Judge explains: Motions still to be ruled upon in Confederate statue lawsuit

Plaintiffs Frank Earnest, Jock Yellott, and Dickie Tayloe leave Charlottesville Circuit Court after the latest hearing in their lawsuit to keep Confederate statues in city parks.
staff photos Plaintiffs Frank Earnest, Jock Yellott, and Dickie Tayloe leave Charlottesville Circuit Court after the latest hearing in their lawsuit to keep Confederate statues in city parks. staff photos

Judge Rick Moore got one big issue out of the way in the two-years-long lawsuit against the city and City Council for its 2017 vote to remove statues of Confederate generals: The monuments of generals Robert E. Lee and Stonewall Jackson are indeed war memorials under state code, which prohibits their removal.

In court May 1, he started off the status hearing by explaining his April 25 ruling, because of misunderstandings that he said had occurred.

“It was a critical decision, but it is not the end of the court case,” said Moore, who took the opportunity to note the two boxes of case files and how busy he is to explain why it has taken so long to get rulings on the motions that have been filed. “This is just one case. I’m just one judge. This is an important case, but not the only one I have.”

The lawsuit was filed by 13 plaintiffs, including the Monument Fund and the Sons of Confederate Veterans, who allege councilors Wes Bellamy, Bob Fenwick and Kristin Szakos unlawfully voted to remove a statue of Lee donated to the city by Paul Goodloe McIntire. The vote to remove Jackson was added to the suit after August 12, 2017, when councilors Mike Signer and Kathy Galvin joined the unanimous vote to oust the Confederates.

All of the councilors were in court except for Fenwick, as were a number of the plaintiffs, including Frank Earnest with the Sons of Confederate Veterans, who has traveled from Virginia Beach for hearings over the past two years, Monument Fund organizer Jock Yellott, and Dickie Tayloe, whose First Family of Virginia was once one of the largest slave owners in the state.

Moore did issue a ruling, and denied a plaintiffs’ motion to keep the defense from using equal protection under the 14th Amendment as part of its case. That argument says because the Civil War was fought primarily over slavery, the statues are part of an effort to intimidate African Americans.

“Equal protection being constitutional, it would be hard for me to say you’re not going to argue that,” he said. “I’m not in a position to say the defendants cannot prevail on that.”

Yet to be ruled upon is a motion to determine whether councilors had statutory immunity when they voted to remove the statues, and Moore said that’s next on his list.

Plaintiffs attorney Braxton Puryear complained that councilors had not provided depositions or discovery that would help him determine whether they acted with gross negligence when they voted to remove the statues, a key in determining immunity.

Legal powerhouse Jones Day is representing pro bono all of the councilors except Fenwick, and attorney Esha Mankoti said that’s why the issue needs to be decided immediately, because if councilors have immunity, their emails would be protected as well.

“That argument has the flavor of a circular argument.” said Moore, who said he sympathized with the plaintiffs, who have been asking for discovery for two years. “You don’t postpone the depositions,” he said.

He said the emails they sent each other the night before the vote could be the “smoking gun” if councilors said, “We can do what we want.”

Still, the judge wasn’t ready to say council’s actions amounted to gross negligence.

Moore also needs to decide on the city’s argument that a 1997 law that prohibited the removal of war memorials is not retroactive, as well as what issues can go before the jury in the September trial.

Outside the courthouse, plaintiff Buddy Weber felt “very good” about the recent ruling that the statues are war memorials.

However, activist Ben Doherty described Moore’s ruling as buying into the Lost Cause narrative because it neutralizes what is “overt white supremacy.”

Attorney Janice Redinger, who is not involved in the case, says, “I think there’s a chilling effect that these legislators may be personally liable for passing an ordinance. Look at all the unconstitutional laws passed by the General Assembly.”




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