The city of Charlottesville is arguing that it should not have to pay plaintiffs in the long-winding statues lawsuit hundreds of thousands of dollars in attorney fees ahead of a November hearing in front of the Supreme Court of Virginia.
The appellant brief, filed Friday on behalf of the city by Chief Deputy City Attorney Lisa Robertson, expands on arguments made in the city’s petition for appeal, which was granted last month by the state Supreme Court.
The state Supreme Court will hear the city’s argument during a week of hearings beginning Nov. 2, potentially wrapping up the years-long legal saga of Payne v. Charlottesville.
The lawsuit was filed against the city, City Council and individual councilors following a February 2017 vote to remove a downtown statue of Robert E. Lee. Several individual plaintiffs and a group called the Monument Fund alleged that the City Council violated a state code provision that prevented the removal or encroachment of monuments to wars and veterans.
In the three and a half years since the lawsuit was filed, Charlottesville has become a focal point of the movement to remove Confederate statues, drawing the attention of pro-removal activists and neo-Nazis, the Ku Klux Klan and white supremacists, who held the violent Unite the Right rally on Aug. 12, 2017.
The lawsuit went to trial in September 2019, with Charlottesville Circuit Judge Richard E. Moore largely siding with the plaintiffs and issuing a permanent injunction barring the removal of the Lee statue, as well as one of fellow Confederate Gen. Thomas “Stonewall” Jackson. Moore declined to award damages but later agreed to award plaintiffs’ counsel $364,989.60 in attorney fees.
Earlier this year, the General Assembly passed legislation that changed the state code to allow for localities to remove war monuments. In June, the plaintiffs filed a motion to partially dissolve the injunction and update the language to match the new state code, helping clear the way for removal of the statues. However, the state Supreme Court appeal filed on behalf of the city and City Council has stalled the process and the injunction currently remains in place.
The city’s 56-page appellant brief argues that the Charlottesville Circuit Court erred in its interpretation of state code section 15.2-1812 in four areas: by awarding attorney fees; by interpreting that the code section allowed for an injunction and lawsuit prior to any damages; by granting injunctive relief; and by interpreting that a 1997 update of the state code section applied retroactively.
In support of the arguments on attorney fees, Robertson wrote that the plaintiffs are not entitled to recover the fees in the absence of damages and a specific statutory provision, which is not included in code section 15.2-1812.
“The only action authorized by [the state code section] is ‘an action for recovery of damages’ expressly restricted to amounts ‘as necessary for the purposes of rebuilding, repairing, preserving, and restoring such memorials or monuments to preencroachment condition,’” Robertson wrote.
The brief goes on to argue that, in the absence of damages, the code section does not allow for private individuals to seek injunctive relief. Robertson also argues that sovereign immunity barred the plaintiffs from filing the lawsuit, a decision Moore partially agreed with when he agreed to dismiss the individual city councilors from the case prior to trial.
Furthermore, Robertson argues that “the zealous political interest” of the plaintiffs is insufficient to create “taxpayer standing” necessary to seeking an injunction.
“The City Council resolutions and actions challenged by [the plaintiffs] represent aspects of a public controversy and disputed political issue,” she wrote. “Throughout this case, Payne’s sole interest has been to redress an anticipated public injury — preventing removal of the statues by ‘defending history against an intolerant present.’”
Lastly, Robertson wrote that the 1997 update of the code section — which changed the language to include cities in addition to the already included counties — does not apply retroactively. Additionally, Robertson argues that the court is obligated to enforce current law, which does not bar any locality from removing any monument.
The city’s arguments were supported by a similarly lengthy brief filed by state Attorney General Mark Herring last week. Herring’s amicus brief — a legal document filed by a non-party with a strong interest in a case — details the history of Charlottesville’s Confederate statues, as well as the state code section that once sought to protect war monuments.
Counsel for the plaintiffs have not yet filed a response to the city’s brief. In July, in a response to the city’s petition for appeal, plaintiffs’ attorneys argued that there are no reversible errors present in the city’s petition for appeal, and that the plaintiffs had standing to seek injunctive relief and damages.
“The City’s Assignments of Error pertain entirely to the Circuit Court’s interpretation and application of the old law,” the response reads. “This appeal is therefore not about whether Charlottesville’s Confederate statues stay or go under the new law. This appeal, instead, is about whether the City can escape accountability for its past actions under the old law.”