Judge: In Covering Confederate Monument, Birmingham Did Not Violate Alabama Law
By Ivana Hrynkiw
A judge has ruled the Alabama Memorial Preservation Act doesn't have any legal authority and the city of Birmingham doesn't have to take down its wooden screen placed around a Confederate monument in Linn Park.
The Alabama Attorney General's Office plans to appeal the ruling. "The Attorney General's Office stands by its original assessment that the Alabama Monument Preservation Act is constitutional. Therefore, we will be filing an appeal," according to the AG's statement issued Tuesday morning.
Judge Michael Graffeo issued his order on Monday just before midnight. The order comes over a year after the state sued the city for violating the Alabama Memorial Preservation Act-- a law to prohibit local governments from moving historical monuments on public property that have been in place for 40 years or more. The act also prohibits renaming buildings and streets with historical names that have been in place at least 40 years.
In his order, Graffeo said he "reluctantly" declares the act is void and has no legal effect or authority.
"Just as the state could not force any particular citizen to post a pro-Confederacy sign in his or her front lawn, so too can the state not commandeer the city's property for the state's preferred message," Graffeo wrote.
In August 2017, months after the law was enacted, then-Birmingham mayor William Bell ordered the Confederate Soldiers and Sailors Monument in Linn Park covered with plastic, and later plywood, while lawyers could consider legal options. While some called for the statue to be torn down, Bell said he wouldn't break the law to remove the monument.
The Alabama Attorney General's Office quickly filed a lawsuit against the city for violating state law, but Birmingham's city attorneys claimed the Memorial Preservation Act is "vague and ambiguous." Attorneys for both sides argued at a hearing in April 2018 on part of the law that says protected monuments cannot be "altered or otherwise disturbed."
Following that hearing, both the state and city filed briefs for the court to consider before issuing a final ruling. Graffeo wrote in his Monday order, "A city has a right to speak for itself, to say what it wishes, and to select the views that it wants to express." He said the state cannot restrict the city's right to free speech, writing "The state acknowledges that the city is generally free to engage in government speech... but explains that the act withdraws from the city the right to engage in a particular expressive message. This explanation is impermissibly content-based... [the state] also cannot manipulate the city's speech for the illegitimate purpose of favoring certain content of viewpoints."
Graffeo said the act violates the Fourteenth Amendment because the state was seeking at least $25,000 in fines from the city and also seeks to control what the city can build on Linn Park, but the act offers no due process. The act allows cities to apply for a waiver on certain structures, but Birmingham could not apply for that waiver because the Linn Park monument is over 40 years old. That part of the law is "overbroad and unreasonable," the judge said.
Graffeo filed the ruling 20 minutes before midnight, when his term as judge expired and he begins retirement. He did not seek reelection in November.
He wrote, "the city's conduct here is only expressive disassociation from a pro-Confederacy message. The state has not articulated an interest in penalizing this conduct other than disagreement with the message."
"Under the act, however, the people of Birmingham cannot win," the judge wrote. "No matter how much they lobby city officials, the state has placed a thumb on the scale for a pro-Confederacy message, and the people, acting through their city, will never be able to disassociate themselves from that message entirely."
Birmingham Mayor Randall Woodfin said Graffeo made the right decision and the city is excited about the ruling, especially regarding the city's right to due process and free speech. He said the monument's future is still unknown, as his team is reviewing all the options available at this point.
Woodfin said that while Birmingham needs to move past things that aren't healthy for the city, he understands the importance of the conversation regarding Confederate memorials and monuments. He said he doesn't think the monument should be destroyed, but could possibly be moved to the Birmingham Museum of Art.
Rhonda Brownstein, Legal Director of the Southern Poverty Law Center issued this statement Tuesday morning:
"Striking a blow to the defenders of the "Lost Cause," a judge has struck down an Alabama law that prevented the removal of Confederate symbols from public land. Yesterday's ruling is the first time a court has concluded that a state cannot force a city to maintain a confederate monument that its citizens find abhorrent. Cities have long been at the forefront of our nation's civil rights movements, and this ruling protects and builds on that tradition. The Circuit Court ruled that Birmingham has a constitutionally protected right to decide for itself what messages it wants to convey to its citizens and to the world. Alabama's majority-white legislature cannot force Birmingham, a majority-black city, to maintain a monument to white supremacy. This is a groundbreaking ruling that should give comfort to other municipalities throughout the South and the country that want to remove confederate monuments from public land.
"The SPLC's Whose Heritage report catalogs the more than 1,740 symbols of the Confederacy that remain standing today. The majority of these symbols were erected in the 1910s and '20s following the Reconstruction era, and again after the Brown v. Board of Education ruling that desegregated schools. These symbols continue to serve as tools of oppression by seeking to honor those who fought to preserve white supremacy."
Gov. Kay Ivey declined to comment on the ruling.
State Sen. Gerald Allen, who sponsored the act, released a statement Tuesday afternoon:
"Under the Constitution, judges are to be neutral umpires who apply the rule of law fairly. A judge's personal beliefs, whether about politics, sociology, or history, have no bearing on how he is to apply the law. Judge Graffeo has taken it upon himself to know and declare that it is 'undisputed' that the majority of residents of Birmingham are 'repulsed' by the Linn Park monument, and has thus ruled the Alabama Memorial Preservation Act void. But judges are not kings, and judicial activism is no substitute for the democratic process.
"The Memorial Preservation Act is meant to thoughtfully preserve the entire story of Alabama's history for future generations. The law was vigorously debated for months by the people of Alabama's duly-elected representatives in the State Legislature, and passed with overwhelming majorities in both the House and Senate. The Attorney General's Office is confident that the Memorial Preservation Act is constitutional, and I look forward to the Attorney General's appeal of Judge Graffeo's ruling."
(c)2019 Alabama Media Group, Birmingham