would I handle that? If I'm approached by an attorney, of course, I think the attorney should be warned that it is a matter that could be heard or will be heard by me, it should not be discussed and if it is, then it needs to be -- you know, steps need to be -- need to be taken to keep it from being discussed.

I have that problem now particularly with lay people coming into the Probate Court working on estates; you know, they have no concept of ex parte communications. And it's difficult to keep some estates going in a smaller county, like Greenwood County is, than in some of the larger counties maybe we could use staff as a buffer between you and the public. But as small as my staff is, with four employees, I have to help out with some of the administrative end of things and it's difficult to be able to -- have to kind of pick and choose cases as to what I -- who I can help with it.

If there's been something filed, we have to make sure that one of the staff helps them on -- just on -- on administrative -- nothing related to the issue that's brought before -- that may be pending before a court on a hearing matter. But, as you well know, the estate needs to move on, so it's important that we have -- it gives us an additional charge that I have to have and then I have to kind of review each case before I can get involved in it as well and talk to people and try to avoid those communications, and ultimately it's hard to avoid all of them --
Q. Sounds like you have a lot of experience in this area already.
A. Oh, yes. Oh, yes.
Q. What is your standard for recusal? Let's just say I know that your wife has a business, maybe she needs a permit from DHEC in running her business. What would be your standard with that?
A. Well, if there's anything that could not -- it could be
-- it was a friend, somebody has a minor contact that -- I think it needs to be put on the record and give the parties an opportunity to ask for a recusal. If it's my wife, then it doesn't need to get to a hearing stage; it should be recused, period. A wife, a business partner, a relative, somebody up close contact, then --
Q. Do you have any problems currently with Matthew Bender?
A. No, I don't.
Q. That's all been taken care of?
A. Years ago.
Q. We do not have on record that you have expended any money towards this --
A. You should have it on record, there was -- as far as my initial report, there was a couple of expenses made ...
Q. Oh, I'm sorry, I have this one.
A. Okay.
Q. I'm sorry. The Administrative Law Division is going to have its central office in Columbia and I know that you live in Greenwood. Is that going to be a problem for you?
A. No, that should not be a problem. I commute to Columbia to hold mental health hearings, on a periodic basis to go to meetings, so I'm very familiar with coming to Columbia. And I grew up in West Columbia, so I know the roads well.
Q. How are you going to go about making your decision in a case? Let's say you've had a two month hearing, a long DHEC one, what are you going to do at the end of that hearing?
A. Well, on a two month hearing, hopefully we've made some good copious notes along that is a good summary, because you can't go back and review a two month hearing very well. You've got to have had some kind of idea along of how things have come, how that case is proceeding and what's going to be done with the case, what your recommendation's going to be.

So, you know, one thing I'd try to do is to make some good copious notes so that if I need to look back on something I can look back on a particular part of it. Of course, the transcripts or records are available from that standpoint. But something needs to be done about trying to get something on paper as quickly as we can then so that we can keep the synopsis there, keep the materials together and keep that case moving along.
Q. Do you expect that you will be writing your own orders --
A. I would prefer not to have to write quite as many as I've had being probate judge. Sometimes -- a lot of times I don't have a lawyer that I can call upon to draft orders, so I have to draft them myself. Sometimes I don't feel like the lawyer's background is quite as good as mine and I can do it as quickly -- much more quickly than he can, and probably will look at something along this same line. If it's something I feel could be done fairly quickly I may do it myself. Of course, I did have staff attorneys, which these state agencies use, and they should be more qualified and have a better background in working in something in that area than I do, so I probably will call upon them as a resource.
Q. What standard of deference do you give or will you give to the agencies' interpretations of law, of the statutes?
A. I will give them the same deference as I will give individuals, and I envision most of the individuals being represented -- of course, individual by statute includes groups, associations, corporations, I'm using that term in that general sense. I would envision most of them being represented by counsel who hopefully has done his or her homework, and so I think they would deserve equal bearing or weight if they've done that. You can read briefs, you can tell who's spent the time and this type of thing --
Q. Have you ever been held in contempt or sanctioned by a court for any reason?
A. No, ma'am.
Q. Have you ever been the subject of a disciplinary action arising out of your public employment?
A. I had two complaints that were filed, they are both in the materials and they both were dismissed immediately after being filed.
Q. I didn't really mean that. Have you sought directly the pledge of any legislator --
A. No.
Q. How have you gone about introducing yourself ...
A. I have sent out a letter to all the legislators, senators and representatives, and that's pretty much where I'm at at this point in time.
Q. Are you aware of any solicitation without your authorization?
A. No, I'm not aware of any.
Q. That's all I have.
THE CHAIRMAN: Questions from the Members? Senator McConnell.
SENATOR MCCONNELL: Thank you.
EXAMINATION BY SENATOR MCCONNELL:
Q. Have you sought the endorsement of any group of members of the General Assembly or of a caucus of the General Assembly?
A. No, sir, I have not.
Q. Have you participated in a formalized interview process other than the South Carolina Bar Association's or 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, the Bar's 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.
SENATOR MOORE: Mr. Chairman?
THE CHAIRMAN: Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. Mr. Clark, do you recall the date you were first contacted by the Bar as to scheduling your interview?
A. Yes, sir. My office was called on the afternoon of January the 4th.
Q. What date did the interview take place?
A. January the 5th, here in Columbia.
Q. In Columbia?
A. Yes, sir, at the Bar Building.
Q. How many interviewers participated in your interview?
A. Three.
Q. Do you know what sections of the state they reside?
A. Yes, sir. One was from Greenwood, Attorney Roc Wise. One, I believe, was from Beaufort; Battey was the last name, I don't remember the first name. And there was a young lady, Gwen Fuller, and since her office called I presume she's here in Columbia, but I could not swear to that.
Q. And I assume you obviously had some prior acquaintance or knowledge of Mr. Wise. But the other two, did you know them prior to the interview?
A. No, sir.
Q. Did you furnish a list of references?
A. Yes, sir, five independent of the ones furnished to the committee.
Q. Do you have any knowledge if they were contacted?
A. No, sir.
Q. When and how were you notified of the results?
A. I received, or my office received a Federal Express letter Monday, I believe. I was out with a bug, so ...
Q. Monday being January the 10th?
A. Yes, sir.
SENATOR MOORE: That's all I have, Mr. Chairman.
THE CHAIRMAN: Thank you, sir. Other questions? Thank you very much.
MR. CLARK: Thank you.
THE CHAIRMAN: Come forward, please, Mr. Geathers.
JOHN D. GEATHERS, having been duly sworn, testified as follows:
THE CHAIRMAN: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. GEATHERS: Yes, sir.
THE CHAIRMAN: Is it correct?
MR. GEATHERS: Yes, sir.
THE CHAIRMAN: Any changes, clarifications need to be made?
MR. GEATHERS: Other than my daughter is now six months old, if that's important to you to change that.
THE CHAIRMAN: All right. That's significant, we'll make that change. Is there any objection to making this summary a part of the record of your sworn testimony?
MR. GEATHERS: No, sir.
THE CHAIRMAN: All right, we'll do that at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. John D. Geathers
Home Address: Business Address:
P. O. Box 3221 Office of Senate Research
Columbia, SC 29230 P. O. Box 142
Columbia, SC 29202

2. He was born in Georgetown, South Carolina on April 10, 1961. He is presently 32 years old.

4. He was married to Doris Williams on September 12, 1987. He has one child: Lydia Kaden, age 6 months.

5. Military Service: N/A

6. He attended the University of South Carolina, B.A. Degree in Political Science, 1979-1983; and the University of South Carolina School of Law, 1983-1986, J.D. Degree.

8. Legal/Judicial education during the past five years:
He has complied with the requisite CLE hours as prescribed by the South Carolina Bar Association.

9. Taught or Lectured: He has had the opportunity to prepare materials and give an update on the 1991 Solid Waste Management Act to the government section at the 1991 Annual Bar Meeting.

12. Legal experience since graduation from law school:

Attorney for the Department of Labor; September, 1986 - January, 1987
Responsibilities: Resolved cases involving large and small corporations and businesses in violation of Occupational Safety and Health standards.

