Rick Patrick, rick@greenepublishing.com
Although the ultimate fate of the Confederate monument in Four Freedoms Park, in Madison, is not set in stone, a significant step has been taken. On Wednesday, Aug. 3, the First District Court of Appeal for the State of Florida ruled against an appeal from a group of citizens who sought to prevent the removal of the monument. This was an appeal of a June, 2021 ruling by Circuit Court Judge Melissa Olin.
In their appeal, the group sought to prevent the monument's removal on six counts. Those counts were:
1. Removal violates the 1926 deed; and the mayor's (Rayne Cooks) vote for removal was void because she resides outside the city.
2. Removal violates the city's historic preservation ordinance.
3. Removal violates section 872.02, Florida Statutes, which criminalizes defacing or destroying tombstones and monuments.
4. Removal violates the plaintiffs' state constitutional rights to free speech and free exercise of religion.
5. Removal is a breach of the city's fiduciary duty to its citizens to protect city assets.
6. Removal breaches implied contracts between the city and the SCV (Sons of Confederate Veterans) to continue the monument in the park as an appurtenance. (An appurtenance is defined as “an accessory or other item associated with a particular activity or style of living.”)
Another count in the original suit, claiming a violation of section 276.031, Florida Statutes, by the Florida Division of Historical Resources, was “dismissed because a claim against the Florida Secretary of State must be filed in Leon County and is not a subject of this appeal.”
In regards to the first count, it was ruled that the lower court had “properly ruled that the plaintiffs lack standing to assert a claim under the 1926 conveyance and that even if the plaintiffs have standing, the removal of the monument does not violate the terms of the conveyance.” The plaintiffs claimed that they “have sustained sufficient injury, different from the public generally because they are direct descendants of those memorialized on a plaque affixed to the monument, which they view as a gravestone in honor of their ancestors.”
In 1926, the park was deeded over to the City of Madison from Madison County with the requirement that the property would only be used for park purposes. In exchange, the city would give up its right to collect a $4,800 debt from the county for road paving services.
The city claims that the plaintiffs were not parties to the 1926 conveyance and, as such, lack standing to enforce the terms of the conveyance. The court's decision also states that, their (the plaintiff's) ancestral linkage to those memorialized is legally insufficient to accord them standing to sue to enforce a conveyance to which they were not a party. As such, the plaintiffs have no legally enforceable interest in the conveyance, nor are they 'equitable owners' of the park or monument.” It was further argued that removal of the monument does not violate restrictions in the conveyance because the park will remain a park, even if the monument were to be removed.
The plaintiffs also claimed that City Commissioner Rayne Cooks, the mayor at the time the monument's removal was passed by the Madison City Commission, and who voted in favor of the monument's removal, is not a resident of the City of Madison. The plaintiffs claim this would render her vote invalid. The plaintiffs claimed to have “taxpayer, residency and voter” standing to seek an “inquiry in the nature of a quo warranto proceeding.” (The Latin term “quo warranto” translates to “by what warrant,” or authority. It is defined as “a writ or legal action requiring a person to show by what warrant an office or franchise is held, claimed or exercised.”) The appeals court upheld the trial court's ruling that “only the Attorney General or a person claiming title to the office in question has standing to seek a writ of quo warranto, and that the mayor was a de facto officer whose vote was valid.”
In another count, the plaintiffs claimed the city was required to follow the process set forth in its historical preservation ordinance to authorize removal of the monument; a process that requires the “issuance of a permit, a certificate of appropriateness and considers feasible alternatives to destruction, none of which was done before approval of the monument's removal.” The trial court noted that this ordinance refers only to “landmarks” and the plaintiffs have not shown this monument to be a recognized landmark for the purposes of the ordinance.
In their third count, the plaintiffs made the claim that they had the legal right to sue the city for an alleged violation of a statute, section 872.02, which criminalizes the “defacing or destroying of tombstones and monuments.” The appeals court ruled that private citizens are not empowered to sue under a criminal statute. Previous case rulings were cited that assert that “A private individual cannot bring an individual action under a criminal statute, as the power to prosecute criminal cases is vested exclusively in the executive branch of the government.”
The plaintiffs also claimed that the removal of the statue would violate their constitutional right to free speech and the free exercise of religion. The court ruled that the plaintiffs would still be able to hold ceremonies honoring Confederate Dead, as they have held in the past, even if the monument were removed. The court ruled that the same is true as to visits for religious purposes to pay their respects to deceased family members. The court ruled that “the removal of the monument would not prevent [the plaintiffs] from engaging in either type of expressive activity, post removal. Nothing prevents the plaintiffs from gathering and engaging in free speech or religiously commemorative activities as they have done previously.” The court went on to acknowledge that, “it is true that the plaintiffs will have displeasure and sadness because a governmentally controlled structure that they venerate will be gone; the legal question that courts have uniformly answered in the negative, however is whether this type of psychological/emotional harm from removal or relocation of such monuments is actionable.”
On the issue of fiduciary duty, the appeals court upheld the trial court's decision that the “plaintiffs did not allege compliance with pre-suit requirements for such a claim and, even if they did, a claim against the city must arise from a claimed breach of duty owed to the plaintiffs themselves.” In their appeal, the plaintiffs made the claim that they had the right to enforce the terms of the 1926 conveyance, which the court ruled they did not.
Lastly, the court dismissed the SCV's implied contract claim. This claim was based on the allegation that by allowing the monument to be placed in the park in 1909, the county (which owned the park at that time) “formed an enforceable, albeit unwritten, contract with SCV's predecessors that the monument was a park 'appurtenance' that would never be removed.” A previous case ruling was cited that states, “waiver of sovereign immunity in the context of a contract action can only be supported through an express, written contract.”
Although the appeals court upheld the city's vote, the practical question still remains as to how and when removal may take place. One large question is how a possible removal would be paid. According to Madison City Commissioner Ina Thompson, the cost for removing the monument could top $100,000. That amount of money is not currently in the city's budget for such an expensive project. It remains questionable whether the current City Commission would authorize taxpayer money to be used for such a project.
“The City of Madison has received notification of the decision from the First District Court of Appeals and will go into discussions with city leaders on the next steps to be taken,” said Madison City Manager Jerome Wyche. “No concrete plans have been made as of yet. All actions and information are still pending.”
David McCallister, the attorney for the plaintiffs, stated that his clients are considering further appeals, possibly to the Florida Supreme Court. “If this monument is removed, then all the monuments at Four Freedoms Park could be at risk,” said McCallister. “We want to preserve, not only this monument, but all veteran's monuments. We do not consider this a 'done deal.' I do want to thank the City of Madison and the city's attorney for not taking action until the legal process has had a chance to run its course.”
Until the final fate of the monument is determined, the Confederate soldier atop the monument in Four Freedoms Park will remain facing west, and an uncertain future.