SC cities’ stay-at-home orders during coronavirus are likely illegal, AG says

EDITOR’S NOTE: A previous version of this story misidentified Rep. Jeff Bradley’s constituency. Bradley is the representative for Hilton Head Island and Daufuskie Island. (Updated: 3:05 p.m. 03/27/2020)

The state Attorney General’s Office says cities and counties in South Carolina have limited powers during states of emergency, raising questions about the legality of stay-at-home orders issued by Columbia and Charleston this week.

The opinion was published Friday morning and written by Solicitor General Robert D. Cook in response to a letter sent by Rep. Jeff Bradley, representative for Hilton Head Island and Daufuskie Island. Bradley said he sought clarification from the Attorney General because Hilton Head Council was weighing the possibility of enacting a shelter-in-place ordinance, but wanted to know if there were any potential constitutional issues with such an order.

The Attorney General’s opinion cited a state law that gives the governor extraordinary powers during a state of emergency — powers which preempt that of local and county governments.

While Friday morning’s opinion does not specifically say local stay-at-home orders are unconstitutional, it notes a 1980 opinion by the South Carolina Attorney General that said certain steps, such as evacuation orders during emergencies, can only be ordered by the governor, not local municipalities.

“The governor ... as the elected chief executive of the state, is responsible for the safety, security and welfare of the state” during a state of emergency, according to state law cited in Friday’s opinion.

While opinion is non-binding, it is an indicator of how courts might rule if someone legally challenges the stay-in-place orders. Bradley said he is glad the AG gave local leaders a heads-up about potential legal issues. Spokesperson Robert Kittle said the AG is not looking to take legal action against local governments for the actions they take to protect residents during an emergency. The opinion was also not an endorsement or condemnation of shelter-in-place orders, Kittle said — it was written so local government leaders could be aware of the possible legal risks.

Columbia Mayor Steve Benjamin said Friday the city’s actions are “entirely within” its authority.

“Our actions do not contradict the governor’s actions because on this immediate issue before us — proven one of the most important and effective to stopping the spread of this virus, he has done nothing,” Benjamin said in a statement.

Columbia’s order is set to take effect at 12:01 a.m. Sunday.

Gov. Henry McMaster has repeatedly said he does not deem a statewide stay-home order necessary, given the measures he has already taken with executive orders to limit unnecessary movement and nonessential business. At a press conference on Thursday, McMaster said he would issue a shelter-in-place order “if and only if it becomes necessary to take those steps.”

States and local governments around the country have ordered their residents to stay home, whether through curfews — which Columbia also implemented last week — or tougher measures, such as shelter-in-place laws.

Bradley said that while South Carolina would be wise to keep an eye on what other states are doing during the pandemic, the state must make decisions for itself. He said a statewide stay-at-home order might sound simple, but it is complex because of the personal liberties it impacts.

“I think it’s awfully hard to implement,” Bradley said. “I think if folks are desirous of sheltering in place then that’s a good thing for them to do individually.”

State health officials announced Thursday the state now has 456 confirmed cases of COVID-19 and the virus has contributed to the deaths of nine people. Johns Hopkins University said Thursday the United States now leads the world in the number of confirmed coronavirus cases.

The city of Columbia issued its stay-at-home order on Thursday, following the lead of Charleston, which issued a similar order earlier in the week. Susan Herdina, Charleston’s corporation counsel, issued a statement Friday afternoon saying city leaders and staff had been working to ensure the city’s emergency laws “directly support and codify” McMaster’s orders.

“The city appreciates the strong support for the principle of Home Rule voiced in today’s AG Office’s opinion, and believes that principle extends to emergency ordinances to protect the health and safety of our citizens,” the statement said.

The city of Greenville had previously been considering a similar measure but was “reconsidering” after the Attorney General’s opinion, The Greenville News reported.

Maayan Schechter contributed.

This story was originally published March 27, 2020 at 11:53 AM with the headline "SC cities’ stay-at-home orders during coronavirus are likely illegal, AG says."