Vanover v. Commonwealth

PRESENT: Kinser, C.J., Lemons, Goodwyn, Mims, McClanahan,
and Powell, JJ., and Russell, S.J.

SCOTT A. GALLAGHER
OPINION BY
v. Record No. 111720 SENIOR JUSTICE CHARLES S. RUSSELL
September 14, 2012
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Lorraine Nordlund, Judge

GEORGE JUNIOR VANOVER

v. Record No. 111727

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Patrick R. Johnson, Judge

These appeals were separately granted and briefed, and were

argued on the same day. They present the same question of law

and are therefore considered together. The question presented

involves the interplay between the Constitution of Virginia and

Code § 18.2-308.2, relating to jurisdiction of the circuit

courts to restore rights to ship, transport, possess or receive

firearms (firearm rights) to a person who has lost those rights

by suffering a felony conviction. The question arises where the

convicted person's political disabilities have subsequently been

restored by the Governor. No material facts are in dispute.

Facts and Proceedings

A. Gallagher
 In 1985, Scott A. Gallagher was convicted of two felonies

in the Circuit Court of Fairfax County. In 2010, he sent a

petition to the Governor, pursuant to Article V, Section 12 of

the Constitution of Virginia, requesting removal of the

political disabilities resulting from his convictions. On

December 15, 2010, Governor Robert F. McDonnell entered an order

expressly restoring to Gallagher his rights to vote, hold public

office, serve on a jury, and be a notary public. The Governor's

order expressly excepted the right to ship, transport, possess

or receive firearms. Gallagher received the Governor's order

with a covering letter from the Secretary of the Commonwealth

advising him that "Governor McDonnell's action on your behalf

removes all political disabilities imposed as the result of your

felony conviction except the right to ship, transport, possess

or receive firearms, which must be restored in accordance with

Va. Code § 18.2-308.2.' "

Pursuant to that statute, Gallagher filed a petition in the

Circuit Court of Fairfax County seeking restoration of his

firearm rights. The Commonwealth's Attorney filed a memorandum

requesting denial of the petition. On July 8, 2011, the court

entered an order denying Gallagher's petition, holding that "as

[an] adult felon[, petitioner] must first receive a full

restoration of rights from the Governor and [p]etitioner has not

received a full restoration of rights." We granted Gallagher an

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appeal. The Attorney General, for the Commonwealth, conceded

error and moved this Court to reverse the circuit court's

judgment and remand the case for further proceedings.

B. Vanover

In 1968, George Junior Vanover was convicted of a felony in

the Circuit Court of Buchanan County. In 2007, Vanover sent a

petition to the Governor, pursuant to Article V, Section 12 of

the Constitution of Virginia, for the removal of the political

disabilities resulting from his conviction. On October 4, 2007,

then-Governor Timothy M. Kaine entered an order expressly

"remov[ing] the political disabilities, except the right to

ship, transport, possess or receive firearms, under which he

labors by reason of his conviction."

On January 20, 2011, Vanover, by counsel, filed a petition

in the Circuit Court of Buchanan County for restoration of his

right to "possess and carry firearms." The Commonwealth's

Attorney filed a memorandum requesting denial of the petition.

In a letter opinion, the court held that the Governor's order

removing Vanover's political disabilities expressly excluded the

restoration of firearm rights. The court ruled that this

exclusion amounted to a condition precluding the restoration of

firearm rights by the court. The court denied Vanover's

petition by order entered June 28, 2011. We awarded Vanover an

appeal. The Attorney General, for the Commonwealth, conceded

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error and moved this Court to reverse the circuit court's

judgment and to remand the case for further proceedings.

Analysis

These appeals present a pure question of law involving

constitutional and statutory interpretation. We apply a de novo

standard of review to such questions. Montgomery County v.

Virginia Dep't of Rail & Pub. Trans., 282 Va. 422, 435, 719

S.E.2d 294, 300 (2011).

Code § 18.2-308.2(A) makes it a felony for any person who

has previously been convicted of a felony to possess or

transport a firearm. Code § 18.2-308.2(B), however, provides

that the prohibitions of subsection (A)

shall not apply to . . .(iii) any person who has
been pardoned or whose political disabilities
have been removed pursuant to Article V, Section
12 of the Constitution of Virginia provided the
Governor, in the document granting the pardon or
removing the person's political disabilities, may
expressly place conditions upon the reinstatement
of the person's right to ship, transport, possess
or receive firearms.