Attorney for the Office of Senate Research; 1987 - present
Responsibilities: Researching and writing memoranda of law; drafting legislation; staffing committee meetings; advising Senators; supervising law clerks; serving as Senate Staff appointee to the Southern Legislative Conference on Environmental Quality and Natural Resources Committee; experience with federal environmental laws.

13. Rating in Martindale-Hubbell: Inapplicable

14. Frequency of appearances in court:
Federal -
State -
Other -

None.

15. Percentage of litigation:
Civil -
Criminal -
Domestic -

Inapplicable. However, during his experience with the Senate, he has had an opportunity to work on projects involving each of these subject areas.

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

Inapplicable.

17. Five (5) of the most significant litigated matters in either trial or appellate court:

Inapplicable.

18. Five (5) civil appeals:
Inapplicable.

40. Expenditures Relating to Candidacy:
Long Distance Phone Calls: $145.00
Postage: $ 66.00
Stationery: $105.29

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

46. Civic, charitable, educational, social and fraternal organizations:
United Way Big Brothers Volunteer

47. STATEMENT BY JOHN D. GEATHERS: "As a candidate for a position as an Administrative Law Judge, I want the Committee to know a few of the following things about me. My wife Doris and I have been married just over six years and are the proud parents of Lydia Kaden who is nearly four months old.
I graduated with honors from a defacto segregated public high school in Georgetown County. My parents do not have a formal education, but they have always been people who have worked hard and have understood the importance of an education in today's society. They have put three children through the University of South Carolina and now have a fourth in college. They instilled within me a work ethic. As a teenager, I worked in the tobacco fields of Georgetown and the surrounding counties. I also worked in Myrtle Beach restaurants washing dishes and busing tables to earn money for upcoming school terms. I was told and taught that people may often help you but rarely do they give you anything. My parents instilled Christian values in me and taught me to live by certain virtues including integrity (which meant doing the right thing even when no one else was looking or no one would find out) and striving for honesty in all my dealings. They taught me to respect other people regardless of the status or station those people had in life.
These virtues carried me through the University of South Carolina undergraduate program and the School of Law and they continue to direct me in my professional career. I entered the University of South Carolina in 1979 and graduated in 1983 with a Bachelor of Arts degree in Political Science. During my studies at the University of South Carolina, I made the Dean's List many of the semesters of my attendance. I was inducted into the Phi Sigma Alpha Honorary Political Science Society. I was selected through competitive application process as a governmental intern to serve in Lieutenant Governor Nancy Stevenson's office where I had occasion to meet my current employer Frank Caggiano, Clerk of the South Carolina Senate.
I entered law school in 1983 and graduated in 1986 with a Juris Doctor degree and was admitted to the South Carolina Bar that same year. During that year I became employed with the South Carolina Department of Labor as a staff attorney. My responsibilities involved contested case resolution concerning large and small corporations and businesses alleged to be in violation of Occupational, Safety, and Health Standards.
My tenure at the Department of Labor was short lived as Frank Caggiano of the Senate invited me to work as a full time staff attorney for the Office of Senate Research, where I had previously clerked during law school.
I currently serve as Senior Staff Counsel for the Office of Senate Research. I have served continuously in this position since 1987. My responsibilities include, among other things, researching and writing memoranda of law, drafting legislation, staffing committee meetings, advising Senators, supervising law clerks, and serving as Senate staff appointee to the Southern Legislative Conference on Environmental Quality and Natural Resource Committee. I have had the opportunity to serve as Senate point person on a number of pivotal issues confronting the General Assembly. Chief among these issues were the following:
Infectious Waste Management Act of 1989, Act No. 134. Prior to the passage of this act, the Senate sent Senator Peden McLeod, myself, and another staff person to a seminar in Boston, Massachusetts, to familiarize ourselves with all of the issues concerning the management of infectious waste. As you will recall, there was public concern over infectious waste as many hypodermic needles were found floating on beaches across the country. This act promoted the proper handling, treatment and disposal of infectious waste.
Hazardous Waste Landfill Restrictions Act of 1990, Act No. 590, in which the General Assembly attempted to reduce the amount of hazardous waste landfilled in South Carolina.
The Solid Waste Management Act of 1991, Act No. 63, which established a coordinated statewide solid waste program in order to protect public health and safety, protect and preserve the quality of the environment, conserve and recycle natural resources, and to promote reduction and recycling goals for solid waste being received at municipal solid waste landfills and solid waste incinerators in the State of South Carolina.
The Offender Management System Act of 1992, Act No. 461. This act sought to identify qualified non-violent offenders and place them in communities in controlled settings in order to alleviate prison overcrowding.
Barnwell Low-Level Radioactive Waste Site Act of 1992. This act extended the operation of the Barnwell Low Level Radioactive Waste site for the Southeast Interstate Compact until January 1, 1996, subject to a number of conditions.
And most recently, the Restructuring Act of 1993, Act No. 181 in which state government was restructured by the consolidation of numerous agencies, boards, and commissions into 19 departments within the executive branch of state government. I was one of two Senate staff persons appointed to study and draft the changes necessary for the consolidation of the environmental agencies.
On all of these legislative enactments, I worked closely with the sponsors of the legislation and with various interest groups and state agencies in reaching compromises and composing amendments. I also served as staff to the Conference Committees in forging compromises between the House and Senate.
These tasks required long and arduous work hours on many occasions. I am accustomed to working at a job until it is done right and I am very aware of the need to give due consideration to all sides of an issue. I feel these are important qualities for a judge, particularly in the administrative law area where so many interests are affected. On some occasions these tasks required that I work independently and on other occasions that I provide supervision of support staff.
I chronicle or detail my work at the Senate to merely indicate that I have gained the respect and admiration, if not of all, of many of the Senators for competence, diligence, and devotion to excellence. This is evidenced by Senator Moore in the Senate Journal on Tuesday, May 14, 1991, who commended me for my work on the Solid Waste Bill: "Senator Moore asked that the record reflect that he paid special tribute to the efforts and support of Mr. John Geathers, Senior Staff Counsel, with the Office of Senate Research." Most recently, with the Restructuring Bill, along with other members of the Senate staff, I was commended for my efforts in working very diligent and long hours and in a short period of time producing a quality work product. This bill was over 1200 pages. Again, Senator Marshall Williams, Senate President Pro Tempore, appointed me to serve as Senate staff appointee to the Southern Legislative Conference on Environmental Quality and Natural Resources Committee.
I would also like the Committee to know that on my own initiative, I became a member of the North Carolina Bar Association in 1992. I ordered the study materials and studied during the evening after work. And I should mention this was during the Barnwell debate, so many nights I was studying until midnight for the bar exam. This was not always a pleasant experience but I wanted to achieve my goal. North Carolina currently has jurisdictional reciprocity with 23 other states and I saw this as an avenue to broaden my career options given the interstate nature of many legal questions.
The last seven years as Senior Staff Counsel for the Office of Senate Research and my tenure as an attorney for the OSHA Division of the South Carolina Department of Labor have prepared me, for all of the various reasons I have indicated, to serve as an Administrative Law Judge, along with my familiarity with the Administrative Procedures Act. Recently, I have further prepared myself by studying and outlining the most current and comprehensive materials on South Carolina administrative law.
I have prided myself on being able and committed to working hard and presenting myself as a person of integrity and as a person qualified on his merits. I look to the perseverance, determination and achievement of my predecessors and forefathers as inspiration and incentive to advance myself and build upon my heritage. In offering for the position as Administrative Law Judge, I respectfully request that the Committee consider my entire record and background. I offer myself as a qualified candidate, regardless of race, gender, political philosophy or affiliation, who will do a job that the General Assembly, the State and my family can be proud of."

