On December 3, 2018 Jones Day lawyers on behalf of four of five City Councilors, filed a petition for a Writ of Mandamus with the Virginia Supreme Court.
A Writ of Mandamus is essentially a separate lawsuit — in this case, suing the judge. It is usually used to compel a nondiscretionary act for some reason left undone. For example: Mandamus is used in Freedom of Information Act cases, when a locality is wrongly withholding records. Another example: requiring an official to sign and issue a commission for a justice of the peace already approved but left unsigned (origin of the famous case Marbury vs. Madison).
But it is a wrong, even laughable, use of Mandamus to interrupt a lawsuit in mid-litigation, and compel a Judge to reverse a ruling. The Defendants want the Supreme court to force Judge Moore immediately to reconsider his rulings denying legislative privilege: immunity from having to explain themselves or answer for what they did. And they require Judge Moore to reverse his decisions.
A judge need not reconsider rulings. Most judges won’t: otherwise no decision is ever final. Even if Judge More chooses to reconsider, the Defendants can’t make him hurry up. Let alone force him him change his mind.
The rules say the Attorney General can choose whether to defend the Judge, or farm out the case to other lawyers. Attorney General Mark Herring’s office decided to defend Judge Moore.
The same Mark Herring whose letter opinion in August 2017 stands in contradiction to Judge Moore’s ruling on applicability of the Monument Protection law. The same Mark Herring who is now running as a Democrat for Governor of Virginia, on a platform which favors removing Confederate monuments.
But lawyers for the Attorney General’s office filed a brief saying this is the wrong use of a Mandamus petition, that it cannot substitute for an appeal. Evidently fidelity to the law has taken precedence over politics in this instance.
A decision could take months if that is, the Defendants don’t simply withdraw their misbegotten Mandamus petition.