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Citizenship and suppression in Jefferson's Virginia

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“I’ve never seen the judicial system abused so much for purely political ends,” Substitute Circuit Judge Westbrook J. Parker said. “This should not happen in America.”

An excellent summary, but not of the indictments he dismissed or the petitions he threw out. Instead, he inadvertently summarized his own judgment.

A month ago, this Virginia judge threw out petitions gathered to remove four Gloucester County supervisors. The four had also been indicted by a grand jury for the crimes that had so disturbed their constituents. The judge dismissed the indictments, too.

And to add injury to his judgmental insult, he socked members of the Gloucester County Citizens for Accountable Representation — the group that had sponsored the recall — with an $80,000 bill to cover part of the supervisors’ legal fees, apportioned to the 40 members of the organization. The amount covered over 60 percent of the legal bill the supervisors had run up defending themselves.

The petitioners might not have been in this predicament had the state of Virginia possessed what many other states do possess: A right of political recall. Instead, in Virginia, elected officials may be removed from office, before the end of their terms, only in case of some sort of criminal activity.

The recall-for-cause law was so little used in the state that it took the Gloucester activists no small amount of time trying to figure out how to word and organize the petitioning process. The state provided no forms for this eventuality.

At issue in the recall was the behavior of these board members immediately after their election. The new supervisors held closed, secret meetings. This is against the law for public officials, and it irked (to put it mildly) the people who had voted them in. But because not all of them had been sworn in, the state’s open meetings law could be said not to apply to them. And that’s where the whole thing fell apart.

Of course, had the judge in the case been a reasonable jurist and not a hide-bound lackey for the political establishment, he would not have been so offended by the activists. He would have seen that secret meetings are bad things, rightly opposed — on principle as well as “politically” — by citizens. He would also have acknowledged that, in a republic — as well as the state where Thomas Jefferson served in office — we should expect citizens to recall representatives who disagree with them.

Recalls are as American as apple pie and parades on the Fourth of July.

Unfortunately, the judge saw none of this. He saw the legitimate activity of these citizens as some sort of abuse of “power.” And he sought to redress an imbalance. $2000 per citizen activist would send the right, chilling message, he thought.

Fear and intimidation too often work. From my own case in Oklahoma, I know that even the unsuccessful prosecution of a case against citizen activists can cause other citizens to think twice, thrice, or more, about taking on the Powers That Be.

Thankfully, the story does not end there.

First, Assembly Delegates Tom Gear and Harvey Morgan and Senator Thomas K. Norment have submitted bills to prohibit judges from penalizing activists who petition to remove officials. Gear characterized the Gloucester activists as “laymen . . . doing what they thought was the right thing to do.” He characterized the judge’s ruling “as a kind of intimidation.”

On Friday, the House passed Morgan’s bill, 93-3.

Second, the Gloucester activists have found support from the ACLU, which has declared that it will write a friend-of-the-court brief on their behalf. The Thomas Jefferson Center for the Protection of Free Expression will assist.

This is not merely a local issue. It obviously affects all Virginians. And the situation reflects what many citizens face throughout the union.

In Wilkes-Barre, Pennsylvania, for instance, a fight over a firehouse led to voters petitioning to decide the issue themselves. As I explained in my daily Common Sense radio program, the mayor didn’t do the right thing. He didn’t take to the stump for his cause in an open vote. Instead, he fought and blocked the petition in court. And he got a judge to grant the town government legal fees . . . from the main activist, Denise Carey.

Fortunately, Ms. Carey appealed her case, and won. She also won damages in a federal court case against the city.

It is good to see justice triumphing on appeal. But it would be better if politicians and judges didn’t conspire to overthrow normal democratic (and republican) practice in the first place. We do not serve them, they serve us; if we, the citizens, want them gone, we have legal means at our disposal. Or, should have.

And politicians and judges should not seek to block citizens from using these means. Threats, official reprisals? These are the tools of tyrants. Public servants, on the hand, serve at our discretion. Any idea to the contrary must be opposed on principle. The suppression of democracy “should not happen in America” . . . to quote one of the oppressors. 

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