The Monument Fund

Preserving and Defending our Historic Monuments and Memorials

Judge grants us summary judgment

Judge Moore distributed a carefully written 9-page letter opinion dated April 25, 2019 stating that Plaintiffs have won their motion for partial summary judgment: the Lee and Jackson statues in Charlottesville, Virginia are monuments covered under Virginia Statute §15.2-1812:

“Upon a full consideration of the matter, I find that there is no other reasonable conclusion but that these statues are monuments and memorials to Lee and Jackson, as Generals of the Confederate States of America, and that as such they are monuments or memorials to veterans of one of the wars listed in Va. Code §15.2-1812.  I find this conclusion inescapable. It is the very reason the statues have been complained about from the beginning. It does no good pretending.”

“I do not believe that any reasonable, rational factfinder could find that these two statues are not monuments or memorials to two Confederate Generals from Virginia and as such to veterans of the American Civil War, or the War Between the States, one of the conflicts listed in the statute. No additional evidence is necessary or would be helpful in further considering this issue.”

“Therefore, in conclusion, I find that both statues are monuments and memorials to veterans of the War Between the States, as mentioned in Virginia Code §15.2-1812, and am granting Plaintiffs' Motion for Partial Summary Judgment as to these two statues each being a monument or memorial to a veteran of the Civil War, or the War Between the States.”

“But this is the only motion I am ruling on at this time, in this letter. There are still several other issues remaining in the case. So this does not mean that Plaintiffs will prevail simply because I find that these statues are monuments and memorials as referred to by the statute. I have simply concluded that there is no point in putting this determination off any longer. They are what they obviously are, and I am just calling them what they in fact are. The purpose of a Motion for Partial Summary Judgment is to prevent the expenditure of time, energy, and expense on a futile point, on a matter that is self-evident, and on which no additional evidence can change the outcome. This is such a situation.”

We must emphasize that this case is not yet over as there are still significant motions before the court, but we are pleased to report that this major point was decided in our favor.

City Councillors lose on immunity -- again

Judge Moore issued an opinion letter January 22, 2019 confirming his previous ruling that the individual City Councillors could be sued as individuals, for deliberately flouting the law.

Two days later the Virginia Supreme Court rejected Jones Day’s petition for a Writ of Mandamus. So the individual City Councillors stay parties, potentially liable for all the damages including our attorneys fees.

On February 19 the parties will go to a Judicial Settlement Conference: Court-ordered mediation before a retired judge. Some sort of settlement is possible, though neither side thinks it likely.

What is more likely is that Judge Moore will decide our pending Motion for Summary Judgment in our favor. If he does, for the most part — we’ll have won.

Trial postponed-- again

Jones Day on behalf of their four clients filed a request for a jury trial in December. The trial, already delayed from October 2018 to January 2019 at the Defendants’ request, will have to be delayed further. Now the earliest it could happen is March 2019; possibly September 2019.

Judge Moore granted our request to amend the Complaint to include the Jackson monument (originally the City had not threatened to remove Jackson, but changed their mind after August 12) and to also hold the City liable for the encroachment of covering the monuments with tarps.

A predicable flurry of new motions contest the efficacy of the Second Amended Complaint. These will be addressed in January.

Defendants ask Va. Supreme Court: force Judge Moore to hurry up — and make him rule in our favor

On December 3, 2018 Jones Day lawyers on behalf of four of five City Councilors, filed a petition for a Writ of Mandamus with the Virginia Supreme Court.

A Writ of Mandamus is essentially a separate lawsuit — in this case, suing the judge. It is usually used to compel a nondiscretionary act for some reason left undone. For example: Mandamus is used in Freedom of Information Act cases, when a locality is wrongly withholding records. Another example: requiring an official to sign and issue a commission for a justice of the peace already approved but left unsigned (origin of the famous case Marbury vs. Madison).

But it is a wrong, even laughable, use of Mandamus to interrupt a lawsuit in mid-litigation, and compel a Judge to reverse a ruling. The Defendants want the Supreme court to force Judge Moore immediately to reconsider his rulings denying legislative privilege: immunity from having to explain themselves or answer for what they did. And they require Judge Moore to reverse his decisions. 

A judge need not reconsider rulings. Most judges won’t: otherwise no decision is ever final. Even if Judge More chooses to reconsider, the Defendants can’t make him hurry up. Let alone force him him change his mind.

The rules say the Attorney General can choose whether to defend the Judge, or farm out the case to other lawyers. Attorney General Mark Herring’s office decided to defend Judge Moore.

