In Virginia, who decides courthouse security rules: the chief judge, the judges collectively, the sheriff, or the court administrator?

Plain-English summary

The Sheriff of Portsmouth asked two questions about courthouse security. First, could the chief judge or the judges of a circuit collectively delegate physical-access decisions to a circuit court administrator? Second, could those judges mandate that the sheriff allow all types of cellular phones (including ones with cameras) into the courthouse?

The AG answered with three points. First, the chief judge under § 17.1-501(B), or the circuit judges acting collectively, have legal authority to establish rules about courthouse security. Second, that authority cannot be delegated to a circuit court administrator. Third, the judges can make a general rule permitting cellular phones in the courthouse, but the sheriff retains authority to act in specific cases of disruption or public safety threats.

The authority structure rests on multiple sources. Section 53.1-120 says sheriffs are responsible for ensuring courthouses are secure from violence and disruption, but it also contemplates that the number, type, and working schedules of courtroom security deputies will be set "by agreement" between the sheriff and the chief judges. Section 8.01-4 lets district and circuit courts prescribe rules "necessary to promote proper order and decorum and the efficient and safe use of courthouse facilities and clerks' offices." And the courts of Virginia have been found to possess certain inherent powers related to courthouse security.

Reading § 53.1-120 alongside § 8.01-4 and the relevant case law, the AG concluded that supervisory rulemaking belongs to the judges. The sheriff enforces those rules, fills gaps when no rule exists, and intervenes in specific emergencies as necessary.

The delegation question turned on § 8.01-4's text. That statute confers rulemaking authority on "district courts and circuit courts," not on court administrators. The authority, derived from both statute and the inherent authority of the court, belongs to the judges and may not be delegated. A circuit court can use an administrator to communicate and implement rules, but it can't delegate the substantive judgment about who gets access to courthouse areas.

On cell phones, the judges can make a rule permitting them. But the rule wouldn't immunize anyone from disruptive use. If a phone causes a disturbance or endangers public safety, the sheriff has authority to respond under his statutory courthouse security responsibility.

The AG closed with a reminder that the public is best served when sheriffs and judges work collaboratively to establish and maintain courthouse security.

Currency note

This opinion was issued in 2013. 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

Can a court administrator decide who gets into a secure courthouse area?
Not by independent decision. The administrator can communicate and implement the judges' rules, but cannot make access decisions itself. The judges retain the substantive rulemaking authority.

What if the sheriff and judge disagree about courtroom deputies?
Section 53.1-120(B) refers the dispute to the Compensation Board, which resolves the number, type, and working schedules of courtroom security deputies in light of existing budgeted funds and personnel.

Can the sheriff override a judges' rule that allows phones?
Not the rule itself. But the sheriff can still respond to a specific incident where a phone is being used disruptively or to endanger public safety. The judges' rule sets the baseline, and the sheriff has authority to deal with specific situations as they arise.

What about district court judges sharing the same courthouse?
The opinion's questions and holding concerned circuit judges' authority. It did not address how circuit court rules interact with district court spaces or rules within the same building.

Background and statutory framework

Section 53.1-120(A) charges sheriffs with ensuring courthouses and courtrooms are secure from violence and disruption. Subsection (B) makes the chief circuit judge, chief general district court judge, and chief juvenile and domestic relations court judge responsible "by agreement" with the sheriff for the designation of courtroom security deputies. If they can't agree, the matter goes to the Compensation Board.

Section 8.01-4 authorizes district and circuit courts to prescribe rules necessary to promote proper order, decorum, and safe and efficient use of courthouse facilities. The statute does not authorize court administrators to make such rules.

Section 17.1-501(B) is the basis on which the chief circuit judge acts in exercising supervisory rulemaking authority over courthouse security.

Beyond the statutes, the AG relied on the inherent authority of Virginia courts over courthouse security, recognized in the relevant case law, without resolving the broader scope of that inherent authority.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 8.01-4 (court rulemaking authority)
• Va. Code § 17.1-501 (chief circuit judge duties)
• Va. Code § 53.1-120 (sheriff courthouse security responsibility)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-065_Watson.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 12, 2013

The Honorable William O. Watson
Sheriff, City of Portsmouth
701 Crawford Street
Portsmouth, Virginia 23704-3888

Dear Sheriff Watson:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented
You present two questions regarding the legal authority to make rules relating to courthouse security. First, regarding the physical security of the courthouse, and specifically, the granting of physical access to certain areas of the courthouse, you inquire whether the chief judge, acting independently, or, the judges of a circuit court, acting collectively, possess the authority to mandate that a circuit court administrator make such decisions. Second, you inquire whether the chief judge or the judges of a circuit possess the authority to mandate that the sheriff allow all types of cellular phones into the courthouse.

