Polking Around

by Kemp Brinson

The Confederate Statue Lawsuit – A First Glance

Members of an organization called “Save Southern Heritage” have filed a lawsuit against several officials of the the City of Lakeland (press release), as well as a representative of the city’s contractor and the Florida Secretary of State, seeking to halt the removal of the Confederate memorial statue from Munn Park, in Lakeland.

I have downloaded and briefly reviewed the complaint and have some initial thoughts.

The Complaint

The Complaint contains seven counts:

Count 1 alleges that the City will violate the plaintiffs’ free speech rights, and the rights of those who erected the statue, by removing it.

Count 2 alleges that when the statue was originally donated to the City, an implied “bailment agreement” was created that requires the City to leave it in place forever, and that the City will breach that implied contract by removing it.

Count 3 alleges that the City “violated the public trust” by voting to use public money for this project.

Count 4 alleges that City deprived the plaintiffs of due process of law by not giving them an opportunity to be heard before removing the statue.

Count 5 alleges that the City is violating its own historic preservation ordinance.

Count 6 alleges that the City is committing a crime under the state law that prohibits desecration of a grave.

Count 7 alleges that the Florida Secretary of State has failed to do his job to protect historic resources of the State of Florida.

My Thoughts

There are several indicators that the Plaintiff’s attorney is inexperienced with federal litigation. There are some pretty rookie mistakes in the complaint. For example, he failed to properly incorporate his general allegations into each separately stated count. He did not include the information required by the federal rules in his signature block. Also, he signed his complaint under oath. It is not unusual for a plaintiff to file a complaint verified under oath, but the attorney signed the verification himself instead of having his client do it. These are unusual mistakes that litigation attorneys just don’t make. None of them are necessarily fatal, but it just makes the whole effort seem amateurish.

Substantively, all of these causes of action strike me as nonsense. All of the counts are potentially vulnerable to an attack based on standing. (Standing is the legal concept that only a person actually aggrieved has the right to sue, and it requires more than simply being upset with a government decision. For example, if I, personally, donated the statue to the City under an agreement that it be displayed in a particular location, maybe I would have the right to allege that a contract has been breached, or maybe not, but someone other than the actual donor does not have “standing”.) One of these plaintiffs has asserted what is called “taxpayer standing” as a citizen of Lakeland, but that is big can of worms with all sorts of limitations and requirements (google it) and I expect that it will be challenged.

Count 1 is going nowhere, as none of these individual plaintiffs have had their free speech rights denied in any way, at least not in the way courts understand free speech rights. Anyone who arguably had their free speech rights abridged is long dead, and the statue is a form of government speech, not private speech, at this point.

Count 2 is going nowhere. The notion that an implied “bailment agreement” was created with a term of forever is laughable, and even if it was, the original parties who would be entitled to enforce it are not before the court.

Count 3 is utter nonsense, as there is no such thing as a cause of action for “breach of the public trust.”

Count 4 is subject to challenge on the grounds that due process is only required when you are depriving someone of some sort of personal right, such as taking their house, or throwing them in jail. Due process of law (which means a fair hearing with notice and an opportunity to be heard) does not apply to policy decisions and decisions about the disposal of public property.

Count 6 is my favorite. But, it too, has fatal flaws. The statute in question is a criminal law, enforceable only by the state, and contains no private right of civil action. Furthermore, I suspect a court would find that it only applies to actual graves and memorials to specific dead people, not to monuments like this.

That leaves Counts 5 and 7, which allege violations of historic preservation laws at the City and State level. I would have to dig a little deeper to give a reasoned analysis. But I really doubt these will stick. Historic preservation laws simply do not work this way, substantively or procedurally.

In short, I think this Complaint is going nowhere fast, and will easily be disposed of by the lawyers for the City, State, and contractor.

Updated 11/21 to fix a couple of typos.

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