Can a Virginian convicted of perjury serve on a jury after the governor restores his political rights, despite § 18.2-434 saying perjurers are 'forever' barred?

Plain-English summary

The clerk of the circuit court in Wise County asked a sharp question. Va. Code § 8.01-338 disqualifies felons from jury service. Va. Code § 18.2-434 is more specific (and more dramatic) about one felony: a person convicted of perjury is "forever incapable of holding any office of honor, profit or trust under the Constitution of Virginia, or of serving as a juror." When the governor restores a perjurer's political rights, does "forever" survive?

The AG concluded that "forever" gives way. Article V, § 12 of the Virginia Constitution grants the governor authority to "remove political disabilities," and the right to serve on a jury is generally considered a political right subject to restoration under that grant. A recent prior opinion of the Office, addressing the same statute's bar on holding elective office, had already concluded that the prohibition could not continue to apply once the governor restored a perjurer's political rights. The reasoning here follows a parallel path for jury service: the restoration power is constitutional and not subject to limitation by ordinary legislation. So § 18.2-434 must be read so that "forever" means "until the governor restores political rights."

The opinion notes one distinction it does not need to resolve. Unlike the qualifications to hold elective office, jury service is not governed by any constitutional provision or tied to the right to vote, so the General Assembly generally may impose limitations on jury service as it sees fit. What controls the result is that the governor's separate constitutional power to remove political disabilities is broad enough to reach the § 18.2-434 bar, and a separate remittance of the penalty is not required.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, Virginia's framework for restoration of voting and other civil rights has changed substantially in the years since this opinion, with various executive orders and procedural changes affecting eligibility. Anyone advising a client should look at current restoration practice, not 2012-vintage rules.

Common questions

What is the difference between § 8.01-338 and § 18.2-434?
Section 8.01-338 generally disqualifies felons from jury service. Section 18.2-434 imposes a sharper, lifetime ("forever") jury and office-holding ban specifically on people convicted of perjury. Section 8.01-338's general felony disqualification operates alongside the restoration-of-rights process; § 18.2-434's lifetime bar appeared, before this opinion, to be a separate and absolute disability.

What does "political rights" mean here?
The opinion states that the right to serve on a jury is generally considered a political right subject to restoration under the governor's Article V, § 12 power. Voting and holding public office are the other classic examples. Jury service involves participation in the administration of the judicial branch, so it falls in that category.

Why doesn't the General Assembly's choice to say "forever" control?
Because Acts of the General Assembly are to be harmonized with the Constitution of Virginia. Article V, § 12 places the power to remove political disabilities in the governor's hands, and that power is "not subject to limitation by law." The AG read "forever" in § 18.2-434 to mean "until the political disability is constitutionally removed," which avoids any conflict.

Does the governor have to specifically address jury service in a restoration order?
Under the AG's reading, no. A general restoration of political rights is enough to lift the § 18.2-434 jury bar; the opinion states that a separate remittance of the penalty is not necessary.

Background and statutory framework

The decisive provisions:

• Va. Code § 18.2-434 declares a perjurer "forever incapable of holding any office of honor, profit or trust under the Constitution of Virginia, or of serving as a juror."
• Va. Code § 8.01-338 disqualifies felons more generally from jury service.
• Va. Const. art. V, § 12 gives the governor power "to remove political disabilities." That same section also gives the governor power "to remit fines and penalties under such rules and regulations as may be prescribed by law," but the opinion stresses that the power to remove political disabilities is not subject to limitation by law.

The prior opinion the AG relied on concerned the perjury statute's prohibition on holding elective office; it held that bar cannot survive a constitutional restoration of rights. This opinion takes the next analytical step: if the office-holding bar in § 18.2-434 yields to the constitutional power, so does the jury-service bar in the same sentence.

Citations

• Va. Code § 2.2-505 (Attorney General advisory opinions)
• Va. Code § 8.01-338 (felon disqualification from jury service)
• Va. Code § 18.2-434 (perjury conviction disabilities)
• Va. Const. art. V, § 12 (Governor's power to remove political disabilities)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-095_Kennedy.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

November 16, 2012

Attorney General

The Honorable J. Jack Kennedy, Jr.
Clerk of the Circuit Court, Wise County & City of Norton
206 East Main Street
Post Office Box 1248
Wise, Virginia 24293

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Kennedy:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether, in light of the language of § 18.2-434, a person convicted of perjury may serve as a juror after his political rights have been restored by the governor.

Response

It is my opinion that such a person is eligible to serve on a jury.

Applicable Law and Discussion

Section 8.01-338 expressly disqualifies from jury service persons convicted of a felony. In addition, § 18.2-434 specifically provides, in relevant part, that "[u]pon the conviction of any person for perjury, such person thereby shall be adjudged forever incapable of holding any office of honor, profit or trust under the Constitution of Virginia, or of serving as a juror." You ask whether "forever" encompasses any time after any such person has his political rights restored by the governor, so that the Governor must specifically remit the prohibition imposed on a perjurer in order for such person again to be eligible to serve on a jury.

A recent opinion of this Office addressed § 18.2-434 in regard to its restriction on the ability to hold elective office. It concluded, based on the Constitution of Virginia, that the provision could not be construed to allow the prohibition to continue to apply to persons convicted under the statute who subsequently have their political rights, namely the right to vote, restored by the governor. Unlike the qualifications to hold elective office, the ability to serve on a jury is not governed by any constitutional provisions or tied to the right to vote. Thus, the General Assembly generally is able to impose limitations on jury service as it deems appropriate.

Nonetheless, Article V, § 12 of the Virginia Constitution grants the Governor the authority "to remove political disabilities." The right to serve on a jury is generally considered a political right subject to restoration under this provision. A separate remittance of the penalty therefore is not necessary, for, as stated in the prior opinion, the authority conferred on the Governor "to remove political disabilities consequent upon conviction for offenses" is broad enough to include those imposed by § 18.2-434. Moreover, while the governor is also authorized "to remit fines and penalties under such rules and regulations as may be prescribed by law," his power to remove political disabilities is not subject to limitation by law. Thus, because Acts of the General Assembly are to be harmonized with the Constitution of Virginia, I conclude that the word "forever," as used in § 18.2-434, is to be construed so that it is limited to the time before a person convicted of perjury has his political rights restored by the governor.

Conclusion

Accordingly, it is my opinion that the restoration of political rights removes the bar from jury service imposed by § 18.2-434.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General