[Posted September 5, 2015] In a couple of my previous posts about the impasse over the seventh seat on the Supreme Court of Virginia, I’ve discussed the problems that might arise if the Governor reappoints Justice Roush (as looks overwhelmingly likely) and that appointment is later invalidated (which is a very different matter). Specifically, what happens to those decisions that the court hands down while she’s sitting in, say, November or January? Are they valid? Are they invalid if she joined a 4-3 majority? How do litigants challenge the judgments after the fact?

When I composed those earlier essays, I had no idea that the Commonwealth has actually plowed this ground before. It was, in my meek defense, a very long time ago, and the doctrine hasn’t exactly popped up in many (or maybe any) recent decisions. Oh, well; as the saying goes, a good lawyer doesn’t know everything, but he knows how to find anything. Here’s the story, and how it resolves that troubling set of possible problems.

After the end of the Civil War, Virginia was under military administration as part of Reconstruction. That period ended when the Commonwealth, having ratified the 13th and 14th Amendments, was readmitted into the Union on January 26, 1870.

Before that date, public officials here, from Commissioners of the Revenue to sheriffs and all the way to the highest court in the state, were appointed by the military governor, first Francis Pierpont and then Henry Wells. On the date of readmission, Governor Wells’s office terminated and he no longer exercised any power.

But what about his appointees? If the military was no longer in control, weren’t the military appointees out of office? And if so, who, if anyone, was your local sheriff, or tax collector, or judge?

In a series of three decisions, the Supreme Court of Appeals of Virginia – that was its name back then – resolved that question and more. For our purposes the important issue was this: when a judge hands down rulings, and the judge is later found not to have been properly in office, what’s the status of those rulings?

Technically, the answer is, “It depends,” but fortunately for us, there’s enough guidance in the decisions that we can now answer definitively the questions posed in the first paragraph of this essay.

The decisions explain that a judge can hold office in one of three ways: de jure, de facto, or as a usurper. A judge de jure is perfectly legitimate. One who is only de facto has a colorable claim – he’s been elected or appointed – though there may be some question as to the legitimacy of that election or appointment. A usurper has no right to the office; he’s essentially a squatter.

The court’s ultimate rulings on our problem correspond to how the judge holds office. If she’s de jure, then no one can challenge the legitimacy of her occupancy of the office. If she’s a usurper, her rulings are essentially void (or perhaps voidable; but the difference isn’t important in this context). The nuance falls in between. For de facto judges,

upon the unquestioned and uniform authority of the decisions of the English and American courts, their official acts must be held to be as valid and binding, so far as the public and the rights of third parties are concerned, as if their title to the office had been unquestioned and perfect.

Griffin’s Ex’or v. Cunningham, 20 Gratt. (61 Va.) 31, 42 (1870).

In another case decided the same term, the court cited with approval a Wisconsin decision that came out this way:

where a party was indicted, convicted and sentenced, at a term of a Circuit court held by a person who exercised the office of judge of said court, under an appointment by the governor without authority of law, there being another person entitled to said office, the sentence was, nevertheless, valid and binding. It was so decided upon an application for a writ of habeas corpus after a judgment of ouster had been pronounced against the judge, upon the ground he had been so illegally appointed.

Quinn v. Commonwealth, 20 Gratt. (61 Va.) 138, 141 (1870). An “appointment by the governor without authority of law”; doesn’t that sound familiar?

Finally, we have this:

The rule which declares that the acts of an officer de facto are as valid and binding as if he were an officer de jure, is founded on the soundest principles of public policy, and is absolutely essential to the protection of the best interests of society. Indeed the affairs of society could not be conducted on any other principle. To deny validity to the acts of such officers, would lead to confusion and insecurity, in public as well as private affairs, and thus oppose the true policy of every well regulated State.

McCraw v. Williams, 33 Gratt. (74 Va.) 510, 514 (1880).

So, from a seeming legal morass, we have clarity. At some point, unless the Fates intervene and the warring parties settle their differences, a court will probably determine whether the General Assembly is or is not in session this month, and accordingly whether the Governor had the actual power of a recess appointment. But there can be no room for debate on the legitimacy of the court’s rulings in the interim: they’ll be valid and unassailable, under uniform caselaw that goes back centuries.