STATUTES, STATUES, AND MUNICIPAL CONSTITUTIONAL RIGHTS (Part 2)

10/18/2019 by Dustin M. Paul

We previously discussed the suit in the EDVA brought by the City of Norfolk against the Commonwealth of Virginia to try and remove the civil war monument in downtown Norfolk.  Service has been waived, and we can now expect responsive pleadings on October 22, 2019.  Then we will see whether the state challenges the right of a municipality to bring First and Fourteenth Amendment claims.

In the meantime, the City has amended the lawsuit and has a new theory based in the Virginia Constitution.  In a recently filed Amended Complaint, Count four now alleges that the Virginia Constitution prohibits any person from being granted any right in a public street longer than forty years.  The City contends that if the evidence shows the relevant monument is not owned by the city, that the perpetual right to keep the monument in the right of way would be unconstitutional.

It is unlikely that the Court would keep jurisdiction of this case to decide a purely state constitutional issue if the federal issues are dismissed.  So, it will be very interesting to see what responsive pleadings are filed by the Defendants.

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