I write to respond to last week's letter from Senators Surovell and Ebbin and Delegate Krizek, which was submitted in response to my letter published in the June 27 Gazette. My prior letter requested that these representatives comply with their agreement to introduce legislation at the next full session to fix a problem with State laws concerning the procedure to remove elected officials from office. In essence, the current laws were interpreted in a 1989 opinion of Virginia's attorney general to not require registered voters signing a petition seeking removal of an elected official to sign the petition under penalty of perjury. In 2018, the Virginia Supreme Court ruled that in fact those voters are, in fact, required to sign the petition under penalty of perjury.
In my prior letter, as pointed out in the representatives' letter, I inadvertently misspoke when I said the Supreme Court had required notarization of voter signatures rather than only being required to sign under penalty of perjury without notarization. However, this is a distinction without a difference.
Under Section 24.2-233 of the Virginia Code, an elected official may be removed from office as a result of filing of a petition signed by 10% of the number of registered voters who voted in the most recent election for that office. Grounds for removal include neglect of duty, misuse of office, incompetence or commission of a crime. People who lead the effort to seek removal conduct research to find the facts and from those facts determine appropriate grounds for removal which they state on the petition. Those people have personal knowledge, from their research, of the facts supporting those grounds for removal and are the "persons making" the petition as described in Section 24.2-235 who are required to sign under penalty of perjury that they believe the allegations made against the elected official are true, but the voters who are asked to sign the petition are unlikely to know those facts. As such requiring the voters to sign under penalty of perjury concerning facts outside their personal knowledge is quite coercive and will make it difficult if not impossible to find a sufficient number of voters to sign the petition.
The representatives' letter states: "All other voters signing such a petition must sign under penalty of perjury and that can be accomplished by a simple statement at the top of each petition as is currently done with driver’s license applications ..." However, when a citizen signs a driver's license application under penalty of perjury, they have personal knowledge of the facts in the application, including their name, address, date of birth, insurance information, etc.
We often hear the statement "signed under penalty of perjury," but what does it mean? Under Section 18.2-434 of the Virginia Code, commission of perjury is a criminal felony. Who in their right mind would sign, under penalty of perjury, a petition seeking removal of an elected official, where they don't have personal knowledge of the facts? No one. Thus, under the Virginia Supreme Court's 2018 interpretation of Sections 24.2-233 and 235 of the Virginia Code, our elected representatives are invulnerable to removal for cause, unless they commit a serious publicly reported crime.
The legislative fix is as simple as can be, merely re-writing the statutes to make clear that the registered voters asked to sign the petition are not required to sign under penalty of perjury, as was the case as the statutes were interpreted for 29 years based upon the 1989 attorney general opinion. I checked with the Clerk's offices for the State Senate and House of Delegates as well as the offices of Delegate Krizek and Senator Ebbin. They all confirmed that Senators and Delegates can pre-file an unlimited number of bills prior to commencement of the 2020 regular legislative session. As such, filing a bill to clarify these statutes will not require bumping of another bill these representatives would like to file.
I spoke to Delegate Krizek last week. His understanding was that the requirement to sign under penalty of perjury was in verification that the person signing is actually that person. My understanding is that signatories signing under penalty of perjury are stating that they believe the allegations in the petition are true. Voters should not have to wonder which interpretation is correct, in peril of a Court interpreting the law in an adverse way. To resolve the issue, Section 24.2-235 should be amended after the first sentence to add the following: "Nothing in this Section or Section 24.2-233 shall be interpreted to require the registered voters signing the petition to sign it under penalty of perjury. The 'person or persons making it' identified in this Section are the person or persons submitting the petition to a Court of competent jurisdiction who have knowledge of the allegations set forth in the petition and must sign under penalty of perjury, not the registered voters." That's it.
Accordingly, I reiterate my request that these representatives, Delegate Krizek and one or both of Senators Surovell and/or Ebbin fulfill their agreement to file corresponding bills to address this issue. I predict they will be approved virtually unanimously and our representatives can wear the mantle of ensuring accountability of our elected officials. The Virginia Supreme Court has removed our safety net protecting us against corrupt and incompetent politicians and it is up to the General Assembly to restore it.
H. Jay Spiegel