When the 72-hour mental health detention clock under Virginia Code § 37.2-809 runs out, what counts as the 'court' being closed, and who is responsible for tracking the deadline?

Plain-English summary

A Virginia sheriff posed a real-world puzzle about civil commitment under temporary detention orders (TDOs). The 72-hour clock under Code § 37.2-809(H) extends only if the period expires on a weekend, legal holiday, or "day on which the court is lawfully closed." The sheriff's questions: Does "court" mean the special justice (who hears commitment cases in some circuits), or the general district court? If the court is open part of a day but the deadline hits after the courthouse closes, does the patient get held until the next business day? What if the 72 hours expires while the patient is still at a medical hospital because the receiving psychiatric facility refused admission for lack of "medical clearance"? And who monitors the deadline?

The Attorney General gave four answers. First, "court" means the general district court, not the special justice. Special justices hear commitment cases in some circuits as a matter of convenience, but general district court judges have concurrent authority, and a special justice cannot logically be "closed." Reading "court" as the special justice would frustrate the statute's purpose of ensuring quick hearings. Second, the day is what counts, not the hour. If the court is open for any part of the calendar day the 72-hour deadline falls on, the hearing has to happen before the deadline. The patient cannot be held to the next business day just because the courthouse closes earlier in the day. Third, when the 72-hour limit expires without a hearing and no extension applies, there is no legal authority to keep detaining the patient, even if the patient is still in a medical hospital awaiting "medical clearance." The U.S. Supreme Court has repeatedly held that civil detention requires due process, and Virginia statutes do not authorize detention beyond the time specified. Fourth, the Code is silent on who monitors the deadline, but the AG put the responsibility on the detaining facility: it has to be vigilant about not holding someone past the lawful limit.

Currency note

This opinion was issued in 2018. 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.

Background and statutory framework

Virginia's civil commitment scheme starts with the temporary detention order. A magistrate can issue a TDO when the person meets statutory criteria for involuntary mental health detention. The TDO authorizes law enforcement to take the person into custody and transport them to a mental health facility for evaluation and treatment. Code § 37.2-809(H) caps the TDO at 72 hours, with the period extended only if the 72-hour window ends on a Saturday, Sunday, legal holiday, or "day on which the court is lawfully closed," in which case the patient may be held until the next non-closed day. Section 37.2-814(A) repeats the same 72-hour rule for the commitment hearing.

The hearing typically happens before a "special justice" (Code §§ 37.2-100, 37.2-803), a lawyer or retired judge appointed by the chief judge of the circuit to handle commitment cases. The special justice has the powers of a judge but is appointed for the convenience of the court. General district court judges retain concurrent authority over the same cases under Code §§ 16.1-69.28 and 37.2-820, so the commitment hearing does not have to go through a special justice.

The sheriff's questions arose from a sticky operational problem: the receiving psychiatric facility may refuse to admit a patient who has not been "medically cleared" by a medical hospital. Virginia's Department of Behavioral Health and Developmental Services defines medical clearance as having no medical needs that would prevent transfer to a psychiatric facility. The deputy ends up babysitting the patient at a medical hospital for the 72 hours, and the special justice's hearing schedule may not align with when the clock runs out.

Common questions

If a special justice only hears commitment cases on Mondays and Thursdays, and the 72 hours expires on a Wednesday, can the patient be held until Thursday?
No. The AG concluded that "court" for purposes of § 37.2-809(H) means the general district court. If the general district court is open on Wednesday, the hearing must happen before the 72 hours expires. The patient cannot be held an extra day because the special justice happens not to sit that day. A general district court judge can hold the hearing instead.

What if the courthouse closes at 5 p.m. but the 72-hour deadline is 11 p.m. the same day?
The AG read "day" to mean the 24-hour calendar day. If the court is open for any part of that day, then the hearing has to be held before the 72 hours expire. The hospital does not get to keep the patient until the next morning because the courthouse closed early. That puts pressure on getting the hearing done before the courthouse closes.

Can the patient be detained past 72 hours because the psychiatric facility refused admission for lack of medical clearance?
No. The AG was clear: with no statutory exception and no other legal basis (e.g., criminal charge, civil arrest warrant), there is no authority to detain past the 72 hours. The U.S. Supreme Court has held repeatedly that civil detention requires due process, and Virginia's statutes do not authorize involuntary mental health detention beyond the time specified. Once the deadline passes, the patient has to be released.

Who is responsible for tracking the deadline?
The Code does not say explicitly. The AG put responsibility on the facility holding the patient: it must remain vigilant about not maintaining custody when it lacks legal authority. In practice, this means the medical hospital, the deputy sheriff in custody, the receiving psychiatric facility, and the patient's attorney (if any) all share interest in tracking the clock, but the legal duty rests on whoever is detaining.

