Plaintiffs Frank Earnest, Jock Yellott, and Dickie Tayloe leave Charlottesville Circuit Court after the latest hearing in their lawsuit to keep Confederate statues in city parks.
staff photos
Judge Rick Moore got one big issue out of the way in the two-years-long lawsuit against the city and City Council for its 2017 vote to remove statues of Confederate generals: The monuments of generals Robert E. Lee and Stonewall Jackson are indeed war memorials under state code, which prohibits their removal.
In court May 1, he started off the status hearing by explaining his April 25 ruling, because of misunderstandings that he said had occurred.
“It was a critical decision, but it is not the end of the court case,” said Moore, who took the opportunity to note the two boxes of case files and how busy he is to explain why it has taken so long to get rulings on the motions that have been filed. “This is just one case. I’m just one judge. This is an important case, but not the only one I have.”
The lawsuit was filed by 13 plaintiffs, including the Monument Fund and the Sons of Confederate Veterans, who allege councilors Wes Bellamy, Bob Fenwick and Kristin Szakos unlawfully voted to remove a statue of Lee donated to the city by Paul Goodloe McIntire. The vote to remove Jackson was added to the suit after August 12, 2017, when councilors Mike Signer and Kathy Galvin joined the unanimous vote to oust the Confederates.
All of the councilors were in court except for Fenwick, as were a number of the plaintiffs, including Frank Earnest with the Sons of Confederate Veterans, who has traveled from Virginia Beach for hearings over the past two years, Monument Fund organizer Jock Yellott, and Dickie Tayloe, whose First Family of Virginia was once one of the largest slave owners in the state.
Moore did issue a ruling, and denied a plaintiffs’ motion to keep the defense from using equal protection under the 14th Amendment as part of its case. That argument says because the Civil War was fought primarily over slavery, the statues are part of an effort to intimidate African Americans.
“Equal protection being constitutional, it would be hard for me to say you’re not going to argue that,” he said. “I’m not in a position to say the defendants cannot prevail on that.”
Yet to be ruled upon is a motion to determine whether councilors had statutory immunity when they voted to remove the statues, and Moore said that’s next on his list.
Plaintiffs attorney Braxton Puryear complained that councilors had not provided depositions or discovery that would help him determine whether they acted with gross negligence when they voted to remove the statues, a key in determining immunity.
Legal powerhouse Jones Day is representing pro bono all of the councilors except Fenwick, and attorney Esha Mankoti said that’s why the issue needs to be decided immediately, because if councilors have immunity, their emails would be protected as well.
“That argument has the flavor of a circular argument.” said Moore, who said he sympathized with the plaintiffs, who have been asking for discovery for two years. “You don’t postpone the depositions,” he said.
He said the emails they sent each other the night before the vote could be the “smoking gun” if councilors said, “We can do what we want.”
Still, the judge wasn’t ready to say council’s actions amounted to gross negligence.
Outside the courthouse, plaintiff Buddy Weber felt “very good” about the recent ruling that the statues are war memorials.
However, activist Ben Doherty described Moore’s ruling as buying into the Lost Cause narrative because it neutralizes what is “overt white supremacy.”
Attorney Janice Redinger, who is not involved in the case, says, “I think there’s a chilling effect that these legislators may be personally liable for passing an ordinance. Look at all the unconstitutional laws passed by the General Assembly.”
Sons of Confederate Veterans’ Frank Earnest is unwavering in his belief that the Civil War was not about slavery, and the statues of generals Lee and Jackson honor defenders of the state. Photo: Timothy C. Wright
Before August 12, 2017, many people thought of America’s Confederate statues as harmless pieces of history—if they thought of them at all. Then the hate groups came to Charlottesville, ostensibly to protest the monuments’ removal. The violent clashes that led to the death of Heather Heyer and the injury of dozens, and the sight of Confederate flags waving alongside Nazi flags, brought new urgency to the conversation about the meaning of Confederate symbols.
Cities like Baltimore and New Orleans quietly sent their monuments packing. Descendants of General Robert E. Lee and General Stonewall Jackson have said statues of their ancestors have become tributes to white supremacy and need to go. And many brought up the words of Lee himself, who was opposed to memorializing the Confederacy after the war was over.
