RICHMOND - A lawyer representing Floyd County Commonwealth's Attorney Gordon Hannett told Virginia's highest court Tuesday that a circuit judge exceeded his authority by appointing a replacement for Hannett while the prosecutor fulfills a military obligation in Iraq.

An attorney for Floyd Circuit Judge Ray Grubbs argued that the judge acted properly after determining that "performing the duties of commonwealth's attorney required the presence of someone in Floyd County." With neither man present, the Virginia Supreme Court heard arguments Tuesday in the monthlong power struggle between Hannett and Grubbs. The dispute centers on conflicting arrangements to handle Hannett's duties while the elected prosecutor serves a tour of duty in Iraq with the U.S. Army Reserve.

Hannett, now training in Indiana, had planned to keep his job and supervise his office by e-mail and telephone during his overseas stint. Because Hannett is not surrendering his job, he has the authority to hire an assistant to shoulder some of the duties, argued Chris Kowalczuk, the Roanoke lawyer representing Hannett.

Hannett last month hired Christiansburg lawyer Dennis Nagel as a part-time assistant to prosecute cases while he fulfills his military duties. Kowalczuk said Hannett received approval for the arrangement from the state Compensation Board, which reviews budgets submitted by constitutional offices and reimburses them for the state's share of salaries and benefits. Under the arrangement, Hannett would keep his job and salary as commonwealth's attorney.

But, according to Hannett, the move defied a directive from Grubbs, who had told Hannett he must hire one of three Floyd County lawyers as an assistant prosecutor. Without notifying Hannett, Grubbs on May 5 convened court to appoint Stephanie Murray Shortt to serve as acting commonwealth's attorney while Hannett is away. Grubbs' order would prevent Hannett from collecting his pay as commonwealth's attorney during his absence.

Hannett appealed Grubbs' decision to the state Supreme Court.

"The effect of the judge's order is that Mr. Hannett has lost his position," Kowalczuk said during Tuesday's 30-minute hearing.

"Isn't he still the commonwealth's attorney?" asked Chief Justice Leroy Hassell. "Doesn't he still hold the office?"

"That's form over substance," Kowalczuk replied.

The Supreme Court issued a stay of Grubbs' order until it rules on the dispute. It is unclear how long the court may take to settle the matter. For now, Nagel is serving as Floyd's prosecutor.

Richmond lawyer John McChesney, who represented Grubbs, said the judge had discretion to appoint a replacement for Hannett. He also dismissed assertions that Grubbs violated Hannett's due process rights by appointing an acting prosecutor without Hannett's knowledge, saying Hannett had "no liberty or property interest" at stake.

Hannett's case has drawn the attention of the Virginia Association of Commonwealth's Attorneys, which wants Grubbs' order overturned. The organization filed a brief with the court supporting Hannett's position.

Henry County Commonwealth's Attorney Bob Bushnell, the association's president, called Grubbs' order "a pretty significant violation of the concept of separation of powers."

Bushnell said Hannett's case is similar to that of Roanoke Commonwealth's Attorney Donald Caldwell, a reservist who kept his pay and benefits while serving 15 months on active duty in 2003 and 2004. Caldwell was stationed in the United States.

"We feel very comfortable that Gordon Hannett can serve his country and serve Floyd County simultaneously," Bushnell said after Tuesday's proceeding.

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