By: Cody Brandon

The Supreme Court of Virginia is set to consider an appeal that could drastically affect efforts to remove elected officials. Other than those officials for which removal procedures are specified in the Constitution of Virginia, removal procedure is governed by Virginia Code § 24.2-230 et seq. Unlike many other states that use recall elections, these statutes provide for the removal of elected officials by a circuit court for neglect of duty and misuse of office as well as convictions for various drug-related, sexual assault, and hate crimes. The process is initiated when a number of petitioners equal to ten percent of the total number of votes cast at the last election for the office sign a petition for removal stating the grounds for removal. The petitioners must be registered voters residing in the district which the officer serves. Once the action is instituted, the Commonwealth steps in (through a Commonwealth’s Attorney) as the complaining party, and the officer is subjected to a trial of sorts to determine if there are grounds for removal that satisfy § 24.2-233.

At issue in Commonwealth v. Williams are the formal requirements of the petition to be submitted to the circuit court. Erica W. Williams is the Clerk of the Circuit Court for Montgomery County. As reported by The Roanoke Times, controversy surrounded Williams’ re-election to an eight-year term in 2015 and the subsequent firing and resignation of many of her deputy clerks. In May 2016, citizens of Montgomery County filed forms supporting their Petition for Removal of Ms. Williams from office. The Circuit Court dismissed the petition, finding that though there were enough signatures to satisfy the ten-percent rule, all of the signatures were not made under penalty of perjury, which the court deemed necessary under § 24.2-235. The Commonwealth appealed this ruling, and the Supreme Court granted the appeal on September 8th, 2017. The Roanoke Times has reported that the case is likely to be heard during the court’s February session which will run from February 26th through March 2nd, 2018.

The controversy in Williams arises from the language of § 24.2-235. That statute requires that a petition for removal made under § 24.2-233 be “signed by the person or persons making it under penalties of perjury.” That leaves the fundamental question, “Who makes the petition?” The Commonwealth has taken the position that only the drafters of the petition must sign under penalty of perjury, while the registered voters to whom the petition is circulated can sign without a penalty of perjury. This position is supported by the only relevant precedent on the issue. In a letter to the House of Delegates in 1989, then-Attorney General Mary Sue Terry opined that the penalty of perjury requirement applied only to “the person or persons responsible for drafting the statement of the grounds for removal.” (1989 Va. Op. Atty. Gen. 221, 223.). Thus, she concluded, the statute intended only to keep drafters from circulating intentionally false petitions and deceiving the public by subjecting the drafters to perjury prosecution.

Ms. Williams argued, and the Circuit Court agreed, that the statute requires that all signatures on the petition be made under penalty of perjury. Because the removal of an officer by a court after petition by only ten percent of the voters is an end-around normal democratic procedure, the court held that the statutes must be strictly construed. Viewing § 24.2-235 to modify the entirety of § 24.2-233 as well as surrounding provisions, the Circuit Court reasoned that all petitioners must sign under penalty of perjury to protect the officer from frivolous litigation. While the Commonwealth argues that this makes the removal process substantially more difficult for voters (a concern Attorney General Terry echoed), Williams contends that having a court remove an elected official should be difficult.

Thus, the stage is set for the Supreme Court to give a more definite meaning to § 24.2-235, potentially affecting the process by which voters can remove school board members, county clerks, commissioners, and other officials which they believe have abused their office. Importantly, the Court has already given some instruction to complaining voters by refusing to hear a number of other issues appealed by Ms. Williams. The refusal of appeal suggests the reliability of the Circuit Court’s ruling that a simple recitation of the language of § 24.2-233 (which lists possible grounds of removal) is sufficiently detailed “grounds for removal.” So voters petitioning for removal can simply recite statutory language in their petition rather than crafting their own.

Elected officials and voters should keep a close eye on the outcome of Commonwealth v. Williams, especially those considering petitioning for the removal of an officer. Applying the perjury requirement to such petitions will make the process substantially more difficult for petitioners, but not impossible. Look for the Court to give instruction on the proper form of these petitions that can be used to safeguard against appeals like Williams in future cases. Here’s hoping that, whatever the outcome, the Court can clarify and shed light on Virginia’s unique process for removing officials.

Read the Court’s Granted Summary Appeal here.

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