Essay Council Reviews

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IN December 19, 2016, the City of Charlottesville’s Blue Ribbon Commission on Race, Memorials, and Public Spaces released a 328-page report to the City Council which, among other things, recommended either the removal or “transform[ation]-in-place” of the city’s monument of Robert E.

Lee in what is now known as Emancipation Park.[1] On February 6, 2017, the Charlottesville City Council voted, three to two, to relocate the Lee Monument.[2] Two weeks later, a group of citizens and pro-Confederate activists filed a lawsuit against the city, , requesting an injunction and alleging that the removal violated Va.

Such a construction facially has no application to monuments erected previously under a different grant of authority. any engagement of such war or conflict,” though it still includes a list of well-known conflicts as examples.[39] Additionally, the statute enables a locality to erect such monuments anywhere within its “geographical limits” and not just upon its own property.[40] The amendments also added a definition of “disturb or interfere,” which notably includes “removal” and “placement of Union markings or monuments on previously designated Confederate memorials” and vice versa, though it does not explicitly include relocation.[41] Most importantly, while the General Assembly yet again broadened the statute, it kept the same conditional, prospective phrasing.[42] The common sense reading of the statute remained, and still remains to this day, that the limitations on removal imposed by the statute apply exclusively to those memorials erected under the statute’s authority—not to those erected prior to the passage of the statute. § 15.2-1812 makes it impossible to apply the removal restrictions to monuments built under other grants of authority.[43] If a monument was built under no grant of authority, the above statute, and the prior authorities, certainly do not retroactively authorize the illegally built statue and then restrict its removal.

In 1997, the General Assembly again changed the statute in several impactful ways. § 15.2-1812, now authorizes localities to erect “monuments or memorials for any war or conflict, or . Thus, memorials erected by prior to the 1997 (or 1998) amendments simply do not fall within the scope of the statute and are not prevented by the Act or its progeny from being removed or relocated. By the same token, the statute’s removal restrictions cannot be read to apply retroactively to monuments built under totally different authorities because Virginia’s common law on retroactivity doctrine and the statute’s legislative history prevent such a reading. 693, 693–94 (1982) (emphasis omitted) (citing 1 John F.

A proposed amendment sought to eliminate the key conditional, prospective phrase (“[i]f such are erected”) and added: “The provisions of this subsection shall apply to all such monuments and memorials, regardless of when erected.”[49] While in all other renditions of the statute[50] the restrictions on removal are tied to the grant of authority, this draft detached them from each other, giving the restrictive clause independent operation.

Such a sentence would effectively separate the removal restrictions from the general grant of authority.

Instead the court decided that the statute applied retroactively, based on the “content and wording of the statute itself,” as well as “[l]ogic and common sense.”[56] The court found that the 1997 amendment of the statute was “expanding protections as well as the power and authority originally applicable to the counties,” but did not recognize that those protections were only operative to actions taken from that same grant of authority.[57] This reasoning runs counter to , which establishes that the court cannot read in what it interprets to be the “common sense” reading of the statute when the question is whether or not the statute applies retroactively. Public Symbols of the Confederacy 10–11 (April 21, 2016),

Instead, the court’s outcome must be dictated by “the face of the instrument or enactment” that is “manifest beyond reasonable question.”[58] The court’s insistence that its interpretation is common sense simply does not change the face of the statute nor its contradictory legislative history, which must govern under . [8]Leslie Kendrick, How to Defend the Constitution When the KKK Comes to Town, CNN: Opinion (July 12, 2017),

In its brief, three-page opinion, the court succinctly concluded that, “[a]s a matter of law, Virginia Code § 15.2-1812 does not apply retroactively to the monument at issue in this litigation, which was donated to the City of Danville in 1994 and erected . Given that both of these actions occurred prior to the statute’s inclusion of all localities—not just counties—in 1997, the statute was not applicable.

In contrast, when the Charlottesville Circuit Court overruled the city’s demurrer in that statutes generally only operate prospectively.


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