Lynchburg Commonwealth's Attorney Mike Doucette says in the absence of case law, he has to rely on common sense to make his case to remove Dumler.
Green-jacketed Lena Seville discusses why she was removed from the courtroom with an Albemarle sheriff's deputy.
photo by lisa provence
Unlike his last appearance in court as a defendant, a freshly shaved Chris Dumler came before a judge April 29 seeking to have the petition for his removal from the Albemarle Board of Supervisors thrown out– to no avail. Judge Cheryl Higgins ruled against him in a case that has very little precedent in Virginia.
Dumler's attorney, Jessica Phillips, argued that the petition for Dumler's removal from office citing "admitted and documented questionable behavior" was too vague, and that special prosecutor Mike Doucette's bill of particulars, which specifies how Dumler's conviction of misdemeanor sexual battery had a "material adverse effect" on his ability to perform his job as a supervisor, made a "giant leap" from what was in the petition.
"Questionable behavior– we don't know what that means," said Phillips. "If it's for a misdemeanor conviction, that's not enough reason to remove him from office." Virginia law specifies the removal of elected officials who've been convicted of felonies.
The bill of particulars noted the canceling of two town hall meetings in October after Dumler was arrested for felony forcible sodomy, his inability to attend to his elected duties while incarcerated October 18, and recusing himself from voting on the Keene police gun range.
"Some supervisors have never held town hall meetings," said Phillips. She pointed out that other supervisors have recused themselves from votes, and have been unavailable to constituents while on vacation.
The alleged derelictions of duty listed in the bill of particulars are not actual duties," said Phillips. "They're having Mr. Dumler do things other members of the board are not required to do."
Special prosecutor Mike Doucette, who is commonwealth's attorney in Lynchburg, noted the paucity of case law on the removal of Virginia elected officials, and he cited a case going back to the 1920s to justify the bill of particulars that listed specifics not found in the citizen-signed petition.
He also asked the judge to rule on Dumler's motion to strike the bill of particulars first, because if the court granted it, "We can't go further and would probably non-suit it," he said. Dumler had filed a demurrer as well, and because the case hung on the bill of particulars, there would be no point in arguing the demurrer, Doucette added.
Judge Higgins asked him to argue both.
Doucette called the removal a "quasi-criminal matter" and as commonwealth's attorney, his job was to represent the commonwealth, rather than the petitioners or the victims.
"The code requires grounds for removal in detail," Doucette told Judge Higgins. With the petition only stating "admitted and questionable behavior," it was up to the prosecutor to come up with specific grounds, he said.
"If the court accepts those arguments, it's gutting the statute," protested Phillips. For instance, she objected to the item that said Dumler's one night in jail after he was arrested (and before he started serving a 30-day sentence on weekends) had a material adverse effect on his ability to perform his job.
"We're talking one day," said Phillips. "That's saying a supervisor can't take a Friday off."
Judge Higgins agreed with the defendant that the special prosectuor could be gutting the statute– but said she had to look at the motion in the light most favorable to the commonwealth, and didn't find that in this petition, which noted Dumler's "admitted and documented questionable behavior." Dumler pleaded guilty to sexual battery in a plea agreement.
For Higgins, "admitted" was the key word in her decision, she said. She made an immediate ruling and she denied the motion to strike.
In denying the demurrer, Higgins said that Dumler's being incarcerated and incommunicado, not holding town hall meetings, and resigning from several committee positions could be considered neglect of duty– although she was not ruling that it was.
Afterward, Dumler and Phillips walked through a smaller-than-usual gauntlet of four sign-carrying protesters, and declined to comment. Dumler has been serving his 30-day sentence on weekends, and he did a nine-day stint in jail earlier in April. He'll appear at his first Board of Supervisors meeting since then on May 1.
Virginia's removal law is not the same as a recall, Doucette said outside the Albemarle Circuit Court. "The removal statute is not exercised all that much to the degree that there are appellate decisions," he said "Sometimes you just have to say what is common sense."
He said he'd spent the previous day trying to find case law. And while he's been a prosecutor for 29 years, this is only his second elected-official removal case in his career. "If this was a robbery or cocaine prosecution," said Doucette, "I've got those down."
The judge ordered that the 500-plus signatures that petitioner Earl Smith collected be verified, and Dumler is scheduled to go to trial May 20.
"I'm happy she's letting it go forward," said Smith. "We're not being represented." He disputed Dumler's contention that canceling town hall meetings wasn't a neglect of duty.
"If you come on the scene and do these new things and bring us into the 21st century, and you take away those things upon which you were elected," said Smith, "you should step down."