Tag: Lisa Robertson

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The jury is out: Judge agrees councilors have immunity in Confederate statue case

The Robert E. Lee and Thomas “Stonewall” Jackson statues have remained at their respective locations throughout the trial. (Staff photo)

Five current and former city councilors can breathe a little easier now that a judge has ruled they aren’t personally liable for their votes to remove two Confederate statues downtown.

Charlottesville Circuit Court Judge Richard Moore penned a letter to the opposing legal teams in Monument Fund v. Charlottesville on July 6, explaining that he determined the individual councilors have statutory immunity because they didn’t act with “gross negligence,” nor did they approve a misappropriation of funds. That gets current councilors Mike Signer, Wes Bellamy, and Kathy Galvin, as well as former officials Bob Fenwick and Kristin Szakos, off the hook for any personal liability in the case. It also means there’s no longer a need for a jury, and the two sides will proceed toward a bench trial tentatively scheduled for September.

The Monument Fund claims City Council violated state law when it voted to remove the Robert E. Lee statue in Market Street Park. It later amended the suit to include Council’s decision to take down the Thomas “Stonewall” Jackson statue located three blocks away from Lee after the Unite the Right rally in August 2017. The case has moved slowly since it was initially filed in March 2017, and several motions are still under review.

One of those motions is the plaintiffs’ request for a summary judgment on the defense’s equal protection argument under the 14th Amendment. The Monument Fund did make its case before the court, represented by University of Richmond law professor Kevin Walsh. He told Moore that while the plaintiffs don’t dispute that many people are offended by the monuments, no one is personally being denied equal treatment by the statues’ presence as “there is no right not to be offended.”

Chief Deputy City Attorney Lisa Robertson filed a written statement to the court but her team won’t make its oral argument until the next hearing, which is slated for July 31. She declined to comment until then.

With a jury off the table, the plaintiffs also backed down on their request for a change of venue. Instead, they’ll seek a new facility for the proceedings, because the air conditioning unit in the court’s temporary building is too loud and must be shut off during the hearings, making the courtroom much hotter during the summer.

They previously argued that it’d be impossible to compile an unbiased jury in Charlottesville due to the defendants’ roles as elected officials—now a moot point—and “incessant news coverage,” including that of C-VILLE Weekly, which they allege “savaged” the plaintiffs, according to the motion to move the trial.

Plaintiff Edward Dickinson Tayloe II is also suing C-VILLE Weekly, along with news editor Lisa Provence and UVA assistant professor Jalane Schmidt, for defamation for statements in this feature story. He is seeking $1 million plus $350,000 for punitive damages.  A copy of that complaint is here: tayloe v. c-ville.

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But their emails! Councilors must turn over docs in monument suit

Braxton Puryear is one attorney representing plaintiffs in the case. Staff photo

 

In a lawsuit aimed at keeping the statues of Confederate generals Robert E. Lee and Thomas “Stonewall” Jackson in Charlottesville, city councilors have been ordered to turn over documents related to conversations of removing them—a decision the council made, initially just to remove Lee, in a 3-2 vote in February 2017.

Charlottesville Circuit Court Judge Rick Moore ordered June 19 that current councilors Wes Bellamy, Mike Signer and Kathy Galvin, and former councilors Bob Fenwick and Kristin Szakos, who were serving at the time of the vote, would have to supply documents dating back to September 2016.

Plaintiffs are asking for paper trails, including emails, text messages, phone calls, memos and videos from official city accounts and councilors’ private servers, and have specifically asked for those between the city leaders and members of activist groups such as Black Lives Matter and Showing Up For Racial Justice, according to acting city attorney Lisa Robertson.

“The plaintiffs are showing their hand,” she said. “It comes close to a witch hunt, your honor, and I don’t know any other word for it.”

Plaintiffs include 11 individuals, such as attorney Fred Payne, a city resident who “enjoys both Lee Park and Jackson Park and the monuments erected therein on a regular basis,” according to the lawsuit, and two groups: the Monument Fund and the Virginia Division of the Sons of Confederate Veterans.

The suit was filed in March 2017, before the spaces were renamed as Emancipation and Justice parks, respectively.

Robertson argued that the plaintiffs didn’t succinctly define the type of documents they’re seeking, and that the range of dates from which they want to collect evidence was too wide. (While the judge ruled that councilors would need to sort through materials dating back to September 2016, plaintiffs had originally asked for that through January 2016.)

Plaintiffs attorney Ralph Main didn’t deny that the scope of evidence was large.

