The question of whether Gen. Robert E. Lee will have a meltdown is still unresolved.
The seemingly never-ending legal saga over Charlottesville’s Confederate statues began a new chapter Wednesday as attorneys for bidders connected to the Monument Fund attempted to defend their lawsuit that, in part, seeks to prevent the destruction of the city’s statue of Lee.
The hearing in Charlottesville Circuit Court was spurred by a lawsuit filed by two plaintiffs — Trevilian Station Battlefield Foundation and the Ratcliffe Foundation, on behalf of its subsidiary Ellenbrook Museum.
The two allege the city violated the Freedom of Information Act, Virginia Public Procurement Act and state code when it awarded the Lee statue to the Jefferson School African American Heritage Center in December.
The Jefferson School Center is also named as a defendant.
Much of the lawsuit appears to be in response to the Center’s intentions for the monument, which notably includes a plan to melt down the statue and recast the ingots into a new work of art devoid of the controversies of the Confederacy.
According to previous documents filed in the case, the statue may have already been taken apart as the foundry began the smelting process prior to the lawsuit being filed.
The foundations are represented by attorneys Ralph Main, Jock Yellott and S. Braxton Puryear. They also represented Charlottesville area residents in a previous Monument Fund-backed lawsuit against the city over votes to remove the Lee and Gen. Thomas “Stonewall” Jackson statues.
The Lee statue has been in a city storage facility since its removal on July 10. The city called for proposals on what to do with Lee in July and again in September.
The Center submitted a proposal for the statue to be melted into ingots and transformed into a work of art that reflects the community’s values. The statue would then be given back to the city for public display.
The process would include a comprehensive six-month community engagement process.
In city Circuit Court on Wednesday, attorneys representing the defendants argued in favor of a demurrer — a legal term used to describe a dismissal based on the argument that a party’s lawsuit cannot succeed.
During an early stage of a lawsuit, a court must consider legal matters in a light most favorable to the plaintiffs and assume alleged facts are correct. That means defendants must prove that the lawsuit cannot succeed even within this perspective.
Representing the city, Robinson J. Hubbard argued in part that the lawsuit hinged on the court’s interpretation of the preceding Payne v. Charlottesville case. Much like the current lawsuit, that case saw the plaintiffs sue the city and City Council in 2017 for voting to remove the statues.
After years of legal back and forth, last year the Supreme Court of Virginia overturned a 2019 Circuit Court decision that ruled the city violated a state code section that, at the time, prevented localities from removing war monuments.
The state Supreme Court agreed with the city’s argument that the law only applied to monuments erected in counties prior to 1997, when it was amended to include cities as well.
“Prohibitions on removal only apply to statues erected through the statute, which the Payne ruling found the Charlottesville statues were not,” Hubbard said. “The state code did not permit the city to erect the statues and thus does not prevent them from removing them.”
Hubbard also pushed back against claims that the city did not give proper notice of the December meeting in which the City Council voted to give the statue to the Center. Though the city had given less than the typical three working days’ notice, this was not a violation of FOIA law, he said.
Handling most of the FOIA law arguments for the city, attorney Elizabeth Southall argued in part that the plaintiffs are not entitled to any remedies under the guiding law. According to Southall, the only injunctive remedies available to the court via FOIA are injunctions that prevent the city from making the same FOIA violation in the future.
“All the court can do is issue an injunction that says ‘city, you can’t do this again, you are enjoined from doing this again’,” she said.
The last of the defendants’ counsel, Christopher R. Tate, focused his arguments on the plaintiffs’ claims that the Center violated the Virginia Public Procurement Act. According to Tate, no such violation had taken place and the Center cannot be held liable for the city’s decision.
Although the state law offers remedies such as a bid protest letter, Tate argued that the plaintiffs do not have access to the remedies they’re requesting, including forcing the Center to return the statue to the city and restart the bidding process.
Tate said it would be like the city giving a landscaping contract to a company. If another bidder protested the award after the company had done the work, the court would not order the company to undo the work it had done.
“Sometimes the [law] creates rights without remedies,” he said. “It may not seem ideal to some but the Act is very narrow in what it allows.”
Tate said state law allows a locality to “remove or relocate” a statue or monument. By including both of these words, he argued that the words must be interpreted as different acts.
On behalf of the plaintiffs, Puryear worked to defend the lawsuit’s arguments, arguing that the city violated the procurement process by not considering the bid proposals from his clients.
Puryear also argued that the city violated FOIA law when it gave notice of the vote to decide the disposition of the statue on the Friday prior to the vote. He also claimed that the City Council removed the issue from its agenda the day of the meeting and then added it back.
That claim elicited reactions from supporters of the defendants in the courtroom gallery, who silently shook their heads in disagreement.
Puryear argued that there had to be an equitable injunction and consequence for what he viewed as a violation of FOIA, the law and state code.
Puryear also argued that the city was not allowed to alter or destroy monuments. Because the Center had written in its bid that it planned to melt down the Lee statue and the city had agreed to the bid, he likened the agreement to collusion.
“If someone hands someone else a gun and asks them to go kill someone and they go do it, then the person who gave them the gun is considered an accessory,” he said. “In this case the Center told the city that it planned to melt down the monument and the city still agreed to it.”
Following nearly three hours of arguments and questions, the issue and the statue are in the hands of Judge Paul M. Peatross. Although he told the parties that he was nearly ready to rule from the bench, he said he wanted look closer at the issues and expected to issue an order “very soon.”