But one group of citizens remains unconvinced—the 13 plaintiffs in the lawsuit known as Monument Fund v. Charlottesville.
The people and organizations suing to stop the city from moving its Confederate statues straddle a spectrum that ranges from First Families of Virginia to a heritage organization that has members who were here August 12 with a secessionist, neo-Confederate gang.
“You’ve got the bow tie, upscale people tied to the League of the South people who want to secede and are slavery apologists,” says activist and UVA professor Jalane Schmidt.
Three years ago, some City Council members and local activists raised the idea of removing the Confederate statues from downtown. The city appointed a community commission that spent months examining the issue and ultimately presented City Council with two options to consider: relocating the statues to McIntire Park or re-contextualizing them by transforming the existing sites. In February 2017, City Council voted 3-2 to remove the Lee statue, and in April voted to sell it.
Then came August 12. Following the trauma that made Charlottesville a national hashtag, former “no” votes Mike Signer and Kathy Galvin joined Wes Bellamy, Kristin Szakos, and Bob Fenwick in saying that both the Lee and Jackson statues should go.
And that’s the issue in the lawsuit: whether councilors violated Virginia state law, which forbids the removal of war memorials, when they voted to send the Confederate generals on their way.
The lawsuit is approaching its second anniversary March 20. It’s scheduled to be in court March 11, but plaintiff spokesman Buddy Weber is dubious that it will go to trial then because Jones Day, one of the largest law firms in the world, is representing four of the five councilors and has asked for a jury trial.
In the two years the case has been active, Judge Rick Moore has ruled that the councilors do not have immunity and are personally liable for voting to remove the monuments.
In January, Delegate David Toscano carried a bill to allow localities to decide for themselves whether they want Confederate statues in their midst. The bill was killed in subcommittee.
While much has been written about—and much blame thrown at—those who first raised the idea of removing Confederate monuments from the center of town, very little attention has been paid to those still fighting the city’s decision. C-VILLE reached out to the plaintiffs to find out why they joined the suit and whether anything had changed for them since 2017.
Here’s what we found out:
Edward Dickinson Tayloe II
Tayloe, 76, comes from a First Family of Virginia that was one of the largest slave-owning dynasties in Virginia. His ancestor, John Tayloe II, called “one of the richest men of his day,” built Mount Airy plantation in Warsaw.
John Tayloe III, ancestor of lawsuit plaintiff Edward Dickinson Tayloe II, was one of the wealthiest men of his generation and “bred horses and slaves,” says the New York Times review of Richard Dunn’s A Tale of Two Plantations.
Tayloe’s great-great-grandfather, Benjamin Ogle Tayloe, invested in his brother Henry’s plan to start a cotton plantation in the Black Belt of Alabama in 1835, according to Richard Dunn’s 2015 book, A Tale of Two Plantations: Slave Life and Labor in Jamaica and Virginia.
An 1807 ban on importing slaves had opened the domestic slave trade for Virginia and other coastal states. The Tayloes had a surplus of enslaved laborers at their Mount Airy plantation and they sent them to the Deep South.
In 1838, the Tayloe brothers forced 57 slaves to walk 800 miles to Alabama, where most were sold. It was “the cruelest act that I have found recorded in the Tayloe papers,” writes Dunn.
Benjamin Ogle Tayloe continued to send rebellious slaves to Alabama as a warning to remaining slaves, says Dunn.
Between 1833 and 1854, the Tayloes marched 120 enslaved people to Alabama, and another 98 were sent during the Civil War, says Dunn. The domestic migration of enslaved people separated families, made Virginia a major slave exporter, and further enriched the Tayloes.
Plaintiff Tayloe’s father, Edward Thornton Tayloe IV, was vice-chair of the Charlottesville Redevelopment and Housing Authority when the decision was made to raze theAfrican American community of Vinegar Hill over the objections of its residents, many of whom were unable to vote on the issue because of a poll tax.
And the plaintiff, a portfolio manager, was past president of the Lee-Jackson Foundation, which has an endowment of nearly $4 million, according to 2014 IRS filings, and awards scholarships to students who write essays examining the legacies of the Confederate generals.
