0001 1 JUDICIAL MERIT SELECTION 2 COMMISSION 3 4 5 EVALUATION OF CANDIDATES 6 BY COMMISSION MEMBERS 7 8 PUBLIC HEARING ON JUDICIAL QUALIFICATIONS 9 VOLUME V 10 11 12 Thursday, December 4, 2008 13 9:38 a.m. 14 The Blatt Building, Room 504 Columbia, South Carolina 15 16 17 REPORTED BY: SONIA I. MENDEZ, Certified Court Reporter 18 ___________________________________________________ 19 20 COMPUSCRIPTS, INC. A Full-Service Court-Reporting Agency 21 Post Office Box 7172 Columbia, South Carolina 29202 22 803.988.0086 888.988.0086 23 www.compuscriptsinc.com 24 25 0002 1 2 JUDICIAL MERIT SELECTION 3 COMMISSION MEMBERS 4 5 SENATE APPOINTEES: 6 SENATOR GLENN F. McCONNELL SENATOR ROBERT FORD 7 SENATOR JOHN M. "JAKE" KNOTTS, JR. PROFESSOR JOHN P. FREEMAN 8 MS. AMY JOHNSON McLESTER 9 HOUSE APPOINTEES: 10 REPRESENTATIVE F.G. DELLENEY, JR. (Chairman) 11 REPRESENTATIVE ALAN D. CLEMMONS REPRESENTATIVE DAVID J. MACK, III 12 JOHN DAVIS HARRELL, ESQ. 13 14 SENATE COUNSEL: 15 JANE O. SHULER, CHIEF COUNSEL 16 J.J. GENTRY KATHERINE WELLS 17 PAULA BENSON 18 HOUSE COUNSEL: 19 BRADLEY S. WRIGHT 20 PATRICK G. DENNIS BONNIE G. GOLDSMITH 21 ANDREW FIFFICK, IV 22 23 24 (INDEX AT REAR OF TRANSCRIPT) 25 0003 1 REP. DELLENEY: I think we need to 2 have a short executive session. 3 SEN. KNOTTS: So moved. 4 REP. DELLENEY: Not really, okay. We 5 don't need an executive session. We'll just 6 proceed right into the screening with Deborah 7 Brooks Durden. We're 15 minutes behind. 8 SEN. KNOTTS: We haven't even started 9 yet, and we're behind. I'm glad you don't drive 10 for NasCar. You'd be starting at the end of the 11 race. 12 (Ms. Durden enters the room.) 13 REP. DELLENEY: Good morning, 14 Ms. Durden. 15 MS. DURDEN: Hi. 16 REP. DELLENEY: We have before us this 17 morning Deborah Brooks Durden, who seeks a position 18 on the Administrative Law Court, seat number four. 19 If you would, Ms. Durden, please raise 20 your right hand to be sworn. 21 Do you solemnly swear to tell the 22 truth, the whole truth and nothing but the truth, 23 so help you God? 24 MS. DURDEN: I do. 25 REP. DELLENEY: Thank you, ma'am. 0004 1 The Judicial Merit Selection 2 Commission has thoroughly investigated your 3 qualifications for service on the bench. 4 Our inquiry has focused primarily on 5 our nine evaluative criteria which have included a 6 survey of the bench and bar, a thorough study of 7 your application materials, verification of your 8 compliance with state ethics laws, a search of any 9 newspaper articles in which your name may have 10 appeared, a study of previous screenings, and a 11 check for any economic conflicts of interest. 12 There are no affidavits filed in 13 opposition to your election, nor are there any 14 witnesses here to testify. 15 Do you have a brief opening statement 16 that you'd like to make? 17 MS. DURDEN: I do. 18 REP. DELLENEY: Thank you, ma'am. 19 MS. DURDEN: Thank you. 20 My name is Deborah Brooks Durden, and 21 I'm running for seat four on the Administrative Law 22 Court. 23 I believe that my experience and 24 ability would make me an excellent choice to fill 25 the empty seat on that court, and I appreciate 0005 1 y'all taking the time to listen to my 2 qualifications this morning. I know you've had a 3 long week, and I'm happy to see so many of you here 4 this morning. 5 I have served for the last 11 years as 6 the assistant chief counsel at the South Carolina 7 Department of Transportation. During that time, I 8 regularly represented SCDOT in a variety of 9 different matters before the Administrative Law 10 Court. 11 I have been very active in protecting 12 the integrity of our Disadvantaged Business 13 Enterprise program by litigating those matters 14 where we have applicants to that program who don't 15 appear to be actually disadvantaged. 16 I have had some very interesting 17 environmental permitting cases. I won a very big 18 case just this past year that I think is going to 19 make -- receiving environmental permits in a timely 20 way much easier for SCDOT and other applicants in 21 that process. 22 I also used to deal with lot of 23 relocation assistance benefits cases but I've sort 24 of worked myself out of a job on that front. I 25 guess I was too successful. A lot of the lawyers 0006 1 who regularly brought those don't bring them any 2 more, very often. So we don't have very many of 3 those any longer. 4 I'm also, I think, directly related to 5 the type of experience that's needed to do this 6 job. I have developed an expertise in statutory 7 construction. During my 11 years at DOT, I've 8 served as the governmental liaison. 9 In that role, I have drafted 10 legislation and amendments and spent a lot of my 11 time evaluating proposed legislation and advising 12 how that language is being interrupted by the 13 court. 14 As you know, the Administrative Law 15 Court is a court of statutory construction because 16 the state agencies are all creatures of statute. 17 The decisions that they make are, in most cases, 18 controlled directly by either a statute or 19 regulation. 20 The majority of the Administrative Law 21 Court decisions aren't decided on constitutional 22 principles or principles that have been developed 23 through case law, but on the statutory and 24 regulatory language. 25 During the last 11 years, I've been 0007 1 responsible for promulgating all of SCDOT's 2 regulations. That's the same process under the 3 Administrative Procedures Act that is used by the 4 Administrative Law Court to hold the regulatory 5 hearing for other state agencies. SCDOT's hearings 6 are handled by our commission, but most other 7 agencies' hearings would go through the 8 Administrative Law Court. 9 I have also been very active in 10 condemnation litigation. As you know, the issue in 11 condemnations is evaluating appraisal testimony, 12 which is the same issue that frequently comes 13 before the Administrative Law Court when they deal 14 with issues of tax challenges, challenges to 15 property tax issues. 16 I think it's a fair question for you 17 to consider when you're looking at any judicial 18 candidate what bias that candidate might bring if 19 they were appointed to the bench. 20 And I would like to assure you that I 21 don't believe I have a bias even though I have 22 worked for 11 years as a government attorney. I 23 don't believe I have a bias toward the government 24 or any particular type of litigant that would 25 appear in the courtroom. 0008 1 I have practiced law in a variety of 2 different settings. And after doing all of those 3 practices, I began my practice with two judicial 4 law clerkships in the Superior Court of Alaska. 5 One of the judges that I clerked for, 6 Karen Hunt, has been a wonderful mentor to me 7 through the years, and it's one of the reasons that 8 I'm so interested in pursuing a judicial office. 9 She was a judge who kept great control 10 of her docket, kept things current, and now retired 11 from the bench but teaches at the National Judicial 12 College. 13 I left there and worked for -- this 14 may be where I do have a little bias -- I think one 15 of the premier insurance defense firms in Alaska 16 for a couple years and enjoyed my practice there 17 representing insurance companies and businesses. 18 And then when I moved back to South 19 Carolina, I practiced with Richard Gergel's firm, 20 which, of course, is a plaintiff's firm where I 21 represented employees and individuals in 22 plaintiffs' matters. 23 Then of course I have been a 24 government lawyer for the last 11 years. One of 25 the things that I've enjoyed about being a 0009 1 government lawyer is that that practice doesn't 2 call for taking real extreme positions. 3 I think you always have to remember 4 that the individual on the other side of the 5 dispute with you is someone whose valid interest 6 also has to be represented by your agency. 7 I believe my track record in the 8 matters that I've litigated for the Department of 9 Transportation demonstrate that I have very good 10 judgment as to which matters to take forward to 11 litigation and which matters to settle. 12 I really feel called to serve South 13 Carolina as Administrative Law Judge, and I believe 14 my experience demonstrates that I would be an 15 excellent judge on that court. If I'm elected, I 16 hope to continue and to build upon the good work 17 that that court is already known for. 18 I do have some specific ideas as to 19 things that I'd really like to accomplish. One is 20 to improve the method that courts' decisions are 21 put online and with some kind of -- with a 22 database. I have some ideas about how they could 23 be made more useable for lawyers who are trying to 24 search for a particular type of case. 25 And I'd like to assist Judge Kittrell 0010 1 in implementing the electronic filing system that 2 he plans to implement. I think that's very 3 important for the Administrative Law Court since 4 court sits here in Columbia and you have parties 5 from all over the state who are required to file 6 things with the court here in Columbia. 7 But of course the most important thing 8 that I would plan to do would be to work diligently 9 to make the best decisions that I could in the 10 matters that came before me, and also to keep my 11 docket correct because I do really believe that 12 justice delayed is justice denied in so many 13 instances. 14 I thank you for considering my 15 candidacy, and I would just like now to answer any 16 questions you may have for me. 17 REP. DELLENEY: Thank you, ma'am. If 18 you would answer any questions that our counsel has 19 for you. 20 MS. DURDEN: Thank you. 21 BY MR. DENNIS: 22 Q. Ms. Durden, you've been handed a 23 couple of documents. One is your PDQ, and the 24 other is a sworn statement that you answered 25 containing about 30 answers concerning demeanor, 0011 1 courtroom management, and other sections. 2 Do you have any amendments to make to 3 either of those documents? 4 A. I do not. 5 MR. DENNIS: At this time, 6 Mr. Chairman, I'd like to ask that those documents 7 be made part of the record. 8 REP. DELLENEY: It will be done at 9 this time point in the transcript of the record. 10 (Exhibit Number 1 was marked for 11 identification.) 12 MR. DENNIS: I'd also like to note for 13 the record that based on the testimony contained in 14 the candidate's PDQ, which has been included in the 15 record with the candidate's consent, Ms. Durden 16 meets the statutory requirements for this position 17 regarding age, residence, and years of practice. 18 BY MR. DENNIS: 19 Q. Ms. Durden, I'm going to be pretty 20 short with you. You were nice to enough to answer 21 most of the questions I had prepared already. 22 I would like to ask you what you 23 believe the appropriate demeanor for a judge would 24 be on the bench, even though you've already 25 addressed that in your sworn statement, if you'd 0012 1 elaborate a little for the commission. 2 A. Well, I think the most important thing 3 is for the litigants in the court to have 4 confidence that the judge is going to be fair to 5 them and hear them out, and doesn't have any kind 6 of a bias against them. 7 So I think it's very important for a 8 judge never to exhibit anger or impatience with the 9 parties in front of the court, while at the same 10 time being very firm, keep control, and not allow 11 misbehavior in the courtroom. 12 Q. Thank you, Ms. Durden. 13 When you leave the bench, what would 14 you like as your legacy as an Administrative Law 15 Court Judge to have been? 16 A. I would like my legacy to be that I 17 always applied the law, and applied it fairly and 18 well. You know, I certainly wouldn't want to be 19 known for judicial activism or -- I think that's a 20 very high calling, it's an important job, and one 21 that I would take very seriously. 22 Q. Thank you, Ms. Durden. 23 Let me ask, have you sought or 24 received a pledge of any legislator prior to this 25 day? 0013 1 A. I have not. 2 Q. Have you sought or have you been 3 offered a conditional pledge of support of any 4 legislator pending the outcome of your screening? 5 A. I have not. 6 Q. Have you asked any third parties to 7 contact members of the General Assembly on your 8 behalf? 9 A. I have -- the persons I've talked to, 10 I've made it very clear to them that I want them to 11 contact folks after the 20th of January. 12 Q. Have you contacted any members of the 13 Commission? 14 A. Not intentionally. I think I was 15 introduced to one yesterday since, but I didn't 16 realize that was going to be happening. 17 Q. Can you say who that was and under 18 what circumstances, please? 19 A. Representative Mack. I was down in 20 the parking garage yesterday and someone introduced 21 me to him. 22 But other than that, I haven't -- I've 23 certainly made a big effort to try not to contact 24 any of the members of the Commission since their 25 appointment to the commission. 0014 1 Q. Do you understand that you are 2 prohibited from seeking a pledge or commitment 3 until 48 hours after the formal release of the 4 Commission's report? 5 A. I do. 6 Q. Have you reviewed the Commission's 7 guidelines on pledging? 8 A. I have. 9 Q. And do you understand that penalties 10 for violating those provisions include up to a 11 $1,000 fine or 90 days in prison? 12 A. I do. 13 Q. Thank you, Ms. Durden. 14 MR. DENNIS: I would note that the 15 Midlands Citizens Committee reported that 16 Ms. Durden is a most highly-qualified and 17 highly-regarded candidate for the Administrative 18 Law Court. 19 And I would note for the record that 20 any concerns raised during the investigation 21 regarding the candidate were incorporated into the 22 questioning of the candidate today. 23 Mr. Chairman, I have nothing further. 24 REP. DELLENEY: Thank you, sir. 25 Does any member of the commission have 0015 1 any questions for Ms. Durden? 2 There being no questions, we thank, 3 you Ms. Durden, for appearing before us today and 4 your willingness to participate in the process. 5 And again, I would remind you about 6 the 48-hour rule. We issue a draft report 48 hours 7 after it's been on the desk of the General 8 Assembly. It becomes of the final report of this 9 commission. At that point the screening process is 10 over. 11 However, before that time, we could 12 reconvene a public hearing and bring back 13 candidates to testify or witnesses, a thing that we 14 rarely do, but it has occurred. And most of those 15 times it's occurred because of some suspicion, 16 perhaps violation of the election process. 17 But with that, I would like to thank 18 you again for being here and hope you have a good 19 day. 20 MS. DURDEN: Thank you. Thank you to 21 all of you. 22 (Ms. Durden exits the room.) 23 (A recess transpired.) 24 (Mr. Holmes enters the room.) 25 REP. DELLENEY: All right. We have 0016 1 before us this morning Mr. Christopher McGowan 2 Holmes, who seeks a position as Administrative Law 3 Court Judge for seat number four. 4 If you would, Mr. Holmes, raise your 5 right hand to be sworn. Do you solemnly swear to 6 tell the truth, the whole truth, and nothing but 7 the truth, so help you God? 8 MR. HOLMES: I do. 9 REP. DELLENEY: Thank you, sir. 10 The Judicial Merit Selection 11 Commission has thoroughly investigated your 12 qualifications for service on the bench. 13 Our inquiry has focused on the nine 14 evaluative criteria which have included a survey of 15 the bench and bar, a thorough study of your 16 application materials, verification of your 17 compliance to state ethics laws, a search of any 18 newspaper articles in which your name may have 19 appeared, a study of any previous screenings you 20 may have been involved in, and a check for economic 21 conflicts of interest. 22 There are no witnesses, no affidavits 23 filed in opposition to your candidacy, or any 24 witnesses here to testify. 25 Did you bring someone with you today? 0017 1 MR. HOLMES: My wife, Trish, is with 2 me. 3 REP. DELLENEY: We're glad for you to 4 come here today to be with your husband. Thank you 5 for coming. 6 MRS. HOLMES: Thank you. 7 REP. DELLENEY: With that said, do you 8 have a brief opening statement that you would like 9 to make, sir? 10 MR. HOLMES: I do. 11 REP. DELLENEY: All right. 12 MR. HOLMES: I appreciate the 13 opportunity to appear for you today in support for 14 my candidacy for a seat on the Administrative Law 15 Court. I know you've been provided a sworn 16 statement and personal data questionnaire I've 17 submitted, so I'll try not to be repetitive in this 18 statement, but will of course respond to any 19 questions you might have. 20 I have practiced law in South Carolina 21 since 1978 in a variety of settings, from a diverse 22 practice in a small town as counsel for a state 23 agency, as part of a very large firm with offices 24 throughout the state, and for the last 14 years as 25 a sole practitioner in Charleston and Mount 0018 1 Pleasant. 2 The great majority of my work has been 3 in the area environmental and administrative law, 4 although I have engaged in some lengthy and complex 5 litigation involving class action suits and 6 representation of large communities for trespass, 7 nuisance, and product liability claims. 8 When I begin representation of what 9 was the Coastal Council in 1979, the agency was in 10 its infancy. Regulations were being drafted and 11 revised, and no one was certain whether what we 12 were going was going to be upheld. 13 The first appellate case I was 14 involved with at the agency dealt with the standard 15 of review for agency decisions. The statute says 16 Circuit Court review was to be de novo, but the 17 Supreme Court agreed with us that despite that 18 language, the substantial evidence rule is to be 19 applied. That established the agency as the trier 20 of facts. 21 The next big case involved denial of a 22 permit of to fill in privately-owned weapons to 23 create property that could be built upon. There 24 was a lot of concern within the agency that the 25 permit decision might be viewed as a regulatory 0019 1 taking, which would result in either validation of 2 the regulation or subject the state to substantial 3 liability. Again, the Supreme Court ruled in the 4 agency's favor. 5 In 1984 I was named deputy director 6 the Coastal Council, as well as general counsel, 7 and in the full capacity had responsibility for 8 managing the Charleston office where most of the 9 agency staffed were based. 10 In the course of my private practice, 11 I have represented clients before DHEC's coastal 12 resources branch, as well as its air board of 13 quality divisions. I have also represented clients 14 before the Corps of Engineers involving navigable 15 waters and Clean Water Act programs. 16 A great many of these cases resulted 17 in mutually-agreeable resolution of the issues with 18 no contested case procedures made necessary. In 19 those cases that did go through administrative 20 proceedings, my clients' positions were allied 21 without an agency roughly 50 percent of the time. 22 I mention that because I heard some 23 people think I may bring some anti-agency bias to 24 the court. Nothing could be further from the 25 truth. My only concern has been that statutes 0020 1 regulations are fairly and consistently applied. 2 I believe that is borne out by the 3 fact that the approximately 40 percent of the cases 4 I've filed in the Administrative Law Court were 5 settled by consent orders. 6 And of the remaining 60 percent, the 7 position I advocated prevailed more than 80 percent 8 of the time either before the ALJ or the Appellate 9 Court. 10 I would suppose there could be some 11 concern that my area of practice has been too 12 limited to environmental matters, whereas the 13 Administrative Law Judge hears diverse matters and 14 may be sitting as a trier of fact or in an 15 appellate capacity. 16 However, I believe the focus should be 17 on the procedures, the court's procedures. Whether 18 it's a contested case or on appeal, the hearing 19 procedures are established. And I feel I have a 20 more than adequate grasp of those. 