“We wanted to find out if there was something going on ahead of time,” he said. “I don’t think it’s a fishing expedition.”

Robertson called the plaintiffs’ request “painful” and asked the judge if he had any idea of the sheer volume of emails councilors received from people all over the nation in the wake of their decision to remove Lee and Jackson. And Moore said, yes, because of the national movement to contact city clerk Llezelle Dugger, and tell her how he should rule. Through her, Moore said he received “thousands” of messages.

He then ruled that councilors would not need to turn over messages they received, and only the ones they sent.

Last week, he ruled that councilors are not immune to legal fees or paying for damages related to their vote to remove the Confederate statues, and Robertson said it could be two more weeks before the city’s insurance company is able to determine who’s covered.

Individual councilors may have separate attorneys, and should not be compelled to turn over evidence until that’s sorted out, argued Robertson. But Main said deadlines are quickly approaching, and they’ve been parties in the suit since it was filed.

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‘Trash bags’ can stay: Statue lawsuit moves forward

A judge will decide by February 27 if the tarps that shroud statues of Confederate generals Robert E. Lee and Stonewall Jackson should be removed. Photo by Eze Amos

In the case of whether the city’s longstanding General Robert E. Lee statue should remain on its feet, a judge ruled October 4 that a lawsuit protecting it can go forward, and the black shrouds temporarily draped over Lee and his buddy, Thomas “Stonewall” Jackson, can also stay.

In Charlottesville Circuit Court, S. Braxton Puryear—one of several attorneys representing plaintiffs who want to overrule City Council’s March decision to remove the Lee statue—argued that the tarps could cause irreparable harm to the monuments.

“It’s not a shroud, it’s a trash bag,” he said, bringing to mind an image of the statues as giant bags of leaves set out on the curb.

The city’s Parks and Recreation department sheathed Lee and Jackson August 23, to mourn the loss of Heather Heyer and two Virginia State Police officers, who died during the August 12 white supremacist rally.

“Every minute those covers are in place, there’s harm being done,” Puryear said, and he cited evidence from experts on corrosion and aeronautics, who testified that the tarps could trap moisture that corrodes the statues, or catch like a sail in the wind and blow the whole monument over.

A stifled snarl could be heard from someone who appeared to believe Charlottesville winds are incapable of blowing away a massive bronze war memorial.

Lisa Robertson, the deputy city attorney representing Charlottesville in the case, motioned to strike all of the plantiffs’ evidence, and said she doesn’t think the shrouds have caused irreparable harm to the statues.

“Like it or not, since the covers have gone on, things seem to have calmed down,” she said. She called City Manager Maurice Jones to the stand, who said Parks and Rec employees intermittently check on the statues and haven’t reported any damages.

The shrouds have, however, been ripped from the statues so many times we’ve lost count. Now, Lee and Jackson are surrounded by orange fencing and no trespassing signs. Moore ruled they can stay that way for an undisclosed amount of time, so long as the coverings and barriers are temporary.

The judge also ruled that while a Virginia statute protecting war memorials does apply in this case—a major win for the plaintiffs—they have not convinced him that the Lee sculpture falls into that category. He gave them 21 days to amend their pleading and refile.

The code says it’s illegal for any locality “to disturb or interfere with any [war] monuments or memorials so erected, or to prevent its citizens from taking proper measures and exercising proper means for the protection, preservation and care of the same.”

Puryear’s pretty sure the Lee and Jackson statues are war memorials. “These are not a couple of old guys out riding on a horse,” he said. “These are Confederate generals.”

Plaintiffs also asked the judge to extend the injunction of the removal of the statue until May 2018, but he ruled that he would not expand it further than its November expiration date. He did allow the injunction to include the Jackson monument, because City Council has also voted to remove that one, too.

Robertson offered to tell the court the full costs of the Unite the Right rally on August 12, and said the “sole purpose” of the deadly white supremacist gathering was to protest the removal of General Lee.

Judge Moore called her comment a “red herring,” meant to distract from the questions at hand in the lawsuit.

“No one had to show up to confront those people,” Moore said, accompanied by groans from those in favor of tearing the statue down. “The statues didn’t cause anything. People did.”

Robertson replied, “Your honor, you don’t have to tell me that.”

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Statute retroactive? Judge mulls city’s motion to throw out statue lawsuit

The battle over where the statues of generals Robert E. Lee and Stonewall Jackson will reside continued in court September 1. File photos

The battle over Charlottesville City Council’s vote to remove the statue of General Robert E. Lee continued in a packed courtroom September 1, with the lines pretty clearly drawn between statue supporters and those who want Lee to make a final retreat.

