I. Introduction

IN December 19, 2016, the City of Charlottesville’s Blue Ribbon Commission on Race, Memorials, and Public Spaces released a 328-page report to the City Council which, among other things, recommended either the removal or “transform[ation]-in-place” of the city’s monument of Robert E. Lee in what is now known as Emancipation Park.[1] On February 6, 2017, the Charlottesville City Council voted, three to two, to relocate the Lee Monument.[2] Two weeks later, a group of citizens and pro-Confederate activists filed a lawsuit against the city, Payne v. City of Charlottesville, requesting an injunction and alleging that the removal violated Va. 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 Payne v. City of Charlottesville 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.

Virginia is a Dillon’s Rule state, meaning local governments may only exercise those powers expressly granted to them. This includes the authority to construct war memorials, which was first granted to all Virginia counties in 1904 and then all localities (adding cities and towns) in 1997 through various versions of Va. Code § 15.2-1812. Prior to the statute, localities were required to request a specific grant of authority—an Act of Assembly or Joint Resolution from the Virginia legislature—to construct such memorials. 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 (ultra vires) or authorized by a specific Act of Assembly. 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. Code § 15.2-1812.

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. They have reached varying conclusions, none of which are binding on other circuit courts across the state. When properly considering what the statute purports to authorize counties (and later cities) to do, it is clear that the statute cannot be read to apply to war memorials built in cities such as Charlottesville before 1997, as evidenced by the statute’s history, the text of the statute, and relevant Virginian common law on Dillon’s Rule and retroactivity.[18] At trial, the court should correct its previous reasoning, find Va. Code § 15.2-1812 to be inapplicable, and solely consider the legality of the removal based on other possible restrictions (if any) in balance with the city’s affirmative defenses.

II. The 1904 Statute Operates as a Specific, Prospective Grant Of Authority

The ability of Virginian cities to create and remove memorials has changed over time and is limited, first and foremost, by Virginia’s adoption of Dillon’s Rule,[19] an interpretive methodology for municipal authority which “limits the power of local governments to those expressly granted by the state or those necessarily implied or essential to express powers.”[20] Thus, “[w]hen a local ordinance exceeds the scope of this authority, the ordinance is invalid.”[21] Should it be reasonably unclear whether a locality, such as a city or county, has a power or not, “the doubt must be resolved against the local governing body.”[22] In other words, if a city wants to create a memorial of any kind, it must first find the authority to do so in an existing state law or ask the state legislature for permission. 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. For example, in 1901 and 1902, 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 . . . 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 exclusively to counties.[29] It is unclear why the state did not, at the same time, grant this power also to cities and towns. 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 only counties to build only Confederate monuments only in public squares.[31] Any other monument in any other place would need separate authorization outside of the statute.

In 1988, the General Assembly passed a law which sought to “amend and reenact” Va. Code § 15.1-270, a recodification of the Act. The 1988 legislation made two significant changes, though the prospective nature and limited scope of the Act stayed constant.[32] First, the statute granted counties the authority to construct memorials for the Revolutionary War, the War of 1812, and the Mexican War.[33] This made clear that counties wishing to build memorials to unlisted wars would still need to seek authorization from the state legislature. Second, the General Assembly changed the clause from its prior reading of “if such shall be erected it shall not be lawful thereafter”[34] to disturb or interfere with the memorials, to “[i]f such are erected, it shall be unlawful”[35] to disturb or interfere with them. The change simplified the statute’s language but did not 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 this statute, it cannot disturb or interfere with the memorial. Such a construction facially has no application to monuments erected previously under a different grant of authority.

In 1997, the General Assembly again changed the statute in several impactful ways. 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. That statute, codified at Va. Code. § 15.2-1812, now authorizes localities to erect “monuments or memorials for any war or conflict, or . . . 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. Thus, memorials erected by cities 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.

III. This Prospective Grant of Authority Cannot Be Read to Apply Retroactively

The above reading of Va. Code. § 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. 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.

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. 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. Code. § 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. Even if a court should find that the language of the statute is ambiguous or debatable, the court’s subsequent course of action is clear: without the language or intent being “manifest beyond reasonable question,”[48] the court must find that the statute does not apply retroactively.

This limiting interpretation of the statute is further evidenced by the attempt of the Virginia General Assembly to enact a bill which explicitly extended the protections of the statute retroactively to war memorials built under other grants of authority. A proposed amendment sought to eliminate the key conditional, prospective phrase (“[i]f such are erected”) and added: “The provisions of this subsection shall apply to all such monuments and memorials, regardless of when erected.”[49] While in all other renditions of the statute[50] the restrictions on removal are tied to the grant of authority, this draft detached them from each other, giving the restrictive clause independent operation. Such a sentence would effectively separate the removal restrictions from the general grant of authority.

