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 1970 . . . . . Thursday, February 10, 1994
written appointment), but it also had impact on changes in the living will statute and the Health Care Power of Attorney. The second committee was the South Carolina Probate Code Joint Study Committee, which met in 1989 and early 1990. The purpose of this committee was to review the impact of the 1987 South Carolina Probate Code and to make recommendations for changes in statutes and procedure, with an emphasis on "hands on" practical applications. The proposed revisions were many in number, and the material to be reviewed was extensive. The bill that resulted was, he believes, some 75 to 100 pages in length.
Within the Probate Judges' Association, he was Chairperson of a 1992 Ad Hoc Committee to revise the probate fee schedule. The bill that resulted from this committee's work passed the Senate (Bill 497) this past legislative session and is pending in the House. It represents the last major pre-probate code (pre-1987) statutes to be revised.
What all this means is that he can hopefully demonstrate that he has the requisite ability to be a beneficial Administrative Law Judge. There are not many cases that would require the judge to be a probate expert, so this, in and of itself, is not a viable attribute. He does not profess to know or be an expert on the agency rules for all the state agencies coming under the administrative law judge jurisdiction. He doesn't think anyone else seeking this position can claim to be knowledgeable of more than one or two agencies at most. He has done some reading on the administrative law judge duties and state agency reorganization and structure, and he has some knowledge of the Administrative Procedures Act. Over the next several weeks and months he will do more reading.
His background of a general law practice and involvement in a variety of types of cases, both as lawyer and probate judge/special referee and his attendance of numerous legal education seminars hopefully shows that he is eager to learn about his area or areas of the law and legal principles in general. By attending national seminars, he not only wants to know what they can anticipate or should be doing, but how others has handled or are approaching the same topics or problems and what they see as the issues to come. By serving on legislative committees, he is willing to try to implement needed revision or address new and coming issues for our people and state.
Being asked to be President of the Probate Judges' Association when the upcoming judge was not able to serve, he feels shows confidence in him by his fellow judges, the ones who know, and his
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ability to effectively lead and respond to the issues facing the organization. Please note two things about this appointment:(1) he had been judge for less than two years and had not been another officer and did not have the benefit of "moving through the ranks;" and (2) the judges were still trying to learn, revise and become comfortable with a new probate code slightly over a year old.
The most important things he can offer for this position are two. First, he has proven judicial experience. He has a seven-year history of seeing many issues brought before him and addressing a variety of questions as probate judge and special referee for the circuit courts. From his participation in seminars, both state and local, he has tried to pass the knowledge and experience gained from his exposure on to others. An informed public and bar makes for less, or at least more defined problems.
More importantly, his judicial experience has occurred while implementing a new set of laws and procedures within the court. As he has told people, the only thing that did not change in the Greenwood Probate Court during his first year in office was the paint on the walls. Forget his years of experience as Associate Probate Judge. This was just something he had to unlearn, or re-think, with the changes in both probate code and commitment laws when he took office. The transition was major, and he had to not only learn and be able to implement the new laws and procedures, but he also had to retrain his court staff, the bar and the public. All this caused him to put in some long hours at times in a job that can, and does, involve after hours commitments periodically anyway. He has a supportive and understanding family. Hard work does not scare him.
Since the position of Administration Law Judge is new, no one has experience in that job. The new Administrative Law Judges will have to define their roles, educate themselves on the law and their duties, and then educate the agencies involved, the court staff (if any) and the bar and other contacts or users of this new agency on its structure. His prior experience in court transition and development would be a benefit in this process. It is very important that this entity start out on a solid footing and progress from there.

48. Five (5) letters of recommendation:
(a) Hilda L. Williams, Assistant Vice-President
NationsBank
102 East Main Street, Ninety Six, SC 29666
942-1635

Printed Page 1972 . . . . . Thursday, February 10, 1994
(b) William B. Patrick, Jr., Esquire
McDonald, Bradford, Patrick & Tinsley
P. O. Box 1547, Greenwood, SC 29648
229-2511
(c) Watson L. Dorn, Esquire
Callison, Dorn, Thomason & McCravy, P.A.
P. O. Box 3208, Greenwood, SC 29648
223-8111
(d) Billy J. Garrett, Jr., Esquire
Garrett, Whiting & Associates, P.C.
P. O. Drawer 3388, Greenwood, SC 29648
229-8000
(e) Honorable Raymond C. Eubanks, Jr.
Judge, Probate Court, County of Spartanburg
Spartanburg County Courthouse, Spartanburg, SC 29301
596-2556

