RICHMOND — The Heritage Preservation Association argued its appeal against the city of Danville in the Virginia Supreme Court on Tuesday afternoon, hoping to convince a panel of justices to agree to hear the case involving the Third National Flag of the Confederacy.
Kevin E. Martingayle, on behalf of the HPA, told the panel’s three justices during a time-allotted 10-minute argument that the latest version of the state’s statute protects current monuments and memorials, including the flag that flew on the grounds of the Sutherlin Mansion.
“It is designed to protect existing monuments and memorials,” Martingayle said.
Last August, Danville City Council approved an ordinance that allows only the national, state, city and MIA/POW flags to be flown on city-owned property, with Councilmen Fred Shanks and Buddy Rawley voting against the measure.
Immediately following the vote, a Danville police officer removed the Third National Flag of the Confederacy while supporters and non-supporters looked on.
The HPA and several supporters as co-plaintiffs filed a lawsuit claiming breach of contract in Danville Circuit Court, as well as a motion for a temporary injunction allowing the flag to continue to fly until the case was heard.
In October, Judge James Reynolds ruled in the city’s favor, saying the 1994 resolution between the HPA and the city allowing the group to install and replace the flag as needed is not a contract and dismissed the case.
The judge also ruled that the flag is not a memorial to the war dead, but a historical marker for the building.
Martingayle filed the appeal on Dec. 22 on behalf of the plaintiffs, with Fred Taylor acting as co-counsel.
Tuesday afternoon, Martingayle said his side no longer considers the resolution a contract.
While the version of the state’s statute that existed when the monument was erected would not protect it, the current version does, Martingayle said.
“Subsequent versions of the statute evolved over time to protect such monuments,” Martingayle said during an interview after his arguments.
Jeremy Carroll, an attorney representing the city in the case, said the statute’s language does not apply retroactively to the flag that flew on the grounds of the mansion.
Gov. Terry McAuliffe vetoed a bill that would have prevented local governments from removing Confederate and Civil War monuments. The Virginia Senate failed to override McAuliffe’s veto last month.
“This is a debate that is going on elsewhere in the state,” Martingayle told the judge.
Martingayle told the Danville Register & Bee whether a “local governing body’s hands” can be tied forever is a fair debate.
The current statute “is a wreck,” and its confusion needs to be cleared up, he said. The court needs to determine whether the law is “forward looking or backward looking,” he said.
If the court decides to hear the appeal, both sides will have 15 minutes to argue their cases in front of seven judges. Martingayle said he would be allowed to have a re-hearing if the court decides against hearing the appeal.