Pam Starsia Brief on Lee Statue.pdf

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Blue Ribbon Commission on Race, Memorials, and Public Spaces
Charlottesville City Council


Pamela Starsia, Esq.


November 27, 2016

Legal Issues, Litigation, and Legislative Risks Related to the Lee & Jackson Statues
Summary and Proposed Revised Language for Commission Report
I have reviewed the Commission’s draft report to City Council (dated Nov. 10, 2016), and the legal memo prepared
by the City Attorney’s office on the legal issues under state law related to the Lee & Jackson statues. As an attorney
with over ten years’ experience specializing in statutory drafting and interpretation, and litigation related to statutory
interpretation and analysis, I would like to recommend the following revision to the draft report language on “legal
issues” in the sections of the report related to the Lee and Jackson statues.
The draft language for both statues states: “Legal Issues: likely none if the statue remains in the park.” This implies
that the Commission understands the litigation risks to be substantially lower if the statues are retained/transformed
as opposed to relocated and transformed. However, the legal risks for either option are identical. Based on the
Commission’s stated intention to dramatically transform the statues, even if they remain in their current location, the
City should expect the possibility of litigation.
As described below, my opinion is that for either option, under the current law the City would likely win any such
litigation quickly and without significant expense. However, as described below, there have been recent state
legislative attempts to amend the law in order to retroactively prohibit any alteration, removal, or relocation of
Confederate monuments, and in 2016 this amendment came dangerously close to being enacted into law. Only the
Governor’s veto prevented this retroactivity provision from taking effect. Thus, there is a real risk that, when a new
Governor takes office in January 2018, amendments to state law could prevent any future alteration or relocation of
the Lee and Jackson statues after that date. As such, time is of the essence in implementing any plan to transform
and/or relocate the statues.
As such, I propose the substance of the following revised language be included in the Commission’s report:
Legal Issues: the Commission anticipates that any attempt to significantly transform, alter,
remove, and/or relocate the statues will likely result in a lawsuit. However, there appears to be
a high likelihood that such litigation would be resolved quickly and without significant cost to
the City. As such, it appears there are no significant legal barriers under current law to either
transforming the statues in place or relocating them, and litigation concerns should not
dissuade the City from taking action to address the statues. However, the Commission also
understands that there have been legislative attempts to amend Va. Code § 15.2-1812 in a
manner that would potentially prohibit the City from transforming, altering, removing, or
relocating the statues in any way without special legislative approval. Although Governor
McAuliffe vetoed the 2016 bill to so amend § 15.2-1812, a new Governor will take office in

January 2018, and there is a risk that the new Governor might not be willing to veto future
attempts to amend this statute. As such, the Commission recommends that the City work as
expeditiously as possible to implement any plan to transform, alter, remove, or relocate the Lee
and Jackson statues prior to January 2018, to avoid the risk that changes to the law would
prohibit any action to address the statues after that date.
Analysis in Support of Proposed Revised Language
At issue is a state statute, Virginia Code § 15.2-1812, which became effective in 1998, related to memorials for War
Veterans. The Law provides (emphasis added):
§ 15.2-1812. Memorials for war veterans. A locality may, within the geographical limits of
the locality, authorize and permit the erection of monuments or memorials for any war or
conflict, or for any engagement of such war or conflict, to include the following monuments or
memorials: …Confederate or Union monuments or memorials of the War Between the States
(1861-1865), …
If such are erected, it shall be unlawful for the authorities of the locality, or any other person or
persons, to disturb or interfere with any monuments or memorials so erected.... For purposes of
this section, “disturb or interfere with” includes removal of, damaging or defacing monuments
or memorials, or, in the case of the War Between the States, the placement of Union markings
or monuments on previously designated Confederate memorials or the placement of
Confederate markings or monuments on previously designated Union memorials.
Note that § 15.2-1812 prohibits both removal and any other “disturbance” of covered memorials. Thus, the
statutory analysis would be identical regardless of whether the City decides to retain/transform or
The Commission has received a Memo from the City Attorney’s office, which provides analysis of § 15.2-1812 ,
and concludes: “On this particular topic, Virginia law remains unsettled, and even if it were not, each case presents
a different, unique set of factual circumstances to which the law would need to be applied.” Respectfully, I believe
that this analysis and recommendation is incomplete and overly conservative, and would like to offer the following
analysis for the Commission’s consideration, in support of the revised language proposed above.
(1) The Memo from the City Attorney’s Office (the “Memo”) significantly overstates the uncertainty of
the legal issues involved related to moving the monuments .
In simply stating that the law on § 15.2-1812 is “unsettled”, the Memo implies that there is no way to
assess the practical litigation risks or predict the outcome of any litigation brought under the statute. Although it is
technically correct that you can never predict exactly what a court will do, I believe that the Memo’s conclusion
dramatically overstates the legal uncertainty surrounding § 15.2-1812. My opinion is that, although supporters of
the statues will likely file a lawsuit if the City attempts to do anything significant to the statutes (remove/relocate or
retain/ “transform”), the City would quickly and easily win any such suit under the current law, and would be able
to address the statues without lengthy litigation delays or substantial litigation costs.1
(a) The plain language meaning of § 15.2-1812 unambiguously applies only to memorials erected and
approved after the law’s effective date in 1998.