The same Mark Herring whose letter opinion in August 2017 stands in contradiction to Judge Moore’s ruling on applicability of the Monument Protection law. The same Mark Herring who is now running as a Democrat for Governor of Virginia, on a platform which favors removing Confederate monuments.

But lawyers for the Attorney General’s office filed a brief saying this is the wrong use of a Mandamus petition, that it cannot substitute for an appeal. Evidently fidelity to the law has taken precedence over politics in this instance.

A decision could take months if that is, the Defendants don’t simply withdraw their misbegotten Mandamus petition.

Yet more lawyers

The Judge postponed the trial from October to January 14-16, 2019, at the Defendants' request, and as a consequence the pretrial schedule has shifted and expanded. 

At the  rescheduling hearing, the law firm Jones Day entered an appearance for four of the five City Councilors: Bellamy; Galvin; Signer; and Szakos.  A Jones Day lawyer told the judge that 15 (fifteen) Jones Day lawyers are providing their services to the Defendants pro bono. The fifth former Council Member, Bob Fenwick, is not being represented by Jones Day for reasons unknown.

Counting three in the City Attorneys' office, three more representing the City's insurer, and the fifteen Jones Day lawyers, the Plaintiffs now face 21 counsel.   We have two lawyers: Ralph Main and Colt Puryear.  A third is on standby for the appeal. 

The City also indicated that it intends to ask for a “protective order” forbidding disclosure of their expert witnesses and evidence. They told Judge Moore that they are afraid of “doxing” - the gathering of information about a person through social media or other web-related sources.  Judge Moore said that issue will have to be addressed at an evidentiary hearing.

Tarps removed; case proceeds to trial

Judge Moore granted our motion, and ordered the tarps removed. 

But he left the orange fencing and no trespassing signs.  They remain to be dealt with.

There have been several procedural developments since the last post. 

Judge Moore ordered the City and the individual City Councillors to turn over any emails they've written about the monuments.   That should be revealing once we get them. 

We are now governed by a pretrial scheduling order that sets deadlines for completion of  discovery, in advance of a (currently scheduled) trial date of October 26, 2018. 

We say currently scheduled because the Defendants have asked to postpone the trial until January 2019.   We argue the trial should start in October.  Continue later if we need more time.  The judge will decide that, probably sometime in August. 

In accord with the pretrial order we've designated eight experts, mostly historians, who will testify for us. 

And we've filed requests for admissions. 

Essentially we are asking the City to admit that statues the City calls Confederate monuments,  want to remove because they are Confederate monuments -- are in fact Confederate monuments. 

Seems silly but they persist in denying it.   Deny the world is round, put us to our proof: a last ditch defense strategy.

Motion to Remove Covers Filed

In August 2017, the city wrapped the Lee and Jackson monuments in black plastic tarps, duct taped in place.

After citizens repeatedly pulled off the covers, in September 2017 the City surrounded the  monuments with orange plastic fencing and no trespassing signs. 

Charlottesville Circuit Court Judge Moore on October 4, 2017 took the city at its word that the covers were temporary, and allowed them to remain in place for a limited time.  

But on November 6, 2017 City Council passed a resolution calling for permanently screening the monuments from public view. 

The Monument Fund and the other plaintiffs promptly filed a motion asking the Court to order the City to remove the covers, and cease impeding access to the monuments. 

The motion points out that the City never got BAR approval for the covers.  And winter winds, tarps frozen to the monuments, and the weight of snow increase the potential for damage.   

The motion asks for a substantial fine for every day the covers remain in place. It cites a similar case in Alabama, where the State Attorney General asked a court to fine the City of Birmingham $25,000 per day, for each day its Confederate monuments remain obscured.

The  hearing on the motion to remove the tarps is currently scheduled for February 5. 

Injunction enlarged and duration extended

Judge Moore this afternoon (October 24) entered an agreed order to extend the duration of the injunction prohibiting the removal of both Lee and Jackson, until the end of the case.  Otherwise it would have expired November 2.  

The order does not affect the burqas on the monuments.  That issue remains to be dealt with.

Judge decides Lee and Jackson are protected

At a hearing on October 4, 2017 Charlottesville’s Judge Moore essentially told the city both monuments are staying where they are, and their tarps need to be temporary.

Judge Moore provided the parties a sixteen page letter ruling rejecting most of the Defendants' Demurrer, deciding that Virginia’s Monument Protection law (Va Code §15.2-1812) does prohibit removing both monuments. The judge differed with interpretations by a Danville judge, echoed by Virginia’s Attorney General, that the law only protects monuments in cities erected after 1997.

He also found all the Plaintiffs had standing to bring suit under the Monument Protection law, and that some (city citizen taxpayers) had standing to complain that city is acting illegally and without authority, called ultra vires.

