JEFFERSON CIRCUIT COURT DIVISION NINE JUDGE JUDITH E. McDONALD-BURKMAN CASE NO. 16-Cl-2009 SONS OF CONFEDERATE VETERANS, KY. DIV, PLAINTIFFS et al. v. FINDINGS OF FACT AND CONCLUSIONS OF LAW: ORDER LOUISVILLE JEFFERSON COUNTY METRO DEFENDANTS GOVERNMENT, et al. This matter comes before the Court on Plaintiffs’ Motion for Temporary Injunction. Defendants filed a response and moved to Dissolve the Restraining Order Entered May 2, 2016 and to Dismiss the Complaint. A hearing was held May 25, 2016 and the matters are now submitted. At the convergence of Second and Third Streets, near the Speed Art Museum at the University of Louisville, stands the Confederate monument dedicated to the “rank and file of the Armies of the South.” It was built with funds raised by the Kentucky Women’s Confederate Monument Association, and placed on a parcel of land located at Third Street and Shipp Avenue in 1895. This location was approved by then-mayor Henry S. Tyler and the City’s Board of Public Works. At the time this location was on the outer-edges of Louisville and in front of The House of Refuge, a reform school. The monument was moved to its present location in 1954. On April 29, 2016, Mayor Greg Fischer and University of Louisville President James Ramsey announced plans to remove the monument, clean and repair it, and relocate it to a more appropriate location. At the time, no specific location had been identified for themonument's relocation. The cost of the project was to be covered completely by private funds from the U of L Foundation. Fearing the monument would be destroyed or never on public display in the future, Plaintiffs filed this action and appeared before the Court ex parte on May 2, 2016 for a temporary restraining order. In their argument to the Court, there were, at that time, legitimate concerns as to whether the Defendants were acting in contravention to legal protections afforded the monument either as a designated historical object or its location in a preservation district, as well as KRS 525.110, There was also a well-founded concern that the monument would be destroyed, accidentally or intentionally, by removal. Based on the information presented, the Court entered the temporary restraining order to prevent the monument's removal until a full hearing with all parties present could be adequately conducted on May 25, 2016. The politics behind the Civil War included tariffs, states’ rights over property, the issue of secession from the Union and slavery as an institution. While some of the issues remain unresolved, such as the legality and practical effects of secession, slavery was suddenly and decidedly ended as a commercial enterprise with the Union victory. Ina relatively short period of time, slaves were emancipated and granted citizenship with all the rights and privileges that come with that great honor. Many, mostly Southerners, did not accept or quickly adjust to these legal, societal and cultural changes they felt were thrust unwillingly upon them. As a result, laws were passed to maintain white superiority as much as possible. Even though many of these racist laws have been repealed, their consequences are still felt today in 2016. The reasons why an individual enters a war are varied. Some support the stated policy or purpose for the conflict. Others are protecting their homes from the opposingforce's invasion. Still others are fighting due to conscription, poverty, or having been hired to fight in the place of another. Death on the battlefield, however, cares naught for the reason why that man is present. All men are equal in the presence of death, The casualties affect both sides, and the scars the living must bear continue for years after the official end of the war. Following the end of the Civil War, the nation embarked on a period of Reconstruction in an attempt to heal the scars of the war and bring the nation together. Men that had fought for the Confederacy were pardoned. The states that had seceded were brought back into the fold. Statues and monuments honoring not only the Notorious heroes but the common soldier, Union and Confederate, were erected. The dead left parents, siblings, spouses and children, who may never have given a single thought as to the “why” of the war, to mourn. These monuments served to remember the dead, some of who may not have had families to mourn them or were unable to be brought home and buried, These monuments, as well as other symbols of the Confederacy, are now viewed aS a romanticism of the past, pride in "Southern Heritage,” history to be acknowledged and lessons learned, reminders of slavery or indicative of Present racist sentiment. The Court recognizes, even if it does not agree with, these often-times competing emotional elements. However the Court must remain objectively focused on the legal aspects: (1) who owns the monument and has the legal right to move it, and (2) whether there any statutory restrictions to it being removed from its current location. The emotional and political aspects will be left for others to debate.Under CR 65.04(1), a temporary injunction may be granted (1) if the movant presents a “substantial question” on the merits of the case, (2) the movant's rights will be immediately and irreparably harmed, and (3) the injunction will not unduly harm other parties or disservice the public. Price v. Paintsville Tourism Comm'n, 261 S.W.3d 482, 484 (Ky.2008); Maupin v. Stansbury, S75 SW.2d 695, 698 (Ky.App.1978) There is no title or other document establishing conclusive ownership of the monument. Plaintiff Fred Wilhite, an officer of the Sons of Confederate Veterans, testified that he felt like he had a vested interest in the monument and that he felt like he owned it Brenden Callan testified that while he believes Kentucky has some type of ownership of the monument, he had an interest in it as a decedent of a Confederate veteran. Susan McCroby testified on behalf of the United Daughters of the Confederacy, which is a successor organization to the Kentucky Women’s Confederate Monument Association. She stated she had not found any documentation in the organization's records to show the monument was given to the City of Louisville. She also stated that the organization did not list the monument among its assets, insure or maintain it or the grounds surrounding