H 4306 Session 109 (1991-1992)
H 4306 General Bill, By J.L.M. Cromer
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
22-3-15 so as to authorize magistrates to issue and enforce temporary
restraining orders of not more than sixty days.
01/29/92 House Introduced and read first time HJ-10
01/29/92 House Referred to Committee on Judiciary HJ-10
05/07/92 House Committee report: Favorable with amendment
Judiciary HJ-55
05/20/92 House Objection by Rep. Baker, Littlejohn & Bruce HJ-97
05/20/92 House Debate adjourned until Thursday, May 21, 1992 HJ-97
05/21/92 House Debate adjourned until Tuesday, May 26, 1992 HJ-8
05/26/92 House Objection by Rep. Ross & Chamblee HJ-45
06/02/92 House Objection withdrawn by Rep. Littlejohn HJ-53
06/03/92 House Debate adjourned HJ-106
06/04/92 House Debate adjourned HJ-28
COMMITTEE REPORT
May 7, 1992
H. 4306
Introduced by REP. Cromer
S. Printed 5/7/92--H.
Read the first time January 29, 1992.
THE COMMITTEE ON JUDICIARY
To whom was referred a Bill (H. 4306), to amend the Code of Laws
of South Carolina, 1976, by adding Section 22-3-15 so as to authorize
magistrates to issue and enforce temporary restraining orders, etc.,
respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting
words and inserting:
/SECTION 1. The 1976 Code is amended by adding:
"Article 15
Proceedings for Magistrate Court
Restraining orders
Section 22-3-1510. This article may be cited as the `Magistrate
Court Restraining Order Act.'
Section 22-3-1520. As used in this article:
(1) `Abuse' means:
(a) physical harm, bodily injury, assault, or the threat of physical
harm;
(b) sexual criminal offenses, as defined by statute;
(2) `Family or household member' means spouses, former
spouses, parents, children, and persons related by consanguinity or
affinity within the second degree.
(3) `Court' means the magistrate court.
(4) `Petitioner' means the person alleging abuse in a petition for
a magistrate court restraining order.
(5) `Respondent' in a petition for a magistrate court restraining
order means the person alleged to have abused another or a person
alleged to have aided or abetted the abuse.
(6) `Magistrate court restraining order' means an order issued to
protect the petitioner or minor family or household members from the
abuse of another person, where the respondent has received notice of the
proceedings and has had an opportunity to be heard.
Section 22-3-1530. (A) A magistrate may issue a magistrate court
restraining order granting only the relief provided by Section 22-3-1560.
A person violating the terms and conditions of an order of protection
issued under this article is guilty of a misdemeanor and, upon
conviction, must be fined not more than two hundred dollars and
imprisoned not more than thirty days.
(B) Actions for a magistrate court restraining order must be filed
in the county in which the:
(1) respondent resides at the time of commencement of the
action; or
(2) petitioner resides if the respondent is a nonresident of this
State or if he is not found after due diligence.
Section 22-3-1540. A petition for a magistrate court restraining
order is created to be used in cases of abuse. A petition for relief under
this section:
(1) may be made by a person in need of protection or by a
family or household member on behalf of a minor family or household
member;
(2) must be verified and must allege the existence of abuse
stating the specific time, place, and details of the abuse and other facts
and circumstances upon which relief is sought;
(3) must inform the respondent of the right to retain counsel.
Section 22-3-1550. (A) A hearing must be held within fifteen
days of the filing of a petition for a magistrate court restraining order,
unless an emergency hearing is held earlier as provided in subsection
(B). A magistrate shall cause a copy of the petition and requests or
attachments to be served upon the respondent at least five days before
the hearing, except as provided in subsection (B), in the same manner
required for service in the circuit courts. Where service is not
accomplished five days before the hearing, the respondent, upon motion,
is entitled to a continuance to provide for compliance with this section.
(B) Upon a prima facie showing of immediate and present danger
of bodily injury to the petitioner or minor household or family member
of the petitioner, as evidenced by affidavit attached to a written request
filed with the petition, the court shall grant an emergency hearing. The
court shall rule upon the request within twenty-four hours after it is filed
and shall schedule an emergency hearing to be held within forty-eight
hours of the filing of the request.