According to the lawsuit, Tayloe saw combat during the Vietnam War and served in Special Forces, and has a “special interest in the protection and preservation of war memorials in the city.” The Lee-Jackson Foundation contributed money in 1997 to the restoration of the Lee and Jackson statues, says the suit.
A woman answering the phone at the Tayloe residence referred a reporter to spokesperson Weber.
The plaintiff’s cousin, Tayloe Emery, who lives at Mount Airy plantation and who used to work at C-VILLE Weekly, bristles at a reporter’s inquiry about whether family members share his uncle’s enthusiasm for Confederate monuments. He writes in an email, “It’s a shame that our family name is being dragged around by the media and that reporters have the audacity to ask me stupid questions, like ‘do all of your family support Confederate monuments?’
“The answer is of course, no. The vast majority of my Virginia family are against Confederate monuments and anything that pays lip service to white nationalism in any way, shape, or form. Though many of us do in fact disagree with this lawsuit, we still support family members who may think differently on the subject and we hope that through continued conversation that they might see things from a different perspective and understand the bitter feelings and abhorrent racism associated with Confederate monuments.”
Says Schmidt, “For generations this family has been roiling the lives of black people, and this is what [plaintiff Tayloe] chooses to pursue.”
Anthony Griffin
Britton Franklin Earnest
Virginia Division, Sons of Confederate Veterans
Smithfield resident Tony Griffin, 57, is a Sons of Confederate Veterans “commander,” and Frank Earnest, who lives in Virginia Beach, holds the title “heritage defense coordinator.”
Earnest, 63, has been representing the Sons for almost 30 years, he says. “We are the bloodline descendants of the Confederate Army,” and when people start “mudslinging” about the Confederacy, they’re “talking about my great-great-grandfather.”
The Sons of Confederate Veterans contributed money to the 1997 restoration of the Lee and Jackson statues, and to the litigation, according to the lawsuit. “We don’t want to see monuments to defending our state removed,” says Earnest.
Earnest was in town August 11, 2017, for a Katie Couric interview and then got the heck out of Dodge. “It’s pretty bad when you know a riot is coming,” he says.
But the violence and open white nationalism of the Unite the Right rally have not changed Earnest’s mind about Confederate monuments. “Absolutely not,” he says. “It’s not something that comes or goes. They honor our ancestors.”
And he maintains the SCV has nothing to do with the white supremacist and neo-Nazi groups that showed up here, adding that it advised its members to stay away. “We have always denounced racist groups over our hundred-year history,” he says. “We have nothing to do with those people.”
Yet some Sons of Confederate Veterans members were here and hold dual affiliations with League of the South, which describes itself as a “Southern nationalist organization.” Its website honors John Wilkes Booth for his service “to the South and humanity.”
“We’re an organization of thousands,” says Earnest when asked about brothers George and Gregory Randall. He believes they’re still SCV members. “I don’t think we determined anyone in SCV did anything that rose to the level of complete expulsion.”
And, he says, Sons of Confederate Veterans are “in no way associated” with League of the South.
Sons of Confederate Veterans member George Randall carries the flag of neo-Confederate League of the South at Unite the Right. Photo: Rodney Dunning
Gregory Randall, who portrays General Stonewall Jackson in Civil War reenactments, and his twin George were in Charlottesville August 12 with League of the South.
George Randall, who lives near Fredericksburg, says he keeps his memberships separate and describes Sons of Confederate Veterans as a “historical” group while League of the South is “more political.”
Of the latter, he explains, “We’re secessionists.” He cites his ancestors and the Lost Cause narrative in objecting to Confederate monument removal. “We were invaded.” And he insists, “The war had nothing to do with slavery.”
He also blames Wes Bellamy for the whole monument mess, and says Bellamy is a “black supremacist.”
Says Randall, “I’m tired of everything being about race, race, race.” He objects to being called a white supremacist for wanting to “protect our culture. If you stand up for your people, you’re a Nazi or racist. It has nothing to do with hate.”
Randall was here for a lawsuit hearing in 2017 to provide security for an unnamed person, he says, but did not seem keen on returning for the upcoming court date because the last time he was here, his tires were slashed.
“I think Charlottesville sucks,” he says, denouncing “anarchist communists” and “antifa” whom he says threw urine and feces at him and his League of the South colleagues August 12. Says Randall, “You can’t wear a MAGA hat. I think it’s a crying shame.”
