Could a defendant demand a jury at a South Carolina magistrate's restraining-order hearing?

Plain-English summary

A Greenwood County magistrate asked whether the general rule giving either party in a magistrate's suit a jury trial altered an earlier AG opinion about restraining-order hearings. The AG said it did not. The specific restraining-order statute provided for a hearing and, in certain circumstances, an emergency hearing; it did not provide a jury trial for the defendant. The AG also characterized the protective-order matter as equitable, consistent with his earlier answer that a jury was not available as of right.

The opinion addressed a defendant's claimed statutory right to demand a jury in this particular restraining-order proceeding. Its answer rested on the specific hearing procedure despite the broader language of the magistrate-court jury statute.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the general magistrate-court jury statute give a defendant a jury at this restraining-order hearing? A: The AG said no. He treated the restraining-order statute's hearing procedure as an exception to the general jury-trial rule.

Q: What did the restraining-order statute require instead? A: The opinion said it required a hearing on the motion, and allowed an emergency hearing upon good cause shown. It did not describe that hearing as a jury trial.

Q: Did the April opinion reverse the AG's earlier answer to this magistrate? A: No. It reaffirmed the March 2008 opinion's conclusion that the defendant lacked a jury-trial right in this equitable proceeding.

Background and statutory framework

The magistrate cited S.C. Code Ann. § 22-3-230, which said either party to a suit before a magistrate was entitled to a jury trial. The AG read that general provision alongside Section 16-3-1760, which set out the restraining-order hearing procedure. He reasoned that the latter specified a hearing rather than a trial and cited analogous protective-order analysis in a Tennessee opinion.

Citations and references

Statutes discussed: S.C. Code Ann. § 22-3-230; Section 16-3-1760. Case discussed: Clark v. Crowe, 37 S.W.3d 919, 921 (Tenn. Ct. App. 2000), quoted within a Tennessee AG opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-21-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/johnson-c-r-os-8591-4-21-08-restraining-order-hearing.pdf

Original opinion text

April 21, 2008

The Honorable C. Ryan Johnson
Magistrate, Greenwood County
528 Monument Street, Room 100
Greenwood, South Carolina 29646
Dear Magistrate Johnson:
In a letter to this office you referenced our prior opinion to you dated March 19, 2008 which dealt with the question of whether a defendant in a restraining order hearing pursuant to S.C. Code Ann. §§ 16-3-1750 et seq. has the right to a jury trial. The opinion determined that inasmuch as such is a matter in equity, the defendant was not entitled to a trial by jury as a matter of right. You have now questioned whether S.C. Code Ann. § 22-3-230 which states that “[e]ither party to a suit before a magistrate shall be entitled to a trial by jury” would change the result of that opinion. In the opinion of this office, there is no statutory right for a defendant to request a jury trial in a restraining order hearing. Provisions for a hearing following the filing of a complaint and motion seeking a restraining order are set forth in Section 16-3-1760. Such provides that upon good cause shown, the court “may hold an emergency hearing” and “if the plaintiff proves his allegation by a preponderance of the evidence,...(the court)...may issue a temporary restraining order without giving the defendant notice of the motion for the order.” Subsection (D) of such provision states that “[t]he court shall hold a hearing on a motion for a restraining order within fifteen days of the filing of a complaint and motion, but no sooner than five days after service has been perfected upon the defendant.” As set forth, there is the requirement for a hearing but not a trial in such situations. In a similar situation dealing with an order of protection, the Tennessee Attorney General in an opinion dated May 22, 2006 stated that
[w]hen presented with the issue of the right to a jury trial prior to the issuance of orders of protection, the Tennessee Court of Appeals...(in Clark v. Crowe, 37 S.W.3d 919, 921 (Tenn. Ct. App. 2000))...opined that the statute was silent on the issue and that, “the language of this act clearly conveys the legislature’s intent to provide a swift and efficient summary proceeding which requires only a hearing in front of a judge, not a jury trial.”

The Honorable C. Ryan Johnson
Page 2
April 21, 2008

Similarly, in the situation addressed by you regarding the issue of a restraining order, the General Assembly provides for a hearing, not a jury trial. In the opinion of this office, such requirement is an exception to the provisions of Section 22-2-230 which generally provides for either side to be entitled to a jury trial in matters before a magistrate. Such determination is also consistent with the cases cited in the prior opinion to you which have specifically held that a defendant does not have the right to a jury trial in a matter seeking a protective order, such as an anti-stalking order, inasmuch as such are matters within the equitable jurisdiction of the court. With kind regards, I am, Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General