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Sons of Confederate Veterans v. City of Memphis

Court of Appeals of Tennessee, Nashville

June 4, 2019

SONS OF CONFEDERATE VETERANS, NATHAN BEDFORD FORREST CAMP #215
v.
CITY OF MEMPHIS ET AL.

          February 26, 2019 Session

          Appeal from the Chancery Court for Davidson County No. 18-29-III Ellen H. Lyle, Chancellor

         This is an action for injunctive relief filed by a historical-preservation society against the City of Memphis and a nonprofit corporation. Prior to filing its complaint, the society filed a petition for declaratory relief with the Tennessee Historical Commission that sought a declaration on the applicability of the Tennessee Heritage Protection Act of 2016 ("THPA") to two parks and related monuments conveyed by the City to the nonprofit. In the present action, the historical-preservation society requested a temporary injunction under the THPA to preserve the parks and monuments pending the Commission's final order. The trial court found the society could not prevail on the merits of its claim because the parks and monuments were no longer public property and, thus, were no longer subject to the THPA. Having determined that the historical-preservation society failed to assert a viable cause of action under the THPA, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

          Douglas Edward Jones and John Isaac Harris, III, Nashville, Tennessee, for the appellant, Sons of Confederate Veterans, Nathan Bedford Forrest Camp 215.

          Allan Jerome Wade, Jennifer Anne Sink, Brandy S. Parrish, and Bruce Anthony McMullen, Memphis, Tennessee, and Robert E. Cooper, Jr., Nashville, Tennessee, for the appellee, City of Memphis.

          Christopher L. Vescovo and Alexander Hejoon Park, Memphis, Tennessee, and Jason Michael Pannu, Nashville, Tennessee, for the appellee, Memphis Greenspace, Inc.

          H. Edward Phillip, III, Charles G. Blackard, III, Johnathan J. Pledger, III, and Wesley J. Ladner, III, for amicus curiae, James Kevin Bradley, Brooks Bradley, Thomas Jesse Bradley, Sidney Law, Walter W. Law, Jr., and Lee Millar.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Factual and Procedural History

         This is the second lawsuit filed by the Sons of Confederate Veterans Nathan Bedford Forrest Camp #215 ("SCV") against the City of Memphis ("the City"). In the first action, SCV challenged the procedure by which the City renamed three parks that were named or dedicated in honor of those who fought for the Confederate States of America during the American Civil War. Hayes v. City of Memphis, No. W2014-01962-COA-R3-CV, 2015 WL 5000729, at *2 (Tenn. Ct. App. Aug. 21, 2015). The City changed the name of Nathan Bedford Forrest Park to "Health Sciences Park"; Confederate Park to "Memphis Park"; and Jefferson Davis Park to "Mississippi River Park."[1] Id. The trial court initially dismissed the action after finding that SCV lacked standing. Id. at *5. We reversed the dismissal on appeal, finding that SCV's collaboration with the City to install a name marker in Forrest Park gave it standing to challenge the resolution as a whole. Id. at *11-12. After remand, the trial court found the City acted within its authority when it passed the resolution and granted summary judgment in favor of the City. Sons of Confederate Veterans Nathan Bedford Forrest Camp #215 v. City of Memphis, No. W2017-00665-COA-R3-CV, 2017 WL 4842336, at *3 (Tenn. Ct. App. Oct. 24, 2017). We affirmed the judgment on appeal. Id. at *13.

         Shortly after the City renamed the parks, the Tennessee Historical Protection Act of 2013 ("the THPA") was enacted. See Tennessee Heritage Protection Act of 2013, Tenn. Pub. Acts, ch. 75 (codified at Tenn. Code Ann. § 4-1-412 (Supp. 2014)). The THPA provided that "[n]o statue, monument, memorial, nameplate, or plaque which has been erected for, or named or dedicated in honor of [the American Civil War] and is located on public property, may be relocated, removed, altered, renamed, rededicated, or otherwise disturbed," Tenn. Code Ann. § 4-1-412(a)(1) (Supp. 2014), without obtaining a waiver from the Tennessee Historical Commission, [2] id. § 412(d).

         On August 18, 2016, the Memphis City Council ("the City Council") voted to "condemn"[3] the statue of Nathan Bedford Forrest ("the Forrest Statue") in Health Sciences Park, f/k/a Forrest Park, and authorized the sale and removal of the statue. See Memphis, Tenn., Ordinance 5592, §§ 1-2 (Aug. 18, 2015).

