Did a defendant have a right to a jury in a South Carolina stalking or harassment restraining-order hearing?

Plain-English summary

A Greenwood County magistrate asked whether a defendant could demand a jury in a hearing for a restraining order under South Carolina's harassment and stalking provisions. The Attorney General concluded that the defendant had no jury-trial right in that hearing. The opinion characterized a protective order as an equitable remedy. It relied on South Carolina decisions distinguishing matters tried by a judge in equity from matters triable by jury, along with decisions from other states addressing protective orders.

The opinion reviewed the hearing provisions, including an emergency hearing for good cause and a later hearing on a motion for a restraining order. Its answer concerned who decides the restraining-order request; it did not decide whether the defendant committed harassment or stalking.

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

Could a defendant insist on a jury at the restraining-order hearing considered in this opinion?

The AG said no. It concluded that a defendant under the cited harassment and stalking provisions had no right to a jury trial for that hearing.

Why did the AG treat this as a judge's decision?

It described a protective order as an equitable remedy and cited South Carolina decisions holding that issues properly tried in equity are decided by a judge, without a jury as of right.

Did the opinion decide whether an order should be issued against this defendant?

No. The magistrate asked about the right to a jury. The opinion described the statutory hearing process but made no finding about a particular defendant's conduct.

Background and statutory framework

The magistrate referred to S.C. Code Ann. §§ 16-3-1750 through 16-3-1800. The AG discussed Section 16-3-1760 on hearings and Section 16-3-1780 on an order's duration and extension. It cited Miller v. British America Assurance Co. and Collier v. Green for the difference between legal and equitable issues in South Carolina jury-trial analysis.

Citations and references

• S.C. Code Ann. §§ 16-3-1750 through 16-3-1800: provisions the magistrate identified for restraining orders.
• Section 16-3-1760: hearing provisions quoted in the opinion.
• Section 16-3-1780: duration and extension provisions quoted in the opinion.
• Miller v. British America Assurance Co., 238 S.C. 94, 104, 119 S.E.2d 527 (1961): legal and equitable issues.
• Collier v. Green, 244 S.C. 367, 373-374, 137 S.E.2d 277 (1964): no jury as of right in an equitable matter.

Official title

Which references provisions S.C. Code Ann. 16-3-1750 through 16-3-1800 and questions whether a defendant in a restraining order hearing has the right to a jury trial.

Requester

The Honorable C. Ryan Johnson, Magistrate, Greenwood County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-19-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2008/03/johnson-c-r-os-8573-3-19-08-restraining-order-hearing.pdf

Original opinion text

March 19, 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 questioned whether a defendant in a restraining order hearing has the right to a jury trial. You particularly referenced the provisions of S.C. Code Ann. §§ 16-3-1750 through 16-3-1800. In particular, Section 16-3-1750 states that “...the magistrates court has jurisdiction over an action seeking a restraining order against a person charged in harassment in the first or second degree or stalking.” An action for a restraining order may be initiated pursuant to that provision. Section 16-3-1760 allows for an emergency hearing “for good cause shown” in circumstances where “the plaintiff...(must)...prove his allegation by a preponderance of the evidence.” 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 not sooner than five days after service has been perfected upon the defendant.” Section 16-3-1780 states that (A) A temporary restraining order remains in effect until the hearing on the Rule to Show Cause why the order should not be extended for the full one-year period. The temporary restraining order must be for a fixed period in accordance with subsection (B) if the court finds the defendant in default at the hearing. (B) In cases not provided for in subsection (A), a restraining order must be for a fixed period not to exceed one year but may be extended by court order on a motion by the plaintiff, showing good cause, with notice to the defendant. The defendant is entitled to a hearing on the extension of an order issued pursuant to this subsection within thirty days of the date upon which the order will expire. These provisions were first enacted by Act No. 94 of 1995. As set forth in 28 C.J.S. Domestic Abuse and Violence, Section 13, “[a] protective order is historically an equitable remedy.” An opinion of this office dated March 22, 1995 stated that this

The Honorable C. Ryan Johnson
Page 2
March 19, 2008
State’s constitutional provision guaranteeing a right to a jury trial “...was long ago determined by the Courts to be inapplicable to cases within the equitable jurisdiction of our courts.” The opinion cited the decision in Miller v. British America Assurance Co., 238 S.C. 94, 104, 119 S.E.2d 527 (1961) where the court stated:
...for purposes of trial, legal and equitable issues must be distinguished ..and only those should be determined by the jury which are properly triable by jury, while those which are properly triable in equity, must be determined by the Judge in the exercise of his chancery powers. See also: Collier v. Green, 244 S.C. 367, 373-374, 137 S.E.2d 277 (1964) (because the matter was equitable, the parties were not entitled to a jury trial “...as a matter of right....”); 12 S.C. Jurisprudence, “Equity”, § 5, p. 95 [“[t]his privilege of a jury trial does not extend to equity in South Carolina.”]. Moreover, that opinion stated that
...for purposes of determining if a jury trial is compelled, our Court has usually looked to whether or not a particular action or its equivalent existed at common law at the time of the adoption of the Constitution. If the action is one in equity, then, by definition, it did not exist at common law. See also: Op. Atty. Gen. dated May 16, 1989 (“[t]he State Supreme Court has determined that the State Constitutional provisions establishing the right to a jury trial are applicable only in cases in which the right to a jury trial existed at the time the State Constitution was adopted in 1868.”); Op. Atty. Gen. dated March 17, 1981 (“...the right of trial by jury is only applicable to those cases in which a jury trial was required at the time of the adoption of the Constitution.”). As noted, the provisions providing for the restraining order referenced by you were enacted in 1995. Cases in other jurisdictions have specifically held that a defendant does not have the right to a jury trial in a matter seeking a protective order, such as anti-stalking. See, e.g., Delgado v. Souders, 46 P.3d 729 (Or. 2002). In Wisconsin v. Ameritech Corp., 517 N.W.2d 705, 706 (Wis.App. 1994), the court recognized that “[t]he only right of trial by jury guaranteed by the constitution is the right as enjoyed at the time the constitution was adopted.” That court cited the earlier decision in Schramek v. Bohren, 429 N.W.2d 501 (Wis.App. 1988), a domestic abuse case, where the respondent sought a temporary restraining order and an injunction. In that case, the court stated that “[h]istorically, injunctive proceedings have been deemed actions in equity...[B]ecause the TRO and injunction...(provided in the domestic abuse statutes)...are equitable in nature, there is no right to a jury trial...” 429 N.W.2d at 506. See also: Camden-Clark Memoral Hospital Corp. v. Turner, 575 S.E.2d 362, 370 (W.Va. 2002) (“Both the federal and state constitutional jury trial provisions grant the right to a jury trial ‘in suits at common law.’ Suits in equity were tried without juries.”).

The Honorable C. Ryan Johnson
Page 3
March 19, 2008
Consistent with the above, in the opinion of this office, a defendant involved in a restraining order hearing pursuant to the provisions to S.C. Code Ann. §§ 16-3-1750 et seq. has no right to a jury trial. If there are any questions, please advise. Sincerely, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General