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 6890 . . . . . Tuesday, May 17,
1994
Q. Yes, sir. Have you much experience in cases that involve the removal of
children from their homes?
A. Yes, ma'am. And that is a very sad part of Family Court law.
Q. How much experience would you say?
A. More than I would like to have had. I don't remember how much it was. It
was -- there's a procedure. If the determination is made that a child is
allegedly abused or neglected that there is a procedure for that and you have to
have at least two court appearances for a temporary hearing and then a removal
hearing. And you are limited in time, I believe, it's ten days within which you
have the temporary hearing and then within 30 days of that to have the removal
hearing.
And I find it very sad to see children having to be removed from
their homes, but there are times when the person who is in charge of them is not
proper or appropriate to continue with the custody until they get their act
straightened out.
Q. Mr. Flynn, have you been appointed in any cases in Family Court to represent
any parties?
A. I received a call to be either an attorney or a guardian ad litem recently
and I asked them to please check and if find out if I might have a conflict for
having been involved in the same case previously and it was DSS and they checked
and found out that I had been involved previously and so I was not involved in
that particular one. But I have no hesitancy about accepting an
appointment.
Q. Your Personal Data Questionnaire, Mr. Flynn, showed that you are not required
to attend CLE's any longer?
A. I have been determined exempt after 30 years active participation, but --
well, it was all of the time that the CLE program was in effect and after I had
been practicing law 30 years, I was determined exempt there from.
However, I have continued to attend certain seminars that were
available at the SCAC meeting concerning counties -- County Attorney and as long
as I was with the Solicitor's Office, I would attend the CLE's programs at the
Solicitor's Conventions.
Q. And you just --
A. I did not file my -- excuse me, please. Pardon me for interrupting. I did
not file any report thereabout, but I attended. And I also read my Advance
Sheets.
Q. And you just made reference to the fact that you will be going to one in the
next month or so and I guess it deals mainly with domestic issues. How else do
you expect to bring yourself up to speed on some domestic
Printed Page 6891 . . . . . Tuesday, May 17,
1994
issue that may have arisen in the last few years that you have not handled
before?
A. I don't think I'm far behind.
Q. Good.
A. I have maintained a pretty good reading relationship with my Advance
Sheets.
Q. Do you do much writing in your practice, sir?
A. Writing?
Q. Writing. Yes, and legal research and analysis and then writing?
A. No, ma'am. In fact, the only writing I do is to prepare a Complaint or an
Answer to Counterclaim or whatever is appropriate or what's ordered.
Q. Well, that gets into my next question, what do you expect will be your
procedure if you're elected to this job and the writing of orders? Will you
write your own orders, sir? Will you have the attorneys write your orders?
A. I think it would be rare for me to write my own order. I think I would
choose the prevailing attorney and designate that individual to prepare the
order.
Q. And after you have asked him to do that, what is your next step? Does he
--
A. He mails it to me or brings it to me.
Q. Has he already shown it -- have you instructed him to show it to the other
side?
A. I would -- no, ma'am. I would attempt to make my ruling at the end of the
evidence while the parties and their attorneys are present.
Q. Uh-huh.
A. With everybody present, I would announce my ruling unless there was something
unusual about the case that may require or may indicate that I would ask them
to file some -- something in writing to support a position that I was not clear
on and then I would designate an individual to -- that I consider the prevailing
party to prepare the order.
Q. Okay.
A. That would be in the presence of the prevailing party, that party's client,
the losing attorney and the losing attorney's clients. And while everybody
feels that they lose in a Family Court contested matter, sometimes each party
may win something. It may not be a total win, but it may not be a total
loss.
And I would feel like the party -- I feel like it would be the
responsibility of one of -- the individual who generally prevailed, or prevailed
to the greater degree, to prepare the order.
Printed Page 6892 . . . . . Tuesday, May 17,
1994
Q. Mr. Flynn, you have had many years of experience with many different judges,
in the courtrooms of many different judges. What would you say are the
components of a good judicial temperament for Family Court?
A. Patience, good listener.
Q. Okay.
A. Firm, firmness. I think those would be the main ones.
Q. Uh-huh. And what is your strongest quality of those three?
A. My strongest quality?
Q. Yes, sir.
A. I think I'm a good listener.
Q. Good listener. Great. Which one would you want to work on more than any of
the others?
A. Possibly patience.
Q. Mr. Flynn, being a Family Court judge may be a stressful job, and I want to
ask you how you deal with stress.