He decided the City can rename Lee Park as Emancipation Park. Whether they can rename Jackson Park remains for trial (the name was specified as part of McIntire’s gift to the city).

What’s next: we will amend our Complaint to correct a drafting deficiency (omitting to call General Robert E. Lee “a Confederate veteran.”)  If the judge deems the amendment acceptable, he will hold another hearing later this month to consider whether to extend the expanded injunction.

Meanwhile Defendants said they are preparing an interlocutory appeal. Presumably they mean to challenge the ruling on the Monument Protection law, before the Virginia Supreme Court.   Accordingly we are retaining appellate Counsel.

Demurrer heard; injunction to be expanded

In a four hour hearing, Judge Moore heard arguments on the Demurrer from both sides.  He said he would issue a decision in the next few weeks.  The Plaintiffs have also filed a motion to strip the giant trash bags off Lee and Jackson.  The hearing on that motion has not yet been scheduled.   

Demurrer rescheduled

Because of a courtroom scheduling conflict the Judge has rescheduled the hearing on the Demurrer for September 1 (but that too could change).  There may be other matters discussed, but we do not as yet have confirmation.  It is important to say some news reports have erred: this is NOT the trial of the case.  A Demurrer is a procedural matter.  Any other issues brought before the court would be only tentatively decided, pending a final decision later.   

Temporary injunction granted - Lee removal blocked

Charlottesville Circuit Court Judge Moore issued a six month temporary injunction against removing the Lee monument finding ”the plaintiffs are likely to prevail on the merits.”  He differed with and declined to follow the Danville case, which had held the law was not retroactive to monuments erected before a 1997 amendment. 

The judge allowed the city to go forward with a contest on renaming parks and planning to reconfigure them, because “that can all be undone.”   

The judge had carefully read voluminous pleadings and briefs beforehand, and then presided over a six hour hearing in which seven witnesses testified.  The judge retired to his chambers, reflected on the evidence and arguments, and returned to rule from the bench.  His decision was precise, thoughtful, and enjoined  only what needed to be stopped immediately.  One experienced and prominent lawyer called the judge's carefully tailored ruling "unassailable."

Councilor Szakos persists in her view that the city should remove Lee, and asserted in the newspaper that City Council need only wait six more months until the injunction expires.  She errs: the judge ruled at least initially removing Lee is illegal; he might later change his mind but it seems unlikely.   

The lawyers meet in June to set a hearing on the Defendants’ demurrer (their attempt to get the case dismissed).  The judge’s decision and his comments on their demurrer however, indicate that for the most part the demurrer will fail.  The Defendants might successfully challenge some ancillary aspects of the Plaintiff's case but a dismissal is unlikely.   On the main issue, we are winning.

This is only the beginning of a lengthy judicial process. But it has been a very good beginning.   

Hearing set

The Defendants responded to our Complaint with a Demurrer (an attempt to dismiss the case) and an Answer to our request for an injunction.  The parties are getting ready to exchange legal briefs, and the hearing on the injunction request is set for May 2.  

Lawsuit filed

On Monday, March 20, 2017,  at 8:40am, The Monument Fund, Inc., the Sons of Confederate Veterans, Inc. and nearly a dozen private citizens filed suit in Charlottesville Circuit Court to stop the City of Charlottesville from removing the Robert E. Lee monument from Lee Park and from radically reconfiguring both the Lee and Jackson parks.

The Complaint charges the city with (1) violating Virginia’s monument protection law, (2) acting outside the authority delegated to them by the Virginia General Assembly and (3) violating the terms of Paul Goodloe McIntire’s gifts.

The lawsuit seeks an injunction to freeze the status quo in both parks and stop any potential destruction while this complex litigation moves forward. Additionally, plaintiffs are seeking damages against the City and against each Councilor individually for acting recklessly and in deliberate disregard of the law.

Representing the plaintiffs are three counsel of record: Ralph Main, Esq., Colt Puryear, Esq., and Elliott Harding Esq., assisted by several other counsel.

The city has three weeks to respond. The lawyers anticipate an initial effort to dismiss the Complaint, and then most likely a hearing on our request for an injunction. The case will be hard fought, and the outcome of litigation is never a certainty. But a lot of hard work went into case preparation, and the lawyers are optimistic.

Pleadings In Preparation

Pleadings are now in preparation.  A team of seven lawyers have worked tirelessly for over two months gathering evidence, researching points of law, and preparing the initial pleadings in what is likely to be a hotly contested case.  The projected filing date is confidential.  But lawsuit filing is anticipated —soon.

The Monument Fund, Inc. is a 501(c)(3) and contributions are tax deductible