Gloucester 40 attorney: ‘This must not happen in Virginia’
Virginia Supreme Court hears arguments on sanctions levied against 40 Gloucester residents
By Matt Sabo, Daily Press – 1/11/2011
RICHMOND — Arguing before the Virginia Supreme Court on Tuesday, an attorney for the Gloucester 40 said it’s not surprising to read in a newspaper about people having their rights to political speech protections violated.
But Americans are accustomed to reading about it happening elsewhere in the world, said Virginia Beach appellate attorney Steve Emmert in his closing argument.
“This kind of thing must not happen in America and it must not happen in Virginia,” Emmert said.
A six-member panel of the state’s highest court heard arguments from Emmert, who is representing 40 Gloucester residents who appealed sanctions of $2,000 apiece imposed by Judge Westbrook J. Parker after their failed attempt to remove four Gloucester supervisors from office in 2008.
The Supreme Court also heard arguments from Bill Hurd, an attorney representing Gloucester County supervisors Bobby Crewe, Michelle Ressler, Gregory Woodard and ex-supervisor Teresa Altemus. Crewe, Ressler, Woodard and Altemus were in court to hear the arguments.
Hurd argued that the $80,000 in sanctions should stand because the 40 Gloucester residents abused the judicial system for political purposes. The money would be payable to Gloucester County, but hasn’t been paid while the case is under appeal.
“These people abused the judicial system in order to overturn an election,” Hurd said.
Hurd also stated that Parker found the petitions filed by the Gloucester 40 were “groundless” and there is “no constitutional protection for these petitioners,” he said.
Emmert argued the General Assembly set up a means to remove public officials from office and the petitioners were following those guidelines.
The Virginia Supreme Court is expected to issue an opinion on the case in seven weeks.
The Gloucester case was the last of seven cases on the docket. In Supreme Court proceedings, each side is given 15 minutes to present its case and answer questions from the justices.
The case was heard by justices Lawrence L. Koontz Jr., Cynthia D. Kinser, S. Bernard Goodwyn, LeRoy F. Millette Jr., William C. Mims and Senior Justice Harry L. Carrico, who made it to his seat during the hearing on the previous case. Just prior to the Gloucester 40 hearing, Justice Donald W. Lemons, who had heard the six prior cases, left his seat and did not return.
Mims asked the bulk of the questions during the hearing. The former Virginia Attorney General, Mims was familiar with the Gloucester 40 case prior to being named to the state’s highest court last year.
Acting in his capacity as Attorney General, Mims issued an advisory opinion on Oct. 19, 2009, that said Altemus, Crewe, Ressler and Woodard would not be in violation of state conflict of interest laws if they voted to have Gloucester County taxpayers pay their legal fees. But Mims also put a disclaimer in the opinion.
He wrote that it was incumbent upon the four supervisors to “determine whether voting on the reimbursement of their legal fees will present an appearance of impropriety that they find unacceptable and that will affect the confidence of the public in their ability to perform their duties impartially.”
At one point Mims asked Hurd a question about payment of attorneys’ fees. Hurd said attorneys’ fees have already been paid by Gloucester County — after Altemus, Crewe, Ressler and Woodard voted in November 2009 to tap taxpayer funds to cover their attorneys’ fees — and the county hadn’t contested that payment.
Mims wondered why the 40 Gloucester citizens should have to pay the sanctions if the attorneys’ fees have already been paid and the county wasn’t present before the Supreme Court arguing for payment of the sanctions. He asked Hurd if it was a moot point.
It’s not a moot point, Hurd said, because Gloucester is the “jurisdiction whose democratic process was greatly disrupted.” The sanctions should stand, he said.
Emmert said the county has never made any effort to collect the sanctions. If the sanctions stand, it raises the specter of people having to pay for “groundless peaceable assembly or frivolous worship,” Emmert said.
Emmert is one of 10 judges and lawyers whose name has been forwarded to state legislators by the Virginia State Bar because he is considered qualified for a vacancy on the Virginia Supreme Court.
After the hearing, Emmert said he could tell from the judge’s questions they understood “perfectly well what the issues were.” He said it’s difficult to reconcile what happened in the Gloucester 40 case with the democratic process Americans participate in all the time.
“I feel strongly the court is likely to reverse this decision,” Emmert said.