Statue hearing: Councilors immunity still being argued

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Statue plaintiff Buddy Weber says city councilors have a duty to know what the law is.
Staff photo Statue plaintiff Buddy Weber says city councilors have a duty to know what the law is. Staff photo

 

So far, Judge Rick Moore has accumulated six files pertaining to the lawsuit filed a year ago against Charlottesville and its city councilors for voting to remove the statue of General Robert E. Lee—and that doesn’t include the transcripts, he told lawyers in Charlottesville Circuit Court April 11.

At the latest hearing, the city again attempted to get the suit thrown out. Before arguing its plea in bar, which maintains the individual city councilors should not be defendants in the case, Moore reversed himself on an earlier decision and said the plaintiffs could seek attorneys fees.

He previously ruled the plaintiffs could not seek damages because no damages to the statues had occurred—and he said that ruling still stands.

But upon a closer reading of the statute, which says damages may be awarded for the “rebuilding, repairing, preserving and restoring” memorials, he reconsidered. “What was planned by City Council encroached” upon the monuments, he said. “The statute allows [the plaintiffs] to recover the cost of preservation.”

The tarps that covered the Lee and Stonewall Jackson statues, which Moore order removed February 27, were “in fact in my view an encroachment,” he said. “My original ruling on damages was premature.”

Acting City Attorney Lisa Robertson again argued that those on council last year—Wes Bellamy, Bob Fenwick, Kathy Galvin, Mike Signer and Kristin Szakos—were immune from litigation because of sovereign and legislative immunity.

None of the councilors individually can enact legislation, said Robertson. “Not until it’s an aggregation of votes” as a body are resolutions made.

Plaintiffs attorney Braxton Puryear said immunity does not apply in cases of willful misconduct. The councilors had rulings from both Attorney General Mark Herring and then city attorney Craig Brown that the state statute prohibited removal of war memorials, he said. “City Council was intentional and willful in its misconduct.”

Moore pondered the issue of immunity. “The question for me is, does that apply when they’re engaged in unauthorized activity?” he asked. “If they decide to do something unlawful, does it still apply?” He called the issue a “gray area.”

Ralph Main, another plaintiffs attorney, said councilors made an “unauthorized appropriation of funds” when council passed a resolution authorizing up to $1 million to reconfigure the parks, including the removal of the Lee statue.

“The act itself is unlawful,” he said. “They had a duty to follow the law.” Councilors were aware of the criminal penalties in the state’s war memorials statute, he said.

And they were aware they were facing litigation when they voted to remove the Lee statue, asserted Main. Despite Moore issuing a temporary injunction prohibiting the removal of Lee, “they still voted to remove Jackson,” said the attorney.

City Council made that vote after the violent Unite the Right rally protesting the city’s decision to take down Lee.

Individual councilors did not receive any money from their appropriation to reconfigure the park, said Robertson.

And Moore seemed to agree with her that elected officials have immunity so they can make decisions that may be unpopular without fear of getting sued every time they anger a constituent.

The judge said there are a lot of moving parts in the case and that he wanted to read more cases on immunity. He also asked the attorneys to send him a letter outlining the issues they want him to decide in the plea in bar, the body of facts and what court cases he should consider in making his decision.

“This is not an easy case from a legal point of view,” said Moore. “I’ve never dealt with individual liability.”

A further hearing will be scheduled April 16 because the city’s attorney, Richard Milnor, said an order prepared by the plaintiffs attorneys “does not accurately reflect the ruling” on the court’s decision that the shrouds on the statues had to go.

Outside the courthouse, Main had an issue with a story this reporter wrote about the “tarps covering Lee and his Confederate general buddy, Thomas ‘Stonewall’ Jackson.”

“I don’t like it that you referred to Jackson as Lee’s buddy,” said Main. “I think you should retract that.”

The case is scheduled for an October 26 trial.

 

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