08/23/2019 by Dustin M. Paul
The EDVA made the national news this week with a story that the City of Norfolk has sued the Commonwealth of Virginia in the district seeking a declaratory judgment that it could move a statue in downtown Norfolk commemorating the efforts of the Confederacy during the Civil War. A copy of the Complaint is here. At issue is a Virginia statute that criminalizes the removal of monuments “erected for the purpose of marking the site of any engagement fought during the War between the States” and another statute that states “it shall be unlawful for the authorities of the locality, or any other person or persons, to disturb or interfere with any monuments or memorials . . .[including] removal of, damaging or defacing monuments or memorials, or, in the case of the War Between the States, the placement of Union markings or monuments on previously designated Confederate memorials.”
For those who still vividly remember the ever-prevalent “issue spotter” exam in law school, read the Complaint at your own risk. The lawsuit alleges constitutional violations and asserts civil rights claims under 42 U.S.C. § 1983. In particular, the Commonwealth has allegedly violated the City’s First Amendment rights because the legislation “contains a content-based prohibition that operates to compel the City and its City Council to continue to indefinitely present a particular message” and its Fourteenth Amendment rights because the legislation removes Norfolk’s “right to exclusive possession of its property.”
From my review of the Complaint, I have several legal questions that the case may potentially answer:
- Does a City have First Amendment Rights?
The Complaint certainly alleges it does; Paragraph 25 states that the “City and its City Council have a right to free speech, which right is protected by the Constitutions of both the United States and the Commonwealth of Virginia.” But the rights of municipalities are unclear. For further reading on this subject, check out a law review article by Matthew A. De Stasio analyzing the first amendment issue in the context of state laws requiring municipal body cameras for police officers here. Indeed, the scholarship on municipal constitutional rights is extensive.
- Does a City have Fourteenth Amendment Rights?
Again, there is considerable scholarship on this issue arguing that such rights can and do exist. But that scholarship is against a backdrop of language from the Supreme Court that states explicitly that a “City cannot invoke the protection of the Fourteenth Amendment against the State.” Newark v. New Jersey, 262 US 192 (1923).
- Even if Cities Have These Constitutional Rights, Can They Assert them in Federal Court?
The Eleventh Amendment can be a bar to suits brought in federal court against a state. Here, the only defendants are the Commonwealth itself and two individuals in their official capacity. The jurisprudence around the Amendment is complex and contradictory, but it is clearly a potential issue in this case, at least regarding some of the claims for relief.
- Can a Municipality Bring Suit under § 1983?
The City takes care to assert in Paragraph 7 of the Complaint that it is “recognized as a ‘Person’ under Virginia Law in all instances, unless expressly excepted.” I found the language odd until I realized that the text of § 1983 only protects “any citizen of the United States or person within the jurisdiction thereof.” The statute actually uses the term “person” twice. Once to describe who can bring suit, and another time describing who can be liable. Is a municipality a person entitled to bring a claim under the statute? Whether suits can be brought against municipalities has been subject to considerable litigation, including in Monell v. Dep’t of Soc. Svcs., 436 U.S. 658 (1978). That ruling concludes that under the first use of the term “person,” a municipality is a person subject to suit. And although you would normally read terms within a statue to mean the same thing, this is an interesting wrinkle to a § 1983 suit.
The real question may be, however, whether these thorny legal issues come before Judge Arenda Wright Allen and the Court. Virginia’s Attorney General, Mark Herring, gave a statement after the suit was filed that he “has long called for the repeal of this law and removal or relocation of Confederate statues.” It will be interesting to see how, or if, the Commonwealth defends this suit. We will keep an eye out for responsive pleadings.