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Roush’s future on high court remains uncertain

Peter Vieth//November 16, 2015

Roush’s future on high court remains uncertain

Peter Vieth//November 16, 2015//

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Justice Jane Marum Roush

Ignoring GOP warnings of a cloud over her continued service and a looming political showdown over a full term, Justice Jane Marum Roush continued to hear cases at the Supreme Court of Virginia this month.

Roush sat on the high court Nov. 3-5, hearing appeals with her colleagues, despite insistence by  Republicans in the General Assembly that her temporary appointment by Gov. Terry McAuliffe was invalid.

As Roush worked on legal appeals at the court, politicians crossed swords over her prospects for a permanent position as a justice.

Full term in dispute

McAuliffe said through a spokesman this month that he expected Roush to win approval for a full 12-year term in January as political rhetoric dies down.

“Now that the partisanship surrounding the elections has passed, and Justice Roush has been able to demonstrate her qualifications through her service on the Virginia Supreme Court, the governor is confident she will be elected to a full term,” a McAuliffe spokesperson said Nov. 6.

Republicans scoffed and showed no sign of backing away from their preferred candidate for the high court vacancy, Virginia Court of Appeals Judge Rossie D. Alston Jr.

“Judge Alston is the most qualified candidate for the current vacancy on the Supreme Court and the Speaker expects the House to nominate and elect him again when it returns in January,” said a spokesperson for Speaker William J. Howell on Nov. 6.

McAuliffe said it was not clear that Alston would be willing to be considered after his election was rejected by the Senate at an Aug. 17 special session.

Because the Assembly had not elected her to a full term at that session, Roush’s first temporary appointment by the governor ran out 30 days later, on Sept. 16.

Her re-appointment 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.

Re-appointment questioned

The GOP claims Roush should not even be on the court now.

Republicans claimed McAuliffe lost the authority to make recess appointments when he called the Aug. 17 special session and the House then recessed without officially adjourning. Even though the Senate officially adjourned, it did so without required consent of the House, Republicans contended.

Accordingly, GOP leaders reasoned, the Assembly still is officially in session and the governor was barred from further recess appointments. Roush’s term expired for good Sept. 16, the party said.

The rules are different for special sessions, McAuliffe countered. Without clear guidance in the law books, the Senate is entitled to deference on its procedures, a McAuliffe aide wrote in a letter to GOP leaders. Besides, the letter continued, the lack of any later legislative activity signaled the special session truly had come to an end.

“The Governor’s re-appointment power is not in doubt and has been endorsed by Virginia constitutional law experts.  No one has challenged this conclusion in any serious way,” the McAuliffe spokesperson said this month.

“Only partisans would continue to stoke questions about Justice Roush’s legitimacy at this point. It is time to reelect this qualified Justice and put this period behind us,” McAuliffe’s office said.

But Republicans stood by their position that Roush’s re-appointment was spurious, citing constitutional law Prof. A.E. “Dick” Howard. He and other constitutional scholars have said “there are legitimate questions on the validity of interim appointments,” the Howell spokesperson said.

GOP: Court action subject to challenge

“The Governor’s decision to unconstitutionally reappoint Roush has put the Supreme Court in an untenable position and certainly calls into question the validity of any of the rulings in which Roush participates,” said the Speaker’s aide.

The caution echoed a Sept. 15 joint statement from Howell and Senate Majority Leader Thomas K. Norment Jr.

As of Nov. 11, the court had issued 15 published opinions and eight unpublished orders since Roush’s first interim appointment expired.

For the eight published opinions in cases Roush heard, the justices cast a unanimous vote in six  cases. In Commonwealth v. Davis, (VLW 015-6-085), the Supreme Court upheld reversal of  certain felony convictions on collateral estoppel grounds on a 6-1 vote. On Nov. 5, the court decided Rafalko v. Georgiadis (VLW 015-6-092) on a 4-3 vote, holding that two sons who challenged their father’s trust worth $5 million did not violate a no-contest clause.

Roush is the author of one Nov. 5 Supreme Court opinion in Grafmuller v. Commonwealth (VLW 015-6-091). In that ruling, the court ordered re-sentencing for a criminal defendant who was not permitted to be present for his final sentencing hearing at the trial court.

VLW 015-6-085

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