21 I also believe I possess sufficient 22 ability to read and understand the statutes and 23 regulations specific to a particular agency 24 involved in an appeal. And I am certain counsel 25 for the parties will direct my attention to what 0021 1 they believe are the controlling authorities. And 2 I feel I have the capability to read and evaluate 3 those substantively. 4 Also a major function of 5 Administrative Law Judge is to make factual 6 findings in cases where testimony conflicts. I 7 believe my experience has prepared me to be a good 8 judge of witnesses and exhibits. Often, probably I 9 should say invariably, the legal conclusions will 10 flow from the facts. 11 I am aware this position is mandated 12 to consider a number of factors in deciding which 13 candidates to nominate, including diversity and 14 other demographic factors. 15 In that respect, I will point out that 16 there is yet to be an Administrative Law Judge from 17 a coastal area of the state. 18 While I would not rest my candidacy on 19 that factor, I believe I would contribute to the 20 diversity on the court. 21 Thank you. I have a signed copy of 22 this. Do I need to submit that? 23 MR. FIFFICK: There's no need to do 24 that. If you'd like, we can have it as an exhibit. 25 Would you like that -- can we have it marked as an 0022 1 exhibit into the record? 2 REP. DELLENEY: We'll mark Mr. Holmes' 3 signed statement, opening statement, as an exhibit 4 at this point in the transcript without objection, 5 and we will make it part of the record without 6 objection. 7 MR. FIFFICK: Thank you, Mr. Chairman. 8 Mr. Chairman and members of the Commission, I have 9 a few other procedural matters to take care of. 10 BY MR. FIFFICK: 11 Q. Mr. Holmes, you have a copy of your 12 personal data questionnaire before you. Is that 13 what you have before you right now? 14 A. That's what I'm looking at right now. 15 Q. Do you have any amendment you'd like 16 to make your personal data questionnaire? 17 A. No. 18 MR. FIFFICK: At this time, 19 Mr. Chairman, I would ask that Mr. Holmes' personal 20 data questionnaire be entered as an exhibit into 21 the hearing record. 22 (Exhibit Number 2 was marked for 23 identification.) 24 REP. DELLENEY: Without objection, his 25 personal data questionnaire will be made part of 0023 1 the record at this point. 2 MR. FIFFICK: Mr. Holmes also provided 3 a sworn statement with detailed answers to over 30 4 questions regarding judicial conduct, statutory 5 qualifications, office administration, and 6 temperament. 7 That statement was provided to all 8 Committee members earlier and is included in your 9 notebooks. I have no concerns with the statement. 10 And with the Commission's approval, I would ask 11 those questions be waived in this public hearing 12 today. 13 BY MR. FIFFICK: 14 Q. Is that document the sworn statement 15 you submitted as part of your application, 16 Mr. Holmes? 17 A. It is. 18 Q. Is there any amendment you'd like to 19 make at this time to your sworn statement? 20 A. There is not. 21 MR. FIFFICK: At this time, 22 Mr. Chairman, I would ask that Mr. Holmes' sworn 23 statement be entered as an exhibit into the hearing 24 record. 25 REP. DELLENEY: Without objection, 0024 1 Mr. Holmes' sworn statement will be made a part of 2 the record at this point in the transcript. 3 MR. FIFFICK: One final procedural 4 matter. I note for the record that based on the 5 testimony contained in the candidate's PDQ which 6 has been included in the record with the 7 candidate's consent, Mr. Holmes meets the statutory 8 requirements for this position regarding age, 9 residence, and years of practice. 10 BY MR. FIFFICK: 11 Q. Mr. Holmes, you've got some of this in 12 your opening statement, but why do you now want to 13 serve as an Administrative Law Judge? 14 A. Well, as I said, I've practiced law 15 for 30 years now primarily in this area. And I 16 believe I have a wealth of knowledge and experience 17 that could be an asset to the court. 18 I have always admired the court, 19 supported the court, was thrilled when it was 20 created. I always felt the hearing officer system 21 was problematic in that the agencies were hiring 22 and appointing and paying for hearing officers. 23 When I was with the Coastal Council, 24 back in those days, I really felt that was, looking 25 back, some of the most rewarding time I spent 0025 1 practicing law in a public service capacity, 2 working with members of the public on both sides of 3 the issues and trying to reconcile staff duties and 4 attempts to implement this new legislation and new 5 regulations. 6 So from that standpoint, you know, 7 this is -- I would look at this as a sort of 8 capstone to my career. I don't seek any other 9 office, don't plan to return to private practice. 10 From a purely personal standpoint, I grew up here 11 in Columbia. I went to Snider, Hand, Dreher, and 12 USC. 13 I have family and a great many friends 14 that live in this area, as does my wife. And we 15 would like to spend time -- be able to spend more 16 time with them if we were up here. 17 I had a couple more things. I'm not 18 sure I covered it in my -- well, I would leave it 19 at that. 20 I just believe I would be an asset to 21 the court. I've been encouraged by members of the 22 bar whom I practice with, as well as some members 23 of the court itself, that they feel I should pursue 24 this. So that's why I would like to serve. 25 Q. Thank you, sir. 0026 1 Could you please tell the members of 2 the Commission what you think the appropriate 3 demeanor is for a judge. 4 A. Appropriate demeanor for the judge to, 5 in the conduct of a trial, attest the case hearing 6 is to understand the case before him and thoroughly 7 review all pleadings, briefs, submittals, to keep 8 an open mind, to be in control of his courtroom, to 9 allow the parties to present their cases fairly as 10 possible. 11 I think you can be firm without being 12 mean-spirited. I think -- I remember one thing. I 13 think the judge I would like to pattern myself 14 after was Judge Bill Howard. I remember some years 15 ago I had a case in front of him. 16 (Senator Ford walked in.) 17 A. It was a litigation which I have not 18 done a lot of in a jury trial in Berkeley County. 19 I was putting up an expert witness, and I had never 20 done an expert witness before. And I thought there 21 was just some sort of magic talisman about it or 22 something I had do, and I was struggling to get the 23 opinion from the witness. 24 And every time I would ask the 25 question, defense counsel would object. And after 0027 1 two or three times, Judge Howard just said 2 Mr. Holmes, just ask him does he have an opinion to 3 a reasonable degree of certainty as of whatever 4 expert field he was in. So I repeated questions 5 like that, no objection, we went forward. 6 I think that judges need to be 7 understanding of the struggles of the attorney, 8 particularly the young ones, and to help them 9 without, you know, trying their case for them, but 10 to not let certain stumbling blocks prevent them 11 from presenting a full airing of their case. 12 Q. Thank you, sir. 13 Based on your legal experience and 14 practice thus far, are there any areas you feel 15 that you would need to additionally prepare for, 16 and how would you go about that additional 17 preparation? 18 A. Well, it's to say most of my practice 19 in front of the Administrative Law Court has been 20 on DHEC permits air, water, storm water, coastal 21 zone issues. I don't know how much I would need to 22 bone up. 23 Obviously I haven't done OSHA cases. 24 Of course that's going to be new to the court, or 25 is new. I have done one tax case. I haven't done 0028 1 any labor licensing cases or Department of 2 Transportation cases. 3 But again, I think the focus is on the 4 procedures of the Administrative Law Court, and 5 those procedures apply to whatever the case is. 6 And I think I have the ability to read the statutes 7 involved and the regulations in a particular case 8 that comes before me and grasp what the issues are. 9 I don't know that I would need to go 10 back to school, so to speak. I may have to be more 11 diligent in my examination of the statutes and 12 regulations in cases that come down, and probably 13 consult with other Administrative Law Judges that 14 handle those types of cases. 15 I know I've never done an inmate 16 grievance case obviously, but I've read the cases 17 that have come out with the advance sheets on it. 18 I think I understand what the issues are. 19 Q. Thank you, sir. 20 A few housekeeping issues. Have you 21 caught or received the pledge of any legislator 22 prior to this date? 23 A. No. 24 Q. Have you sought or have you been 25 offered a conditional pledge of support of any 0029 1 legislator pending the outcome of your screening? 2 A. No. 3 Q. Have you asked any third parties to 4 contact members of the General Assembly on your 5 behalf? 6 A. No. 7 Q. Have you contacted any members of this 8 Comission? 9 A. No. 10 Q. Do you understand that you're 11 prohibited from seeking a pledge or commitment 12 until 48 hours after the formal release of the 13 Commission's report? 14 A. I do. 15 Q. Have you reviewed the Commission's 16 guidelines on pledging? 17 A. Yes, I have. 18 Q. As a follow-up, are you aware of the 19 penalties for violating the pledging rules? 20 A. Not specifically, because I don't 21 intend to violate. 22 Q. Are you aware -- well, I'll go ahead 23 and fill you in what they are. 24 Upon a conviction of violating the 25 pledging rules, a violator must be fined not more 0030 1 than $1,000 or in prison for not more than 90 days. 2 MR. FIFFICK: I would note that the 3 Low Country Committee reported the following 4 regarding Mr. Holmes. 5 As to constitutional qualifications, 6 Mr. Holmes meets the constitutional qualifications 7 for the judicial position he seeks as to ethical 8 fitness. 9 Persons interviewed by the Committee 10 indicated that Mr. Holmes was considered ethical as 11 to professional and academic ability. The 12 Committee gave Mr. Holmes a good rating in this 13 area. 14 As to character, the Committee 15 reported that Mr. Holmes' character is 16 unquestionable. As to reputation, Mr. Holmes 17 enjoys a good reputation in the community and among 18 peers. 19 As to physical and mental health, 20 there is evidence that Mr. Holmes is physically and 21 mentally capable of performing the duties required 22 of a judge of the Administrative Law Court. 23 As to experience, the Committee 24 recognizes Mr. Holmes' good legal experience. As 25 to judicial temperament, the Committee gave 0031 1 Mr. Holmes a good rating in this category. 2 I would just note for the record that 3 any concerns raised during the investigation 4 regarding the candidate were incorporated into the 5 questioning of the candidate today. 6 Mr. Chairman, I have no further 7 questions. 8 REP. DELLENEY: Any member of the 9 commission have any questions for Mr. Holmes? 10 REP. CLEMMONS: I have, Mr. Chairman. 11 REP. DELLENEY: Representative 12 Clemmons. 13 REP. CLEMMONS: Thank you, Chair. 14 And Mr. Holmes, welcome. I note you 15 presently reside in Mount Pleasant; is that 16 correct? 17 MR. HOLMES: That's correct. 18 REP. CLEMMONS: Would your intent be, 19 if you were successful in your work here today, to 20 relocate to the Columbia area, or would you be 21 intending to commute back and forth? 22 MR. HOLMES: Well, my intention would 23 be to relocate. Of course I'm sure you're aware of 24 the housing market. It may be some commuting 25 involved. 0032 1 I have, as I said, I have family up 2 here. I could come up, spend the week, stay with 3 them, go home on the weekends, until we got that 4 resolved. 5 I obviously haven't explored either 6 putting my home on the market or exploring the 7 market up here. 8 But the short answer, yes, I would 9 intend to relocate to Columbia. 10 REP. CLEMMONS: Thank you. 11 REP. DELLENEY: Anyone else have any 12 questions? 13 There being no further questions, 14 Mr. Holmes, we thank you again for your willingness 15 to participate in the process. And I'll again 16 remind you as to 48-hour rule where we issue a 17 report. And it's a draft report when it's 18 initially issued. 19 After it sits on the desk of the 20 members of the General Assembly for 48 hours, then 21 it becomes a final report of this commission and 22 this process over at that point. 23 However, up until that point, it is 24 not over. We can reconvene, have another public 25 hearing, call the candidate back to testify, call 0033 1 witnesses back to testify. 2 It's something we rarely do, but on 3 occasion, we have done it, and most of those cases 4 have involved suspicion and violation of an 5 electoral process, but I will just tell you that. 6 And with that, I'd like to thank you 7 for you and your wife for appearing before us, and 8 hope you have a safe trip back to Charleston. 9 MR. HOLMES: Thank you very much, 10 Mr. Chairman. 11 REP. DELLENEY: Yes, sir. 12 MR. HOLMES: Thank you, members of the 13 Commission. 14 (Mr. Holmes exits the room.) 15 (Judge James enters the room.) 16 REP. DELLENEY: Next candidate is 17 Melody James. Good morning. 18 JUDGE JAMES: Good morning. 19 REP. DELLENEY: We have before us the 20 Honorable Melody L. James, who seeks the position 21 on the Administrative Law Court, seat number four. 22 If you would, Ms. James, raise your 23 right hand to be sworn. Do you solemnly swear to 24 tell the truth, the whole truth and nothing but the 25 truth, so help you God? 0034 1 JUDGE JAMES: Yes, sir, I do. 2 REP. DELLENEY: Thank you, ma'am. 3 The Judicial Merit Selection 4 Commission has thoroughly investigated your 5 qualifications for the bench. 6 Our inquiry has primarily been focused 7 on our nine evaluative criteria which includes a 8 survey of the bench and bar, a thorough study of 9 your application materials, verification of 10 compliance with state ethics laws, a search of 11 newspaper articles in which your name may have 12 appeared, a study of any previous screenings, and a 13 check for economic conflicts of interest. 14 There are no affidavits have been 15 filed in opposition to your election, nor are there 16 any witnesses here to testify. 17 Do you have a brief opening statement 18 you'd like to make? 19 JUDGE JAMES: Yes, sir. I would just 20 like to say that I am honored to be here, and I 21 wish to thank you for the privilege of being able 22 to present myself as a candidate for the position 23 of Administrative Law Judge. 24 Throughout this process, I have seen 25 what type of work is having to be done, what kind 0035 1 of dedication and time is committed by the staff, 2 by the committees, and by the commission. 3 And I want to take the opportunity to 4 thank everyone involved for their hard work and 5 attention. Thank you. 6 REP. DELLENEY: Thank you, ma'am. 7 JUDGE JAMES: Also I would like to 8 introduce -- I do have my fiance with me, Dimitri 9 Bucarelis [phonetic], and he's here presently. 10 REP. DELLENEY: We're glad to have you 11 with us here today, sir. 12 With that, would you answer any 13 questions that our counsel might have? 14 JUDGE JAMES: Certainly. 15 BY MS. WELLS: 16 Q. Judge James, you have before you your 17 personal data questionnaire you submitted as part 18 of your application. 19 Is there any amendment you would like 20 to make at this time to that document? 21 A. Yes, ma'am. I do have an amendment to 22 the personal data questionnaire addendum. 23 MS. WELLS: At this time, 24 Mr. Chairman, I would ask that Judge James' 25 personal data questionnaire and amendment be 0036 1 entered as an exhibit into the hearing record. 2 (Exhibit Number 3 was marked for 3 identification.) 4 REP. DELLENEY: Without objection, the 5 document will be made part of the record at this 6 point. 7 MS. WELLS: Thank you. 8 BY MS. WELLS: 9 Q. Judge James, you also have before you 10 a copy of your sworn statement you submitted as 11 part of your application. 12 Is there an amendment you'd like to 13 make at this time to that document? 14 A. Yes, ma'am, there is. 15 MS. WELLS: At this time, 16 Mr. Chairman, I would like to ask that Judge James' 17 sworn statement and the amendment be admitted into 18 the hearing record. 19 REP. DELLENEY: Judge James' sworn 20 statement will be made a part of the record at this 21 point in the transcript. 22 MS. WELLS: Thank you. 23 Members of the Commission, 24 Mr. Chairman, I note for the record that based on 25 the testimony contained in the candidate's personal 0037 1 data questionnaire, Judge James meets the statutory 2 requirements for this position regarding age, 3 residence, and years of practice. 4 Q. Judge James, would you please tell the 5 members of the Commission why you now want to serve 6 as an Administrative Law Judge? 7 A. Certainly. Throughout being raised, I 8 cannot remember a time in my household that there 9 was not some element of public service involved. 10 My dad was always at some point, and still is, a 11 volunteer or had a job in public service. 12 I've been fortunate enough to be able 13 to provide service as a municipal court judge for 14 the last 20 years. That is a court where -- it's 15 our graduate court and it's a court that most 16 people -- it's their first and probably only 17 experience with a courtroom. 18 It has been a rewarding experience for 19 me. I would like to be able to take my skills as 20 an attorney and the skills and abilities that I 21 have from being a judge and my experiences there to 22 the next level, to be able to provide this on a 23 full-time basis. 24 With regard to the Administrative Law 25 Court, that is an amazing area of law. In fact, I 0038 1 would have to say that it's more than one area of 2 law and it covers so many different things. And I 3 find that to be very intellectually challenging. 4 Q. Thank you, Judge James. 5 Can you explain to the commission how 6 you feel your legal and professional experience 7 thus far would help you to be an effective 8 Administrative Law Judge? 9 A. First of all, I have an accounting 10 undergrad degree, and that is going to be very 11 helpful with some of the issues that arise in front 12 of the court as to taxation, with the taxation 13 code, also with regard to valuation and 14 calculations that may arise in that area or in 15 retirement, or any other type of valuation and 16 assessment. 17 I have a -- in 21 years experience in 18 law, I have had the opportunity to practice a 19 varied area of law. My emphasis has now become an 20 area of Workers' compensation, which is an 21 administrative law. It is an administrative law 22 that is under the Administrative Procedures Act. 23 As you know, it is one of the few -- a 24 handful of exceptions that has not made it before 25 the Administrative Law Court, that those exceptions 0039 1 certainly have narrowed as of this last year. 2 In fact, the OSHA violations will now 3 be coming before the court in the beginning of the 4 year, and there has been debate workers' 5 compensation hearings being before the court of 6 course matters heard Administrative Procedures Act, 7 as I said. 8 The contested hearings are held before 9 a single commissioner under the same standard of 10 review, that is preponderance of evidence. The 11 appeals are handled in the same standard which is 12 set forth under the Administrative Procedures Act. 13 I have handled those matters from 14 beginning to end. I've handled quite a few 15 contested cases. And when they are required to be 16 so, I handle the appeals through what used to be 17 Circuit Court to the Appellate Court, and now it's 18 to the Appellate Court. 19 So I have quite a number of experience 20 with that. There are skill sets in that area that 21 also will apply to be the administrative judge 22 slot. I have great experience with reading medical 23 records, vocational assessments, and testimony with 24 regard to impairment and disability. 