Journal of the House of Representatives
of the Second Session of the 110th General Assembly
of the State of South Carolina
being the Regular Session Beginning Tuesday, January 11, 1994

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| Printed Page 1920, Feb. 10 | Printed Page 1940, Feb. 10 |
Printed Page 1930 . . . . . Thursday, February 10, 1994
EXAMINATION BY SENATOR RUSSELL:
Q. You've just left the Elite Epicurean restaurant where you ate with a group of your friends, not attorneys, and as you go back the fellow who paid for everybody said, well, somebody paid our bill. A month later when you're in a hearing one of the attorneys says, well, I was glad to, you know, help you pay your meal there or something. What are you going to do about that if that ever happens? You find out -- in other words, that you didn't know at the time --
A. Unbeknownst to me --
Q. Yes.
A. -- an attorney paid for my lunch.
Q. Yes, sir.
A. I have an obligation to report that and to report that attorney. I mean if he did -- if he undertook an action unknown to me to pay for my lunch, he's aware of the rules as well as I am of something that's improper. He should not have done it.
Q. Not that I think that would ever happen knowing attorneys, but --
A. No, sir, because I don't eat at the Elite. Never have.
THE CHAIRMAN: Further questions. Thank you very much. We're going to take about a ten-minute break.
DOCTOR FALTAS: I'm sorry. I'm Doctor Marie Faltas.
THE CHAIRMAN: Yes, ma'am.
DOCTOR FALTAS: And I've waited patiently since 2:00 o'clock. I'm the witness of -- hopefully here to testify against Mr. Whittleton and I have other obligations and if at all possible, if you could defer that break until you hear my testimony, I would be very grateful.
THE CHAIRMAN: We'll be glad to do that. I presume that means your testimony is going to be -- we hope you'll be able to compartmentalize it or get it down to ten minutes or so, is that possible?
DOCTOR FALTAS: Yes.
THE CHAIRMAN: Thank you very much. The next candidate is Mr. Whittleton, John Henry Whittleton, Sr.
MR. WHITTLETON: Mr. Chairman.
THE CHAIRMAN: Mr. Whittleton.
MR. WHITTLETON: Yes.
THE CHAIRMAN: Will you raise your right hand, please.
JOHN HENRY WHITTLETON, SR., having been duly sworn, testified as follows:
THE CHAIRMAN: Have you had a chance to review the Personal Data Questionnaire Summary?
MR. WHITTLETON: Yes, I have.
Printed Page 1931 . . . . . Thursday, February 10, 1994
THE CHAIRMAN: Is it correct?
MR. WHITTLETON: It is. Mr. Chairman, I would only ask that I neglected to mention my private practice in question -- I believe it is Question 9. And the estimation given on -- in Question 40 about expenditures related to the candidacy, the long distance amount is an estimation and that's about as accurate -- it's been far less than that, but I cannot give you an exact amount at this time.
THE CHAIRMAN: All right, sir. Any other changes?
MR. WHITTLETON: That's all.
THE CHAIRMAN: Do you have any objection to our making the summary a part of the record of your sworn testimony?
MR. WHITTLETON: No, I don't.
THE CHAIRMAN: It will be done at this point.

PERSONAL DATA QUESTIONNAIRE SUMMARY

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

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

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

5. Military Service: Active Duty 11/1/71 to 11/4/74; Honorable Discharge 1977; US Army E-4 (Corporal), U. S. Army Reserve June 1, 1979 to Present; US Army E-8 (Master Sergeant)

6. He attended Benedict College, 1/1/75 to 5/1/78, graduated; and the University of South Carolina Law School, 9/1/78 to 5/1/81, graduated.

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

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

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

12. Legal experience since graduation from law school:

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

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

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

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

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

Sole Counsel

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) State v. Willie Durant, (unreported). The Defendant was charged with three counts of criminal sexual conduct against

Printed Page 1933 . . . . . Thursday, February 10, 1994
his 14-year-old step-daughter who had a baby as a result. He prosecuted the case for over a year and a half. Finally, using blood samples from the mother, child and Defendant, the blood confirmed the Defendant's guilt. The Defendant received an 18-year sentence.
(b) Judith E. Miranda v. Augustin Miranda. His client, the Plaintiff, had to serve a missing out-of-state Defendant for child support for five children. Service was by publication. The Defendant was a naturalized citizen whose whereabouts were unknown.
(c) State v. Kenneth Daniels, (unreported). He represented the Defendant, a young male attending USC who is also in the US Army Reserve, charged with breaking and entering an automobile, grand larceny. He was able to have the Defendant placed in PTI, and the charges dismissed.
(d) State v. Raymond Barno. His client was charged with DUI, second offense with a refusal. He was able to prevent suspension of his driver's license and to get him a not guilty verdict by the jury.
(e) State v. William Braxter (?). The 65-year-old Defendant was charged with sexually molesting a 9-year-old girl. Using the testimony of her sister, the Defendant was found guilty and sentenced to three years in jail.

18. Five (5) civil appeals:

None.

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

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

40. Expenditures Relating to Candidacy:

Printed Page 1934 . . . . . Thursday, February 10, 1994
$250 - stationery and postage
$50 - long distance telephone calls

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

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

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

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

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have been filed against you. Records of the applicable law enforcement agencies, Richland and

Printed Page 1935 . . . . . Thursday, February 10, 1994
Lexington County Sheriff's Office, Columbia City Police, SLED and FBI records, are all negative. The Judgement Rolls of Richland County are negative. Federal Court records are negative. We have received one complaint and do have one witness present to testify, the lady who spoke earlier.
MR. WHITTLETON: Yes, sir.
THE CHAIRMAN: Prior to that, the first thing that we would like to do is give you a chance to make a brief opening statement followed by questioning from Mr. Elliott.
MR. WHITTLETON: Well, I have prepared some remarks, but I defer those remarks and have them admitted into the record later.
THE CHAIRMAN: All right. We'll be happy to enter them into the official record.
MR. WHITTLETON: Thank you.

INTRODUCTORY REMARKS:

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

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

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

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

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

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

Printed Page 1936 . . . . . Thursday, February 10, 1994
Working as a prosecutor and defense lawyer, I learned to decide the difference between social justice and victim vengeance. Duty must override passion and prejudices because the social will is at stake.

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

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

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

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

Printed Page 1937 . . . . . Thursday, February 10, 1994
1989. Was promoted in November of that year to the position of Division Director and at the same time I opened a private law practice.

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

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

In addition to that, I conduct fact finding hearings on many of these cases depending upon the complicated nature of a particular case. If appropriate, I grant the appropriate decision and again issue it to the agency for the appropriate action.
Q. When you hold fact finding hearings, what is your role in those hearings, sir?
A. As a --
Q. Are you the hearing officer?
A. In -- pretty much, and I don't want to give legal terms, but because the Human Affairs Commission is a neutral administrative investigatory agency, I have before me the respondent employer on one side and the complaining party on the other and pretty much try to conduct the

Printed Page 1938 . . . . . Thursday, February 10, 1994
proceedings as much as a hearing as possible adhering to the Rules of Evidence and court decorum, et cetera. That's correct.
Q. About how often would that occur?
A. I have fact finding conferences about two to three times per month.
Q. And in there, too, do you ever appear before the commission? Are there not in a sense contested case hearings before the commission?
A. No. No. What happens is in my capacity as Division Director once I determine the disposition on a case on the division level, I submit it to the Deputy Commissioner for his approval. If he agrees with my determination, then he submits it to legal counsel for their review and the case is then issued -- our determination is then issued, so I don't appear before the actual panel of commissioners.

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

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

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

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

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

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

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