A correction has been made to this article.
WINCHESTER — A dispute over publication of a legal notice could kill a Winchester ballot referendum before a single vote is cast.
The referendum in question asks city residents if they want City Council to continue appointing members to the Winchester School Board or if board seats should become elected positions.
Virginia law requires that ballot issues be properly advertised in a community’s newspaper of record — in this case, The Winchester Star — on a weekly basis beginning at least three weeks before an election.
Roya Milotte, chief organizer of a petition drive that led to the School Board referendum being placed on the Nov. 5 ballot, has been informed by the Winchester Circuit Court Clerk’s Office that she is responsible for paying for the newspaper ads because she filed the petition with the court, though the Clerk’s Office is responsible for placing the ads. Some officials, however, believe the Clerk’s Office is responsible for paying for the ads.
Milotte, who paid about $225 of her own money to file the petition, said on Monday she cannot afford the $782.20 cost of publishing the notice in The Star three times starting Oct. 15, and she is not certain of the legality of seeking contributions from other people to pay the amount.
Even if the notice is published, the referendum’s fate might be in jeopardy because of how the notice is worded, according to State Board of Elections information.
The notice submitted for publication in The Star by the Clerk’s Office is a copy of the July order issued by Winchester Circuit Court Judge Alexander Iden authorizing that the referendum appear on the Nov. 5 ballot. It is labeled “Roya Dawn Milotte, Petitioner vs. School Board — Winchester City.”
Winchester Voter Registrar Elizabeth Martin said the notice should not be presented as a legal dispute between two parties, but rather as public information for the city’s registered voters. And, based on her understanding of the law, the Clerk’s Office should pay for the ads.
“Don’t treat it like somebody’s personal lawsuit or divorce,” said Martin, who provided The Star with a referendum notice published in 1992 in Bristol that uses state-approved wording. It is labeled “Order of Publication” and is comprised of a single sentence that describes the referendum and tells voters when it will be on the ballot.
The notice provided to The Star by Winchester Circuit Court Deputy Clerk Will Gardner is seven paragraphs long and includes details about the submission of petition signatures and instructions on how the referendum should be advertised. Due to the length of the notice, the total fee to advertise it in The Star three times over three consecutive weeks is $782.20. A notification similar in length to the Bristol referendum notice would cost an estimated $128.70 to run over the same three-week schedule.
This is the first time Winchester has had a citizen-initiated voter referendum on the ballot, which is responsible for some of the confusion.
The ballots with the referendum question have already been printed. However, if the referendum isn’t properly advertised to the public in advance, the voting results could be deemed invalid.
Gardner, who is handling the referendum advertisement because Winchester Circuit Court Clerk Terry Whittle retired on Oct. 1, asked a judge to settle the billing dispute. On Monday morning, 26th Judicial Circuit Court Judge Kevin Black ruled that Milotte is responsible for paying for publication of the notice, while the clerk’s office is responsible for placing the ad.
According to the State Board of Elections, there is no mechanism to appeal Black’s decision.
Martin disagreed with the judge’s ruling and said, “This will be a precedent statewide.”
Martin added that she has found nothing in Virginia law that says a citizen who filed for a voter referendum is also responsible for paying for legal notices to advertise it. Also, the information packet prepared by the State Board of Elections for people who want to petition for a voter referendum makes no mention of citizens being held responsible for payment of ads.
Due to conflicting information regarding advertisement of the referendum, Gardner said on Monday afternoon he is still seeking clarity on how to proceed. He is scheduled to meet today with City Manager Eden Freeman and a representative from the law firm of Litten and Sipe, which has been contracted to serve as the city’s attorney.
Gardner, a Democrat who is running against Republican Tara Helsley in the Nov. 5 election for Winchester Circuit Court Clerk, said it was never his intention to interfere with the voter referendum for an elected School Board.
“Not at any time or any point,” he said. “I’m just going by the book.”