25 The issues before the administrative 0040 1 judge also include areas of disability from the 2 retirement board that will certainly be a great 3 asset in that types of cases. 4 I have -- as I said, I've sat as 5 municipal judge which has been a great experience. 6 It has provided me with the opportunity to work 7 with pro se litigants. There are a number of 8 pro se litigants in front of the Administrative Law 9 Court. 10 It has also provided me an opportunity 11 to learn the work ethic and the docket management 12 of a judge. I work hard with regard to my docket. 13 For instance, I will give you an example. 14 I was supposed to be screened 15 yesterday, and of course it was moved until today. 16 Today is my regular bench trial day, and I was 17 quite distressed to try to figure out what to do 18 because I do not miss my bench trials unless there 19 is -- I have a prearranged vacation. It's 20 something that I am there, and do start on time. 21 I was able to scramble and find a 22 couple of magistrates to help me out yesterday. 23 But I did go in yesterday afternoon after work and 24 signed paperwork. 25 I have been contacted this morning and 0041 1 I have also offered to meet someone in order to 2 sign necessary paperwork that they were supposed to 3 be there this morning, and I will be meeting them 4 as they come on this evening at eight o'clock. 5 I also realize the need to work 6 additional hours. We are low on the picking order 7 in municipal court. So what we have to do in order 8 to get things done sometimes, because of the 9 conflict, what happens is the Circuit Court takes 10 priority over us. 11 We are almost the lowest in order with 12 regard to conflict. So I hold hearings in the 13 afternoons and early evenings in order to 14 accomplish that. 15 There are areas of law with regard to 16 my municipal background that are also going to be 17 applicable with the Administrative Law Judge 18 position. I will give you one example. 19 As you know, the motor vehicle 20 hearings are heard by the administrative law 21 division. There are hearing officers, and then the 22 judges hear the appellate review. I have great 23 experience with hearing matters with implied 24 consent. 25 And the appellate judges are exposed 0042 1 to that and have to make decisions with regard to 2 implied consent suspicion. And since I have great 3 experience with DUI, I do have experience with 4 those. 5 I would like to say that whoever -- 6 whatever individual has this position, it is such a 7 great and varied area of law. It is not just one 8 law. It is so many different substances of law 9 that the individual is going to have to have the 10 ability to analyze and is going to have strong 11 academic credentials and has shown the ability to 12 analyze. 13 I do have that background, I have 14 strong academic credentials, and will be able to do 15 that. 16 Q. Thank you, Judge James. 17 Although you address this in your 18 sworn affidavit please, would you please tell the 19 members of the Commission what you think is the 20 appropriate demeanor of a judge? 21 A. I think that a judge should be 22 respectful, a judge should be fair and impartial, a 23 judge should be attentive. 24 People should be treated as just that; 25 they are people. The matters that come to court 0043 1 are of great importance to them. They should be 2 treated as people and matters, and not pieces of 3 paper or numbers. 4 Q. Thank you, Judge James. 5 Have you sought or received the pledge 6 of any litigator? 7 A. No, ma'am. 8 Q. Have you sought or have you been 9 offered a conditional pledge of support of any 10 legislator pending the outcome of your screening? 11 A. No, ma'am. 12 Q. Have you asked any third parties to 13 contact members of the General Assembly on your 14 behalf? 15 A. No, ma'am. 16 Q. Have you contacted any members of the 17 Commission? 18 A. No, ma'am. 19 Q. Do you understand you are prohibited 20 from seeking a pledge or commitment until 48 hours 21 after the formal release of the Commission's 22 report? 23 A. Yes, ma'am. 24 Q. Have you reviewed the Commission's 25 guidelines on pledging? 0044 1 A. Yes, ma'am. 2 Q. Are you aware that the penalty for 3 violating the pledging rules are that it is a 4 misdemeanor, and that upon conviction the violator 5 must be fined not more than $1,000 or in prison not 6 more than 90 days? 7 A. Yes, ma'am. 8 MS. WELLS: I would note to the 9 members of the Commission that the Midlands 10 Citizens Committee found Judge James to be a highly 11 qualified and a highly regarded candidate who would 12 ably serve on the Administrative Law Court. 13 I would also note for the record that 14 any concerns that were raised during the 15 investigation of Judge James were incorporated into 16 my questioning of her today. 17 Mr. Chairman, I have no further 18 questions. 19 REP. DELLENEY: Does any member of the 20 commission have any questions for Judge James? 21 There being no further questions, 22 Judge James, I'd like to thank you and your fiance 23 for being here with us today. 24 And I would like to remind you about 25 the 48-rule. Now again, we issue a draft report. 0045 1 It's just that until it lies on the desks of the 2 members of the General Assembly for 48 hours. 3 At that point it becomes the final 4 report of this commission, and our job for the 5 screening will be over. We can't go back and 6 conduct any further hearings or submit anything 7 different. 8 However, up until that time we can 9 recall a public screening, a public hearing and 10 bring candidates back and witnesses back to 11 testify. 12 We rarely do that, but it has happened 13 on occasion. And that generally happens in times 14 where there are some allegations of impropriety 15 with the election process. 16 So I would just remind you of that, 17 and thank you again for being here with us and hope 18 you have a safe trip back to Camden. 19 JUDGE JAMES: And thank you again for 20 the opportunity. 21 (Judge James exits the room.) 22 (Ms. McMahan enters the room.) 23 REP. DELLENEY: Okay. We have before 24 us this morning Ms. Carol Ann Isaac McMahan. 25 MS. McMAHAN: Yes, sir. 0046 1 REP. DELLENEY: All right. And 2 Ms. McMahan seeks a position on the Administrative 3 Law Court, seat number four. 4 Did you bring anybody with you, 5 Ms. McMahan? 6 MS. McMAHAN: Yes, sir, I did. Thank 7 you so much. I brought today my mother, Anita 8 Crist; my stepfather James Crist; and my daughter 9 Jean Elizabeth. The rest of the family's at school 10 and work. 11 REP. DELLENEY: We're so happy to have 12 y'all here today. We thank you for coming with 13 Ms. McMahan. 14 Ms. McMahan, if you would, raise your 15 right hand to be sworn. 16 Do you solemnly swear to tell the 17 truth, the whole truth and nothing but the truth, 18 so help you God? 19 MS. McMAHAN: Yes, sir, I do. 20 REP. DELLENEY: Thank you, ma'am. 21 The Judicial Merit Selection 22 Commission has thoroughly investigated your 23 qualifications for service on the bench. 24 Our focus has primarily been on the 25 nine evaluative criteria, which include a survey of 0047 1 the bench and bar, a study of your application 2 materials, verification of your compliance with 3 state ethics laws, a search of any newspaper 4 articles in which your name may have appeared, a 5 check for previous screenings, as well as a check 6 for economic conflicts of interest. 7 There are no affidavits filed in 8 opposition to your candidacy. There are no 9 witnesses here to testify. 10 Do you have a brief opening statement 11 you'd like to make? 12 MS. McMAHAN: Yes, sir, I do. Thank 13 you so much. 14 Good morning, ladies and gentlemen of 15 the commission, counsel, and everyone present here 16 today. 17 First, I want to thank you so very 18 much for permitting me to be part of this process. 19 I'm certainly honored. 20 And second, I'd like to say that the 21 preamble to the judicial canons calls for a judge 22 to administrator the law independently, fairly, and 23 competently. 24 And that's what I bring to the bench, 25 independent and fair application of the law, as 0048 1 well as competence, competence shown from applying 2 the law for over 20 years here in South Carolina. 3 Thank you. 4 REP. DELLENEY: Thank you, ma'am. If 5 you would answer any questions our counsel may have 6 for you. 7 MS. McMAHAN: Yes, sir. 8 MS. GOLDSMITH: Mr. Chairman and 9 members of the Commission, I have a few procedural 10 matters to take care of first. 11 BY MS. GOLDSMITH: 12 Q. Ms. McMahan, there should be two 13 documents in front of you. Is the first one your 14 personal data questionnaire that you completed as 15 part of your application? 16 A. Yes, ma'am. If I can just have a 17 moment to go through it. 18 Q. Certainly. 19 A. Yes, ma'am, it is. 20 Q. Are there any amendments you would 21 like to make your personal data questionnaire at 22 this time? 23 A. No, ma'am. 24 MS. GOLDSMITH: At this time I ask 25 that the personal data questionnaire be marked as 0049 1 an exhibit in the record. 2 REP. DELLENEY: Ms. McMahan's personal 3 data questionnaire will be made a part of the 4 record at this point and part of the transcript. 5 (Exhibit Number 4 was marked for 6 identification.) 7 MS. GOLDSMITH: Ms. McMahan also 8 provided a sworn statement with detailed answers to 9 over 30 questions regarding judicial conduct, 10 statutory qualifications, office administration, 11 and temperament. 12 That statement was provided to all 13 commission members earlier and is included in your 14 notebooks. 15 I have no concerns with this 16 statement. And with the Commission's approval, I 17 would ask that the questions be waived in this 18 public hearing today. 19 BY MS. GOLDSMITH: 20 Q. Is the second document that's in front 21 of you your sworn statement? 22 A. Yes, ma'am, it is. 23 Q. Would you like to make any amendments 24 to that at this time? 25 A. Yes, ma'am. I certainly would. 0050 1 I previously submitted a letter with 2 two amendments dated December 3rd. I'd like to -- 3 and I have brought the sworn statements, and I have 4 two copies here, but amendments to question number 5 13 and amendments to question number 15. 6 Q. Okay. Thank you. 7 MS. GOLDSMITH: At this time I would 8 ask that Ms. McMahan's sworn statement and her 9 amendments be entered as an exhibit into the 10 record. 11 REP. DELLENEY: Without objection, 12 Ms. McMahan's sworn statement will be made a part 13 of the record at this point in the transcript. 14 MS. GOLDSMITH: One last final 15 procedural matter. I note for the record that 16 based on the testimony contained in Ms. McMahan 17 personal data questionnaire, which has been 18 included in the record, that Ms. Carol McMahan 19 meets the statutory requirements for this position 20 regarding age, residence, and years of practice. 21 Q. Ms. McMahan, why do you want to serve 22 as an Administrative Law Judge? 23 A. Thank you, ma'am. I'd like to serve 24 as an Administrative Law Judge basically for three 25 reasons. 0051 1 First, it's an honorable position, an 2 honorable position in that I serve the State of 3 South Carolina and the citizens in the various 4 communities throughout the state. 5 Second, it's a natural progression 6 from the work that I've done here in South Carolina 7 for the last 20 years, going from an advocate and 8 before the Administrative Law Court to an evaluator 9 and an adjudicator. 10 And third, the third reason is 11 basically part of the second, but it really is -- 12 it's a step up, a step up in terms of as an 13 attorney you investigate and you zealously 14 advocate. And as an Administrative Law Judge, you 15 evaluate and zealously evaluate and adjudicate. 16 Thank you, ma'am. 17 Q. Thank you. 18 Ms. McMahan, I'll let you address this 19 in your sworn statement. Could you please tell the 20 members of the Commission what you feel is the 21 appropriate demeanor for a judge? 22 A. Yes, ma'am, I certainly can. The 23 appropriate demeanor for a judge in the courtroom 24 or in any room or anywhere is to be courteous, 25 impartial, fair, patient. 0052 1 Q. Thank you. 2 When you leave the bench if you're 3 elected as an Administrative Law Judge, what would 4 you like for your legacy to be? 5 A. I'm sorry, could you repeat the 6 question? 7 Q. Sure. 8 After you have been elected as 9 Administrative Law Judge, you serve and retire, 10 what would you like for your legacy to be as a 11 judge? 12 A. I would like my legacy to be that 13 people would remember that when they came into my 14 courtroom, everybody was the same, everybody was 15 treated courteously, everyone was listened to, and 16 that the record controlled the decision that was 17 made, the record and the law enacted by the General 18 Assembly. 19 Thank you, ma'am. 20 Q. Thank you. 21 And although you offered an amendment 22 to sworn statement today, could you please tell the 23 commission your views on judicial activism? 24 A. Yes, ma'am, I can. If I may, let me 25 comment on why I amended my answer. 0053 1 When I was going through the 2 questionnaire and I saw the term "judicial 3 activism," I thought in the positive sense judicial 4 activism, now that must be where the judge looks at 5 the law and -- just looks at the law, doesn't just 6 look at who the parties are and then the law and 7 then make a decision, but looks at what the law is 8 and what the facts are. 9 So I said absolutely I support 10 judicial activism, that was my first answer. Well, 11 it always preyed on my mind because the term 12 "activist" does have very negative connotations in 13 many areas, as everyone knows. 14 So I did some additional research, and 15 the negative aspects of judicial activism seem to 16 overwhelm the definition. 17 And so I changed my response to, I 18 think, comport with what the General Assembly has 19 told the administrate law court what their role is, 20 that they have a specific statutory authority, and 21 that's it. So -- 22 Q. Thank you very much. 23 A. Thank you, ma'am. 24 Q. Have you sought or received the pledge 25 of any legislator prior to today? 0054 1 A. No, ma'am, I have not. 2 Q. Have you sought or have you been 3 offered a conditional pledge of support of any 4 legislator pending the outcome of your screening? 5 A. No, ma'am, I have not. 6 Q. Have you asked any third parties to 7 contact members of the General Assembly on your 8 behalf? 9 A. No, ma'am. 10 Q. Have you contacted any members of this 11 commission? 12 A. No, ma'am, I have not. 13 Q. Do you understand that you are 14 prohibited from seeking a pledge or commitment 15 until 48 hours after the formal release of the 16 Commission's report? 17 A. Yes, ma'am, I do understand that. 18 Q. Have you reviewed commission 19 guidelines on pledging? 20 A. Yes, ma'am. 21 Q. Are you aware of the penalty for 22 violating the pledging rules are that it is a 23 misdemeanor and upon conviction the violator must 24 be fined not more than $1,000 or in prison not more 25 than 90 days? 0055 1 A. Yes, ma'am. 2 MS. GOLDSMITH: I would note that the 3 Upstate Citizens Committee reported Ms. McMahan 4 meets the qualifications as set forth in the 5 evaluative criteria. 6 The committee also noted that the 7 interviews and other sources utilized led it to 8 determine that Ms. McMahan is well qualified for 9 the position she seeks. 10 I would note for the record that any 11 concerns raised during the investigation regarding 12 Ms. McMahan are incorporated into the questioning 13 of her today. 14 Mr. Chairman, I have no further 15 questions. 16 REP. DELLENEY: Thank you, ma'am. 17 Anybody with the commission have any questions? 18 Senator Knotts. 19 SEN. KNOTTS: Thank you for coming 20 today, Ms. McMahan. 21 But in listening to you, I didn't hear 22 anything that you said about the docket backlog or 23 how would you would handle a case or what you 24 anticipate your workday would be like in an 25 Administrative Law Judge court. 0056 1 MS. McMAHAN: Thank you, sir. 2 In terms of the docket, I can only 3 relate it to the work I currently do. I work the 4 cases promptly and diligently that I'm assigned, 5 and I usually volunteer for more cases currently 6 where I work or am employed. 7 In terms of the Administrative Law 8 Court, I would have to say I would be so honored to 9 be an Administrative Law Judge that as soon as I 10 have my children and everyone out the door, I'm at 11 work seven or 7:30. 12 And I would suspect that I would work 13 late, late hours especially at first and especially 14 if there was a -- if the docket is backed up at the 15 Administrative Law Court. 16 Certainly I would strive to, first of 17 all, evaluate the cases to see if the parties have 18 any potential of settling, perhaps schedule 19 pre-hearing conferences. 20 Number two, again schedule pre-hearing 21 conferences to see exactly how much discovery the 22 parties anticipate, how lengthy they believe the 23 hearings will take, and get the cases on the docket 24 to be heard and then have opinions issued. 25 SEN. KNOTTS: Thank you. 0057 1 SEN. FORD: Mr. Chairman. 2 REP. DELLENEY: Senator Ford. 3 SEN. FORD: I'd like to ask Ms. Shuler 4 a question. Judicial activism was a part of 5 everybody's question? 6 MS. SHULER: Yes, sir. 7 SEN. FORD: And the assumption is that 8 that is a negative? 9 REP. DELLENEY: Senator McConnell. 10 SEN. McCONNELL: I have to apologize. 11 Simply as a result, I would be asking that question 12 of every single candidate, just like the good 13 senator from Lexington asked about the work 14 schedules and pride in working habits of the 15 candidates. 16 Judicial activism to me is a question 17 saying whether or not the judge thinks their job is 18 to interrupt the law and apply the law or make the 19 law. And judicial activism to me is a judge trying 20 to make law, which I take a very dim view of. 21 SEN. FORD: So when the Post and 22 Courier and the rest of the media in the Low 23 Country called me an activist, is that a different 24 story? 25 SEN. McCONNELL: That's a different 0058 1 story, sir. But I think, knowing your role, it is 2 that laws are left -- if judges want to make laws, 3 they need to take off their robes and come and get 4 on the stump with us. 5 SEN. FORD: And I'd agree, but I 6 didn't know my colleagues and Ms. Shuler thought I 7 was a negative person. Did you? I'm not going to 8 hold that against you. 9 MS. McMAHAN: Sir, may I respond to 10 that? 11 SEN. FORD: I'm going to vote for you, 12 I'm going to vote for you, but I was shocked to 13 hear that comment. 14 MS. McMAHAN: Sir, could I respond to 15 that or -- 16 SEN. FORD: Yes, ma'am. 17 MS. McMAHAN: Yes, sir. In terms 18 of -- I think Senator McConnell addressed it -- in 19 terms of a judge there is -- especially in the 20 Administrative Law Court as a creature of statute, 21 there is no room for judicial activism. 22 And any inference that I might have 23 stated earlier in terms of the negative aspect of 24 the term activist goes to judge activist. 25 SEN. FORD: Okay. But activist to you 0059 1 is a negative term? 2 MS. McMAHAN: Only in terms of 3 judicial activism. Certainly our country would not 4 be what it is today without activists. 5 SEN. FORD: Yes, ma'am. I know I like 6 that answer. 7 MS. McMAHAN: Thank you, sir. 8 MS. SHULER: For commission members, 9 the question about judicial activism is found in 10 number 13 in the sworn statement, so every 11 candidate answers that question. 12 SEN. FORD: Why was it necessary -- 13 it's my first time hearing -- why did you bring it 14 up in this case? 15 MS. SHULER: Because she wanted to 16 amend her sworn statement today as to her answer to 17 that question. I just wanted to make it clear to 18 the commission why she was amending it. 19 SEN. FORD: Okay. 20 REP. DELLENEY: Any further questions? 21 Senator Knotts? 22 SEN. KNOTTS: Thank you, Mr. Chairman. 