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.” While in all other renditions of the statute 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.
Without some form of authorization, 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, unless those localities impose further restrictions on themselves, as Virginia statutes generally do not apply retrospectively. Accordingly, monuments built in cities prior to 1997, such as Charlottesville’s 1924 Lee Monument, are either unauthorized () or authorized by a specific Act of Assembly.
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. 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.” 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. 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), https://perma.cc/43SU-TGLF. Instead, the court’s outcome must be dictated by “the face of the instrument or enactment” that is “manifest beyond reasonable question.” 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 . Leslie Kendrick, How to Defend the Constitution When the KKK Comes to Town, CNN: Opinion (July 12, 2017), https://perma.cc/E9H8-VCW7. Virginia is a Dillon’s Rule state, meaning local governments may only exercise those powers expressly granted to them. This includes the authority to construct war memorials, which was first granted to all Virginia counties in 1904 and then all localities (adding cities and towns) in 1997 through various versions of Va. Prior to the statute, localities were required to request a specific grant of authority—an Act of Assembly or Joint Resolution from the Virginia legislature—to construct such memorials. Code § 15.2-1812, which regulates localities’ abilities to create and remove war memorials. The injunction was granted and as litigation pended, white nationalists, led in part by University of Virginia alumni Richard Spencer and Jason Kessler, organized a massive rally to protest the monument’s removal. The rally ended in the murder of Heather Heyer, the deaths of two police officers in a helicopter crash, and countless injuries. On October 3, the Charlottesville state circuit court overruled the city’s demurrer and held that Va. Code § 15.2-1812 prevented the city from removing the Lee Monument, allowing the case to go to trial and the monument to remain standing. The ultimate outcome of will have a significant impact across the state, home to 96 of the country’s 700-plus Confederate monuments. Many legal issues have been raised in the weekend’s aftermath, from the First Amendment protection of hate speech to the constitutionality of the monuments under the Fourteenth Amendment to state prohibitions on “unlawful paramilitary activity.” The heart of the issue—the reason why the Lee Statute still stands today—is the legal relationship between the Commonwealth of Virginia and its localities. They have reached varying conclusions, none of which are binding on other circuit courts across the state. Schragger, When White Supremacists Invade A City, 104 Va. When properly considering what the statute purports to authorize counties (and later cities) to do, it is clear that the statute cannot be read to apply to war memorials built in cities such as Charlottesville before 1997, as evidenced by the statute’s history, the text of the statute, and relevant Virginian common law on Dillon’s Rule and retroactivity. At trial, the court should correct its previous reasoning, find Va. Even if a court should find that the language of the statute is ambiguous or debatable, the court’s subsequent course of action is clear: without the language or intent being “manifest beyond reasonable question,” the court must find that the statute does not apply retroactively. This limiting interpretation of the statute is further evidenced by the attempt of the Virginia General Assembly to enact a bill which explicitly extended the protections of the statute retroactively to war memorials built under other grants of authority.