The Monument Fund and other plaintiffs in a years-long lawsuit against the city of Charlottesville are urging the Supreme Court of Virginia to uphold decisions made by the city circuit court head of a week of hearings in November.
Judge Richard E. Moore last year sided largely with the plaintiffs in the suit, issuing a permanent injunction against the city removing its statue of Confederate Gen. Robert E. Lee in Market Street Park.
Counsel for the plaintiffs in the lawsuit filed two appellee briefs on Oct. 8, addressing each issue at contention in the city’s appeal. Two briefs were filed instead of one due to an argument made in the city’s appellant brief that some of the plaintiffs do not have taxpayer standard.
The appeal, filed on behalf of the city earlier this year, will be heard by the state Supreme Court 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 the Lee statue. 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, after which Moore issued the 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 appeal 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.
The first appellee brief filed by counsel for the Monument Fund and other plaintiffs breaks each of these points down in 59 pages.
“The precise legal problems with these claims vary in their particulars,” the first appellee brief reads, before quoting Alexander Hamilton. “But each implausible interpretation is equally an effect of those ‘ill humors … which in smaller societies … [can] contaminate the public councils.’”
The Charlottesville Circuit Court did not err in awarding attorney’s fees, counsel for the plaintiffs argues, because, per state code, the prevailing party is entitled to “an award of the cost of litigation, including reasonable attorney’s fees.”
“It is true that ‘attorney’s fees’ and ‘damages’ are distinct categories in other areas of the law and have been distinctly provided for in other statutory fee-shifting provisions,” the brief reads. “The General Assembly could have treated these as two separate categories if it had wished to do so. But that is not what it did here.”
Additionally, the city’s “physical harm limitation” is not found within the law, counsel for the plaintiffs argue, but the law does speak of “preserving” and “restoring.” The plaintiffs succeeded in obtaining both preservation and restoration when Moore ordered tarps removed from the statues after the city covered them in the wake of three deaths the day of the Unite the Right rally.
Furthermore, counsel for the plaintiffs argue that the ability to seek injunctive relief was explicitly intended by the General Assembly, pointing to Virginia Code § 15.2-1812.1(C), which states that “[t]he provisions of this section shall not be construed to limit the rights of any person … to pursue any additional civil remedy otherwise allowed by law.”
“To imply from the General Assembly’s provision of this damages action the exclusion of declaratory and injunctive relief as available remedies is to do exactly what the General Assembly said not to: limit the rights of Plaintiffs to pursue additional civil remedies otherwise allowed by law.”
The 1997 update of the code section — which changed the language to include cities in addition to the already included counties — does apply retroactively, argues the appellee brief, contrary to the city’s interpretation. If the court were to accept the city’s argument, the result would be a “pathwork” code section that would be arbitrary.
“Text, context, and purpose all point toward uniform protection for all war and veteran monuments or memorials statewide,” the brief reads. “The City’s contrary interpretation stretches the text, ignores statutory context, and frustrates the General Assembly’s preservative purpose.”
The plaintiffs second 37-page appellee brief is entirely dedicated to the city’s argument that the “the zealous political interest” of the plaintiffs is insufficient to create “taxpayer standing” necessary to seeking an injunction.
The brief argues that the Charlottesville Circuit Court was correct when it determined that there was local taxpayer standing for five plaintiffs, individual standing for seven (five individuals and two corporations), corporate representative standing for one and statutory standing for all 12.
The lengthy brief fields several arguments for stands but notably points out that the city Assignments of Error contests none of Moore’s specific findings, nor the legal conclusions that seven plaintiffs had individual standing, which “renders pointless the city’s taxpayer standing challenge.”
“Public officials cannot be allowed to break the law with impunity,” the brief argues in closing. “On this, citizens no matter what their politics would agree. The Plaintiffs’ standing to call the City to account is incontrovertible.”