(Posted June 18, 2020) This date has always held special significance for me, given my love of history. It’s the anniversary of one of the signal events of the Nineteenth Century, the Battle of Waterloo; and of one of the great speeches of any era, Winston Churchill’s “Finest Hour” masterpiece in 1940, right after the Fall of France four days earlier. June 18, 2020 will be significant in its own right, as SCOTUS has just handed down a fractured ruling in the DACA appeal.

But our eyes are on the banks of the James, where today the Supreme Court of Virginia hands down a published opinion and a published order. We’ll start with the opinion.


Public officials

For understandable reasons, there aren’t many judicial opinions interpreting the Code provisions for removing public officials. The justices take up such a case in Townes v. State Board of Elections, involving the removal of two members of the Hopewell Electoral Board. The State Board petitioned the local circuit court to remove two of the Electoral Board’s three members for various acts of mis- or malfeasance, including FOIA violations and irregularities in the forms of local ballots.

Because there’s so little caselaw, the circuit court had to feel its way around in the dark on certain procedural matters. Those rulings are the basis of today’s decision, as follows:

  • The burden of proof in removal proceedings is on the Commonwealth, as the moving party, and that burden requires proof by clear and convincing evidence. This is because these proceedings are quasi-criminal.
  • But since they’re technically civil proceedings, discovery is available under Part 4 of the Rules of Court.
  • The complaint for removal is subject to normal notice-pleading requirements. The petition need not specify each alleged violation as long as it encompasses a class of them and gives the respondents reasonable notice of what’s alleged.
  • Specific to this case, the Supreme Court rules that the respondents should be permitted to adduce evidence of what training they received from the State Board, as that meets the test of relevance to their defense.
  • Finally, the Supreme Court rules that evidence of the political party affiliation of witnesses is not admissible, as its high prejudicial effect clearly outweighs any possible probative value.

The circuit court, after receiving a jury verdict on the facts, had removed the Election Board members. The Supreme Court today reverses that and remands the case to circuit court, where the Commonwealth may retry the matter if it chooses.



On Tuesday, the court issued a published order in Barrett v. Minor. This domestic-relations litigation has frequent-flyer miles in the appellate system. Barrett, who is a disbarred former attorney, has pursued repeated appeals to the CAV and on to the Supreme Court against his former wife.

On two prior occasions, the justices have dismissed his appeals for Rule 5:17(c)(2) violations. Specifically, he didn’t set out how his case presented a matter of significant precedential value, and that’s mandated by the rule. Today, the justices issue a three-strikes order, dismissing this appeal for the same reason and imposing sanctions against Barrett, citing “a long series of habitually frivolous litigation.”

The sanctions imposed are noteworthy. There’s a modest award of attorney’s fees in favor of Minor, but the real sanction is a pre-filing injunction. The court prohibits Barrett from filing “any petition for appeal, motion, pleading, or other paper against Minor” unless he either hires a licensed Virginia attorney to do so, or obtains leave of court.