The hearing was to argue the city’s demurrer, which alleges that even if all the facts are correct in the lawsuit filed by the Monument Fund, the Sons of Confederate Veterans and other plaintiffs, the 1997 Virginia law that prohibits municipalities from removing war memorials is not retroactive, and would not apply to the Lee statue that Paul McIntire gave the city in 1924.

Plaintiffs attorney Ralph Main maintained that a common sense reading of the law was in order.

At the end of the hearing that stretched four hours, Judge Rick Moore decided to take a few more weeks before ruling, although he did sustain the city’s right to rename Lee Park to Emancipation Park.

The issue has roiled Charlottesville since Vice-Mayor Wes Bellamy called for the statue’s removal in March 2016. City Council voted to remove the statue of Lee in February, while keeping the monument of General Stonewall Jackson. It also renamed the eponymous parks Emancipation and Justice in June.

Since then, Charlottesville has become a magnet for white supremacists, drawing tiki-torch-carrying marchers in May, the KKK in July and the deadly Unite the Right rally August 12. The latter has spurred cities in other states to remove their own Confederate monuments, but such action in Virginia has been stymied by state law.

In Charlottesville Circuit Court, the Lee supporters were older, whiter, more tie- and seersucker-wearing, with more Colonel Sanders’ beards. And at least one of those there, who has been alleged to be a Sons of Confederate Veterans member, was an attendee at the August 12 Unite the Right Rally, where he wore an emblem of the secessionist-favoring hate group League of the South and was photographed with longtime white supremacist David Duke.

Statue opponents were younger, more racially diverse and more likely to be wearing a Black Lives Matter T-shirt. Many of them gathered outside the courthouse with signs before the hearing began, and many of them attended the chaotic August 21 City Council meeting, a fact of which Judge Moore was aware.

“We’re not going to allow that,” he said at the beginning of the hearing. “If you’re not able to control yourself, you should leave.”

Moore also noted that the clerk’s office had been inundated with thousands of calls, letters and emails, “overwhelmingly from out of state,” and he asked the senders to knock it off. “Our courts are not a majoritarian institution,” he said. “Judges do not wait to see what public opinion is. It’s improper for a person to contact a court to influence a case.”

Deputy City Attorney Lisa Robertson hammered at the fact that when the General Assembly passed the monument law in 1997, it also passed a statute that requires specific language stating if a new law applies limits to a city’s previously held authority. “The words the General Assembly had to use for retroaction are not present in this legislation,” she said.

She also questioned the standing of the plaintiffs, maintaining that being a taxpayer is not enough, because it would “give standing to challenge any decision of city government.”

On that issue, in a 2009 case in the same Charlottesville Circuit Court, Judge Jay Swett said a group of citizens trying to block the building of the Meadow Creek Parkway through McIntire Park did have standing, although he ultimately denied their injunction to stop the already underway construction of the road.

Main argued the legislators intended for the monument law to be retroactive, because the statute listed wars going back to before the nation’s founding, and he asked, “How many people are erecting monuments these days for the Algonquin War?”

Judge Moore pointed out the law doesn’t say “has been erected,” and that while he wanted to apply a common sense ruling, “I’ve got to consider what the law says.”

Main also said proof of the General Assembly’s intent was a law it passed last year clarifying the 1997 law, legislation that was not signed by Governor Terry McAuliffe.

“That particular bit of evidence is ambivalent,” said Moore, and could mean the law is not retroactive but “that’s the way we want it now.”

Main argued that anyone with an interest in the matter had standing, and he described the plaintiffs, some of whom had contributed money for the litigation. That was an argument Moore didn’t seem to buy. “The fact someone funds litigation doesn’t create standing,” he said.

Nor did he go for the fact that one of the plaintiffs, Edward Bergen Fry, is the great-nephew of the sculptor Henry Shrady. “That’s a question for me, just because he’s related to the person who created the statue, how does he have something legally at stake?” asked the judge.

After a 30-minute recess, Moore said he needed more time. He also held off okaying the renaming of Jackson Park because the deed made that name a condition.

In addition, he sustained the city’s argument that the plaintiffs could not claim damages, because there were no actual damages.

In May Moore granted a temporary injunction to prohibit the city from removing Lee while the issue was under litigation. With the city likely to vote to remove the statue of Jackson September 5, and with both statues now covered with black tarps, he’ll be hearing motions on those matters September 6.

He also promised those left at the end of the hearing that someone would be disappointed. “I don’t know how I’m going to rule,” he said. “There’s strong merits on both sides.”