VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK

ROY PERRY-BEY :
and :
RONALD M. GREEN :
Plaintiffs, :
:
v. : CASE NO: CL19002816-00
:
NORFOLK CITY COUNCIL, :
Defendant. :

DEMURRER AND SPECIAL PLEA

Comes now the Defendant, Norfolk City Council (hereinafter “City Council”), by

counsel, and says that this Court should not take any further cognizance of the allegations

set forth by the Plaintiffs in this case by reason of the following demurrer and special plea

of legislative immunity, both of which bar all claims based on said allegations:

1. By this action, the Plaintiffs seek only one remedy, namely

to force the City Council to remove and relocate the Confederate monument (hereinafter

“Monument”) located on East Main Street in downtown Norfolk. (Am. Compl., opening

para.)1

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The original Complaint was filed on March 22, 2019 but was never served on the
City Council or any other person. The only pleading that has been served is titled
“Amended Complaint” and was filed with the Clerk of Court on March 28, 2019. It was
served on the Defendant, Norfolk City Council, on April 8, 2019. Another document titled
“Amended Complaint” was filed in the Clerk’s Office on April 4, 2019, without leave of
Court allowing such filing, despite that the Plaintiffs are well aware that leave of court is
needed before any amended pleading may be submitted, (see Mot. for Leave to Amend
Compl., filed Mar. 28, 2019). The April 4th version appears almost identical to the March
28th Amended Complaint but lists a different defendant (“City of Norfolk” instead of
“Norfolk City Council”) and adds one additional paragraph of allegations (¶ 21). Because
that second document has not been served and because the Plaintiffs failed to secure leave
of Court before filing it, we regard the March 28rd complaint—the only one that has ever
been served—as the operative document.
 2. In pursuit of this remedy, the Plaintiffs seek a positive injunction to compel

the City Council to remove or relocate the Monument, (see Notice of Hearing, Apr. 1,

2019), asserting that they have no adequate remedy at law, (Am. Compl. ¶ 20).

Separation of Powers

3. The City Council is the legislative body of the City of Norfolk, empowered

“to exercise all of the powers conferred upon the city.” See Norfolk City Charter §§ 4, 12,

14.1.

4. Article III § 1 of the Virginia Constitution mandates that “[t]he legislative,

executive, and judicial departments shall be separate and distinct, so that none exercise the

powers properly belonging to the others….”

5. The Plaintiffs allege that the City Council has voted to remove or relocate

the Monument and cites its Resolution No. 1,678 (adopted Aug. 22, 2017) (hereinafter

“Resolution”).

6. The City Council’s adoption of the Resolution is a legislative act. As such,

based on the doctrine of separation of powers, any intention, direction, or decision

expressed in the Resolution can only be accomplished by affirmative action of the City

Council or the City of Norfolk, acting in accordance with the legislative action authorized

by the City Council.

7. Based on the doctrine of separation of powers, nothing in the resolution—

including any contemplated relocation of the Monument—can be directed or compelled by

the courts of the Commonwealth, including this Court, because the judicial branch has no

power to enjoin the City Council to perform a legislative function. Taylor v. Worrell

Enterprises, Inc., 242 Va. 219, 221, 409 S.E.2d 136, 137–38 (1991) (doctrine of separation

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of powers “prevents one branch from engaging in the functions of another, such as the

judicial branch performing a legislative function….”). Thus, the Amended Complaint must

be dismissed with prejudice.

The Resolution Does Not Have the Force of Law

8. Essential to the Plaintiffs’ claim is their allegation that, on August 22, 2017,

the City Council voted unanimously “to remove, relocate or otherwise dispose of its

Confederate monument.” (Am. Compl. ¶ 2).

9. In general, resolutions are different from ordinances. Whereas an ordinance

is generally understood to be a local law of a municipal corporation, see McQuillin,

Municipal Corporations § 15:1 (3d ed. 2013), a resolution “is usually a mere declaration

with respect to future purpose or proceedings…,” id. at § 15:2.

10. In this specific instance, the plain language of the Resolution demonstrates

that it expresses a declaration regarding a future purpose. (Am. Compl. at Ex. A (“the City

Council desires the Main Street Confederate monument to be relocated to Elmwood

Cemetery as soon as the governing state law clearly permits it.”)).

11. Because the Resolution does not have the force of law like an ordinance

would have, it does not constitute any sort of authorization, direction, or other legal

enactment to cause City forces to commence and complete relocating the Monument.

Thus, an essential element of the Plaintiffs’ case is contradicted by the documents included

in their pleading, wherefore the Amended Complaint fails to state any actionable claim and

must be dismissed with prejudice.

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 Legislative Immunity

12. Alternatively, the City Council asserts that its intention, expressed in the

Resolution, to relocate the Monument after “the governing state law clearly permits it,” is

a matter of legislative privilege that cannot be invaded by the Court because of the doctrine

of legislative immunity.

13. The City Council hereby affirmatively asserts its right to legislative

privilege and legislative immunity in this case.

14. While the Resolution does not suggest at what point in time the governing

state law might clearly permit the relocation of the Monument, a plain reading of the

Resolution indicates that the City Council did not authorize or direct the removal at the

time of the Resolution’s adoption on August 22, 2017. Thus, the Resolution expresses only

the City Council’s intention to authorize or direct the removal at some time after August

22, 2017. The Resolution does not authorize or direct the immediate relocation of the

Monument.

15. The point in time after August 22, 2017 when the City Council might form

its opinion that the governing state law clearly permits the Monument to be relocated is a

matter of legislative discretion protected by the doctrine of legislative privilege.

16. Based on the doctrine of legislative immunity and legislative privilege, the

Court cannot permit any judicial inquiry into the City Council’s thinking regarding whether

it has concluded or when it will conclude that the governing state law clearly permits the

Monument to be relocated.

17. Because an essential element of the Plaintiffs’ case—that the City Council

believes that the current state of the law constitutes clear permission to relocate the

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Monument—cannot succeed without such an inquiry and because such inquiry is barred,

the Amended Complaint must be dismissed with prejudice.

WHEREFORE, your Defendant prays that all claims and remedies sought in this

matter shall be ruled unavailable because they fail to state any actionable claim and, in the

alternative, are barred by legislative privilege and immunity, which reasons provide that

this Court should dismiss the Amended Complaint, with prejudice.

CITY OF NORFOLK,

By ___________________________
Adam D. Melita
Deputy City Attorney

Adam D. Melita, Deputy City Attorney

Virginia State Bar No.: 41716
900 City Hall Building
810 Union Street
Norfolk, Virginia 23510
Phone: (757) 664-4529
Fax: (757) 664-4201
Co-counsel for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on the 24th day of April, 2019, a true copy of the foregoing was

mailed, postage prepaid, via USPS to Roy L. Perry-Bey, pro se, at 89 Lincoln Street,

#1172, Hampton, Virginia 23669 and to Ronald M. Green, pro se, at 5540 Barnhollow

Road, Norfolk, Virginia 23502.

______________________________
Adam D. Melita
Deputy City Attorney