48. Five (5) letters of recommendation:
(a) Joseph H. Stone, Assistant Vice President
Nationsbank
2095 Beltline Boulevard, Columbia, SC 29204
765-4940
(b) Frank Caggiano
Clerk of the Senate
P. O. Box 142, Columbia, SC 29202
734-2806
(c) Carl E. Lancaster
Northeast Church of Christ
3506 Edwards Road, Taylors, SC 29687
244-7622
(d) Christopher G. Isgett, Esquire
P. O. Box 1505, Columbia, SC 29202
799-9811
(e) Joseph Henry, Esquire
140 Little Hampton Drive, Irmo, SC 29063
781-5742

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 applicable law enforcement agencies, Richland County Sheriff's Office, Columbia City Police, SLED and FBI, are all negative. Judgement Rolls of Richland County are negative. Federal court records are negative. No complaints or statements have been received about you. No witnesses are present to testify against you. Prior to turning you over to Mr. Elliott for questioning, I would offer you the same opportunity we have offered the other candidates, and that is to make a brief opening statement.
MR. GEATHERS: Thank you, Mr. Chairman, I do have a brief statement. The role of the judge is special, whether it be at the lowest level of adjudication or in the highest court of our state deciding issues of great moment. It is special because a public trust has been imparted to the one holding the office of judge. What society and this committee and the General Assembly expect and at a minimum deserve from one who holds the office is integrity, competence and diligence. Not only do I humbly submit that I am qualified on these points, but I would call the committee's attention to my specific work experiences which indicate the aforementioned qualities.

I have worked in the Office of Senate Research for over seven years as senior staff counsel and daily researching and writing memoranda of law on a multiplicity of issues. I'm responsible for researching and drafting legislation, staffing standing committee and conference committee meetings and supervising certain support staff.

I have been the Senate point person on a number of pivotal issues which have come before the General Assembly. Chief among these were the Infectious Waste Management Act of 1989, the Hazardous Waste Landfill Act of 1990, the Solid Waste Management Act of 1991, the Offender Management Act of 1992, the Barnwell Low Level Radioactive Waste Site Act of 1992, and natural resources and environmental components of the Restructuring Act of 1993. And more specifically, to prepare myself to assume the position of administrative law judge, I have reviewed and outlined Professor Shipley's treatise on administrative law. I have revisited an outline of Professor Reizer's fifth edition on Rules of Evidence in South Carolina.

I have reviewed CLE materials on administrative law and I have reviewed and briefed case law covering the last five years on both administrative law and the Canons of Judicial Ethics. I have great confidence that the committee will find my experience and background compelling as to the fact that I possess the qualities and attributes necessary to hold the office and exercise the duties and responsibilities of an administrative law judge.

I have previously submitted a statement, which I think is part of my Personal Data Questionnaire, and I would invite the committee to review it as well. Thank you.
THE CHAIRMAN: Thank you, Mr. Geathers. Mr. Elliott, questions?
MR. ELLIOTT: Yes, sir. Thank you.
MR. GEATHERS- EXAMINATION BY MR. ELLIOTT:
Q. Speaking of the statement in your Personal Data Questionnaire, I can't speak for the committee, but I consider that well written. Is that your work entirely?
A. Yes, sir.
Q. On your Personal Data Questionnaire, it shows that you were an attorney for the Department of Labor, and I guess that was the South Carolina Department of Labor, when you first got out of law school?
A. That's correct.
Q. For a brief period of time?
A. That's correct.
Q. I guess I was interested in it because it mentioned that you resolved cases, and that was the term you used, resolved, involving businesses in violation of occupational, safety and health standards. What did resolve mean?
A. Basically, it was our position to try to settle cases prior to hearings, and that's what I meant by resolve. I was there such a short period of time, I did not get to actually participate in any hearings. But I did write a brief for one particular hearing that Chief Counsel Sharon Dantzler had been lead counsel on, had been working on, but she was out on sick leave at that particular time, so I did have to fill in the gap in that regard.
Q. You've done a lot of study, but it appears that you have not been involved in any litigation; is that correct?
A. That's correct.
Q. Do you think that poses a problem for you, being dropped into an ALJ position on March 1st and immediately having to hear cases, contested cases?
A. Not at all. If I felt as though my lack of trial experience would serve as a detriment to performing the functions of an administrative law judge, out of respect for myself and for the committee and for the General Assembly, I would not have offered for the position.
Q. What do you tell the chief judge is the best way to make immediate use of you?
A. I'm not sure I understand the question, but I would imagine the same way that he would any other ALJ.
Q. Are you prepared to immediately go, be ready to go and hear cases?
A. I'm sorry?
Q. I'm sorry. Are you prepared to immediately go and hear cases?
A. Yes, I believe I am.
Q. Tell me about the activity you've been engaged in, in outlining the administrative law, Professor Shipley's book and so on. Have you completed that task?
A. Yes, I have. As you know, this is not Professor Shipley's treatise but it's about this thick, and it's heavily supplemented with case citations and various citations of articles and other treatises. I have read that over the last several months and I can say that I entirely outlined the entire document. And I have also supplemented that outline by doing my own research, as I've said, by reviewing case law over the last five years on administrative law in South Carolina and reading various CLE articles on administrative law and supplemented this material as well with that.
Q. Do you find any areas of special concern? All this is probably pretty fresh on your mind, having gone through that. Any areas of special concern meshing administrative law with the Administrative Law Division provisions that were passed in the Restructuring Act?
A. No, I don't.
Q. Do you share your outline?
A. Certainly.
Q. You've worked for the Senate for seven years and you mentioned it's with Senate Research. During that time you've come to know both senators and house members. What do you do if any of these officials seek your support in a political campaign or in advancing some issue in the political arena?
A. As you know, Canon Seven expressly prohibits any political activity on the part of a judge, and so I would not participate in any manner. Whether it be contributions or endorsing a candidate at all, you don't
-- once you have refrained from any political participation.
Q. As an ALJ you'll be presiding over hearings of contested cases. What are the considerations that underlie your determination whether you have a contested case before you?
A. Well, I think you have to look at the definition of a contested case and basically that would be prescribed by regulation, and, of course, a contested case being one in which a party has a right to present their testimony or have their rights determined after an opportunity for a hearing. So in order to make that determination one would have to look to the rights of the particular agency in question. And also there are due process considerations that would be considered if such a hearing is not expressly prescribed by the regulation.
Q. Required by law, that portion of the definition of contested case, do you think that includes due process, when a hearing is required by due process?
A. I'm sorry, I didn't hear the first part of your question.
Q. Excuse me. In the definition of contested case in the APA where it says required by law, a hearing is required by law, how do you take required by law? Would that include when a hearing is required by procedural due process?
A. That includes case law as well as statutory law, of course, if that's what you're asking me.
Q. What have you done to avoid conflicts between your public duties working for the Senate and your efforts to seek the position of an ALJ?
A. I have taken annual leave during any times that I've made contact with specific members.
Q. Years and years from now, if you serve as an administrative law judge for a lengthy period of time, how do you want people to look back and describe your judicial temperament?
A. To be -- to look back and see that I was fair, that I was courteous, that I was patient, and also that I was deliberate and firm in my rulings and decisions but, at the same time, not arrogant; that I executed the functions and duties of an administrative law judge while maintaining humility.
Q. Have you ever been held in contempt or sanctioned by a court for any reason?
A. No, sir.
Q. Have you ever been the subject of any disciplinary action arising out of your employment?
A. No.
Q. Have you sought directly or indirectly the pledge of a legislator's vote for you for administrative law judge?
A. No, sir.
Q. Are you aware of any solicitation without your authorization or request?
A. I am not.
MR. ELLIOTT: That's all I have, Mr. Chairman.
THE CHAIRMAN: Senator McConnell.
SENATOR MCCONNELL: Thank you, Mr. Chairman.
EXAMINATION BY SENATOR MCCONNELL:
Q. Have you sought the endorsement of any group of members of the General Assembly or of a caucus of the General Assembly?
A. No, sir.
Q. Have you participated in a formalized interview process other than this one today or the one by the South Carolina Bar?
A. Yes, sir, I have. I was invited by the Columbia Lawyer's Association to introduce myself and I did that on one occasion at one of their general meetings. And I was invited by the Legislative Black Caucus to introduce myself to them as well and, I guess, for interview purposes.
Q. They were not interviews like today, though, were they?
A. No, sir. It probably lasted maybe five -- ten -- fifteen minutes at the most, I would -- I think, from my recollection.
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 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. Other than the initial contact to set up the meeting for the purposes of the screening, no, sir.
Q. And the contact that you had, you called it the Columbia --
A. Lawyer's Association.
Q. Lawyer's Association, they invited you?
A. Yes, sir, they wrote me a letter and invited me.
Q. And the Legislative Black Caucus, they invited you?
A. Yes, sir, they wrote me -- invited me by way of letter.
Q. Thank you, sir.
SENATOR MOORE: Mr. Chairman?
THE CHAIRMAN: Yes, Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. Mr. Geathers, do you recall the date you were first contacted by the Bar regarding interview scheduling?
A. Yes, sir, it was last week, Monday.
Q. The 3rd. What date did the interview take place?
A. It was on Wednesday, which would be the --
Q. The 5th.
A. Yes, sir.
Q. Thank you. Where did the interview take place?
A. At the Bar Building.
Q. Here in Columbia?
A. Yes, sir.
Q. How many interviewers participated in your interview?
A. Two.
Q. Do you recall what part of the state they reside?
A. One interviewer was Betsy Gray and I assume she's from Columbia, and the other interviewer was Bob Erwin and he's currently in Myrtle Beach and has plans of moving to Greenville.
Q. Did you have any previous acquaintance with either of the interviewers?
A. No, sir.
Q. Did you furnish a list of references?
A. Yes, sir.
Q. How many?
A. Five independent of the listing provided in my Personal Data Questionnaire.
Q. Do you have any knowledge if they were contacted?
A. No, sir.
Q. When and how were you notified of the results?
A. I received a letter, I believe it was the earlier part of this week or last -- the end of last week, I can't recall, but it was by letter.
Q. Somewhere around January 10th?
A. Yes, sir.
THE CHAIRMAN: Further questions? Thank you, Mr. Geathers.
MR. GEATHERS: Thank you.
THE CHAIRMAN: The next applicant is Alison Renee Lee.
ALISON RENEE LEE, having been duly sworn, testified as follows:
THE CHAIRMAN: Have you had a chance to review the Personal Data Questionnaire Summary?
MS. LEE: Yes, I have.
THE CHAIRMAN: Is it correct?
MS. LEE: It's correct except for I'd like to make one addition, please. Under the CLE requirements, I did have one additional hour of credit which was obtained in November of 1993.
THE CHAIRMAN: Other than that change, is the Personal Data Questionnaire correct?
MS. LEE: That's correct.
THE CHAIRMAN: Do you have any objection to our making that summary a part of the record of your sworn testimony?
MS. LEE: None.
THE CHAIRMAN: It will be done at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Alison Renee Lee
Home Address: Business Address:
141 Silver Lake Circle S. C. Legislative Council
Columbia, SC 29212 P. O. Box 11489
Columbia, SC 29202

