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State Supreme Court to hear Charlottesville statues appeal
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State Supreme Court to hear Charlottesville statues appeal

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Reclaim the Park

DAILY PROGRESS FILE

Protest signs and banners hang in front of Charlottesville’s statue of Confederate Gen. Robert E. Lee on Aug. 12.

Charlottesville will argue its appeal in a Confederate statues case to the Supreme Court of Virginia in November, potentially ending a years-long legal saga.

As localities across the state, including Albemarle County, prepare to remove their Confederate statues, removal of Charlottesville’s statues has remained tied up by the state Supreme Court appeal.

In a Thursday news release, the state Supreme Court agreed to hear Charlottesville’s appeal of a 2019 trial decision, writing that it was of “imminent public importance.” Oral arguments are set for Nov. 2-6.

Earlier this month, Albemarle’s Board of Supervisors voted unanimously to remove a bronze statue of a Confederate soldier situated in front of the Albemarle County Courthouse. The removal could occur as early as Sept. 6, though a Friday news release from the county said more information about the date would be released in September.

The decision is the first local use of a law that went into effect July 1 that allows localities to go through a process to remove war monuments.

However, prior to the law’s passage, the Charlottesville City Council attracted the ire of some residents when it voted to remove a statue of Gen. Robert E. Lee and later a statue of Gen. Thomas “Stonewall” Jackson.

Several area residents and The Monument Fund group sued the city and the City Council, alleging violation of a state code section that forbade localities from encroaching on war monuments and memorials.

The lawsuit went to trial last September, with Judge Richard E. Moore largely siding with the plaintiffs by ruling that the council votes violated state code. Moore issued a permanent injunction barring the city from removing the statues.

Now, nearly a year later, the process of appealing that lawsuit to the Supreme Court of Virginia has consequently made the city unable to begin the newly legal removal process.

Filed in June, the city’s 37-page petition for appeal largely takes issue with decisions Moore made prior to the trial.

Among the arguments is the claim that the city did not authorize and permit the statues to be erected as war memorials as described in the state code. The code section also does not apply retroactively, the petition for appeal argues, pointing to diction used in the state code that would appear to only refer to monuments that have not yet been erected.

Additionally, the appeal argues that awarding of attorneys’ fees is not permitted under that state code section because Moore ruled that no damages would be awarded to the plaintiffs because the statues were not physically harmed. Earlier this year, Moore awarded plaintiffs’ counsel approximately $364,000 in attorneys’ fees.

“The city persistently noted that [the plaintiffs’] various complaints alleged no physical harm to the statues causing any damages recoverable under the statute, and therefore there could be no basis for award of attorneys’ fees, or any other relief, under [state code],” the appeal reads. “Predictably, [the plaintiffs] did not, at trial, prove any damages recoverable under [state code], because no damages were necessary for the expressed statutory purposes.”

In a response filed in July, counsel for the plaintiffs argues in part that there are no reversible errors present in the city’s petition for appeal and that the plaintiffs had standing to seek injunctive relief and damages.

“The City’s Assignments of Error pertain entirely to the Circuit Court’s interpretation and application of the old law,” the response reads. “This appeal is therefore not about whether Charlottesville’s Confederate statues stay or go under the new law. This appeal, instead, is about whether the City can escape accountability for its past actions under the old law.”

Counsel for the plaintiffs balk at the city’s argument that a 1997 ruling extending the monument protection code section to cities was not intended to be retroactive.

“Noting the specific inclusion of memorials and monuments to wars back into the eighteenth century, Judge Moore noted the peculiarity of accepting — as the City’s interpretation required — that ‘the General Assembly intended and expected such memorials and monuments to the named conflicts to be erected after [1997], and that all of the then-existing monuments to all of those past wars and those soldiers in every city throughout the Commonwealth were not protected,’” the response reads. ”In a variety of ways, the Circuit Court expressed its conviction that a purported legislative intent to deprive already-erected memorials and monuments of statutory protection beggared belief.”

Later in the response, counsel for the plaintiffs argue that physical harm is not needed for damages to be awarded and points to the usage of “litigation costs” among the damages available under the statutory right to action.

In June, the Monument Fund filed a motion to partially dissolve the permanent injunction and is seeking to alter the language in the permanent injunction to match the new law allowing localities to remove monuments to war and veterans.

That motion remains pending, presumably because of the city’s petition for appeal before the state Supreme Court.

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