Can a Virginia city or county pick its own courthouse security provider instead of the sheriff?

Plain-English summary

A dispute had arisen between the City of Charlottesville and Albemarle County over the provider of security for a future combined general-district courthouse. The Charlottesville sheriff, James E. Brown III, asked the AG whether either of the localities could decide on its own who would provide the security. AG Jason Miyares concluded they could not.

Virginia is a Dillon Rule state. Local governments hold "only those powers that are (1) expressly granted by the General Assembly, (2) necessarily or fairly implied from those express powers, and (3) essential to the declared objects and purposes" of the locality. A reasonable doubt about the existence of a power gets resolved against the locality. § 15.2-1638 directs localities to provide courthouses, and other provisions allow them to protect their property and preserve peace, but those generic authorities do not imply a power to pick the security provider.

The reason is § 53.1-120, which expressly assigns the courthouse-security task to the sheriff: "[e]ach sheriff shall ensure that the courthouses and courtrooms within his jurisdiction are secure from violence and disruption and shall designate deputies for this purpose." The General Assembly has thus committed both the authority and the duty to the sheriff. A locality cannot use a generic peace-and-property power to displace that specific assignment, because Dillon Rule analysis stops where local action conflicts with state law.

What this means for you

If you are a Virginia sheriff

The opinion confirms that you hold the courthouse-security mandate, and that no city council or county board can supplant your authority by ordinance, contract, or interlocal agreement. You may appoint deputies for the work, contract for outside support that you remain responsible for, and coordinate with municipal police, but the locality cannot install a parallel provider over your objection.

If you are on a city council or county board of supervisors

You can fund courthouse security at a level you choose, build the courthouse, and allocate space, but you cannot designate a provider other than the sheriff. Where a courthouse serves multiple localities, the participating sheriffs each remain responsible for security in their own jurisdiction within the building, and any cost-sharing agreement must respect that allocation.

If you are negotiating a shared-courthouse arrangement

Resolve the security-provider question by sheriff-to-sheriff agreement or by joint coordination, not by an ordinance from either locality. The sheriffs are the lawful authorities; the localities can only commit to funding and facilities.

If you are a private security contractor

A locality cannot lawfully retain you to take over courthouse security from the sheriff. Any contract you might enter has to be structured as supplemental support under the sheriff's authority, with the sheriff as the contracting party or signatory.

Common questions

Q: What is the Dillon Rule?
A: Virginia's strict-construction doctrine for local government powers. Localities can do only what state law expressly allows, what is fairly implied, and what is essential to declared local purposes. Doubt cuts against the locality.

Q: Why couldn't the locality's general "peace" authority cover courthouse security?
A: Because the General Assembly assigned the specific task to a different officer (the sheriff) by name, in § 53.1-120. Specific statutory directives override generic enumerated powers; otherwise the specific mandate would be meaningless.

Q: Does the sheriff have to use sworn deputies, or can the sheriff contract for security?
A: The statute says "shall designate deputies for this purpose," and the AG's reasoning leaves that with the sheriff. The sheriff may decide whether to staff with sworn deputies or to use a contracted provider operating under the sheriff's authority. The locality cannot make that choice.

Q: What happens if the locality and sheriff disagree on funding levels?
A: § 15.2-1638 obligates the locality to provide courthouses, and longstanding Virginia practice splits operating costs between the locality and the Commonwealth. A funding dispute is a budget negotiation, not a transfer of authority. The locality cannot withhold security funding to force a change in provider.

Q: Does this affect general-district courts vs. circuit courts vs. juvenile courts differently?
A: No. § 53.1-120 covers "courthouses and courtrooms within his jurisdiction," and the AG opinion does not distinguish among court levels. The sheriff's authority extends to the building.

Background and statutory framework

§ 53.1-120 was added to the Virginia Code as part of the General Assembly's articulation of sheriff duties under Title 53.1 (Prisons and Other Methods of Correction). It complements § 15.2-1638, which directs each locality to "provide courthouses . . . serving the county or city," and the sheriff statutes in Title 15.2 that confer general authority over courthouse and inmate-transport functions.

