“The Gloucester Forty” and the Right to Petition

Every Assembly session features a side story which probably deserves its own novel.

This year, I would nominate the story of the “Gloucester Forty.”  I have no involvement in Gloucester County and no first-hand knowledge of the facts.  However, I heard hours of testimony on this in the “P&E” Committee and here’s what I understand happened:

There are citizens of Gloucester County unhappy with their local Board of Supervisors.  As a result, the citizens launched a petition drive to have certain Board members removed from office.  After a couple false starts, the petitions ended up being filed as a quasi-lawsuit in the local Circuit Court.  The citizens were not represented by legal counsel but rather did this on their own.

Now Virginia does not have a “recall” petition in its Constitution like, say, California.  Instead, the “removal” powers are based upon specific criminal acts.  Being incompetent or arrogant is not such an act.  Otherwise, we’d all be in trouble.

The Circuit Court judge eventually dismissed the petition for its failure to conform with Virginia law.  He also issued sanctions against the “petitioners” (or at least those named as parties) in the amount of $80,000.  The sanctions were awarded under the Virginia Code which permits penalties on lawyers or parties who file legal actions for an “improper purpose” or without a sufficient legal or factual basis.

Again, the citizens here are not lawyers.

As a direct result of this situation, the two legislators representing Gloucester — Delegate Harvey Morgan (R-Gloucester) and Senator Tommy Norment (R-James City) — filed bills with the General Assembly to clarify that citizens cannot be penalized for filing petitions for a political purpose.  Those bills were later consolidated into Norment’s SB 1394, which passed easily.

The bill reached the Governor.  Rather than signing it, he added an amendment stating that a judge could still award sanctions if the petitioners “acted with a malicious purpose.”  Sounds innocent, right?

Not to me.

The right to petition is the oldest right in Anglo-American jurisprudence.  It was first enumerated in the Magna Carta of 1215.  Our Founding Fathers recognized it in 1789 via the First Amendment, which states that the American people “have a right to petition their government for a redress of grievance.”  Neither document qualifies this right.

What does it mean?  

To me, the right of petition historically means that citizens can approach the sovereign free of legal consequence.  In Ameria, it means that we can make requests of our government without fear of financial or criminal penalty, even if the requests are foolish, bizarre or unsuccessful.  Whether the petition is motivated by “malice” or not is irrelevant.  It is our right.

This situation is different from the law of defamation where a false statement made maliciously can form a cause of action.  A petition is not an ordinary public statement — it is a higher category of protected political speech.

While I like and respect the Governor, I disagreed with him on this one.  So did most my colleagues.  The Governor’s amendment was killed on a vote of 32-7.  It was the only amendment that was rejected by such a one-sided margin.  Therefore, the bill now returns to the Governor’s desk — without amendment — for his signature or veto.  Let’s hope he signs it. 

Let’s make Virginia a “safe harbor” state for political petitions. 


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