COMMONWEALTH OF VIRGINIA v. ERICA W. WILLIAMS
Record No. 170122
Supreme Court of Virginia
March 1, 2018
JUSTICE S. BERNARD GOODWYN
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY, Williаm N. Alexander II, Judge Designate
PRESENT: All the Justices
BACKGROUND
On May 6, 2016, voters of Montgomery County filed a petition in the Circuit Court of Montgomery Cоunty to remove Erica W. Williams (Williams) from her elected position as Clerk of that court (Petition). In a document entitled “Grounds for Removal,” the Petition alleged that Williams had “neglected her duty, misused her office, or been incompetent in the performance of her duties[,] and her neglect of duty, misuse of office, or incompetence in the performance of her duties has had a material adverse effect upon thе conduct of the office,” after Williams fired approximately half of the personnel in the Clerk‘s office due to their failure to support her 2015 reelection campaign.
The Petition included 50 signatures of registered voters in Montgomery County who signed “under penalty of perjury” that the statement, “you believe sufficient grounds exist under Virginia law to remove Erica Williams from the office of Clerk of Court of Montgomery County, Virginia,” is “true and correct.” The Petition also included over 1,800 signatures of registered voters.1 These voters did not sign under penalty of perjury.
On October 3, 2016, by special appearance through counsel, Williams filed a motion to quash the rule to show cause. She alleged that the Commonwealth2 failed to comply with
The circuit court held a hearing on October 17, 2016. Williams argued that the rule to show cause should be quashed for the reasons stated in her motion, including that portions of the Petition did not incorporate the Grounds for Removal, and that the 1,800 signatures on those pages were not made under penalty of perjury. In respоnse, the Commonwealth argued that only one signature under penalty of perjury was required on the Petition according to an opinion of the Attorney General, 1989 Op. Atty. Gen. Va. 221, 1989 Va. AG LEXIS 11 (Jan. 25, 1989). It asserted that the signatures of ten percent of the registered voters did not need to be made under penalty of perjury under
The circuit court issued an order, on October 26, 2016, regarding the motion to quash. It found that, “[d]espite the use of different forms with different formats,” the Petition was a single filing, and that the Petition set forth the grounds for removal with sufficient accuracy and detail under
The Commonwealth appeals the granting of the motion to quash and the dismissal of the Petition. The following assignment of error was granted:
The Trial Court erred in dismissing a petition for removal of an elected official pursuant to Code Section 24.2-233 et seq. on the grounds that the entire ten percent of registered voters signing the petition must do so under penalty of perjury.
ANALYSIS
The Commonwealth argues that the circuit court erred by incorrectly merging the separate requirements of
When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature‘s intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretatiоn that will carry out the legislative intent behind the statute.
Id. (internal citations and quotation marks omitted).
Furthermore, because “a proceeding to remove a public officer [is] ‘highly penal in nature[,]’ . . . the statute [governing such a proceeding] must be strictly construed,” which means that those seeking the removal of the elected official must comply fully with the statutory requirements, and can neither add to nor subtract from those requirements. Commonwealth ex rel. Davis v. Malbon, 195 Va. 368, 377, 78 S.E.2d 683, 688-89 (1953) (concluding that the removal of an officiаl could only be based on the grounds enumerated in the removal statutes); see also 3232 Page Ave. Condo. Unit Owners Ass‘n v. City of Va. Beach, 284 Va. 639, 645, 735 S.E.2d 672, 675 (2012) (explaining that eminent domain statutes are strictly construed, that therefore “a locality must comply fully with the statutory requirements when attempting to exercise this right,” and that the plain meaning of the statutes determined those statutory requirements).
Article 7 of Chapter 2 of Title 24.2 of the Code of Virginia provides the рrocess for the removal of “all elected or appointed Commonwealth, constitutional, and local officers, except officers for whose removal the Constitution of Virginia specifically provides.”
Upon petition, a circuit court may remove from office any еlected officer or officer who has been appointed to fill an elective office, residing within the jurisdiction of the court:
1. For neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office;
. . . .
The petition must be signed by a number of registered voters who reside within the jurisdiction of the officer equal to tеn percent of the total number of votes cast at the last election for the office that the officer holds.
A petition for the removal of an officer shall state with reasonable accuracy and detail the grounds or reasons for removal and shall be signed by the person or persons making it under penalties of perjury. . . .
As soon as the petition is filed with the court, the сourt shall issue a rule requiring the officer to show cause why he should not be removed from office, the rule alleging in general terms the cause or causes for such removal. . . . Upon return of the rule duly executed, unless good cause is shown for a continuance or postponement to a later day in the term, the case shall be tried on the day named in the rule and take precedence over all other cases on the docket. If upon trial it is determined that
the officer is subject to removal under the provisions of § 24.2-233, he shall be removed from office.