Can the patient waive the 72-hour rule and consent to a later hearing?
Yes. The AG cited a 2003 opinion noting that a knowing waiver by the patient (or someone authorized on the patient's behalf) of the right to a speedy hearing is one of the exceptions, but the scenario the sheriff posed did not involve a waiver.

Could the chief judge of the district court declare the court "closed" to buy more time?
Possibly under narrow statutory conditions. Code § 16.1-69.35(5) lets a chief or presiding judge close the clerk's office when continued operation under "prevailing conditions" would threaten the health or safety of personnel or the public. Code § 17.1-330 allows closure when the Chief Justice declares a judicial emergency. Neither is an everyday backup; both are tied to specific safety or emergency conditions.

What is the constitutional basis for the 72-hour cap?
Due process. The U.S. Supreme Court has held in Zinermon, Vitek, and Addington that civil detention is a significant deprivation of liberty requiring procedural protection, and one of the core protections is a prompt hearing. Virginia's 72-hour limit operationalizes that protection. Holding someone longer would risk a constitutional violation independent of the statute.

Citations

• Va. Code § 37.2-809; § 37.2-814 (72-hour TDO cap)
• Va. Code § 37.2-803 (special justices)
• Va. Code §§ 16.1-69.28, 37.2-820 (general district court concurrent authority)
• Va. Code § 16.1-69.35(5); § 17.1-330 (closing court)
• Zinermon v. Burch, 494 U.S. 113 (1990)
• Vitek v. Jones, 445 U.S. 480 (1980)
• Addington v. Texas, 441 U.S. 418 (1979)
• REVI, LLC v. Chi. Title Ins. Co., 290 Va. 203 (2015) (judicial-institution vs. judicial-officer meaning of "court")
• 1996 Op. Va. Att'y Gen. 154
• 1983-1984 Op. Va. Att'y Gen. 232
• 2003 Op. Va. Att'y Gen. 124 (waiver of speedy hearing)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2018/17-025-Taylor-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

July 6, 2018

The Honorable Michael W. Taylor
Sheriff, Pittsylvania County
Post Office Box 407
Chatham, Virginia 24531

Dear Sheriff Taylor:
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 ask several questions pertaining to § 37.2-809 of the Code of Virginia, which provides in
general that an individual may not be held pursuant to a temporary detention order ("TDO") for mental
health issues longer than 72 hours without an involuntary civil commitment hearing. Your questions are
as follows:

1) How is "court" defined for purposes of § 37.2-809(H), which states that "[i]f the 72-hour period herein specified terminates on a Saturday, Sunday, legal holiday, or day
on which the court is lawfully closed, the person may be detained ... until the close
of business on the next day that is not a Saturday, Sunday, legal holiday, or day on
which the court is lawfully closed."[1] Specifically, you ask whether the word
"court" refers to the "special justice," or the general district court of the relevant
jurisdiction.

2) Whether, if the 72-hour period ends on a day when the "court" as described in
§ 37.2-809(H) is open, but at a time when the court has already closed for that day,
the individual subject to the TDO may be detained until the close of business on the
next day the court is open.

3) What lawful authority exists to detain an individual in a medical hospital after the
72-hour limit for a TDO expires, when the individual is receiving ongoing treatment
at that facility and has not yet been transferred to the designated mental health
facility because he has not been "medically cleared," and no exception for
continued detention under § 37.2-809(H) applies;

4) What agency or office is responsible for monitoring the 72-hour time limit and
exceptions in § 37.2-809(H) to ensure the TDO does not expire prior to a hearing.

To frame these questions, you present a hypothetical situation in which a TDO is issued on a
Sunday at 11:00 p.m. The individual is taken into custody and transported by a deputy sheriff to a local
medical hospital for assessment. Upon assessment, the individual is admitted to the medical hospital for
medication and monitoring. The mental health facility designated on the TDO refuses to authorize
admission of the individual because the individual is not yet "medically cleared,"[2] and the deputy sheriff
maintains custody of him in the medical hospital during the 72-hour period. The 72-hour period expires
on Wednesday at 11:00 p.m., while the individual is still receiving treatment in the medical hospital. The
Wednesday in question is not a legal holiday, and the circuit court and general district courts are operating
within the judicial circuit. The special justice appointed pursuant to § 37.2-803 does not conduct hearings
on Wednesdays, but only on Mondays and Thursdays. A question therefore arises as to whether the
individual may be detained on the TDO until Thursday for a hearing before the special justice.