23 I was going to say to the senator from 24 Charleston that the reason -- and of course staff 25 just to explain it, the reason was she came up and 0060 1 wanted to amend her first answer to that and change 2 it. 3 And of course you know, judges, we so 4 often find in the senate and in the house that we 5 make the laws. And the laws are supposed to be 6 applied to each and every individual the same, and 7 it's supposed to go by the law, and not make law. 8 So many times we see some agencies 9 come up here with regulations that we don't even 10 usually vote on, trying to make law by changing 11 regulations to be interrupted as the law. And 12 that's why judges should not be activists in the 13 making of laws. They should be enforcing the law. 14 And that's the reason I guess it's on 15 the questionnaire, that -- each and every one of 16 them. And I've looked at that question on every 17 one of them that's come through here so far on all 18 the other 50-some-odd candidates that we've 19 listened to, and I've read that question. Very 20 important question. 21 REP. DELLENEY: Okay. Senator 22 McConnell? 23 SEN. McCONNELL: Thank you, 24 Mr. Chairman. Is it on? I'm color blind. All 25 right. 0061 1 I caught in her clarification, she was 2 very specific. I think her response to judicial 3 activism, senator from Lexington, was down the road 4 of what you were looking for, energy and 5 efficiency. 6 And I think she took it more in that 7 direction, not from a constitutional standpoint of 8 plenary powers. 9 And when this has come up on previous 10 hearings, questions aimed at the recognition that 11 plenary power under our Constitution reside with 12 the legislative branch. 13 And your answers were consistent with 14 your opening statement where you, I thought, very 15 aptly described the role of a judge. 16 MS. McMAHAN: Yes, sir. 17 SEN. McCONNELL: And it's consistent 18 with your amendment. So I can tell that it was a 19 case of interpretive, and I wanted to make that 20 clear for the transcript. 21 If anybody looked at this candidate, 22 it's very clear from the standpoint of activism, 23 she talked about energy and fulfilling her job. 24 And then from the standpoint of plenary power, I 25 think she clearly understood that also. 0062 1 MS. McMAHAN: Thank you, sir. 2 SEN. FORD: Mr. Chairman, I would not 3 use her answers against her. 4 REP. DELLENEY: Thank you, Senator 5 Ford. 6 Any other questions for Ms. McMahan? 7 There being no further questions of 8 Ms. McMahan, I would like to thank you and your 9 family for being here with us today. Thank you for 10 willingness to serve as an Administrative Law Judge 11 candidate. 12 And I would remind you about the 13 48-hour rule. We issue a draft report, which is 14 just that, it's a draft report, until it sits on 15 the desk of the members of the General Assembly for 16 48 hours. 17 At that point in time it becomes the 18 final report of this commission, which we cannot 19 reconvene and change. Our work is done and it's 20 permanent. 21 However, up until that time if we 22 sought to -- we needed to call a candidate up or 23 witnesses up to find out further information or 24 questions about a person's candidacy, we can do 25 that. 0063 1 That has occasionally happened with 2 the commission, but doesn't happen very often. But 3 it does, and usually it's in a situation where 4 there's some question about propriety in the 5 election process. 6 With that, I would like to thank you 7 again for being here, and I hope you have a safe 8 trip back home. 9 MS. McMAHAN: Well, thank you again so 10 much. It is such an honor to be here and happy 11 holidays. Thank you. 12 REP. DELLENEY: Thank you. 13 (Ms. McMahan exits the room.) 14 (Mr. Odom enters the room.) 15 REP. DELLENEY: We have -- we'll be 16 right with you. 17 (A recess transpired.) 18 REP. DELLENEY: Okay, Mr. Odom. 19 We have before us Mr. Leonard P. Odom 20 who seeks a position on the Administrative Law 21 Court, seat number four. 22 If you would, Mr. Odom, raise your 23 right hand to be sworn. Do you solemnly swear to 24 tell the truth, the whole truth and nothing but the 25 truth, so help you God? 0064 1 MR. ODOM: I do. 2 REP. DELLENEY: Thank you, sir. Did 3 you bring someone with you today? 4 MR. ODOM: Yes, sir. My wife, Sue 5 Odom. 6 REP. DELLENEY: Nice to have you with 7 us, ma'am. Appreciate you being here today. 8 MRS. ODOM: Thank you. 9 REP. DELLENEY: The Judicial Merit 10 Selection Commission has thoroughly investigated 11 your qualifications for services on the 12 Administrative Law Court. 13 Our investigation has primarily 14 focused on our nine evaluative criteria which 15 includes a survey of the bench and bar, a study of 16 your application materials, a search made of 17 newspaper articles in which your name may have 18 appeared, verification of your state ethics laws 19 and requirements, a study of previous screenings, 20 and a check for economic conflicts of interest. 21 There are no affidavits filed in 22 opposition to your election nor are there any 23 witnesses here to testify. 24 Do you have a brief opening statement 25 you'd like to make? 0065 1 MR. ODOM: No, sir, other than I'm 2 just very happy to be here. 3 REP. DELLENEY: Thank you, sir. You 4 will answer any questions our counsel has for you? 5 MR. ODOM: Yes, sir. 6 MS. SHULER: Good morning, Mr. Odom. 7 MR. ODOM: Good morning, Ms. Shuler. 8 MS. SHULER: You have before you your 9 personal data questionnaire which you submitted as 10 part of your application package. Do you have any 11 amendments to your PDQ? 12 MR. ODOM: Not other than the ones I 13 e-mailed to you and handed you a copy of this 14 morning. 15 MS. SHULER: And you have them before 16 you on the podium? 17 MR. ODOM: I don't see them -- yes, 18 ma'am, these are my amendments. 19 MS. SHULER: Thank you. 20 Mr. Chairman, I would like to offer 21 Mr. Odom's PDQ and his amendments to his PDQ as an 22 exhibit to the hearing record. 23 REP. DELLENEY: Mr. Odom's PDQ and his 24 amendments will be made part of the record at this 25 point in the transcript. 0066 1 (Exhibit Number 5 was marked for 2 identification.) 3 MS. SHULER: Mr. Odom, do you also 4 have before you a sworn statement that you 5 submitted in conjunction with your application 6 package? 7 It included over -- answers to over 30 8 questions regarding judicial conduct, statutory 9 qualifications, office administration, and 10 temperament. 11 MR. ODOM: Yes, ma'am, I do. 12 MS. SHULER: Are there any amendments 13 you have to your sworn statement? 14 MR. ODOM: No, ma'am. 15 MS. SHULER: At this time I would 16 offer Mr. Odom's sworn statement as an exhibit to 17 the hearing record. 18 REP. DELLENEY: Mr. Odom's sworn 19 statement will be included as part of the record at 20 this point in the transcript -- transcript of the 21 record without objection. 22 MS. SHULER: Thank you. 23 One final procedural matter. I note 24 for the record that based on the testimony 25 contained in the candidate's PDQ that Mr. Odom 0067 1 meets the statutory requirements for this position 2 regarding, age, residency and years of practice. 3 BY MS. SHULER: 4 Q. Mr. Odom, after practicing law for 5 eight years, why do you now want to serve as an 6 Administrative Law Judge? 7 A. Well, Ms. Shuler, I really love and 8 enjoy the academic side of the law. I believe that 9 I have a great ability to zero in on the real 10 issues and get to the bottom line. 11 I believe I have the ability to 12 construe the statutes, interpret case law, and 13 apply that law to the facts and come up with what I 14 regard as the right answer or best answer to a 15 legal problem, as opposed to merely an adversarial 16 answer to be made just -- only favorable to one 17 particular client. 18 And I view that as a crucial role that 19 a judge plays in the judicial process. I also view 20 legal writing as a crucial role in the judicial 21 process. And I love to write. 22 I served as a legal writing instructor 23 at the University of South Carolina School of Law 24 for five semesters. And during that time I 25 continued to strive to improve my writing skills. 0068 1 And so with the combination of my love 2 for academic and my love for legal writing, I 3 believe that's why I would like to be a judge in 4 particular. 5 Now as far as why I would like to be 6 an Administrative Law Judge, I believe that is 7 where experience is best suited. I have several 8 years in the public sector serving as counsel for 9 revenue litigation with the Department of Revenue, 10 where I tried complex taxation cases. 11 I also have approximately five years 12 of big law firm experience where I continue to 13 primarily represent taxpayers in state and local 14 tax matters. But I also have experience in other 15 vast business areas and business transactions as 16 well. 17 I also have an LLM in taxation which 18 not only, I believe, provides a benefit from a 19 taxation side, but the entire focus of that program 20 was on statutory construction. And I believe that 21 that will be a huge benefit to me as a practicing 22 judge. 23 I also, again, love to write and think 24 that will also be a huge benefit in my favor. 25 Q. Thank you, Mr. Odom. 0069 1 Could you describe to the commission 2 members what you believe to be the appropriate 3 demeanor of a judge? 4 A. Well, I think, first of all, judges 5 need to be fair and impartial to uphold integrity 6 of the judicial system. 7 Judges also need to be -- maintain 8 order and decorum in the courtroom, but they should 9 do so in a manner that's courteous to all parties, 10 all lawyers, all counsel, and all witnesses that 11 are present in the courtroom. 12 I believe the judges should also 13 strive to develop their legal skills and continue 14 to develop their legal knowledge and not just, you 15 know, get in and sort of put what they have aside. 16 I believe that judges also need to 17 just continue to advance their intellectual and 18 legal skills. 19 Q. Thank you, Mr. Odom. 20 If you were selected to the 21 Administrative Law Court to serve, when you leave 22 the bench, what would you like your legacy to be as 23 a judge on that court? 24 A. Well, quite frankly if I'm elected to 25 fill Judge Geathers' seat, I would like to continue 0070 1 the legacy that, I think, he set before that court. 2 I tried many cases before Judge 3 Geathers, and he was always very down-to-earth, 4 very personable, and very polite. He was also very 5 fair and impartial, and just a friendly person. 6 But -- so I would like to continue that tradition 7 as well. 8 But I would also like to be known for 9 writing very quality and very clear legal opinions 10 that everyone can understand, not just -- not just 11 lawyers. I'd like to write with the ability that 12 everyone can understand, that you don't pull out a 13 dictionary to read, you know, read five or six 14 words in one particular paragraph. 15 Q. Thank you. 16 Mr. Odom, could you explain why you've 17 not appeared before the Administrative Law Court 18 since 2006? 19 A. Yes. Well, now I'm in private 20 practice and while I continue to do the same -- I 21 really continue to do the same thing I did at the 22 Department of Revenue. Instead of representing the 23 State, now I represent the taxpayers. 24 And, first of all, I believe that to 25 try a case, you've got to have a case that's worthy 0071 1 of trying. And while I've had some issues and some 2 possibilities, I thought it was in the best 3 interest of my clients to settle those matters. 4 I recently had a very large case come 5 before my desk that I had to, I guess, recuse 6 myself from because I had participated materially 7 and extensively while at the Department of Revenue 8 in an August election process. So that would have 9 been a great case to try, but obviously I was 10 prohibited from doing so. 11 I think another reason that's 12 affecting things now is hourly rates. You know, 13 it's expensive to try a tax case, and there has to 14 be a lot of money at stake. And a lot of times 15 these days it's more favorable for a taxpayer to 16 try and settle than spend and waste a lot of money 17 perhaps on legal fees to proceed forward. 18 Q. You also disclosed, as well as your 19 SLED report verifies, that your wife and you 20 brought an action in Lexington County in 2005 21 against your builder for breach of contract and 22 other related matters. 23 Further in 2006, a foreclosure action 24 was brought against your builder, as well as your 25 wife, and you were named in that action. 0072 1 What was the disposition of those two 2 lawsuits? 3 A. Well, the first -- actually my wife 4 and I brought two lawsuits, and then the third one 5 is totally unrelated to us. 6 We brought our suit against our 7 builder individually and against his business. We 8 built a house, and at about the 75 percent 9 completion stage, the builder ran out of money. 10 And we soon learned that 90 percent of 11 our loan funds had been disbursed. So we managed 12 to finish the project ourselves. We didn't get 13 everything completed as it was, you know, the 14 specification. 15 And afterwards we brought a suit 16 against our builder in Lexington County to try and 17 recover some of that. And we handled the matter 18 ourselves and we got a default judgment. 19 And I conducted a damages hearing 20 before Judge Westbrook back in 2005, and we were 21 awarded -- I think it was approximately $40,000. 22 Well, after that when we tried to 23 collect, we discovered that our builder had 24 transferred his interest in his personal residence 25 to his spouse, and there were lot of other judgment 0073 1 creditors out there besides my wife and I at that 2 time that he was trying to avoid. 3 So we brought a subsequent fraudulent 4 conveyance action against my builder and his 5 spouse. And we settled that matter, and we gave 6 them a satisfaction of judgment and an order of 7 dismissal, and they didn't file it right away. 8 And then soon thereafter, my builder's 9 lender brought a suit against him, a foreclose 10 action against one of his rental properties. 11 And because we were still listed on 12 the record as judgment creditors, we were named in 13 that lawsuit, but we had no participation in it 14 whatsoever. 15 Q. Thank you. 16 A. I think they essentially settled that. 17 Q. You reported, and your SLED report 18 verified, that you were arrested in 1990 and 19 charged disorderly conduct. 20 What were the circumstances, as well 21 as the disposition of that charge? 22 A. Well, as embarrassingly as it is to 23 say, in 1990 I was down in Hilton Head, it was part 24 of a fraternity pledge retreat and -- well, it was 25 19 years ago. Hard to believe. 0074 1 But anyway, I was consuming alcoholic 2 beverages, I was extremely intoxicated, and that's 3 what led to my arrest. I was fined $68. I paid 4 the fine. I did not challenge that what I did was 5 wrong, and it was a huge learning mistake and 6 definitely the beginning of my maturity level in 7 life. 8 Q. Some housekeeping issues to cover. 9 Have you sought or received the pledge of any 10 legislator prior to this date? 11 A. No, ma'am. 12 Q. Have you sought or have you been 13 offered a conditional pledge of support of any 14 legislator pending the outcome of your screening? 15 A. No, ma'am. 16 Q. Have you asked any third parties to 17 contact members of the General Assembly on your 18 behalf? 19 A. No, ma'am. 20 Q. Have you contacted any members of the 21 Commission? 22 A. I have not. I do -- there was two -- 23 a recent change. And I just remembered that I did 24 send a letter of introduction to Representative 25 Mack and, I believe, Representative Clemmons. I 0075 1 sent a letter to those guys before they were 2 nominated. But other than that, that's been my 3 only contact. 4 Q. Do you understand that you are 5 prohibited from seeking a pledge or commitment 6 until 48 hours after the formal release of 7 commission's report? 8 A. Yes, ma'am. 9 Q. Have you reviewed the commission's 10 guidelines on pledging? 11 A. Yes, ma'am. 12 Q. Are you aware of the penalty for 13 violating the pledging rules, that is, it is a 14 misdemeanor and, if convicted, you could be fined 15 not more than $1,000 or imprisoned not more than 16 90 days? 17 A. Yes, ma'am. 18 Q. Thank you. 19 MS. SHULER: I would note that the 20 Midlands Citizens Committee found Mr. Odom to be 21 eminently and most highly qualified and a most 22 highly regarded candidate. 23 He is a driven enthusiastic and highly 24 motivated candidate. He would most ably serve on 25 the Administrative Law Court. 0076 1 I would just note for the record that 2 any concerns raised during the investigation 3 regarding the candidate were incorporated in the 4 questioning of the candidate today. 5 Mr. Chairman, I have no further 6 questions of Mr. Odom. 7 REP. DELLENEY: Thank you, ma'am. 8 Any member of the commission? Senator 9 Knotts. 10 SEN. KNOTTS: Mr. Odom, a question as 11 to your charge of disorderly conduct. You told us 12 what the fine was, you told us you were 13 intoxicated. 14 Obviously you were not charged with 15 being drunk and disorderly; you were charged with 16 disorderly. You never told us what the disorderly 17 was. 18 MR. ODOM: Well, what happened was we 19 were in a hotel, and several fraternity brothers 20 and myself were walking around openly consuming 21 alcoholic beverages. 22 And I was extremely intoxicated, not 23 just me, but several of the other guys that were 24 with me, were asking people as a joke for their ID. 25 Other people that appeared under age, we were just 0077 1 asking them for their ID. We really -- it was -- 2 we were doing it just to meet girls. 3 SEN. KNOTTS: No problem with that. 4 MR. ODOM: My wife's seated here, 5 but -- 6 SEN. KNOTTS: Sorry I asked that 7 question with your wife here. 8 MRS. ODOM: I already know. 9 MR. ODOM: But in all seriousness, it 10 can be a laughing matter, but it really was the 11 eye-opener of my life and what led to me becoming a 12 much more mature and responsible adult. 13 REP. DELLENEY: Any other questions? 14 Senator Ford. 15 SEN. FORD: Yeah. When you defended 16 Revenue, what was your percentage, your winning 17 percentage? 18 MR. ODOM: Sir, I don't think I ever 19 lost a case with Revenue. 20 SEN. FORD: You defended a state 21 agency, you never lost a case. But you encourage 22 your clients, some struggling citizen to settle. 23 Can you think of -- can you give me an 24 example of a settlement that you made that would 25 be, you might say, a detriment to that particular 0078 1 citizen? Because when you settle, you get much 2 less revenue, right? 3 MR. ODOM: Well, it depends on the 4 risk. There's always risk involved. 5 SEN. FORD: But you have a winning 6 record at Revenue. 7 MR. ODOM: Well, I guess part of the 8 reason that is, is because I always strive to bring 9 a case that I thought department was right in. 10 If there was a case I thought the 11 taxpayer was right -- and this actually happened 12 several times -- I went back before the auditors, I 13 went back before the appeals folks. I said look, 14 guys, I don't think we're right here. I think the 15 taxpayer's right. 16 And I can think of at least two 17 instances right now where the entire assessments 18 were thrown out. 19 And the cases I did proceed to trial 20 on were the ones that I was confident that the 21 department was right. Now, as far as the ultimate 22 settlement decision, that was out of my hand. I 23 didn't have the ultimate say in whether or not we 24 settled a case. 25 But our procedure was if someone 0079 1 presented us with a settlement offer, we were 2 obligated to take it to the director of the 3 Department of Revenue or he was, I guess, 4 conflicted out we sent it to the deputy director. 5 They made the ultimate decision. 6 SEN. FORD: So I should not conclude 7 that when you were at Revenue, you were on the 8 public dole, so you can't lose anything. But as a 9 private lawyer, you know, you just said you didn't 10 want to -- that's not in your character. I think 11 the Midlands -- was it the Midlands? 12 MR. ODOM: Yes, sir. 13 SEN. FORD: They spoke highly of you. 14 So I need to ask you this question anyway, though. 