By Peter Vieth, Virginia Lawyers Weekly – 9/16/2015
Defying warnings from Republicans about his legal authority, Gov. Terry McAuliffe Wednesday reappointed Justice Jane Marum Roush to her tenuous seat on the Supreme Court of Virginia.
Republican legislative leaders insisted the 2015 General Assembly still was technically in session, stripping the governor of his ability to make recess appointments.
The governor’s office hand-delivered Roush’s commission Wednesday morning, according to a McAuliffe spokesperson. Copies were provided to the court, she added.
Republicans claimed the governor lost the authority to make recess appointments when he called an Aug. 17 special Assembly session and the House then recessed without officially adjourning. Even though the Senate officially adjourned, it did so without required consent of the House, the Republicans contended.
Accordingly, GOP leaders reasoned, the Assembly still is officially in session and the governor is barred from further recess appointments.
The rules are different for special sessions, McAuliffe responded. Without clear guidance in the law books, the Senate is entitled to deference on its own interpretation of procedures, a McAuliffe aide wrote in a letter to GOP leaders. Besides, the letter continued, the lack of any legislative activity signaled the special session had come to an end.
Besides pronouncing the Assembly still in session, Republicans warned that the new appointment of Roush placed the Supreme Court in an “untenable position” and called into question any decisions the court may issue before the next Assembly session. The caution came in a Sept. 15 joint statement from House Speaker William J. Howell and Senate Majority Leader Thomas K. Norment Jr.
There should be no cloud over actions of a court that includes Roush, even if her authority to hold her seat is later questioned or invalidated, suggested historic legal precedent. Three post-Civil War rulings from the Supreme Court of Appeals of Virginia (as it was then known) held that acts of officials with apparent authority generally are “valid and binding.”
The cases are cited in a Sept. 5 analysis of the issue by appellate attorney L. Steven Emmert of Virginia Beach. The analysis is posted on Emmert’s website at virginia-appeals.com.
As Roush began her second truncated term on the high court bench, the legitimacy of her continued service seemed to take a back seat to overarching concerns of the constitutionality of Virginia legislative election districts and the strained relations between McAuliffe and GOP leaders.
The court made no mention of the controversy as Roush assumed her place on the bench as junior justice for the term beginning Sept. 14. The court squeezed its September docket into three days, avoiding any uncertainty over Roush’s Thursday status.
Appointed to the court by McAuliffe on July 21, Roush faced an early test of her legislative support when the governor called the special redistricting session for Aug. 17. Republicans backed an alternative candidate, Court of Appeals Judge Rossie D. Alston Jr.
Republican leaders denied Roush an audience with Assembly courts committees on Aug. 17, but Democrats managed to both block Alston’s election to a Supreme Court term and to force adjournment of the Senate. The maneuvers left the identity of the long-term seventh justice in doubt.
Because the Assembly had not elected her to a full term in its Aug. 17 session, Roush’s first temporary appointment by the governor ran out 30 days later, on Sept. 16.
Her reappointment that day lasts either until she is elected by both houses of the Assembly in 2016 or until Feb. 11, 30 days from the start of the Assembly session.