Code § 18.2-308.2(C) then provides:

Any person prohibited from possessing,
transporting or carrying a firearm or stun weapon
under subsection A, may petition the circuit
court of the jurisdiction in which he resides for
a permit to possess or carry a firearm or stun
weapon; however, no person who has been convicted
of a felony shall be qualified to petition for
such a permit unless his civil rights have been
restored by the Governor or other appropriate
authority. A copy of the petition shall be
mailed or delivered to the attorney for the

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 Commonwealth for the jurisdiction where the
petition was filed who shall be entitled to
respond and represent the interests of the
Commonwealth. The court shall conduct a hearing
if requested by either party. The court may, in
its discretion and for good cause shown, grant
such petition and issue a permit. The provisions
of this section relating to firearms, ammunition
for a firearm, and stun weapons shall not apply
to any person who has been granted a permit
pursuant to this subsection. 1

Prior to the independence of the thirteen former British

American colonies, the power to exercise executive clemency lay

within the prerogative of the crown. 5 William Blackstone,

Commentaries *395-96. After the American Revolution, as part of

a general reaction against the unfettered exercise of executive

power, Virginia and seven other newly-independent states

restricted the exercise of that power to the Governor with the

concurrence of an advisory board or council of some kind. The

original 1776 Constitution of Virginia granted the Governor the

"power of granting reprieves or pardons" but only "with the

advice of the Council of State." The Governor was not given the

power to act alone in granting reprieves and pardons until

1
The Attorney General contends that the term "civil rights"
is employed in this subsection to permit felons convicted in the
courts of other jurisdictions, where the executive is empowered
to restore "civil rights" rather than to remove "political
disabilities," to petition the circuit court of the Virginia
jurisdiction in which they reside for restoration of their
firearm rights. We agree. See Farnsworth v. Commonwealth, 270
Va. 1, 2, 613 S.E.2d 459, 460 (2005).
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adoption of the Constitution of 1851. In the constitutional

revision of 1870, the Governor was given the additional power to

"remove political disabilities consequent to conviction of

offenses." 2 A. E. Dick Howard, Commentaries on the

Constitution of Virginia, 641-42 (1974).

Article V, Section 12 of the present Constitution of

Virginia (effective July 1, 1971) provides:

The Governor shall have power to remit
fines and penalties under such rules and
regulations as may be prescribed by law; to
grant reprieves and pardons after conviction
except when the prosecution has been carried on
by the House of Delegates; to remove political
disabilities consequent upon conviction for
offenses committed prior or subsequent to the
adoption of this Constitution; and to commute
capital punishment.

He shall communicate to the General
Assembly, at each regular session, particulars
of every case of fine or penalty remitted, of
reprieve or pardon granted, and of punishment
commuted, with his reasons for remitting,
granting, or commuting the same.

As indicated above, our constitutional history demonstrates

a cautious and incremental approach to any expansions of the

executive power, leading to the conclusion that the concerns

motivating the original framers in 1776 still survive in

Virginia. If the executive clemency power were construed to

include the restoration of firearm rights, then Code § 18.2-

308.2(C), insofar as it grants the circuit courts jurisdiction

to restore them, would not only be redundant, but would be an

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unconstitutional intrusion by one branch of government on the

powers of another. 2

There is, however, "no stronger presumption known to the

law than that which is made by the courts with respect to the

constitutionality of an act of [the] Legislature." Whitlock v.

Hawkins, 105 Va. 242, 248, 53 S.E. 401, 403 (1906).

"The Legislature represents the sovereign
authority of the people, except so far as
restrictions are enforced by the Constitution
in express terms or by strong implication. We
look to the Constitution of the State not for
grants of power, but for limitations. When
the prohibition is not found in the language
of that instrument, or in its framework and
general arrangement, there is no solid ground
to pronounce the enactment void. The
infraction must be clear and palpable." This
conclusion follows from the accepted canon of
construction applicable to the Constitution of
this State, that it is a restraining
instrument, and that the General Assembly of
the State possesses all legislative power not
prohibited by the Constitution.

Id. (citations omitted).

