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SC chief justice's order for masks in courthouses could face legislative review

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charleston courthouse.jpg

Charleston County Courthouse and judicial center Wednesday, July 22, 2020, in Charleston. Grace Beahm Alford/Staff

COLUMBIA — Courthouses across South Carolina, many of them still closed to the public, must require anyone walking in their doors to wear masks and get their temperature checked, by order of the state's chief justice amid what he called an "alarming" spread of COVID-19. 

But the state Senate's GOP leader questions whether Chief Justice Don Beatty can legally do that. The state attorney general's office weighed in Friday with a clear-cut, "Yes, he has that authority," said Robert Kittle, spokesman for Attorney General Alan Wilson. 

Beatty did not respond through a request to the courts' spokeswoman. But the academic question could at least be part of a wider legislative review over who can require what during any future prolonged state emergency.

"The Legislature does need to conduct a review, not for the purposes of beating up on people but helping ... guide what our rules should be going forward dealing with emergency situations," said Senate Majority Leader Shane Massey.

The Edgefield Republican actually supports requiring people statewide to wear masks, saying if a short-term mandate enables businesses and schools to fully reopen, he's all for it. But he doesn't think Beatty can issue an order that affects far more than the courts.

"In most counties, the courthouse houses lots of other county offices," he told The Post and Courier after questioning the order in a tweet. "I don’t think his administrative power extends to telling people they can’t pay their taxes at the county treasurer's office without wearing masks.

"I think it's a good idea," he stressed. "I like the fact that he's trying to provide consistency. The governor clearly has that authority under his emergency powers, but I don’t think the chief justice does."

Gov. Henry McMaster has pleaded with South Carolinians to wear masks but repeatedly stopped short of a statewide mandate, even after Massey and other top Republicans called for one. But he inched that way Wednesday by requiring face coverings in all state buildings, starting next week, and asking more city and county leaders to pass local ordinances, instead of just saying it's OK legally if they do.

Beatty's order followed the next day, covering all county and municipal courthouses. While it mentions the governor's announcement, the timing was unrelated. It came after Beatty's office surveyed court officials about their protective gear and distributed masks to courthouse employees around the state, said court spokeswoman Ginny Jones.   

It also came "as courts attempt to resume normal function," the order said.

Many courthouses are still closed to the public. 

"It's definitely a mishmash" around the state of what's open and what's not, Jones said. "What’s recommended is for hearings to be held remotely as much as they can but some of that’s not possible. Courts are conducting business."

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The first jury trial in South Carolina, following the spring's shutdowns, is a murder case that starts Monday in Laurens, she said. 

Horry County hopes to start its first post-shutdown jury trial Aug. 10. Meanwhile, Beaufort County's courthouse re-opened to the public June 15, then re-closed earlier this month amid spiking case numbers. 

Both Beatty's order and Massey's tweet pointed to a section in the state constitution that makes the state's top judge "the administrative head of the unified judicial system" and says the "Supreme Court shall make rules governing the administration of all courts of the state."

Massey says that doesn't cover every employee who works in a building that contains local courtrooms.

"I think it matters because I think the process matters," he said. "You elect a governor knowing he has emergency powers. You don’t select a chief justice with the idea he’s requiring temperature checks to register to vote."

The governor's powers should also be reviewed, and state law — which didn't envision a months-long emergency — may need tweaked, he said. 

In May, senators narrowly passed a non-binding measure — what amounts to a letter of recommendation from the Senate — scolding McMaster for issuing multiple, consecutive states of emergency amid the pandemic. The governor needs to ask legislators' permission beyond an initial state of emergency. Without explicit approval from the General Assembly, the order should expire, the one-chamber resolution stated.

Wilson's office sided with McMaster too on whether he can issue back-to-back declarations that, by state law, each expire after 15 days. And McMaster's continued to issue them. 

As for masks in courthouses, many clerks of court around the state were already requiring masks and checking temperatures. 

Local ordinances requiring face masks cover nearly half of the state's population. But the differing rules mean some cover public buildings and some don't.  

Horry County's, for example, applies to retail stores and other private businesses, not public office buildings. 

But that clerk of court already required masks and temperature checks, regardless.

While that office is technically open, but waiting inside is not allowed, so anyone coming in is greeted by deputies, who take the person's temperature and sends them back to their vehicle until they're alerted it's their turn, said office manager Heather Lewis.  

Follow Seanna Adcox on Twitter at @seannaadcox_pc.

Assistant Columbia bureau chief

Adcox returned to The Post and Courier in October 2017 after 12 years covering the Statehouse for The Associated Press. She previously covered education for The P&C. She has also worked for The AP in Albany, N.Y., and for The Herald in Rock Hill.

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