I am so confident in the likelihood of the City quickly and inexpensively winning any case brought under the current § 15.2-1812, I am
willing to happily offer right now, in writing, to provide any requested legal assistance to the City in defending such litigation related to
removing/transforming/relocating the statues on a pro bono basis.

As you can see from the parts of § 15.2-1812 italicized above, by its plain language § 15.2-1812 only
applies to memorials erected after the statute became effective in 1998. The statute states that “A locality
may…authorize” memorials, and then, “if such are erected, it shall be unlawful” to remove or disturb them. By the
plain words of § 15.2-1812, the future-tense nature of the phrase “if such are erected” clearly indicates that § 15.21812 does not apply to memorials erected prior to 1998.
Under the canons of statutory interpretation, a court must first look to the plain meaning of the words of a
statute. If the meaning is clear and unambiguous, the court must apply that clear meaning. This is almost certainly
why the Danville circuit court, in the only case within the Commonwealth to have litigated the applicability of §
15.2-1812 to pre-1998 memorials, quickly and summarily held that § 15.2-1812 did not apply to memorials erected
prior to 1998. As you can see from the attached docket sheet (Exhibit A), the complaint in the Danville case (filed
by the Heritage Preservation Association, the Sons of Confederate Veterans, among other plaintiffs) was filed on
August 14, 2015. The final Order from the Court dismissing the claim was filed on Dec. 7, 2015—less than 4
months after the complaint was filed—without trial or extensive pre-trial activity (only two memoranda and a
handful of exhibits were filed in that case).
(b) The Virginia Supreme Court has had the opportunity—twice—to address the Danville decision, and
declined to review the case both times.
The plaintiffs in the Danville case appealed to the Virginia Supreme Court twice—on the initial appeal, a
panel of the Supreme Court rejected the appeal petition, issuing a finding of “no reversible error” in the case. (Note
that since this is a question of law/statutory interpretation, rather than of fact, the Supreme Court does not have a
common law obligation to give deference to the Danville Circuit Court’s decision on this issue.) The plaintiffs then
submitted a second appeal petition requesting the Supreme Court to rehear the decision to deny the initial appeal.
The Court also denied this rehearing request. Thus, the Virginia Supreme Court has had two opportunities to weigh
in on this controversial, widely publicized issue, and has declined to reverse the Danville court on both occasions.
Although the Supreme Court’s finding of no reversible error in the Danville case is not binding precedent to lower
courts outside the Danville Circuit, the Court’s rejection of the appeal in that case would likely be highly persuasive
to a court in Charlottesville, and would argue against a Charlottesville court applying § 15.2-1812 to pre-1998
(c) Both chambers of the Virginia General Assembly and the Governor have taken action to indicate their
understanding that the statute does not apply to pre-1998 memorials.
In response to the Danville decision, both chambers of the General Assembly passed a bill (HB 587) during
the 2016 legislative session that would have amended § 15.2-1812 to apply it retroactively to pre-1998 memorials.
The text of HB 587 (attached here as Exhibit B) clearly illustrates how the statute would need to be amended in
order to apply § 15.2-1812 retroactively. The General Assembly’s passage of HB 587 indicates a clear legislative
understanding that § 15.2-1812 does need to be amended in order for it to apply to pre-1998 memorials. HB 587
passed the House in 2016 by an overwhelming margin (82-Y, 16-N), and passed the Senate by a narrower margin
(21-Y, 17-N). Governor McAuliffe vetoed the bill, stating: “I veto House Bill 587, which overrides the authority of
local governments to remove or modify monuments or war memorials erected before 1998.” (Full text of the
Governor’s veto statement is attached here as Exhibit C.) Thus, the Governor’s veto statement also stakes out a
clear position that the current text of § 15.2-1812 does not apply to pre-1998 memorials.
As such, both the legislature and the executive branch have clearly indicated their interpretation that § 15.21812 does not apply to pre-1998 memorials. Although not dispositive on the issue, any court in Virginia (including
a court in Charlottesville), would likely find this to be additional highly persuasive evidence in favor of the
interpretation that § 15.2-1812 does not apply to pre-1998 memorials.
(d) There is no evidence or support for the interpretation that § 15.2-1812 applies to pre-1998 memorials.

