Stonewall Jackson

A statue depicting Confederate Gen. Thomas "Stonewall" Jackson sits in Court Square Park in Charlottesville.

CHARLOTTESVILLE — The Charlottesville city councilors who voted to remove two Confederate statues downtown are individually immune for their votes, a Charlottesville Circuit Court judge wrote in an order dated Monday.

Their status has been a major issue in an ongoing lawsuit over the votes, with Judge Richard E. Moore previously indicating he believed the councilors may be liable under state code.

The Monument Fund filed a lawsuit in March 2017, claiming that City Council in 2016 violated a state code section that bans the removal of war memorials when it voted to remove the statue of Robert E. Lee. The suit was later amended to include the council’s vote on the Thomas “Stonewall” Jackson monument.

Councilors Wes Bellamy, Kathy Galvin and Mike Signer and former Councilors Bob Fenwick and Kristin Szakos were all named as individual defendants in addition to the city and the City Council.

In a letter to both parties dated July 8 and first obtained by Daily Progress media partner NBC29, Moore writes that he finds the councilors are immune for their votes because they were not grossly negligent and did not make an unauthorized appropriation of funds.

“The purpose of a Motion for Summary Judgment is to prevent the expenditure of time, energy, and expense on a futile point, on a matter that is self-evident, or on which no additional evidence can change the outcome,” Moore wrote. “This is such a situation.”

Because they are individually immune, Moore wrote that he believes they have a right to be removed from the suit altogether, though they could be subject to future orders he enters, as well as potential contempt if they disobeyed any future orders.

Comparing it to his earlier order declaring that the statues are monuments to Civil War veterans, Moore said a summary judgement was appropriate on the topic of immunity due to undisputed facts and that no meeting minutes show any unauthorized appropriation of funds in regards to the statues.

“When Defendants wanted to present evidence to attempt to show that the statues were not monuments and memorials, I found that, in light of the evidence of the statues themselves, the other evidence would not matter, and that no additional evidence would have changed the outcome,” Moore wrote. “I find similarly here, that in light of the complete absence of any formal appropriation of specific funds for moving the statue under a specific plan, there was not an 'unauthorized appropriation.' No extrinsic evidence would change this point.”

Similarly, Moore wrote that the legal application of gross negligence is quite narrow and that only “scant care” need be evidenced.

When discussing the legality of moving the statues, Moore wrote that the defense cited a Danville case over the removal of a Confederate flag. In that case, the removal of the flag was ruled not to be a violation by the Danville Circuit Court because the General Assembly did not make the provisions of the statute applicable to cities until 1997; therefore, it did not apply retroactively to monuments or memorials erected prior to 1997.

Moore wrote that though he tends to disagree with the argument that the statute does not apply retroactively, he does not see how a fact-finder could determine that councilors were grossly negligent in discussing and voting to move the statues.

“For sure, the better part of wisdom would have been for them to wait, and not to go ahead,” he wrote. “But the standard for the exception to statutory immunity of members of local governing bodies is not mere, simple negligence (or failing to provide reasonable care), but gross negligence, and there is a significant difference between negligence and gross negligence.”

“While it may have been negligent for City Council to vote to move the statues before receiving a firm and sound opinion from the City Attorney that such would be lawful, it is difficult to see how, under those items of legal advice, any other evidence would be able to convert the actions of council in voting to move the Lee statue and cover both statues to 'gross negligence,'” he wrote.

At the end of the order, Moore wrote that there are several outstanding issues remaining, including: whether damages or attorney's fees ultimately assessed would be only against the city; on which issues the defendants are entitled to a jury trial; and the plaintiffs’ motion for a change of venue, among others.

Moore wrote that he intends to further explain his immunity order and address outstanding issues at a hearing 1 p.m. Wednesday in Charlottesville Circuit Court.

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