The AG's analysis applies the standard three-step Dillon Rule inquiry from Dumfries-Triangle Rescue Squad, Inc. v. Bd. of Cnty. Supvrs., 299 Va. 226 (2020), and Marble Techs., Inc. v. City of Hampton, 279 Va. 409 (2010). Step one looks for an express grant of the power to a locality; step two looks for an implied grant fairly drawn from express grants; step three considers whether the local action would conflict with state law (citing § 1-248 and Bragg Hill Corp.).

For courthouse security, no express grant runs to the locality. An implication from generic peace-and-property powers might support the sub-conclusion that the locality could provide security, but it could not extend to displacing the sheriff's specific role, because doing so would conflict with the General Assembly's directive in § 53.1-120 that the sheriff "shall ensure" courthouse security and "shall designate deputies for this purpose." The mandatory verbs are the load-bearing language: the sheriff has both the duty and the implementing authority.

Citations

• Va. Code Ann. § 53.1-120 (sheriff's courthouse-security duty)
• Va. Code Ann. § 15.2-1638 (locality duty to provide courthouses)
• Va. Code Ann. § 1-248 (local laws subordinate to state law)
• Dumfries-Triangle Rescue Squad, Inc. v. Bd. of Cnty. Supvrs., 299 Va. 226 (2020) (Dillon Rule reformulation)
• Marble Techs., Inc. v. City of Hampton, 279 Va. 409 (2010) (Dillon Rule three-step inquiry)
• Bragg Hill Corp. v. City of Fredericksburg, 297 Va. 566 (2019) (locality cannot conflict with state law)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2024/24-002-Brown-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Jason S. Miyares 202 North Ninth Street
Attorney General Richmond, Virginia 23219
804-786-2071

Fax 804-786-1991

June 17, 2024 Virginia Relay Services

800-828-1120
7-1-1

The Honorable James E. Brown III
Sheriff, City of Charlottesville

315 East High Street

Charlottesville, Virginia 22902-5194

Dear Sheriff Brown:

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

Issue Presented

You ask whether a governing body of a locality has authority to determine the provider of
courthouse security within the locality.!

Response

It is my opinion that a governing body of a locality does not have the authority to determine the
provider of courthouse security within the locality.

Applicable Law and Discussion

In Virginia, the powers of local governing bodies are governed by the Dillon Rule.’ Under the
Dillon Rule, local governing bodies “have only those powers that are (1) expressly granted by the General
Assembly, (2) necessarily or fairly implied from those express powers, and (3) essential to the declared
objects and purposes” of the locality.? When “there is a reasonable doubt whether legislative power exists,
the doubt must be resolved against the local governing body.”

' You advise that a dispute has arisen regarding the provision of security for a future combined general-district
courthouse serving both the City of Charlotteville and Albemarle County.

2 Dumfries-Triangle Rescue Squad, Inc. v. Bd. of Cnty. Supvrs., 299 Va. 226, 233 (2020).

37d. (internal quotation marks omitted) (quoting Bragg Hill Corp. v. City of Fredericksburg, 297 Va. 566, 578
(2019)) (noting how the Dillon Rule applies to municipal corporations); Arlington Cnty. v. White, 259 Va. 708, 719
(2000) (noting that the scope of power possessed by a county board of supervisors is governed by a rule that is a
corollary to the Dillon Rule).

4 Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 417 (2010) (quoting Bd. of Supvrs. v. Reed’s Landing
Corp., 250 Va. 397, 400 (1995)).

Honorable James E. Brown III
June 17, 2024
Page 2

The first step in applying the Dillon Rule is to “examine the plain terms of the legislative enactment
to determine whether the General Assembly expressly granted a particular power[.]”° In the absence of an
express grant, the next step is to “determine whether the power . . . is necessarily or fairly implied from the
powers expressly granted by the statute.”° To conclude that an expressly granted power also granted an
implied power, “it must be found that the legislature intended that the grant of the express also would confer
the implied.”” Additionally, localities cannot exercise power in a manner that is inconsistent with state law.*

No statute expressly empowers local governing bodies to determine the provider of courthouse
security.” Nonetheless, the Code directs localities to “provide courthouses . . . serving the county or city,”!°
and grants local governments the general authority to provide for the protection of its property and to
preserve peace.'' Without looking beyond these provisions, an authority to provide courthouse security
could be inferred from these express powers when considered together. I am unable to conclude that the
General Assembly intended to grant such an implied power here, however, because such an interpretation
would conflict with the clear intention of the General Assembly as expressed elsewhere in the Code.'”