All three branches of government in the Commonwealth—the courts, the legislature, and the Governor—
have either explicitly or implicitly adopted an interpretation that § 15.2-1812 does not apply to pre-1998 memorials.
This comports with the plain meaning interpretation of § 15.2-1812, as discussed above. In contrast, I have quite
literally not seen any evidence or legal argument whatsoever to support the contrary interpretation that § 15.2-1812
does apply to pre-1998 memorials, other than the desire of the pro-Confederate memorials supporters for this to be
what the law says. It would be highly unusual and unexpected for a court in Charlottesville to disregard the
overwhelming weight of evidence in favor of the Danville court’s interpretation of § 15.2-1812, in order to adopt an
interpretation that is not supported by any evidence or reasoned legal argument whatsoever.
(e) There is no need to seek approval from the General Assembly to move either the Lee or the Jackson
statues, and seeking such approval would effectively preserve the status quo.
I realize this might fall outside the scope of the Commission’s recommendation, but I would like to
address this issue, raised in the City Attorney’s Office Memo. The Memo notes that the City of Alexandria has
announced its intention to seek special legislative approval to relocate a Confederate monument (“Appomattox”,
erected in 1889) from its current location, in order to avoid the possibility of litigation, and concludes that this might
be an option for Charlottesville to address any legal issues related to the Lee and Jackson statues. I strongly
disagree with the presentation of this as a possible option, and do not consider this to be a meaningful option for
Charlottesville. As detailed above, this legislative approval is wholly unnecessary, as § 15.2-1812 does not apply to
pre-1998 memorials. Furthermore, given the overwhelming majorities with which HB 587 passed the House and
Senate, there is very little likelihood that the General Assembly would ever grant this special legislative approval
(which would need to be approved by a majority of both chambers). Thus, any attempt in the near future to seek
legislative approval to remove a Confederate monument will almost certainly be unsuccessful.
Under no circumstances should Charlottesville seek special legislative approval to remove, relocate,
alter, or transform the Lee or Jackson statues. Seeking a legislative approval that the City doesn’t need, and which
will almost certainly not be granted, is an effective route to maintaining the status quo of leaving the statues in place
untouched. I do not expect Charlottesville to take this approach, but please note that any recommendation to seek
such special legislative approval will be loudly denounced by those who favor relocation and/or transformation as a
disingenuous attempt by the City to effectively preserve the status quo in a roundabout manner.
(2) Although § 15.2-1812 currently permits Charlottesville to remove/relocate/alter/transform the Lee &
Jackson statues (and any other pre -1998 memorials), this could quickly change after a new
Governor is elected in 2017.
As noted above, the only reason that HB 587 was not enacted into law last year is because the bill was
vetoed by the Governor. Indeed, even with the Governor’s veto, the General Assembly came extremely close to
overriding that veto—the House easily garnered the two-thirds majority (66 votes) necessary to override, voting 68Y, 32-N to override. The Senate fell five votes short of the 26 votes necessary to override in that chamber, voting to
override by only 21-Y, 18-N. Thus, if either the Governor had failed to veto HB 587 or if HB 587 proponents had
been able to persuade another five Senators to vote for the bill, § 15.2-1812 would already be law, and
Charlottesville would be facing a much more difficult (if not impossible) legal challenge in order to remove,
relocate, or alter the statues. If § 15.2-1812 were to be successfully amended in a subsequent session, there is a
much higher risk that a court would rule that Charlottesville may not move or alter the statues after the effective date
of such amendment.
It is almost certain that the text of HB 587 will be reintroduced in the 2017 legislative session (and
again in the 2018 session if it is not enacted in 2017), particularly with the public attention that Charlottesville’s
discussion of the Lee and Jackson statues has garnered. Although I believe that Governor McAuliffe would likely
veto the bill again in 2017 if necessary, his term will expire at the end of 2017, and a new Governor will be elected
in November 2017 to take office in January 2018. If the new Governor is either a Republican, or even a Democrat
who does not wish to use their veto power on this issue, there is a high likelihood that the retroactivity text of HB