2. She was born in Washington, D.C. on September 17, 1958. She is presently 35 years old.

4. She was married to Kenzil Franklin Summey on May 3, 1986. She has two children: Julian Christopher Summey, age 5, and Amanda Leigh Summey, age 2.

5. Military Service: N/A.

6. She attended Vassar College, September 1975 to May 1979, Bachelors of Arts degree; Tulane University School of Law, September 1979 to May 1982, J.D.; University of Grenoble, France -Summer 1980; and the University of South Carolina Law School - Summer 1984.

8. Legal/Judicial education during the past five years:
She has generally received more than the required number of credits for each year, carrying over 12 credits for the following year.
1989: carried over credits from 1988
Current Developments in Employment and Labor Law (10.0)
Employment and Discrimination Law under the New Supreme Court (2.0)
1990: carried over credits from 1989
Current Developments in Labor and Employment Law (10.5)
Appellate Practice in South Carolina (6.5)
1991: carried over credits from 1990
Criminal Practice (7.17)
Legal Compliance with the Americans with Disabilities Act (3.0)
Evidence Law Update (6.0)
1992: carried over credits from 1991
Problem, What Problem? (Ethics) (6.0)
1993: Restructured State Government (6.0)
Civil Law Update I (3.0)
Civil Law Update II (3.0)
Education Financing in South Carolina (2.0)
Criminal Practice (upcoming) (6.5)

9. Taught or Lectured:

JCLE - Basic Elements of Proof in the Family Court - Topic: Settling the Family Court Appeal (August, 1985)

Basic Federal Practice - Topic: Pretrial Orders, Sanctions & Local Rules (September, 1985)

12. Legal experience since graduation from law school:

1982-1984 Law Clerk of Judge Israel Augustine then Judge C. Tolbert Goolsby.
1984-1989 Associate, McNair Law Firm, P.A., primarily litigation in contract or consumer related issues. Last two years employment and labor law related litigation.
1989-present Legislative Council drafting legislation and amendments for the members of the General Assembly in areas of highways, crimes, corrections and prisons, and education.

13. Rating in Martindale-Hubbell: She is not rated to her knowledge. She was listed as an associate with McNair Law Firm, P.A.

14. Frequency of appearances in court:
Answers for 1984-1989 time period
Federal - 90%
State - 10%
Other - some cases included representation before an administrative hearing officer

15. Percentage of litigation:
Civil - 90%
Criminal - 5%
Domestic - 5%

16. Percentage of cases in trial courts:
Jury - 20%
Non-jury - 80% (matters resolved on motions or settled)

Most often as associate counsel, although some matters were as sole counsel or as lead counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) McClain v. Westinghouse, et al. - involved employment related claims of race and sex discrimination, sexual harassment and equal pay claims. She represented Westinghouse. It was resolved on summary judgment in an opinion that was over 100 pages.
(b) U. S. Department of Labor v. Fluor Daniel Construction. This was a trial of alleged violations of OSHA standards. It was a four-week trial before an administrative law judge in Paducky, Kentucky and Nashville, Tennessee. Penalties in excess of $10,000 was involved. It was settled before appeal.
(c) Eun Mee Oh v. Kyoto Japanese Steak House. This involved personal injury claims against Kyoto involving severe burns to the face and upper body. She represented the Plaintiff in Federal Court. The case was settled.
(d) State v. Norris Stroman. She was appointed with lead counsel to represent Stroman in a murder case. The trial was in Richland County. There was a verdict for the Defendant.
(e) Atkinson v. Citicorp Acceptance Corporation. She represented Citicorp in a case involving claims of unfair debt collection practices. It was resolved on summary judgment in favor of Citicorp in Federal Court.

18. Five (5) civil appeals:
(a) Purdie v. Small, 293 S.C. 216 (Ct. App. 1987) This was a custody dispute involving a New York court order and enforcement in South Carolina.
(b) Hooten v. Carolina Treatment Center, 300 S.C. 37 (Ct. App. 1989) This was a breach of contract dispute involving interpretation of liquidated damages clause among others.

40. Expenditures Relating to Candidacy:
Stationery - $97.65
Printing - $34.65
Postage - $49.59
Telephone - $20.88

45. Bar Associations and Professional Organizations:
American Bar Association (until 1990); Richland County Bar Association (until 1990); Associate Commissioner, Board of Grievances and Discipline (1987-1989); Young Lawyers Division representative to the Committee on Continuing Legal Education (July, 1987 - June, 1988)

46. Civic, charitable, educational, social and fraternal organizations:
Planning Committee, United Way of the Midlands (1985-1990), Agency Review Subcommittee and Demonstration and Development Funding and Admissions Subcommittee (Chairman), Advisory Board, Project Blueprint, United Way of the Midlands; Board of Directors, Richland County Department of Social Services (1984-1988); Columbia Chapter Links, Inc. (1987-present), Corresponding Secretary (1990-1993), Vice President (1993-1994); Columbia Chapter Jack and Jill of America (1993); St. Peters Catholic School Board (1993-1996); St. Peters Catholic Home School Association, Chairman of By-Laws Committee (1993-1994)

48. Five (5) letters of recommendation:
(a) Ms. Lois M. Snipes, Vice President
First Citizens Bank
P. O. Box 29, Columbia, SC 29202
733-2070
(b) Richard J. Morgan, Esquire
McNair and Sanford, P.A.
P. O. Box 11390, Columbia, SC 29202
799-9800
(c) G. Anderson Surles
Director, Judicial Services
South Carolina Supreme Court
P. O. Box 50447, Columbia, SC 29250
734-2360
(d) Carolyn Holderman
Guest Relations, Richland Memorial Hospital
#5 Richland Medical Park, Columbia, SC 29203
434-6237
(e) Clarence Davis, Esquire
Nelson, Mullins, Riley & Scarborough
P. O. Box 11070, Columbia, SC 29211
799-2000

