SC AG Wilson says he will not sue towns trying to protect citizens from coronavirus

South Carolina Attorney General Alan Wilson said Monday his office will not sue any town or city that is trying to protect its citizens by enacting local stay at home emergency ordinances.

“We never had any intention whatsoever of bringing a lawsuit against local municipalities,” Wilson told WIS-TV anchor Judi Gatson in a 21-minute interview on the Columbia television station. “We are not challenging anybody.”

And, said Wilson, South Carolinians should obey any local emergency ordinances passed by towns or cities that restrict movement in this time of the coronavirus.

“Until a court rules on this matter, local ordinances in Columbia and Charleston and all around the state are deemed valid,” Wilson said. “I would encourage citizens to follow them.”

While not exactly a flip-flop, Wilson’s Monday explanations clarified a matter that most people would not even think the attorney general might do — file a lawsuit to stop a local government from taking emergency steps to save peoples’ lives.

Coronavirus is easily spread, there is no cure and medical authorities say the best way of fighting it now is to require people to stay at home with a few common sense exceptions, such as going out to get groceries.

“The impression was that the attorney general’s office was going to prosecute people who did (take steps),” said State Sen. Marlon Kimpson, D-Charleston. Kimpson said that over the weekend, Wilson was made aware of the alarm his opinion had caused and issued a clarification in a revised opinion Sunday and public statements Monday.

Last week, Charleston and Columbia enacted stay at home emergency ordinances telling citizens to stay at home because of the coronavirus. Both cities allowed numerous exceptions to their laws and made it clear citizens could visit a doctor and perform other essential tasks. Public gatherings were restricted in size.

Then, late last week, a legal opinion issued by Wilson’s office said that ordinances by South Carolina towns and cities requiring citizens to stay at home were unlawful. Wilson didn’t use the word “unlawful,” but he said the state’s towns and cities had no authority to enact such ordinances and citizens could sue in protest. Wilson’s office said Monday that it had no problem with reporters using the word “unlawful” to describe the opinion’s stance.

Wilson’s pronouncement — coming at a time when the deadliest, most contagious plague in 100 years is sweeping across America and South Carolina — sowed confusion across the state and caused some localities to shy away from ordinances restricting movement.

Even President Donald Trump, who for weeks has been minimizing the effects of the public health emergency, on Sunday acknowledged in a press conference that the coronavirus pandemic could kill as many as 100,000 in the United States. For the first time, Trump said people’s movements might have to be restricted through April.

On Sunday afternoon, Wilson issued a revised order making it clear that his opinion did not have the force of law and saying that his office would not sue any local town or county that put legal restrictions on people’s movements because of the coronavirus.

In his Monday interview, Wilson made clear in simple language that his opinion is just that — an opinion.

“This is not an edict — it is an advisory opinion,” Wilson said.

Wilson’s opinion didn’t influence Columbia Mayor Steve Benjamin. “We feel very strongly that our ordinance is not only right as a matter of policy but one hundred percent as a matter of law.”

Benjamin said emergency situations require clarity, and Wilson’s opinion last week injected “confusion” into the coronavirus epidemic.

“We are in one business right now, and that is the business of saving lives,” the mayor said.

Wilson’s office did not issue the controversial opinion on his own. A lawmaker had requested the opinion.

Responding to public officials’ queries is the usual way that opinions by attorneys general are issued. Such opinions are offered as learned guidance, and a court might uphold such an opinion, or rule against it. But first, a lawsuit would have to be brought for the issue to be brought before a court. That has not yet happened.

During Monday’s interview, Wilson did not back down from his original opinion. Emergency local ordinances restricting peoples’ movements are still unlawful, the attorney general said.

Stay at home orders, as well as orders restricting the size of public gatherings, have become a hot topic in some quarters.

In recent days, lawmakers citing the coronavirus threat have called upon Gov. Henry McMaster to issue even more strict emergency orders restricting movement across the state. So far, McMaster has taken steps such as closing schools, limiting public gatherings to two people or fewer and stressing in regular press conferences that people should stay at least six feet from each other.

But McMaster has resisted calls to impose the kind of restrictions that both Charleston and Columbia have put in place.

On March 24, Republican State Reps. Gary Clary and Neal Collins, both of Pickens County, wrote a letter to McMaster urging him to, among other things:

▪ Close all non-essential businesses and services. Closings should include churches and gyms.

▪ Keep public schools, colleges and universities closed through this school year.

▪ Move June primaries and all local elections back to August.

“The more we can do to keep people at home, the better off we’re going to be,” Clary said Monday.

Clary, a former state circuit judge, said of Wilson’s opinion, “I think it is very telling that the Attorney General is not going into court to challenge anyone on it.”

Kimpson, the Charleston senator, said Monday he had contacted McMaster’s office twice recently to urge the governor to promulgate stiffer restrictions on movement to counter the coronavirus.

Benjamin, the Columbia mayor, also urged McMaster to promulgate a statewide emergency order requiring people to stay at home except for common-sense exceptions. “It would be wonderful to have statewide consistency.”

Any emergency orders by McMaster override any local ordinance, Wilson said. McMaster’s office has not said that any emergency measures by local governments are unlawful.

On Monday, the number of South Carolina cases of coronavirus continued to rise as the S.C. Department of Health and Environmental Control reported 151 new cases — the highest one-day total yet — and two more deaths.

So far, the state’s total now stands at 925 known cases and 18 deaths since early March. However, since testing for coronavirus is not widespread in South Carolina, no one has a handle on how many cases there might be throughout the state.

Across the U.S. the number of known cases stood at 147,937 Monday afternoon and 2,596 dead. At the beginning of March, there were only a handful of cases in the U.S.

Meanwhile, The Greenville News reported that the Greenville City Council will on Tuesday consider a stay at home ordinance.

Chris Kenney, a Columbia lawyer who was an early critic of Wilson’s opinion, said Monday he remains convinced that Charleston’s and Columbia’s emergency measures are sound law and good public policy.

“The attorney’s general’s opinion created a tremendous amount of confusion and uncertainty for towns and cities that are trying to negotiate this crisis,” Kenney said.

And the opinion likely intimidated towns and cities into backing off enacting measures to protect their citizens’ lives, Kenney said. “If you’re a small town, with few resources to defend a lawsuit, and the attorney general of your state says what you are doing is illegal, of course you are going to listen,” Kenney said.

This story was originally published March 30, 2020 at 10:36 AM.