it. The organization did, however, place memorial wreaths at the base of the monument on occasion. In contrast, Defendants referenced an article from the July 30, 1895 edition of the Courier-Journal announcing the unveiling of the monument. It was reported at that time that “Mayor Tyler will receive the monument..in behalf of the city. The city has guaranteed to take care of the memorial". When the University of Louisville filed for inclusion on the National Register of Historic Places in 1976, it stated the land on which the Confederate Monument was located was owned by the City of Louisville. In 1997, themonument itself was placed on the National Registry of Historical Places, designated as an object publically owned by the City of Louisville. The City of Louisville, in 1958, conveyed a right of way easement to the Commonwealth of Kentucky for the roadway from “curb to curb.” The Commonwealth considers the parcel of land on which the monument rests to be an encroachment on the easement and not part of the easement Or property it owns or controls. Furthermore, Louisville Jefferson County Metro Government lists the monument as a municipally owned asset and insures it. The plaintiffs have failed to establish that they have any rights to the monument, or the land upon which it rests, superior to those of Louisville Jefferson County Metro Government and/or the University of Louisville. As such, they cannot show their rights will be immediately and irreparably harmed as required by Price and Maupin, supra. Despite their lack of rights to the monument, Plaintiffs seek to prevent the removal of it by alleging the removal would be in violation of the National Historic Preservation Act, 54 U.S.C. § 300101 et seq, KRS 525.110, KRS 171.788 and/or Lou, Metro. Ord. 32.252. These arguments fail as a matter of law. The National Historic Preservation Act, 54 U.S.C. §300101, et seq, aims to protect the nation’s heritage. It requires a review process whenever a project is carried out by or on behalf of a federal agency, using federal funding, or requiring a federal permit, license or approval. 36 CFR. $800.16(y); 54 U.S.C. §306108. It is undisputed the Confederate Monument is registered as a historical object. Plaintiffs argue that because Louisville Jefferson County Metro Government and the University of Louisville receive federal funding for various projects, grants, etc, the National Historic Preservation Act must be complied with prior to moving the monument. However, for the Act to apply, a federalundertaking (action by a federal agency or use of federal funds) must be proposed. McGhee v, U.S. Army Corps of Engineers, 2011 WL 2009969 at *3 (W.D.ky. May 30, 2011); Comm, to Save Cleveland's Huletts v. U.S. Amy Corps of Engineers, 163 F.Supp.2d 776, 789 (N.D.Ohio 2001). It is irrelevant that the city and the University receive federal funds. The removal of the Confederate Monument is a public-private undertaking between the city and the University of Louisville Foundation. The Foundation does not receive any federal funding and has agreed to “pay for all costs of the removal, construction, protection, and relocation of the Confederate Monument.” This includes the hiring of the general contractor and any needed experts. Plaintiffs have shown no evidence that the Foundation does in fact receive federal money, that it would use federal funds for this project, or that federal permits or approval are otherwise required, KRS 525.110 prohibits the desecration of venerated objects. Desecration is the “defacing, damaging, polluting, or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover his action.” KRS 525.010(1). The monument is a public object that is respected by many in the community, It is also reviled by many. Whether this division in public sentiment would satisfy the requirement of the monument being "venerated is left for another day. The city has not taken action that would constitute intentional mistreatment of the monument. The Foundation has hired experts to ensure, as much as possible, the monument can be removed safely. The intent is not to demolish the monument with bulldozers and sledgehammers; expensive experts certainly would not be necessary to effectuate that outcome. Mayor Fischer's public statements indicate the monument maybe relocated to an appropriate location at a future date. An appropriate location may be a cemetery, Civil War Museum or historical site. KRS 171.788(2) prohibits the “destruction, removal...or significant alteration of an object designated as a military heritage object...” Plaintiffs admit that the Confederate Monument has not been designated as a military heritage object by the Kentucky Military Heritage Commission. In fact, the application for such a designation was not made until the afternoon of May 24, 2016, less than 24 hours before the hearing. As the monument is not designated as a military heritage object by the Kentucky Military Heritage Commission, it is afforded no protection under KRS 171.788(2). Finally, Plaintiffs seek protection for the monument under Louisville Metro Ordinance 32.252(3), which restricts alterations to structures and property within the Old Louisville Historic Preservation District. However, the southern boundary of the Old Louisville Historic Preservation District is Cardinal Boulevard. The monument is located beyond the boundary. Therefore, LMCO 32.252 is inapplicable. For the foregoing reasons, the Plaintiffs have failed to make the requisite showing under Maupin that injunctive relief is necessary and appropriate. Therefore, after a careful review of the record, applicable law and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED as follows: (1] Plaintiffs’ Motion for Temporary Injunction is DENIED; [2] Defendants’ Motion to Dissolve the Restraining Order Entered May 2, 2016 is GRANTED; and [3] Defendants’ Motion to Dismiss the Complaint it GRANTED. The Complaint is hereby DISMISSED WITH PREJUDICE.This is a final and appealable order there being no just cause for delay. > : eC 2. Jo ae / YODITH E. McDONALD-BURKMAN, JUDGE (9 JEFFERSON CIRCUIT COURT “nr: 6 loo sae | sun 16 8 | "pert ae Distribution to: Hon. Thomas McAdam, Ill Hon. Michael J. O'Connell Hon. J. Andrew White Hon. Matthew Golden Mr. Everett Corley Hon, Peter Ervin 314 N. Hubbards Lane Louisville, KY 40207