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 2040 . . . . . Thursday, February 10, 1994
(Executive Session)

THE CHAIRMAN: Do I hear a motion to close the record on all the pending applicants that we have?
REP. STURKIE: So moved.
REP. ALEXANDER: Seconded.
THE CHAIRMAN: All in favor say aye. All opposed say no. The ayes have it. Now, do I hear a motion regarding the approval of the screening reports?
REP. ALEXANDER: So moved.
SEN. McCONNELL: Seconded.
THE CHAIRMAN: All right, so moved by Representative Alexander, seconded by Senator McConnell, the motion is that we approve the screening reports that we have and the contents of which will be released tomorrow morning at 10:00 a.m. in Barbara's office and the election of which will be held Wednesday, February 23rd, which is a week past what we had normally scheduled. Is that correct?
SEN. McCONNELL: Mr. Chairman, just for the public record and that it is clear, that there is no screening committee report until 10:00 a.m. in the morning, so nobody can get commitments or anything until after 10 tomorrow.
THE CHAIRMAN: And it will not be available for anyone, press included, until 10:00 a.m. tomorrow. All in favor of the motion say aye. All opposed, no. The ayes have it. Any other matters before the committee? Motion that we adjourn? Alright.

Findings of Fact

The Committee in its review and investigation of the candidates for the Chief Justice of the Supreme Court, Circuit Court, Family Court, and Judges of the Administrative Law Division conducted two full days of screening hearings based, in part, on extensive background research compiled by the Committee's legal and administrative staff. To ensure full public input, the Committee asked for the assistance of all print and electronic media in the state in advertising the judicial vacancies and the Committee's desire for citizens to appear before the Committee and offer testimony regarding any or all of the candidates.

Chief Justice of the Supreme Court
The Committee was thoroughly impressed with the long and distinguished judicial career of The Honorable A. Lee Chandler, candidate for Chief Justice of the Supreme Court. Justice Chandler has served as a Circuit Court Judge from 1976 until 1984 and as an Associate Justice of

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the South Carolina Supreme Court from 1984 until the present. The Committee took notice of the extensive written record from Justice Chandler's sixteen and one-half years of service as a judge and found that Justice Chandler has adhered to the highest standards during his tenure on the bench. He has shown himself to be conscientious, thorough, impartial, and courteous to all. Consistently, the opinions he has authored as a Supreme Court Justice are notable for their clarity and learned application of substantive and procedural law.

The Committee received one complaint against Justice Chandler and heard testimony from the complainant. The complaining witness raised three concerns about Justice Chandler's participation in the decision of the South Carolina Supreme Court in a case in which the complaining witness was a party.

In part, the case was an action against the witness and, initially, Darlington County, in which plaintiffs claimed an easement in the witness' property. At the trial level, the Court ruled that an easement existed, and the Supreme Court affirmed the appeal in a per curiam decision without Justice Chandler participating. A subsequent petition by the witness for a rehearing by the Supreme Court was refused with Justice Chandler's participation.

The witness contended that Justice Chandler should not have participated in the Supreme Court's decision on his petition for rehearing because Justice Chandler had previously practiced law with the attorney who represented the opposing parties. The Committee finds this complaint to be without merit.

Justice Chandler had not practiced law with the attorney for the opposing parties for over seventeen years. Canon 3C of South Carolina's Code of Judicial Conduct, Rule 501 SCARC, calls for a judge to disqualify himself in any case where the judge's impartiality might reasonably be questioned. As more than seventeen years have passed since Justice Chandler's association with the attorney, the Committee concludes that Justice Chandler's impartiality is not subject to question and his conduct was proper.

By way of affidavit, the witness also contended that since Justice Chandler had previously served as attorney for Darlington County, Justice Chandler should have known that testimony from a
Darlington County employee did not represent the County's position. The Committee also finds this complaint to be without merit and notes that judges at all levels are confined to the record and may not use personal experience or opinions outside the record in reaching a decision.

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Finally, the witness complained that Justice Chandler did not understand the Fifth Amendment, since he participated in a decision allowing the witness' property to be taken without just compensation. The Committee finds this complaint to be without basis. A review of the record reveals that the Fifth Amendment issue was not raised on appeal by the witness. In addition, the Committee notes that the other four learned justices of the Supreme Court all reached the same conclusion as Justice Chandler.