As frequently recognized by this Office, the General Assembly has specifically tasked sheriffs with
the provision of courthouse security.'? Indeed, § 53.1-120 expressly provides that “[e]ach sheriff shall
ensure that the courthouses and courtrooms within his jurisdiction are secure from violence and disruption
and shall designate deputies for this purpose.”* This statutory language evinces that the General Assembly
gave the sheriff not only the power to secure the courthouse but also the obligation to do so.'°

Dumfries-Triangle Rescue Squad, Inc., 299 Va. at 233 (quoting Marble Techs., Inc., 279 Va. at 418).
6 fd. (ellipsis in original) (quoting Marble Techs., Inc., 279 Va. at 418).
7 Marble Techs., Inc.,279 Va. at 418 (quoting Commonwealth v. Bd. of Arlington Cnty., 217 Va. 558, 577 (1977).

8 See VA. CODE ANN. § 1-248 (2022); Bragg Hill Corp., 297 Va. at 578 (citing City of Chesapeake v. Gardner
Enters., 253 Va. 243, 246 (1997); W. Lewinsville Heights Citizens Ass’n v. Bd. of Supvrs., 270 Va. 259, 266 (2005)).

9 Additionally, no provision of Charlottesville’s City Charter confers the City Council an express power to
determine the provider of courthouse security.

!0Va. CODE ANN. § 15.2-1638 (Supp. 2023).

'l Section 15.2-1700 (2018).

12. Thorsen v. Richmond SPCA, 292 Va. 257, 266 (2016) (stating that statutes are not to be viewed “as isolated
    fragments of law, but as a whole, or as parts of a great connected, homogenous system, or a single and complete
    statutory arrangement” (quoting Prillaman v. Commonwealth, 199 Va. 401, 405 (1957))); Viking Enter., Inc. v. Cnty.
    of Chesterfield, 277 Va. 104, 110 (2009) (noting that when there are conflicting statutes, and one statute deals with
    the subject generally and another deals with the subject specifically, the latter prevails).

3 See, e.g.,2013 Op. Va. Att’y Gen. 136, 136; 2004 Op. Va. Att’y Gen. 170, 171; 1998 Op. Va. Att’y Gen. 33, 34;
1987-88 Op. Va. Att’y Gen. 259, 260; 1976-77 Op. Va. Att’y Gen. 260, 260.

144. CODE ANN. § 53.1-120(A) (2020). Absent a statute providing otherwise, the authority and powers of a sheriff
     are coextensive with the boundaries of the locality the sheriff serves. 2001 Op. Va. Att’y Gen. 77, 78.

'S “A principal rule of statutory interpretation is that courts will give statutory language its plain meaning.”
Davenport v. Little-Bowser, 269 Va. 546, 555 (2005) (citing Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313
(2005)). Significantly, the word “shall” is “generally used in an imperative or mandatory sense.” Lewis v. City of
Alexandria, 287 Va. 474, 486 (2014) (quoting Schmidt v. City of Richmond, 206 Va. 211, 218 (1965)). The
Charlottesville City Charter affirms that “[t]he city sheriff shall attend the terms of the circuit court of the city and
shall act as the officer thereof,” and “shall also have all power and authority and perform all duties imposed by general
law upon sheriffs of cities.’ CHARTER FOR THE CITY OF CHARLOTTESVILLE, VA., § 29.

Honorable James E. Brown II
June 17, 2024
Page 3

Although § 53.1-120 thus entrusts sheriffs with ensuring courthouse security within their
jurisdiction, the statute further provides that the chief judges of the trial courts, in conjunction with the local
sheriff, are responsible for the “designation of courtroom security deputies.”!* A sheriff thus does not have
an exclusive role in overseeing courthouse security.'’ Notably however, in addressing such security,
§ 53.1-120 does not mention local governing bodies. “It is an accepted principle of statutory construction
that a statute stating the manner in which something may be done, or the entity that may do it, also evinces
the legislative intent that it not be done otherwise.”'’ By including the chief judges and the sheriff while
omitting local governing bodies, the General Assembly demonstrated an intent to exclude the local
government from making decisions governing courthouse security.!?

