Attorney General Wilson's statement on local mask ordinances

(COLUMBIA, S.C.) - June 24, 2020 - My office has recently received a number of calls regarding the city ordinances passed by Greenville and Columbia that concern the wearing of masks within those cities’ jurisdictions and under certain conditions. I want to provide a general answer to this issue. Before I provide the answer I want to make it perfectly clear that our office is not endorsing, defending or even attacking these ordinances.

The only question before my office is whether a city can lawfully pass this type of ordinance? The short answer to that question is – yes, a city can pass this type of ordinance. Our state constitution and state laws have given cities the authority to pass these types of ordinances under the doctrine of Home Rule. The basic premise behind the Home Rule doctrine is to empower local governments (i.e., towns, cities and counties) to effectively govern themselves without interference from state government. There are limits to this power.

One limit to this power would be if the S.C. General Assembly were to preempt a city from passing an ordinance through some state law or specifically prohibit a city from passing an ordinance through some state law. For example, it is our position that a city cannot pass its own gun laws because a state law specifically preempts this action. However, in this case there is no state law that preempts or prohibits a city from passing this particular ordinance.

Another limitation on cities passing these kinds of ordinances is that the ordinance cannot be arbitrary or capricious. In other words, if there were no COVID 19 pandemic or public health emergency going on a court might find the requirement to wear a mask arbitrary. That is not the case here.

If there was a riot (as there was a few weeks ago) a city could pass a curfew to get control of the civil unrest. A city could require a mandatory evacuation in the event of a local flood. Normally, a city could pass an emergency order requiring people to leave an area or stay in a particular area for a period of time. An exception to this would be if the Governor issued an emergency executive order then that would preempt a city from passing a different emergency order. This was our position two months ago when cities were passing their own emergency lock-down orders after Governor McMaster issued his state of emergency order. That remains our position today.

The final limitation would be if an ordinance violated a person’s constitutional rights. A city has the right to pass these ordinances and the only way to know if someone’s constitutional rights have been violated by these ordinances would be on a case by case basis involving very specific facts. In other words, an otherwise lawful ordinance can be applied in a way that violates someone’s rights. Based on court precedent, simply requiring someone to wear a mask at the grocery store, or stop smoking in a restaurant, or be home before curfew does not constitute a violation of rights. We would need specific facts to make that determination and we do not have those facts at this time.

One other issue that has been brought to our attention involves a law (Section 16-7-110) that prohibits the wearing of masks in public and how this law could subject people to prosecution for obeying a city ordinance that requires the wearing of a mask in commercial establishments. Basically, you have state law that says you cannot wear a mask and city ordinance that says you must wear a mask. It is important to understand that this law was passed in 1962 with the intention of preventing members of the Ku Klux Klan from concealing their identities while committing acts of terrorism. With that in mind, this statute, in our opinion would not be applicable to the mask ordinances because the wearer is not attempting to conceal their identity but to comply with a city health ordinance.

Any other statutes which may have been cited to this office as conflicting with the city ordinances would be reconciled by a future court as inapplicable.

Many people are upset about these ordinances and I can understand their frustration. However, just because you believe something is bad government does not make it unconstitutional government. Sometimes the remedy for a bad government action is not a legal remedy but a political remedy at the ballot box. I hope this helps people understand my position better. If I thought these ordinances were unlawful, I promise you I would be seeking a legal remedy.