Judge of the Circuit Court, Tenth Judicial Circuit

The Committee found The Honorable Alexander C. Macaulay, candidate for Judge of the Circuit Court of the Tenth Judicial Circuit, to have sufficient qualifications to serve on the circuit bench. Senator Macaulay has practiced law for over twenty-three years. Upon his graduation from law school in 1970, Senator Macaulay was employed for two years as an Assistant Attorney General. In that capacity, he represented the State of South Carolina in criminal and civil matters. Since 1972, Senator Macaulay has been engaged in the private practice of law, handling a variety of cases at the trial and appellate level, and representing both plaintiffs and defendants, usually as sole or chief counsel.

While most of Senator Macaulay's recent experience has been in civil matters, the Committee notes that Senator Macaulay prosecuted criminal cases with the Attorney General's Office, with one trial resulting in five capital sentences. The Committee found further that the recent criminal matters handled by Senator Macaulay have been few but relatively complex.

The Committee inquired as to Senator Macaulay's understanding of a Judge's role in decision-making, ethical considerations regarding acceptance of gifts and social hospitality, and the appropriate management of the courtroom which might preserve litigants' rights while moving the docket expeditiously. Senator Macaulay's responses demonstrated a clear understanding and sensitivity to these issues.

The Committee believes Lowell W. Ross, candidate for Judge of the Circuit Court of the Tenth Judicial Circuit, has sufficient qualifications to serve on the circuit bench. Mr. Ross has practiced law for almost thirty-two years, since 1961. During this time, Mr. Ross has been engaged in private practice, except for the roughly one and one-half year period in the 1960's spent as a law clerk for the United States District Judge J. Robert Martin. In recent years, Mr. Ross' practice has focused on complex civil litigation. Because of the nature of his practice, Mr. Ross' recent experience is overwhelmingly confined to non-jury, civil matters.

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The Committee questioned Mr. Ross about making the transition from his present practice to a judgeship characterized by a heavy caseload of criminal and jury matters. Based upon this examination and a review of Mr. Ross' past experience, the Committee concludes that Mr. Ross' experience is more than sufficient and that his handling of complex legal matters indicates an intellectual capacity to learn as needed.

One witness testified against Mr. Ross, because Mr. Ross had assisted in consummating the sale of a utilities' water and sewer facilities without the prior approval of the Public Service Commission (hereinafter the Commission or PSC). Prior approval is required by Commission rules R. 103-504 and R. 103-704.

The parties to the sale were Realtec, Incorporated, the seller and owner of a water and sewer system serving an Oconee County residential subdivision, and Utilities, Incorporated, the buyer. An asset purchase agreement between Realtec and Utilities, Incorporated had been executed on December 2, 1991. Article II of the agreement contemplated that both utilities would jointly petition the Public Service Commission for approval of the transfer within ten days of closing, and if the Public Service Commission denied the petition, all considerations would be returned and all obligations waived. The agreement was negotiated on behalf of Realtec by its in-house counsel, without Mr. Ross' involvement or participation.

After execution of the asset purchase agreement, Mr. Ross was requested to prepare a bill of sale and deed conveying real and personal property and easements, which he did. On March 6, 1992, Mr. Ross attended the closing, during which he supervised the execution of the documents he had prepared. He delivered these documents to the Oconee County Clerk of Court where they were recorded within a few days of the closing.

An application requesting approval of the transfer from the Public Service Commission was not filed until late April, 1992. Mr. Ross did not prepare the application or handle its filing, and he testified that he had no involvement in this part of the transaction.

In Order Number 92-698, dated September 2, 1992, the Public Service Commission denied the application on the basis that the transfer had been consummated before approval from the Commission. As the witness against Mr. Ross testified, the Commission's order characterized the transfer prior to approval as an "egregious" violation of the Commission's rules.

The Committee found that Mr. Ross was engaged by and represented Realtec for the limited purpose of drawing the closing documents and handling the closing. Advice regarding the terms of the agreement,

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including the agreement's provision relating to the timing of the PSC application, was beyond the scope of Mr. Ross' representation.

Judge of the Family Court, Sixth Judicial Circuit

The Committee respects the credentials of Walter B. Brown, Jr. who has practiced law for twenty years and who has extensive family law experience. Mr. Brown expressed a solid understanding of the qualities of compassion and patience and their importance to sound judicial temperament. He also expressed a thorough understanding of the ethical considerations faced by judges concerning acceptance of social engagements, gifts and ex parte communications.

