Attorneys for Carl “Ben” Nett have filed a brief in the Circuit Court for Loudoun County opposing the Commonwealth’s motion to vacate or set aside the jury’s verdict and to remove Nett from office, asking the court to let the verdict stand.

The brief was filed in Qualified Voters of Purcellville v. Carl “Ben” Nett, Case No. CL25-2775, by Jennifer L. McGovern and John J. Carrabis of Parrish Snead Franklin Simpson, PLC, of Fredericksburg. The Commonwealth’s motion seeks to remove Nett despite the jury’s verdict, indicating the verdict did not itself result in his removal.

The Disputed “Removal Verdict Form”

According to the filing, the Commonwealth prepared five verdict forms before trial, one for each of the five potential grounds for removal. Early in the six-day jury trial, the court raised whether a sixth form was needed to accurately reflect the removal provisions of Title 24.2 of the Virginia Code.

The brief states that the court read Virginia Code Sections 24.2-233(1) and 24.2-235(E) together and concluded that, even if the jury found by clear and convincing evidence that Nett committed one of the alleged violations involving a clear, ministerial duty of the office with a material adverse effect on its conduct, the jury still had authority to decide whether removal was warranted. The brief refers to that sixth form as the “Removal Verdict Form,” and states the Commonwealth agreed to it and raised no objection, including when the instructions and forms were reviewed again on the fifth day of trial.

Commonwealth Waived Its Challenge, Brief Argues

In its first argument, Nett’s counsel contends the Commonwealth gave up its ability to challenge the form by agreeing to it on multiple occasions without objection. The brief argues that under Virginia precedent, agreed jury instructions and verdict forms become the “law of the case” and bind the parties, citing decisions including Smith v. Commonwealth and Owens-Corning Fiberglas Corp. v. Watson. It also invokes the contemporaneous objection rule, the bar on “approbating and reprobating,” and the invited-error doctrine. Responding to an argument the brief attributes to counsel for the Commonwealth, identified as Mr. Olsen, that he agreed to the form but lacked time to research the issue, Nett’s counsel argues the narrow exceptions to those rules do not apply.

Removal Is Discretionary, Not Mandatory, Brief Says

In its second argument, Nett’s counsel argues that even if the court reaches the merits, the form correctly stated the law. The brief contends that Virginia Code Section 24.2-233 does not require removal but grants authority to remove an officer at the decisionmaker’s discretion once the elements are proven, while Section 24.2-235(E) sets out the procedure that follows. Central to that argument is the General Assembly’s use of the word “may” rather than “shall,” which the brief argues is permissive. It traces the statutes’ recodification from Title 24.1 to Title 24.2 in 1993 and their amendment in 2023, citing cases including Rickman v. Commonwealth and Martin v. Howard.

What the Filing Seeks

The brief asks the court to deny the Commonwealth’s Motion to Vacate or Set Aside the Verdict and to Remove Benjamin Nett from Office, citing the arguments in the filing and those made by counsel at the hearing on the matter. Purcellville News will continue to follow the case.