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 applicable law enforcement agencies, the Richland County Sheriff's Office, Columbia City Police Department, are both negative. SLED and FBI records are negative. Judgement Rolls of Richland County are negative. Federal court records are negative. No complaints or statements have been received and no persons have asked to be present to testify against you. Prior to turning you over to Mr. Elliott for questioning, I would offer you the same opportunity that was offered the others to make a brief opening statement.
MS. LEE: I would like to thank the committee for that opportunity, but I waive at this time.
THE CHAIRMAN: Thank you very much. Mr. Elliott.
MR. ELLIOTT: Thank you.
MS. LEE - EXAMINATION BY MR. ELLIOTT:
Q. You had been associated with the McNair Firm for five years, 1984 to 1989.
A. That's correct. Mr. Elliott, if you would please speak up in the mike a little bit better so I can hear you.
Q. Sorry. Tell us a little bit about your litigation experience during that period of time.
A. During that period of time, I came in as an associate. The cases I handled were basically contract or some tort disputes, mostly contract claims. Near the end of that time period -- I was in a litigation section for approximately three years. During that time they were mostly contract disputes or tort disputes. There was some other areas, including criminal law defense work. There were some claims regarding consumer protection. There was a variety of cases.

After that point I changed sections within the firm. You may be aware that the firm specializes in various sections within the law firm. I then moved to the corporate and tax section for about -- for one year. During the time that I was there, instead of doing corporate and tax work I ended up doing labor and employment law work and spent the last two years at the firm doing employment and labor law related litigation.
Q. How would you describe the volume of litigation you handled? It must have been substantial if you were at one point in time in the litigation section.
A. There were quite a number of cases that I handled, not always as sole counsel. The majority of them were either as co-counsel -- the majority of them were co-counsel or provided some support function with respect to cases that were handled. But most of them, as I said, were lead counsel -- or not as lead counsel but as co-counsel. The volume of them -- most of it was federal court practice and not state court practice, but there were probably about several hundred that I handled throughout the course of the entire time that I was there, in some form or fashion.
Q. What were your responsibilities as co-counsel?
A. They could range anywhere from drafting responsive pleadings to interviewing witnesses to depositions to brief writing to motions in court to appeals, a wide range of activities.
Q. Do you think that experience is going to be beneficial to you or would it make any difference if you didn't have any litigation experience?
A. I think certainly litigation experience is helpful in regards to the basic skills that you would need to carry forward into whatever other functions that you wish to have as a practicing lawyer. They provided me the opportunity to do research, to write -- and writing; the opportunity to interview witnesses; in case of depositions, to flesh out issues that may have been part of the case; brief writing on the appeal; the actual arguments in court. I think it provided a wide range of opportunities.
Q. What do you consider to be your weaknesses in the areas of substantive and procedural administrative law and what would you do to correct those?
A. Certainly, I think it would be difficult to be familiar with each and every agency law and regulation that the Administrative Law Judge Division will end up handling. But what you need to bring with you is the ability or the skills needed in order to determine what you need to find out, the research skills, the writing skills, the ability to ask questions, ability to be able to go and -- go forth and find or determine where you need to go to obtain your answers.

I think that also that -- what I would do in order to try to familiarize myself is to research the law of a particular agency if that case is before me, to read any pleadings or other documents that may have been submitted with respect to that; if necessary, familiarize myself with the case law that may be available in that particular area.
Q. Have you undertaken any of this study to date?
A. I have not specifically undertaken any study, no. One of my functions with the Legislative Council, we do -- our office is responsible for handling the promulgation of regulations. I have reviewed the statutes that relate to the creation of the Administrative Law Judge Division; I have reviewed the changes as they relate to regulations and how the regulation process would be impacted.

I'm not as familiar with the contested case area, but certainly that is something that would have to be undertaken as cases come along and prevent problems.
Q. You said you looked at the regulation area. Have you given any thought to what the reasonableness and needs standard means?
A. No, I have not specifically thought about it. I think the terms are, of course, subject to interpretation. But in my mind what it means is, it means the balancing, basically, of the agency's need to promulgate or to have regulations in a particular area, balancing that against the public need and the need of private individuals, particularly for litigants that may come before those agencies.
Q. What are you doing and what do you plan to do to avoid any kind of conflict between your public employment, working at Legislative Council, and your efforts to become an administrative law judge? You know, legislators are coming to you seeking -- asking you to draft legislation. How are you handling that and how will you handle that?
A. There are -- I consider myself to be a professional. There are mechanisms within our office that would allow a member to come in and to request that work be done, and, as you may be aware, we specialize in certain areas. Oftentimes a member may come in and not know which attorney to see. Those people usually go and talk with the Code Commissioner who then assigns the work. There are those steps that are available so that I can alleviate some of my contact with the members in that area.

I've also taken steps not to have access to the House and Senate chamber floors. As a member of the Legislative Council, I'm able to go in and discuss with members, if necessary, particular pieces of legislation and I have made a decision not to even approach the floor so that I can avoid any appearance that I may be using that office as a method of gaining access to members to discuss my candidacy.

And, of course, once this committee issues its report and we have been authorized to go forward and seek pledges, then I will take annual leave as necessary to accomplish that.
Q. What is your understanding of your ethical responsibilities as far as any work in political campaigns or in the area of an advancement of some issue in the political arena?
A. I understand that it is prohibited, and as a member of the Council I have gone so far as not to be associated with any political campaigns even though it may be allowed at this particular time.
Q. You indicated that you are Chairman of the By- Laws Committee for St. Peters Catholic Home School Association?
A. That's correct.
Q. It's not clear at this time whether home schooling matters will come before an ALJ, but if they do how would you handle those?
A. Certainly, if it relates to St. Peters I would definitely recuse myself. But because I may be familiar with a particular area or be familiar with by- laws on home school associations generally does not mean that I would necessarily have to recuse myself from a particular case.
Q. Have you ever been sanctioned or held in contempt by a court?
A. No, I have not.
Q. Have you ever been disciplined in the course of your employment?
A. No, I have not.
Q. Have you sought directly or indirectly the pledge of a legislator for you for the position of an administrative law judge?
A. No, I have not.
Q. Are you aware of any efforts without your request to -- for votes -- to solicit votes for you as an administrative law judge?
A. No, I'm not.
Q. And I note, I think, with regard to your campaign contributions, you need to make a filing with the House and Senate Ethics Committees.
A. For this particular quarter, beginning January?
Q. Did you not have over $100.00 in expenditures?
A. I did have over $100.00 of expenditures. I'll make sure that that's done.
Q. Thank you.
THE CHAIRMAN: Questions from the Members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Thank you. Have you sought the endorsement of any group of members of the General Assembly or any caucus of the General Assembly?
A. No.
Q. Have you participated in a formalized interview process other than the one today or the one by the South Carolina Bar?
A. Yes, I have.
Q. Tell me about those.
A. I was contacted by letter by the South Carolina Legislative Black Caucus and asked if I would like to participate in an interview with them to discuss my qualifications. I met with two members of that body. We discussed my qualifications, much as we've done today and much as was done with the South Carolina Bar, and they indicated to me that there would be no action on their part with respect to endorsing any particular individual until after this committee had -- had issued its report. And I did not offer a pledge and -- I did not ask for a pledge and they did not offer a pledge.