Mr. Brown was questioned about his lobbying activities for the South Carolina Association of Motion Pictures. The Committee noted with approval that, prior to filing for this judicial position, Mr. Brown resigned his position as lobbyist and he has not accepted anything of value from this association since then.

Retired Judge of the Family Court, Sixth Judicial Circuit

The Committee recognizes and appreciates the past dedication and service of The Honorable Thomas B. Barrineau, Jr. as a Family Court Judge since 1980. The Committee received a complaint and heard testimony from two witnesses, Mr. and Mrs. Thomas Rockwell, who were former litigants before Judge Barrineau. Their complaint concerned Judge Barrineau's decision to remove Mrs. Rockwell's children and place them in foster care. The Rockwells' testimony concerned allegations of a conflict of interest of Judge Barrineau's because he and the sheriff who helped remove Ms. Rockwell's children from her custody jointly owned property, of Judge Barrineau's alleged lack of knowledge of applicable law, and of alleged problems in the area of judicial temperament. The Committee finds that Judge Barrineau's actions were within the parameters of the rules governing the conduct of attorneys and judges in South Carolina. The Committee was concerned, however, that Judge Barrineau chose to express his opinion and reveal certain confidential information about this situation in a letter to the editor of the local newspaper and cautions him against such actions in the future.

Administrative Law Judge, Seat Number 1

The Committee found that H. Clay Carruth, Jr., candidate for Chief Judge of the Administrative Law Judge Division, Seat Number 1, has substantial experience in administrative, contested case proceedings. Mr. Carruth served as staff counsel for the South Carolina Public Service

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Commission (PSC) for five and one-half years, from May 1985 until December 1990. As PSC staff counsel, Mr. Carruth appeared before the Commission in agency contested case hearings on the average of twice a week. The Committee also noted that Mr. Carruth possesses some experience as a hearing examiner, although that experience is not recent.

As with other candidates, Mr. Carruth was examined on ethical issues, including participation in political activities, recusal, and campaigning for office as ALJ. Mr. Carruth's responses revealed a commitment to high ethical standards.

The Committee found John J. Fantry, Jr., candidate for Chief Judge of the Administrative Law Judge Division, Seat Number 1, to have substantial administrative law experience. From 1974 until 1985 Mr. Fantry worked for the South Carolina Electric Cooperatives Association on matters relating to state and federal regulatory law. Since 1985, he has been in private practice with an emphasis on administrative and regulatory law. Mr. Fantry has represented clients before the South Carolina Tax Commission, Department of Health and Environmental Control, Workers' Compensation Commission, Coastal Council, Labor Department, Public Service Commission and Ethics Commission. Recently, Mr. Fantry has served as an interim hearing officer for contested alcoholic beverage licensing cases.

Mr. Fantry demonstrated a clear understanding of the ethical considerations about which he was questioned.

The Committee was impressed with Samuel Finklea, III, candidate for Chief Judge of the Administrative Law Judge Division, Seat Number 1, because of his nine years as legal counsel to the Department of Health and Environmental Control (DHEC) and the technical expertise and background which he brings to his legal position at the Department. The Committee was also impressed with his stated desire to develop within the Administrative Law Judge Division the goals of giving every citizen a fair hearing, ensuring that all agencies follow their own regulations, developing a unified base of procedures and decisions, and writing decisions fully supported by the evidence presented in the hearings. Mr. Finklea demonstrated that he has thoroughly considered the intricacies of starting up a new government division. The Committee notes Mr. Finklea's assurance that he would be able to make the transition from an advocate for the State at DHEC to a neutral decision-maker as Chief Administrative Law Judge.

The Committee found Selma T. Jones, candidate for Chief Judge of the Administrative Law Judge Division, Seat Number 1, has twelve years experience in the solicitor's office and now manages the Fifth Circuit

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Solicitor's program for training new solicitors and private attorneys serving internships with the solicitor's office. Thus, her experience includes preparation for an important component of the position she seeks, managerial skills. Ms. Jones expressed a solid understanding of the necessity of courtesy as an element of judicial temperament and an understanding of the differing roles of advocate and judge. The Committee was impressed that Ms. Jones has given thought to the steps necessary to get the Administrative Law Judge Division up and running prior to hearing cases. The Committee did note that Ms. Jones has only one year of civil law experience and no experience in administrative law.

