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Judge to award attorneys fees, rules against damages over Confederate statue shrouds
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Confederate statues suit

Judge to award attorneys fees, rules against damages over Confederate statue shrouds

Jock Yellott and Frank Earnest

ZACK WAJSGRAS/THE DAILY PROGRESS Jock Yellott (left) and Frank Earnest arrive at Charlottesville Circuit Court for the final day of the three-day Confederate statues trial on Friday.

A Charlottesville Circuit Court judge has closed the book on this chapter of a lawsuit over City Council votes to remove two downtown Confederate statues, ordering that they must stay but not awarding any damages.

The lawsuit has moved at a glacial pace for the last 2½ years, punctuated by lengthy legal proceedings and the deadly white supremacist Unite the Right rally, ostensibly organized over the statue votes.

Triggered by a 2017 City Council vote to remove a statue of Gen. Robert E. Lee, a group of area residents filed a lawsuit in March 2017 alleging the vote violated state code. The lawsuit was later amended to add a vote to remove the statue of Gen. Thomas “Stonewall” Jackson.

On Friday, the third day and final day of trial, Judge Richard E. Moore ruled that though no damages could be awarded under the statute, attorneys fees will be given to the plaintiffs’ counsel.

Prior to Moore’s rulings, attorneys for the two sides presented arguments on damages and attorneys fees.

Ralph Main, an attorney for the plaintiffs, argued that the 188 days the statues were covered by tarps encroached on a state law protecting war memorials and caused his clients emotional distress.

The statues were reportedly shrouded as a sign of mourning following the murder of Heather Heyer and the deaths of two Virginia State Police officers at the Aug. 12, 2017, rally. Moore initially ruled that the tarps did not constitute encroachment, but he reversed that ruling after it became apparent to him that the City Council did not intend to remove them.

Lisa Robertson, chief deputy city attorney representing the city and City Council, argued the code section in question only allowed for damages to be awarded for physical harm to the statues, which the suit does not allege.

During his explanation, Moore appeared at first to side with the plaintiffs, pointing to the harm he said is caused whenever a public work is hidden from view.

“Whenever something of public value is hidden from view, that is a loss, and there are damages associated with that,” he said. “It may not be a tangible harm, but it is present, nonetheless. Certainly, the plaintiffs felt it.”

At first, Moore said he did not take issue with tarp shrouds being used as a sign of mourning, but 30 to 60 days would have been more appropriate. After approximately six months of being covered, Moore ordered the tarps removed.

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At first, Moore said he considered awarding damages for part of that period. However, after giving it some thought, he said he could not find that the code section allowed for emotional damages to be awarded.

As he read it, the law allows only for damages to be awarded primarily to repair the statue. With no physical damage to them, he therefore could not award any, he said. Moore also will not award damages for the cost of the tarps used to cover the statues, ruling that doing so would essentially be charging taxpayers twice.

The 12 plaintiffs were seeking $500 each, totaling $6,000, a number Moore cited as part of the range of money he had at one point considered appropriate.

Though no damages were awarded, Moore said he will award attorneys fees. The exact amount has not been determined yet, with the judge opting to read some cases and weigh arguments before issuing his complete ruling.

In total, the plaintiffs are seeking $604,038.33 in legal costs, the bulk of which comes from the hourly rates of four attorneys and one paralegal who worked on the case.

Robertson argued against the fees on the grounds that the statute only provides them if damage has been done. Given Moore’s earlier ruling, she said she did not think the plaintiffs met the statutory requirements.

Moore disagreed with this argument, pointing to a temporary injunction he ordered to prevent the statue of Lee from being removed. It did not make sense to wait for damage or removal to happen in order to file a lawsuit protecting the monuments, he said.

“It seems inconsistent to say that, because they acted to prevent harm, that they cannot acquire attorneys fees,” he said.

On the first day of trial, Moore issued a permanent injunction, preventing the removal, disturbance, violation or encroachment of the statues.

Swayed in part by arguments from Robertson that various factors — including legal work for issues the plaintiffs did not prevail on — Moore said he will perhaps decide to lower the attorneys fees he awards.

However, Moore said he could not disregard the actions of the City Council when they voted to remove the Lee statue in February 2017. In doing so, he said the councilors not only violated the law by ignoring the state code, recommendations from the city attorneys and the Blue Ribbon Commission — a group tasked with determining what to do with the Confederate monuments.

“It appears the City Council just decided what they wanted to do and did it,” he said. “[The statute] was nothing new, they knew it existed and they proceeded anyway. That will flavor my decision on attorneys fees.”

Moore did not give a timeline for when he would determine how much he would award.

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