Lee statue

Charlottesville City Council voted to remove the city’s statue of Confederate Gen. Robert E. Lee in 2016.

A jury trial is no longer being sought to resolve a lawsuit filed over Charlottesville City Council votes to remove two Confederate statues downtown.

The Monument Fund filed the lawsuit in March 2017, claiming that in 2016 the City Council 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 include the council’s vote on the Thomas “Stonewall” Jackson monument.

In a letter to both parties dated July 6, Moore wrote that he found the councilors are immune for their votes because they were not grossly negligent and did not make an unauthorized appropriation of funds. Moore left the option open for the councilors to remain in the suit as parties, if they wished.

Current councilor defendants Wes Bellamy, Kathy Galvin and Mike Signer and former councilor defendants Bob Fenwick and Kristin Szakos all opted to withdraw from the suit at a hearing Wednesday in Charlottesville Circuit Court. The remaining parties — the city of Charlottesville and the City Council as a body — have not requested a jury trial, meaning a bench trial is expected.

The individual councilors were being represented pro bono by Jones Day — one of the largest firms in the world — which has now also dropped from the lawsuit.

On Wednesday, Moore explained his immunity decision further, again comparing it to his decision on whether the statues were monuments.

In his earlier decision, Moore said it is “plainly obvious” the statues are monuments to Civil War veterans, likely bringing them under the protection of a state statute that prevents the removal of monuments to various U.S. wars and veterans. No evidence would change that, he said.

Similarly, Moore said there is evidence the councilors exercised scant care when researching the legality of their votes and, though perhaps negligent, were not grossly negligent.

“I saw a great similarity between the monuments summary judgment and immunity summary judgment,” Moore said. “I see them as two sides of the same coin or perhaps mirrored images.”

Though in most cases both issues would have been left for a jury to determine, Moore said he did not find that necessary in this case based on evidence and arguments already presented.

Also now a largely moot point is the plaintiffs’ motion for change of venue, which was largely based on arguments that an unbiased jury pool could not be found because of the councilors’ public profile. With the councilors no longer defendants, Braxton Puryear, an attorney representing the plaintiffs said, a biased jury pool was no longer a concern. However, he expressed a fear the temporary courtroom space could become overheated, posing a health risk for some of his elderly and infirm clients.

On behalf of the plaintiffs, Kevin Walsh, a professor of law at the University of Richmond, presented an argument against the defendants’ remaining equal protection defense.

The defendants have previously argued that the statues violate the equal protection clause of the 14th Amendment by being racially intimidating in part because of their placement near a primarily black neighborhood during the time of Jim Crow.

An equal protection defense would be more appropriate in a federal lawsuit, Walsh said, and found it “revealing” that the defense was not presented until the complaint was amended. Additionally, he said it was not appropriate to apply modern thinking to a monument erected during a different time, and pointed to how the statute that prevents removing war monuments has been updated 12 times, most recently in the last decade, therefore showing it is intended for historical preservation, Walsh argued.

“The statute amendments have a clear arc that is plainly directed at historical preservation,” he said.

After the hearing, Charles “Buddy” Weber, one of the plaintiffs, said they were always aware it would be difficult to argue that the councilors did not have legislative immunity. Despite Moore’s order against their argument, Weber said he believes the plaintiffs have provided a public service with the lawsuit.

“I think we have served a broad public service in Virginia by bringing the claim because it has alerted every city council, board of supervisors and the legislators in Richmond that there are exceptions to the legislative immunity statute and they have to be careful about it,” he said.

Chief Deputy City Attorney Lisa Robertson, who is representing the remaining defendants, declined to argue outside of her recent response, saving it for a future hearing.

Another hearing is tentatively scheduled for 1 p.m. July 31.

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