The Committee found that Marvin F. Kittrell, candidate for Chief Judge of the Administrative Law Judge Division, Seat Number 1, has significant experience which relates to the duties of an Administrative Law Judge. For the past three years, he has served as a Commissioner with the South Carolina Workers' Compensation Commission, hearing cases involving benefits allocable to workers injured on-the-job. As a Workers' Compensation Commissioner, Mr. Kittrell sits both as a single hearing officer and with other commissioners as an appellate review panel. Mr. Kittrell hears an average of fifty to seventy- five cases a month as a single hearing officer and about the same number as a member of the appellate panel. In addition, the Committee was impressed with Mr. Kittrell's tax degree, which would be valuable in Department of Revenue and Taxation cases.

The Committee heard testimony from Senator John C. Land, III and Candidate Kittrell regarding whether Mr. Kittrell had sought the assistance of Senator Land in securing the pledge of members of the South Carolina Senate in violation of the "no pledge" rule (SC Code Section 2-19-70, as amended). The testimony revealed that Mr. Kittrell handed Senator Land a list of Senators. The list contained the names of those Senators about whom Mr. Kittrell had a "good feeling" and those Senators to whom he requested an introduction by Senator Land. Mr. Kittrell denied he sought the assistance of Senator Land to secure a commitment from any of these members and Senator Land confirmed Mr. Kittrell's statement. Additionally, Mr. Kittrell stated he had not sought nor requested anyone to seek a commitment from a member of the General Assembly on his behalf.

Mr. Kittrell conceded the presentation of the list raised questions the Committee needed to explore but reiterated the existence of the list and the request of Senator Land in no way constituted a solicitation or request for the solicitation of a commitment. Based upon the unrefuted testimony

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presented to the Committee by Senator Land and Mr. Kittrell, the Committee found no violation of the "no pledge" rule.
The Committee found that Nora B. Lewis, candidate for Chief Judge of the Administrative Law Division, Seat 1, has extensive experience in the courtroom. From 1980 until 1988, she was a part-time Public Defender, while maintaining a general practice. Since 1988, Ms. Lewis has engaged in a general, solo practice, which places her in Court an average of three times a week. In addition, Ms. Lewis has experience in social security disability hearings and has recently served as a special hearing officer for approximately twelve alcoholic beverage licensing cases.
The Committee heard testimony that James G. Longtin, candidate for Chief Judge of the Administrative Law Judge Division, Seat Number 1, and candidate for Administrative Law Judge, Seat 2 and 3, was removed from the court appointment list by the Chief Administrative Judge of his judicial circuit for failure to properly represent a client in a criminal proceeding in circuit court. Additionally, the Committee is concerned about his relative lack of legal experience. For these reasons, the Committee finds Mr. Longtin not qualified for the position of Administrative Law Judge.

The Committee notes that while J. Harold Mayer, Jr., candidate for Chief Judge of the Administrative Law Judge Division, Seat Number 1, has practiced law for over twenty years, he closed his practice in 1991 to assist in the care of his child and now practices on a limited basis. When his practice was active, Mr. Mayer handled some administrative matters, some complex litigation and developed managerial skills as a Magistrate in Colleton County and a Recorder for the city of Walterboro. Mr. Mayer expressed an understanding of the general principles of administrative law and an understanding of the ethical boundaries within which judges must function.
The Committee found that Sheila D. McMillan, candidate for Chief Judge of the Administrative Law Division, Seat 1, has experience managing an office, which should be beneficial as Chief Judge of the Administrative Law Division. In the late 1970's and early 1980's, Ms. McMillan served as Managing Attorney for the Legal Services Office in Lexington County. In this capacity, she managed the case load and supervised an office consisting of one other attorney, two paralegals and two to three secretaries.

