Governor Terry McAuliffe released the following statement today on his intention to reappoint Justice Jane Marum Roush to the Virginia Supreme Court as her term expires.
“Today, I reached out to Speaker Howell and Majority Leader Norment to explain my office’s response to their letter regarding the special session that I ordered to be convened on August 17, 2015, to address redistricting. My office also delivered an official letter of response outlining our legal rationale on this matter. Republican leaders assert that the General Assembly remains in session. I have considered their views, but have respectfully concluded that the General Assembly is not in session. Accordingly, as Governor, I retain power to make appointments to fill critical positions throughout state government in order to fulfill my ultimate responsibility ‘to take care that the laws be faithfully executed.’ (Constitution of Virginia, Art. V, Section 7)
“The Virginia Constitution’s clear expression that the Virginia General Assembly shall be a part-time legislature is a fundamental principle of our government and widely viewed as one of our Commonwealth’s strengths. For more than 150 years, the Constitution has constrained the legislature to time-limited sessions, placing a key check on the power of that branch of government. It is this foundational principle that drives any analysis of the issues raised by the Republican Leadership, and it strongly supports my conclusion.
“First, the Constitution of Virginia is silent about how special sessions are to be conducted or concluded. The Republican Leadership points to Article IV, Section 6’s mutual consent requirement; however, that provision clearly applies to regular and reconvened sessions, but not to special sessions. Special sessions are provided for in a paragraph after the mutual consent provisions, which leaves ambiguity as to whether this rule applies to special sessions.
“The Constitution also provides, however, that each house may ‘settle its rules of procedures.’ (Art. IV, Section 7). Thus, where there is ambiguity in the Constitution and the Senate of Virginia has decided that it is empowered to adjourn its special session without the House’s consent, I must respect that determination. To determine otherwise would allow one house of the General Assembly to prolong a special session indefinitely, which would undermine entirely the Constitution’s design for time-limited legislative sessions.
“Second, the purpose of the special session has lapsed, and the lack of any continuous or pending business has the effect of adjourning the special session. I called the special session for a specific purpose, to draw a remedial Congressional district plan pursuant to a federal court order setting a deadline of September 1, 2015, for this task to be accomplished.
“September 1 has come and gone, and the General Assembly never advanced any remedial plan. The specific purpose of the special session has lapsed. There is no pending legislation. There is no other pending business. There have been no meetings or daily sessions.
“When the Senate first adjourned, the House Privileges and Elections Committee abruptly adjourned its meeting. The members of both bodies left the Capitol and have not returned. The House of Delegates, despite the Speaker’s claims, has not met or conducted any business since August 17. Nor has the Senate. Nor has the Senate leadership done anything to attempt to bring the Senate back into session.
“These actions collectively extinguish any claim by the Republican Leadership that they remain in session. Thus, the session is over.
“For these reasons, which are more thoroughly explored in my office’s letter to the Republican Leadership, I have concluded that the General Assembly is not in session. It is therefore incumbent upon me to ensure that critical vacancies in state government be filled. Few functions of state government are more important than the efficient and fair operation of our courts. I will not allow a vacancy on the state’s highest court to persist while important cases and controversies are pending.
“Accordingly, on September 16, 2015, I will reappoint Justice Jane Marum Roush to fill the vacancy caused by the failure of the General Assembly to elect a Supreme Court Justice during its now-concluded special session.
“Justice Roush remains one of the most highly qualified and respected jurists in Virginia, having served on the Fairfax Circuit Court for 22 years. Her candidacy was originally brought to my attention by the Republican Chairman of the House Committee for Courts of Justice, Delegate David Albo. Her expertise has developed over her years in private practice at prestigious law firms and from her years as a trial judge handling cases from complex commercial disputes to the D.C. sniper trial. I hope that, when the General Assembly convenes in its 2016 Regular Session, it will move beyond petty partisan politics and elect this supremely qualified woman to Virginia’s Supreme Court. In the meantime, however, I will see to it that Virginia continues to benefit from her judicial talents and her strong commitment to serving the Commonwealth.”
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Chris Graham
