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The change simplified the statute’s language but did remove the conditional, proscriptive phrasing. Thus, even taking into account the removal of the word “thereafter,” the effect of the statute remained the same: if a county chooses to erect a memorial under the authority of statute, it cannot disturb or interfere with the memorial.

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The only restrictions on removal that are applicable to these pre-1997 monuments are those found within the original grant of authority, those imposed by localities on themselves, or the deeds associated with it—not Va. Only three authorities have directly weighed in on the question of whether Va.

Code § 15.2-1812 applies to memorials created in cities prior to 1997: the state circuit court for the City of Danville,[15] the current Attorney General Mark Herring,[16] and the state circuit court for the City of Charlottesville,[17] respectively. [23]For a more thorough discussion of municipal and state powers, see generally Richard C.

Such a construction facially has no application to monuments erected previously under a different grant of authority. any engagement of such war or conflict,” though it still includes a list of well-known conflicts as examples.[39] Additionally, the statute enables a locality to erect such monuments anywhere within its “geographical limits” and not just upon its own property.[40] The amendments also added a definition of “disturb or interfere,” which notably includes “removal” and “placement of Union markings or monuments on previously designated Confederate memorials” and vice versa, though it does not explicitly include relocation.[41] Most importantly, while the General Assembly yet again broadened the statute, it kept the same conditional, prospective phrasing.[42] The common sense reading of the statute remained, and still remains to this day, that the limitations on removal imposed by the statute apply exclusively to those memorials erected under the statute’s authority—not to those erected prior to the passage of the statute. § 15.2-1812 makes it impossible to apply the removal restrictions to monuments built under other grants of authority.[43] If a monument was built under no grant of authority, the above statute, and the prior authorities, certainly do not retroactively authorize the illegally built statue and then restrict its removal.

In 1997, the General Assembly again changed the statute in several impactful ways. § 15.2-1812, now authorizes localities to erect “monuments or memorials for any war or conflict, or . Thus, memorials erected by prior to the 1997 (or 1998) amendments simply do not fall within the scope of the statute and are not prevented by the Act or its progeny from being removed or relocated. By the same token, the statute’s removal restrictions cannot be read to apply retroactively to monuments built under totally different authorities because Virginia’s common law on retroactivity doctrine and the statute’s legislative history prevent such a reading. 693, 693–94 (1982) (emphasis omitted) (citing 1 John F.

Code § 15.2-1812, which regulates localities’ abilities to create and remove war memorials.[3] 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.[4] The rally ended in the murder of Heather Heyer, the deaths of two police officers in a helicopter crash, and countless injuries.[5] 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.[6] The ultimate outcome of will have a significant impact across the state, home to 96 of the country’s 700-plus Confederate monuments.[7] Many legal issues have been raised in the weekend’s aftermath, from the First Amendment protection of hate speech[8] to the constitutionality of the monuments under the Fourteenth Amendment[9] to state prohibitions on “unlawful paramilitary activity.”[10] 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. The amendment was proposed during the 2016 session, after the October 2015 decision in Danville and the July 2015 removal of the Confederate Flag from state grounds in South Carolina, a response to the tragic murder of nine black Americans by white supremacist Dylann Roof.[51] It was ultimately vetoed by Virginia Governor Terry Mc Auliffe. The Governor defended his veto as follows: There is legitimate discussion going on in localities across the Commonwealth regarding whether to retain, remove, or alter certain symbols of the Confederacy. 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.”[56] 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.[57] 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), Instead, the court’s outcome must be dictated by “the face of the instrument or enactment” that is “manifest beyond reasonable question.”[58] 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 . [8]Leslie Kendrick, How to Defend the Constitution When the KKK Comes to Town, CNN: Opinion (July 12, 2017), Any ordinances enacted by a locality beyond the scope of its powers are invalid and any locality actions above and beyond what state law authorizes are illegal.[23] Prior to any broader statutory authority regarding monuments, the state regularly granted such permission to localities through Acts of Assembly, which often included varying restrictions on removal or modification. one Act contains such a restriction and a related Act does not.”[26] In February 1904, seemingly in lieu of passing many additional individual acts of assembly, the General Assembly passed an act (the “Act”) to empower the circuit court of a county, with the support of the county’s board of supervisors, to authorize “the erection of a Confederate monument upon the public square of such county at the county seat thereof.”[27] More restrictive than some of the individualized grants of authority, the General Assembly provided that “thereafter,” counties “or any other person or persons whatever” could not “disturb or interfere” with such monuments nor “prevent the citizens of [the] county from taking all proper measures and exercising all proper means for the protection, preservation, and care of the same.”[28] Importantly, the grant of authority is limited to counties.[29] It is unclear why the state did not, at the same time, grant this power also to cities and towns. For example, in 19, the General Assembly passed such acts for seven counties.[24] In 1903, it passed seven more.[25] Attorney General Mark Herring, in his own analysis, noted that “[s]ome of these Acts contain restrictions on the disturbance of the monument, others are silent, and . Overall, however, it is clear that the 1904 Act operated as a very specific kind of authority and did not mean to be comprehensive nor to apply to all war memorials built by counties.[30] It began merely as a grant of authority to in public squares.[31] Any other monument in any other place would need separate authorization outside of the statute. Most importantly for our purposes, the general grant of authority now applied to any “locality,” not just counties.[36] Next, the General Assembly expanded the list of conflicts for which a memorial could be created and moved this list to a different section of the statute.[37] Finally, the statute broadened the authority of both counties and cities by allowing localities to place memorials on any of their property, not just within their public squares.[38] The most recent amendments to the statute were passed in 1998, which broadened the statute’s scope but kept its proscriptive format. Since 1904, the rule in Virginia has been that the state’s statutes “are construed to operate prospectively only, unless, on the face of the instrument or enactment, the contrary intention is manifest beyond reasonable question.”[44] The principle behind such a rule is to minimize the interference between new laws with old rules or contractual agreements. [19]The namesake of Dillon’s Rule is Judge Forest Dillon, who authored an important treatise on the law of municipalities and articulated the rule as follows: “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation,—not simply convenient, but indispensable.” Dillon’s Rule: The Case for Reform, 68 Va. Dillon, Commentaries on the Law of Municipal Corporations § 237 (5th ed. As recently as 2015, the Supreme Court of Virginia affirmed that the state “does not favor retroactive application of statutes” unless there is an “express manifestation of intent by the legislature.”[45] Additionally, “[i]t is reasonable to conclude that the failure to express an intention to make a statute retroactive evidences a lack of such intention.”[46] Moreover, courts are particularly cautious in finding a statute to have a retroactive effect on government actors: Especially do courts shrink from holding an act retrospective when it affects public objects and duties, and, when it affects rights accrued and acts done by law for the public interest and necessities, it must be presumed that the law makers of the new act did not intend it to be retrospective, unless that intent be expressed in the language, or plainly appear upon the face of the act itself.[47] Given the weight of the restriction imposed by Va. § 15.2-1812 on localities, the conditional and prospective phrasing of the statute’s removal clause, and the public nature of the statues at issue, the language of the statute and the legislative intent are not manifest enough for any court to hold that the statute applies retroactively. Without some form of authorization,[11] 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,[12] unless those localities impose further restrictions on themselves, as Virginia statutes generally do not apply retrospectively.[13] Accordingly, monuments built in cities prior to 1997, such as Charlottesville’s 1924 Lee Monument,[14] are either unauthorized () or authorized by a specific Act of Assembly.


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