The Committee found that Ms. McMillan possesses the appropriate demeanor for a judge and has a strong commitment to ethical behavior. While Ms. McMillan does not have an extensive administrative law experience, the Committee notes that Ms. McMillan handled some

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personal matters in the federal administrative arena within the past several years and a wide range of administrative matters as an attorney for Legal Services.
The Committee was impressed with Nicholas P. Sipe's seventeen years of service with the Alcoholic Beverage Control (ABC) Commission. During his employment with the ABC Commission, Mr. Sipe, candidate for Chief Judge of the Administrative Law Judge Division, Seat Number 1, served as a hearing officer in contested cases, prosecuted administrative violations before the Commission, and, for thirteen years, served as the agency's executive director. As executive director, Mr. Sipe managed the day-to-day operations of the agency, including budgeting, which would be beneficial as Chief Judge of the ALJ Division.

The Committee questioned Mr. Sipe about his involvement in the scandals that plagued the ABC Commission during part of his tenure as the agency's executive director. There were never any criminal charges or allegations against Mr. Sipe, and the Committee is satisfied that Mr. Sipe was not involved in any of these matters.

The Committee found N. Steven Steinert, candidate for Chief Judge of the Administrative Law Judge Division, Seat Number 1, to have an active civil practice mainly in the business and corporate areas. The Committee noted that Mr. Steinert's administrative hearing experience is somewhat limited although Mr. Steinert's experience and knowledge of government in practice is extensive both from his previous career in government and from his academic work. Likewise, Mr. Steinert has had management experience on the federal and local government levels which would be of significant value.

The Committee received one complaint and one witness testified concerning the candidacy of Mr. Steinert. Mr. Ronald McDaniel's complaint involved Mr. Steinert's representation of him in a complicated matter and his allegations that Mr. Steinert did not pursue his representation with appropriate zeal because, at the same time, Mr. Steinert was negotiating employment with the firm representing the other side. Mr. McDaniel hired Mr. Steinert as his attorney in an action defended by the Wise & Cole firm. Mr. McDaniel alleges that Mr. Steinert persuaded Mr. McDaniel to sign a Covenant Not To Sue to release the party represented by the Wise & Cole firm. Mr. Steinert alleges that this was the best course of action in this suit in order to recover from another Defendant. Mr. McDaniel alleges that during the time he was being persuaded by Mr. Steinert to sign the Covenant Not to Sue, Mr. Steinert was negotiating employment with the Wise & Cole law firm. Mr. Steinert was subsequently employed by the Wise & Cole firm.

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There are conflicts in the testimony between Ronald McDaniel and N. Steven Steinert as to whether Mr. Steinert's representation of Mr. McDaniel was compromised. There are conflicts in the testimony as to the actual conclusion of representation of Mr. McDaniel by Mr. Steinert. The record does establish that Mr. Steinert was communicating about employment with the Wise and Cole Firm during the period of time before he notified Mr. McDaniel that he could no longer represent him. The Committee reaches no conclusion with regard to these facts but is concerned about the allegations because Rule 407 of the South Carolina Appellate Court Rules states that an attorney should disclose a conflict of interest to his client.

The Committee was impressed by the extensive experience of Ray N. Stevens, candidate for Chief Judge of the Administrative Law Judge Division, Seat Number 1, with administrative law and proceedings through his employment at the Office of Attorney General and Department of Revenue and Taxation (South Carolina Tax Commission) for the past fourteen years. He has advised the Commissioners and written proposed orders for them, advised governments on the state and local level concerning financial, tax and budgetary matters, and has represented the state's interest in courts on the state and federal level. The Committee is further impressed by Mr. Stevens' well conceived ideas and plans for establishing the Administrative Law Judge Division. His replies to questions concerning ethics indicate he is keenly aware of the boundaries within which a judge must function.

Administrative Law Judge, Seat Number 2

The Committee recognized the service of Stephen P. Bates, candidate for Judge of the Administrative Law Division, Seat Number 2, as counsel to the Speaker of the House of Representatives and his involvement in developing the Restructuring Act of 1993. Mr. Bates clearly conveyed to the Committee an understanding of one objective behind establishing the Administrative Law Judge Division, that of achieving a more objective, professional decision making process. He also was very knowledgeable about the amendment to the rule making procedure, the role of the Administrative Law Judge in conducting hearings on the necessity and reasonableness of proposed regulations. While the Committee noted that Mr. Bates has not been active in the practice of administrative law, it recognized his participation in representing the House of Representatives in complex litigation concerning such topics as reapportionment, the constitutionality of county delegations, and a challenge in federal court to the House Rules. Mr. Bates has also conducted hearings and drafted

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