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Fate of Loudoun County Confederate statue mired in code and confusion

Leesburg’s 109-year-old Confederate statue. Times-Mirror/Alexander Todd Erkiletian
As localities around the country and the commonwealth grapple with whether to remove Confederate monuments from public spaces, questions about Leesburg's Confederate statue continue to escalate.

Following the deadly protests in Charlottesville earlier this month, sparked by the city council voting to remove the statue of Confederate general Robert E. Lee from Emancipation Park, Loudoun County Chairwoman Phyllis Randall (D-At Large) and County Attorney Leo Rogers said the county did not have the authority to move the statue on its own.

Randall pointed to Virginia code, which she says prevents localities from doing so. Because of the law, the chairwoman said last week she intends to put an item in the county's legislative agenda asking the General Assembly for greater jurisdictional discretion over monuments and memorials.

But some familiar with the law and at least one member of the General Assembly argue Loudoun County has the authority to make a decision on removal or relocation without asking lawmakers in Richmond.

“I question whether it’s needed, because if Chair Randall is trying to score political points, that’s a different thing altogether,” Del. Randy Minchew (R-10th) told the Times-Mirror. “But if she is looking at having local control over a statue on the courthouse green, she arguably has the authority under existing law right now.”

Phillip Thompson, the president of the Loudoun County chapter of the NAACP, has called Randall’s plan a “cop out.” He thinks the county already knows what the outcome will be if they go the route of asking the General Assembly.

Minchew and Thompson, both lawyers by profession, cited a 2015 decision out of circuit court in Danville that found state code did not apply retroactively to the monument in question -- a Third National Flag of the Confederacy that flew on the grounds of the site known as the last capitol of the Confederacy.

The judge concluded state code did not apply to memorials built before 1998.

Although the decision was appealed, the Supreme Court of Virginia declined to review the appeal of the ruling. Therefore, some argue the ruling out of the Danville court is limited to that case only.

About a year later, the General Assembly passed HB-587, which would have clarified the current state code and protected war monuments “regardless of when erected.”

But Gov. Terry McAuliffe (D) vetoed the bill, stating that the 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.”

The majority of Loudoun’s 11-member state delegation, with Sens. Jennifer Wexton (D-33rd) and Barbara Favola (D-31st) being the exceptions, voted in favor of the legislation.

Murky legal territory

Minchew said McAuliffe’s veto statement also proves that the “authority’s already on the books” for localities like Loudoun County to take steps to relocate or remove Confederate monuments if they wish.

If Randall’s plan to ask the General Assembly for greater discretion over monuments and memorials fails, the Board of Supervisors could still, theoretically, vote to remove or relocate the statue.

According to Town of Leesburg spokeswoman Betsy Arnett and Clerk of the Circuit Court Gary Clemens (R), their entities would not be involved in any decisions about removing the statue from the courthouse lawn.

But supervisors taking the matter into their own hands would likely be met with legal challenges, according to legal experts.

After the city council in Charlottesville voted to remove the Robert E. Lee statue, groups sued to stop its removal. The matter is still pending litigation.

“Localities can proceed in two ways. They can ask for the General Assembly to clarify the statute further to make sure that it definitively doesn’t apply to their local decisions to keep or remove statues, or they can remove their statues and then potentially invite litigation over the question,” said University of Virginia law professor Richard Schragger.

Schragger said that although the General Assembly could resolve the confusion quickly by clarifying whether localities have the ability to remove their statues, they likely just don’t want to.

“I don’t think the General Assembly wants to do that. They don’t want the localities to have the power to [remove their statues], that’s why they adopted [HB-587] in the opposite direction, and that’s why Gov. McAuliffe vetoed it,” he said. “This is a political issue and the General Assembly is contributing to the confusion because they haven’t clarified the statute in one direction or the other, and so it’s possible that the courts will have to decide to do that.”

Randall said her decision to seek guidance from the General Assembly was recommended by Rogers and his reading of state code.

