DOCUMENT 73

ELECTRONICALLY FILED
3/17/2021 9:49 AM
47-CV-2020-901595.00
CIRCUIT COURT OF
MADISON COUNTY, ALABAMA
DEBRA KIZER, CLERK
IN THE CIRCUIT COURT OF THE 23RD JUDICIAL CIRCUIT
MADISON COUNTY, ALABAMA

)
STATE OF ALABAMA EX. REL. )
ATTORNEY GENERAL STEVE )
MARSHALL )
)
Plaintiff, )
)
Civil Action No.
)
47-CV-2020-901595
v. )
)
MADISON COUNTY, ALABAMA, AND )
THE MADISON COUNTY )
COMMISSION, )
)
Defendants. )

MOTION FOR SUMMARY JUDGMENT

Plaintiff State of Alabama ex. rel. Attorney General Steve Marshall respectfully requests

summary judgment in its favor because there is no genuine issue of material fact and Plaintiff is

entitled to a judgment as a matter of law. Ala. R. Civ. P. 56.

I. INTRODUCTION

Plaintiff filed this action to enforce the Alabama Memorial Preservation Act of 2017 (the

“Act”). See Ala. Code § 41-9-230, et seq. Defendants violated the Act by moving a protected

monument that had been located on public property—Madison County courthouse grounds—for

more than 40 years, and as a result of the violation, Defendants are required to pay a $25,000 fine.

In relevant part, the Act reads: “No architecturally significant building, memorial building,

memorial street, or monument which is located on public property and has been so situated for 40

or more years may be relocated, removed, altered, renamed, or otherwise disturbed.” Ala. Code §

41-9-232(a). While monuments that are between 20 and 40 years old may be eligible for a waiver

from the Act that allows them to be moved, “nothing in . . . the Act allows an entity . . . to petition

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for a waiver from § 41-9-232(a), which specifically concerns monuments that have been ‘so

situated’ on public property for 40 or more years, such as the monument in this case.” State v. City

of Birmingham, 299 So. 3d 220, 224 (Ala. 2019).

Despite the plain language of the Act and the plain statement of the Alabama Supreme

Court, Madison County apparently believes that it could apply for a waiver to lawfully move a

monument that had been situated on public property for 40 or more years. But the agency charged

with deciding such waivers has no authority whatsoever to grant a waiver for monuments that are

over 40 years old. Madison County relocated the Monument anyway and now must pay the

statutorily required $25,000 fine.

II. STATEMENT OF UNDISPUTED FACTS

Plaintiff submitted a waiver application concerning the monument at issue, and from which

many of the facts set out below are drawn. See Ex. A (Plaintiff’s Requests for Admission, which

attach a copy of a waiver application). Defendants admit that the copy of the waiver attached to

Exhibit A is a true and correct copy of the “Application for Waiver.” See Ex. B (Defendants’

Responses to Requests for Admission no. 1.). The authenticated waiver application is admissible

evidence as an admission by a party opponent: It is Defendants’ own statement “of which the party

has manifested an adoption or belief in its truth,” Ala.R.Ev. 801(d)(2)(B), and made by a person

authorized by the party to make a statement concerning the subject (the County Attorney),

Ala.R.Ev. 801(d)(2)(C).

Plaintiff relies on the pleadings and the following exhibits:

Exhibit A Plaintiff’s Requests for Admission, and attached “Application for Waiver”
Exhibit B Defendants’ Responses to Requests for Admission
Exhibit C July 8, 2020 email from Steve Murray to the Chairman of the Madison
County Commission
Exhibit D Notice of Intent to Sue

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1. The monument at issue in this litigation (“the Monument”) stood until recently on

the grounds of the Madison County courthouse and is as described in Defendants’ Application for

Waiver:

The monument stands approximately 24 feet tall and features a standing

confederate soldier grasping the barrel of his weapon. The monument includes an
insignia of a flag which mirrors the design of the State flag of Mississippi and
includes three horizontal bands with a square in the canton bearing the confederate
battle flag. The flag is located below a date notation of “1861-1865.” The
monument states: “IN MEMORY OF THE HEROES WHO FELL IN DEFENCE
[SIC] OF THE PRINCIPLES WHICH GAVE BIRTH TO THE CONFEDERATE
CAUSE.” (See Exhibit 7 [to Defendants’ Application for Waiver]). The monument
also includes an attached placard that states: “IN MEMORY OF JOHN HUNT
MORGAN ‘THUNDERBOLT OF THE CONFEDERACY’ BORN IN
HUNTSVILLE, ALABAMA JUNE 1, 1825 DIED DEFENDING THE NOBLE
CAUSE SEPT. 4, 1864.” (See Exhibit 8 [to Defendants’ Application for Waiver]).

See Application for Waiver, pp. 2-3, attached to Exhibit A.

2. Defendants attached the following pictures of the Monument to their Application

for Waiver (full-sized copies are attached to Exhibit A):

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See Exhibits 3, 5, 7, and 8 to Defendants’ Application for Waiver.

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3. The Monument’s history is as described in Defendants’ Application for Waiver:

The original monument was reportedly dedicated in 1905 by the Virginia Clay
Clopton Chapter # 1107 United Daughters of the Confederacy of Huntsville. …
The original monument remained outside of the Madison County Courthouse until
1965, when the monument was relocated during construction of the current
Courthouse. On June 29, 1966, during the construction of the courthouse and after
the monument had been moved, the monument was destroyed by a contractor
performing work for the Huntsville Housing Authority. A lawsuit was filed seeking
monetary damages for the destruction of the monument. Following a jury trial and
a judgment for the Daughters of the Confederacy, rendered on March 15, 1968, the
monument was reconstructed and the “new” monument was placed in its current
location, les than 50 feet from the main doors leading into the Courthouse. The
current location is not the location of the original installation of the monument. The
monument has remained in much the same condition and location since
approximately 1970. (See exhibit 4 [to Defendants’ Application for Waiver).

See Application for Waiver, page 2.

4. On or about June 30, 2020, the Madison County Commission submitted an

“Application for Waiver” to the Committee on Alabama Monument Protection (“CAMP”). Ex. A.

5. The Act creates CAMP and tasks CAMP with considering waiver applications, Ala.

Code § 41-9-235(a)(1).

6. The Act gives CAMP rulemaking authority to provide for the implementation of

the Act. Ala. Code § 41-9-237.

7. CAMP clarified in its regulations that there may be “No Waiver for Memorials or

Monuments in Place for 40 or More Years”:

A controlling entity that is responsible for an architecturally significant building,

memorial building, memorial street, or monument that is located on public property
and has been in that location for 40 or more years may not relocate, remove, alter,
rename, or otherwise disturb the architecturally significant building, memorial
building, memorial street, or monument, nor permit such action by any other party.

Ala. Admin. Code 584-X-1-.04(1). These regulations were published on April 30, 2020, and

effective June 14, 2020, id., which is before Defendants submitted their “Application for Waiver.”

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8. CAMP clarified that a waiver application can be deemed granted only if the

application is “eligible” for a waiver. Id. (11).

9. The Act further empowers CAMP to “create advisory subcommittees” consisting

of individuals with “interest and expertise in the objectives of the committee.” Id. at (f).

10. Consistent with Ala. Code § 41-9-234(f), CAMP established the Technical

Advisory Review Group to assist reviewing waiver applications:

The committee shall designate a Technical Advisory Review Group to perform

the administrative and technical review of the Applications for Waiver. . . . The
Technical Advisory Review Group shall be responsible for reviewing
Applications for Waiver to ensure the applications are complete and include the
required information for consideration and that the information provided is
consistent with the intention of the Act and applicable to the waiver request.
The Technical Advisory Review Group shall provide comments and
recommendations to the Committee. The review and recommendations of the
Technical Advisory Review Group shall be limited to the historical and
technical scope of the application.

Ala. Admin. Code 584-X-1-.04(6). The Technical Advisory Review Group includes “the Director

of the Alabama Department of Archives and History or [his] designee.” Id.