A. I take it as it comes. I've had stressful situations in the past and I've
always managed to come out. I don't have any problem with more stressful
situations.
Q. Could you please describe your normal workday and how this may be different
from the day you envision you would have as a Family Court judge?
A. Well, if I'm successful in becoming a Family Court judge, my day will be full
of more work than I'm doing now.
Q. Fuller, sir?
A. It would be more full.
Q. More full, yes, sir.
A. And I'm sort of semiretired, you might say now.
Q. I see.
A. But you if become -- if I'm successful and become a Family Court judge, then
I would be full time.
Q. What is your strong interest in becoming a Family Court judge?
A. I think I've had a fairly decent legal career for a lot of number of years
and I think it would be nice to cap it off with a judgeship.
Q. Which aspect of being a Family Court judge is the most exciting to you?
A. Which aspect?
Q. Yes, sir.
A. I think every aspect of family law deals with sad situations. The family
unit is the basic unit in our society or in any society and I'm afraid that we
have seen our family unit breaking down especially in this country
Printed Page 6893 . . . . . Tuesday, May 17,
1994
and I find it to be a very sad situation. And if I can do anything to improve
that, I shall attempt to. I don't know that I'll be able to.
It seems like most people who get married nowadays find that it's sort of a
trial situation and that's not fair and not right. It's not -- it's especially
not fair to the children. And I find that the children in our society today
especially children from broken home present about as sad a situation as one can
find.
Q. Without getting into specifics -- well, let me just ask you, how would you
deal with the more violent juveniles?
A. I would not hesitate to try to get them some help, to get them pointed in the
right direction.
I think that the individual who has come up with a proposal for boot camp may
have a good suggestion. I think that a little discipline and a boot training
and those type things, I think carries a great weight in -- toward turning the
individual around and getting him from a wayward way to a straight way.
Q. With your community activities, Mr. Flynn, do you involve yourself with the
children of your community?
A. Well, not really. Generally speaking, we have -- my wife and I have two
children of our own that we are very closely related with and dealt with for a
number of years, but they are both grown now and out of our home. But sometimes
they come back and we're always happy for them to come back and my wife is very
anxious for someone to award her with some grandchildren. They have not done
that yet.
We have -- I'm an active member of our Rotary Club in Union. We have
programs that deal with the students, the high school students, and the program
yesterday was for the benefit of the children or the young people in our
community who have shown accomplishments and attainments and have expressed
certain indications that they may be going on to higher education. And they --
some of them, they get scholarships. And I think that that is a worthy,
worthwhile program and I fully participate in it.
Our church is instrumental in dealing with young people. And we have a good
youth program. And we are going to have a change in our youth minister right
away or pretty soon. I hope that we can get a good replacement for the good one
that is leaving. And I support all the children's causes. I don't know that
I'm all that generally in a participatory deal with the activities that's for
the children.
Printed Page 6894 . . . . . Tuesday, May 17,
1994
Q. You live in a relatively rural area of South Carolina. Does that make a
difference in terms of juvenile crime? Is it any different there than it is in
Spartanburg --
A. Well, some people --
Q. -- Greenville, Columbia?
A. Union is not as progressive as some areas of the state and, hopefully, we
will see some pick up in our economic activity. I think one of the sad things
in our community has been the fact that we don't have sufficient industry and
job availability for people who, for instance, graduate from high school there
and go on to get a college degree and then they want to come back home.
Q. Uh-huh.
A. There is very little opportunity for those people in our county.
Q. And how does that relate to, say, the juvenile crime?
A. I don't know that that has any direct relationship, but it may because you
are in essence excluding those people who have gone on and obtained higher
education from our youth that are growing up in the area.
I think they would be better off or the children would be better off if they
had more influence from people who are possibly a little higher on the
educational scale.
Q. What do you believe constitutes ex parte communication?
A. Ex parte communication is contact by a lawyer with a judge concerning the
merits of a matter that is either pending or about to be pending.
Q. And what is your philosophy about that as it relates to Family Court?
A. Don't do it. Don't do it in any kind of a situation. Don't allow it.
Q. Are there any instances when a Family Court judge would allow ex parte
communication?
A. Well, I think on -- if you call ex parte as I defined it, I don't think
so.
Q. If you were the guardian of the children in a case, would that be the same
situation?
A. A guardian, as I understand, it is supposed to make the report to the Court
in the presence of the other people or at the request of the judge in possibly
some other way, but the judge may allow the counsel for the opposing party to be
present, probably would not allow the party or parties to be present.
