Magistrates are ‘judicial officers,’ may issue emergency custody orders

A circuit court erroneously prohibited the Commonwealth of Virginia from seeking to have magistrates issue emergency custody orders, or ECOs, against a sexually violent predator, the Court of Appeals of Virginia has held in a published decision.

On appeal, the commonwealth first established that it had standing and that the matter was ripe for adjudication, after which the panel addressed the merits of the case.

Judge Clifford L. Athey Jr. agreed with the commonwealth that the General Assembly intended for magistrates to be judicial officers who could issue ECOs under the Virginia Sexually Violent Predators Act, or SVPA.

The circuit court’s order “contravenes the plain meaning of the statute wherein the General
Assembly provided for magistrates to possess the ability to issue an ECO and exceeds the circuit court’s bounds of authority under the SVPA,” Athey said.

Joined by Judges Lisa M. Lorish and Junius P. Fulton III (prior to his investiture on the Supreme Court of Virginia), Athey reversed and remanded Commonwealth v. Messenger (VLW 026-7-017).

Attorneys for the parties did not respond to requests for comment.

Functionally prohibited

William Messenger, having been designated as a sexually violent predator pursuant to the SVPA, was subject to an emergency custody order, or ECO, based on a magistrate’s belief that he had violated his conditional release order.

But the circuit court found that none of Messenger’s violations were significant enough to render him unsuitable for conditional release. The court also declared that any further ECOs against Messenger may only be issued by a court of competent jurisdiction.

On appeal, the commonwealth challenged that order as a functional prohibition on Virginia magistrates issuing further emergency custody orders against Messenger.

‘Aggrieved party’

Looking to Howell v. McAuliffe, Athey explained that a “‘litigant has standing if he has “a sufficient interest in the subject matter of the case so that the parties will be actual adversaries and the issues will be fully and faithfully developed.”’

The U.S. Supreme Court held in Susan B. Anthony List v. Driehaus that a party may establish standing by alleging a future injury “‘if the threatened injury is “certainly impending,” or there is a “‘substantial risk’ that the harm will occur.”’”

Athey pointed out that petitioners must satisfy the statutory requirements to properly appear before their court by establishing that they are aggrieved parties.

“‘In order for a petitioner to be “aggrieved,” it must affirmatively appear that such person had some direct interest in the subject matter of the proceeding that he seeks to attack,’” the judge said, citing Virginia Beach Beautification Commission v. Board of Zoning Appeals of Virginia Beach.

Whereas the commonwealth’s interest in a proceeding under the SVPA was protection of the public from individuals who have already been adjudicated as sexually violent predators, Athey was persuaded by the evidence that Messenger was likely to engage in future sexual violence.

“This is further demonstrated by the fact that Messenger has had multiple ECOs issued against him and has been found numerous times to have violated multiple conditions of his conditional release,” the judge opined.

Accordingly, the commonwealth asserted that its interest in monitoring Messenger and protecting the public from a sexually violent predator had been restricted by the circuit court’s actions.

“This direct interest renders the Commonwealth an ‘aggrieved party’ under the statutory framework,” Athey found. “As such, there is a ‘substantial risk’ that Messenger will violate the conditions of his release again and that the Commonwealth will need to seek an ECO from a judicial officer.”

Justiciable controversy

Having found that the commonwealth had standing, the panel considered whether the appeal was ripe, meaning there was an actual controversy between the parties that was not based solely on speculation or purely hypothetical scenarios that may occur at some undefined time.

“‘A case is fit for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties,’” Athey said, looking to the opinion of the 4th U.S. Circuit Court of Appeals in Miller v. Brown.

There was no direct case law concerning the unique circumstances of a proceeding under the SCPA, but the panel found its case law regarding pre-filing injunctions to be instructive, despite being legally distinct.

“And although a pre-filing injunction limits prospective actions in future proceedings, because a litigant’s access to the Virginia justice system is presently interrupted or restricted, Virginia courts have allowed appeals of pre-filing injunctions even though the party has not attempted to file further pleadings and had those pleadings refused,” Athey explained.

As in the pre-filing injunctions cases, the commonwealth was challenging a court order that limited its otherwise unrestricted access to a crucial part of the Virginia justice system.

“Hence, we find that this appeal is ripe because the Commonwealth has a recognized interest in being able to protect the public from sexually violent predators, a class of persons which includes Messenger, and the Commonwealth has alleged that it is presently prevented from accessing the magistrates of the Commonwealth of Virginia to fulfill its duty of supervision over
Messenger,” the judge wrote.

Contrary to law

Pursuant to the SVPA, a judicial officer may issue an ECO based upon probable cause to believe that a respondent violated the terms of their conditional release.

“Although the term ‘judicial officer’ is not defined in the SVPA, we hold that the term — as used here — includes magistrates,” Athey said. “The text of the SVPA demonstrates that the term ‘judicial officer’ means something different than just a ‘court of competent jurisdiction.’”

Here, the text of the SVPA demonstrated that the term “judicial officer” meant something different than just a “court of competent jurisdiction” and did not use the terms “judicial officer” and “circuit court” interchangeably.

“Rather, Code § 37.2-913(A) states that the ‘judicial officer’ is required to forward a copy of the petition and the ECO ‘to the circuit court that conditionally released the respondent,’” the judge noted, adding that § 37.2-913(C) contemplated a post-ECO hearing in the circuit court.

“If a court was the only judicial body able to issue an ECO, then the use of differentiating language here by the General Assembly would be rendered entirely superfluous,” Athey wrote.

The panel found that the General Assembly’s use of “judicial officer” included magistrates in statutes.

“Furthermore, interpreting ‘judicial officer’ consistently throughout the Code of Virginia also reflects a policy judgment of the General Assembly to allow limited intrusions into an individual’s liberty by a magistrate on an emergency basis without the involvement of a formal court proceeding,” the judge said.

“Rather than requiring judges to be ‘on call’ or to hold ‘night court,’ the General Assembly allowed for magistrates to fulfill these duties as part of their vital role in
Virginia’s judicial system,” he pointed out.

“If the court system was solely entrusted with the issuance of emergency orders, then public safety would plausibly suffer on weekends, public holidays, and every other day before the courthouse opens and after the courthouse closes, or, judges would be sought out in their homes or in public to be pressed into hurried, impromptu court sessions that concerned time-sensitive matters of public safety,” the judge wrote.

Nor did the SVPA empower the circuit court to issue injunctive relief to enforce its provisions.

“This means that even if we agreed with the circuit court’s interpretation of the SVPA — which we do not — the SVPA does not give courts the authority to impose injunctions, and thus we are all the more compelled to reverse the circuit court’s ruling,” Athey concluded.

Because the circuit court’s injunction contravened the plain meaning of the SVPA, the panel reversed and remanded the case.