Applicable Law and Discussion
Question One
You first inquire what the definition of "court" is for purposes of § 37.2-809(H). In particular,
you ask whether it is the hearing schedule of a special justice, or the operating hours of the general district
court, that determines whether a given day is "a day on which the court is lawfully closed."[3]

Before addressing this inquiry, it is helpful to briefly define the role of a special justice in
Virginia. A special justice is a judicial officer who is authorized to preside over certain types of mental
health proceedings in the place of a judge.[4] Specifically, § 37.2-803 provides that "[t]he chief judge of
each judicial circuit may appoint one or more special justices" to perform the duties of a judge in
designated mental health proceedings, which include adult civil commitment hearings.[5] Regardless of the
appointment of a special justice, however, general district court judges retain concurrent authority to
conduct the same types of mental health proceedings.[6] There is no requirement in the law, or even
preference, that an adult civil commitment hearing be conducted by a special justice.

With respect to your inquiry, § 37.2-809 does not define the word "court," nor is the term defined
elsewhere in Title 37.2. Although the word "court" is sometimes used to refer to the judicial officer who
presides over a matter (e.g., "The court stated ..." or "The court found ..."),[7] within the context of
§ 37.2-803(H) the word is clearly intended to refer to the general district court itself. Two observations
support this conclusion. First, if the word were interpreted to refer to a special justice, rather than the
general district court, an individual could be detained past the 72-hour limit, without regard for the
operating schedule of the court, whose judge has concurrent authority to conduct a hearing. This would
frustrate the object of the statute to provide a hearing as quickly as possible.[8] Second, unlike an
institutional court, a special justice cannot logically be said to be "closed."[9] While the Code sets out
specific instances in which the general district court itself may be "lawfully closed," it contains no
comparable provisions referring to "closure" for special justices.[10] Therefore, the most logical reading of
the statute is that the General Assembly intended the term "court" to refer to the general district court
itself.

For these reasons, it is my opinion that the court is only "closed" for purposes of § 37.2-809(H)
when the general district court within the relevant jurisdiction is not open for the transaction of business.
An individual may not be denied a hearing under the facts you present based solely upon the
unavailability of the special justice, on a day when the court is in operation.

Question Two
Your next question is whether, if the 72-hour limit on detaining an individual pursuant to a TDO
ends on a day when the general district court is open, but ends at a time when the court has already closed
for that day, the individual may be detained until the close of business on the next day the court is open.
The language in § 37.2-809(H) refers to the time period expiring on a Saturday, Sunday, legal holiday, or
"day" on which the court is lawfully closed. As a general rule, words in a statute are to be given their
usual and commonly understood meaning.[11] The word "day" is generally understood to mean "[a]ny 24-hour period; the time it takes the earth to revolve once on its axis."[12] Therefore, it is my opinion that the
correct inquiry is whether the court is open on any portion of the day that the TDO expires, not whether
the court is open at the actual hour that the TDO expires. If the court is open on any portion of that day,
then the hearing must be held before the 72-hour period expires, and the individual may not be detained
until the next business day.

Question Three
Your third inquiry is what lawful authority exists, if any, for a law enforcement officer to detain
an individual in a medical hospital after the 72-hour limit for a TDO expires, when the individual is
receiving ongoing treatment at that facility and has not yet been transferred to the designated mental
health facility because he has not been "medically cleared," and no exception for continued detention
under § 37.2-809(H) applies.

Assuming no other legal proceeding is pending that would provide a basis to detain the
individual, it is my opinion that the individual may not be detained after the 72-hour limit expires. The
United States Supreme Court has consistently stated that civil detention and commitment involve a
significant deprivation of personal liberty that requires due process protection.[13] The requirements of due
process mandate, among other things, that a hearing be provided as quickly as possible following an
individual's involuntary detention in a mental health facility.[14] As discussed above, Virginia has provided
for this in § 37.2-809 of the Code, which unambiguously states that a civil commitment hearing must be
held within 72 hours of execution of a TDO, except as extended by weekends or holidays or other days on
which the court is lawfully closed.[15] In an attempt to protect the right to a speedy hearing, prior Attorneys
General have concluded on more than one occasion that these statutory provisions do not authorize
involuntary detention beyond the length of time specified.[16]

Question Four
Your final inquiry is what agency or office is responsible for monitoring the 72-hour time limit
and exceptions in § 37.2-809(H) to ensure that a TDO does not expire prior to a hearing. Title 37.2 of the
Code of Virginia is silent on this issue. The facility in which the individual is being detained, however,
must remain vigilant that it does not maintain someone involuntarily when it no longer has legal authority
to do so.

