Martinsville and Purcellville cases highlight how Virginia’s law to remove elected officials can be applied quite differently. Is that good or bad?

Back in 1952, if you knew the right people and the right places, you could have quite the time at Virginia Beach.

At one particular trial, the prosecutor paraded 27 people through the witness stand, all of whom testified that in the summer of ’52 they “visited one or more of the twelve establishments” and “observed flagrant violations of the gambling laws and the illegal sale of intoxicants.” More specifically, they saw “ten to fifty persons, in various rooms participating in, or observing others playing roulette, dice, bingo, skillo or fortune.”

These seaside gambling dens were both well-known and yet hard to find, at least if you were in law enforcement. Roger Malbon, the sheriff of Princess Anne County (a county now subsumed into the city of Virginia Beach), testified that “neither he nor the other officers received any cooperation or help from the parties who frequented gambling places and nip joints.” These usually employed “spotters” to keep a look-out for the law, “so that frequently when the police entered, the whiskey had been destroyed and gambling paraphernalia had been removed or hidden.”

Despite these obstacles, some in Princess Anne thought the sheriff was simply ignoring the drinking and gambling. They turned to a little-used section of state law that lays out a judicial way to remove a local office; they collected enough petition signatures to force a removal trial in October 1952. To their dismay, the jury declined to remove the sheriff. A year later, the Virginia Supreme Court looked at the case and decided not to disturb the verdict.

Until the recent case of a town council member in Purcellville in Loudoun County, that 1952 trial of Sheriff Malbon was apparently the last time a removal trial in Virginia had gone to conclusion. (In 2013, a trial aimed at removing Sussex County Supervisor Rufus Tyler Sr. started, but he resigned after some procedural rulings went against him.) Like that Princess Anne County jury did in ’52, the jury in Loudoun County recently decided not to remove Ben Nett from office — even though he’s been indicted on six felony charges, including allegations of bid-rigging.

Another removal case is now sitting in the court system — the one against Martinsville Mayor L.C. Jones, which is awaiting review by a special prosecutor (the third prosecutor to handle this tangled case).

I’ve written two previous columns on this. The first pointed out how the state’s removal law is so broad that it has allowed for two very different processes to play out in Purcellville and Martinsville: a town councilmember under indictment allowed to stay in office pending trial in the former, a mayor facing no criminal charges suspended for two months in the latter. The second pointed out how, in Martinsville, one of the three allegations against the mayor is that he committed a crime — accepting a bribe — yet there’s no criminal charge.

I offer no special insight into either case; my questions are simply about the law — which has been used so little that not until now, with two cases unfolding at the same time, do we get to see how unevenly it can be applied. With that in mind, here are some questions that legislators might want to consider if they revisit this section of the code.

1. Should removal petitions be able to allege crimes?

The petition against Jones lays out three things, the first of which is “acceptance of a bribe.” That’s a felony, yet Jones faces no criminal charge. There are two other points in the petition, so Jones isn’t facing a removal trial for the bribery allegation alone. Still, do we want a system where ordinary people can circulate a petition accusing an elected official of a crime — and, if it’s deemed serious enough, forcing a trial? We have a criminal justice system to deal with crimes. Should we require that allegations of a crime go there? Otherwise, what are we opening ourselves up to? We live in contentious times. I invite readers to imagine the worst elements on “the other side” — however you envision the other side — circulating a petition to charge someone on your side with a crime. That ability seems ripe for misuse.

2. Should the conditions for suspending an elected official be clarified?

The law currently gives the court broad discretion in whether to suspend an elected official who is facing the removal process. That led to the situation we recently had, where a white vice mayor in Northern Virginia, who is under indictment, was allowed to stay on his council, while the Black mayor in a Southside city, who faced no criminal charges, was suspended for two months. As I wrote before, there’s nothing to suggest the Martinsville case is racially motivated, but the appearances here are not flattering. It looks like unequal justice.

Meanwhile, the General Assembly in the most recent session passed a bill aimed specifically at Purcellville to mandate that a council member facing indictment for a felony should be suspended. If that rule is good enough for Purcellville, should it be good enough to apply statewide? Of note: A removal hearing based on that law (which has already gone into effect) was heard last week, but then postponed until May 28 after Nett challenged the constitutionality of the law, so he remains in office.

Taken together, these two cases raise these questions: Should elected officials who aren’t facing indictment be eligible for suspension, as the law now allows? Or should there be more specifics written into the law about what can prompt a suspension before a trial even happens?

3. Should there be more requirements for petition signers?

When we mapped the signers of the Martinsville petition, we found that more than three-fourths of them came from a single part of town.

This can be read three ways.

On the plus side: This can be empowering for a neighborhood to be able to exert that kind of influence. It reminds elected officials that they need to take into account the needs of their entire community.

On the negative side: Maybe this gives too much power to a small group of people.

Somewhere in between: Maybe this means nothing at all.

Candidates who want to get on a statewide ballot have to collect a certain number of signatures from each congressional district. This sets a barrier for some candidates who just aren’t well-organized. Should removal petitions in communities of multiple precincts be required to have a certain number from each precinct as a way to show the widespread nature of whatever problem is being alleged? Or is that too onerous a bar to set?

4. Instead of a judicial process, should we have recall elections instead?

I think this is a fundamentally bad idea, but I also think baseball’s new rule of putting a runner on second base in extra innings is fundamentally bad, too, but the commissioner didn’t listen to me. If we’re going to ask questions about the law, we may as well ask them all. The upside of recall elections: Well, I have a hard time thinking of any, but the theory is they give people a say. The downside is that many of these are launched simply because some office-holder is unpopular. We ought to allow office-holders to make unpopular decisions because they may turn out to be wise over time. At least Virginia’s current judicial-based process sets some threshold for removing an elected official other than “we just don’t like him anymore.”

That’s four questions — which appears to be four times as many as the number of elected officials who have been removed via the trial process in Virginia, that one being Roanoke Mayor Joel Cutchins in 1911. He was accused of allowing brothels to operate openly.

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