Judge refuses to declare Portsmouth owner of Confederate monument
May 16, 2018
In a ruling that could make it harder for Portsmouth to move a Confederate monument out of downtown, a judge rejected the city’s request to declare it the owner of the 125-year-old statue.
Circuit Judge William S. Moore Jr. said the court only has authority to decide “actual controversies” and could not pre-emptively rule that the city owns the monument, which has sat at Court and High streets since 1893.
Fred Taylor, an attorney representing several monument supporters, viewed the April 30 decision as a win. He described the city’s legal effort as a “peremptory strike,” an attempt to shield itself from lawsuits should it move the monument.
“The courts – they just don’t work like that,” Taylor said.
Mayor John Rowe said he didn’t know what the city would do next. He expected the council to discuss the issue with City Attorney Solomon Ashby Jr. before making any decisions.
“Then we will see,” Rowe said.
Ashby did not respond to requests for comment.
Questions regarding the appropriateness of Portsmouth’s Confederate monument, and whether the city could legally move it, began shortly after a white supremacist killed nine black people in June 2015 at Emanuel AME Church in Charleston, S.C. Dylann Roof, who had posed for pictures with the Confederate battle flag, was later convicted of carrying out the attack and sentenced to death.
The issue resurfaced in Portsmouth and many other cities last year after an August white supremacist rally in Charlottesville, during which a man plowed a car into a crowd of counterprotesters, killing 32-year-old Heather Heyer.
In October, a majority of the Portsmouth council voted to support moving the monument to Cedar Grove Cemetery, where it would sit near the graves of Confederate leaders and soldiers.
The next day, Portsmouth asked the court to weigh in on the monument in a complaint filed against a local chapter of the Sons of Confederate Veterans: Stonewall Camp #380.
The city argued it was the rightful owner of the monument even though a deed was filed in March 1929 transferring it to a group of Stonewall Camp trustees. The city said the people who were giving the monument did not have any ownership interest in it at the time.
Moore didn’t address that portion of the city’s claim in his opinion, or the legality of moving the monument.
For years, it was believed Virginia law generally prohibited damaging or removing a war memorial. But an ongoing legal battle regarding a Charlottesville monument has made the issue murkier.
In light of Moore’s decision, Portmsouth Councilman Mark Whitaker said he doesn’t expect the council to take any new action regarding the monument until the Charlottesville case is settled.
Whitaker would like the monument to have been removed already and thinks the city could legally do so, but he said “the majority of this present council has adopted a wait-and-see approach.”
”That could mean the Virginia Supreme Court, the U.S. Supreme Court – I don’t know,” he said.
Taylor, the attorney for monument supporters, derailed the city’s case when he told the court Stonewall Camp #380 was not claiming any ownership.
During a March hearing, Taylor said the chapter is not the Stonewall Camp mentioned in the deed. He said the chapter was only founded in 1978 – 49 years after the deed was signed.
Taylor said he did not believe the city owned the monument, either. But he argued the court should not be issuing advisory opinions on who owns it if no one is challenging the city’s ownership.
The chapter’s disavowal of any ownership rights regarding the monument doesn’t mean members will sit back and watch if the city moves to relocate it, Taylor said.
Under state law, he said, “any interested party can step in to protect it whether they own it or not.”
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