         On March 7, 2016, the City filed a petition with the Commission requesting a waiver of the THPA to relocate the Forrest Statue to one of two battlefields where Forrest fought in the Civil War. At its October 21, 2016 meeting, the Commission denied the City's petition because "Forrest Park" was on the National Register of Historic Places, which listed the Forrest Statue as a "contributing feature." On November 4, 2016, the City filed a second petition with the Commission, asserting the Commission's criteria for granting or denying a waiver failed to comply with the Uniform Administrative Procedures Act ("UAPA"). The Commission effectively denied the petition when it failed to convene a contested case on the matter.[4]

         On September 13, 2017, the City filed a third petition with the Commission. This time, the City requested a declaration that the THPA did not apply to the Forrest Statue because the statue was not "dedicated in honor of" the Civil War. SCV intervened in the matter, asserting a "unique interest" in the Forrest Statue based on this court's decision in Hayes. At its October 13, 2017 meeting, the Commission treated the City's petition as both a request for a declaration on the applicability of the THPA to the Forrest Statue and as a second waiver request. The Commission denied the waiver request and voted to convene a contested case on the issue of whether the THPA applied to the Forrest Statue.

         On November 2, 2017, SCV filed a petition to intervene in the contested case, which the Administrative Law Judge ("ALJ") granted on November 28, 2017. City of Memphis, ADP No. 04.47-148176J, THC No. 17-0002, slip op. at 5 (Tenn. Hist. Comm. Nov. 28, 2018). In addition to pursuing the contested case, the City filed an action for judicial review of the Commission's decision to deny the City's second waiver request. See City of Memphis v. Tenn. Hist. Comm., No. 17-1318-III (Davidson Cty. Ch. Ct. Dec. 11, 2017).

         While it was seeking approval for relocating the Forrest Statue, the City began considering alternative options for removing the Forrest Statue and other Confederate monuments from the parks. In particular, the City considered offers from private entities to acquire the parks and monuments. According to the affidavit of Doug McGowen, the City's Chief Operating Officer, the City received at least six proposals but "rejected most of them because [the bidders] did not have the funds and could not . . . raise sufficient funds to relocate the monuments and maintain the parks on a going[-]forward basis." Eventually, the City entertained a viable proposal from Memphis Greenspace, Inc. ("Greenspace"), a nonprofit corporation led by Shelby County Commissioner Van Turner, Jr. Shortly thereafter, an "Implementation Plan" was presented to the City Council that proposed transferring the Parks to Greenspace "at reduced or no cost." See Memphis, Tenn., Ordinance 5665 (Dec. 20, 2017).

         On December 15, 2017, the City and Greenspace executed several agreements to sell the parks with any related monuments to Greenspace for $1, 000 each. The agreements included restrictive covenants that could be lifted only with the City's prior written approval and included an option agreement, giving the City the first right of refusal for any future transfer. On December 20, 2017, the City Council and Mayor adopted the Implementation Plan and authorized the Parks' transfer. See Memphis, Tenn., Ordinance 5665 (Dec. 20, 2017). Later that night, Greenspace removed the Forrest Statue from Health Sciences Park, a statue of Jefferson Davis from Memphis Park, and a bust of James Harvey Mathes from Memphis Park (collectively, "the Statues"). All three statues were stored by the City for one week before being moved to a secure, undisclosed location.

         On January 8, 2018, in the wake of the sale and removal of the Statues, SCV attempted to intervene in the City's action for judicial review of the second waiver request ("Case No. 17-1318-III") by filing a petition for temporary restraining order and preliminary injunction in the Davidson County Chancery Court. SCV asserted standing based on its intervention in the pending contested case. The petition sought an injunction to preserve the parks and the Statues pending the conclusion of Case No. 17-1318-III and the contested case. However, on the same day, the City filed a notice of voluntary dismissal in Case No. 17-1318-III, and the ALJ dismissed the contested case as moot on the determination that the THPA does not apply.

         On January 10, 2018, SCV and several individuals identified as the descendants of Nathan Bedford Forrest filed a petition with the Commission under the UAPA. The petition asserted seven "causes of action," including official misconduct under Tennessee Code Annotated § 39-16-402; criminal conspiracy under § 39-12-103; violation of the Family Burial Grounds Protection Act, Tenn. Code Ann. § 46-8-101 to -103; and violation of the THPA. The petition sought a declaration that the City's transfer was illegal and fraudulent and an order "for the return of the Statues unharmed to their original locations."

         The next day, January 11, 2018, SCV instituted the present action by filing an unverified "Complaint for Injunction" in the Davidson County Chancery Court against the City and Greenspace (collectively, "Defendants"). The Complaint purported to assert a cause of action under § 412(d) of the THPA.[5] Additionally, SCV moved to consolidate both Chancery Court cases. Defendants opposed consolidation and argued that the trial court had no subject matter jurisdiction to issue an injunction under the THPA. They argued that the THPA no longer applied to the Parks or Statues once they were sold to a private entity and there was no pending waiver petition. At a hearing on January 25, 2018, SCV struck its motion to consolidate ...


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