11. Steve Murray, Director of the Alabama Department of Archives and History, serves

on the Technical Advisory Review Group. He sent the following email to the Chairman of the

Madison County Commission concerning the Commission’s “Application for Waiver:”

Dear Chairman Strong:

Your correspondence of June 30, 2020, with attachments, was received by my

office on July 6, 2020. I serve as an administrative resource to the Committee on
Alabama Monument Protection and have been asked by the Committee chair, Alyce
M. Spruell, to respond to your correspondence.

The submitted request is outside the scope of the Committee’s authority because
the subject of the request is a monument situated on public property for forty or
more years. Further inquiries regarding the legality of the Madison County
Commission’s proposed actions should be directed to the Office of the Alabama
Attorney General.

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You may wish to review the rules adopted by the Committee which became
effective on June 14, 2020. For future reference, please be advised that applications
for waiver must be submitted using the form provided and the process outlined on
the Committee's website at www.camp.alabama.gov.

Finally, the Committee meeting scheduled for July 9, 2020, was cancelled on June
25, 2020, due to a lack of any agenda item to be considered by the Committee. The
next Committee meeting is scheduled for October 1, 2020.

Sincerely,
Steve Murray

A true and correct copy of the email is attached as Exhibit C.

12. “On or about October 23, 2020, upon authorization of the Madison County

Commission, a monument dedicated to Confederate soldiers (‘the Monument’) was removed or

relocated from property owned by and under the control of Madison County (the grounds of the

Madison County Courthouse) and placed in Maple Hill Cemetery in Huntsville, Alabama.” See

Complaint, Doc. 2, ¶9; Answer, Doc. 25, ¶9, admitting to these facts.

13. Defendants aver in their Answer that “the statue referred to therein was moved by

the City of Huntsville, Alabama at the expense of the City of Huntsville.” Answer, Doc. 25, ¶9.

14. Defendants also assert that the “efforts of the Madison County Commission and the

City of Huntsville to relocate the monument” were “carefully coordinated.” See Application for

Waiver, p. 2.

15. Further, in their responses to Plaintiff’s Requests for Admission, Defendants admit

that the relocation of the monument occurred with their knowledge and consent:

13. Admit that the relocation or removal of the Monument that occurred on
or around October 23 , 2020, was performed with your knowledge and consent.

RESPONSE: Admitted.

14. Admit that you coordinated with the City of Huntsville, Alabama to
have the Monument removed or relocated.

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RESPONSE: Madison County objects to this request on the basis that the
County does not understand what is intended by the word “coordinated.” Admitted
that Madison County consented to the City of Huntsville, Alabama moving to [sic]
Monument after the relocation was approved by the Committee on Alabama
Monument Protection pursuant to Ala. Code § 41-9-235(c).

Ex. B.

16. Defendants admit that “at the time the Monument was relocated or removed from

the west side of the Madison County Courthouse, the Monument had been located for more than

40 years on public property controlled by the Madison County Commission.” Ex. B, response to

Request for Admission no. 11.

Argument

A. Defendants violated the Act.

The Act states that “[n]o … monument which is located on public property and has been

so situated for 40 or more years may be relocated, removed, altered, renamed, or otherwise

disturbed.” Ala. Code § 41-9-232(a). The Attorney General determined that the Defendants, as “an

entity exercising control of public property,” violated the Act. See Ala. Code § 41-9-235(d). Thus,

“the entity shall be fined twenty-five thousand dollars ($25,000),” and “[t]he fine shall be collected

by the Attorney General, forwarded by his or her office to the State Treasury, and deposited into

the Alabama State Historical Preservation Fund.” Id.

The Attorney General’s determination was correct.

First, the Monument that was relocated was a protected “monument.” The Act defines

“monument” as “a statue, portrait, or marker intended at the time of dedication to be a permanent

memorial to an event, a person, a group, a movement, or military service that is part of the history

of the people or geography now comprising the State of Alabama.” The Monument’s primary

inscription—“IN MEMORY OF THE HEROES WHO FELL IN DEFENCE [SIC] OF THE

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PRINCIPLES WHICH GAVE BIRTH THE CONFEDERATE CAUSE.”—is alone enough to

bring it within the statutory definition, and other facts and photographs referenced above confirm

this.

