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Lee statue's fate remains on ice as judge allows lawsuit against city to continue

Gen. Robert E. Lee’s possibly impending meltdown is still on hold following a judge’s order allowing a lawsuit over the statue’s fate to continue.

The seemingly never-ending legal saga over Charlottesville’s Confederate statues will continue for the foreseeable future, beginning a new chapter this month as attorneys for bidders connected to the Monument Fund succeeded in defending 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 Center is also named as a defendant.

Much of the lawsuit appears to be in response to the Center’s intentions for the monument, titled the “Swords Into Plowshares” project, which notably includes a plan to melt down the statue and recast Lee’s brass ingots into a new work of art devoid of the controversies of the Confederacy.

Per its organizers, the project seeks to create “a new work of public art that reflects the Charlottesville community’s values of racial inclusivity.”

Andrea Douglas, executive director of the Jefferson Center, and Jalane Schmidt, director of the University of Virginia Memory Project, expressed frustration Friday with a recent order from Judge Paul M. Peatross that allows the lawsuit to continue.

“While we are confident that this lawsuit should not impact the center’s ownership, we are disappointed that this case is being allowed to move forward,” Schmidt said. “The community is not served by another unnecessary and expensive legal process. Nevertheless, we are not deterred.”

Douglas said the center will continue with a community engagement process and called on community members to voice their support for the project and center.

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. It currently remains in the Center’s possession.

Peatross’ order comes after attorneys for the city and Center filed demurrers— a legal term used to describe a dismissal based on the argument that a party’s lawsuit cannot succeed — challenging the lawsuit in February.

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.

A variety of arguments were presented during a hearing earlier this month, including claims that the plaintiffs had no standing to file the lawsuit; that the state code section outlining the removal process for war monuments does not apply to Charlottesville; and that FOIA law was not violated.

In a letter opinion dated April 19, Peatross largely overruled the city’s demurrer siding with the plaintiffs’ arguments and allowing the lawsuit to continue. Peatross granted the Jefferson Center’s demurrer on all three of the counts but declined to dismiss the center from the lawsuit.

“[The court] denies the demurrer to dismiss the center as a party as it is a necessary party if relief is granted to the plaintiff’s,” he wrote. “The complaint asserts the center has unlawful possession and ownership of the statue.”

In his explanation of the findings against the city, Peatross wrote that, although the Supreme Court of Virginia decided that the state code did not apply to Charlottesville in the Payne v. Charlottesville case over 2017 vote to remove the Lee statue, it had since been amended.

The amendment clarified language that had been the basis for the state Supreme Court decision that the code did not apply to statues erected in cities before a prior 1997 amendment. Because of that, the code now applies to Charlottesville.

Additionally, Peatross wrote that he found the plaintiffs have standing to file a lawsuit as they have “alleged a direct interest, pecuniary or otherwise, in the outcome of the controversy that is separate and distinct from the interest of the public at large.”

Notably, Peatross’ agreed with the plaintiffs’ argument that state code allows the city to “remove, relocate, contextualize, or cover the statue” but not “melt it down” as intended by the center.

Peatross was not swayed by the city’s argument that the plaintiffs did not have a right to enforcement under the Virginia Procurement Act because the act only applies to the city when it seeks to obtain goods and services, and that the removal of the Lee Statue was not a good nor service.

“Given these facts of the Solicitation of Offers Statement, this Court finds that the solicitation of offers to acquire, remove, or relocate the Lee Statue, which per the complaint has a value of $325,000 or more, is a request for services under section 2.2-4301 of the Virginia Procurement Act,” he wrote. “The city is not requesting materials or equipment from offerors; they are requesting removal of the Lee statue, which comports with the definitional requirements of services as laid out in the cited section.”

Peatross did not grant any injunctive relief to the plaintiffs, citing a desire to reserve that question for an evidentiary hearing. If the plaintiffs prevail they may be entitled to financial damages and attorney’s fees.

No hearing date is currently set for an evidentiary hearing.


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