Options include an appeal or change in state law

After a three-day trial last week, Charlottesville Circuit Judge Richard E. Moore ruled against awarding damages from the city of Charlottesville’s shrouding of the statues of Confederate Gens. Robert E. Lee and Thomas “Stonewall” Jackson following 2017’s Unite the Right rally. He also stated that he will award attorney’s fees to the plaintiffs. Earlier in the summer, Moore ruled that the statues were protected by state law as war memorials, despite documentation stating that they were gifts to the city. Although Moore has made his rulings, the case likely is far from over

One option the city could exercise is appealing the decision to a higher state court. 

“I’m assuming the city will appeal whatever the ruling is” on a number of grounds, said Richard Schragger, a University of Virginia law professor whose expertise includes constitutional and state law. “One is they have always contended that the statute doesn’t apply to them because it only applied to cities starting in 1996.”

State Attorney General Mark Herring has concluded that Virginia’s war memorial statute does not apply to monuments in cities that were erected before 1996. That year was when the General Assembly applied the law to cover both cities and counties. The state constitution states that the General Assembly cannot pass retroactive legislation.

“If attorney’s fees are granted, [Charlottesville likely will] appeal that on the basis that there were no damages, and so attorney’s fees were not appropriate, … And they might appeal the equal protection ruling,” Schragger said.

He said that it is unlikely that Charlottesville will prevail on a 14th Amendment ruling in state courts, but along with First Amendment grounds, the city of Norfolk is trying this approach on the federal level.

Last month, Norfolk filed a suit in the U.S. District Court for the Eastern District of Virginia, arguing that the state statue law is unconstitutional. Norfolk says the statute infringes on its First and 14th Amendment rights and those of its City Council.

“The First Amendment [argument] is a slightly novel one,” Schragger said. “It would make a little bit of new law, possibly.”

He said the U.S. Supreme County has not said municipalities do not have First Amendment Rights, but it has not expressly said that they do.

For Charlottesville, Norfolk and other localities in Virginia mulling their Confederate symbols, there also is a chance for lawmakers siding with them. The upcoming election and the next General Assembly session could take place before the completion of the Norfolk case of any potential appeal of the Charlottesville case.

“It’s going to take a while; these things always do,” Schragger said.

Outgoing Del. David J. Toscano, D-Charlottesville, has carried a bill that would grant localities authority to determine what to do with their monuments. It was defeated in subcommittee and failed to receive full floor vote. 

Toscano’s was one of many attempts — both successful and otherwise — around the nation to reexamine Confederate monuments and symbolism after a spate of white supremacist violence in recent years, beginning with the 2015 massacre of Black worshippers at Emanuel African Methodist Episcopal Church in Charleston, South Carolina. 

“I have thought for a long time that localities should have the ability to determine the character of their public spaces, based on what their constituents want,” Toscano said. “I am hopeful that it will be carried again next year, and the composition of the House of Delegates will change in a way that can get it passed.” 

Virginia is among several states that have statutes that block local governments from disturbing war memorials on public property and outlines harsh consequences. As Virginia is a Dillon rule state, localities lack the authority to take some actions without permission granted by the General Assembly. 

While some legislators are in favor of eliminating the Dillon rule, thus allowing municipalities to govern themselves as they see fit within state and federal constitutions, others argue it is helpful in maintaining statewide regulations which can be helpful for businesses across the state. 

University of Virginia economics professor Sally Hudson, who won the Democratic primary to succeed Toscano, said she is in favor of pursuing a path to eliminating the Dillon rule and that she will continue to represent Toscano’s efforts to do something about Charlottesville’s monuments. 

If the incoming General Assembly changes or eliminates the current war memorial statute, whether Charlottesville still will be on the hook for any awarded attorney’s fees could remain unresolved, Schragger said.

“The question there is retroactivity, … whether that change in the law applies to these plaintiffs,” he said. “If they have a final judgement, then there becomes a question of whether they lose because the legislators have now gotten rid of the cause of action.”

The plaintiffs seek more than $600,000 in legal costs. Moore did not say last week when he would determine how much he would award to them. The city of Charlottesville does not comment on ongoing legal actions.