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SC Attorney General Wilson issues opinion on whether towns, cities, or counties can issue emergency

(Columbia, S.C.) – South Carolina Attorney General Alan Wilson issued an opinion today saying local governments do not have the authority to exercise emergency powers that are delegated to the Governor by state lawmakers. Local governments include the County of Lexington and any city or town in it. Currently, no governments leaders in Lexington County have publicly said they were exploring issuing their own order.

Some cities like Charleston and Columbia in the state have enacted “stay at home” orders to try to reduce the spread of the COVID-19 virus. However, the attorney general’s opinion cites a previous opinion from September 5, 1980 relating to mandatory evacuations by towns, cities, and counties. That opinion concluded that only the Governor was empowered to exercise extraordinary emergency powers under Section 25-1-440. The opinion points out “there is no enumerated power expressly conferred upon such political subdivisions as would reasonably include the extraordinary authority.”

“This conclusion that the Governor’s emergency powers preempt those of counties and municipalities is equally applicable to the pandemic created by COVID-19. Accordingly the 1980 opinion is affirmed and is provided as guidance to counties and municipalities,” today’s opinion says.

The opinion stresses that while local governments retain their Home Rule powers during a state of emergency, they do not have extraordinary emergency powers. “They cannot exercise the emergency powers delegated to the Governor by the General Assembly,” the opinion says.

It also points out that these powers, even at the state level, are subject to applicable constitutional limitations and refers to the office’s opinion issued March 24 to Chief Mark Keel regarding enforcement of a state law concerning groups of three or more gathering. Those limitations include fundamental constitutional protections of freedom of religion, protections of the family unit, and the freedom of assembly for political purposes.

The opinion concludes by saying, “counties and municipalities should be aware that any unauthorized exercise of such emergency powers could subject these political subdivisions to liability at the behest of a private citizen with requisite legal standing.”

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