Who Prosecutes a Misdemeanor in Virginia?

In Virginia a Commonwealth Attorney is elected in each county or city. This is roughly the equivalent of a District Attorney or State Attorney in other States (except we're in a Commonwealth, so we're cooler). The duties of a Commonwealth Attorney, and his deputies, are laid out in Virginia Code § 15.2-1627(B):

The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of subsection D of § 18.2-268.3.

So, the basic job of a Commonwealth Attorney is to prosecute felonies. He is also tasked by law with doing several civil actions (previously discussed here). However, it is entirely discretionary whether a Commonwealth Attorney's office will handle misdemeanors. In fact, the staffing of a Commonwealth Attorney's office is based entirely on the felony caseload; there is absolutely no credit given for handling misdemeanors (see Compensation Board Staffing Criteria). So, what happens to all those misdemeanors the Commonwealth Attorney is not being paid to prosecute?

Well, some Commonwealth Attorneys are kind enough to pick up these cases anyway. In other localities the county or city, recognizing the burden put on the Commonwealth's Office, will provide extra money to the office to compensate for the extra work. This can either come in the form of extra pay for each assistant or paying a particular assistant to handle the misdemeanors. Another option is for the locality to hire its own prosecutor.

Localities which hire their own misdemeanor prosecutors can be counties, cities, or towns (towns incorporate in Virginia, but don't have their own Commonwealth Attorney). This prosecutor is either the county attorney or the city or town attorney (the attorneys who usually do their civil work). However, in order for the locality's attorney to do this work the Commonwealth Attorney must first approve them and there are some differences in the cases they are allowed to handle.

§ 15.2-1542(B) The county attorney may prosecute violations of the Uniform Statewide Building Code, the Statewide Fire Prevention Code and all other ordinances as may be agreed upon with the attorney for the Commonwealth. Such attorney shall be accountable to the governing body in the performance of his duties.

15.2-1542(C) City and town attorneys, if so authorized by their local governing bodies, and with the concurrence of the attorney for the Commonwealth for the locality, may prosecute criminal cases charging either the violation of city or town ordinances, or the commission of misdemeanors within the city or town, notwithstanding the provisions of § 15.2-1627.

So, attorneys for counties as well as cities and towns can, with the approval of the Commonwealth Attorney, prosecute ordinances. Ordinances are local laws which can be put into place by localities with the permission of Virginia's General Assembly (Virginia is a strong Dillon Rule State).

The strange difference is that city and town attorneys can prosecute misdemeanors which occur within their localities while county attorneys are not allowed to do so. A misdemeanor does not have to be a local law the General Assembly has allowed the locality to enact. A misdemeanor is any offense in Virginia in which the punishment is 12 months or less. So, a city or town attorney can prosecute ordinances and state laws while a county attorney can only prosecute ordinances.

The next question becomes, how do any of these attorneys get permission to prosecute from the Commonwealth Attorney? My best opinion is that the Commonwealth should send a blanket statement to the local court stating that she will not have her office prosecuting misdemeanors from the town of Pitcairn and that she agrees that for the next 12 months the town attorney of Pitcairn can prosecute any and all misdemeanors, whether by ordinance or under State law, which occur within the boundaries of the town of Pitcairn. Without such a statement, the defendant in any case being prosecuted by a count, city or town attorney would be able to object (after the first witness has been called and jeopardy has attached) that there has been no approval by the Commonwealth Attorney for the local attorney to prosecute his client.

It would be an interesting argument. I don't know if it would often work (I suspect the officer could handle his own case in most minor misdemeanors without the attorney), but it would make for an interesting argument.