WHO ARE VA.’S MAGISTRATES? WHAT POWER DO THEY HAVE?
Portsmouth case puts spotlight on aspect of the judicial system unfamiliar to some
One month ago, Portsmouth police charged state Sen. Louise Lucas and 18 others with felonies in the June protest and vandalism at the city’s Confederate monument — an announcement that made national headlines and brought with it a deluge of political fallout.
The charges against people including NAACP leaders, public defenders and a school board member came as a surprise to many, including Portsmouth’s elected prosecutor. To file them, Portsmouth police went before the city’s chief magistrate.
During the political firestorm that followed, residents went
before magistrates twice more in an attempt to file criminal charges against City Council members. Once it worked, and once it didn’t.
The moves cast light on an
aspect of the judicial system unfamiliar to some. Who are Virginia’s magistrates, and what power do they have?
Here’s a closer look.
Historical roots
The system traces its roots back to early England.
Beginning in the 1620s in Virginia, plantation commanders tried petty crimes and cases “involving less than 100 pounds of tobacco” in courts in Charles City and Elizabeth City, according to the state’s Magistrate Manual, which details the rules and procedures for Virginia magistrates.
Those filling the role were later called commissioners, and then justices of the peace.
The position was an elected
one for over a century, until magistrates replaced the justice of the peace system in the mid-1970s. Virginia’s courts were reorganized at that time.
Magistrates in Virginia can’t try cases — meaning they don’t have the power to convict or sentence someone to jail time — and they haven’t since 1934.
“This lack of power cannot be stressed too strongly, for the magistrate may act only when authorized by statute,” the state’s Magistrate Manual says.
‘The front line’
In the Old Dominion, magistrates have numerous powers outlined by state law.
They have the authority to issue arrest warrants, search warrants, subpoenas and civil warrants. They also can set bail and issue emergency custody orders, temporary detention orders and emergency protective orders.
A law enforcement officer or resident wanting to take out a charge against a person must establish probable cause — a “reasonable belief ” that the person committed a crime based on the facts — before a magistrate can issue an arrest warrant.
If a citizen is seeking a felony charge against someone, though, the magistrate can’t go forward with the case until a law enforcement officer or commonwealth’s attorney authorizes it, said Jonathan Green, director of the Department of Magistrate Services.
Virginia’s magistrates are hired by the state, through the executive secretary of the state Supreme Court. They operate 24 hours a day, seven days a week, even throughout the coronavirus pandemic, Green said.
“Magistrates are independent judicial officers. We are not judges, but we are on the front line of the judicial branch,” Green said. “We are often the first contact that individuals interacting with the criminal justice system have.”
Who can be a magistrate?
Virginia has roughly 400 magistrates, broken down into eight regions and 31 districts across the state, Green said.
In much of Hampton Roads — including Chesapeake, Norfolk, Portsmouth, Virginia Beach, Hampton and Newport News — each city has its own district. (Suffolk, Isle of Wight and Southampton, however, are all in the same district.)
Each district has a chief magistrate. Since 2008, any new chief magistrate must be a lawyer in good standing with the state bar. But like judges, they can’t simultaneously work as attorneys and represent clients while serving in the role.
Magistrates under the chief magistrate must have a bachelor’s — but they’re not required to have
a law degree. That means the person who OK’s criminal charges against you or decides police have cause to search your home doesn’t necessarily have law school training.
Virginia’s magistrate system underwent significant reform in 2008, following a study commissioned by the General Assembly, which recommended nearly two dozen changes.
Among them: Increased educational requirements, beefed-up training, a standardized complaint process and transferring the oversight of magistrates from the circuit court judges to the executive secretary of the state Supreme Court.
Training requirements increased from four days to four weeks. Today, magistrates must pass an exam and do 240 hours of observational training before they can conduct hearings on their own, Green said.
The Portsmouth cases
Chief magistrates handled all the recent high-profile Portsmouth cases.
In August, Portsmouth police Sgt. Kevin McGee of the department’s Property Crimes Unit went before the city’s chief magistrate, Mandy Owens, who signed off on warrants charging Lucas and more than a dozen others with felony injury to a monument charges stemming from the June protest. Some, including Lucas, also face a conspiracy charge. An outside judge has since been named to hear the cases.
Barely a week after McGee got those warrants, a Portsmouth man took out criminal charges against Vice Mayor Li s a Lucas-Burke, alleging she violated a section of the city charter when she called for the resignation or firing of the police chief. Amanda Winchester, Norfolk’s chief magistrate, signed off on those misdemeanors.
And earlier this month, NAACP leaders tried to file the same misdemeanor charges against two other council members, Bill Moody and Elizabeth Psimas, alleging they violated the charter by telling the police chief to charge people in the Confederate monument case.
Their request for charges was denied by Virginia Beach Chief Magistrate Michael Poulson, who was called in at the request of Portsmouth magistrates who said they had a conflict of interest, according to NAACP president James Boyd.
In other states
In general, there are two broad categories of magistrates in the U.S.: Those that are elected and those, like in Virginia, that are appointed or hired.
Virginia is different from some other states in that it sets statewide standards magistrates must meet, said William Raftery, an analyst for the National Center for State Courts, which is based in Williamsburg.
Some states have magistrates for specific types of cases, such as family magistrates or matrimonial ones, but Virginia’s magistrates are more generalists, Raftery said.
Virginia’s magistrates aren’t judges. If they issue arrest warrants in a case, the ultimate outcome will be up to a judge or jury in court. And all of Virginia’s judges must be lawyers.
But more than half the states in the country allow people who are not lawyers to serve as judges in some lower courts, according to Raftery.
In South Carolina, a 2019 investigation by The Post and Courier and ProPublica found most of that state’s magistrate judges — who can convict people and send them to jail — weren’t attorneys, and the journalists uncovered judicial errors, misconduct and the mishandling of criminal cases.