Response
It is my opinion that, while the chief judge and, collectively, the judges of a judicial circuit, do possess legal authority to establish rules regarding courthouse security, such power may not be delegated to a circuit court administrator. In addition, it is my opinion that the chief judge and, collectively, the circuit judges, possess the legal authority to establish a general rule that cellular telephones are permitted in the courthouse. Nonetheless, it is further my opinion that the sheriff possesses the legal authority to take action in any specific instance in which a cellular telephone causes a disturbance, or otherwise endangers public safety within the courthouse.

Applicable Law and Discussion
Your questions involve both the construction of statutes and recognition of the inherent authority of courts to conduct the functions of the judicial branch. Issues related to courthouse security and decorum are dealt with in multiple sections within the Code of Virginia. For example, § 53.1-120 provides that:

(A) Each sheriff shall ensure that the courthouses and courtrooms within his jurisdiction are secure from violence and disruption and shall designate deputies for this purpose . . . .

(B) The chief circuit court judge, the chief general district court judge and the chief juvenile and domestic relations district court judge shall be responsible by agreement with the sheriff of the jurisdiction for the designation of courtroom security deputies for the respective courts. If the respective chief judges and sheriff are unable to agree on the number, type and working schedules of the courtroom security deputies for the court, the matter shall be referred to the Compensation Board for resolution . . . .

Thus sheriffs are afforded certain powers and responsibilities related to courthouse security.

The legal authority of sheriffs is, nonetheless, not exclusive. As set forth in § 53.1-120 above, the Code of Virginia expressly contemplates that at least one issue of courthouse security will be resolved "by agreement" between the sheriff and the chief judges of the respective local courts. Additionally, § 8.01-4 provides that the district and circuit courts may prescribe rules "necessary to promote proper order and decorum and the efficient and safe use of courthouse facilities and clerks' offices." Finally, the courts of Virginia have found that they possess certain inherent powers related to courthouse security.

Reading § 53.1-120 together with § 8.01-4 and the relevant case law dictates the conclusion that the chief judge of a circuit court, acting pursuant to § 17.1-501(B) of the Code of Virginia, or the judges of such circuit, acting collectively, possess supervisory rule-making authority over courthouse security. The sheriff, however, by law, retains the authority to act as the enforcer of such court-promulgated rules, or, programmatically, in the absence of such rules, and, situationally, as necessary to ensure courthouse security. Thus, both Virginia law and the practicalities of emergent situations require that circuit judges and the sheriff work collaboratively to establish and maintain courthouse security.

If, as in your first inquiry, a question or dispute arises as to what persons will be given access to courthouse spaces, the chief judge, or, alternatively, the collective circuit judges, possess the legal authority to make the determination of "who is granted physical access to ... areas of a courthouse." Such authority, however, derived from both statute and the inherent authority of the court, belongs to the judges and thus may not be delegated. To the extent that a circuit court exercises its authority to establish rules regarding access to areas of a courthouse, it must do so itself, in accordance with § 8.01-4. While a circuit court may use an administrator to communicate and implement such rules, it may not delegate to such person an ability to, "make decisions in regards to the physical security of the courthouse by ... deciding who is granted physical access to ... areas of[it.]"

Similarly, and with respect to your second inquiry, if the chief judge or, alternatively, the collective circuit judges, determine by rule that "all cellular phones, including those with video and still cameras, must be allowed into the courthouse," they possess the legal authority to do so. While such a rule may allow persons to enter into the courthouse with such devices, it would not thereby enable anyone to use camera features in a disruptive manner, or, more generally, in a way that would endanger public safety inside that structure. As noted above, Virginia law charges the sheriff with the duty to intervene into any such courthouse situation.

Conclusion
Accordingly, it is my opinion that, while the chief judge and, collectively, the judges of a judicial circuit, do possess legal authority to establish rules regarding courthouse security, such power may not be delegated to a circuit court administrator. In addition, it is my opinion that the chief judge and, collectively, the circuit judges, possess the legal authority to establish a general rule that cellular telephones are permitted in the courthouse. Nonetheless, it is further my opinion that the sheriff possesses the legal authority to take action in any specific instance in which a cellular telephone causes a disturbance, or otherwise endangers public safety within the courthouse.

In closing, I reiterate that both sheriffs and circuit court judges share not only legal authority regarding courthouse security, but also share responsibility in that critical public safety arena. The public will be best served if issues of courthouse security are resolved with input from and the consensus agreement of both sheriffs and the judges of the court.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General