“Did we have a couple of rogue members in Charlottesville?” queries Earnest. “Probably, but we told them not to come.”
Is there a perception that the Sons of Confederate Veterans is a racist organization? “How much more prejudiced and bigoted can you be to ask that?” says Earnest, who has had a lot of experience talking to the press, not all of it to his satisfaction.
For instance, he was not pleased with a November 28 Washington Post story about him titled “Sins of the Fathers: The Confederacy was built on slavery. How can so many Southern whites believe otherwise?”
“I was very disappointed,” he says.
Charles L. Weber Jr.
Buddy Weber was in the U.S. Navy for 27 years, serving as a combat pilot before getting his law degree from UVA in 1998. He was chair of the city GOP, and in 2013, he ran for City Council with former city cop Mike Farruggio.
Attorney and Vietnam War vet Buddy Weber worries that if memorials to unpopular wars can be removed, Vietnam War monuments could be next. Photo: Elli Williams
Weber, 73, initially was appointed defense attorney for Heather Heyer’s murderer, James Fields, but cited his role in the lawsuit as a conflict of interest.
He says he signed on as a plaintiff for two reasons. As a lawyer and firm believer in the rule of law, “it’s my earnest belief City Council had violated the law, whether you believe the statues should stay or go,” he says.
And as a veteran of the “very unpopular” Vietnam War, he worries that those memorials could be next, negating the sacrifice citizens made of life and limb to defend this country. Virginia state law “protects these memorials from the shifting tide of public opinion,” he says.
If the General Assembly decides to change that, it can, he says, but he thinks Toscano’s bill to allow localities to make their own decisions about Confederate monuments is “a cop out.”
Weber also distances himself from those who showed up to support the Confederate monuments in 2017, taking the battle to court instead. “We do it without lighting tiki torches,” he says. “I don’t personally feel tarred because we have no association with them.”
Lloyd Smith
The founding partner of law firm Tremblay and Smith and a founder of Guaranty Bank and Virginia Broadcasting, the parent company of today’s NBC29, died last summer at age 85.
From 1997 through 1999, the former Marine represented a private group of citizens who raised money to restore the Lee and Jackson statues. That was a major reason he signed onto the lawsuit, says his son, Garrett Smith.
“The city agreed to maintain the statues in perpetuity,” he says, adding that his father always felt that when he represented people as clients, he continued to represent them.
Lloyd Smith “had a great love of history” and would visit Civil War battle sites, says Garrett Smith. “He believed the facts of the Civil War and the oppression of enslaved people was a history that needed to be told and understood.”
According to Smith, when Weber and attorney Fred Payne were helping to organize the lawsuit, they knew his father as “a Democrat and he represented a different group. He wasn’t a hardcore conservative Republican.”
He says his father was saddened by the events of August 2017, but Garrett Smith doesn’t think that changedhis father’s mind about the statues. “The city had become a flashpoint for a larger national debate.”
Frederick W. Payne
Attorney Fred Payne declined to comment for this story. In the first court hearing on the case May 2, 2017, Payne testified as an expert on Civil War uniforms because he “grew up with Confederate insignias since he was 10 years old.”
Fred Payne, an attorney and lawsuit plaintiff, has testified as an expert on Civil War uniforms. Staff photo.
The founder of Payne and Hodous in 1992, he serves as county attorney for Fluvanna, and was deputy county attorney for Albemarle from 1974 to 1987. He was also was an assistant commonwealth’s attorney for the county in 1979, according to the Payne and Hodous website.
Payne graduated magna cum laude from Yale, and got his law degree at UVA. He’s been president of the Charlottesville Albemarle Bar Association, as well as head of the city and county criminal bar association.
One of Payne’s better-known cases was his defense of widow Shirley Presley, who, in 2002, strung razor wire to block Rivanna Trail hikers from a path on her property along the river. The Rivanna Trail Foundation neglected to get her permission or an easement for that portion of the trail. A judge ruled in Presley’s favor on a code violation, and she settled her $1.5 million lawsuit against the city and foundation in 2008.
John Bosley Yellott Jr.