Conclusion
Accordingly, it is my opinion that court is only "closed" for purposes of conducting the hearing
required by § 37.2-809(H) when the general district court within the relevant jurisdiction is not open for
the transaction of business. If the court is open on any portion of the calendar day upon which the 72-hour period expires, then the hearing must be held before that 72-hour period expires, and the individual
may not be detained until the next business day. Further, it is my opinion that there is no legal authority
for any facility to involuntarily detain an individual pursuant to a TDO beyond the length of time
specified in the statute.
With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General

[1] Although you inquire specifically about § 37.2-809, the same language—and 72-hour time limit—also is found in § 37.2-814(A), which states, "The commitment hearing for involuntary admission shall be held after a sufficient period of time has passed to allow for completion of the examination required by § 37.2-815, preparation of the preadmission screening report required by § 37.2-816, and initiation of mental health treatment to stabilize the person's psychiatric condition to avoid involuntary commitment where possible, but shall be held within 72 hours of the execution of the temporary detention order as provided for in § 37.2-809; however, if the 72-hour period herein specified terminates on a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the person may be detained, as herein provided, until the close of business on the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed." (Emphasis added.)

[2] "Medical clearance" means the patient has been medically screened and, if necessary, assessed, and it has been determined that no medical needs exist that would prevent his transfer to the psychiatric facility. See Va. Dep't of Behavioral Health and Developmental Services, Medical Screening and Medical Assessment Guidance Materials (2nd ed., eff. Apr. 1, 2014), at 6-7, available at http://www.dbhds.virginia.gov/library/mental%20health%20services/140401medicalscreeningguidance%20(2).pdf.

[3] Emphasis added.

[4] See VA. CODE ANN. § 37.2-100 (Supp. 2017); § 37.2-803 (2014). "Each special justice shall be a person licensed to practice law in the Commonwealth or a retired or substitute judge in good standing and shall have all the powers and jurisdiction conferred upon a judge." Section 37.2-803.

[5] See § 37.2-803. Special justices also are authorized to preside over certain other proceedings, such as hearings for judicial authorization of medical treatment under § 37.2-1101. See id.

[6] See VA. CODE ANN. § 16.1-69.28 (2015); § 37.2-820 (2014).

[7] The Supreme Court of Virginia has observed that the word "court" refers "sometimes to the judicial institution" having jurisdiction over a matter and "at other times to the judicial officer [presiding]." REVI, LLC v. Chi. Title Ins. Co., 290 Va. 203, 211 (2015). The context of the word generally determines which meaning is intended.

[8] "Any construction that has the effect of impairing the purpose of [an] enactment or which frustrates, thwarts or defeats its objects should be avoided." Gough v. Shaner, 197 Va. 572, 575 (1955).

[9] Statutes should be construed to avoid absurd results. See Jones v. Conwell, 227 Va. 176, 181 (1984).

[10] See § 16.1-69.35(5) (Supp. 2017) (providing that "[t]he chief judge or presiding judge of any district court may authorize the clerk's office to close on any date when the chief judge or presiding judge determines that operation of the clerk's office, under prevailing conditions, would constitute a threat to the health or safety of the clerk's office personnel or the general public"); see also § 17.1-330 (2015) (providing for closure by the Chief Justice of the Supreme Court in the event a judicial emergency is declared).

[11] See, e.g., United States v. Graham and Irvine, 250 F. 499, 501 (W.D. Va. 1917); General Trading Corp. v. Motor Vehicle Dealer Bd., 28 Va. App. 264, 268 (1998); 2003 Op. Va. Att'y Gen. 124, 127; 2002 Op. Va. Att'y Gen. 138, 139; 1984-1985 Op. 153, 153; 1984-1985 Op. Va. Att'y Gen. 175, 176.

[12] BLACK'S LAW DICTIONARY 479 (Bryan A. Garner et al. eds., 10th ed. 2014).

[13] Zinermon v. Burch, 494 U.S. 113, 131 (1990); Vitek v. Jones, 445 U.S. 480, 491-92 (1980); Addington v. Texas, 441 U.S. 418, 425 (1979).

[14] See 1996 Op. Va. Att'y Gen. 154, 155.

[15] Section 37.2-809(H) provides that "temporary detention shall ... not exceed 72 hours prior to a hearing. If the 72-hour period herein specified terminates on a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the person may be detained, as herein provided, until the close of business on the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed." (Emphasis added).
Similarly, § 37.2-814(A) provides that "The commitment hearing for involuntary admission ... shall be held within 72 hours of the execution of the temporary detention order as provided for in § 37.2-809; however, if the 72-hour period herein specified terminates on a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the person may be detained, as herein provided, until the close of business on the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed." (Emphasis added).
Use of the word "shall" in a statute generally indicates that its procedures are intended to be mandatory, rather than permissive or directive. See 1996 Op. Va. Att'y Gen. 154, 158 n.3; 1989 Op. Va. Att'y Gen. 251, 251-52.

[16] 1983-1984 Op. Va. Att'y Gen. 232, 233; 1981-1982 Op. Va. Att'y Gen. 251. Aside from the exception noted in § 37.2-809(H), another exception to this would be if the individual, or someone on the individual's behalf, chooses to make a knowing waiver of the right to a speedy hearing. See 2003 Op. Va. Att'y Gen. 124, 125-26. That is not the case in the scenario you present.