PERSONAL DATA QUESTIONNAIRE - ADDENDUM

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

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

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

INTRODUCTORY REMARKS:

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

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

How am I qualified? The basic qualifications are being a South Carolina citizen for at least five years, and being an Attorney admitted to

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

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

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

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

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

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

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

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

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

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

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

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

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

And then I think, as many people have said prior to me, it's going to take a lot of research on individual cases under the -- if I read the statutes that involve administrative judge -- law judge position, there will be at least a 30-day review period or review notice filed, so that you'll have some notice of what's coming up and you can pull those individual statutes and review the law in those areas and be prepared to be able to at least have some knowledge of the substantive matters that is before the court at that point in time.
Q. At this point in your career, why are you interested in taking a job that is a one year job?

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A. Well, I come up for reelection at the end of this year anyway, so it's -- I have no guarantee to stay where I'm at. It is, of course, a publicly elected job being a probate judge. So it is a move that would be -- I consider to be a forward move.

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

I think this can carry over into something that would not be as hands-on with the people, have as much public contact as probate -- the administrative judge job as it does now as a probate judge. But it's something that we have to remember, that we're there to serve the people, to protect their rights and make sure they have their day in court and their say, and that it is -- I think the paramount reason that the administrative

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judge position is being created -- division is being created to be able to avoid some of those close improprieties or appearance of improprieties with some of the governing agencies making decisions, and so it puts it as another reviewing body in there to remove those appearances.
Q. In your work as a probate judge, I imagine that you have a lot of contact with individuals who have problems and so, whether they're representing themselves or whatever, you talk to people quite a bit, and what I'd like to ask you about is ex parte communication.

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

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

If there's been something filed, we have to make sure that one of the staff helps them on -- just on -- on administrative -- nothing related to the issue that's brought before -- that may be pending before a court on a hearing matter. But, as you well know, the estate needs to move on, so it's important that we have -- it gives us an additional charge that I have to have and then I have to kind of review each case before I can get involved in it as well and talk to people and try to avoid those communications, and ultimately it's hard to avoid all of them --
Q. Sounds like you have a lot of experience in this area already.
A. Oh, yes. Oh, yes.
Q. What is your standard for recusal? Let's just say I know that your wife has a business, maybe she needs a permit from DHEC in running her business. What would be your standard with that?
A. Well, if there's anything that could not -- it could be
-- it was a friend, somebody has a minor contact that -- I think it needs to be put on the record and give the parties an opportunity to ask for a recusal. If it's my wife, then it doesn't need to get to a hearing stage; it

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should be recused, period. A wife, a business partner, a relative, somebody up close contact, then --
Q. Do you have any problems currently with Matthew Bender?
A. No, I don't.
Q. That's all been taken care of?
A. Years ago.
Q. We do not have on record that you have expended any money towards this --
A. You should have it on record, there was -- as far as my initial report, there was a couple of expenses made ...
Q. Oh, I'm sorry, I have this one.
A. Okay.
Q. I'm sorry. The Administrative Law Division is going to have its central office in Columbia and I know that you live in Greenwood. Is that going to be a problem for you?
A. No, that should not be a problem. I commute to Columbia to hold mental health hearings, on a periodic basis to go to meetings, so I'm very familiar with coming to Columbia. And I grew up in West Columbia, so I know the roads well.
Q. How are you going to go about making your decision in a case? Let's say you've had a two month hearing, a long DHEC one, what are you going to do at the end of that hearing?
A. Well, on a two month hearing, hopefully we've made some good copious notes along that is a good summary, because you can't go back and review a two month hearing very well. You've got to have had some kind of idea along of how things have come, how that case is proceeding and what's going to be done with the case, what your recommendation's going to be.

So, you know, one thing I'd try to do is to make some good copious notes so that if I need to look back on something I can look back on a particular part of it. Of course, the transcripts or records are available from that standpoint. But something needs to be done about trying to get something on paper as quickly as we can then so that we can keep the synopsis there, keep the materials together and keep that case moving along.
Q. Do you expect that you will be writing your own orders --
A. I would prefer not to have to write quite as many as I've had being probate judge. Sometimes -- a lot of times I don't have a lawyer that I can call upon to draft orders, so I have to draft them myself. Sometimes I don't feel like the lawyer's background is quite as good as mine and I can do it as quickly -- much more quickly than he can, and probably will

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