1994 Permanent House Journal Printed Pages 1880-1889 - South Carolina Legislature Online

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

Page Finder Index

Printed Page 1870, Feb. 10 | Printed Page 1890, Feb. 10

Printed Page 1880 . . . . . Thursday, February 10, 1994

14. Frequency of appearances in court:

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

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

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

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

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

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

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Spencer v. South Carolina Tax Commission, 316 S.E.2d 386 (South Carolina Supreme Court May 15, 1984). This case determined that 42 USC Section 1983 could not be used in state court to recover taxes paid and correspondingly denied attorney fees normally available under 42 USC Section 1988.

Printed Page 1881 . . . . . Thursday, February 10, 1994

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

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

Printed Page 1882 . . . . . Thursday, February 10, 1994

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

40. Expenditures Relating to Candidacy:

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

TOTAL: $194.43

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

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

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

48. Five (5) letters of recommendation:
(a) Alfred H. Barnett, III, Senior Vice President
The First Savings Bank
1201 Main Street, Columbia, SC 29201
251-3184

Printed Page 1883 . . . . . Thursday, February 10, 1994

(b) Joe L. Allen, Jr., Esquire
109 Windsor Point Road, Columbia, SC 29223
788-3888
(c) Dr. Wendell R. Estep
First Baptist Church of Columbia
P. O. Box 1000, Columbia, SC 29202
256-4251
(d) S. Hunter Howard, Jr.
South Carolina Chamber of Commerce
Suite 1810, 1201 Main Street, Columbia, SC 29201
799-4601
(e) Honorable Robert E. McNair
McNair & Sanford
P. O. Box 11390, Columbia, SC 29211
799-9800

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

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

Printed Page 1884 . . . . . Thursday, February 10, 1994

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

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

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

A party should before you even take on a hearing of a particular type review the statutes, become familiar with the regulations. If there are court cases on it, it would behoove an individual to read them. I think you just have to immerse yourself in a particular area of law that you're going to be having a hearing on.
Q. Would you do that before the hearing --
A. Yes.
Q. -- as the --

Printed Page 1885 . . . . . Thursday, February 10, 1994

A. Yes.
Q. -- ALJ judge? Would you tell this committee what you think the office of chief judge is about?
A. Well, I think --
Q. What kind of organizational skills does that person need?
A. Well, I think an organizational skill that is necessary is the ability to take what is essentially an embryo and allow it to grow in a meaningful -- and not in a situation where it falls flat on its face. We've heard, and you've heard testimony, in which some individuals say that well, it can't be up and running by March 1st, others who say that there is no problem in having it up by March 1st. I think what you have to do in the organizational skills area is you identify those elements that are critical.

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

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

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

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

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

I think it probably -- initially, again drawing on the strengths of the judges, it probably would behoove the administrative law judges to have

Printed Page 1886 . . . . . Thursday, February 10, 1994

a person with expertise hearing those tax cases and that would be with the understanding that there was no conflict of interest.

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

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

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

Printed Page 1887 . . . . . Thursday, February 10, 1994

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

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

Printed Page 1888 . . . . . Thursday, February 10, 1994

It was a good firm. It was just a little too far away from parents and grandchild was currently new, so it was time to come back home. But I had been in private practice for -- I think it was right at a year or a little over a year with a Chattanooga law firm.
Q. Have you ever sought directly or indirectly the pledge of a legislator's vote?
A. No, I have not.
Q. And are you aware of any solicitation without your authorization?
A. No, I am not. I know some people have written some letters recommending me, but I have not gotten any copies and do not know the contents of those letters.
Q. Thank you.
THE CHAIRMAN: Questions from the members? Senator McConnell.
EXAMINATION BY SENATOR MCCONNELL:
Q. Thank you, Mr. Chairman. Have you sought the endorsement of any group of members of the General Assembly or of a caucus of the General Assembly?
A. No, sir.
Q. Have you participated in a formalized interview process other than this screening hearing or one by the Bar Association?
A. No, sir.
Q. Have you directly or indirectly had any meetings or conversations pertaining to your candidacy with members of the Bar screening committee, Bar employees or lobbyists representing the Bar either before you were screened or after you were screened, but prior to the Bar's screening report being made public?
A. I've heard that question several times and I think I know what you're asking, but I was contacted by the Bar by telephone asking me to appear before them, which I did. And I believe the date I appeared before them was on January the 5th.

We had what amounted to about a 20 minute, maybe 25 minute interview and then I think by letter dated the 7th, which was received by me on the 10th, I received their recommendation. That was the extent of my contact.
Q. And no other contact?
A. No, sir.
THE CHAIRMAN: Senator Moore.
EXAMINATION BY SENATOR MOORE:
Q. You said the interview with the Bar took place what date?
A. My notes say January the 5th. It was about 1:30 as I recall.
Q. How many interviewers participated?

Printed Page 1889 . . . . . Thursday, February 10, 1994

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

Printed Page 1870, Feb. 10 | Printed Page 1890, Feb. 10

Page Finder Index