(Posted May 2, 2019) In addition to today’s published opinion on withdrawal of a guilty plea, the justices today summarily decide a mandamus petition with important ramifications for criminal prosecutions and the separation of powers. The case is In re Underwood, and is the latest development in an ongoing dispute between the Norfolk Commonwealth’s Attorney and some of that city’s circuit court judges.

Norfolk Commonwealth’s Attorney Greg Underwood recently made a decision that his office would no longer prosecute simple-possession charges involving marijuana. Drug distribution charges would be unaffected, as were DUI-drug cases. But because of a perception that the current setup has a disproportionate impact based on race, Underwood decided that his office wouldn’t participate in that anymore.

In two pending cases in circuit court, Underwood’s assistant prosecutors moved the court to dismiss the prosecutions. The circuit judges refused, feeling that this trod upon legislative turf; they felt that Underwood was effectively decriminalizing simple possession in Norfolk. Underwood filed mandamus petitions, asking the Supreme Court to compel the judges to perform what he described as a ministerial act.

Today, by unpublished order that isn’t available on the court’s website, a panel of the court dismissed the petitions. The court finds that entry of dismissal is still discretionary, in that the judge has to decide how to resolve he motion. Underwood had cited a 2006 Supreme Court decision, Roe v. Commonwealth, 271 Va. 453, for the proposition that a dismissal is different from a nolle prosequi, in that a nol pros requires the prosecutor to state a reason for the request, while a dismissal doesn’t.

If you get Roe out and read it, it really does say that, and that might lead a casual reader to conclude that Underwood has a point. Today’s SCV panel dispenses with this problem in a time-honored manner, by ruling that the no-reason-required language was mere dicta, and not binding on the current court.

There’s more. Today’s order notes that because a nol pros requires court consent, and because a dismissal without prejudice is effectively a nol pros, a dismissal without prejudice also requires judicial consent. That still doesn’t get us to the point of a dismissal with prejudice. But the court isn’t finished. It finally rules that a dismissal with prejudice operates as a judgment of the court because it’s a final determination of the parties’ rights. And since rendering judgment is a fundamentally judicial function, implicating judicial discretion, mandamus isn’t available; mandamus only lies to compel ministerial acts.

I don’t have a horse in this race. I don’t handle criminal appeals as part of my appellate practice, and I certainly don’t represent any of the litigants here. But this ruling has troubling implications, in my view. Let’s take a peek at the map and see where this road leads.

If it really is true that a court can refuse to allow the party with the burden of proof to dismiss the case without proceeding further, what about civil suits? If a plaintiff decides to pull the plug on her lawsuit and hands up a dismissal order, can the judge refuse it and require her to call her first witness? Under the rationale of today’s order, the answer is yes. That isn’t likely to happen often, but this ruling opens the door to just such a remarkable scene.

Back to the criminal milieu: Does this mean that a circuit court judge can force the elected Commonwealth’s Attorney to try a case that he wants to dismiss? Does he have no prosecutorial discretion? On this pregnant question, today’s order is a little less decisive. The order merely denies the mandamus petition because, the court holds, a dismissal is discretionary. But if a prosecutor really wants to dismiss a misdemeanor case (the Code mandates that he prosecute felonies, so those are outside the scope of today’s discussion), in theory the prosecutor could show up for trial, wait for the witnesses to be sworn, and then announce, “We rest.” What’s the judge to do now? She can’t refuse a defense motion to strike; jeopardy attached with the witnesses’ oath, and the defendant is entitled to a judgment of acquittal.

Foreseeably the judge could hold the prosecutor in contempt (an order that is, I hasten to point out, immediately appealable). That would produce a three-alarm fire on appeal, as the parties to the case would debate issues of prosecutorial independence and discretion, manpower issues, and the like.

There’s another option for the prosecutor. The law allows a Commonwealth’s Attorney to withdraw from the prosecution of a misdemeanor. In that instance, the court can either appoint a special prosecutor — I’m not sure if there’s funding for that — or just allow the trial to proceed as in general district court, with the arresting officer testifying as the Commonwealth’s case in chief.

But even this approach has a major drawback: Suppose the defendant in such a case, knowing that there will be no prosecuting attorney, demands a jury trial? Now who’s going to handle the prosecution’s case in chief? Who’s going to exercise the prosecution’s peremptory jury strikes? Who’s going to give its opening statement and its closing argument? Unless the police officer happens to be a member of the State Bar, that answer is nobody; that’s who.

This order comes from a three-justice panel — the chief justice, plus Justices Goodwyn and Kelsey — who decided the matter very promptly. Underwood filed the petition just a few days ago, and the panel announced its ruling today without waiting or a response from the judges, the respondents in today’s proceeding.