I also participated with the Columbia Lawyer's Association. They sent me a letter asking if I would participate in introducing myself to their body; I responded to that. There was not a formal interview process.
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. Other than conversations with respect to when the hearing was and providing information to them, no, I have not.
Q. And that would be what everybody else has talked about, the two or the three or the one, depending on what roll apparently you got?
A. Well, I -- they sent out a letter which was returned to them, so they contacted me about giving me that letter, and it was hand delivered to me, which was my first indication that they were actually conducting a screening process. I then responded to them with materials and it necessitated phone calls with them about delivering those materials, and then I was contacted by a member of their screening committee about setting up the interview.
Q. Thank you.
THE CHAIRMAN: Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. Ms. Lee, in regards to the Bar interview, do you recall what date you were contacted by the Bar representative to schedule the interview?
A. I was first contacted by telephone before New Year's and I was on annual leave and did not receive the call. I was contacted again on January 3rd, which I believe was a Monday, asking me to appear before the Bar Screening Committee on January the 5th, which I believe was Wednesday, at 10:00, and I appeared at that time at the South Carolina Bar Building.
Q. How many interviewers participated in your interview?
A. Two.
Q. Do you recall what sections of the state they reside?
A. I believe one was from Greenville and one was from Lexington.
Q. Did you have any previous acquaintance with either?
A. I had met the -- Donnie Myers was the person from Lexington and I had met him some time ago, but had had no contact with him since that first meeting.
Q. Did you furnish a list of references?
A. Yes, I did. I furnished a list of five references independent of those provided to this committee.
Q. Do you have any knowledge if they were contacted?
A. I know that two of them were contacted.
Q. When and how were you notified of the results?
A. A letter was hand delivered to me on Monday, January 10th.
Q. Thank you.
THE CHAIRMAN: Thank you, sir. Other questions? Thank you, Ms. Lee.
MS. LEE: Thank you.
THE CHAIRMAN: William Kenneth Moore.
WILLIAM KENNETH MOORE, having been duly sworn, testified as follows:
THE CHAIRMAN: Mr. Moore, have you had a chance to review the Personal Data Questionnaire Summary?
MR. MOORE: Yes, sir.
THE CHAIRMAN: Is it correct?
MR. MOORE: Yes, sir. One addition. Several days ago I purchased a hundred shares of Proteon stock at $6.00 a share -- or $6.25, it promptly went down to $6.00. Other than that, nothing.
THE CHAIRMAN: That sounds familiar to most of us. Any other changes?
MR. MOORE: No, sir.
THE CHAIRMAN: If not, do you have any objection to our making the summary a part of the record of your sworn testimony?
MR. MOORE: No, sir.
THE CHAIRMAN: It will be done at this point in the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. William Kenneth Moore
Home Address: Business Address:
54 Doe Drive S. C. Attorney General
Little Mountain, SC 29075 P. O. Box 11549
Columbia, SC 29211

2. He was born in Augusta, Georgia on October 5, 1949. He is presently 44 years old.

4. He was married to Patricia Deleon on October 23, 1971. He has three children: Jessica Lauren, age 10; Alexzandra Jordan, age 8; and Eric Mitchell, age 5.

5. Military Service: November, 1971 - September, 1973; U.S. Army; Specialist 4th Class; ***-**-****; Honorable Discharge

6. He attended Augusta College in Augusta, Georgia, September, 1967 - August, 1971, B.A. Degree; the University of Alaska in Anchorage, Alaska, September, 1973 - May, 1974 (left to attend law school); and the University of South Carolina School of Law, June, 1974 - December, 1976, J.D.

8. Legal/Judicial education during the past five years:
He has attended at least 12 hours of continuing legal education approved by the Commission on Continuing Lawyer Competence during the last five years. The general courses of study have included professional responsibility, criminal law, civil law updates and others.

9. Taught or Lectured: He has taught the subject of Code of Judicial Conduct at orientation courses for new magistrates and municipal judges. He has lectured at the Bridge the Gap program on the subject of Professional Responsibility.

12. Legal experience since graduation from law school:
In May, 1977, he began employment at the Attorney General's office. He was assigned to the post conviction section in the Criminal Division. In 1979, he became chief of the section. His primary duties included post conviction cases and prosecution of criminal cases. In 1982, he moved to the Consumer Fraud section of the office. Since 1982, he has become Assistant Director of the Criminal Division with his primary duties in the area of consumer fraud, antitrust, criminal appeals, prosecution of judicial standards cases and attorney grievance cases. He has also represented state agencies in various matters, including contested cases.

13. Rating in Martindale-Hubbell: He has not been listed in Martindale-Hubbell since he has not been engaged in private practice.

14. Frequency of appearances in court:
Federal - rarely
State - often
Other - He has prosecuted a number of judicial standards and attorney grievance matters before hearing panels during that time.

15. Percentage of litigation:
Civil - 75%
Criminal - 25%
Domestic - 0%

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

Sole Counsel or Associate Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Matter of Johnson, 302 S.C. 532. A judicial standards case in which the S. C. Supreme Court held that funds collected by a probate judge for having conducted hearings for the DMH should have been turned over to the county treasurer.
(b) Matter of Bowers, 400 S.E.2d 483. An attorney grievance matter in which the
S. C. Supreme Court held that compulsive gambling was no defense to conduct which otherwise warranted disbarment.
(c) Shaw v. State of S.C., 276 S.C. 190. A post conviction case by which Shaw unsuccessfully challenged his death sentence. Shaw and a co-defendant had been the first persons sentenced to the death penalty under S. C.'s present death penalty statute.
(d) Matter of Dobson, 427 S.E.2d 166 (1993). An attorney grievance case in which the S. C. Supreme Court found misconduct and rejected arguments for a statute of limitations in attorney grievance cases.
(e) Matter of Rollins, 281 S.C. 467. An attorney grievance case in which the S. C. Supreme Court reaffirmed that conduct which does not involve actual practice of law is subject to scrutiny and discipline.

18. Five (5) civil appeals:
(a) Matter of Johnson, S. C. Supreme Court (see, #17a).
(b) Matter of Bruner, S. C. Supreme Court (attorney grievance case), 283 S.C. 114 (1984).
(c) Matter of Dobson, S. C. Supreme Court (see #17d), 427 S.E.2d 166 (1993).
(d) State of S. C. ex rel McLeod v. Coates, et al., S. C. Court of Appeals, 281 S.C. 86.
(e) Hayden v. State of S.C., S. C. Supreme Court, 278 S.C. 610 (1983).

25. Occupation, business or profession other than the practice of law:
None he graduated from law school in 1977.

45. Bar Associations and Professional Organizations:
He is a member of the South Carolina Bar.

47. He has practiced law for approximately 16 years. During that time he has handled civil or criminal cases in all 16 judicial circuits in the state. He has handled jury and non-jury cases. He has briefed and argued cases before the S. C. Supreme Court, the S. C. Court of Appeals and the Court of Appeals for the Fourth Circuit. He has also represented state agencies in administrative matters, including contested cases.

For the past several years he has handled many cases on behalf of the Board of Commissioners on Grievances and Discipline. He has prosecuted the cases before the hearing panels and has briefed and argued the cases before the S. C. Supreme Court.

During the past six years he has handled a number of matters on behalf of the S. C. Judicial Standards Commission. He has prosecuted judicial standards cases before the Commission and the S. C. Supreme Court. In addition, he has taught courses on the subject of the Code of Judicial Conduct, and he has agreed to assist the Board of Magistrate Certification by lecturing on the subject of judicial ethics.

48. Five (5) letters of recommendation:
(a) Dru H. Carter, Branch Manager
State Credit Union, Main Street Office
Columbia, SC 29201
343-0300
(b) Charles H. Richardson
365 Big Timber Drive, Lexington, SC
734-3685
(c) Harold O. Brown
100 Hickory Knob Hill Road, Irmo, SC 29063
781-7797
(d) Donald J. Zelenka
P. O. Box 11549, Columbia, SC 29211
781-0185
(e) James G. Bogle, Jr.
Assistant Attorney General
6523 Olde Knight Parkway, Columbia, SC 29209

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 applicable law enforcement agencies, that being Richland County Sheriff's Office, Columbia City Police, SLED and FBI, are all negative. Judgement Rolls of Richland County are negative. Federal Court records are negative. No complaints or statements were received. No witnesses are present to testify against you. Prior to turning you over to Ms. McNamee for questioning, I give you the same opportunity as the others and that's to make a brief opening statement.
MR. MOORE: And I'll waive, Mr. Chairman. Thank you.
THE CHAIRMAN: Thank you very much, Mr. Moore. Ms. McNamee.
MS. MCNAMEE: Thank you.
MR. MOORE - EXAMINATION BY MS. MCNAMEE:
Q. Mr. Moore, would you please tell the committee the most important thing that everyone here needs to know about you and your candidacy for an administrative law judge?
A. I think the most important thing that you need to know are actually two or three things. Number one is I think I have a broad base of experience that qualifies me for this job. I've been working for sixteen and a half years at the Attorney General's Office, so I obviously don't move from job to job very easily or very quickly.