County spokesman Glen Barbour said, “We don’t know what the code would be or could be, because it’s not written, and so for us to say what the exact steps are that would be required, it’s not possible. All we can say is that the first step is that the code of Virginia would have to change and without a change in the code of Virginia, we do not believe that the local authorities have the ability to remove that [Confederate] statue.”

Thompson thinks a further explanation of the county’s interpretation of the code is needed.

“Loudoun County needs to re-look at their interpretation [of state code] based on that [Danville] decision and tell the citizens in Loudoun County what their interpretation is so we can figure if they’re wrong or right and someone can challenge that,” Thompson said.

Earlier this week, officials in Norfolk asked Attorney General Mark Herring (D) for an advisory opinion on whether state law would allow for the city’s downtown Confederate monument to be moved to a cemetery, the Richmond Times-Dispatch reported.

Herring’s spokesman Michael Kelly told the Times-Dispatch the attorney general would review Norfolk’s request, but ultimately the decision would be one for local governments to make.

“There may be different restrictions that apply to different monuments, or no restrictions, depending on where it is, who owns it, and a number of other factors that individual localities will need to identify, evaluate and consider in consultation with their city or county attorney,” Kelly told the Times-Dispatch.

In 2015, Herring said in an opinion to the Danville city attorney that state code applied to “monuments for any war conflict, including an engagement in such war or conflict, or for war veterans, but not to memorials or markers erected to recognize the historical significance of buildings.”

University of Richmond law Professor Kevin Walsh noted that one of the issues in the Danville ruling was whether the monument was a war monument at all and considering when it was erected.

Walsh said there is “no question” that the statue of the Confederate soldier in Leesburg is a war monument within the meaning of the code.

“If there’s any avenue to seek an authoritative exposition of the state’s position from the attorney general, in the form of an attorney general position, that would seem a prudent avenue to go down,” Walsh said

Before the Board of Supervisors can ask the General Assembly for an opinion, a majority of its nine members will need to approve adding the request to the county's upcoming legislative agenda.

Only four members of the board have indicated they would support the chairwoman’s request.

Supervisor Geary Higgins (R-Catoctin) is the only board member who has said he will not support Randall’s proposal because he thinks the request’s “intent is to use this authority to remove the Confederate statue on the courthouse grounds."

Several Democratic state delegates told the Times-Mirror they would introduce legislation in the General Assembly to support Randall’s request.

“I think that everybody has to come to their beliefs on this on their own,” said Supervisor Ron Meyer (R-Broad Run), who is the only local GOP officer-holder who has called for the statue to be moved.

“These issues are very personal to people whichever side you’re on. For some, you’re talking about a memorial to their ancestors who fought in the Confederacy, you’re talking about somebody’s great great grandfather, and on the other side you have people who are the ancestors of the people who were enslaved in Loudoun who shouldn’t have to walk by a memorial to the Confederacy every time they want to do business with the county at the courthouse,” he said.


Contact the writer at .(JavaScript must be enabled to view this email address) or on Twitter at @SydneyKashiwagi.

Comments


Are you guys mad?


There is no confusion. Statues can’t be removed without the Virginia legislature approval. For now, liberals don’t have the votes and it’ll be a long time until they control both houses in the General Assembly.


I actually laughed when I read Del. Minchew’s proclamation of being a “Rule of Law” attorney to Mr./Ms. Laugh.  The Opinion by our own A.G. speaks to Laugh’s question here:  “do we have to mistrust all of Delegate Minchew’s conclusions about the laws he writes”, or interprets?


I see you have a hard time following.  I never looked up the law previously so I didn’t get into the debate about whether the statue could be removed by localities.  I have always said it should stay regardless of whether it could be moved.

Based on a law “passed in 1997” that banned localities from disturbing monuments, I asserted (for less than 1 day) that such a new law wouldn’t protect statues erected prior to 1997.  After having researched the history of the law, whose similar language dates to 1904, it is clear a 1908 statue is protected by a law first enacted in 1904.  The Danville legal opinion is not published and the conclusion in this article is erroneous, or at best misleading.  I acknowledged my brief confusion.

You, on the other hand, still deny the Loudoun Land Use Committee violated FOIA, that Randall and the LoCo gov’t have violated 1st Amd rights, or even speak out about the perjury of multiple Loudoun officials.  Confident individuals admit when they are wrong.


