Essay Council Reviews

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Code § 15.2-1812 to be inapplicable, and solely consider the legality of the removal based on other possible restrictions (if any) in balance with the city’s affirmative defenses. The ability of Virginian cities to create and remove memorials has changed over time and is limited, first and foremost, by Virginia’s adoption of Dillon’s Rule,[19] an interpretive methodology for municipal authority which “limits the power of local governments to those expressly granted by the state or those necessarily implied or essential to express powers.”[20] Thus, “[w]hen a local ordinance exceeds the scope of this authority, the ordinance is invalid.”[21] Should it be reasonably unclear whether a locality, such as a city or county, has a power or not, “the doubt must be resolved against the local governing body.”[22] In other words, if a city wants to create a memorial of any kind, it must first find the authority to do so in an existing state law or ask the state legislature for permission. The change simplified the statute’s language but did remove the conditional, proscriptive phrasing.

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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),

These discussions are often difficult and complicated. 25, 2017), [hereinafter “Herring Letter”].

They are unique to each community’s specific history and the specific monument or memorial being discussed.

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. The amendment was proposed during the 2016 session, after the October 2015 decision in Danville and the July 2015 removal of the Confederate Flag from state grounds in South Carolina, a response to the tragic murder of nine black Americans by white supremacist Dylann Roof.[51] It was ultimately vetoed by Virginia Governor Terry Mc Auliffe. The Governor defended his veto as follows: There is legitimate discussion going on in localities across the Commonwealth regarding whether to retain, remove, or alter certain symbols of the Confederacy. The only restrictions on removal that are applicable to these pre-1997 monuments are those found within the original grant of authority, those imposed by localities on themselves, or the deeds associated with it—not Va. Only three authorities have directly weighed in on the question of whether Va. Code § 15.2-1812 applies to memorials created in cities prior to 1997: the state circuit court for the City of Danville,[15] the current Attorney General Mark Herring,[16] and the state circuit court for the City of Charlottesville,[17] respectively. [23]For a more thorough discussion of municipal and state powers, see generally Richard C. Note also that the City of Charlottesville Blue Ribbon Commission on Race, Memorials, and Public Spaces relied on this specific legislative history when recommending that the City Council remove or transform the city’s Lee Monument.[53] In another case,[54] the Danville circuit court properly adhered to state precedent and the legislative history when it held that Va. Code § 15.2-1812 was inapplicable to a monument, which commemorated the Sutherlin Mansion as “the Last Capitol of the Confederacy,” for two reasons: first, because the statute did not apply retroactively, and, second, because the memorial at issue was not a war memorial. in 1995.”[55] The court’s focus in this holding was clearly on the years that the monument was received and formerly established. 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. Without some form of authorization,[11] it was illegal for the locality to construct these monuments in a Dillon’s Rule state. Any restrictions applicable to the localities’ subsequent treatment of such monuments are governed exclusively by the state authority under which they were built,[12] unless those localities impose further restrictions on themselves, as Virginia statutes generally do not apply retrospectively.[13] Accordingly, monuments built in cities prior to 1997, such as Charlottesville’s 1924 Lee Monument,[14] are either unauthorized () or authorized by a specific Act of Assembly.


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