Statute retroactive? Judge mulls city’s motion to throw out statue lawsuit

The battle over where the statues of generals Robert E. Lee and Stonewall Jackson will reside continued in court September 1.

File photos The battle over where the statues of generals Robert E. Lee and Stonewall Jackson will reside continued in court September 1. File photos

The battle over Charlottesville City Council’s vote to remove the statue of General Robert E. Lee continued in a packed courtroom September 1, with the lines pretty clearly drawn between statue supporters and those who want Lee to make a final retreat.

The hearing was to argue the city’s demurrer, which alleges that even if all the facts are correct in the lawsuit filed by the Monument Fund, the Sons of Confederate Veterans and other plaintiffs, the 1997 Virginia law that prohibits municipalities from removing war memorials is not retroactive, and would not apply to the Lee statue that Paul McIntire gave the city in 1924.

Plaintiffs attorney Ralph Main maintained that a common sense reading of the law was in order.

At the end of the hearing that stretched four hours, Judge Rick Moore decided to take a few more weeks before ruling, although he did sustain the city’s right to rename Lee Park to Emancipation Park.

The issue has roiled Charlottesville since Vice-Mayor Wes Bellamy called for the statue’s removal in March 2016. City Council voted to remove the statue of Lee in February, while keeping the monument of General Stonewall Jackson. It also renamed the eponymous parks Emancipation and Justice in June.

Since then, Charlottesville has become a magnet for white supremacists, drawing tiki-torch-carrying marchers in May, the KKK in July and the deadly Unite the Right rally August 12. The latter has spurred cities in other states to remove their own Confederate monuments, but such action in Virginia has been stymied by state law.

In Charlottesville Circuit Court, the Lee supporters were older, whiter, more tie- and seersucker-wearing, with more Colonel Sanders’ beards. And at least one of those there, who has been alleged to be a Sons of Confederate Veterans member, was an attendee at the August 12 Unite the Right Rally, where he wore an emblem of the secessionist-favoring hate group League of the South and was photographed with longtime white supremacist David Duke.

Statue opponents were younger, more racially diverse and more likely to be wearing a Black Lives Matter T-shirt. Many of them gathered outside the courthouse with signs before the hearing began, and many of them attended the chaotic August 21 City Council meeting, a fact of which Judge Moore was aware.

“We’re not going to allow that,” he said at the beginning of the hearing. “If you’re not able to control yourself, you should leave.”

Moore also noted that the clerk’s office had been inundated with thousands of calls, letters and emails, “overwhelmingly from out of state,” and he asked the senders to knock it off. “Our courts are not a majoritarian institution,” he said. “Judges do not wait to see what public opinion is. It’s improper for a person to contact a court to influence a case.”

Deputy City Attorney Lisa Robertson hammered at the fact that when the General Assembly passed the monument law in 1997, it also passed a statute that requires specific language stating if a new law applies limits to a city’s previously held authority. “The words the General Assembly had to use for retroaction are not present in this legislation,” she said.

She also questioned the standing of the plaintiffs, maintaining that being a taxpayer is not enough, because it would “give standing to challenge any decision of city government.”

On that issue, in a 2009 case in the same Charlottesville Circuit Court, Judge Jay Swett said a group of citizens trying to block the building of the Meadow Creek Parkway through McIntire Park did have standing, although he ultimately denied their injunction to stop the already underway construction of the road.

Main argued the legislators intended for the monument law to be retroactive, because the statute listed wars going back to before the nation’s founding, and he asked, “How many people are erecting monuments these days for the Algonquin War?”

Judge Moore pointed out the law doesn’t say “has been erected,” and that while he wanted to apply a common sense ruling, “I’ve got to consider what the law says.”

Main also said proof of the General Assembly’s intent was a law it passed last year clarifying the 1997 law, legislation that was not signed by Governor Terry McAuliffe.

“That particular bit of evidence is ambivalent,” said Moore, and could mean the law is not retroactive but “that’s the way we want it now.”

Main argued that anyone with an interest in the matter had standing, and he described the plaintiffs, some of whom had contributed money for the litigation. That was an argument Moore didn’t seem to buy. “The fact someone funds litigation doesn’t create standing,” he said.

Nor did he go for the fact that one of the plaintiffs, Edward Bergen Fry, is the great-nephew of the sculptor Henry Shrady. “That’s a question for me, just because he’s related to the person who created the statue, how does he have something legally at stake?” asked the judge.

After a 30-minute recess, Moore said he needed more time. He also held off okaying the renaming of Jackson Park because the deed made that name a condition.

In addition, he sustained the city’s argument that the plaintiffs could not claim damages, because there were no actual damages.

In May Moore granted a temporary injunction to prohibit the city from removing Lee while the issue was under litigation. With the city likely to vote to remove the statue of Jackson September 5, and with both statues now covered with black tarps, he’ll be hearing motions on those matters September 6.

He also promised those left at the end of the hearing that someone would be disappointed. “I don’t know how I’m going to rule,” he said. “There’s strong merits on both sides.”

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