Confusion, yes. The nations (ethnicities, not just countries) are raging (Psalm 2).


Interesting comment, Virginia SGP.  So, you were incorrect about your opinion that the statue had to stay, because of state law.  So, to recap, at the beginning you argued the law was clear and the statue had to stay.  THEN, Delegate Minchew comments his views, and now you say you were wrong, and the statue can now be removed.  BUT, then we now have an Attorney General Opinion, that the state law means that the statue must stay, so I guess your ring of errors seems unending.  Thank goodness you are not an attorney.


I stand corrected on the legality of moving the statute after reading Herring’s official opinion.  I had not researched the history of the law but just read about the enactment of a statute in 1997.  Given that the statute was originally created in 1904 (and slightly modified since that time), the law clearly protects Confederate monuments in county seats erected at any time thereafter.

Regardless, the statue should not be moved.  Many good ideas have surfaced regarding monuments that could be added (Union soldier facing the Confederate One, slave monument, or an African American leader monument).  Those add to history.  The ones calling for the removal are simply ignorant of the history of the Civil War and trying to create civil unrest for political advantage.


@SterlingLocal great question! Libs are only interested in the what the drive-by media tells them they should be interested in. I’m sure there will be a new outrage soon enough.


Wow, the two greatest legal theorists have now weighed in, and the statue at the courthouse can now go, just by a slime majority of the Board of Supervisors.  And, of course, these two great legal experts will defend, for free, the County when it gets sued.  Oh, I am sorry,  One of the legal experts is not an attorney.  So he can’t do that.  All he can do is just give us an “opinion.”  So, we can now wave good-by to that hunk of metal, and to the dump it goes.  All based on one legal theorist, and one with an “opinion.”


I’m actually surprised Umstattd so misunderstands the law given her supposed law degree.  The statute says that localities “may ... authorize and permit the erection of monuments” in the present tense.  It goes on to say that “If such are erected, it shall be unlawful for the authorities of the locality” to remove them.

The case law is clear that unless a law is defined to be retroactive, then it only applies to new events.  Thus, you cannot prosecute folks for prior actions that are made illegal by a new statute.  Here the use of the present tense “permit” the “erection” of monuments implies that localities can erect monuments going forward.  Only after they are erected does the second phrase apply “if such are erected…”. 

So yes this is a war memorial but since it was constructed prior to the statute, I agree with Minchew that the prohibition against altering the monument doesn’t apply.  I still don’t support moving it but that law doesn’t prevent it.  One could only hope we had competent legal counsel on the payroll of our local government.


The only confusion I see is in the people who want to tear that sucker down…


I did not notice that Delegate Minchew responded directly to me twice.  I am, of course, twice honored.  But it does not change much.  There is clearly no “rule of law” that can be found here.  There is clearly two points of view with the state law.  The law professor is probably better trained to understand the state law.  But if one is guided by the “rule of law” than make that law clear, so there is no confusion.  Otherwise, a statue put there during the Jim Crow era, to intimidate African Americans, could remain as a symbol of racial division.  It really is up to Delegate Minchew.  Does he want to hide behind some incorrect and unfounded claim that the statue represents history, or will he acknowledge what the statue was really meant to be, and support a law to allow for the removal of that symbol of hate.  Stand, or run, Delegate Minchew.


Dear Mr./Ms. Laugh,

I appreciate your words, but I thought you deserve to hear from me personally in this public forum.

You may or may not know me personally, but I am a “Rule of Law” attorney. That means I read and construe the law as honestly as I can with reliance upon existing case law, legislative history, and established rules of statutory construction. Many times, this process gives me the answer I don’t want.

In this instance, my reading of the current law is that Va. Code Section 15.2-1812 is not given retroactive application to war memorials erected before July 1, 1998. Now, we will get some additional guidance on this statutory construction point soon. There is an active case going right now in the City of Charlottesville in the case of Payne v. City of Charlottesville (CL 17-145) whereby this point will be adjudicated. Moreover, the Norfolk City Council earlier this week has asked Attorney General Herring for his official opinion on this precise issue.