I've handled cases in all sixteen judicial circuits in the state and I've handled judicial standards matters. I've handled the complex and the mundane. I've been in Magistrate's Court, the Supreme Court, Court of Appeals, so I think I have a broad -- extraordinarily broad base of experience.

The other thing, I think, is my ability and my understanding of the need to be fair, because I think that's what determines whether or not a judge is a good judge, is whether the person is fair. And I think I have
-- if you talk to people that I've been associated with over the past sixteen and a half years, they will uniformly say, I hope, that Ken Moore is a fair person.
Q. That goes right into my next question. In those sixteen and a half years you've had a chance to observe many judges, and I wondered if you would share with the committee what you thought were the other qualities, aside from being fair and that's most important as I understand your testimony, the other qualities that are very important for a judge and for an administrative law judge?
A. Well, I think the most important thing not only for a judge but I think for just about anybody is to understand
-- you have to understand my general philosophy of life, which is basically treat people like you would like to be treated. That means honestly, sincerely, fairly and with respect and courtesy, and I think those are the hearts of not only a good judge but basically a good legislator or a good person in general.
Q. You have experience most recently, I guess, in criminal -- more experience, let me say, in criminal appeals and the attorney grievance and judicial standards areas. You also say, though, in your PDQ that you represented the state in various other matters in contested cases. Could you give us an example of some of those?
A. Well, several years ago I handled matters for the Board of Penal Services, contested cases before that board. I presently handle matters for the Auctioneers Commission. I'm their AG's representative so I advise them and appear at hearings if they need me to appear. Those are the two agencies that I've had the most contact with.

The Board of Commissioners on Judicial Standards and the Attorney Grievance section, those are not purely, I don't think, administrative law related work, but I've done a lot of work for them also.
Q. How will the Auctioneer's Commission use you? What do you do for them?
A. I generally -- I give them legal advice when they need legal advice. If they have a contested hearing I will appear at the hearing to advise the board. I will assist them in drafting orders, preparing final orders. I represent them, of course, on appeal. We have at least one case right now. In fact, I think we have only one case right now. It's on appeal to the Circuit Court and I, of course, will represent them in that proceeding.
Q. What is your understanding of why the Administrative Law Judge Division was established?
A. Well, I think it was established and I believe that the motivation was simply to bring about what I perceive is going to be a substantial improvement in the administrative law system in this state. I think the Administrative Procedures Act itself went a long way to doing that, but I don't think it's complete, that the system would be completely in place until you have professional administrative law judges who are trained in the law to hear these cases. And I think that will substantially improve the administration of that whole system, and I believe that was the motivation.
Q. What is your opinion, your estimation, of the work load of these three administrative law judges?
A. I think for the -- in the beginning, I think it's going to be an enormous work load. I think there are going to be many, many cases that will need to be heard. There are some 40 agencies, occupational licensing boards, that will be affected and I'm certain they must have plenty of cases sitting over there that will be waiting to be heard on March 1st. And I think it's going to be very important, then, for the Legislature to elect people who are well qualified to handle these cases, because I really think it's going to be an enormous work load the first -- initially, especially for the first three people elected. I think it will continue to be, but I think this breaking in period, trying to get it organized, trying to get it up and rolling and actually rolling, I think are going to be an enormous project for the administrative law judges.
Q. I realize you did not offer for the first seat, so you will not have the administrative responsibilities, but what are your ideas on setting up this initially?
A. Well, my ideas is that there should be a person elected as chief judge, I think, who has very good organizational skills and -- because getting this creature started and running is going to be -- I think someone is going to need some good management and good organizational skills.

I hope that the chief justice will look to other people, the other administrative law judges, to assist in that process and set it up. And, frankly, I think he's going to need to because I think it's going to be quite a task. I suppose you could look at the Court of Appeals for at least a little bit of guidance as to how it got started from ground zero to where it's operating now.

But my general thoughts are that I'd like to be able to help in organizing the division, determining what cases will be heard, when, by whom and try to help with that.
Q. What is your understanding of your -- the participation of the administrative law judge in the rule- making proceedings?
A. As I understand it, they'll preside at the hearings, the public hearings at least, on rules. Of course, they have to develop their own rules and regulations for the Administrative Law Division and I assume that those would be -- that will be another thing that the administrative law judges will obviously need to devote themselves to quickly because I think we'll need some rules and regulations in place for the operation of the court itself.
Q. And, though, I was talking, you know, about the hearings that you would be presiding over.
A. Right.
Q. How would you decide the standard of reasonableness and need, how do you expect to go about looking at that?
A. Well, I think you've got to go about it on a case by case basis, obviously. You've got to look at the needs of the agency, what are the needs of the agency. And the reasonable, I think, is -- you know, obviously, if it's arbitrary and capricious on its face, that's an easy case.

Hopefully, agencies won't submit that type of a regulation. So you're going to have to examine them to determine based on the needs of the agency vis-a-vis the needs of the public and the needs of those people that are licensed under those -- for example, under those occupational licensing boards.
Q. Do you see that as an arduous task?
A. Arduous? I think it will be involved. I don't think it will be -- certainly, it wouldn't be anything I couldn't handle. Yeah, it could be arduous. Like, there could be a lot of regulations out there that need to be enacted on behalf of a lot of different agencies, sure.
Q. What would you say has been your most difficult administrative law case experience in life?
A. I'm not sure I can easily identify one. I think they all have had with them some -- if you're talking about purely contested hearings, I suppose that we have one now with the Auctioneer's Commission that involves a simple question of -- although it seems simple on it's face, it's on appeal to the Circuit Court on just the interpretation of the statute itself and it's going to be a question that's going to require some extensive research, I think, to try to reach a position I think that's favorable to the agency. I think they're right and I'm sure that it'll be interesting on appeal.
Q. Could you please describe your method of separating your work as a state employee from your effort at obtaining this position?
A. Well, what I intend to do, of course, is take annual leave, like I did today, whenever I do anything that relates to either appearing at a hearing like this or, for example, I appeared before the Bar the other day, I took annual leave, and I expect I'll certainly continue to do that. I'm committed to do that.
Q. We do not have any expenditure report from you. Have you made any expenses --
A. No, ma'am, I have not even mailed letters to the legislators. I intend to wait until after the screening process is complete to do that.
Q. Have you ever been held in contempt?
A. No, ma'am.
Q. Or sanctioned by a court for any reason?
A. No, ma'am.
Q. Have you ever been the subject of a disciplinary action arising out of your employment?
A. No, ma'am.
Q. I guess this question you have already answered. Have you sought directly or indirectly the pledge of a legislator --
A. No, ma'am.
Q. Are you aware of any solicitation done that was done on your behalf?
A. No, ma'am.
THE CHAIRMAN: Questions from the members? Senator McConnell.
SENATOR MCCONNELL: Thank you.
EXAMINATION BY SENATOR MCCONNELL:
Q. Have you sought the endorsement of any group of members of the General Assembly or a caucus of the General Assembly?
A. No, sir.
Q. Have you participated in a formalized interview process other than the one today or the one with the South Carolina Bar Association?
A. No, sir.
Q. Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the South Carolina Bar Screening Committee, the Bar's 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. Mr. Moore, do you recall the date you were contacted by the Bar as to scheduling your interview?
A. Yes, sir, I think it was January 4th.
Q. January 4th?
A. Yes, sir.
Q. When did the interview take place?
A. The following day.
Q. January 5th. Where did it take place?
A. At the Bar offices.
Q. How many interviewers participated in your interview?
A. Two.
Q. Do you recall what section of the state they reside?
A. Yes, sir, Greenwood and Beaufort.
Q. Did you have any previous acquaintance with either of the interviewers?
A. No, sir. I knew by name the fellow from Greenwood. I had met previously the gentleman from Beaufort.
Q. Did you furnish a list of references?
A. Yes, sir, I furnished five and I believe they also used the references that were furnished to this committee.
Q. The same five?
A. No, sir, a different five.
Q. Oh, additional five?
A. Yes, sir.
Q. Okay. Do you have any knowledge if they were contacted?
A. I know at least one was contacted.
Q. When and how were you notified of the results?
A. I believe, Senator Moore, I was notified on the 10th -- I know I was notified by letter, and I believe it was on the 10th. I'm not absolutely certain about that date, but it was by letter that was delivered to my office.
Q. I see you were born in Augusta and you went to Augusta College. Do you live in Augusta?
A. I lived in Augusta -- I grew up -- till the first grade and then my folks moved to Beach Island because my father worked at the bomb plant, which is what we all called it. And so I grew up in Beach Island and went to Augusta College.
THE CHAIRMAN: Other questions? Thank you, Mr. Moore.
MR. MOORE: Thank you.
THE CHAIRMAN: Virginia Lynn Wiggins. Ms. Wiggins, would you come forward, please?
VIRGINIA LYNN WIGGINS, having been duly sworn, testified as follows:
THE CHAIRMAN: Have you had a chance to review your Personal Data Questionnaire Summary?
MS. WIGGINS: Yes, sir.
THE CHAIRMAN: Is it correct?
MS. WIGGINS: Yes, sir.
THE CHAIRMAN: Any amendments or clarifications which need to be made?
MS. WIGGINS: No, sir.
THE CHAIRMAN: Is there any objection at this time to making the summary a part of the record of your sworn testimony?
MS. WIGGINS: No objection.
THE CHAIRMAN: That being the case, we'll do it at this point in the transcript.