Article VI, Section 1 of the Constitution of Virginia

grants to the General Assembly the power to determine the

jurisdiction of the courts of the Commonwealth. The legislative

2
Article III, Section 1 of the Constitution of Virginia
provides, in pertinent part: "The legislative, executive, and
judicial departments shall be separate and distinct, so that
none exercise the powers properly belonging to the others, nor
any person exercise the power of more than one of them at the
same time."
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grant of jurisdiction to the circuit courts, in Code § 18.2-

308.2(C), to restore firearm rights falls directly within that

constitutional grant of power to the General Assembly and there

is no question of the statute's constitutionality.

We construe the term "power to . . . remove political

disabilities," contained in Article V, Section 12 of the

Constitution, not to include the power to restore firearm

rights. There is therefore no overlap or tension between

Article V, Section 12 and Article VI, Section 1, and no

violation of the separation of powers guaranteed by Article III,

Section 1 of the Constitution.

Thus, the Governor is empowered to remove political

disabilities, but not to restore all rights lost as a result of

a felony conviction. The jurisdiction to restore firearm rights

lost in those circumstances is vested solely in the circuit

courts. Strong policy considerations support that conclusion.

Statutory proceedings to consider restoration of firearm rights

involve consideration of local concerns for public safety. Such

proceedings are not ex parte, but adversarial in nature. The

Commonwealth's Attorney receives notice and has an opportunity

to be heard and to present evidence which may only be available

from local witnesses and records. An impartial fact-finder is

best situated to resolve conflicts that may arise in the

evidence and arguments.

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 Code § 18.2-308.2(B)(iii) authorizes the Governor, in the

instrument removing a person's political disabilities, to

"expressly place conditions upon the reinstatement of the

person's right to ship, transport, possess or receive firearms."

Such conditions, if imposed, would limit the circuit court's

authority to grant an unrestricted restoration of firearm

rights, but the Governor's authority to impose such conditions

does not amount to a power to unilaterally deny a petitioner the

right to petition the court for restoration of his firearm

rights, or divest the court of its jurisdiction to entertain

such a petition. In the cases on appeal, neither Governor

imposed any such conditions.

Both Governors whose acts are involved in these appeals

correctly exercised their constitutional authority. Both

removed the respective petitioners' political disabilities but

declined to restore their firearm rights and referred them to

the circuit courts for that purpose, recognizing that a two-step

process is necessary. A person convicted of a felony in

Virginia must first obtain an order from the Governor removing

his political disabilities as a condition precedent to his right

to petition the circuit court for restoration of his firearm

rights. A person convicted of a felony in another jurisdiction

may similarly satisfy that condition precedent by first

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obtaining a restoration of his civil rights from the appropriate

authority of that jurisdiction.

In Farnsworth, 270 Va. at 2, 613 S.E.2d at 460, we affirmed

the conviction of a defendant, who had been previously convicted

of a felony in West Virginia, of unlawful possession of a

firearm in Virginia by a felon. After serving his West Virginia

sentence, Farnsworth had received a document from the West

Virginia Department of Corrections stating: "Any and all civil

rights heretofore forfeited are hereby restored." In holding

that document insufficient as a defense, we observed that there

were two statutory exceptions whereby Farnsworth could have been

allowed lawfully to possess a firearm in Virginia, (1) removal

of his political disabilities by the Governor, or (2)

restoration of his civil rights by the "Governor or other

appropriate authority" followed by issuance of a permit by the

appropriate circuit court. Id.

We have concluded, for the constitutional reasons discussed

above, that firearm rights may only be restored to a convicted

felon by a permit issued by a circuit court. To the extent

Farnsworth can be read to imply that a Governor's order removing

political disabilities would be sufficient alone to restore a

felon's firearm rights, without a permit issued by a circuit

court pursuant to Code § 18.2-308.2(C), Farnsworth is expressly

overruled.

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 Conclusion

For the reasons stated, we conclude that the Circuit Court

of Fairfax County erred in ruling that Gallagher's petition must

be denied because the Governor had not given him a full

restoration of rights. We also conclude that the Circuit Court

of Buchanan County erred in ruling that Vanover's petition must

be denied because the Governor, by excepting firearm rights from

his order removing political disabilities, had placed a

condition on Vanover's right to possess firearms that precluded

the court from considering Vanover's petition. Accordingly, we

will reverse both judgments and remand the cases to the

respective circuit courts for further proceedings consistent

with this opinion.

Record No. 111720 - Reversed and remanded.
Record No. 111727 - Reversed and remanded.

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