Second, the Monument was located on public property for 40 or more years. Plaintiffs

admit as much. And as further evidence that the statute is a “monument” that had been located on

public property for more than 40 years, Defendant’s treated it is such in their “Application for

Waiver.” Defendants would not have submitted an application if they did not believe the

Monument was a “monument” within the meaning of the Act. They may not argue otherwise here.

Third, Defendants relocated the Monument. They may try to pass the buck to the City of

Huntsville, who reportedly supplied the funds and manpower to move the Monument, but

Defendants admit that the Monument was relocated with their knowledge and consent. See

Response to Request for Admission nos. 13 and 14. Further, Defendants acknowledge in their

Application for Waiver that they “carefully coordinated” with the City of Huntsville in efforts to

relocate the Monument. See Application for Waiver at p. 2.

Defendants thus violated the Act and are required to pay a $25,000 fine.

B. Defendants are not entitled to a waiver and did not receive one.

Defendants will likely argue that CAMP effectively granted Defendants a waiver by failing

to properly deny their “Application for Waiver.” But monuments that have been situated on public

property for more than 40 years are not eligible for a waiver, and this is true for three reasons: The

statute says so, the Alabama Supreme Court says so, and the agency charged with administering

waivers says so.

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The Act has separate paragraphs for monuments that have been on public property for 40

or more years and those that have been on public property for between 20 and 40 years. The

provision for the monuments of greater duration (and the one that applies to this case) does not

provide for a waiver: “No … monument which is located on public property and has been so

situated for 40 or more years may be relocated, removed, altered, renamed, or otherwise

disturbed.” Ala. Code § 41-9-232(a). There is no exception and no reference to a waiver.

The separate provision for monuments that have been situated on public property “for at

least 20 years, and less than 40 years” says that no monument shall be relocated “except as

provided in Section 41-9-235.” Ala. Code § 41-9-232(b). Entities exercising control over

monuments falling within this subsection may petition for a waiver of the requirement, allowing

for the removal or relocation of the monument in some circumstances. Ala. Code § 41-9-235(a)(1).

But again, the preceding paragraph concerning monuments on public property for 40 or more years

does not provide for such a waiver. The statute therefore grants no authority for CAMP to issue,

or for Defendants to receive, a waiver for the Monument at issue in this case. (And Defendants

know this, saying in their “Application for Waiver” that “[a]dmittedly, the Legislature and the

Committee, through adoption of administrative rules, appear to have foreclosed the possibility of

a waiver if the monument has been ‘so situated for forty or more years.’” See Application for

Waiver at p. 2.)

The Alabama Supreme Court agrees. In 2017, the city of Birmingham, Alabama erected a

freestanding plywood screen near the base of a monument protected by the Act. See State v. City

of Birmingham, 299 So. 3d 220, 223 (Ala. 2019). The Alabama Attorney General subsequently

filed a declaratory-judgment action against the City to recover the statutorily required $25,000

fine. Id. The circuit court found that the Act “failed to provide a procedure by which the City could

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petition the committee for a waiver.” Id. at 224. The circuit court nevertheless ruled in favor of the

City of Birmingham, finding that the Act violated the City of Birmingham’s constitutional rights

under the Alabama and United States Constitutions. Id.

The Alabama Supreme Court reversed, holding that the City of Birmingham did not have

a constitutional right to free speech and due process. Id. at 234–35. As relevant here, the Supreme

Court explained the operation of the waiver provisions of the Act and made clear that the waiver

provision does not apply to monuments situated on public property for 40 or more years:

In other words, the City defendants can ask the committee for a waiver that would
allow the City defendants to relocate, remove, alter, rename, or otherwise disturb a
monument that has been “so situated” for more than 20 but less than 40 years.
However, § 41-9-235(a) does not allow the City defendants to seek a waiver of §
41-9-232(a) to allow the City defendants to relocate, remove, alter, rename, or
otherwise disturb a monument that has been “so situated” for 40 or more years.

