In one of the higher profile civil appeals before the Virginia Supreme Court in the past year, On March 4, 2011 the Justices relieved the petitioners who filed the case of Johnson v. Woodard of the $2000 per person sanction ordered by the Circuit Court Judge. Although this ruling will likely be heralded as a victory for open government activists the specific outcome of this case rests entirely on the nuances of statutory interpretation.
The opinion in the case can be found here:
Basic factual background
Having no personal knowledge of the accuracy or truthfulness of the allegations made against the Gloucester County Supervisors, the following is a brief recitation of the facts: The petitioners in this case are individual citizens attempting to remove four of the seven members of the Gloucester County Board Supervisors. The petitioners utilized Va. Code § 24.2-233 to petition the court to remove the Supervisors. Generally speaking, Va. Code § 24.2-233 allows citizens to petition for removal of elected officials in Virginia due to neglect or deliberate misuse of office. It is essentially a method of bringing impeachment proceedings. In reality, this “impeachment” is brought by private citizens but then prosecuted by the Commonwealth of Virginia. Va. Code § 24.2-235 sets the terms for how such an action is filed. In short, under Va. Code § 24.2-235 the initiating document in any case under Va. Code § 24.2-233 can be signed and filed by private citizens.
In this particular case, after the petition was filed a special prosecutor was assigned to prosecute the case. The special prosecutor decided the matter was no longer worth pursuing and decided to drop the case via a procedure in Virginia called a nonsuit. The Supervisors, noticeably dissatisfied with having to defend themselves at all, requested sanctions against the citizens who filed the initial petition. The Circuit Court Judge granted sanctions of $2000 against each of the citizen petitioners. Before doing so the Judge granted the nonsuit and left the matter of sanctions open. Circuit Court Judge Westbrook J. Parker did not grant sanctions until almost seven months after the order dismissing the case by nonsuit was entered.
Two issues on appeal
The Supreme Court addressed only two issues on appeal. The first is whether the Circuit Court had the power to delay determination of the sanctions issue more than 21 days after entry of the nonsuit order. The second issue is whether sanctions are allowed against the filing petitioners in a case under Va. Code § 24.2-233. It is important to note that the Supreme Court did not address whether the behavior of the petitioners was worthy of sanctions.
Delayed grant of sanctions
Under Virginia rule of the Supreme Court 1:1 a Circuit Court retains jurisdiction over final orders for only 21 days. There are some major exceptions to this rule such as clerical errors, and instances where a judgment was obtained via perpetration of fraud on the court. In this case, Judge Parker, in the nonsuit order, specifically stated that the issue of sanctions was being preserved for later adjudication. Under previous jurisprudence the Supreme Court has suggested that such a preservation of power is likely allowed. In this case, the Supreme Court determined that the Circuit Court had the power to enter sanctions after 21 days from entry of the nonsuit order. Although politically and for purposes of the news cycle this outcome is far less interesting, having this clear Supreme Court decision on this issue may have far reaching long-term effects on litigation in Virginia state courts.
Petitioners are not parties
The Supreme Court then addressed whether the petitioners in the underlying case constituted parties under Virginia's sanctions statute. In Virginia sanctions are generally not granted under traditional notions of contempt of court, instead sanctions are governed by a specific statute written into the Virginia Code. Va. Code § 8.01-271.1 governs the circumstances in which sanctions are allowed. The Supreme Court in pages 8 to 13 of the opinion performs a statutory analysis reviewing in some instances line by line how Va. Code § 8.01-271.1 is written. In the end the Supreme Court makes two major determinations: one, in a case under Va. Code § 24.2-233 the Commonwealth of Virginia is the actual party in interest seeking removal of the elected official, and the petitioners have no control over the case after it is filed, two, Va. Code § 8.01-271.1 only applies to parties to the litigation. These two determinations are the only reason the award of sanctions was overturned. The Supreme Court neither said that the petitioners’ claims had merit, nor that the petitioners’ claims were meritless. Essentially the sanctions were overturned based on a technicality.
What does this mean
This means a number of things. Judges can essentially draft around Virginia rule of the Supreme Court 1:1, and avoid the 21 day rule, a rule that is considered largely sacrosanct in Circuit Court proceedings. Citizens believing their local elected officials have committed impeachable offenses cases under Va. Code § 24.2-233 may file cases without fear of being sanctioned under Va. Code § 8.01-271.1. Yet, those same petitioner's lack of control over the preceding under Va. Code § 24.2-233 has been spelled out in Supreme Court case law. Finally, politicians feeling that petitioners under Va. Code § 24.2-233 have filed a case with absolutely no merit will have to pursue a separate civil lawsuit, under malicious prosecution, abuse of process, or some other theory to potentially recover costs of defense. If such a lawsuit were ever filed, that lawsuit would allow the former petitioners, now defendants, to expose substantial information regarding the local politicians during the discovery process. I doubt any such local politician will want to expose themselves voluntarily to such a broad civil discovery process, and hence we will likely never see such a lawsuit.