The Court of Appeals of Virginia has overturned a circuit court order that sought to restrict which judicial officers could issue Emergency Custody Orders (ECOs) for a designated sexually violent predator, William Messenger. The appellate court firmly stated that under Virginia’s Sexually Violent Predators Act (SVPA), magistrates—not just circuit courts—have the authority to issue these emergency orders.
The dispute arose from the complex and highly regulated supervision of Mr. Messenger, who had been adjudicated a sexually violent predator following a 1991 conviction. Messenger has a lengthy history involving periods of civil commitment, conditional release, recommitment, and subsequent conditional releases under the SVPA.
The Circuit Court’s Unusual Order
The immediate catalyst for the appeal involved an ECO issued against Messenger in May 2024 by a magistrate in Portsmouth. This action followed a report indicating Messenger showed signs of deception during a polygraph and had a tense relationship with his supervising officer, Officer Gaines. The allegations included several violations of his conditional release, notably issues with his GPS monitoring device.
When the case returned to the Prince William County Circuit Court in November 2024, the judge expressed intense frustration with Officer Gaines’s handling of the GPS matter, calling her omission of evidence regarding the device’s functionality “absolutely shameful” and noting it resulted in Messenger’s incarceration since May.
In response to this perceived procedural overreach, the circuit court issued a definitive ruling: “no Emergency Custody Order shall henceforth be issued against Mr. Messenger unless it is issued by this Court or other Court of competent jurisdiction.” The Commonwealth immediately objected, viewing this as an unlawful restriction on the authority granted to magistrates across the state under the SVPA.
While the circuit court ultimately found Messenger in violation of some conditions in January 2025, it again declined to recommit him and entered a final order on January 3, 2025, reiterating the restriction on future ECOs. The Commonwealth appealed solely this aspect of the ruling.
Standing and Ripeness: The Appeal is Valid
Before diving into the merits, the Court of Appeals addressed whether it had the jurisdiction to hear the appeal. The court needed to confirm that the Commonwealth had “standing” (a direct interest in the outcome) and that the issue was “ripe” (a current, not speculative, controversy).
The appellate court concluded both requirements were met. Given Messenger’s history and the Commonwealth’s statutory duty to protect the public from sexually violent predators, the restriction on seeking ECOs directly harmed the Commonwealth’s ability to supervise him. Furthermore, the court likened the circuit court’s order to a pre-filing injunction, noting that Virginia courts permit appeals of such restrictions immediately because access to the justice system is presently limited, even if no further filings have been attempted yet.
Statutory Interpretation Favors Magistrates
The core of the appeal hinged on interpreting Code § 37.2-913(A) of the SVPA, which governs the issuance of ECOs. The statute permits a “judicial officer” to issue an ECO based on probable cause that a conditionally released respondent has violated their terms.
The circuit court’s order implicitly defined “judicial officer” as requiring a “court of competent jurisdiction,” thereby excluding magistrates.
The Court of Appeals disagreed, relying on established principles of statutory construction. Judge Clifford L. Athey, Jr., writing for the court, noted several key points:
1. Plain Language: The SVPA consistently uses the terms “judicial officer” and “circuit court” separately. If the legislature intended only courts to issue ECOs, the specific mention of “judicial officer” would be unnecessary and superfluous.
2. Statutory Context: When an ECO is issued by a “judicial officer,” the statute explicitly requires that a copy be forwarded to the “circuit court that conditionally released the respondent” for a subsequent hearing. This differentiation clearly implies that the issuing authority (the judicial officer) and the reviewing authority (the circuit court) are distinct.
3. Code Consistency: Looking outside the SVPA, other sections of the Code of Virginia define “judicial officer” to include magistrates.
4. Legislative Intent and Practicality: The court reasoned that the legislature intended for ECOs to be expeditious, temporary measures for public safety. Allowing magistrates—who are available outside regular business hours—to issue these orders prevents delays that would occur if judges had to be sought out for emergency situations.
The Court of Appeals concluded that the term “judicial officer” under the SVPA absolutely includes magistrates.
Moreover, the court pointed out that the SVPA does not grant circuit courts the authority to issue injunctions that limit the statutory powers of other judicial officers. Citing precedent, the court emphasized that courts cannot exceed the authority granted to them by the Act.
Conclusion and Remand
Finding that the circuit court’s order directly contravened the plain language of Code § 37.2-913 and exceeded its statutory bounds, the Court of Appeals reversed that portion of the order.
The court clarified that it was expressing no opinion on the judge’s justifiable frustration with the supervision issues in Messenger’s case—including the alleged conduct of Officer Gaines or the circuit judge’s concern that magistrates lack the full case history. However, the court stressed that such concerns cannot override the clear mandate of the General Assembly. The court remanded the case for further proceedings consistent with its finding that magistrates retain the power to issue ECOs against Mr. Messenger.