Q. Mr. Flynn, you have been a member of your community for all your life. How
is that going to affect any situations where you need to recuse
Printed Page 6895 . . . . . Tuesday, May 17,
1994
yourself in a case if you were elected to Family Court judge? What are you
--
A. Well--
Q. What's your standard for that, sir?
A. If I did, if I determine that I should recuse myself, I shall. I would think
that what I would probably do would
-- if some person came before me whom I had represented during my practice of
law, I would make that announcement, so that everybody would be aware of it. If
anyone chose to request my recusal, I would recuse myself.
I would not automatically recuse myself unless it dealt with something that I
had been actively involved with as a particular matter. I don't think that that
-- that's my understanding of the time that a judge should recuse himself.
Q. What is your understanding of the Judicial Canons as they relate to
gifts?
A. As they deal with what?
Q. Gifts?
A. I don't think people have ever attempted to give me gifts and I cannot think
that anybody would ever attempt to give me a gift. I think that if someone
attempted to give me a gift, I would decline the gift.
Q. We show Mr. Flynn that you have spent a minimal amount of money on this
candidacy. Has anything changed from your PDQ, sir?
A. No, ma'am. I have bought 200 postage stamps and I mailed a letter to every
member of the legislature. I still have, I think, 30 stamps left that I intend
to use later.
Q. And if -- whatever expenditures you make in the future, would you please
notify Ms. Satterwhite of those?
A. I'll be happy to notify Ms. Satterwhite or any other person you designate
what I should report and to whom I should report. I don't anticipate any other
expenses, however, except as I understand it, the travel and lodging is -- and
food is exempt.
Q. That's true. It's not included. Have you asked for any pledges from any
legislators?
A. No, ma'am. I have expressed --
Q. Indirectly?
A. -- an interest.
Q. Yes, sir.
A. I've made, I think, three trips to Columbia. I think today is the fourth
trip and I have been fortunate in meeting some of the members of
Printed Page 6896 . . . . . Tuesday, May 17,
1994
the legislature and all I've done is express an interest in the Family Court
judgeship in my county.
Q. Thank you very much.
EXAMINATION BY SENATOR MCCONNELL:
Q. Let me ask you, how do you -- would you propose to deal with judicial
temperament from the standpoint of the pressures of the job, the fact that day
after day you hear case after case, request after request, pressure to get the
files through and still maintain a courteous, congenial attitude toward the
litigants and the lawyers?
How would you deal with the stress of the job and maintaining that and do you
consider it important to maintain that sort of presence in the courtroom?
A. I believe that it is very important to maintain that presence in the
courtroom. And I have dealt with stressful situations on a number of occasions
in the past. I think that I have been able to successfully deal with them. I
don't anticipate any stressful situation that I would not be able to handle. I
may be wrong. If I determine that I'm wrong, then I will certainly either
straighten myself out or do something.
Q. Well, to coin a phrase of a previous member of this committee, he called it
robitis where the robes become too heavy for the judge. It tends to scramble
their brains somewhat and create a position where they're just short on patience
and I ask that question because that's one of the complaints you hear from
lawyers and from -- and sometimes from litigants that -- and I was always told,
you know, you can get things done just as fast with a smile and being nice as
you can with being, you know, some other manner of operating, so it, to me, as a
member of this committee is an important ingredient of judicial temperament.
And that's why I asked you the question.
I'm interested in -- also in your awareness. I mean that any of us
potentially can get worn down by stress and how do you deal with stress?
A. I read a lot. I really have found that stress does not bother me much. And
I'm -- I know that stress bothers some people more than it does others. I think
that you were told absolutely correctly that when judges have no patience, it
creates an impossible situation for themselves and their litigants and the
lawyers. But I don't anticipate any problem of that type.
SENATOR MCCONNELL: Okay. Thank you. I think Ms. McNamee has one more question
for you.
Printed Page 6897 . . . . . Tuesday, May 17,
1994
RE-EXAMINATION BY MS. MCNAMEE:
Q. Just one more, Mr. Flynn. Is there any reason why you could not fulfill
the day-to-day duties of a Family Court judge?
A. Not that I'm aware of.
Q. Okay.
A. I have had a health problem in the past, but it is not bothering me now. I
have a checkup once a year, but I intend to continue having my checkups, but I
don't anticipate that being a problem.
