Trial Likely For Fredericksburg Confederate Monument Case
By Scott C. Boyd
(September 2010 Civil War News)

FREDERICKSBURG, Va. – Barring out-of-court negotiations, which have been unsuccessful so far, a Fredericksburg Circuit Court judge has cleared the way for a trial over the Sons of Confederate Veterans’ (SCV) lawsuit to prevent the city from moving a monument to a cemetery for 51 Confederate soldiers.

At an Aug. 9 hearing, Judge Gordon F. Willis rejected the city’s June 16 motion for summary judgment, which sought to dismiss the suit. No trial date was set.

At issue is a 3.5-foot-high granite stone topped with a bronze plaque listing the 51 Confederate soldiers buried nearby in the unmarked cemetery along Barton Street in front of the former Maury School.

The Confederate monument sits on one corner of a large traffic island where the Fredericksburg Area War Memorial was dedicated in 2008. That memorial honors the dead from the wars of the 20th and 21st centuries.

According to Matthew Fontaine Maury Camp 1722, they placed the monument on April 16, 2009, at a location designated by city zoning and building officials. The city disputes that the camp was authorized to place the monument.

Two days later the camp hosted a dedication ceremony to which the seven city council members were invited. (See article in June 2009 CWN.)

At the request of the Fredericksburg Area Veterans’ Council (FAVC), which sponsored the war monument, the city council voted in September 2009 to approve a memorandum of understanding with the veterans’ group that included relocating the Confederate monument to an unspecified location.

Camp 1722 was not consulted. The city council’s vote prompted the lawsuit filed last Nov. 19.

The complaint filed by the SCV’s attorney, Patrick M. McSweeney (with McSweeney, Crump, Childress & Temple in Richmond, Va.), stated that the monument was covered by Virginia Code Section 15.2-1812, which protects war monuments from being disturbed once they have been erected. He said it could not be moved by city council vote.

At the recent hearing, City Attorney Kathleen Dooley argued that the power to “authorize and permit” the erection of war monuments in Section 15.2-1812 was a “non-delegable legislative duty.” The city council had to authorize the Confederate monument, which it did not, she said.

Dooley said there were no “issues of genuine fact” in dispute. She asked Judge Willis for a summary judgment, or decision without a trial.

McSweeney said there were material facts in dispute over the delegation of authority by city council to city officials. The function of approving monuments can be delegated by the governing authority, such as the city council, to city officials, and was applicable in this case, the SCV’s lawyer said.

He noted the council did not approve a monument to the 7th Michigan Volunteer Infantry Regiment’s amphibious assault across the Rappahannock River during the Battle of Fredericksburg. It was erected in 2003 on the city easement on National Park Service property along the river.

He added that the city council did not approve a historical marker placed on the same traffic island in January 2010 that refers to nearby sites, including the Liberty Town African-American neighborhood, the Potter’s Field graveyard and the unmarked Barton Street Confederate cemetery.

Judge Willis questioned McSweeney about the building permit signed by Camp 1722 monument project leader Roy B. Perry Jr. as “authorized agent.” According to McSweeney city officials prepared the building application and advised Perry to sign it.

If the locality can delegate the authority to its officials, who can authorize local officials to authorize a local citizen, like Perry, to act as an agent for the city, Willis asked McSweeney.

“No one has told the building official [who advised Perry] that he broke the law,” McSweeney said.

“Does it require council approval to erect anything on city property?” Willis asked Dooley. She did not respond.

“Can it be done without direct action by city council, or can it be delegated?” Willis asked.

Dooley said that council has authorized Public Works to put up things like stop signs as well as temporary traffic signs. She said she was not familiar with the 7th Michigan monument, having been handed an affidavit about it minutes before the hearing.

Judge Willis asked Dooley whether two city officials, senior planner Erik F. Nelson and his boss, zoning administrator Raymond P. Ocel Jr., had the authority to authorize Perry to seek the building permit for the monument.

Dooley said they did not have the authority to do what they did. “Perry’s building permit is invalid,” she said.

“It is disputed whether Mr. Perry was authorized by the city to build. I think that is a material fact to be determined,” Willis said, denying the city’s motion for a summary judgment.

He added, “Just because the permit was issued doesn’t make it valid.” He said that such a determination was up to the finder-of-fact at a trial.

The judge reminded the parties that at their last court session in March he recommended they use Virginia’s Judicial Settlement Conference Program, where retired judges help parties negotiate cases outside of court.

McSweeney asked if the negotiations were voluntary. Willis said they were, “I’d be happy if it was ordered,” McSweeney replied.

In informal negotiations the city proposed, and Camp 1722 rejected, two alternate locations for the Confederate monument, both much farther from the cemetery it memorializes.

Billing information obtained by Civil War News indicates that the city paid outside attorney Jennifer Parrish, who is assisting Dooley, $14,253.50 for the period March through July 2010. The Fredericksburg Free Lance-Star in an Aug. 15 editorial questioned whether the legal cost is money well spent and urged the city to let the Confederate monument remain where it is.

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