587 could be enacted into law in the 2018 session. (Note that, if the Senate were able to pick up another five votes
to override Governor McAuliffe’s veto in 2017, the retroactivity provision could even be enacted during the 2017
session. Given the relative stability of the state Senate, this does not seem particularly likely, but is also possible.)
Thus, Charlottesville has a very narrow window of time in which we know (with some degree of
certainty) that we can move or alter the Lee and Jackson statues without significant legal barriers. However, if the
statues are not removed, relocated, or “transformed” by the January 2018 legislative session, there is a real and
substantial risk that § 15.2-1812 will be amended to apply retroactively, which could potentially prohibit the City
from relocating or altering the statues at all.
One member of the Commission has stated that their greatest fear is that, after having gone through this
process, nothing at all will be done to the statues. I am very concerned that, if the Commission does not make a
recommendation that the City can adopt and implement expeditiously prior to January 2018, there is a real risk that
nothing at all will be done to the statues, regardless of the intentions or wishes of the people of Charlottesville. I
urge the Commission to take the political risks with respect to timing into serious consideration when making a final
(3) Potential solution to address timing concerns while still maintaining options to explore removal,
relocation, and/or transformation (in place or at a new location).
As you may know, I have spoken to the Commission in a public comment period in favor of relocating or
removing the statues, as opposed to the retain/transform option. However, I do understand that reasonable people
can favor, or at least be intrigued by, the retain/transform option. (I was actually very intrigued by this option
myself, after Dr. Van Lengen’s presentation to the Commission.) I have come to the conclusion that I favor
relocation and transformation in a different place because of: 1) the statements made by Commission member
Andrea Douglas, whose expertise I hold in extremely high esteem; and 2) logistical/practical concerns with the
retain/transform option. Specifically, I am concerned by the fact that there are so many (difficult, lengthy,
expensive) steps that will need to occur with the retain/transform option in order for that option to result in
transformative change. My understanding is that a design competition or RFP would take at least a year (if not
several years) from kick off to final design, and that even that phase alone would be quite expensive. What happens
if there are no successful designs? What happens if the successful designs are too expensive or impractical to
implement? What happens if a future City Council, during the period that a design competition were being held,
decides to scrap the project? My concern is that at every step of the way, if something doesn’t go right, the default
is that the statues then remain in place, untouched. As I began doing the legal research for this memo, and realized
how close HB 587 had come to being enacted last year, my concern turned to cold fear—there is a very real
possibility that if those statues are not removed by early 2018, we will not be able to touch them for a very, very
long time, if ever.
I had an idea for a potential solution that I think might address the concerns over timing and the risk of
maintaining the status quo during a design competition/RFP, inspired by a blog post by Kirk Savage2
(What to do with Confederate Monuments? attached as Exhibit D).
Speaking about a particular monument that is up on a pedestal, Savage wrote:
Thinking about Lee Circle specifically, I might consider a compromise where his statue is
removed and put in a museum (who really sees it all the way up there anyway?) but the empty
column remains as a reminder, and as a focal point for creative temporary installations,
dialogues, and reinterpretations. I would get art schools and local museums and an array of
community organizations involved to program the site.