The plain language of
We recognize that
We note that our holding in Johnson v. Woodard, 281 Va. 403, 707 S.E.2d 325 (2011), did not address these distinctions in
In deciding this matter, we have also given respectful consideration to the opinion of the Attorney General concerning the interpretation of the predecessor statutes to
We conclude that the Attorney General opinion did not strictly limit its analysis to the language of the Removal Statutes, because the Attorney General distinguished between those who sign a petition for the removal of an elected officer and those who draft the statement of thе grounds for removal that is part of such a petition, but the statutes contain no such distinction. See, e.g., Williams v. Augusta Cty. Sch. Bd., 248 Va. 124, 127-28, 445 S.E.2d 118, 120 (1994) (finding unpersuasive opinions of the Attorney General concerning the interpretation of a statute when they did not address subsequent statutory amendments and recodifications, and proceeding to interpret a statute
Moreover, to the extent that the General Assembly may have acquiesced in the Attorney General‘s opinion by not making substantive changes to the Removal Statutes when it recodified them in 1993, any such acquiеscence does not override the plain language of the statutes. See, e.g., Hampton Rds. Sanitation Dist. Comm‘n v. City of Chesapeake, 218 Va. 696, 701-02, 240 S.E.2d 819, 822-23 (1978) (noting that it was unnecessary to resort to alleged legislative acquiescence when a statute was unambiguous).
CONCLUSION
The Petition failed to comply with the requirement dictated by the text of
Affirmed.
JUSTICE McCULLOUGH, with whom JUSTICE POWELL JOINS, dissenting.
Virginia has long been blessed with many talented and conscientious officials who ably labor for the public good. Human fallenness being what it is, however, accountability mechanisms are necessary to protect Virginians in the rare instances when their public officials go аstray. Because I disagree with the majority‘s interpretation of the applicable statutes, and because I fear that the majority‘s interpretation will have baleful consequences on the accountability of our public officials, I respectfully dissent.
For the majority, the act of signing the petition means that the signer is also a “maker” of the petition. First, as to the “making” of the petition,
A petition for the removal of аn officer shall state with reasonable accuracy and detail the grounds or reasons for removal and shall be signed by the person or persons making it under penalties of perjury.
The persons making the petition are the moving parties behind the petition, those who have crafted or made the allegations in the petition for removal. They must sign it under penalty of perjury.
Second, obviously recognizing that a few disappointed partisans or malcontents should not disrupt the smooth functioning of government, the General Assembly requires that the persons making the petition obtain support in the form of signatures before a court will inquire into the alleged malfeasance of the elected or appointed official.
The petition must be signed by a number of registered voters who reside within the jurisdiction of the officer equal to ten percent of the total number of votes cast at the last election for the office that the officer holds.
This signature requirement could not be more plain. It says nothing about signing under penalty of perjury. The majority erroneously imports that requirement, as it exists only in the language of
The majority‘s interpretation renders the phrase “by the person or persons making it” entirely superfluous. Under the majority‘s reading,
A petition for the removal of an offiсer shall state with reasonable accuracy and detail the grounds or reasons for removal and shall be signed by the person or persons making it under penalties of perjury.
We ordinarily resist a construction of the statutes that would render a portion of the statute superfluous. “Words in a statute should be interpreted, if possible, to avoid rendering words superfluous.” Cook v. Commonwealth, 268 Va. 111, 114, 597 S.E.2d 84, 86 (2004) (collecting cases). This is so because, as we have long recognized, we must
Read together then, and applying the interpretive principles noted above,
It is hard to believe that the General Assembly was unaware of the practical difficulties of recalling an elected or appointed official. First, the makers of the petition must step forward and allege what the public official has done. These individuals are subject to a perjury prosecution for any lies or fаbrications. Perjury is no small matter. It constitutes a Class 5 felony,
As a practical matter, few citizens closely follow the actions of their local elected officials. Ten percent of the number of citizens who voted at the last election might be willing to sign a petition if they become persuaded that a court needs to inquire into plausible allegations of malfeasance or incompetence leveled by what appears to them to be concerned citizens. Asking these persons, most of whom will know nothing about the particular allegations raised, to sign under penalty of perjury will act as a significant deterrent to garnering the necessary number of signatures. I fear that grafting a requirement into
a petition for removal to be prosecuted for perjury if the allegations in the petition turn out to be false. If that is a fanciful prospect, then, it is fair to ask, exactly what is the point of making the residents of the county who are not the instigators or “persons making” the petition sign it under penalty of perjury?
In my view, the Attorney General‘s longstanding сonstruction of the statute was the correct one, and I would adhere to it.
Notes
Any officer appointed to an office for a term established by law may be removed from office, under the provisions of § 24.2-233, upon a petition filed with the circuit court in whose jurisdiction the officer resides signed by the person or a majority of the members of the authority who appointed him, if the appointing person or authority is not given the unqualified power of removal.