[Posted August 21, 2015] Over the past 19 days, Topic A in the Virginia legal community has been the partisan squabble between the Governor and the General Assembly over who’ll occupy the “juniormost” seat on the Supreme Court. I’ve already posted my sentiments about who’s in the wrong here – at least to a degree, both sides – but a query from a reporter this week got me thinking about what would happen if the war were to escalate.

As you’re no doubt aware, the legislature met earlier this week, ostensibly for redistricting purposes. That task quickly fell flat. Republicans in the Senate took this opportunity to interview a candidate for the permanent seat that’s now occupied by Justice Roush. But that candidate was Judge Alston; they pointedly refused the Governor’s request to at least give Justice Roush an interview so she could justify keeping their seat. No dice, the senators said.

Later that day, the solid Republican wall cracked when outgoing Sen. John Watkins decided he just couldn’t stomach what his party was doing to a well-qualified sitting jurist. His nay vote led to a 20-20 tie, which the Lieutenant Governor broke to the majority’s chagrin. The Senate then quickly adjourned.

Since the Governor has the right to recess appointments, that adjournment would seem to allow the Governor to reappoint Justice Roush when her term expires on September 16, so she would continue uninterrupted in office at least until February, by which point it might be a tad more unseemly to unseat her. So the Governor’s thinking evidently goes.

The Republicans weren’t giving up; they claimed that the Senate couldn’t lawfully adjourn without the House’s consent, citing Art. IV, §6 of the constitution. They warned the governor that if he reappointed Justice Roush and they won a legal challenge to his authority to act, then any rulings in which she participated after September 16 would be invalid.

Now we’ve reached the point of my chaotic musings. I won’t try to decide the constitutional question described above; I’ll just say that I’ve read the provision and I believe that either side can legitimately claim to be right, so it’ll take a court judgment to settle the issue. That court battle – still theoretical at this point – is the subject of this essay.

First, let’s set the table with a look at the calendar. September 16 is 30 days after the August 17 special session began, so that’s the correct expiration date for Justice Roush’s current appointment. It’s also in the middle of the September session of the Supreme Court. Justice Roush can participate in the cases on Monday and Tuesday without a fuss by anyone. (I’ll be at the lectern that Monday, so I’ll definitely see her at the end of the bench.) Wednesday is sort of a gray area; when, exactly, that day does her commission expire? And what about Thursday? If she’s reappointed and she participates that day, those cases – fortunately, only three of them at this point – run the risk of invalidation if the Republicans win the legal challenge.

But let’s turn to that legal challenge and see what it might look like. Surprisingly, there is precedent for a judicial battle over which person is entitled to a seat on our highest court. That being said, you need to go back to the Arthur Administration – that’s Chester Alan Arthur – to find that precedent.

In 1876, Judge Wood Boulden of the Supreme Court of Appeals of Virginia (that’s the court we now call the SCV) died in office, having served almost six years of his 12-year term. Late that year, the legislature elected Edward C. Burks – father of Martin Burks, the author of Burks’s Pleading & Practice – to fill the vacancy.

Judge Boulden’s original term was set to expire at the end of 1882, and in that year – there having been a change in the political winds after the formal end of Reconstruction – the legislature elected Drury Hinton for a 12-year term starting in January 1883. But the seat was still warm; Judge Burks objected, claiming that all terms of office for the high court were for 12 years, so he still had six years left to serve. Judge Hinton noted that the General Assembly had passed an act providing that when a judge filled an unexpired term, his tenure was limited to what was left of the original 12 years. Judge Burks shot back that the constitution, which kind of trumps statutes, says that all judges’ terms shall be for 12 years.

So, who’s going to referee this kind of contest? The unfortunate answer is that the other four members of the high court did so, perhaps with more than a modicum of distaste for the proceedings. In what looks to me to be an original-jurisdiction proceeding, the remainder of the court ruled, by a 3-1 vote, that Judge Burks was out and Judge Hinton was in. Hinton v. Burks, 77 Va. 1 (1883). (I offer a sincere and very grateful hat-tip to my fellow history lover, Judge Everett Martin, for turning me on to the case.)

The nature of the Hinton case is different in several respects from the current conflict, and the constitutional provisions are definitely different; but the old case still offers us some limited guidance as to what we might expect. Here are a few idle musings about that.

First, although I’m sure they’d all love to run and hide from it, it looks like the six current justices will have the final say on any legal proceeding affecting the legitimacy of any reappointment of Justice Roush. (Judge Hinton recused himself from the 1883 case, and I’m confident that Justice Roush would do so, too.) You may reliably expect that one or more of the senior justices will fill out the bench. This means that the justices would be in the uncomfortable position of deciding who their new colleague will be. But as a practical matter, the case could be presented to a lower court first; that would be some unlucky circuit court judge, whoever draws the short straw.