15 By not representing your clients with 16 ALJ when you got a good percentage of winning, that 17 wasn't a sign of laziness and not giving them the 18 best possibility representation? 19 MR. ODOM: No, sir. I always -- you 20 know, even when I represented the Department of 21 Revenue I did so zealously. 22 But at the same time, I would never 23 have felt right about bringing a case that I 24 thought the taxpayer was totally, you know, right 25 and we were trying to just take a very, you know, 0080 1 inconsistent or something that's just way out in 2 left field position. 3 SEN. FORD: In representing a citizen, 4 have you regretted copping a plea on any case? 5 MR. ODOM: No, sir. 6 SEN. FORD: All right. 7 MS. SHULER: Mr. Odom, let me clarify 8 with you since you have been in the private 9 practice of law, you are currently with a big firm, 10 correct? 11 MR. ODOM: Yes, ma'am. 12 MS. SHULER: And is it correct that 13 part of the reason why you try to settle cases 14 rather than proceed to the Administrative Law 15 Court, is because your hourly rate would be so 16 great for those taxpayers that it's really in their 17 best interest if you can work out a fair 18 settlement? 19 MR. ODOM: Yes, ma'am. It's certainly 20 possible they can spend more in legal fees. You 21 know, I don't set my hourly rates, it's set by the 22 law firm. 23 But it's certainly possible that a 24 taxpayer could end up spending more money in legal 25 fees to -- you know, if you go to the 0081 1 Administrative Law Court what happens is you're 2 going to have to go all the way through the 3 judicial system, I mean you can spend more than the 4 tax itself. 5 It's really sometimes the best 6 advantage to sit down with the taxpayer and say 7 look, they have a very good argument here. There's 8 some risk involved in your proceeding. 9 But yes, the hourly rate is certainly 10 a factor in this. 11 SEN. FORD: I think you're an 12 honorable person because the Midlands Citizens 13 Council, they really do a good job evaluating, you 14 know, the candidates. So that's why I wanted to 15 make sure you understood I was not trying to accuse 16 you of anything. 17 MR. ODOM: Oh, I understand. Yes, 18 sir. 19 SEN. FORD: Because sometimes a lot of 20 lawyers just say well, Friday afternoon, I'm going 21 to go home, I ain't got time for this, blah, blah, 22 blah. But that's not you? 23 MR. ODOM: No, sir. I certainly 24 understand where you're coming from. 25 REP. DELLENEY: Any further questions? 0082 1 Okay. There being no further questions, Mr. Odom, 2 we appreciate your being here with us today. We 3 appreciate your wife coming with you. 4 And with that, I remind you of the 5 48-hour rule. 6 MR. ODOM: Yes, sir. 7 REP. DELLENEY: We issue a draft 8 report and it goes to the members of the general 9 assembly's desk. 48 hours later it becomes a final 10 report, our business is done, and we can't go back 11 and amend. 12 But before that time, it's just a 13 draft report and we can recall candidates, we can 14 recall witnesses to make findings in areas we're 15 concerned about. 16 It happens on very rare occasions, but 17 it has happened and usually those occasions involve 18 some allegations of impropriety in the election 19 process. 20 But with that, I thank you for being 21 here and hope you and you wife have a safe trip 22 home. 23 MR. ODOM: Thank you to all of you. 24 REP. DELLENEY: Thank you, sir. 25 (Mr. Odom exits the room.) 0083 1 (Ms. Rainsford enters the room.) 2 SEN. FORD: Mr. Chairman, may I ask 3 J.J. a question? 4 REP. DELLENEY: Sure. 5 SEN. FORD: Is the ALJ test different 6 from the rest of the test? 7 MR. GENTRY: Senator Ford, pardon me, 8 I'm a little sick. I think it's late nights. 9 Yes. Each of the judge candidates -- 10 judicial candidates, they get separate a test, and 11 each test is based on that position. So the ALJ, 12 they're just take an ALJ test. 13 SEN. FORD: That's the most difficult 14 position, ALJ? 15 MR. GENTRY: I wouldn't make that 16 determination. 17 SEN. FORD: I've been looking at the 18 scores. They're almost 25 percent lower than the 19 rest of the scores. 20 REP. DELLENEY: We have before us 21 today Ms. Kelly Rainsford, who seeks a position on 22 the Administrative Court Law, seat number four. 23 If you would, Ms. Rainsford, raise 24 your right hand to be sworn. Do you solemnly swear 25 to tell the truth, the whole truth and nothing but 0084 1 the truth, so help you God? 2 MS. RAINSFORD: I do. 3 REP. DELLENEY: Thank you, ma'am. Did 4 you bring people with you today? 5 MS. RAINSFORD: I did. I brought 6 actually some of my family and a couple of my 7 friends are with me, my parents, and my husband and 8 my sister and her son, and two of my friends. 9 REP. DELLENEY: We're are glad to have 10 all of you with us today. 11 MS. RAINSFORD: Thank you. 12 REP. DELLENEY: Glad you can be here 13 as well, Ms. Rainsford. 14 The Judicial Merit Selection Committee 15 has thoroughly investigated your qualifications for 16 service on the Administrative Law Court. 17 Our inquiry has focused primarily on 18 nine evaluative criteria which have included a 19 survey of the bench and bar, a thorough study of 20 your application materials, verification of your 21 compliance with state ethics laws, a search of any 22 newspaper articles in which your name may have 23 appeared, a study of any previous screenings you 24 may have been involved in, and a check for economic 25 conflicts of interest. 0085 1 There are no affidavits filed in 2 opposition to your candidacy or selection, and 3 there are no witnesses here to testify. 4 Do you have a brief opening statement 5 you'd like to make? 6 MS. RAINSFORD: I'd just like to say I 7 appreciate the opportunity to be here, and I thank 8 you for all of the time and effort that you put 9 into this process. 10 REP. DELLENEY: Thank you, 11 Ms. Rainsford. If you would answer any questions 12 our counsel has for you. 13 MR. GENTRY: Mr. Chairman and members 14 of the Commission, I have a few procedural matters 15 to take care of. 16 BY MR. GENTRY: 17 Q. Ms. Rainsford, in front of you are two 18 documents. Do you recognize the first document as 19 the personal data questionnaire you submitted as 20 part of your application? 21 A. I do. 22 Q. Is there any amendment you'd like to 23 make or file with your PDQ? 24 A. I did not have an amendment. 25 Q. Do you recognize the second document 0086 1 as a sworn statement you submitted as part of your 2 application? 3 A. I do. 4 Q. Is there an amendment you'd like to 5 make as part of your sworn statement? 6 A. There are no amendments. 7 MR. GENTRY: At this time, 8 Mr. Chairman, I would ask Ms. Rainsford's personal 9 data questionnaire and sworn statement be entered 10 as an exhibit into the hearing record. 11 REP. DELLENEY: Without objection, it 12 will be admitted into the record at this point in 13 the transcript. 14 (Exhibit Number 6 was marked for 15 identification.) 16 MR. GENTRY: Ms. Rainsford's sworn 17 statement with detailed answers to over 30 18 questions regarding judicial conduct, statutory 19 qualifications, office administration, and 20 temperament is included in your notebooks. 21 I have no concerns with the statement 22 and with the Commission's approval, I would ask 23 those questions be waived in this public hearing 24 today. 25 One final procedure matter I note for 0087 1 the record that based on the testimony contained in 2 the candidate's PDQ that's been included in the 3 record with candidate's consent, Ms. Rainsford 4 meets the statutory requirements for this position 5 regarding age, residence, and years of practice. 6 BY MR. GENTRY: 7 Q. Ms. Rainsford, why do you want to 8 serve as an Administrative Law Court Judge? 9 A. When I got out of law school, I was 10 not exactly sure what area of law I wanted to go 11 into. But once I found myself at the 12 Administrative Law Court and I clerked there for 13 two years, I realized how important the 14 administrative law is to just everyday citizens and 15 how much it involves all state agencies, or most 16 state agencies that we have. 17 And while I was there, I realized that 18 that was what I wanted to do. And ever since I 19 left the Administrative Law Court, I have focused 20 my career on administrative law and the pursuit one 21 day running for a judgeship at that court and. 22 Essentially that would be why I would like to be an 23 Administrative Law Judge. 24 Q. You briefly touched on this in those 25 comments. But can you explain to the commission 0088 1 how you feel your legal and professional experience 2 will help you be an effective administrate court 3 judge? 4 A. Well, as I said, when I left the 5 Administrative Law Court, I went into private 6 practice for two years. 7 And while in private practice, I 8 mostly dealt with DHEC-related cases, I represented 9 private parties, mostly wastewater utility 10 companies, and I was involved in the Administrative 11 Law Court process at that time. 12 And I later left and went to the 13 retirement system. They actually do some 14 legislative changes. Their cases started going to 15 the Administrative Law Court, and I actually 16 received a call from the retirement system asking 17 me to come and do their administrative law cases. 18 So I went there and I actually did 19 those for approximately three years until I was 20 actually promoted to a different position where I 21 oversaw the Administrative Law Court cases, but I 22 was not intimately involved in particular ones. 23 In the meantime, I tried over 20 cases 24 at the Administrative Law Court, and I also did an 25 argument at the Court of Appeals and at the Supreme 0089 1 Court for Administrative Law Court cases that 2 originally began in that venue. 3 Also, in the meantime while I was 4 doing all of that, I was also a member of SCARLA, 5 which is the South Carolina Administrative and 6 Regulatory Law Association. I've been a member of 7 that since it was started in, I believe, 2000. And 8 in -- I believe it was around 2004 or 2005, I 9 became a member of the board of directors for 10 SCARLA. 11 Our focus was essentially a seminar 12 that happens once a year to teach people about 13 administrative law, the updates, and other areas 14 that maybe they don't touch on. We also do 15 legislative changes, we cover those. And so I did 16 that. 17 And at the same time, I also was a 18 member of the Administrative and Regulatory Law 19 Committee of the South Carolina Bar. And between 20 those two organizations, I was able to keep up with 21 the areas of administrative law and the changes 22 that were ongoing that were outside of my venue, 23 outside of the area of administrative law that I 24 practiced. 25 Q. Are there any additional legal or 0090 1 procedural areas you feel you need to further 2 prepare for and, if so, how would you go about that 3 preparation? 4 A. I don't believe that there is anything 5 I would need to prepare to begin being an 6 Administrative Law Judge. 7 What I haven't dealt with are some of 8 the new jurisdictions that have come about since I 9 left, mostly the DMV cases that are -- but now the 10 appeals that go to Administrative Law Court. I've 11 never really dealt with those. 12 So it's possible that I would have, 13 you know, some training necessary for that and any 14 other areas that may have been acquired in the 15 jurisdictions of the Administrative Law Court since 16 around 2002 or 2004. 17 Q. Could you please tell the members of 18 the Commission what you think is the appropriate 19 demeanor for a judge? 20 A. I believe a judge, especially an 21 Administrative Law Judge, needs to not be arrogant, 22 needs to be fair in all of their decisions, needs 23 to consider the evidence that is presented before 24 them, and apply it appropriately based on the law 25 as it's written. 0091 1 But I think the biggest part is you 2 need to be fair, you need to not have a bias one 3 way or another based on state agency or a private 4 party, whether the private party is represented or 5 pro se. And I think that that would be the biggest 6 thing, honesty, integrity, and fairness. 7 Q. If you were elected to the bench, what 8 would you like for your legacy to be as an 9 Administrative Law Court Judge? 10 A. Well, hopefully they would -- everyone 11 would think that I was honest and I've worked very 12 hard, and that I was fair in all of the decisions 13 that I made, that I was consistent, and that I was 14 timely. 15 I just -- I would hope that I guess 16 pretty much what I just said about being honest and 17 having integrity, I hope that that's what I would 18 leave. 19 Q. Thank you, Ms. Rainsford. 20 Have you sought or received the pledge 21 of any legislator prior to this date? 22 A. I have not. 23 Q. Have you sought or have you been 24 offered a conditional pledge of support of any 25 legislator pending the outcome of your screening? 0092 1 A. I have not. 2 Q. Have you asked any third parties to 3 contact members of the General Assembly on your 4 behalf? 5 A. Not at this time. 6 Q. Have you contacted any members of the 7 Commission? 8 A. I have not. 9 Q. Do you understand that you are 10 prohibited from seeing a pledge or commitment until 11 48 hours after the formal release of the 12 Commission's report? 13 A. I understand. 14 Q. Have you reviewed the Commission's 15 guidelines on pledging? 16 A. I have, yes. 17 Q. Are you aware of the penalties for 18 violating the pledging rules? 19 A. I am. 20 MR. GENTRY: I would note that the 21 Midlands Citizens Committee found Ms. Rainsford to 22 be an eminently and most highly qualified and a 23 most highly regarded candidate. 24 The Committee noted that she is a 25 driven, enthusiastic, and highly motivated 0093 1 candidate who would most ably serve on the 2 Administrative Law Court. 3 I note for the record that any 4 concerns raised during the investigation regarding 5 the candidate were incorporated into the 6 questioning of the candidate today. 7 Mr. Chairman, I have no further 8 questions. 9 REP. DELLENEY: Does any member of the 10 commission have any questions for Ms. Rainsford? 11 There being no questions, 12 Ms. Rainsford, I'd like to thank you again for 13 appearing with us. Thank your family for coming 14 with you. 15 And with that, I'll remind you about 16 the 48-hour rule. We issue a draft report -- it's 17 just that -- for 48 hours until it lays on the desk 18 of the members of the General Assembly for 19 48 hours. 20 At that point it matures into a final 21 report of this commission for which we can't amend 22 or go back and change. But up until that time, 23 we're free to change the report. 24 There have been occasions where we do 25 a public hearing, brought the candidates back to 0094 1 testify, brought in witnesses to testify. That's 2 not done very frequently, but it has been done. 3 And usually that involves cases where there's been 4 some alleged impropriety in the election process. 5 And after having remind you of that, I 6 hope you and your family have a safe trip back 7 home. 8 MS. RAINSFORD: Thank you very much. 9 REP. DELLENEY: Thank you. 10 (Ms. Rainsford exits the room.) 11 (A recess transpired.) 12 (Ms. Robinson enters the room.) 13 REP. DELLENEY: We have before us this 14 morning Shirley Canty Robinson who seeks a position 15 on the Administrative Law Court, seat number four. 16 Ms. Robinson, if you would please 17 raise your right hand to be sworn. Do you solemnly 18 swear to tell the truth, the whole truth and 19 nothing but the truth, so help you God? 20 MS. ROBINSON: I do. 21 REP. DELLENEY: Thank you, ma'am. 22 The Judicial Merit Selection 23 Commission thoroughly investigated your 24 qualifications for service on the Administrative 25 Law Court bench. 0095 1 Our investigation has primarily 2 focused on the nine evaluative criteria which 3 included a survey of the bench and bar, a thorough 4 study of your application materials, verification 5 of your compliance with state ethics laws, a search 6 of newspapers articles in which your name may have 7 appeared, a study of any previous screenings, and a 8 check for economic conflicts of interest. 9 No one has filed any affidavits in 10 opposition to your candidacy for your election, nor 11 are there any witnesses here to testify. 12 Do you have a brief opening statement 13 you'd like to make? 14 MS. ROBINSON: I don't. But I would 15 like to say that I do appreciate the committee 16 entertaining my application once again. 17 REP. DELLENEY: We thank you for 18 applying. And with that, I would ask you to answer 19 any questions our counsel may have. 20 MR. WRIGHT: Good morning, 21 Ms. Robinson. 22 MS. ROBINSON: Good morning. 23 MR. WRIGHT: Mr. Chairman and members 24 of the Commission, I have a few procedural matters 25 to take care of. 0096 1 BY MR. WRIGHT: 2 Q. Ms. Robinson, before we enter your PDQ 3 into the record, do you have any amendments to that 4 document? 5 A. I do. And I have a letter here that 6 contains those amendments. 7 Q. If you can hand those to May there. 8 Thank you. 9 A. Thank you. 10 MR. WRIGHT: At this time, 11 Mr. Chairman, I would like to ask that 12 Ms. Robinson's personal data questionnaire be 13 entered as an exhibit into the hearing record. 14 REP. DELLENEY: Without objection, it 15 will be made part of the record at this point in 16 the transcript. 17 (Exhibit Number 7 was marked for 18 identification.) 19 MR. WRIGHT: Ms. Robinson also 20 provided a sworn statement with detailed answers to 21 over 30 questions regarding judicial conduct, 22 statutory qualifications, office administration, 23 and temperament. 24 That statement was provided to all 25 commission members earlier and is included in your 0097 1 notebooks. 2 I have no concerns with the statement, 3 and with the Commission's approval, I'd ask those 4 questions be waived in this public hearing today. 5 BY MR. WRIGHT: 6 Q. Ms. Robinson, do you have any 7 amendments to your sworn statement? 8 A. I don't. 9 MR. WRIGHT: At this time, 10 Mr. Chairman, I would like to ask that 11 Ms. Robinson's sworn statement be entered as an 12 exhibit into the hearing record. 13 REP. DELLENEY: Without objection, 14 Ms. Robinson's sworn statement will be made a part 15 of the record at this point in the transcript. 16 MR. WRIGHT: One final procedural 17 matter. I note for the record that based on the 18 testimony contained in the candidate's PDQ which 19 has been included in the record, with the 20 candidate's consent, Ms. Robinson meets the 21 statutory requirements for this position regarding 22 age, residence, and years of practice. 23 BY MR. WRIGHT: 24 Q. Ms. Robinson, why do you now want to 25 serve as an Administrative Law Court Judge? 0098 1 A. Well, for the past -- the short answer 2 is for the past eight years I've worked with the 3 Department of Labor, Licensing and Regulation in a 4 position where I function much like an 5 administrative judge, and I enjoy that position. 6 I think moving to the Administrative 7 Law Court will allow me to continue to do something 8 that I enjoy but on a grander arena but in a, I 9 guess I would say, higher arena. 10 Q. Ms. Robinson, although you address 11 this in your sworn affidavit, could you please tell 12 the members of the Commission what you think is the 13 appropriate demeanor of a judge? 14 A. I believe that judges should be fair 15 and at all times enter into a case being 16 open-minded, willing to listen to the evidence from 17 both sides, and that they should be courteous to 18 the litigants' attorneys, as well as those 19 litigants who come before them in a pro se manner. 20 Q. Ms. Robinson, if elected to the 21 Administrative Law Court and after having served, 22 what you would you like your legacy to be as a 23 judge on the Administrative Law Court? 24 A. Well, I'd like for anyone that comes 25 after me to hold me up as an example of what -- 0099 1 what's good, what's a good Administrative Law 2 Judge, as someone who was fair, someone who is, as 3 I said earlier, courteous, and that they would just 4 hold me up as an example of the ideal 5 Administrative Law Judge. 