There is no real question on whether or not the memorial on our Courthouse Green is a “war memorial”; the question is whether Va. Code 15.2-1812 has retroactive application so as to afford it statutory protection


To further substantiate Mr. Walsh’s statement “there is “no question” that the statue of the Confederate soldier in Leesburg is a war monument within the meaning of the code” I would like to present the document on file at the Library of Congress; Class I No. 22790 Library of Congress, to wit; Be it remembered that on the 27th day of August 1907, F. William Sievers (Artist)NY hath deposited in this Office the description of a statue the description is in the following words, to wit: “Confederate Infantryman standing in act of cocking a musket. The statue of Confederate Infantry man beardless young man in complete Confederate costume. He stands with left foot forward with weight of body equally divided over each leg etc. the right whereof he claims as author and proprietor in conformity with the laws of the United States respecting Copyrights.

LC Deed Book Page 129 July 1906 Be it resolved that there is hereby appropriated the sum of $500 to be used in assisting the Clinton Hatcher Camp of Confederate Veterans and Daughters of the Confederacy of said County in paying for the erection of a monument to the memory of the Confederate Soldiers of Loudoun County to be erected in the courthouse square….

Virginia Department of Historic Register
Loudoun County Courthouse File No. 253-0006
District Tertiary Number 253-0035-0368

Furthermore, while Ms. Randall is spending my tax payer dollars by sending folks (i.e. Heidi Seibentritt?) to the library to research on how to tear down our monument, I would certainly hope we are “equally” represented by our BOS members, (who also cherish Loudoun’s History and oppose Randall’s actions), and will be spending the same amount our treasured monument to ensure its safety and continued placement!


I just have a basic problem with placing a memorial on a County Courthouse lawn, to a group of people who attempted, and failed to secede from the Union for motives that were driven almost entirely by a desire to hold other human beings in slavery. States’ rights, Lost Cause, Noble Endeavor, that’s all a smoke-screen for the fact that these people wanted to overturn the nation so they could continue to hold humans in bondage. It’s ugly. I have a relative who fought for Georgia in this war, and I for one, think he’s an item of history, but not one that deserves a place of civic honor on our courthouse lawn. Call it history if you want, but then history goes in museums, where those interested enough can seek it out.

Delegate Minchew’s answer “...arguably has the authority under existing law right now” is pretty much a set-up for a lawsuit. Those are tiresome, and a huge drain on the county’s budget when we can spend that money on important things like education, road building, etc. So no, this has to get fixed in the GA, and until they have enough gumption to decide that hosting memorials for traitors is not the American, or Virginia Way, then we’re stuck.

Craig Green
Hamilton, Va.


If and when Loudoun gets authority from the General Assembly to move the statue, Loudoun still has to decide where to move the statue. I can’t thing of any Civil War parks in Loudoun. I think the closest one is Bull Run which is in Fairfax County. Will Loudoun use taxpayer money to pay Fairfax to take it?
I’m not optimistic the statue stays. Our culture appears to bend to people’s feelings rather than historical education.
This just highlights the importance of parents, not the government, to teach children (good and bad) American history.


wait a minute, what happened to Russia hacking the election? Did democrats abandon that failed attempt in favor of now trying to stir up race tension as a means to…. whatever they are trying to accomplish?


So, now we have the answer to at least one question:  Randy Minchew, Delegate, does not believe that the statue at the courthouse is a war monument.  So, there is no historical significance to the statue, and it can come down,  Thanks, Delegate Minchew, for telling all the pro-confederacy stalwarts who have argued heatedly that to remove the statue was somehow an affront to their dignity.  Now we know the statue is just a hunk of metal, that can be put in a dump.  Unless, of course, it proves out that Delegate Minchew is a lousy lawyer, and is flat out wrong.  In which case, do we have to mistrust all of Delegate Minchew’s conclusions about the laws he writes.


1. Make no decision in the heat of the moment.
2. Did Loudoun not fund a slave memorial to go on the courthouse grounds to provide better balance?  Where is it?

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