Q. Thank you very much.
A. Thank you.
SENATOR MCCONNELL: Further questions? Thank you, sir. We appreciate you
coming.
A. Am I free to leave?
SENATOR MCCONNELL: Yes, sir.
A. Thank you.
SENATOR MCCONNELL: You sure are. Thank you. I understand you are going to be
putting a statement in?
A. Yes, sir.
SENATOR MCCONNELL: All right. Thank you, sir. Mr. Robert E. Guess. Mr. Guess,
if you'd come forward, please, sir, to be -- I understand you're seeking the
position of judge of the Family Court of the Sixteenth Judicial Circuit Seat,
Number 1; is that correct, sir?
MR. GUESS: That's correct.
SENATOR MCCONNELL: All right, if you'd raise your right hand, please, sir.
ROBERT E. GUESS, having been duly sworn, testified as follows:
SENATOR MCCONNELL: Good morning.
MR. GUESS: Good morning.
SENATOR MCCONNELL: I understand this is your first screening; is that
correct?
MR. GUESS: Yes, sir.
SENATOR MCCONNELL: Have you had a chance to review the Personal Data
Questionnaire Summary?
MR. GUESS: I have.
SENATOR MCCONNELL: Is it correct or does it need any clarification or
alterations to it?
MR. GUESS: It's correct as written.
SENATOR MCCONNELL: All right, sir. Do you have any objection to our making this
summary a part of your record of your sworn testimony?
MR. GUESS: No.
Printed Page 6898 . . . . . Tuesday, May 17,
1994
SENATOR MCCONNELL: It shall be done at this point in the transcript.
PERSONAL DATA QUESTIONNAIRE SUMMARY
1. Robert E. Guess
Home Address: Business Address:
1034 Peach Orchard Road 108 W. South Street, P. O. Box 278
Union, SC 29379 Union, SC 29379
2. He was born in Union, South Carolina on June 19, 1948. He is presently
45 years old.
4. He was married to Vanda Lee McLeod on July 16, 1983. He has two
children: Carolyn Hunter, age 8, and Julia McLeod, age 6.
5. Military Service: Completed 6 year enlistment; South Carolina National
Guard;
January 20, 1970 - January 20, 1976; Headquarters and Headquarters Company;
118th Infantry (MECH); Union, South Carolina; Rank of Specialist 5; Honorable
Discharge; Obligation Completed
6. He attended Presbyterian College, September, 1966 to May, 1970, B.A.
Degree in English; and the University of South Carolina School of Law,
August, 1971 to May, 1974, J.D. Degree.
8. Legal/Judicial education during the past five years:
He has attended South Carolina Bar seminars on various topics:
11/5/93 Serving the Best Interests of Children
4/16/93 Winning Trial Techniques
12/4-5/92 Auto Torts Seminar, S. C. Trial Lawyers Assn.
10/30/92 Probate and Estate Planning Issues
11/1/91 Negotiation and Settlement in the 90's
11/15/91 Judicial CLE, Family Law Fall Update
11/30/90-12/1/90 Auto Torts Seminar, S. C. Trial Lawyers Assn.
9/2/90 Legal Ethics and Lawyer Malpractice
12/15/89 S. C. Corporate Manual Seminar
12/9/89 General Practice Update and Hugo Related Issues
Printed Page 6899 . . . . . Tuesday, May 17,
1994
9. Taught or Lectured:
Taught business law, school years 1983-1984 and 1984-1985, USC-Union
campus.
General business law for sophomore level students.
12. Legal experience since graduation from law school:
March, 1975 - November 1977 Private practice in Charleston, primarily real
estate and criminal practice
November, 1977 - July, 1979 Firm of Wilburn & Guess; Greenville, South
Carolina; general civil and criminal
practice
July, 1979 - October, 1986 Solo practice; Union, South Carolina; real
estate, domestic, criminal
October, 1986 - October, 1988 Firm of Phillips, Guess & Diamaduros;
practice in real estate, probate, domestic and
general civil practice
October, 1988 to present Solo practice; Union, South Carolina; general
civil practice, including real estate, domestic,
estate planning and probate, criminal practice
by Court appointment only
13. Rating in Martindale-Hubbell:listed but not rated
14. Frequency of appearances in court:
Federal - 0
State - approximately 185 appearances over 5 years
Other - administrative bodies, magistrate and municipal, 20 over 5 years
15. Percentage of litigation:
Civil - 10
Criminal - 5
Domestic - 20
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