The Monument Fund
Jock Yellott is the fourth plaintiff in the lawsuit who’s an attorney. He’s also executive director of the Monument Fund, a nonprofit formed in October 2016 to help fund the statues’ defense. In 2017, it raised nearly $119,000, according to its IRS 990 form.
Because of his fundraising, Yellott, 64, has a financial interest in the outcome of the suit, and he conducts history tours describing the monuments, according to the complaint. He testified that he walks his dog through Market Street or Court Square parks daily. He did not return C-VILLE’s call.
Betty Jane Franklin Phillips
Phillips, 82, is described in court documents as a collateral descendant of Paul Goodloe McIntire, who donated the controversial statues and the once-segregated parks they inhabit, along with a number of other monuments, parks, and buildings around town. The Keswick resident is a Lane High School graduate. She did not respond to phone messages from C-VILLE.
Edward Bergen Fry
Ned Fry, 31, is the youngest of the plaintiffs. His great uncle Henry Shrady was the sculptor McIntire hired to create the Lee statue, and Shrady also did the Ulysses S. Grant statue in Washington near the Capitol.
Fry is himself a sculptor and graduated with a degree in sculpture from Virginia Commonwealth University. The CHS grad did not get back to us to discuss further his participation in the lawsuit, but at a 2016 Blue Ribbon Commission on Race, Memorials and Public Spaces hearing, he said he was in favor of keeping the statues because, “They are historical works of art and, more importantly, because Henry Shrady is my great-great-great uncle.”
Virginia C. Amiss
The 94-year-old plaintiff remembers riding the trolley from downtown to the Rotunda when she was 7 years old to take violin lessons, and that’s when she decided she wanted to study nursing at UVA, she wrote to Virginia magazine in 2010. She graduated in 1946, and worked at UVA and in Houston, as an operating room supervisor.
Amiss had had dental surgery and didn’t feel up to talking when C-VILLE reached her, and she did not respond a follow-up call.
While she is suing to keep the Confederate statues, she was not a fan of other sculptures installed around town by the city’s Art in Place program, a nonprofit dedicated to public art. In 2005, she asked City Council to eliminate the $5,000 it gave to the program. As Cvilleindymedia.org reported, “At the last meeting, her immortal words rang out: ‘Rearranged junk is still junk.’”
On Facebook, she supports prayer in school—and in the White House.
And through marriage, Amiss is related to Unite the Right organizer Jason Kessler. According to Ancestry.com and U.S. Census records, her husband, Lester “Randy” Amiss was first cousin to Kessler’s great-grandfather, LaSalle Norvell.
Stefanie Marshall
Albemarle resident Marshall is chair of the Monument Fund and has “personally expended money and effort in cleaning graffiti from the Lee monument in 2011 and 2015,” says the complaint.
She and her husband own construction company M3, which specializes in masonry. The company supports the Fraternal Order of Police, Live Arts, The Paramount Theater, Albemarle Charlottesville Historical Society and various local charitable organizations, according to its website.
The lawsuit is not the first time the county resident has had a problem with city government. In 2016, she took issue with City Council’s decision to honor Khizr and Ghazala Khan, and told council: “It seems to me that in order for a Gold Star family to be honored and recognized by the current City Council, they must speak at the Democratic National Convention. This is not appropriate, nor is it acceptable. It reeks of choosing to honor specific families or individuals because they fit your narrative.”
Marshall, 52, did not respond to a message from C-VILLE.
Correction March 7: Tayloe Emery is a cousin, not nephew of Edward Tayloe, and this Stefanie Marshall did not graduate from Albemarle High.
Supporters of Confederate statues line up to speak at a House of Delegates subcommittee January 30.
Staff photo
Ultimately, no one was surprised that a House of Delegates subcommittee, made up of eight white men, killed a bill that would let Virginia localities decide what to do with Confederate monuments–not even the bill’s sponsor, Delegate David Toscano.
“They knew when we walked in what they would do with that bill,” said Toscano following the January 30 meeting. The subcommittee has five Republican and three Democrats, and one of the Dems joined in the 6-2 vote against the bill.
About a dozen Charlottesville supporters of the bill, including two elected officials, came for the 7:30am meeting of Counties, Cities and Towns Subcommittee #1. Some held signs during the proceeding: “Local authority for war memorials,” “Truthful history heals,” and “Lose the Lost Cause.”