Section 22-3-1560. A magistrate court restraining order granted
under this article must protect the petitioner or the abused person on
whose behalf the petition was filed and may include provisions
temporarily enjoining the respondent from:
(1) abusing, threatening to abuse, or molesting the petitioner or
the person on whose behalf the petition was filed;
(2) communicating or attempting to communicate with the
petitioner or the person on whose behalf the petition was filed in a way
to violate this article;
(3) entering or attempting to enter the petitioner's residence or his
place of employment or education or another location the court may
order. The order may not prohibit a respondent from entering or
attempting to enter a location that also was respondent's residence or
place of employment or education when the action was commenced.
Section 22-3-1570. A magistrate court restraining order issued
pursuant to this article must be for a fixed time not to exceed thirty days.
Section 22-3-1580. The magistrate shall cause to be mailed or
served upon the petitioner, the respondent, and local law enforcement
agencies having jurisdiction in the area where the petitioner resides a
certified copy of a magistrate court restraining order.
Section 22-3-1590. The primary duty of a law enforcement officer
when responding to an incident of abuse is to enforce the laws allegedly
violated and to protect the abused person if facts are found which
substantiate the complaint. In these incidents the officer shall:
(1) notify the abused person of the right to initiate criminal
proceedings and to seek an order of protection under the Protection from
Domestic Abuse Act or a magistrate court restraining order under this
article;
(2) advise the parties of the importance of preserving evidence.
To provide protection to the petitioner and minor children the officer
may offer or arrange to provide transportation of the abused person to a
hospital for treatment of injuries or to a place of shelter or safety and to
accompany the abused person to his residence to allow for the removal
of clothing, medication, and reasonably necessary personal property.
Section 22-3-1600. The petitioner's right to relief under this article
is not affected by:
(1) leaving the residence or household to avoid further abuse;
(2) the use of physical force against the respondent reasonably
believed by the petitioner to be necessary to defend the petitioner or
others from imminent physical injury or abuse.
Section 22-3-1610. A proceeding under this article is in addition to
other civil and criminal remedies."
SECTION 2. Section 8-21-1010 of the 1976 Code, as last
amended by Act 678 of 1988, is further amended to read:
"Section 8-21-1010. Except as otherwise expressly provided,
the following fees and costs must be collected by the magistrates and
deposited in the general fund of the county:
(1) for taking civil recognizance, with or without
sureties,: five dollars;
(2) for granting an order for civil special bail, with or
without sureties,: five dollars;
(3) for receiving and filing bond in claim and delivery,
attachment,: five dollars;. If
justification of sureties is required, an additional five dollars
must be collected;
(4) for administering and certifying oaths or documents
in writing,: two dollars;
(5) for issuing any a prerogative
writ,: five dollars;
(6) in all civil actions and in actions filed pursuant to the
`Magistrate Court Restraining Order Act', for issuing a
summons and a copy for defendant, and for giving
judgment with or without a hearing,: twenty-five
dollars;
(7) for issuing execution executions and
renewal thereof, their renewals: ten dollars;
(8) for making up, certifying, and forwarding a transcript
of record and judgment in a case for purpose of appeal,:
ten dollars;
(9) for proceedings by a landlord or lessor against a tenant
or lessee, including notices to quit, eviction orders, or recovery of
rents,: ten dollars;
(10) for proceedings on a coroner's inquest, as prescribed
by law,: ten dollars, if an inquest is demanded
by a party other than the State or county or authorized officer of either;
(11) for proceeding on estrays, including judgment for
possession, sale, or damages,: ten dollars;
(12) for qualifying appraisers to set off homestead or
qualifying sureties on a bond posted in a case, including bail
bonds,: five dollars;
(13) for each tax execution collected,: five
dollars;
(14) for filing or issuing any other paper not
provided for in this section,: five dollars.
No fees or costs may be assessed against a party for summoning
jurors or expense of jury service in a criminal case in which a trial by
jury is had."
SECTION 3. This act takes effect upon approval by the
Governor./
Amend title to conform.
DAVID H. WILKINS, for Committee.
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 22-3-15 SO AS TO AUTHORIZE
MAGISTRATES TO ISSUE AND ENFORCE TEMPORARY
RESTRAINING ORDERS OF NOT MORE THAN SIXTY DAYS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 22-3-15. Magistrates may issue temporary
restraining orders of not more than sixty days and enforce them in the
manner in which the orders are enforced in family and circuit
courts."
SECTION 2. This act takes effect upon approval by the Governor.
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