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 McAuliffe. 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. 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.[52]

The Governor’s justifications summarize important policy arguments for not erroneously construing the current statute to apply retroactively to grants of authority independent of the statute. Note also that the City of Charlottesville Blue Ribbon Commission on Race, Memorials, and Public Spaces relied on this specific legislative history when recommending that the City Council remove or transform the city’s Lee Monument.[53]

In another case,[54] the Danville circuit court properly adhered to state precedent and the legislative history when it held that Va. Code § 15.2-1812 was inapplicable to a monument, which commemorated the Sutherlin Mansion as “the Last Capitol of the Confederacy,” for two reasons: first, because the statute did not apply retroactively, and, second, because the memorial at issue was not a war memorial. In its brief, three-page opinion, the court succinctly concluded that, “[a]s a matter of law, Virginia Code § 15.2-1812 does not apply retroactively to the monument at issue in this litigation, which was donated to the City of Danville in 1994 and erected . . . in 1995.”[55] The court’s focus in this holding was clearly on the years that the monument was received and formerly established. Given that both of these actions occurred prior to the statute’s inclusion of all localities—not just counties—in 1997, the statute was not applicable.

In contrast, when the Charlottesville Circuit Court overruled the city’s demurrer in Payne v. City of Charlottesville, it misunderstood the operation of the statute and did not adhere to the principle established in Arey that statutes generally only operate prospectively. 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 Arey, 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. 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 Arey. In other words, the lack of legislative history supporting the court’s interpretation and the plain language of the statute dictate that the court only applies it to monuments which were built under its authority, which could not have included the 1924 Lee Monument in Charlottesville, which is a city.

The Charlottesville Circuit Court placed substantial reliance on the outcome of Sussex Community Services Association v. Virginia Society for Mentally Retarded Children, Inc., which said, in dictum, that “we have never imposed a requirement that any specific word or phrase be used in order to support a finding of clear legislative intent or retroactive application.”[59] The key difference between the statute at issue in Sussex and the one at issue here is the word “any” and the lack of a conditional, prospective clause. The statute in Sussex read: “A family care home, foster home, or group home . . . shall be considered for all purposes residential occupancy by a single family when construing any restrictive covenant which purports to restrict occupancy or ownership of real or leasehold property to members of a single family.”[60] If that statute were to apply prospectively—and thus mimic the structure of Va. Code § 15.2-1812—the Sussex statute would read: “If a restrictive covenant is formed which purports to restrict occupancy or ownership of real or leasehold property to members of a single family, then a family care home, foster home, or group home shall be considered for all purposes residential occupancy by a single family.” Put another way, if Va. Code § 15.2-1812 were written similarly to the statute at issue in Sussex, it would read like the version vetoed by Governor McAuliffe in 2016.[61] The legislature chose a different construction, and the court should not read intent into the statute, no matter how “inescapable,” “impossible,” or nonsensical that may seem to a particular court.[62]

Finally, in Payne the Charlottesville Circuit Court made a great deal out of a general state policy to protect war memorials even when they may fall out of favor within a locality,[63] but this general policy was clearly defeated when a retroactive version of the statute was vetoed by Governor McAuliffe in 2016. This is further demonstrated by the statute’s evolution, which consistently limited itself only to those conflicts that it saw as important.

Further, when the Act was originally passed, it only applied to Confederate memorials.[64] As noted previously, the amended 1988 statute was expanded to include the Revolutionary War, the War of 1812, and the Mexican War (in addition to the previously included World Wars I and II, the Korean War, and the Vietnam War).[65] Such an ad hoc addition of conflicts, which specifically favored some conflicts over others, does not reflect a policy of protecting all war memorials, especially those that may fall out of favor in a particular locality.

IV. Other Restrictions On Removal

Even if a statue was not constructed under the authority of Va. Code § 15.2-1812, other restraints on removal may exist, including locality-specific constraints and monument-specific constraints. Localities have restricted their own abilities to remove or relocate such memorials through, for example, local ordinances, charters, or other planning documents. For example, the City Attorney Allen Jackson reportedly advised Richmond’s City Council that the four Confederate statues on Monument Avenue could not be removed due to a provision of Richmond’s City Charter and its master plan.[66]

Monument-specific constraints include those found in transfer instruments and grant programs. As summarized by Attorney General Herring, “a monument may have been donated to the locality subject to reversionary terms or conditions in the transfer instrument triggered by the locality’s attempt to remove or disturb the monument,” or “a locality might have received funding for the acquisition, maintenance, preservation or enhancement of the monument through a grant program that places restrictions on any alteration of the monument.”[67] However, it is critical to realize that any constraints placed on the city through transfer instruments or grant programs are obligations only to the original parties in the transaction, creating an entirely different procedural dynamic and significantly limiting the population with standing to challenge the city’s actions.

V. Conclusion

In the Commonwealth of Virginia, under Dillon’s Rule, the most appropriate reading of the statute is as a prospective and historically limited grant of authority which comes with embedded restrictions. Every statue erected by a locality in the Commonwealth needs authorization,[68] and many localities derived authority to build war memorials from the 1904 statute. However, this was simply not the case in cities, since the statute narrowly applied only to Confederate monuments in county public squares for eighty-four years. Indeed, the statute did not apply to cities at all for nearly a century. From its inception and throughout its amendments, the statute’s scope remained limited and its conditional, prospective phrasing remained constant. The statute’s limited scope and phrasing dictate a reading that does not have any bearing on the removal of statues built under other grants of authority. In order to apply these restrictions retroactively to illegally-built statues or to statues built under other grants of authority, the state legislature would need to make it manifestly clear on the face of the statute that it is meant to apply retroactively. Thus, as a Dillon’s Rule state a careful reading of Va. Code § 15.2-1812 and its history yields the appropriate result: Va. Code § 15.2-1812 has no bearing on war memorials built in cities prior to 1997 and does not prevent their removal.