One of the few remaining defense arguments in a lawsuit over the Charlottesville City Council’s votes to remove two Confederate statues looks more uncertain in light of a recent ruling in a similar case in Norfolk.
The local lawsuit, filed by the Monument Fund in March 2017, claims the council in 2016 violated a state code section that bans the removal of war memorials when it voted to remove the statue of Robert E. Lee. The suit was later amended to also include the city’s statue of Thomas “Stonewall” Jackson.
Most of the major issues in the case have been ruled on by Judge Richard E. Moore, but a defense argument that the statues violate the Equal Protection Clause of the 14th Amendment remains on the table.
This past week, a Norfolk Circuit Court judge dismissed a similar lawsuit by activists that sought to force the city of Norfolk to move its 112-year-old Confederate monument. The plaintiffs in that case argued that the monument violated their 14th Amendment rights, a claim Judge Mary Jane Hall, in an 11-page order, said they failed to prove.
Though certainly a similar argument, Richard Schragger, a University of Virginia professor of law who focuses on the intersection of constitutional and local government law, said the equal protection argument in the Charlottesville case differs slightly.
“These arguments came to the court in different postures: one was brought as a defense from the city of Charlottesville and its councilors, whereas the plaintiffs brought the other as a civil complaint,” he said. “The standing question is not quite the same, and that can make a difference.”
To make this argument, the defendants — the city and the City Council as a single entity — will have to prove, to Moore’s satisfaction, that the intention behind the statues was to discriminate against residents of color, Schragger said.
The Jackson statue was unveiled in 1921 at a ceremony that served as “the crowning event of the Confederate Reunion of the Grand Camp, United Confederate Veterans and the Virginia Division of Sons of Confederate Veterans,” according to a Daily Progress article. That same year, the Progress reported that the Ku Klux Klan organized in Charlottesville.
“Hundreds of Charlottesville’s leading business and professional men met around the tomb of [Thomas] Jefferson at the midnight hour one night last week and sealed the pledge of chivalry and patriotism with the deepest crimson of red American blood,” according to a June 28, 1921, report.
The Lee statue followed in 1924. Both were donated by philanthropist Paul Goodloe McIntire.
Additionally, Schragger said the equal protection argument is a novel one and hasn’t seen much precedence in Virginia courts.
However, outside of the commonwealth, Schragger said, an Alabama state court ruled earlier this year that legislation similar to Virginia’s that prevented Birmingham from removing or covering Confederate monuments violated that city’s First Amendment rights. This argument is also largely untested, he said, and has not been presented in the Charlottesville case.
Earlier this month, Moore ruled that individual current and former city councilors had statutory immunity for their votes and could be dismissed from the lawsuit. Though attorneys from the massive Jones Day firm mostly had been arguing the equal protection defense on behalf of the individual councilors, Charlottesville City Attorney John Blair said his office would continue the argument on behalf of the city and council as a body.
“We intend to continue our stance that the statues violate the equal protection clause of the 14th Amendment,” he said.
Though the city likely will appeal if the plaintiffs are victorious, Schragger said the easiest path to removing the statues still lies in legislative change.
Sally Hudson, a Democrat who is running unopposed for the 57th District seat in the House of Delegates, said, if elected, she plans to continue the work of her predecessor, Del. David J. Toscano, D-Charlottesville.
For the past two legislative sessions, Toscano has introduced legislation that would allow localities to remove war monuments. Toscano’s legislation died early on in each session.
Hudson said she supports changing the state code and thinks securing a Democratic majority in the General Assembly is key.
“This legislation has died each year because of efforts from Republican legislators,” she said. “If we’re going to pass a change, we need to focus our efforts on flipping the House and Senate this election.”
Moore is expected to issue orders on some of the remaining arguments in the Charlottesville case at 1 p.m. Wednesday.