6 Q. Ms. Robinson, what suggestion would 7 you offer for improving the backlog of cases on the 8 docket in the Administrative Law Court? 9 A. That is a difficult question for me to 10 answer, since I'm not there. 11 I do know that there is an effort now 12 to go electronic in a lot of the court system, and 13 I think that will go a long way in eliminating any 14 backlogs and also, I think, by judges just being 15 diligent and, you know, getting the cases heard as 16 quickly as possible. 17 I don't believe that litigants should 18 be kept waiting for decisions or that cases should 19 be prolonged by -- with undue continuances and 20 whatnot. And I think that just exercising due 21 diligence would go a long way in eliminating 22 backlogs. 23 Q. Ms. Robinson, in your PDQ you 24 mentioned a foreclosure action filed against you in 25 2006 regarding a condominium that you own. 0100 1 Can you briefly tell the commission 2 the nature of this action and the status of that 3 case? 4 A. Okay. The nature of the action was 5 that I have a condominium which was previously my 6 primary residence, and I leased it to a gentleman 7 with the agreement that he would purchase that 8 condo once he got his credit in order. 9 It's been several years now and the 10 credit was never put in order. But apparently two 11 years ago -- part of our agreement was that he 12 would pay the mortgage, make the mortgage payment 13 as well as the redeem fee. 14 Approximately two years ago he stopped 15 making the redeem fee. I didn't know that he had 16 stopped making the payments, and the management 17 company nor did the board notify me about that. 18 And approximately five days or so 19 before the property was scheduled to be sold at a 20 foreclosure sale -- because an action was filed. I 21 was never served with the action. Apparently the 22 pleadings were served at the condominium unit on 23 the tenant. The tenant did not notify me. 24 Approximately five days before the 25 property was to be sold, I got some advertisement 0101 1 in the mail which brought the matter to my 2 attention. 3 I immediately called the board's 4 attorney and the property was pulled from the 5 foreclosure sale list, and we have ultimately 6 settled the matter. And an order of dismissal was 7 entered on November 18th. 8 Q. Ms. Robinson, your SLED report in your 9 amended PDQ reveals similar foreclosure actions 10 filed in '99 and 1994. 11 Can you please briefly explain the 12 nature of these lawsuits and their disposition? 13 A. Both of those matters are very 14 similar. When I lived in the property, the board 15 had a tendency of increasing the redeem fees 16 without giving any notice to the homeowners. 17 The bylaws have very specific 18 instructions about what you do when you intend to 19 raise the redeem. The board was not following the 20 bylaws. I met with the board, asked that they do 21 this before imposing increases. The board seemed 22 to feel that they didn't have to follow the bylaws. 23 So what I did was told them that until 24 they did, I would withhold any payments. I paid 25 the ongoing amount, but I refused to pay the 0102 1 increases. And that's what precipitated the 2 foreclosure actions. 3 Those cases, I thought it was resolved 4 after the first action because they ultimately 5 agreed we're going to follow the bylaws and the 6 case was dismissed. 7 A couple years later, the same thing 8 occurred. We went through the same process. The 9 ultimate outcome of that was that they agreed to 10 follow the bylaws and that -- but both of those 11 cases were resolved by dismissal. 12 Q. Ms. Robinson, your SLED report and 13 your amended PDQ also reveal a 1998 -- 1988 action 14 against you for repossession of a vehicle. 15 Can you briefly explain the nature of 16 this lawsuit and the disposition of that case? 17 A. Now to be honest with you, I can't 18 explain the nature of the lawsuit because I was 19 never served with the pleading. I didn't know 20 about that until I received a faxed copy of the 21 SLED report from Mr. Wright. 22 But I do recall that around that time 23 I did sign to allow my ex-husband to purchase the 24 vehicle, and I believe that the financing was 25 through GMAC. And undoubtedly the -- I do know 0103 1 that it was ultimately repossessed. So undoubtedly 2 this is the vehicle that was involved in this 3 lawsuit. 4 But like I said, I was not served with 5 the lawsuit, so I didn't know about it until I 6 received what you got. But ultimately that case 7 was also dismissed. 8 Q. Thank you, Ms. Robinson. I have a few 9 housekeeping issues. 10 Have you sought or received the pledge 11 of any legislator prior to this date? 12 A. I have not. 13 Q. Have you sought or have you been 14 offered a conditional pledge of support of any 15 legislator pending the outcome of your screening? 16 A. I have not. 17 Q. Have you asked any third parties to 18 contact members of the General Assembly on your 19 behalf? 20 A. I have not. 21 Q. Have you contacted any members of the 22 Commission? 23 A. Let me, just for clarity's sake, prior 24 to, I think, Representative Mack or Representative 25 Clemmons joining the commission, I did send out 0104 1 letters of intent and they remember included on 2 that list, but that was prior to them joining the 3 commission. But otherwise I have not contacted 4 members of this Commission. 5 Q. Do you understand that you are 6 prohibited from seeking a pledge or a commitment 7 until 48 hours after the formal release of the 8 Commission's report? 9 A. I do. 10 Q. Have you reviewed the Commission's 11 guidelines on pledging? 12 A. I did. 13 Q. As a follow-up, are you aware of the 14 penalties for violating the pledging rules, that 15 is, it's a misdemeanor and upon conviction the 16 violator must be fined not more than $1,000 or 17 imprisoned not more than 90 days? 18 A. I am aware of that. 19 MR. WRIGHT: I would note that the 20 Midlands Citizens Committee reported Ms. Robinson 21 to be a highly-qualified and a highly-regarded 22 candidate who would ably serve on the 23 Administrative Law Court. 24 I would just note for the record that 25 any concerns raised during the investigation with 0105 1 regard to the candidate were incorporated in the 2 questioning of the candidate today. 3 Mr. Chairman, I have no further 4 questions. 5 REP. DELLENEY: Anybody with the 6 commission have any questions? 7 There being no questions, 8 Ms. Robinson, we appreciate you coming before us 9 today and be willing to participate in the process. 10 You've been screened before. You understand the 11 24-hour rule? 12 MS. ROBINSON: I do. 13 REP. DELLENEY: And with that, I would 14 just hope that you have a safe trip back home and 15 wish you well. 16 MS. ROBINSON: Okay. Thank you so 17 much. 18 REP. DELLENEY: Thank you, ma'am. 19 (Ms. Robinson exits the room.) 20 SEN. McCONNELL: Mr. Chairman, at this 21 time I would move that the committee go into 22 executive session to review the -- 23 PROF. FREEMAN: Second. 24 REP. DELLENEY: All in favor. 25 (Members respond.) 0106 1 (The Members went into Executive 2 Session at 11:43 a.m.) 3 * * * * * 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0120 1 (The Members came out of Executive 2 Session at 11:59 a.m.) 3 REP. DELLENEY: Okay. Now, we will 4 vote on the candidates for Administrate Law Court, 5 seat four. All in favor of finding Deborah Brooks 6 Durden qualified and nominated, raise your hand. 7 MS. SHULER: One, two, three, four, 8 five, six, seven, eight, nine. 9 SEN. McCONNELL: Yeah. I've got his 10 right here. 11 MS. SHULER: You voted? 12 SEN. McCONNELL: Yeah. I voted on 13 mine. 14 MS. SHULER: Ten votes. 15 REP. DELLENEY: All right. Everybody 16 in favor of Christopher Holmes, raise your hand, 17 being qualified and nominated. 18 REP. CLEMMONS: Which one? 19 MS. SHULER: Christopher Holmes, one 20 vote. 21 REP. DELLENEY: All in favor of 22 Melody L. James being qualified and nominated, 23 raise your hand. 24 All in favor of Carol McMahan being 25 qualified and nominated, raise your hand. 0121 1 MS. SHULER: One, two, three. 2 REP. DELLENEY: Senator McConnell, did 3 you raise your hand? 4 SEN. McCONNELL: Yes, I did. 5 REP. DELLENEY: All in favor of 6 Leonard P. Odom being qualified and nominated, 7 raise your hand. 8 MS. SHULER: Two. 9 MR. HARRELL: Three. 10 MS. SHULER: Three, sorry. 11 REP. DELLENEY: All in favor of Kelly 12 Hunter Rainsford being qualified and nominated, 13 raise your hand. 14 All in favor of Shirley Kenny Robinson 15 being qualified and nominated, raise your hand. 16 MS. SHULER: One, two, three, four, 17 five, six, seven, eight, nine, ten. So two 18 automatic candidates, Deborah Brooks Durden with 19 ten votes, and Shirley Canty with ten. Mr. Holmes 20 has one; Mr. James, two; Ms. McMahan, four; 21 Mr. Odom, three; Ms. Rainsford, zero. 22 REP. DELLENEY: Everybody gets one 23 vote, all right. So the remaining candidates 24 are -- everybody gets one vote. So you can only 25 vote for one of those candidates. 0122 1 Christopher McGowan Holmes, anybody 2 for Christopher McGowan Holmes being qualified and 3 nominated, raise your hand. 4 MS. SHULER: Two. 5 REP. DELLENEY: Melody L. James? 6 SEN. FORD: Mr. Chairman -- 7 REP. DELLENEY: Yes, sir. 8 SEN. FORD: -- which candidate was the 9 young lady from Washington, D.C. who answered the 10 question about judicial activism? 11 REP. DELLENEY: That was McMahan. 12 SEN. FORD: Okay. 13 MS. SHULER: We've got Mr. Holmes. 14 SEN. KNOTTS: One vote, you said? 15 REP. CLEMMONS: Who are we voting 16 between? 17 REP. DELLENEY: We're voting for the 18 remaining candidates Holmes, James, McMahan, Odom, 19 and Rainsford. 20 REP. CLEMMONS: So Durden and Robinson 21 are in? 22 REP. DELLENEY: Durden and Robinson 23 are in. And we are now on James -- all right. 24 Holmes got two votes. Now we're on James. All in 25 favor of Melody L. James being qualified and 0123 1 nominated, raise your hand. 2 MS. SHULER: Two. 3 REP. DELLENEY: Three, three. 4 MS. SHULER: Sorry. 5 REP. DELLENEY: All in favor of Carol 6 Ann McMahan qualified and nominated, raise your 7 hand. 8 MS. SHULER: One, two, three, four, 9 five. 10 REP. DELLENEY: All in favor of 11 Leonard P. Odom nominated and qualified, raise your 12 hand. 13 All in favor of Kelly Hunter Rainsford 14 qualified and nominated, raise your hand. 15 Okay. We still have to have six. We 16 have got to do that vote again. 17 SEN. FORD: Anybody have to drop out? 18 REP. DELLENEY: Holmes had one, 19 James -- excuse me. Holmes had two, James had 20 three, McMahan had five, Odom had zero, Rainsford 21 had zero. So why don't we vote between the top 22 three or who do you want to vote -- 23 MS. SHULER: We have narrowed it 24 before. 25 REP. DELLENEY: Let's do the top three 0124 1 then, all right? So the top three will be Holmes, 2 James, and McMahan. All in favor of Christopher 3 McGowan Holmes being qualified and nominated, raise 4 your hand. 5 MS. SHULER: One. 6 REP. DELLENEY: All in favor of 7 Melody L. James nominated and qualified, raise your 8 hand. 9 MS. SHULER: One, two, three. 10 REP. DELLENEY: All in favor of Carol 11 McMahan qualified and nominated, raise your hand. 12 MS. SHULER: One, two, three, four, 13 five, six. 14 SEN. KNOTTS: You still got two? 15 MR. HARRELL: I still got two votes. 16 SEN. KNOTTS: That's nice. 17 MR. HARRELL: It's a luxury. 18 REP. DELLENEY: Okay. 19 SEN. KNOTTS: Who got that, McMahan? 20 MR. HARRELL: Yes. 21 REP. DELLENEY: Let's take a 22 two-minute break. 23 (A recess was taken from 12:04 p.m. to 24 12:10 p.m.) 25 REP. DELLENEY: We'll go ahead and go 0125 1 back on the record. 2 Ms. Shuler, do we have another matter 3 we need to take up? 4 MS. SHULER: Mr. Chairman, Adrian 5 Hammond, who had filed a complaint against Judge 6 Barber who is a Circuit Court Judge being screened 7 by the commission for reelection, approached staff 8 with additional information that he would like to 9 make the commission aware of. 10 And provided to the Commission members 11 are copies of the information that he would like 12 you to review. I would like to walk through these 13 documents with Mr. Hammond and then allow him to 14 make a very brief explanation for the record. 15 REP. DELLENEY: Okay, go right ahead. 16 I would remind you that you're still under oath. 17 MR. HAMMOND: Yes, sir. 18 BY MS. SHULER: 19 Q. Mr. Hammond, the first document that 20 you have before you is a letter from the Richland 21 County Clerk of Court Office signed by Judge Barber 22 dated October 31, 2006 setting the case of Hammond 23 versus State Record for a motion hearing on 24 November 27th, 2006; is that correct? 25 A. Correct. 0126 1 Q. The second document is another letter 2 signed by Judge Lee, chief administrative judge, 3 dated December 14th, 2006 scheduling a motion 4 hearing on January 2nd, 2007 in the same case. 5 A. That's correct. 6 Q. The third document is a letter 7 basically addressing to the commission the -- the 8 additional information that you want to make them 9 aware of concerning the status of Judge Barber as 10 chief administrative judge during the term of 2006? 11 A. Yes, ma'am. 12 Q. And the remaining three documents are 13 a motion to dismiss on behalf of defendant Night 14 Rider in the Hammond case filed on February 28th, 15 1997, an order granting defendant's motion to 16 dismiss in the Adrian Hammond versus Night Rider 17 case, the '97 case filed December 1st, '97, and an 18 affidavit of Frederick Mott in the Hammond versus 19 Night Rider case dated March 19th, '97; is that 20 correct? 21 A. Correct. 22 MS. SHULER: At this time I would like 23 to offer -- 24 REP. DELLENEY: As one exhibit? 25 MS. SHULER: As one exhibit for the 0127 1 record. 2 REP. DELLENEY: We will accept all 3 those documents as one exhibit in the record for 4 screening of Judge Barber, and it will be done at 5 this point in the transcript. 6 BY MS. SHULER: 7 Q. Mr. Hammond, briefly explain to the 8 commission what is the additional evidence that you 9 would like to put before them concerning Judge 10 Barber's character and fitness? 11 A. First of all, when we had a hearing 12 the other night on the 2nd, he was under oath, 13 correct? 14 REP. DELLENEY: Yes, he was. 15 MR. HAMMOND: Okay. Judge Barber, in 16 that period just past, had -- gave us -- presented 17 to us a court document countering what I was 18 accusing him of , and that's ex parte communication 19 without me knowing with another party to my -- 20 somebody who I thought for me act to my detriment. 21 Judge Barber made a point that there's 22 no way that he could assign himself to the case 23 because he wasn't the chief administrative judge at 24 the time that the notice came for us to come to 25 court to hear the motion granted. 0128 1 Judge Barber didn't hear it in the 2 state house. I presented this commission with the 3 order to dismiss setting the date to go to trial. 4 And his name on the December 14th notice, his name 5 is not at the bottom of that -- of this form 6 claiming he's administrative judge. 7 Now what I would like to point out to 8 the commission is if I can turn your attention to 9 the October 31st, 2006 notice, and if you would 10 look down at the bottom you would see James Barber, 11 III as chief administrative judge, okay. 12 If I can refer your attention back to 13 the December 14th notice, you see the same year 14 Alison R. Lee is noted as the chief administrative 15 judge, all right. 16 What I did this morning is, I called 17 Ms. Lee's office at the Circuit Court, and I asked 18 her what year did she actually became chief 19 administrative judge, what date in time, and it was 20 January 1st, 2007. 21 So therefore James R. Barber not only 22 lied to this commission, but he fraudulently put 23 Ms. Lee's name when she was not the chief 24 administrative judge, signaling that she's the one 25 who assigned him to the case, when that wasn't the 0129 1 case. 2 He, Judge Barber, assumed 3 responsibility as chief administrative judge 4 January 1st of 2006, and that particular position 5 lasts for a year, from December 1st -- from 6 January 1st of '06 to the end of that year. And 7 after that, January 2007, Judge Lee assumed 8 responsibility. 9 So like I said, Judge Barber committed 10 fraud to this commission by actually putting Judge 11 Lee's name down as the chief administrative judge 12 when, in fact, she wasn't at the time of this 13 letter which is dated December 14th, 2006. 14 May I ask the commission once again, 15 was Mr. Bender under oath, Jay Bender, the attorney 16 for The State newspaper, he was under oath too, 17 right? 18 REP. DELLENEY: Correct. 19 MR. HAMMOND: He made the statement 20 saying that he notified me and Ms. Lee of him not 21 being able to attend the matter. 22 Refreshing your memory again, that's 23 the matter where I said ex parte communications, 24 put him on notice, back on the document for him to 25 cover up past fraudulent misrepresentation of the 0130 1 law. When that point came, I lost myself for a 2 second. Mr. Bender -- 3 REP. DELLENEY: Mr. Bender is not 4 being screened. 5 MR. HAMMOND: Well, you already said 6 that the other night. But I felt that me 7 personally, I felt like that his testimony's 8 supposed to be something you decide on whether 9 Judge Barber screen decide. I felt like I should 10 be able to challenge what he said if it's going to 11 help you in making a decision. 12 REP. DELLENEY: We just screened Judge 13 Barber. 14 MR. HAMMOND: Well, he lied under 15 oath. 16 REP. DELLENEY: We're going to take 17 all this information. We've accepted it as an 18 exhibit and we'll investigate. 19 MR. HAMMOND: Judge Barber, in fact, 20 announced to me that he was not going to be able to 21 make -- let just Lee know. That's a lie. Because 22 if you go to the Richland County Judicial Circuit 23 public index search, regardless what's in the file 24 at the courthouse -- anybody can go get the file 25 and take things out. 0131 1 REP. DELLENEY: We are going to take 2 these exhibits and we'll investigate them. 3 MR. HAMMOND: Sir, if you check the 4 files of the court, you might not find that in the 5 particular files. But if you go into the Web site, 6 everything that's been submitted concerning this 7 particular case would be listed on a particular Web 8 site. 9 Mr. Bender's letter notifying that he 10 won't be able to make it to the hearing is not on 11 the Web site, the ex parte letter that they claim 12 that, you know, got kind of construed, was not on 13 the list. But everything that submitted in the 14 Circuit Court by the particular matter would be 15 documented as received to the court. 16 REP. DELLENEY: All right. We accept 17 all that and we'll investigate. 18 MR. HAMMOND: Okay. 19 REP. DELLENEY: All right. Thank you, 20 sir. 21 SEN. KNOTTS: Thank you. 22 REP. DELLENEY: Appreciate you coming 23 back. 24 MR. HAMMOND: Sir, one more thing too. 25 As far as Mr. Barber, his ex parte case is, of 0132 1 course, to cover up his ongoing fraud, the fraud 2 you will see in the letter I submitted to the 3 commission. 4 And if you -- if I can direct your 5 attention real quickly to the order dismissing the 6 complaint in '97 if you note that he filed to 7 dismiss the 12(b)(1) and 12(b)(6). 8 One was never addressed in the order 9 dismissing the complaint, and that should have been 10 the sole reason why they should dismiss the case, 11 dismiss the complaint, but instead he chose a 12 misleading reason. 13 REP. DELLENEY: Thank you, sir. We'll 14 take a look at all that. We've made a record of 15 your statement, and it's been recorded. Thank you, 16 sir. 17 MR. HAMMOND: Thank you, Commission, 18 for hearing me. Again, I really appreciate it. 19 Any questions? Because some of this is significant 20 and I think there's certain questions. 21 REP. DELLENEY: There being no 22 questions. 23 MR. HAMMOND: Thank you, sir. 24 SEN. FORD: Mr. Chairman, can we call 25 on Roger Young? 