Updated: A Jefferson County judge has voided a state law that protected historical monuments.
Ruling in a case over the Confederate Soldiers and Sailors Monument in Birmingham’s Linn Park, then-Jefferson County Circuit Court Judge Michael Graffeo said that the law essentially forced a pro-Confederacy message on the city of Birmingham.
“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.
“The relevant speaker in Linn Park is … the city,” he wrote.
The state sued the city after it erected a plywood screen around the monument in August 2017, an action ordered by then-Mayor William Bell in the wake of violent white supremacist protests and counter-protests in Charlottesville, Virginia.
Alabama Attorney General Steve Marshall sued the city for covering the Confederate monument, citing the then 3-month-old Memorial Preservation Act. The state’s suit called for a fine of $25,000 per day against the city for any attempted removal and alteration of historical monuments.
A spokesman for the Attorney General’s Office said Graffeo’s ruling would be appealed. “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,” Communications Director Mike Lewis wrote in a statement.
The monument in question sits at the south end of Linn Park, near the intersection of Park Place and 20th Street.
Birmingham Mayor Randall Woodfin said today that the city would have to analyze the ruling before determining what actions to take next.
“We think the right decision was made,” he said. “Cities should have the right to do what they would like to in their parks.”
In his ruling, Graffeo wrote, “Under the act, however, the people of Birmingham cannot win. 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.”
Despite the city’s desire to reject a pro-Confederacy message, the state contends the act compels the city to do so. Graffeo said “this cannot be” because the city owns the park.
Woodfin pointed out that the city was founded in 1871 – after the Civil War. “So we don’t need to have any revisionist history here,” he said. “We need to move past things that may not necessarily be healthy for our city. That monument probably belongs in the Birmingham Museum of Art or some other museum that would be willing to take it. Linn Park is a safe space, it’s an open space, so it should be for all people. Nothing in that park should offend anybody. That’s my take.”
Graffeo also ruled that the act violates the 14th Amendment to the U.S. Constitution because it deprives the city of property without due process of law.
“The power of a state over its municipalities, while broad, is not limitless,” Graffeo wrote.
The move likely was Graffeo’s final action as a Jefferson County circuit judge. The ruling was electronically filed at 11:40 p.m. Monday, the last day Graffeo served on the bench. He did not seek reelection and was replaced on the bench Tuesday morning.