Next problematic issue: who represents whom? If there’s to be briefing, and maybe even an oral argument, in the Supreme Court, then there will have to be lawyers. Although both sides would love to have his representation, I tend to think that the Attorney General may pass on the case, given the political and governmental ramifications.

You should know that in Hinton, the Attorney General of the day, Frank Blair, chose to step in on the side of Judge Hinton. Of course, that might have something to do with the rapidly changing politics of the day.

[Gee, I guess that isn’t too far removed from our scenario after all.]

Leaving the AG aside for now, any private lawyer who takes a side might figure that he or she is engaging in a very risky proposition. After all, if the other side wins, then that lawyer will be presenting future arguments to a justice who is likely to remember that “this lawyer argued against my being here.” That being said, I doubt that either the Jane Roush or the Rossie Alston that I know will hold a grudge. Still, it’s a daunting prospect.

Next, even more daunting, issue: who are the parties to the legal action? In the Nineteenth Century, the two judges were the litigants, and at first blush, it looks like our two modern jurists might be the only ones with standing. But I wouldn’t leave out the possibility that a legislator might sue the Governor, or vice versa, in an effort to ascertain the limits of gubernatorial power when the legislature sort-of is and sort-of isn’t in session. That would avoid the unseemly prospect of seeing a case name like Alston v. Roush in Virginia Reports.

We’re not done; not even close. What kind of suit could be filed? Declaratory judgment comes immediately to mind, but that might not fit, especially if there’s a direct way of challenging the supplemental appointment. Since this wouldn’t be directed from one court to a lower court, that leaves out a writ of prohibition (though you have to think that the Republicans would dearly love to get an order prohibiting the Governor from doing something, anything).

My best guess is quo warranto, an extraordinary writ that’s now exclusively statutory. See Code §§8.01-636 et seq. Such a writ may be sought against “any person who intrudes into or usurps any public office.” It’s the way you “try title” to a public office. Since a “person interested” can file it in the name of the Commonwealth – this is one of those ex rel. suits that you sometimes see in the reports – you just have to find someone who’s sufficiently interested in the subject matter. The “other” justice clearly would be entitled to it, and without doing a whole lot of research, I can’t rule out a legislator or the Governor, either.

One of the interesting things about quo warranto proceedings is that venue lies in the city where the respondent lives; Richmond is only a fall-back court. That means that anyone who files suit against, say, Justice Roush must file it in Fairfax Circuit Court. (The Supreme Court doesn’t have original jurisdiction over these matters; just appellate.) I’ll pause now to give you a moment to consider how you’d like to be that trial judge. The only silver lining is that the taking of evidence should be wholly unnecessary; the parties can probably stipulate to the events and then argue cross motions for summary judgment. But still.

Here’s a related problem. Let’s suppose that Justice Roush shows up for the November and January sessions, acting as though nothing unusual had happened. Now suppose that the Supreme Court ultimately rules in favor of the Republicans. I’ve seen a report that Dick Howard, the primary draftsman of our current constitution, thinks that those judgments might well be problematic, and I’ve learned to respect his constitutional views.

But does that invalidate all decisions that she participated in? Would it be limited to the cases in which she joined a 4-3 majority, so that her vote affected the outcome; or would all of the cases on which she sat go back to Square One?

And what would be the means of obtaining relief from those decisions (even the 4-3 ones)? It’ll probably be too late for a petition for rehearing for the cases decided in January; for that, litigants would probably have to file independent actions under Code §8.01-428. That means that a circuit court judge, in any such proceeding, would have to decide whether to uncork a Supreme Court ruling. I invite you to conceive a mental picture of water flowing uphill.

Even that kind of suit presents complex issues: Would a litigant who wants to reopen a decision on these grounds have to preserve that issue by objecting during oral argument in the Supreme Court (say, in a case argued in November) to Justice Roush’s participation? That’s the functional equivalent of a motion for recusal, always a dangerous course unless you’ve got an ironclad case. Would a motion like that give the justices an independent means of adjudicating the legitimacy of a second appointment? Probably not, because I seriously doubt that a justice’s decision not to recuse herself could be appealed to the Supreme Court.

Please remember that almost none of this is authoritative, because there simply is no specific provision for something like this in the Code, and there’s no precedent under our current constitution. Even Hinton v. Burks is based on a slightly different fact pattern and a wholly different set of constitutional provisions. It would offer the parties and the court some procedural guidance but no definitive answers.

As with my previous essay, I don’t have a ready solution for the problem that this dispute presents. The two warring branches of government have each painted themselves into corners, to the point where there’s no way at all that everyone comes out of this unharmed. And as we’ve just seen, the litigation approach is impossibly messy. Yet as each day passes, that solution becomes all the more likely.