July 3, 2013 South Carolina Supreme Court published opinions

Ex Parte TLC Laser Eye Centers, LLC (In Re Hollman v Wolfson)

The trial court issued a protective order in connection with discovery in the Hollman v Wolfson case. After all claims against Center were settled in a different suit and Center was dismissed as a party to the Holliman case, Center moved to enforce the protective order alleging violations by Hollman’s attorney and for reconsideration. The trial court ruled it had no jurisdiction based on Centers’ failure to respond to a letter from Hollman’s attorney and in any event no violations occurred as no data was released which is identified any person by name. The Court, with one justice concurring in result only, reversed. It held that trial courts retain jurisdiction to enforce protective orders even when the underlying case is dismissed and the trial court was supervising the drafting of an order in the motion proceeding. Thus, the trial court had jurisdiction. The Court also held that under the terms of the protective order, information which provides a reasonable basis was covered as the trial court adopted the federal definition and reasonable basis information is included in the definition. The case was remanded for further proceedings.

Barton v South Carolina Department of Probation, Parole and Pardon Services

Barton sought parole in 2012 pursuant to South Carolina Code 24-21-645. At the time of her conviction, 645 required annual hearings and parole could be granted by a majority vote. In 2012, 645 required hearings every 2 years and a 2/3 vote to grant parole. The Parole Board voted 4-2 with one member absent in favor of granting parole. However, the board understood 645 to require 2/3 of the 7 members of the Board or 5 votes to grant parole and thus denied Barton’s application. The administrative law judge affirmed finding no ex post facto violation and that the statutory interpretation was correct. The Court, with two justices concurring in result only, reversed. The majority held that the new 2/3 requirement violated the ex post facto provisions of the federal and state constitutions by creating a significant risk of increased punishment in that parole applicants must now obtain an additional vote in favor of parole. The majority noted that the Court had previously held the change from annual hearings to hearings every two years violated ex post facto provisions because it applied to a large number of offenders, many of whom were nonviolent offenders and almost all of whom would eventually obtain parole. The majority extended the reasoning to the 2/3 requirement and found it unconstitutional on these facts. The majority also held the 2/3 requirement in 645 is ambiguous as it could mean 2/3 of the whole Board or 2/3 of those present. Applying the common law definition of quorum to mean a majority of the whole Board, the majority held that the 2/3 requirement only requires 2/3 of a quorum of the board to vote in favor of parole. It noted adopting the Board’s definition would absurdly count absent members as no votes even though there was no principled way to say the legislature did not want those absent members to be counted as yes vote. The majority also noted that the legislature knows how to identify the full board when it wants to and 645 does not contain the phrase “full board”. The case was remanded for further proceedings noting Barton should be granted parole. Justice Pleiconses agreed with the statutory interpretation of the majority and would have avoided the constitutional issue. Justice Kittredge also agreed with the statutory interpretation, but, argued the 2/3 requirement does nto violate ex post fact o protections as it is merely a procedural change

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