BERRYVILLE — A jury trial will decide whether Clarke County can take ownership of the controversial Confederate soldier monument in downtown Berryville.
Judge Alexander R. Iden on Wednesday scheduled the trial to start on April 8 in Clarke County Circuit Court. He did so after denying a motion by the county to intervene in a civil action filed by Turner Ashby Camp No. 1567 Sons of Confederate Veterans, which also is seeking ownership of the monument, as well as a motion by the camp to intervene in the county’s action.
Iden also denied a motion by Turner Ashby Camp, a Winchester-based Confederate history organization, to have the cases consolidated.
One of the organization’s attorneys, Glenn Franklin Koontz, argued that consolidating the cases would make it easier for the court to decide the outcome “by sharpening the focus of the issues.”
Iden determined, however, that consolidation isn’t appropriate because the cases aren’t of the same nature, they don’t arise from the same act or transaction, they don’t involve the same or similar legal issues and they don’t substantially depend on the same evidence. He also concluded that holding separate trials won’t prejudice the substantial rights of either party.
From a legal perspective, “the camp and the county are strangers to (each) others’ suits,” Iden said.
He based his conclusions on tests for consolidation set forth in Clark v. Kimnach, a 1957 case concerning an automobile accident heard by the Virginia Supreme Court.
Koontz contended during Wednesday’s hearing that future ownership of the monument could be decided based on whose case the court hears first.
“That’s not fair,” Koontz said. He indicated that hearing the county’s case first could put Turner Ashby Camp at a disadvantage.
The judge disagreed.
“While the county’s complaint involves the ascertainment of a right, the camp’s petition involves the processing of a request,” Iden wrote in his order denying the consolidation. “The county’s claim must first be ascertained before the camp’s request can be considered.”
Robert Mitchell, the county’s attorney, said “there’s no logical reason” to consolidate the cases.
The county is asking the court to transfer it ownership of the monument and the parcel of land on which it stands, claiming adverse possession — commonly known as “squatter’s rights.”
Koontz couldn’t be reached for comment after the hearing on how Turner Ashby Camp’s case will proceed.
Erected in 1900 and titled “Appomattox,” the granite monument in front of the courthouse on North Church Street has become a source of contention amid a racial reckoning across the country since the May 2020 killing of George Floyd, a Black man, by a white Minneapolis police officer. The Confederacy supported the enslavement of Black people.
The monument lists names of Confederate soldiers from Clarke County who died in battle during the Civil War. Atop it is a statue of an unarmed, downcast soldier.
Initially, it was believed the county owned the monument and a circular parcel roughly 25 feet in diameter on which it stands. Based on that belief, the county took out an insurance policy on the monument. It has maintained both the monument and the parcel for over 90 years, county officials have said.
Recent historical research, however, has revealed the monument and parcel are owned by the Association of the Survivors of the Clarke Cavalry (ASCC), which is believed to have dissolved around 1930. No descendants of the group’s members have stepped forth to stake a claim to the property, and nobody has determined if any descendants are alive, according to officials.
Last March, a citizens committee recommended keeping the monument at its current location while researching and sharing more of the county’s history, especially as it pertains to African Americans. Possible methods, the committee determined, include placing at least one more statue on the courthouse grounds and/or naming the building after a deceased, highly-regarded Black person from the county. The committee was formed after some called for the statue’s removal.
The county is in the process of hiring a consultant to design a master plan for the grounds.
“Clearly the county has the right” to become the owner through adverse possession, Mitchell asserted on Wednesday in court.
But in October, Turner Ashby Camp petitioned the court to transfer ownership to the organization.
“As an organized camp, it is the most suited to care for, protect and preserve the memorial for future generations,” the organization’s petition reads. “Some current members of the camp have direct ancestors listed on the memorial, and as such, a personal connection to family is a motivating factor in its protection and preservation.”
Iden told Koontz and Turner Ashby Camp’s other attorney, Bradley G. Pollack of Woodstock, it would be possible for the court to transfer ownership to another charitable entity with a purpose similar to the camp’s.
“But there’s just one,” Koontz said. If any others exist in the area, “apparently only the Turner Ashby Camp cares enough” to try and obtain ownership.
Referring to the camp, Mitchell said, “They don’t have any claimed interest in the property, like being the adjoining property owner.”
In scheduling the jury trial, Iden said he believes the public should be involved in deciding who takes ownership.
The April 8 proceedings will begin with jury selection at the Clarke County Parks & Recreation Department. That location is roomier than the circuit courtroom and can better accommodate a large potential pool of jurors amid social distancing measures as the COVID-19 pandemic continues, according to Circuit Court Clerk April Wilkerson.
Jury selection likely will take no more than a few hours, Wilkerson said. Then proceedings can move to the courtroom, she said.
The monument should remain as is. These monument issues are a waste of time for all concerned. The Civil War is history and should be treated as such. Get over it and move on. There are more important issues facing our communities and nation than trying to erase the past.
I use to think like you and not care about anyone else. I use to honor those statues and other items.
Then I put myself in the shoes of the descendants of the slaves. They have been treated poorly for generations. Perhaps you should get over the fact south lost and move on.
anon: Trust me, I care very much about everyone and respect your views. I am well over the fact the south lost. I still feel we need to deal with far greater issues than the monuments. By dealing with the many social issues out there, it will be helping all descendants of all races. At the age of 72, I have had to move on from lots of things in life as have had many others. Monuments do not have to be the center of what can be done for all.
It's sad that the county is wasting time and tax dollars on this remnant of Jim Crow racism. The county would be better off taking it down and planting a tree.
[rolleyes] there's no Jim Crow remnant like the Democrat Party. JS [beam]
What profundity Cat, combine the end results of both lawsuits into a wistful outcome unencumbered with any facts in the case. [smh]
It is an either/or proposition Sherlock. Either stop wasting time and tax dollars and empower a similar to the original charitable group to own and manage it; OR, expend time and tax dollars for the County to own, destroy, and "plant a tree".
Guess who she voted for folks![lol] Let's Go Brandon![beam]
How original. Make America Grate Again. No pre-shredded cheese.
Legally it is not the counties to destroy. It does not belong to the county or anyone. The county has no legal choice but to deal with this process.
At the outset of hostilities (1861), both the Union and the Confederacy "supported the enslavement of Black people." Fixed it for you Mickey. [rolleyes]
“My paramount object in this struggle is to save the Union, and is not either to save or destroy slavery.” ~ Abe Lincoln (August 22, 1862)
Both lawsuits clearly have the same objective, ownership of the land and memorial. I can understand Turner Ashby's interest and intent in the property, but what is the interest and intent of a transient body of Clarke County's Board of Supervisors?
Prudence should have dictated an equal hearing of the two parties to determine an outcome based upon the evidence each side can provide. I'm sadly amused that a jury panel hearing only one case can be confidently stated to reflect the interests of the greater community, but such are the times.
Everyone knows that trial by jury is unfair.
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