Professor, History of Art & Architecture, University of Pittsburgh, specializing in public monuments, author of
Standing Soldiers, Kneeling Slaves: Race, War, and Monument in Nineteenth-Century America (Princeton, 1997).

This made me wonder if a similar compromise might be useful as an interim measure here in Charlottesville, to
address the statues and send a clear message rejecting their white supremacist history during the period where the
City is soliciting, evaluating, deciding among, and implementing potential transformative designs. I would imagine
a recommendation looking something like this:
1) Recommend immediate interim relocation of only the bronze statue portions of each statue (to
McIntire Park or another suitable location), while leaving the granite bases in place.
a. Based on the estimate provided by the Facilities Development department, the bronze statues
of both monuments should be able to be separated from the concrete bases and
removed/relocated fairly easily, swiftly, and cheaply. The overwhelming majority of the cost
and logistical difficulty listed in the estimate related to dislodging, transporting, and relocating
the bases. So relocation of just the bronze should be able to be accomplished relatively
quickly, cleanly, and cheaply
b. Make clear in the Council resolution and other City documents that such relocation is an
interim measure, and the placement of the monuments in their new location is not
“authorization” of permanent placement of a War Memorial pursuant to § 15.2-1812. (Get the
lawyers to help with this.) Have signage at the new location explaining the interim nature of
the placement, which is updated periodically to inform visitors of the status of redesign efforts.
c. Moving just the bronze addresses the timing concerns with respect to possible amendment of
§ 15.2-1812, the default/inertia concerns about lengthy delay due to design competition
(because the City has already dramatically transformed the space, just by moving the bronze),
and sends a clear, strong message immediately. It also leaves the empty bases as an interim
focal point/reminder for the dialogue that the retain/transform Commissioners hope to foster.
2) Using the empty bases as a focal point/reminder, appropriate some meaningful funding amount to the
Jefferson School African American Heritage Center to coordinate a series of artistic programming,
temporary installations, performances, etc. at the sites, centering the voices of African American
citizens in these central public spaces, and encouraging programming that will address the true history
behind the statues that once occupied those bases. Appropriate this funding each year until a
permanent design has been implemented. (Grant funding would likely be available for this
programming. E.g., I know that the Charlottesville Area Community Foundation has expressed an
interest in this type of artistic approach to changing the narrative on race within our community.)
3) Use the interim period described in #1 and #2, hold a design competition/RFP/etc., soliciting designs
for redesign/transformation of the statues in either location (Lee/Jackson parks or McIntire/new
location). Allow judges to determine (once they’ve had the chance to view some actual design
suggestions) whether it is feasible to successfully transform the statues in the Lee/Jackson parks (in
which case the bronze can be brought back in relatively quickly/cheaply), or whether the charge to
“change the narrative” can best be addressed by transformation at a new location within the City.
I would like to offer many, many thanks to the Commission for your tireless efforts and incredible service to our
community in this process. I know that you have all made tremendous sacrifices to do this work, and I am indebted
to you for the incredible work you have done. I apologize for adding to your reading list at this point, but I hope
you will understand that I only take the time to write all this out because of my very real concerns over the timing
and logistics of implementing any plan to transform the statues or the parks, particularly with respect to the risk of
future amendment to § 15.2-1812. If there are any follow up questions to the legal issues raised in this memo, I can
be reached at or (434) 260-0603.


