CHARLOTTESVILLE — Parties in a lawsuit over Charlottesville City Council votes to remove two Confederate statues downtown continue to disagree about which issues are ripe for ruling as motions continue to pile up.
The lawsuit, filed by the Monument Fund in March 2017, claims the council in 2016 violated a state code section that bans the removal of war memorials when it voted to remove the statue of Robert E. Lee. The suit was later amended to also include the city’s statue of Thomas “Stonewall” Jackson.
The city, the city council and three current and two former councilors are named as defendants.
A hearing to present a decree and/or order is set for 1 p.m. Wednesday in Charlottesville Circuit Court, and attorneys on behalf of the plaintiffs have requested to hear further motions.
Among those motions are a request for a change of venue, a summary judgment on the defense’s equal protection argument and a request for a bill of particulars from the defense.
The main issue that the defense argues should prevent setting hearing dates for several motions is whether the city councilors had statutory immunity. If they do, then many of the issues would be resolved, the defense attorneys argued in a June motion.
Additionally, the defense argues that it is premature to discuss a change of venue. Many of the issues in the case — including which issues a jury could be asked to resolve — have not been determined. Whether an unbiased jury can be seated is impossible to determine, the defense argues, prior to questioning possible jurors.
“A party seeking a venue transfer bears a heavy burden of proving substantial inconvenience or unavailability of impartial jurors,” the filing reads. “Plaintiffs have not met that burden and even attempting to make that showing would likely be impossible before voir dire.”
The defense has also taken issue with the plaintiffs’ request for a bill of particulars — a detailed document that outlines a party’s claims and/or arguments. The plaintiffs have requested a bill of particulars in regard to the defense’s equal protection clause defense, which argues that the placement of the statues violates the 14th Amendment of the U.S. Constitution.
Attorneys for the defendants argue that a bill of particulars is used to prevent unfair surprises, something not at issue in this case.
“The purpose of a bill of particulars is to give the opposing party notice of a claim or defense,” the filing reads. “But as this Court recognized at the May 1, 2019, hearing, the defense have already given Plaintiffs detailed notice.”
The yearslong lawsuit has continued to grow as more and more motions are filed. Earlier this year, Judge Richard Moore, who is presiding over the case, said he had never seen a case with more filings. At the last hearing in May, Moore indicated he would likely next issue a ruling on whether the councilors have statutory immunity for their votes.
Because it is one of the most important motions remaining, Moore indicated he would likely rule on it sooner than the others and said he hoped to work his way through the remaining motions in a manner timely enough to maintain a September trial date.
However, as more motions continue to pop up and as his caseload grows, Moore said, the date could be pushed back again. Several motions — including a motion to move the trial venue — have been filed since the last hearing in May.
What will and will not be heard will presumably be addressed at the hearing on Wednesday.