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Commonwealth v. Williams

Supreme Court of Virginia

March 1, 2018

COMMONWEALTH OF VIRGINIA
v.
ERICA W. WILLIAMS

         FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY William N. Alexander II, Judge Designate

          OPINION

          S. BERNARD GOODWYN JUSTICE.

         In this appeal, we consider whether the circuit court erred by dismissing a petition to remove an elected officer, pursuant to Code § 24.2-233, et seq., on the grounds that the petition was not signed under penalty of perjury by a number of registered voters equal to ten percent of the votes cast in the prior election for that office.

         Background

         On May 6, 2016, voters of Montgomery County filed a petition in the Circuit Court of Montgomery County 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 the 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.

         Pursuant to the terms of Code § 24.2-230, et seq. (the Removal Statutes), the circuit court issued a rule to show cause why Williams should not be removed from her position as clerk.

         On October 3, 2016, by special appearance through counsel, Williams filed a motion to quash the rule to show cause. She alleged that the Commonwealth[2] failed to comply with Code §§ 24.2-233 and -235 on various grounds, including that only 50 people signed the Petition under penalty of perjury, instead of the required ten percent of the total number of voters who voted in the prior election.

         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 response, 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 Code § 24.2-233, and that a petition only needed to be signed under penalty of perjury by those making it under Code § 24.2-235. Williams responded that the ten percent of voters who sign the Petition under Code § 24.2-233 constitute the "petitioners" who must sign the Petition under penalty of perjury under Code § 24.2-235.

         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 Code § 24.2-233. However, the court granted the motion to quash and dismissed the Petition "solely on the basis that the [P]etition was not signed by the petitioners under penalty of perjury as required by Virginia Code § 24.2-235, " because "[a]ll of the petitioners did not sign the [P]etition under penalty of perjury."

         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 Code § 24.2-233, which requires a removal petition to be signed by a number of registered voters equal to ten percent of the votes cast in the prior election, and Code § 24.2-235, which requires that the removal petition be "signed by the person or persons making it under penalty of perjury." It claims that the Attorney General previously opined that these two statutes serve two different purposes and do not require that the signatures needed to meet the ten percent threshold be made under penalty of perjury, because the perjury signature requirement is to protect the official against frivolous charges, whereas the ten percent signature requirement is to ensure public credence in the removal petition. It contends that the General Assembly acquiesced in the Attorney General's interpretation of these statutes because it did not thereafter make substantive changes to the statutes.[3]

         The assignment of error addresses the circuit court's interpretation of the Removal Statutes. A potentially erroneous legal conclusion based on the interpretation of a statute presents "a pure question of law which we review de novo." Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007).

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 ...

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