You may have heard about a situation in Gloucester County last year that outraged the local residents. A judge fined 40 citizens $2,000 each, for filing petitions to recall four supervisors who were charged by a grand jury with 14 indictments. The story has a bittersweet ending.
It began January 2, 2008 when four newly elected supervisors held secret meetings, fired the county administrator and took other actions deemed to be illegal and without the knowledge and agreement of the full board. Consequently, a five-month, special grand jury returned 14 misdemeanor indictments against the four supervisors on July 8, 2008. The indictments charged malfeasance, misfeasance and misuse of office in connection with their January 2 meeting. As a result of this, Gloucester County Citizens for Accountable Representation, a group of some 40 citizens, circulated petitions to remove the four supervisors from office. Over 6000 county residents signed the petitions, which were filed with the court in early September. However, all 14 indictments against the supervisors were dismissed with prejudice at the request of another special prosecutor.
The four supervisors then filed a request for their $129,321 legal fees to be paid by the county. In ruling who would pay these costs, substitute judge Westbrook Parker of Suffolk ruled that the 40 citizens who circulated the petitions should pay $2000 each as a penalty, with the amount generated ($80,000) being subtracted from the total owed by the county. During a brief hearing held on November 19, the special prosecutor determined the petitions to be flawed procedurally and substantively: procedurally because they were not signed under penalty of perjury and substantively because they did not narrowly and specifically define the grounds for the supervisors’ removal.
Stunned at Judge Parker’s December 17 ruling, Carl W. Tobias, a University of Richmond law professor said, “This may be brand-new territory. I don’t think this has ever happened in Virginia.” Robert M. O’Neil, a noted constitutional law professor and former president at the University of Virginia said the ruling could infringe upon the First Amendment: “A court should protect a citizen, plaintiff or lawyer seeking redress. This is a most unusual type of sanction [on these 40 individuals]. I have not seen anything like this.”
Meanwhile, a local drive got underway in Gloucester to help pay these $2,000 fines, the ACLU decided to look into the case and the 40 petitioners hired their own attorney, L. Steven Emert. He asked that the $2,000 sanctions be vacated, citing evidence that the court had no personal jurisdiction over the 40 citizens. Attorney Emert declined an evidentiary hearing and said he will wait a final order from Judge Parker and, if necessary, appeal his decision. If successful he will take it to the Virginia Supreme Court.
Furthermore, thanks to the diligent efforts of Delegate Harvey Morgan, who represents Gloucester County in the Virginia General Assembly, a bill was introduced (HB 2465) to prevent citizens from being fined when they exercise their freedom of speech, even if it is to remove a public official from office. The bill passed unanimously in both the senate and the House and went to the governor for his signature. OOOOPPS, not so fast. The governor wanted to add an amendment making the bill null and void if the petitioners had “malicious intent” in trying to remove government officials from office.
The House of Delegates rejected the Governor’s amendment 57-40, the Senate rejected it 32-7, and sent the bill back to the Governor. He waited until the last minute, but did finally sign it. The bill becomes law July 1, 2009, though not in time to help the 40 citizens in Gloucester who are still facing $80,000 in fines.
One additional footnote to this story: The case drew the attention of the Thomas Jefferson Center for Protection of Free Expression, which issued a “Muzzle” award to Judge Parker. Muzzles are awarded each year to draw national attention to abridgements of free speech and the press and also to foster an appreciation of the tenets of the First Amendment. Josh Wheeler, Associate Director of the Center, said, “With these Muzzle Awards we hope to remind people we have to always be vigilant in defending our First Amendment rights.” After all is said and done, you have to wonder, “What was Judge Parker thinking?” Fining citizens for circulating a petition!
To see the full list, along with reasons why each candidate was chosen, go to http://www.tjcenter.org/muzzles/muzzle-archive2009.