(Posted December 13, 2022) Today isn’t opinion day, but we have a ruling to ponder. It’s really-most-sincerely unpublished, part of the SCV’s shadow docket of unargued cases. Last week, the Supreme Court handed down a six-page order in In re Biberaj, Loudoun County Commonwealth’s Attorney. It’s an original-jurisdiction petition that resolves a fiery dispute between a local prosecutor and a circuit-court judge.

Buta Biberaj is the elected Commonwealth’s Attorney for Loudoun County. One of her assistants acquired the ire of a circuit court judge in that county, arising from a plea agreement in a burglary prosecution. At a plea hearing, the judge felt that the agreed statement of facts tendered by an ACA was sketchy, so he asked for particulars at the upcoming sentencing hearing.

A different ACA appeared for sentencing and “attempted to address [the judge’s] concerns” about the statement and the plea deal. The judge balked at the explanation and continued the hearing to a later date “to further consider whether the plea is going to be accepted or some other action is going to be taken.”

But before that hearing date, thunder struck: The judge entered an order disqualifying the entire Commonwealth’s Attorney’s Office from the case. Here’s how the Supreme Court describes that order:

In relevant part, the order characterized portions of the SOF and Burton’s defense of the plea agreement as misleading and inaccurate and stated that Judge Plowman could “only conclude” the Commonwealth either negotiated the plea agreement without a “full review of the facts” and “due diligence” or was intentionally misleading the court and the public to “sell” the plea agreement for “some reason that has yet to be explained.” In either event, Judge Plowman determined that the SOF and Burton’s response to his concerns demonstrated Biberaj’s office could not prosecute Valle “with the detail and attention required of a criminal prosecutor and consistent with professional standards and obligations of a prosecutor.”

Well, now. No one in the case had any advance warning that the judge was even considering a broadside like this. The judge also rejected the plea agreement, recused himself, and appointed a prosecutor from a neighboring county to handle the prosecution going forward.

Five days later, Biberaj filed a petition invoking the Supreme Court’s original jurisdiction. The petition sought mandamus and prohibition. The certificate indicated that she simultaneously served copies of the petition on the original judge and the chief judge of the Loudoun court. The petition named the original judge and the court itself as respondents.

The respondents moved the SCV to dismiss the petition. The first cited ground is technical and procedural: By statute, a petitioner must file a petition after serving a copy on all respondents. Biberaj filed and served this petition at the same time. The justices reject this contention, holding that simultaneous filing and service don’t mandate dismissal.

Turning to the merits, the justices first agree with the respondents that prohibition is the wrong remedy to address a claim of this nature. The circuit court unquestionably has jurisdiction over criminal prosecutions, and prohibition can only direct a lower tribunal not to exceed its jurisdiction.

That leaves mandamus. The Supreme Court first agrees with the original judge that mandamus won’t lie against him, but the reason probably isn’t what you think. Because that judge had recused himself, he was no longer able to enter any orders. The mandamus petition sought rescission of the disqualification order, and that judge was no longer able to comply even if the justices had ordered him to do something.

But it’s a different matter with the other respondent – the circuit court. The justices note that “mandamus is available to resolve whether Judge Plowman failed to provide Biberaj with sufficient process before he divested her of her constitutional authority to prosecute” the defendant in the case. The Supreme Court finds that Biberaj was entitled to notice and an opportunity to be heard before the judge acted. The SCV accordingly awards her a writ of mandamus that annuls the disqualification order and the appointment of the replacement prosecutor.

Mandamus is one of the “extraordinary remedies” set out in the Code, and this setup is nothing if not extraordinary. I’ll mention here a few aspects of this case that have caught my eye.

The circuit court judge justified his action by citing a 2007 SCV opinion, In re Moseley. That decision had addressed the power of a given court to bar a specific lawyer from practicing before it, in response to attorney misconduct. As I see it, reliance on Moseley was destined to fail. The attorney’s misconduct there was breathtaking, an order of magnitude worse than anything the prosecutor’s office might have done here, even in a light most favorable to the judge’s perspective.

This obvious contrast may have played a significant part in the ruling here. There’s certainly room for disagreement between judge and prosecutor over sentencing; that happens daily across this fair commonwealth. But the judge here effectively overturned the decision of the Loudoun County electorate, which had entrusted prosecutorial duties – and hence prosecutorial discretion – to Biberaj. Something in the case convinced him that the normal course of action – refusing the plea agreement and assigning a new judge – would go too easy on the prosecutors.

The order in this proceeding also rests on the assumption that elected prosecutors have something akin to due-process rights to continue in a case. The order cites five prior opinions for the principle. I believe that those cases may be distinguishable at a micro level, though I do embrace the Supreme Court’s judgment here.

I learned long ago to question whether a given government has rights. This issue arose once, years ago, in an appeal where my adversary was a municipal government that claimed that a lower court had deprived it of a due process right. I told the justices, “Governments don’t have rights. They have powers. People have rights.” In that vein, the cited decisions on this point relate to the right of a lawyer to practice law, or of a judge – some of the decisions were in JIRC proceedings – to continue in office. In those situations, I can understand that we’d afford those individuals a form of due process of law.

Here, the circuit court barred the entire Commonwealth’s Attorney’s Office; not a given person alone. And the order applies to a single prosecution; not to an entire docket.

That leaves me here in the analysis: Does an elected prosecutor have a property right in continuing to handle a given case, sufficient to require due-process protections before she and her office can be removed? The answer to that question may ultimately turn out to be “Yes,” but at first blush, that conclusion isn’t obvious to me.

I mention this because other proceedings in the legal news these days might well percolate to a similar point of conflict before long. I’m speaking of announcements by a number of progressive Commonwealth’s Attorneys that they will no longer expend their offices’ resources in prosecuting low-level drug offenses. A number of judges, including some truly learned ones, have reacted strongly to such announcements, claiming that the courts have the right (okay; the power) to appoint a substitute prosecutor to press such charges. The elected officials respond that they have to work within a budget, and they’re answerable to the voters, not to judges, for their prosecutorial priorities.

This raises important questions of law – judicial impartiality and separation of powers come immediately to mind. There are good arguments on both sides of this debate. I don’t know of any such dispute in the appellate pipeline, but if I see one, I’ll be careful to follow it.

Last comment: The Supreme Court resolves this proceeding by unpublished order. The court didn’t have to do that; it could have published an opinion, just as it has done in other high-profile OJ proceedings, such as Howell v. McAuliffe in 2016. I believe that the court should have done just that here. This decision belongs in the pages of Virginia Reports.