Gloucester 40 had no say in prosecution, cannot be held liable for fines, attorney argues

by Quinton Sheppard - Posted on Jul 14, 2010 - 04:33 PM

An attorney on behalf of 40 Gloucester residents filed a reply July 2 in the Virginia Supreme Court arguing against a brief that stated the 40 should pay fines related to circulating petitions to remove four county supervisors from office.

L. Stephen Emmert, appellate attorney, representing the 40 residents, wrote in his reply that, "The supervisors have correctly characterized this quasi-criminal proceeding as a removal prosecution and it is in that light that this court should view the citizens." He said the only parties to this removal prosecution are the commonwealth itself and the supervisors.

Attorneys on behalf of the four supervisors argued that court did not abuse its discretion in imposing sanctions on the petitioners because the 40 petitioners were party to the removal effort.

Emmert wrote that upon receiving the petitions, the trial court issued the required show-cause orders in the name of the commonwealth, not the petitioners. He wrote that the trial judge disqualified the Commonwealth’s Attorney (Robert "Bob" Hicks) and a special prosecutor took over. "That special prosecutor used his discretion alone to nonsuit the case," Emmert wrote. "Neither the 40 citizens nor the thousands of others who signed the forms controlled the case."

He wrote that the pleadings and briefs filed in the case by the special prosecutor were signed in the name of the commonwealth alone, not the citizens. In addition, Emmert wrote that the special prosecutor requested the nonsuit in the name of the commonwealth. "He correctly understood that his client was the sovereign and not a collection of individuals," he wrote.

Emmert also made the point that the citizens have standing to contest the awarding of attorney’s fees because the supervisors argue that the citizens are "only being required to pay sanctions and those sanctions are not payable to the Four Supervisors. They are payable to Gloucester County."

Emmert wrote that those words illustrate the problem and show why the citizens have standing. "Without conceding that the citizens were parties to the removal prosecution, if any sanctions were to be paid, they should have been paid to either the Commonwealth or the supervisors," Emmert wrote. "Instead, the trial court ordered the sanctions paid to a non-party, Gloucester County."

In conclusion, Emmert wrote, "The purpose of any sanctions regime is to control the behavior of the party litigants and their lawyers. By law, if a person cannot control the case and direct his lawyer’s actions, then he is not a party. Because the trial court applied these sanctions to persons who could not control the litigation before it, these sanctions were an abuse of the trial court’s discretion."

The 40 citizens circulated petitions to remove former Gloucester County Board of Supervisors member Teresa Altemus and current supervisors Bobby Crewe, Michelle Ressler and Gregory Woodard from office following accusations of malfeasance and misuse of office.

The case is expected to be heard before Virginia’s Supreme Court this fall.