A hearing Wednesday in Charlottesville Circuit Court whittled away at remaining trial issues in a lawsuit over City Council votes to remove two Confederate monuments.
The long-winded lawsuit has been working its way through the city court system since it was filed by the Monument Fund in March 2017. The group — made up of more than a dozen area residents — are claiming the Charlottesville City Council in 2016 violated a state code section that bans the removal of war memorials when it voted to remove the statue of Confederate general Robert E. Lee. The suit was later amended to also include a vote to remove the statue of fellow Confederate Gen. Thomas “Stonewall” Jackson.
Originally set to go to trial last October, the date has been continually pushed back due to a plethora of motions filed by both parties.
Recently, Judge Richard E. Moore issued orders on some of the bigger issues, writing that the statues are war monuments — likely bringing them under protection via state code — and that the individual current and former city councilors have legislative immunity in the lawsuit.
On Wednesday, Moore again heard arguments revolving around an equal protection defense, in which the defense claims the statues violate the 14th Amendment.
Lisa Robertson, chief deputy attorney for the city, argued the statute which prevents the removal of war monuments and memorials has its roots in 1904 legislation influenced by the Jim Crow movement to disenfranchise black Americans.
“At a minimum, we are suggesting heightened judicial scrutiny is what the court needs to apply when considering the erection of these statues,” she said. “I don’t know how you reach any other conclusion than that the 1904 legislation was enacted as a part of Jim Crow.”
However, Moore appeared largely unswayed by this portion of the defense’s argument, countering with a reference to an earlier hearing where he had presented a quote from Abraham Lincoln that would appear to support slavery.
While Jim Crow was a horrible thing, Moore said he had a hard time applying the logic that it was the sole motivation behind the statute protecting war monuments and memorials.
“I have difficulty reaching back 100 years and saying it was a part of [Jim Crow] because I guess everything was,” he said.
On behalf of the plaintiffs, Kevin Walsh, a professor of law at the University of Richmond, again presented an argument against the defendants’ equal protection defense.
Walsh did not agree that the 1904 statute, which evolved into the current statute, was based solely on racism, and said that Confederate monuments were cited specifically in the text because “that’s what people wanted to build.”
“It wouldn’t matter if it was an unnamed war in the law, it is, at its core, a historical preservation law,” he said.
Additionally, Walsh argued that, because the statute has been amended many times since its original passage in the early 20th century, judging it solely on the context in which it was written is incorrect.
Moore declined to issue a ruling, though he noted that both sides are seeking summary judgments in favor of their arguments. Unsure of whether enough facts or prior cases had been submitted to confirm either argument, he said there was a chance he may decide not to issue a summary judgment immediately.
Perhaps the only issue that may go to trial is financial: damages and attorneys fees.
Earlier in the case, Moore had ruled that damages were unlikely to be awarded because the statues were not harmed. However, after rereading the statute protecting them, he said the word “encroachment” stood out and later said damages might be arguable, but he did not know to what extent.
Ralph Main, an attorney for the plaintiffs, said that though the statues had not been physically damaged, his clients’ enjoyment of the monuments had been damaged by a tarp shroud that covered them for 188 days.
Several tarps were used to cover the two statues as a sign of mourning following the Aug. 12, 2017, death of Heather Heyer, who was murdered by self-professed neo-Nazi James Alex Fields Jr. Fields was among the white supremacists who converged on Charlottesville in response to City Council’s vote to remove the Lee statue.
“Even if it’s only worth $1, that’s still damage,” Main said, referring to his clients’ inability to gaze upon the two statues for roughly six months.
Though Moore did not rule on damages or the equal protection argument, he did deny an earlier defense motion for a partial summary judgment that claimed the council never approved the statues as monuments.
It was “plainly evident” that the City Council accepted the statues from philanthropist Paul Goodloe McIntire in the 1920s as monuments, he said.
As the issues continue to whittle down, it remains unclear what will be seen at trial or whether there will even be a trial, as Moore mentioned Wednesday.
A three-day bench trial is currently slated to begin Sept. 11.