0133 1 (Mr. Hammond exits the room.) 2 (Judge Young enters the room.) 3 REP. DELLENEY: Good afternoon, Judge 4 Young. 5 JUDGE YOUNG: Good afternoon. 6 REP. DELLENEY: We have before us the 7 Honorable Roger M. Young from Charleston, who 8 currently holds a position on the Circuit Court, 9 Ninth Judicial Circuit Court, seat number three. 10 If you would, Judge Young, raise your 11 right hand to be sworn. Do you solemnly swear to 12 tell the truth, the whole truth and nothing but the 13 truth, so help you God? 14 JUDGE YOUNG: I do. 15 REP. DELLENEY: All right, sir. Of 16 course you know the purpose of our conducting this 17 public hearing. 18 JUDGE YOUNG: Yes, sir. 19 REP. DELLENEY: We'll just go straight 20 to the issues. If you would answer any questions 21 our counsel might have. 22 JUDGE YOUNG: All right. 23 MR. FIFFICK: Good morning, Mr. Young. 24 The Judicial Merit Selection Commission calls you 25 here today to address allegations made under oath 0134 1 by William J. Thrower in a public hearing on his 2 bid for Circuit Court At Large, seat six. 3 Mr. Thrower made note of a specific 4 allegation and expressed that he does not agree 5 with your work ethic generally. 6 I will read each of these in the 7 record, allow you to respond, and then open the 8 floor to questions from members of the Commission. 9 First, from Mr. Thrower's specific 10 allegations from the record. And again, this is 11 Mr. Thrower on the record. I was sitting in court 12 on a case that a client of mine had signed up, was 13 going to plead guilty and get a time-served 14 sentence. 15 He had a possession of marijuana 16 charge and he had been in jail for so long that it 17 was just time to -- there was no point in 18 probation. He had maxed out the sentence. 19 I was sitting there waiting for my 20 case to be called since nine o'clock. We didn't 21 start on time, and there were a couple of breaks. 22 And at 11:30, unannounced, the judge got up and 23 said I've heard enough cases for this morning and 24 then got up and walked out of the courtroom. 25 And I didn't have availability to come 0135 1 back at two o'clock. I had hearings at another 2 courthouse at that time. My client had to sit 3 another ten days before I could get back in front 4 of the judge and get him sentenced to time-served, 5 which could have happened ten days before that. 6 And all that happened was that the 7 County incurred all of these expenses of housing 8 that guy for ten more days. It's just frustrating 9 to me to practice and to see the system just flat 10 out not work. 11 A dear friend of mine, I'm sorry. I 12 like the guy, I've always liked the guy. I don't 13 know what happened in that situation, but he got up 14 and left. My plea didn't get heard and a lot of 15 other people stood around there wondering what on 16 earth happened. 17 How do you respond to that allegation? 18 JUDGE YOUNG: Well, first of all, 19 thank you for giving me the opportunity to come 20 here and address it. You know, when you called me 21 yesterday afternoon I was, you know, somewhat taken 22 aback. 23 I thought about it all last night and 24 I'm trying to remember any incident that he's 25 talking about, and I have no recollection of any 0136 1 specific incident. 2 The only thing that I can come up with 3 is over the last year, I have -- I've been the 4 chief admin for civil for Charleston and Berkeley 5 County, so I haven't done that much Criminal Court 6 in the last few weeks or in the last year. So I'm 7 trying to think when's the last time that that I 8 had Criminal Court that he could possibly be 9 talking. 10 And the best that I could come up with 11 back was in October. And in that, the only days 12 that I can remember that I left the bench before 13 12:00 would be a Thursday that I was invited to go 14 speak to the West Ashley Rotary Club, and I told 15 the clerk -- or the court coordinator for the 16 solicitor's office that I had to leave early that 17 day to go speak to the West Ashley Rotary Club. 18 Now, a lot of people don't know this, 19 even a lot of lawyers apparently don't know this, 20 but the judges don't control the docket on the 21 general session side. We do on the civil side, and 22 there's a chief admin on civil. I control what 23 gets called and when it gets called and who gets 24 called. 25 But on the criminal side, the 0137 1 solicitor controls the docket. So when I go in 2 usually on Monday, I tell him if I have a 3 particular conflict or if I have to leave or 4 something's up that week. 5 There's a guy named Charlie McKinney, 6 and again I'm trying to remember if I told him on 7 Monday or if I told him on Thursday, I probably 8 told him both. But it's like Charlie, I have to 9 leave early today to go speak to the Rotary Club. 10 As to what particular cases get called 11 that day and what pleas get called, I have no 12 control over that. I don't even know what ones 13 they are until the solicitor calls the name of the 14 case, and then I hear it. 15 So that's the only thing that I -- 16 because my normal practice is to take lunch 17 somewhere between 12, 12:30, depending on if we're 18 in court when we have a witness and it would be a 19 normal break for testimony. 20 On general sessions court, it's 21 usually 12, 12:15, because what you have to do is 22 you have to coordinate the jail staff with the 23 deputies' transport, because in Charleston the 24 jail's ten miles from the courthouse. 25 So they have to take the morning 0138 1 folks, over bring the afternoon crowd back in. You 2 have to have -- give time for the lawyers to meet 3 with their clients when they get in there and get 4 them signed up. 5 I about racked my brain and that's the 6 only time I can come up with in the last year that 7 I left court before 12 o'clock, unless we just 8 happened to be finished and court broke down. But 9 to have actual people standing around waiting and 10 maybe still need a hearing, it's like well, I'm 11 sorry, I already had a prior obligation and we'll 12 hear it in the afternoon, whatever's left. 13 That's the best I can come up with. I 14 racked my brain on this. And it happened to be the 15 week that I had to come up here to take the exam on 16 Tuesday morning, had to appear before the Low 17 Country Citizens Group in Orangeburg on Wednesday. 18 And so I imagine that the solicitor's 19 office probably overbooked just to try to make up 20 for the slack, you know, that -- the missed court 21 time. That's the best I can come up because 22 there's no date or anything on when this actually 23 happened. 24 And as I say, if I had any indication 25 that he needed five more minutes to have another 0139 1 one, I'd have done the best I could to accommodate 2 him. But again I was speaking to a Rotary Club, 3 and I told him before I have to be over there by 4 12:15. So that's -- 5 REP. DELLENEY: Senator Ford. 6 JUDGE YOUNG: Yes, sir. 7 BY SEN. FORD: 8 Q. I want to let the committee know that 9 you and I go back a long, long ways and we have a 10 good working relationship. 11 But we got a major problem in 12 Charleston. And about three years ago, Senator 13 McConnell appointed a task force to look into the 14 high crime -- well, it started in Charleston and 15 the rest of the state. 16 Since you're familiar with Charleston, 17 all the murders and everything, you're familiar 18 with Mayor Riley, and Mayor Summey, and the chief 19 of police almost on the nightly basis on the news 20 talking about these repeat offenders committing all 21 these serious crimes. 22 And so what we're trying to do, what 23 I'm trying to do along with the Charleston senator 24 representative, we're trying to get the court 25 system in Charleston -- because we got one-third of 0140 1 the backlog in the state. You're talking about 2 104,000 in the Charleston area, in the Ninth 3 Circuit. And that's your circuit, and we want 4 y'all to clean it up. 5 And based on what we've been hearing 6 in this committee, Friday's out of the question for 7 judges to work. Thursday afternoon it would be a 8 miracle if you find somebody after 12. And if you 9 can find a judge in court at 9:30, ten o'clock, 10 that's another miracle. 11 So we're talking about three miracles. 12 9:30 in the morning, ten o'clock, it might, you 13 know, start cold, Thursday afternoon 12 o'clock 14 they're gone, and Friday's out of the question. 15 Now with that kind of backlog in 16 Charleston, there's no way for the system to catch 17 up with all these guys in the street online and 18 committing all these crimes, particularly murder. 19 That's -- you and I live in that area. You still 20 live in North Charlotte. 21 A. Uh-huh. 22 Q. Yeah. And so we need your help to 23 resolve this. And the reason you're here now is 24 because of the fact that this gentleman mentioned 25 your name, in particular, about the fact that you 0141 1 left court 11:30. 2 And then his next comment was that 3 that's what most judges do in the Ninth Circuit 4 anyway. And no, we don't want to hear that. 5 A. Well, I had -- I'm sorry. 6 Q. Go ahead. 7 A. As to that particular day, I've given 8 you the only explanation that I can think of. The 9 only day I recall leaving early. 10 Q. What's your average day? 11 A. As far as myself -- and I have to 12 defend my fellow judges -- for somebody to say that 13 there are no judges in Charleston holding court on 14 Thursday afternoon or Friday, I have to take issue 15 with that. 16 There's two -- of course we're 17 separating and Criminal and Civil. And again, 18 Civil's my concentration this year. I haven't held 19 that much Criminal Court this year. 20 But on a typical week -- I'm doing 21 general sessions this week. Monday morning 9:30, I 22 had 29 probation hearings between 9:30 23 and 12 o'clock. Two o'clock I went back, I held 24 court until five o'clock. 25 Tuesday morning it was 9:30 to 12, 0142 1 then two to five. Yesterday was same thing. Today 2 I was going to be holding court again. I was 3 actually supposed to come up tomorrow and meet with 4 the chief justice, and I had to cancel court for 5 tomorrow. 6 But when -- I called her on the drive 7 up and said look, I've got to come testify here, 8 can you meet me after I meet these folks so I can 9 hold court tomorrow. 10 So I called Scarlett Wilson -- or sent 11 her an e-mail and said look, I've been able to 12 rearrange my meeting with the chief, and I can hold 13 court on Friday morning for you. 14 But that's -- on a -- in Charleston we 15 do -- we're a very fortunate court administration, 16 can give us usually two terms of court whenever we 17 have it. And so we usually have a trial judge, and 18 we have a plea court judge every week. The trial 19 court judges are doing trials, the plea judges are 20 doing pleas. 21 It's been my experience that whenever 22 trial court judges are finished with trials for the 23 week, they will take the overflow on plea court and 24 accommodate that. That's been my experience. 25 On the Civil Court -- 0143 1 Q. Tell me about Friday. 2 A. Friday morning's the same thing. We 3 always have court scheduled on Fridays at least 4 until noon on plea court week. Jury trials are -- 5 it depends on when the juries are done, you know, 6 when the case gets done. 7 If you start and finish a case and the 8 jury comes in with a verdict on Thursday afternoon, 9 it's highly unlikely you can start another case on 10 Friday morning because -- to pull witnesses 11 together and things like that. 12 So if it's at all possible if the 13 judge -- it's an out-of-town judge, the judge will 14 usually stay if we ask them to. But they'll hold 15 the overflow and do extra pleas. 16 I'm baffled somewhat by the accusation 17 because my colleagues are some of the hardest 18 working people in the state. 19 I know I've watched the chief do this 20 presentation she does where she says South Carolina 21 has the most cases assigned per judge in the entire 22 United States, 3,800 per judge. That's not evenly 23 distributed across 46 counties. It's like double 24 that in Charleston. 25 So we have usually three or four 0144 1 judges a week in Charleston. We usually are 2 running double terms in court, Criminal and Civil. 3 In my experiences, these judges work as long as 4 there's work to be done. They're there. 5 And if we can't -- if they're doing 6 trials, sometimes it's not possible to pull 7 together a trial on a Friday morning if one got 8 finished on a Thursday afternoon. And we may say 9 okay, we don't have anything else for you to do, 10 you can go on back. 11 But there are out-of-town judges 12 willing to stay. And if the various forces can 13 pull together something at the last minute, we'll 14 do that, but -- 15 Q. Let me ask you a question. Can you 16 organize a workshop and help us, you know, have the 17 solicitor and judges in Charleston and visiting 18 judges and the lawyers we need to find a way to 19 reduce that backlog. 20 A. Absolutely. 21 Q. I know you don't like when Mayor 22 Riley, or Mayor Summey, and not even Mayor Hallman 23 going on TV -- you know they're going to blame the 24 General Assembly first. 25 They're going to say those General 0145 1 Assembly people not giving us enough judges so 2 somebody say that Charleston judges have these -- 3 no, they say -- what's the term, retirement, lawyer 4 retirement. 5 A. Judge Houston is a retired active, and 6 if it weren't for -- 7 Q. No. I'm talking about -- you are -- 8 one of them senators, like it was Senator Knotts, 9 referred to you guys as all of you were in, I 10 think, early retirement by becoming a judge or 11 something. 12 That's how you see it? 13 A. Not at all. My experience with the 14 retired active judges is they work just as hard 15 as -- 16 Q. No, not that. Lawyers becoming judges 17 and it's considered an early retirement. 18 A. Well, then they need to come get and 19 assigned to Charleston because we work -- we have 20 more than enough work for them to do. 21 And, in fact, on the -- in Charleston, 22 our master in equity, the chief justice we got him 23 appointed as a special Circuit Court Judge. And he 24 helps us do probation and criminal pleas. 25 Judge Houston is available, he's 0146 1 full-time active. And if it weren't for him, we 2 would be far more backlog than we are. He's 3 basically working during this retirement years for 4 free he doesn't get paid anything extra. 5 He and I share office suite. I thank 6 the Lord every day for him because he can come up 7 tomorrow and say I don't want to do this anymore 8 and we'd be totally hosed. You know, there are 9 things that are outside of our control on some. 10 Like we've just -- I got an e-mail 11 earlier this week. We lost two terms in court for 12 next week and the week after because we had -- one 13 judge died last summer and that shorthanded us. 14 Judge Saunders' cancer's apparently reoccurred. He 15 was assigned to be with us for two weeks. 16 So we just lost two terms of court, 17 next week and the week after. So, I mean, we're 18 doing the best we can and I don't know -- it's 19 very, very frustrating to have somebody say they 20 are not holding all the court we can when, you 21 know, we're doing things like I've got -- you know, 22 I know one of the things that Bill brought up in 23 his statement yesterday was that you can't get a 24 nonjury motion heard. Well, we get as many nonjury 25 weeks as court administration will give us. 0147 1 And back last summer sent out a memo 2 to the bar that said look, we're having a shortage 3 of nonjury, we have -- I'm putting you on notice 4 that the rules say you get ten days' notice to have 5 a motion heard. I said I'm hereby putting y'all on 6 notice that is the trial judge finishes early that 7 week, we're converting the rest of that week to 8 nonjury. 9 And so all of our trial judges hold 10 trials and then they become nonjury. So we call 11 them as fast as we can. I mean, it's 12 extraordinarily frustrating. 13 But I do appreciate the opportunity to 14 tell you about it because most people think that 15 what judges do is in court. It's about 50 percent 16 of what we do. A lot of it is outside of court, 17 it's administrative stuff. 18 But if you're not involved in that 19 part of the system, it's not possible to 20 understand. I didn't understand it before I became 21 a circuit judge, how much of the job was 22 administrative. 23 But you know, on a typical workday 24 I'll come at nine, I'll have two -- I'll have a 25 status hearing at nine, I'll have a status hearing 0148 1 at 9:15. I'll go to court at 9:30, break for lunch 2 at 12 to 12:30, have two more status conferences or 3 motions hearing before we go back from lunch, and 4 then hold court in the afternoon. 5 It's hard to imagine to be able to do 6 more. And I'm not saying I'm the -- Markley Dennis 7 works ten times harder than I do, and I don't know 8 how he does it. But everybody down there is 9 carrying their load and it just is enormously 10 frustrating. 11 I know it's frustrating, I used to be 12 a lawyer. And you try to get a hearing and they 13 just -- the numbers that we have in a county like 14 Charleston is -- sometimes it seems overwhelming, 15 but we are -- the clerk's office works well, the 16 solicitor's office who works with the judges. 17 And we do meet regular, and we do need 18 to do better job at educating the public and 19 obviously the bar how these things happen, because 20 we do work as much as we can get court time. We're 21 are in court. 22 And I understand where the bar could 23 be frustrated sometimes and going why can't I get 24 hearing. But it's just the numbers are so large. 25 REP. DELLENEY: Senator Knotts. 0149 1 SEN. KNOTTS: Thank you, Mr. Chairman. 2 BY SEN. KNOTTS: 3 Q. Judge Young, I certainly appreciate 4 you coming up and addressing this issue. 5 But you understand we sit up here year 6 in and year out listening from the senators from 7 Charleston and having hearings with the mayors 8 coming up, talking about the crime in Charleston. 9 You know, we have crime all over this state. 10 But then we sit here, sit in these 11 hearings, and we hear the chief justice ask for 12 more judges because of the tremendous backlog 13 throughout this state. 14 We hear judges come up saying that we 15 need more terms of court and it's our duty to try 16 to provide that service to the citizens of South 17 Carolina. And we appoint judges that are willing 18 to work and willing to address those issues. 19 And, you know, we felt like we were 20 doing a pretty good job, but yet we sit around here 21 whenever we have people who apply for judges and 22 judgeships thought the states, not just Charleston. 23 And they come up and they tell us why they want to 24 be a judge, and we ask them questions. 25 And one of the questions I ask, 0150 1 because I've been involved in the court system 2 since 1968, and I've been in the solicitor's 3 office. I was the chief investigator for the 4 solicitor's office. 5 I prepared court cases for the 6 dockets, and know what it's like to keep the court 7 running. Under judges back then, it demanded you 8 work on Friday afternoon. 9 And then we hear candidates that apply 10 for these judgeships. And this week alone out of 11 the total amount of candidates that we interviewed, 12 I asked the question to probably 90 percent of 13 them: What is the work ethic that you would have? 14 And I also asked them about the work 15 ethic of the current system in there county. And 16 they all said Friday afternoon's a ghost town in 17 the State of South Carolina basically. But they 18 didn't say it like that. 19 But I know and you know there is 20 something for a judge to do five days a week during 21 normal working hours, whether it be hearing 22 probation violations, bond setting, cleanup that 23 you can fill in on that Friday that a court breaks 24 down with a jury trial. 