Moreover, in performing their duties, sheriffs are independent from the local governing body.”° The
local governing body may request that the sheriff perform additional duties that are “not inconsistent with
his office,’”! but sheriffs, as constitutional officers, are not subordinate to the local government, and their
duties are subject only to legislative control by state statute.” A sheriff, therefore, “except as abrogated by
statute, retains complete discretion in the day-to-day operations of the office, personnel matters, and the
manner in which the duties of the office are performed.””’ Because “constitutional officers are independent
of their respective localities’ management and control[,]” a locality has “no authority to supervise or
intervene in the management and control of [a sheriff's] duties[,]”’* including the provision of courthouse
security. Accordingly, in the absence of a statute expressly providing otherwise, a local governing body is
without authority to determine the provider of courthouse security or regulate the sheriffs provision of it.?>

This conclusion comports with a previous Opinion of this office. In response to a similar inquiry,
that Opinion specifically addressed whether a local governing body had the authority to hire private security
personnel to secure the courthouse.”® Essentially applying the rationale set forth above, the Opinion

'6 Section 53.1-120(B).

172013 Op. Va. Att’y Gen. at 137. See Epps v. Commonwealth, 46 Va. App. 161, 175-76 (2005) (noting that courts
have inherent authority to ensure courtroom security and that it would “be folly to claim that the circuit court judge
has the power to ensure courtroom security, but not courthouse security”). For a discussion regarding the court’s role,
see 2013 Op. Va. Att’y Gen. 133.

18 2012 Op. Va. Att’y Gen. 93, 95 (citing, inter alia, Grigg v. Commonwealth, 224 Va. 356 (1982)).

9 The maxim expressio unius est exclusio alterius applies here; it “provides that mention of a specific item in a
statute implies that omitted items were not intended to be included within the scope of the statute.” GEICO v. Hall,
260 Va. 349, 355 (2000) (quoting Turner v. Wexler, 244 Va. 124, 127 (1992)). Although the local government does
not have any authority over the designation of courtroom deputies, it could condition supplemental appropriations to
the sheriff on the “sheriff's acceptance of certain restriction on the use of the appropriated funds.” Roop v. Whitt, 289
Va. 274, 279 n.1 (2015).

20 Roop, 289 Va. at 280 (‘“‘[Sheriffs’] offices and powers exist independent from the local government and they do
not derive their existence or their power from it.”); McClary v. Jenkins, 299 Va. 216, 222 n.2 (2020).

21 Section 15.2-1609 (2018).

2 Roop, 289 Va. at 280.

232008 Op. Va. Att’y Gen. 44, 46.

24 Td.
25 Consequently, a local governing body also lacks the authority to agree to contract provisions that operate to
determine who provides courthouse security.

26 1998 Op. Va. Att’y Gen. at 34.

Honorable James E. Brown II
June 17, 2024
Page 4

concluded that governing bodies do not possess such authority.’” The applicable law has not changed since
that Opinion was issued so as to warrant a different conclusion here. Moreover, “[t]he legislature is
presumed to have had knowledge of the Attorney General’s interpretation of the statutes, and its failure to
make corrective amendments evinces legislative acquiescence in the Attorney General’s view.”
Accordingly, in responding to your inquiry, I find no reason to depart from the conclusion and reasoning

previously expressed by this Office.

Ultimately, had the General Assembly intended to authorize a local governing body to designate
the provider of courthouse security, it could have done so.”” Because the legislature has declined to do so,
I conclude that local governing bodies have no authority to designate who provides courthouse security.*°

Conclusion

Accordingly, it is my opinion that a governing body of a locality does not have the authority to
determine the provider of courthouse security in the locality.

With kindest regards, I am,

Very truly yours,

22

Jason S. Miyares
Attorney General

27 Td. at 34-35.

28 Beck v. Shelton, 267 Va. 482, 492 (2004) (quoting Browning-Ferris, Inc. v. Commonwealth, 225 Va. 157, 161-
62 (1983)).

29 See 2014 Op. Va. Att’y Gen. 95, 97 (noting that the General Assembly “knows how to express its intent’).

30 This Opinion is expressly limited to addressing only the authority of a local governing body to act in this area.