At least one justice from the Supreme Court of Virginia appeared skeptical of an argument by the Monument Fund during a Friday virtual appeal in the long-winding lawsuit over Charlottesville City Council’s attempts to remove two Confederate statues.
The fund has argued against the city attorney’s assertion that a 1997 update that added language including cities in the code prohibiting the removal of war memorials did not apply retroactively.
The appeal hearing is the latest in the complicated legal saga over two statues of Confederate generals in downtown Charlottesville. For the last several years the statues have been the subject of a lawsuit filed on behalf of a group called the Monument Fund as well as a dozen individual plaintiffs.
The lawsuit, Payne v. Charlottesville, claims that the city council violated a state code section intended to prevent the removal of monuments to wars and veterans by voting to remove a statue of Confederate Gen. Robert E. Lee and later one of Gen. Thomas “Stonewall” Jackson.
The lawsuit went to trial in Charlottesville Circuit Court in September 2019 and the court largely sided with the plaintiffs, issuing a permanent injunction barring the removal of the statues.
However, new legislation that went to effect in July now allows for localities to remove war monuments and in June the plaintiffs requested an update to the language of the injunction that would essentially render it moot.
The injunction currently remains in place as the city attempts to appeal various issues of contention from the trial, chief among them an argument that the city should not have to pay $364,989.60 in attorney fees.
On Friday, the half-hour hearing began with Chief Deputy City Attorney Lisa Robertson breaking the city’s argument down into two points: the plaintiffs never asserted there was physical damage to the statues and the statues were not installed pursuant to state code as war memorials.
To back up the first point, Robertson cited a finding from the trial court that asserted there was no damage to the statues.
“Because of this fact, Payne had no statutory standing to bring any action or claim against the city under the provisions of 15.2-1812.1, including declaratory or injunctive relief and attorney’s fees,” Robertson said.
The awarding of attorney’s fees was “erroneous and an abuse of discretion by the plain language” in code section 15.2-1812.1, Robertson said.
Justice D. Arthur Kelsey asked Robertson whether or not the city believed that a 1997 update of the code section — which changed the language to include cities in addition to the already included counties — applied retroactively.
Robertson affirmed that the city did not believe the update applied retroactively, pointing to some cities that received special acts of approval via acts of assembly.
She drew parallels to the 1887 Richmond v. Henrico Board of Supervisors case, which said a locality that is the owner of the property is entitled to protection, even the event of a change in regulation at the state level, once it has established a public use on its property.
Had a city erected the statues under state authority then it would be aware that it had less property rights and duties and obligations it would otherwise not have.
Arguing on behalf of the plaintiffs, Kevin Walsh, a University of Richmond law professor, took issue with Robertson’s interpretation of code section 15.2-1812. There are four purposes listed for which damages may be awarded, he said, including preserving and restoring a monument to pre-encroachment conditions.
Not long into Walsh’s argument Kelsey again raised the retroactivity question.
“Logically speaking, and literally speaking, I’m struggling with whether or not this statute can be interpreted to go back in time to the 1920s,” he said. “Now, I see where the Code Commission has made their statement, but our duty is to read statutes as they’re written, not as they should have been written.”
Walsh said the issue at hand was what the law was in 2017 when the City Council voted to remove the statues, and the state code at that point applied to the city and allowed for private right of action, among other additions.
When pushed further on the issue by Kelsey, Walsh pointed to language in the code section that clarified that it would be illegal for the authorities of the locality or any other persons to disturb or interfere with any monuments or memorials so erected. This section had already been amended to remove language that it would “thereafter” be to interfere or disturb a monument, he said.
Walsh asked the panel not to grant the city’s request to dissolve the Charlottesville Circuit Court’s injunction and to affirm Moore’s findings.
“We’re offering a reading that not only makes sense of the text, but that doesn’t insert text that’s not there and that also fits the preservative expansive, uniform application, the point of the recodification was to clean up that whole section of the code,” Walsh said. “And they did that by making sure that people who vandalized monuments don’t get to say, ‘Oh, well, that was put up in 1920, or that was put up pursuant to something else.’”
Because the hearing was only a half-hour, neither side was able to touch on all the points and arguments they made in their lengthy briefs to the court.
None of the justices indicated when they planned to rule.