Did a filing fee charged to a losing restraining-order petitioner threaten South Carolina's STOP grant eligibility?

Plain-English summary

South Carolina Court Administration asked whether a 2005 state law could affect the state's eligibility for federal STOP formula grants under the Violence Against Women Act. The federal condition quoted in the request barred making a victim bear specified costs connected with domestic violence charges or protection orders. The state law prohibited a fee when someone filed a complaint and motion for a harassment or stalking restraining order, but directed the court to assess a filing fee against the party who did not prevail.

The Attorney General considered a harassment or stalking restraining-order action arguably distinguishable from a domestic violence prosecution or the protection-order process described in the federal condition. He therefore thought the state appeared to comply with the grant eligibility requirement. He expressly said that conclusion was not free from doubt and suggested considering an amendment that would eliminate the possibility of charging the losing party the filing fee.

Currency note

This opinion was issued in 2005. 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

Did the state law charge a fee when someone filed a harassment or stalking restraining-order request?
The provision quoted in the opinion barred a fee at filing, but assessed a filing fee against the party who did not prevail after the action.

Did the AG say the fee definitely satisfied federal STOP grant requirements?
No. He thought the state appeared to comply because the restraining-order action was arguably different from the federal condition's listed proceedings, but said the conclusion was not free from doubt.

What change did the opinion suggest?
It suggested considering a state-law amendment to eliminate the opportunity to assess the filing fee against the losing party.

Background and statutory framework

The opinion compared the federal grant certification condition quoted by Court Administration with Act No. 106 of 2005, which amended the state provision governing harassment or stalking restraining-order fees. It separately identified state domestic violence offenses and protection-order statutes to explain the distinction on which its tentative eligibility conclusion depended.

Citations and references

• Act No. 106 of 2005: state amendment discussed in the request and analysis.
• §§ 16-25-10 et seq.: domestic violence provisions discussed by the AG.
• §§ 20-4-10 et seq.: protection-order provisions distinguished from the restraining-order fee.

Official title

Indicating that a question has arisen concerning the effect of a provision of Act No. 106 of 2005 on STOP formula grant awards received by the State.

Requester

Robert L. McCurdy, Staff Attorney, South Carolina Court Administration

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-12-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05dec12mccurdy.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
XITORNEY GE:><ERAL

December 12, 2005

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Robert L. Mccurdy, Staff Attorney
South Carolina Court Administration
1015 Sumter Street, Suite 200
Columbia, South Carolina 29201
Dear Mr. Mccurdy:

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In a letter to this office you indicated that a question has arisen concerning the effect of a provision of Act No. 106 of 2005 on STOP formula grant awards received by the State. In order to be eligible for STOP formula grant awards, states must certify that they are in compliance with the statutory eligibility requirements of the Violence Against Women Act (VAWA) (42 U.S.C. §§ 3 796gg to 3 799gg-5). According to your letter, a state is in compliance with the VA WA requirement regarding costs of criminal charges and protection orders ifthe state:

... certifies that its laws, polices and practices do not require, in connection with the prosecution of any misdemeanor or felony domestic violence offense, or in connection with the filing, issuance, registration, or service of a protection order, or a petition for a protection order, to protect a victim of domestic violence, stalking, or sexual assault, that the victim bear the costs associated with the filing of criminal charges against the offender, or the costs associated with the filing, issuance, registration or service of a warrant, protection order, petition for a protection order, or witness subpoena, whether issued inside or outside the State, tribal or local jurisdiction; Effective January I, 2006, Act No. I 06 of 2005 amends Section 16-3-17 50(D) with regard to the fee for filing a complaint and motion for a restraining order against a person engaged in harassment or stalking. Such provision states: The magistrates court must provide forms to facilitate the preparation and filing of a complaint and motion for a restraining order by a plaintiff not represented by counsel. The court must not charge a fee for filing a complaint and motion for a restraining order against a person engaged in harassment or stalking. However, the court shall assess a filing fee against the nonprevailing party in an action for a

Mr. Mccurdy
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December 12, 2005

restraining order. The court may hold a person in contempt of court for failure to pay this filing fee. (emphasis added). Therefore, such provision provides that an individual who files a complaint and motion for a restraining order regarding another individual engaged in harassment or stalking and who does not prevail in the action is subject to the cost of the filing of the action. Referencing such requirement, you have asked whether Section 16-3-1750 violates the VA WA requirement set forth previously regarding a victim not bearing the costs related to criminal charges and protection orders. S.C. Code Ann. §§ 16-25-10 et seq. provide for the offense of criminal domestic violence and for the offense of violating the terms and conditions of an order of protection. Pursuant to S.C. Code Ann. §§ 20-4-10 et seq. an individual may seek an order of protection from the family court or a magistrate's court so as to protect the petitioner or minor household members from abuse of another household member. Pursuant to Section 20-4-60, an order of protection may include: (I) temporarily enjoining the respondent from abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed. (2) temporarily enjoining the respondent from communicating or attempting to communicate with the petitioner in any way which would violate the provisions of this chapter and temporarily enjoining the respondent from entering or attempting to enter the petitioner's place of residence, employment, education or other location as the court may order. As set forth by the referenced VA WA legislation, a state is in compliance with the VA WA requirement regarding costs of criminal charges and protection orders if the state " ... certifies that its laws, polices and practices do not require, in connection with the prosecution of any misdemeanor or felony domestic violence offense, or in connection with the filing, issuance, registration, or service of a protection order, or a petition for a protection order, to protect a victim of domestic violence, stalking or sexual assault, that the victim bear the costs associated with the filing of criminal charges against the offender, or the costs associated with the filing, issuance, registration or service of a warrant, protection order, petition for a protection order, or witness subpoena... :" The provision in Act No. I 06 which allows the assessment of a filing fee against a nonprevailing party in an action for a restraining order relates to the offense of harassment or stalking. In my opinion, an action for a restraining order against an individual engaged in harassing or stalking is arguably distinguishable from a prosecution for the offense of domestic violence or the filing, issuance, registration and service of a protection order. Therefore, it appears that the State would be in compliance with the referenced statutory eligibility requirements of the Violence Against Women Act regarding the assessment of costs related to criminal charges and protection orders. However, this conclusion is not free from doubt and consideration may be given to seeking an amendment to Section 16-3-

Mr. Mccurdy
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December 12, 2005

1750(D) so as to eliminate the opportunity for the assessment ofa filing fee against the nonprevailing party in an action for a restraining order. If there are any questions, please advise.

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Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General

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