PERSONAL DATA QUESTIONNAIRE SUMMARY

1. Virginia Lynn Wiggins
Home Address: Business Address:
142 A. B. Frye Road 1328 Blanding Street
Lexington, SC 29073 Columbia, SC 29201

2. She was born in Hazelhurst, Mississippi on August 21, 1951. She is presently 42 years old.

4. She was previously divorced on March 28, 1980; Lynn W. Rickenbaker (moving party); Family Court of the Sixth Judicial Circuit (Winnsboro); habitual drunkenness (grounds). She was married to Donald Edward Jonas on December 7, 1986. She has no children.

5. Military Service: N/A

6. She attended Midlands Technical College, 1971, A.S.; the University of South Carolina, 1984, B.A.; and the University of South Carolina School of Law, December, 1986, J.D.

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

1992; 19.50 hours, Probate, Torts, and Westlaw training; 5.00 hours,
Ethics
1991; 10.25 hours, Real Estate, Probate; 3.00 hours, Ethics
1990; 12.00 Hours, Real Estate
1989; 11.00 hours, Torts
1988; 6.00 hours, Worker's Compensation

9. Taught or Lectured:
Midlands Technical College - Paralegal Division - Wills, Trusts and Estates (approximately 5 semesters)
Columbia Junior College - Center for Paralegal Studies - Wills, Trusts and Estates - Introduction to Law (approximately 3 semesters)

12. Legal experience since graduation from law school:

1987-1990 General Practice, including real estate closing, litigation, probate, Social Security Disability, Worker's Compensation and Family Law
1990-1991 Real Estate, Probate, Social Security Disability and Family Law
1991-1993 Probate, Social Security, Family Law and Litigation Support for Partner

13. Rating in Martindale-Hubbell: She is listed, but not rated.

14. Frequency of appearances in court:
Federal - 4 to 5
State - 10 to 12
Other - Social Security Administration - 15
Worker's Compensation Commission - 5
Family Court - 20 to 25

15. Percentage of litigation:
Civil - 40%
Criminal - 0%
Domestic - 60%

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

Jury - Associate Counsel
Non-Jury - Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Action for termination of parental rights of prisoner and adoption by step-parent. Action was contested by prisoner, who was represented, and involved issue of whether incarceration constituted abandonment under South Carolina law. Prisoner appealed order terminating his rights, which appeal he later abandoned.
(b) Action to overturn adoption proceeding for fraud against Department of Social Services and Children's Unlimited. Issued involved non-disclosure of children's histories and intentional concealment. Case of first impression in South Carolina. Case settled by D.S.S. who agreed to take the children back into the system.
(c) Social Security benefits obtained for 36-year-old accountant suffering from torticollis. Significant for the young age of the claimant and rareness of disease.
(d) Social Security benefits obtained for 40-year-old assembly line worker with brain tumor. Significant because of age of claimant and fact she had a history of other kinds of skills which might have been transferrable.
(e) Action by restaurant owners/tenants against landlord for breach of lease, which resulted in judgment against the landlord for tens of thousands of dollars in repairs, renovations and penalties. It was significant for the willful contempt and inaction of the landlord necessitating a hotly contested and lengthy trial before the Master-in-Equity.

18. Five (5) civil appeals:

None.

24. Unsuccessful Candidate:
1990 - Lexington County Probate Judge

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

1987-present Managing Partner, Jonas and Wiggins Law Firm
1984-1987 Law Student Law Clerk, Donald E. Jonas, Attorney at Law; Research Assistant/Managing Editor of Journal of Law and Education, Edited by Professor Eldon D. Wedlock
1982-1984 Legal Secretary/Office Manager; Donald E. Jonas, Attorney at Law
1981-1982 Legal Secretary/Office Manager; Jerrie J. Mealing, Attorney at Law; and Southbridge Properties
1/81-5/81 Executive Secretary; Intertec Data Systems; Columbia, South Carolina
9/80-12/81 Construction Loan Administrator; South Carolina National Bank; Columbia, South Carolina
5/79-9/80 Real Estate Secretary; Ratchford, Cooper and Jonas, Attorneys at Law; Columbia, South Carolina
11/78-5/79 Personal Injury Assistant; Lourie, Draine, Curlee & Swerling, Attorneys at Law; Columbia, South Carolina
5/76-11/78 Legal Secretary; Carl L. Holloway, Jr., and Russell W. Templeton, Attorneys at Law; Columbia, South Carolina
5/75-5/76 Bartender/Waitress, Paddlewheel Queen, Fort Lauderdale, Florida; and Legal Secretary, Tiballi, Schroeder, Truesdale, Sartory and Beyer, Attorneys at Law; Fort Lauderdale, Florida
11/74-5/75 Bartender; Ground Round Restaurant; Fort Lauderdale, Florida
4/74-11/74 Bartender/Assistant Manager; Italian House Restaurant; Columbia, South Carolina
1/74-4/74 Bartender; Ramada Inn; West Columbia, South Carolina
11/72-11/74 Legal Secretary; Lester and Lester, Attorneys at Law; Columbia, South Carolina
9/71-11/72 Legal Secretary; Rentz, Anders and DeBerry, Attorneys at Law; Columbia, South Carolina
6/71-9/71 Legal Secretary/Receptionist; Burnside and Roof, Attorneys at Law; Columbia, South Carolina
11/70-6/71 Legal Secretary; Kenneth H. Lester, Attorney at Law; Columbia, South Carolina
9/69-6/71 Student; Midlands TEC; Columbia, South Carolina
4/68-8/69 Cashier; Atlantic Twin Theatres; Columbia, South Carolina

26. Officer or Director:
Managing Partner; Jonas and Wiggins, Attorneys at Law - responsible for all day-to-day operations of law firm, including employment, training, financial matters, purchasing, scheduling, etc.

29. Arrested or Charged:
She was arrested on April 7, 1976, for possession of marijuana. The case was dismissed without legal intervention or trial.

30. Federal, State or Local Investigation:
Other than No. 29 above, no.

32. Sued: Danny and Donna Bryant v. V. Lynn Wiggins, et al.; Docket No. 93-CP-32-2051; relates to loan closing she handled

45. Bar Associations and Professional Organizations:
Richland County Bar Association; Lexington County Bar Association; South Carolina Bar Association; South Carolina Trial Lawyers Association; South Carolina Women Lawyers Association

46. Civic, charitable, educational, social and fraternal organizations:
Member, South Carolina Bar Pro Bono Program, 1988 to present; Am. Jur., Constitutional Law, 1985

47. The majority of her practice since leaving law school has been before administrative agencies, including the Social Security Administration and Worker's Compensation Commission or in non-jury matters before Circuit Judges, Masters-in-Equity and Family Court Judges. She is very familiar through her practice, with the Administrative Procedures Act and the South Carolina Rules of Evidence and Procedure.

48. Five (5) letters of recommendation:
(a) G. B. Brazell, III, Vice President
SouthTrust Bank
P. O. Box 12106, Columbia, SC 29211-2106
376-2000
(b) Ken H. Lester, Esquire