25 Sure, you don't want to start a 0151 1 three-day jury trial on Friday, no judge wants to 2 especially when he's not going to be there the next 3 week. I understand that, and the citizens 4 understand that. 5 But when we got people that can't find 6 judges Monday through Friday from nine to five with 7 complaints that says -- and I've seen this 8 firsthand because I visit courtrooms. Judges say 9 what -- we're going to start court at nine o'clock 10 in the morning and they straggle in there at 9:30, 11 9:45 because they've been back in the back. 12 Whenever a judge says he takes the 13 bench, he ought to take the bench and not have a 14 reception back in the back room for the local 15 attorneys to shake his hand and tell him they 16 haven't seen him for a long time. They can do 17 that, you know, some other time. 18 But to have the public and the jury 19 sitting out there waiting on a judge to come to 20 qualify the jury on Monday and take all day on 21 Monday to either qualify the jury or take motions 22 and stuff like that, to waste a whole day Monday, 23 finally get a jury started on Tuesday, and then on 24 Thursday afternoon they go home, because you're 25 from out of town, and that's what we're hearing. 0152 1 And that's actually the reality. You 2 know, if it was just in one area, I'd say well, you 3 know, you got a problem in that area. That 4 wouldn't be a problem. But it's all over the 5 state, Judge. It's all over the state. 6 Nobody singled you out to come here. 7 The reason you're here is because it came up in the 8 record, that particular incident, and we have to 9 look into that to make sure that -- 10 A. I understand that. 11 Q. -- it's right. But you can't tell me 12 or convince me that a judge's job is from Monday at 13 nine or ten whenever he decides to get on the bench 14 until Thursday afternoon at four or Fridays morning 15 at ten, it's Monday through Friday. 16 And we have to get with the money we 17 have up here, we have to get the biggest bang for 18 the bucks because we don't have money to hire new 19 judges and why hire new judges if they're going to 20 take the same thing? 21 In fact, we have testimony down in 22 Charleston, they're on call in Family Court on 23 Friday afternoons. Well, would you work on Friday 24 afternoon to change it? 25 Well, not every Friday afternoon, you 0153 1 know. It's appointing you judges to go into the 2 same system to continue the problem of not trying 3 to clear up a backlog. 4 There's motions, and anything can be 5 done on Friday afternoon instead of a judge saying 6 well, I live in Greenville and I'm going home. 7 When you take this job, you know you live in 8 Greenville, you know you're going to have to travel 9 if you're an at-large judge or just a judge at all. 10 And that's what we're looking for, 11 people that want to do the job and get the biggest 12 bang. 13 How many times can you remember saying 14 that you're going to take the bench at nine or ten 15 or whatever time it was and you didn't show up 16 exactly on time and had people waiting? 17 A. I have considered somewhat angling 18 that respect in that and that -- especially when 19 I'm dealing with a jury, I go insane if I tell them 20 to start at 9:30, I expect to be starting at 9:30. 21 And as I tell the jury, if we're not 22 starting at 9:30, somebody's getting their head 23 ripped off either in court out of court as to why 24 we didn't start at 9:30, because I love working 25 with juries. 0154 1 And I tell them when I'm qualifying a 2 jury on Monday morning, and we respect the fact 3 that we are pulling you out of your normal life, we 4 are asking you to do something that has totally 5 disrupted your life and is costing you money, and 6 we don't have people sitting around usually doing 7 nothing. If we don't have them in court, then we 8 send them home so they can go to work or do 9 whatever. 10 What happens from time to time is, for 11 instance, if you're -- and again, I don't want to 12 get sidetracked off on lawyers coming back and 13 wanting to glad-hand you, because in Charleston 14 they don't get to do that that much because of all 15 the security that they have to get through. 16 That's probably the number one 17 complaint the bar has, that judges aren't 18 accessible because of all the security hoops they 19 have to jump through, but that's a side issue. 20 But what happens a lot of times is, 21 for instance, I told you I try to have a status 22 conference or a motion hearing at nine or 9:15 and 23 you're scheduled 15 minutes, and the next thing you 24 know you're over into a 30-minute hearing and 25 you've done the best you can. Everything doesn't 0155 1 fall into those little compartments. You try to 2 hold court when you say you're going to hold court. 3 When I'm -- when the case is called 4 and I'm in control of it, I get to control when we 5 start, I get to control when we finish. On a week 6 like general sessions court -- and this used to 7 frustrate me because I didn't understand it until I 8 got to be a Circuit Court Judge. 9 I always say we'll start at 10 nine o'clock in the morning. On a good day, 11 we'll -- they will have a plea ready at 9:45, but 12 most of time it's ten. And you go well, why is 13 that? 14 It took me a while to understand the 15 logistics that you have to pull together 15, 20 16 pleas in a morning. The jail has to bring the 17 people over to the courthouse. The courthouse 18 doesn't open before 8:30, so the lawyers can't get 19 in before 8:30. 20 Most of them, they get to their office 21 about 8:30, they come in, they then have to go and 22 meet with their clients, they have to sit down with 23 them, again talk them into doing a plea, they have 24 to sign the sheets and then they have to go back up 25 and after -- and especially when you're dealing 0156 1 with the public defender's office, they may have 2 six or seven clients themselves. 3 And so the logistics of getting of 4 that pulled together and getting started before 5 ten o'clock, yeah, it frustrates me. But I've -- 6 and I've beat my head up against the wall trying 7 get them started before 9:30. 8 Yesterday they actually did pretty 9 good and had seven pleas lined up by 9:45, and then 10 process of the morning they had more done up. And 11 we got that day going. Some days are better than 12 others, but there's only so much that the judge can 13 do in a plea week like that. 14 We're in a big county and I have -- 15 and I'm telling you I'm not trying to throw anybody 16 under the bus, they have lot of people trying do a 17 lot of things. It's not just the judge showing up. 18 I show up when they call or send an 19 instant message down or they call and they say all 20 right, they got three or four or two signed up, 21 would you come on up. I had gone before when I 22 first got on the circuit judge, I would go up and I 23 would sit on the bench at 9:30 and wait on them 24 thinking well, maybe that will make something 25 happen and that will intimidate them to go. 0157 1 But that's when I look understood. I 2 had several people come and say look, you know, 3 please understand what's going on, these people are 4 not back there twiddling their thumbs, they're 5 having to meet with their clients, they're having 6 to get these people signed up. 7 There's a lot of paperwork that's 8 involved in our court system and in doing our 9 pleas, so I tell them we start at 9:30. And when 10 they tell me they're ready for me to come on the 11 bench, then I come on the bench. What I've done, 12 rather than sit there and twiddle my thumbs and try 13 to look intimidating, I do paperwork in the back. 14 And I have lot of it to do. 15 When I go into court, I'll come back 16 two hours later and there'll be a stack that high 17 in my box. I'll process that. When I come back 18 two hours later, there'll be another stack that 19 high. So it's -- I understand from the outsider's 20 view how it can appear that why isn't the judge on 21 the bench. 22 There's a lot of factors that go into 23 that, and I cannot speak for everybody in every 24 county. But I can just tell you in a circuit like 25 down in Charleston, it's a -- there are a lot of 0158 1 numbers and there are a lot of people trying to do 2 their best to get things running on time. 3 And I do not want to throw anybody 4 under the bus and say there's a breakdown in the 5 system. It's just a lot of people trying to do 6 their job. 7 And, you know, as far as Friday 8 afternoons go, there have been times when -- and I 9 got the idea Markley Dennis, it's not original with 10 me -- we'll set motion hearings at two o'clock on a 11 Friday afternoon and have the clerk's office set 30 12 of them. 13 Well, there's not a lot of lawyers 14 that want to show up at two o'clock on a Friday 15 afternoon, and a lot of those settle. And you 16 might end up having to do two or three on a Friday 17 afternoon. But we've disposed of a lot of them on 18 a Friday afternoon simply by virtue of setting 19 them. 20 And so we do that on a regular basis 21 and that makes a lot of those go away. So we try 22 to do innovative things and, you know, we're always 23 looking for new ways to do things. We're trying 24 this multi-week trial docket thing down in 25 Charleston, Beaufort, and Horry starting in 0159 1 January. 2 There's a lot of people trying to 3 think about these solutions, Senator. And, you 4 know, it takes time to figure out well, what's a 5 solution. Then you have to usually run it past the 6 committee, and you have to get people's input, and 7 then you have to wait for feedback on how these 8 things are going. 9 But there are a lot of good people 10 that are trying to look at these things, and we all 11 realize we have problems down there, and we're 12 working on it. We really are working on it. 13 SEN. KNOTTS: I appreciate your 14 statement in that area. But, you know, Judge, 15 obviously I know a little bit about the court 16 system -- 17 JUDGE YOUNG: Sure. 18 SEN. KNOTTS: And I know pleas aren't 19 stated to deciding whether a -- talking a person 20 into whether he's going to plea or not is not a 21 problem when the judge is supposed to be there at 22 ten. 23 Those pleas are worked out weeks 24 before time. They are worked out in the jail 25 population, sitting in jail waiting to have a judge 0160 1 sitting on the bench to take a plea. Those aren't 2 just something that's instantaneously well, this 3 guy, we got to talk him into a plea. 4 These lawyers know and they've worked 5 with the solicitors, they've have cut a deal, they 6 have -- sit around and talk a five-year sentence 7 down to a two-year sentence. And the solicitor's 8 office knows well, we'll take that up on Monday 9 morning with the judge. He'll be here at 9:00. 10 And then judge don't show at nine. Or Tuesday at 11 two, and the judge don't show at two. 12 We've have assistant solicitors 13 throughout this state apply for judgeships here 14 this week that they all have said we would have -- 15 I will be on the bench when I'm supposed to be, and 16 they volunteered it, because they didn't see 17 that -- they've all seen judges that don't show on 18 the bench whenever they're there, and they say they 19 want to have cases moved. 20 There's a way to move the system, but 21 the judge is in charge of the courtroom. You got 22 to be the head, you can't let the tail wag the 23 head. If the solicitors don't have a case to go 24 for a plea or a jury trial, then there's all types 25 of entities out there that want to have court. 0161 1 I mean, there's probation violations 2 all the time backed up with backlogs of people on 3 probation violation they want you to hear. There's 4 all kinds of motions for trials coming up in weeks 5 to come. 6 So I mean, I hope you weren't trying 7 to make the committee believe that all this starts 8 at the magic button of I'm going to be on the bench 9 on Monday at ten o'clock or nine o'clock and I 10 can't get on the bench at nine o'clock because they 11 got to work up the day 's work. That's not the way 12 it works in the modern day. That's not the way it 13 worked in the old day. 14 I'm very interested in supplying more 15 judges to the bench. If we're going to put more 16 judges on the bench to handle the backlog and to 17 work. And I just heard too much this week from 18 people that want to be judges that have had 19 problems getting judges. And that's the problem 20 that I have. 21 And I can't justify to the people of 22 South Carolina spending money to put more judges on 23 the bench whenever they go up and serve on juries 24 and they sit there all day on Monday and half the 25 day on Tuesday and maybe Wednesday before they get 0162 1 on the jury or if get called for a jury. 2 And that's the problem and the 3 perception that the judge in the courtroom is 4 relating it. They don't put it on the solicitor, 5 they don't put it on the clerk of the court. They 6 put it on the judge because they see that they sit 7 there and sit there and sit there, and the judge is 8 not there. 9 You can't dispose of a case without a 10 judge. I don't care what courtroom you're in in 11 this state. If the judge's not on the bench, you 12 can't dispose of the case. And we want the judges 13 on the bench, and we want him there when he says 14 he's going to be there. 15 If he's not going to be there at 16 ten o'clock, say I'm not going to be there at 17 ten o'clock, but walk in at ten o'clock and say 18 Mr. Solicitor, call your case. 19 And if you don't have the case, have 20 the probation officer. And if you can't find 21 someone on Friday afternoon, get the court reporter 22 and go to the jail and take pleas. 23 We had a judge, Judge -- the lady on 24 the Appeals Court that died with cancer, she was 25 the first to take that approach. And she went to 0163 1 the jail and she cleaned out Lexington County Jail 2 and made more bed space. 3 You know how frustrating it is to the 4 whole system whenever you can't get judges because 5 they're not on the bench to dispose of a case? You 6 have backups from the backlog in court, all the way 7 down to the police officer having a place to put 8 them in jail when they violate the law on the 9 street on Saturday night. 10 If the jail's full, he's got a 11 problem. They have to sleep on the floor or 12 somewhere. He's not going to turn his back to a 13 person to the public if the person has violated the 14 law out there. 15 So your not showing up on the bench 16 and not working on Friday afternoon -- I'm not 17 saying you, but the judges -- not working on Friday 18 afternoon or not working a full week for a full pay 19 hurts the entire system from the bench to the 20 barroom where they have a barroom fight and police 21 officers have to do their job and put them in jail. 22 So -- but I just have a problem with 23 people that are coming in here applying for 24 judgeships that are saying same one from all 25 different parts of the state that don't know each 0164 1 other, not a conspiracy to come up here and say 2 it's all on this judge or that judge, it's on the 3 judicial system itself. 4 And I want a judge that's going to 5 work Monday through Friday a full day. If you 6 don't want to do that, he needs to go ahead and 7 retire and go somewhere else because there's plenty 8 of people out there that won't do it. 9 A. I understand where you're coming from, 10 Senator, and I will pass that word on back to my 11 fellow judges. We have a computer list, sir, and I 12 will -- 13 Q. I hope it's out there by 14 three o'clock. 15 A. Pardon? 16 Q. I hope it's out there by three o'clock 17 so that they'll work this right. 18 A. I would also tell you I would be 19 delighted that if it were a Monday through Friday 20 job only, because there's been a number of times 21 that I'm in that courthouse on Saturday and Sunday 22 that, you know, I was going man, I thought this 23 would be more of a nine-to-five job. 24 But, you know, they -- it is -- I 25 understand what you are saying. 0165 1 Q. If you have to be out there on 2 Saturday or Friday, that's fine. 3 A. I don't mind at all, at least it's 4 part of the job. 5 Q. Make it public friendly -- 6 A. Yes, sir. 7 Q. -- for the taxpayers, you know. 8 You're not making it public friendly for the 9 criminal. You're making it for the taxpayers 10 that's footing the bill, the salaries, the light 11 bill, the building, all that. 12 That's what we're trying to do and 13 cutting down -- if we can cut down and run the 14 courts right, cut down the backlog, the criminal 15 knows that there's a problem and crime will 16 flourish. 17 But if the criminal knows that there's 18 no problem and there's a surety that he's going to 19 jail and he's going to be punished, because the 20 judges are going to be available, then guess what? 21 When the police and law enforcement 22 and the judicial system is fighting each other or 23 has a crack in the foundation, the criminals are 24 winning. So whenever we close that crack and we 25 work together and we put it all together, guess who 0166 1 loses? The criminal. And the people win. And 2 that's what we've got to make sure of. 3 And it's not that we're trying to 4 embarrass you or anything but your name was brought 5 up and it's something we can check out and we can 6 put our finger on. 7 A. I appreciate the opportunity to come. 8 Q. Thank you, sir. 9 REP. DELLENEY: Any further questions 10 of Judge Young? There being no further questions, 11 we appreciate your willingness to come up here and 12 be with us today, Judge. 13 JUDGE YOUNG: Thank you very much. 14 REP. DELLENEY: Have a safe trip back 15 home. 16 (Judge Young exits the room.) 17 3 REP. DELLENEY: All right. We are on 4 the record. 5 MS. SHULER: I would like to announce 6 at this time that Larry R. Patterson has informed 7 the members of the Judicial Merit Commission that 8 he is retiring as a resident judge at the time of 9 the term for his seat for the Thirteenth Judicial 10 Circuit, seat three on the Circuit Court, and 11 therefore he is withdrawing as a candidate and that 12 seat will be open for a spring screening by the 13 commission. 14 REP. DELLENEY: Okay. All right. 15 Next on the agenda is our last screening which was 16 the Honorable Roger M. Young, Sr. and has no 17 opposition, running for a six-year term. 18 Everybody in favor of finding him 19 qualified as nominated, raise your hand. 20 MS. SHULER: One, two, three, four 21 five. 22 SEN. KNOTTS: And you've got some 23 proxies. 24 SEN. McCONNELL: Senator Knotts asked 25 about work schedules. 0170 1 MS. SHULER: Okay. So we have ten 2 votes then. 3 REP. DELLENEY: Okay. Roger Young 4 found qualified with ten votes. All right. Do we 5 need to do anything else? 6 MS. SHULER: No, sir. 7 SEN. KNOTTS: Move to adjourn. 8 REP. DELLENEY: All in favor. 9 (Members respond.) 10 (The proceeding concluded at 11 4:55 p.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0171 1 2 CERTIFICATE OF REPORTER 3 4 I, Sonia I. Mendez, Court Reporter and Notary Public for the State of South Carolina at Large, do 5 hereby certify: 6 That the foregoing proceedings were taken before me on the date and at the time mentioned on 7 page 1 and the proceedings were recorded stenographically by me and were thereafter 8 transcribed under my direction; that the foregoing transcript as typed is a true, accurate and 9 complete record of the proceedings to the best of my ability. 10 I further certify that I am neither related to 11 nor counsel for any party to the cause pending or interested in the events thereof. 12 Witness my hand, I have hereunto affixed my 13 official seal this 15th day of December 2008, at Columbia, Richland County, South Carolina. 14 15 16 17 ____________________________________ Sonia I. Mendez, 18 Court Reporter, Notary Public State of South Carolina 19 at Large. My Commission expires 20 March 23, 2017. 21 22 23 24 25 0172 1 2 I N D E X 3 CANDIDATE Page 4 DEBORAH BROOKS DURDEN 3 5 CHRISTOPHER McGOWAN HOLMES 15 6 HONORABLE MELODY L. JAMES 33 7 CAROL ANN ISAAC McMAHAN 45 8 LEONARD P. ODOM 63 9 KELLY H. RAINSFORD 83 10 SHIRLEY CANTY ROBINSON 94 11 HONORABLE ROGER M. YOUNG, SR. 133 12 13