The city of Charlottesville will appeal its defeat in a lawsuit challenging the City Council’s decision to remove two downtown Confederate monuments.
With little fanfare at the end of its meeting late Monday night, the council authorized the City Attorney’s Office to appeal the lawsuit once a final ruling comes down from the Charlottesville Circuit Court.
An appeal would make the city the first in Virginia to petition the state Supreme Court in defense of its action to remove a Confederate symbol. It could give the high court its first chance to settle differing opinions on the law governing such symbols.
A hearing on attorneys’ fees, the final outstanding issue in the circuit court case, is scheduled for Oct. 15. The plaintiffs, including The Monument Fund, are seeking more than $600,000 in attorneys’ fees.
In February 2017, the council voted to remove a downtown statue of Robert E. Lee; it later added the statue of fellow Confederate Gen. Thomas “Stonewall” Jackson. In March 2017, a group of area residents filed a lawsuit claiming the council vote violated state code.
“The city’s decision to appeal the final judgment of the Charlottesville Circuit Court is not unexpected,” said Charles Weber, a spokesman for The Monument Fund. “We have always assumed this matter would be appealed.”
By Jan. 1, each of the five councilors who voted in 2017 — Mike Signer, Kathy Galvin, Bob Fenwick, Wes Bellamy and Kristin Szakos — will have left office. The city also has since lost about a dozen high-ranking employees, including its city attorney, police chief and city manager.
City Circuit Judge Richard Moore ruled last month that the monuments do not send a racially discriminatory message and issued a permanent injunction preventing their removal.
City attorneys had argued that the state code section prohibiting their removal violates the equal protection clause of the 14th Amendment of the U.S. Constitution by sending a racist message to residents of color in Charlottesville.
Councilors and city officials declined to comment, citing the pending litigation.
Because the lawsuit is a civil case, any appeal would go directly to the Supreme Court of Virginia, which would appoint a three-judge panel to review arguments.
That panel then would determine whether the case should be heard by the entire court.
If the state Supreme Court took up the case and ruled in favor of the city, any award of attorneys’ fees would be overturned. However, if the court rules against the city, the defendants likely could argue for more payment.
Virginia Attorney General Mark Herring issued an opinion in 2017 saying cities can remove or relocate Confederate monuments as long as there are no individual laws or restrictions governing those particular monuments.
The state Supreme Court has yet to wade into the issue of how the state code applies, and lower judges have varied in their rulings.
Several other cases throughout the state have focused on a 1998 law that restricts the movement of war memorials. However, opinions vary on whether it applies to memorials constructed before 1998. Herring and a circuit court judge in Danville have said that the law does not, but Moore ruled that it does.
In Danville, the facts of the case were slightly different than those in Charlottesville, but that city successfully removed a Confederate flag from a monument.
A group challenged that 2015 decision, but it was upheld by a Danville circuit judge. The plaintiffs appealed to the state Supreme Court, which declined to take up the issue, therefore effectively affirming the lower court’s decision in favor of the city.
Meanwhile, a similar case is progressing through the federal court system in Norfolk, where the city argues that the state law violates the First and 14th Amendment rights of the city and the City Council.
Herring is listed as a defendant in the Norfolk lawsuit.