And five opponents of the bill, none of whom were from Charlottesville, spoke against local control of Confederate monuments in public places.
Following the August 12, 2017, Unite the Right rally that brought hundreds of white supremacists to Charlottesville, ostensibly to protest City Council’s vote to remove the statue of General Robert E. Lee in what’s now called Market Street Park, Toscano carried a bill to give localities control over their own war monuments. Current state law makes it illegal for anyone to remove a memorial commemorating any war. That bill died a quick death in subcommittee in 2018, and this year’s version specified Confederate monuments only.
“It’s about local control,” Toscano told the subcommittee. “We give localities control of the cutting of weeds, but we haven’t yet given them control of monuments that might have a detrimental effect on the atmosphere and feelings of this community.”
The 1902 statute protecting war memorials “popped up just at the time of Jim Crow,” said Toscano, at the “height of the so-called Lost Cause celebration of the Confederate contribution to the Civil War.”
Subcommittee chair Charles Poindexter asked about the monuments, “Weren’t they also concurrent with the dying out of Confederate veterans?”
Toscano rejected the notion that Virginia was involved in a “heroic battle” during the Civil War. “This was an effort to destroy the Union.”
Justin Greenlee, who studies art and architectural history at UVA, told the subcommittee Confederate statues are “a monument to white supremacy,” and portray a “false story of history. They continue to intimidate.”
Lisa Draine, whose daughter was injured when self-proclaimed neo-Nazi James Fields accelerated into a crowd, killing Heather Heyer, said, “I couldn’t imagine that the statues brought this to our town.”
And Don Gathers, who served on the city’s Blue Ridge Commission on Race, Memorials and Public Spaces, implored the subcommittee: “Please recognize the hatred these statues brought to descend upon our city.”
Ned Gallaway, Albemarle Board of Supervisors chair, and City Councilor Kathy Galvin both stressed the importance of local control over Confederate monuments.
Richmond native Ed Willis said a bill to allow localities to remove Civil War monuments discriminated against his “Confederate national origin.” staff photo
Among the bill’s opponents was Chesterfield resident Ed Willis, who said the bill was unconstitutional. “It’s painfully clear that discrimination based on national origin—on Confederate national origin—is the purpose of this bill.” He also said the legislature couldn’t do anything that would affect the ongoing lawsuit against the city and City Council for its vote to remove both the Lee and General Stonewall Jackson monuments.
Virginia Beach resident Frank Earnest, who is a plaintiff in the lawsuit and “heritage defense coordinator” for Virginia’s Sons of Confederate Veterans, warned that like “other socialist takeovers, it’ll be Confederate statues today, but don’t think they won’t be back next year to expand it to another war, another time in history.”
He said it was the “improper actions of the city government of Charlottesville” that caused the events of August 12, and that he resented anyone saying Confederates were there. “They were not.” He presented the officials with what he said were 2,000 signatures of Virginians opposed to removing Confederate monuments.
One of the three Democrats on the subcommittee made a motion to move the bill forward, to no avail.
Toscano called the vote “disappointing but not surprising.” He said the “discrimination” objection was “unbelievable,” and joked about whether people would be checking a Confederate national origin box on their census forms.
A bill that would allow localities like Charlottesville to relocate Confederate statues failed in a House of Delegates subcommittee January 30. staff photo
UVA professor Frank Dukes, who also served on the Blue Ribbon Commission, said he was surprised the vote “wasn’t even close. I think it’s so hypocritical from people who constantly talk about local control.”
Nor was Gathers surprised, except for the one Democrat—Portsmouth Delegate Stephen Heretick—joining in with Republicans to vote against the measure.
UVA prof and activist Jalane Schmidt pointed out that it took 10 years to get the “Johnny Reb” statue erected in front of the Albemarle courthouse, and that it could take 10 years to remove Confederate monuments.
“It’s about changing hearts and minds,” she said. “It’s about changing representation.”
The General Assembly is held by a slim Republican majority in both houses, and all legislators are up for reelection this year.
For the moment, however, Confederate supporters had a victory they could savor. As they headed to the elevators, one expressed his thoughts: “Those people in Charlottesville are crazy.”
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.
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.”
