Precedent is against petitioners who want to dump Dumler

Albemarle County Supervisor Chris Dumler as he entered the Albemarle County Circuit Courthouse to accept a plea deal in January. Photo by Graelyn Brashear. Albemarle County Supervisor Chris Dumler as he entered the Albemarle County Circuit Courthouse to accept a plea deal in January. Photo by Graelyn Brashear.

The petition to remove Albemarle County Supervisor Chris Dumler from office went before a judge for the first time last week, but the effort to force out the Scottsville representative faces an uphill battle.

The petition effort, spearheaded by Scottsville resident Earl Smith, invoked a little-known statute of the Virginia code that allows residents to ask a judge to remove an official if they gather signatures totaling 10 percent of the voters in a precinct’s most recent election.

Smith collected 580 names, far more than the 372 he needed. It’s not personal or political, he said—he feels for Dumler, and thought he’d done a fine job as supervisor. But when he pleaded guilty to misdemeanor sexual battery in January, Smith said, he proved himself unworthy of office.

“You took the trust and the faith and the energy of the public, and you threw it away for a bad choice in your personal life,” said Smith.

But that might not satisfy Virginia’s very specific rules on dumping officials. Besides conviction for a few specific marijuana offenses or hate crimes, the petition statute says only “neglect of duty, misuse of office, or incompetence” that results in “a material adverse effect upon the conduct of the office” counts as grounds for dismissal by a judge. The petition signed by hundreds of Dumler’s frustrated constituents cites only his “admitted and documented questionable behavior.”

Judge Paul M. Peatross scheduled a hearing in the case for April 29 and a bench trial for May 20. Lynchburg Commonwealth’s Attorney Michael Ducette, called in as a special prosecutor to represent the people’s argument in the case, said he’ll soon file specific claims clarifying the petition.

Dumler, reached for comment after he appeared in court with his lawyer on Tuesday, sounded confident. “I look forward to seeing that,” he said of Ducette’s filings, “to see what, if anything, besides my conviction is meant by ‘admitted questionable behavior.’”

If the petitioners do succeed, they may be the first to do so in nearly 90 years. The only case legal experts have pointed to where a judge accepted a petition and threw out a Virginia elected official was in 1924.

So why is it apparently so hard to kick sitting politicians to the curb in the Commonwealth? Some blame the Founding Fathers’ aversion to direct democracy—recall elections, ballot initiatives, and the like.

“They were quite confident that you didn’t want people to vote directly on policy,” said UVA law professor Michael Gilbert, and their Federalist fingerprints are still all over the state code.

“Recall culture” is much more common in Western states, many of which have constitutions penned during a wave of populist sentiment that washed over the country in the late 1800s. But since direct voting essentially undermines the power of elected officials, few established government bodies will opt for it down the line, said Gilbert, and Virginia remained old-school.

The last decade has seen a number of high-profile efforts to invoke the state’s petition statute. Voters in Chesterfield, Gloucester County, and Harrisonburg have all attempted to oust local leaders, with no suc-
cess—one petition was tossed out for procedural reasons, and two officials resigned before a judge ever ruled in their cases. Still, the petitions have kept coming. Ducette said he’d never encountered one in 29 years of practicing law, and he’s now working on two removal cases: Albemarle’s, and another in Sussex County.

Hank Martin hopes that means the state legislature will sit up and take notice. A lifelong county resident who calls himself a Constitutionalist and frequently writes for conservative radio host Rob Schilling’s blog, Martin helped draft Smith’s petition, and said that if the state code effectively blocks their effort, it’s time for Virginia to change its laws.

“If you can shut the voice of the people up now, the system is broken,” he said.