Id. at 235–36 (emphasis added).

Finally, CAMP also agrees. Under the authority provided for in the Act, Ala. Code § 41-

9-237, CAMP published several administrative regulations on April 30, 2020, effective June 14,

2020. Ala. Admin. Code 584-X-1-.01–05. Consistent with the text of the Act and the controlling

opinion of the Alabama Supreme Court, CAMP clarified that there may be “No Waiver for

Memorials or Monuments in Place for 40 or More Years”:

A controlling entity that is responsible for an architecturally significant building,

memorial building, memorial street, or monument that is located on public property
and has been in that location for 40 or more years may not relocate, remove, alter,
rename, or otherwise disturb the architecturally significant building, memorial
building, memorial street, or monument, nor permit such action by any other party.

Ala. Admin. Code 584-X-1-.04(1). And when Defendants nonetheless purported to apply for a

waiver, they received notice that its waiver request was “outside the scope of [CAMP’s] authority.”

Ex. C.

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It is true that the Act states that “[i]f the committee fails to act on a completed application

for a waiver within 90 days after the application is submitted the committee, the waiver shall be

deemed granted.” Ala. Code § 41-9-235(c). As discussed above, a representative of CAMP (at the

request of CAMP’s chairman) informed Defendants that the waiver was “outside the scope of

[CAMP’s] authority.” Ex. C. Defendants’ waiver application was plainly rejected. And even if that

rejection could somehow be deemed as CAMP’s “failure to act” on the application, CAMP had no

legal authority to issue the waiver in the first place. CAMP obviously cannot issue a waiver by

default if it cannot approve a waiver at all. See Ex parte City of Florence, 417 So. 2d 191, 194

(Ala. 1982) (stating “an administrative board or agency is purely a creature of the legislature, and

has only those powers conferred upon it by its creator.”). Further, CAMP clarified in its regulations

that a waiver application can be deemed granted only if the application is “eligible” for a waiver.

Ala. Admin. Code 584-X-1-.04 (11).

The Monument had been located on Madison County property for more than 40 years at

the time that Defendants “carefully coordinated” with the City of Huntsville for its removal.

CAMP had no authority under the Act to grant a waiver to Defendants and cannot have done so

by inaction.

C. Defendants did not apply for, and did not receive, a “construction waiver.”

The Act permits the “temporary relocat[ion]” of a monument if there is a need for

“emergency repairs or construction” at the site of the monument or on adjacent property. Ala. Code

§ 41-9-235(1)(2)b. “If the repair or construction is expected to take more than one year, the

controlling entity shall seek a waiver under the process specified in this section.” Id. It is not clear

that Defendants will argue that this provision entitled them to a waiver, but to the extent they make

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such an argument it fails because there is no imminent construction planned, because Defendants

sought authority for a permanent (not temporary) relocation, and because the application was

facially insufficient.

The “Application for Waiver” states that there may be future renovation of the Madison

County courthouse that requires the statue to be moved. However, Defendants stated that any such

plans “remain in the conceptual phase for the renovation.” See Application for Waiver, page 3.

And it is not even known if the future renovations would require moving the Monument. While

Defendants say that “[t]his renovation of the Courthouse will necessitate removing the monument

from its current location,” they also say that “[i]f the monument must remain in its current location,

the design and possibly the entire renovation may be jeopardized.” Id. (emphasis added). Thus,

while there may be conceptual planning at this time concerning future renovations, Defendants do

not claim there will in fact be construction that could provide grounds for a waiver, or that they

have determined that future renovations would in fact require the Monument to be relocated.