Virginia Courts Case Information System

EXHIBIT A--Docket Sheet from Heritage Preservation Ass'n, et al
v. City of Danville

 Return to Case 

 Main Menu 


Danville Circuit ­ Civil Division
Pleadings/Orders Detail

Case Number: CL15000500­00


Initial Filing 
Final Order 
Appeal Notice 
Supreme Court Appeal Orders  DKS 
Supreme Court Appeal Orders  DKS 
 Return to Case 

Judge Book Page




CODE OF VA 1950 

10/29/2015 HEARING 
06/17/16 NO ERROR IN JMGT 
 Main Menu 


Build #:



Exhibit B--Text of HB 587 Bill Tracking ­ 2016 session > Legislation


**NOTE: Text that would have been deleted by the bill is stricken in red, new
text that would have been added is italicized and highlighted in yellow.

An Act to amend and reenact § 15.2­1812 of the Code of Virginia, relating to memorials and monuments.
[H 587]

Be it enacted by the General Assembly of Virginia:
1. That § 15.2­1812 of the Code of Virginia is amended and reenacted as follows:
§ 15.2­1812. Memorials for war veterans.
A. A locality may, within the geographical limits of the locality, authorize and permit the erection of monuments or memorials
for any war or conflict, or for any engagement of such war or conflict, to include the following monuments or memorials:
Algonquin (1622), French and Indian (1754­1763), Revolutionary (1775­1783), War of 1812 (1812­1815), Mexican (1846­
1848), Confederate or Union monuments or memorials of the War Between the States (1861­1865), Spanish­American (1898),
World War I (1917­1918), World War II (1941­1945), Korean (1950­1953), Vietnam (1965­1973), Operation Desert Shield­
Desert Storm (1990­1991), Global War on Terrorism (2000­ ), Operation Enduring Freedom (2001­ ), and Operation Iraqi
Freedom (2003­ ).
If such are erected, it B. It shall be unlawful for the authorities of the locality, or any other person or persons, to disturb or
interfere with any such monuments or memorials so erected, or to prevent its citizens from taking proper measures and
exercising proper means for the protection, preservation and care of same. For purposes of this section, "disturb or interfere
with" includes removal of, damaging or defacing monuments or memorials, or, in the case of the War Between the States, the
placement of Union markings or monuments on previously designated Confederate memorials or the placement of Confederate
markings or monuments on previously designated Union memorials. The provisions of this subsection shall apply to all such
monuments and memorials, regardless of when erected.
C. The governing body may appropriate a sufficient sum of money out of its funds to complete or aid in the erection of
monuments or memorials to the veterans of such wars. The governing body may also make a special levy to raise the money
necessary for the erection or completion of any such monuments or memorials, or to supplement the funds already raised or
that may be raised by private persons, Veterans of Foreign Wars, the American Legion or other organizations. It may also
appropriate, out of any funds of such locality, a sufficient sum of money to permanently care for, protect and preserve such
monuments or memorials and may expend the same thereafter as other funds are expended.­bin/legp604.exe?161+ful+HB587ER+hil




Bill Tracking ­ 2016 session > Amendment

EXHIBIT C--Governor's Veto Statement for
HB 587 Veto, 2016 session

Pursuant to Article V, Section 6, of the Constitution of Virginia, I veto House Bill 587, which overrides the authority of
local governments to remove or modify monuments or war memorials erected before 1998.

The rich history of our Commonwealth is one of our great assets. My administration strongly supports historic
preservation efforts, including the preservation of war memorials and monuments. However, this legislation would have
been a sweeping override of local authority over these monuments and memorials including potential ramifications for
interpretive signage to tell the story of some of our darkest moments during the Civil War.

There is a legitimate discussion going on in localities across the Commonwealth regarding whether to retain, remove, or
alter certain symbols of the Confederacy. These discussions are often difficult and complicated. They are unique to each
community's specific history and the specific monument or memorial being discussed. This bill effectively ends these
important conversations.

I am committed to supporting a constructive dialogue regarding the preservation of war memorials and monuments,
but I do not support this override of local authority.

Accordingly, I veto this bill.­bin/legp604.exe?161+amd+HB587AG




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