Another reason Defendants did not submit a proper request for a “construction waiver” is

that a “construction waiver,” when applicable, allows only the temporary removal of a monument,

but Defendants asked for a permanent relocation. The Act provides that if the emergency repairs

or construction will take less than a year, a public entity may “temporarily relocate” a monument,

and it “shall be returned to its prior location or condition, or both, as soon as safely and reasonably

possible, and no later than one year after the completion of the \repair or construction.” Ala. Code

§ 41-9-235(a)(2)b. If the repairs are expected to take more than a year, “the controlling entity shall

seek a waiver under the process specified in this section.” Id. Thus, while the Act provides a way

to temporarily relocate a monument if necessary for emergency repairs or construction, the

relocation is only temporary. The Act does not provide a method to permanently relocate a

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monument that has been situated for more than 40 years because of construction. Defendants,

however, asked to permanently relocate the Monument from the courthouse grounds to a City

cemetery. See Application for Waiver.

Furthermore, to the extent Defendants ask the Court to construe their application as a

construction waiver, their application would be facially insufficient as such a request. CAMP

issued detailed requirements for waiver applications, including the requirement of a “formal

resolution by the controlling entity seeking a waiver,” Ala. Admin. Code 584-X-1-.04 (5)(b),

“public notice . . . published no less than 30 days before consideration of the resolution for adoption

by the controlling entity,” id. (5)(b)2, and the requirement that the waiver application include

“[w]ritten commentary from any heritage, historical, genealogical, or preservation organizations

with interest in the decision of the controlling entity, and from the general public.” Id. (5)(e).

CAMP clarified that if applying for a construction waiver, the controlling entity “must provide a

timeline for completing the emergency repairs or construction including the date for returning a

memorial or monument to its original location or removing any temporary protection of a

memorial or monument.” Id. (13)(c). In the application, Madison County ignored each of these

requirements, even though they knew about CAMP’s regulations and cited the regulations

elsewhere in their application. For example, Madison County did not provide any timeline for

replacing the Monument at the Madison County Courthouse and stated that any plans for

renovating the Madison County Courthouse “remain[ed] in the conceptual phase.” Id. at 3. “Where

an agency prescribes rules and regulations for the orderly accomplishment of its statutory duties,

its officials must vigorously comply with those requirements.” Ex parte Wilbanks Health Care

Servs., Inc., 986 So. 2d 422, 427 (Ala. 2007) (internal citation omitted, emphasis in original).

Therefore, even if Defendants had applied for a construction waiver, CAMP could not have granted

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it because of the application’s noncompliance with the Act and CAMP’s implementing regulations.

Accordingly, Defendants’ application therefore cannot be construed as requesting a construction

waiver, and even if the Court construes it as such, the application could not have been granted by

operation of law or otherwise because of Defendants’ noncompliance with the Act and CAMP’s

regulations.

For these reasons, any argument that Defendants requested a construction waiver must fail.

Conclusion

All parties agree that there was a protected Monument on Madison County property that

had been so situated for more than 40 years. Alabama law prohibited its relocation and provided

that if Defendants did so anyway, they must pay a $25,000 fine.

They did so anyway. It matters not if it was by their hands or by consent with the “careful

coordination” with a third party. Defendants’ arguments that they found a waiver loophole are

foreclosed by the language of the Act, a clear statement from the Alabama Supreme Court, and

CAMP’s regulations. In the end, no attempt to be clever can change the fact that Defendants

violated the Act and now must pay a $25,000 fine.

For these reasons, there is no genuine dispute of material fact and Plaintiff is entitled to a

judgment as a matter of law.

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CERTIFICATE OF SERVICE
I hereby certify that on March 17, 2021, I electronically filed the foregoing with the Court

via AlaFile which will send notification of such filing to the following:

George W. Royer, Jr.

David J. Canupp
2101 West Clinton Avenue, Suite 102 (35805)
Huntsville, AL 35804
Phone: 256-535-1100 / Fax: 256-533-9322
E-mail: [email protected]
E-mail: [email protected]

J. Jeffery Rich
Madison County Attorney’s Office
100 Northside Square
Suite 700
Huntsville, AL 35801
Phone: 256-519-2061 / Fax: 256-519-2059
E-mail: [email protected]

/s James W. Davis
Counsel for Plaintiffs

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