DOCUMENT 2

ELECTRONICALLY FILED
8/20/2015 10:33 AM
01-CV-2015-903224.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK

IN THE CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMA
SAVE OUR SOUTH, an unincorporated
nonprofit association
PLAINTIFF,

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* CASE NO. CV-2015vs.
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RONALD MITCHELL
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individually, and in his official capacity
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as President of the Public Park and
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Recreation Board of the City of Birmingham *
KEVIN MOORE, individually and as Acting *
Director and Member of the Public Park and *
Recreation Board of the City of Birmingham *
LARRY D. COCKRELL, individually and as *
a member of the Public Park and
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Recreation Board of the City of Birmingham *
Dr. BERNARD KINCAID, individually and *
as a member of the Public Park and
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Recreation Board of the City of Birmingham *
THEORDORE L.SMITH, individually and as *
a member of the Public Park and
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Recreation Board of the City of Birmingham *
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and
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PUBLIC PARK AND RECREATION BOARD*
OF THE CITY OF BIRMINGHAM
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and
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CITY COUNCIL OF BIRMINGHAM
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and
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WILLIAM A. BELL, individually and as
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MAYOR OF THE CITY OF BIRMINGHAM *
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and
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JOHNATHAN AUSTIN, individually and as

PRESIDENT OF THE CITY COUNCIL
OF BIRMINGHAM
JAY ROBERSON, individually and as
MEMBER OF THE CITY COUNCIL
OF BIRMINGHAM
LASHUNDA SCALES, individually and as
MEMBER OF THE CITY COUNCIL
OF BIRMINGHAM
KIM RAFFERTY, individually and as
MEMBER OF THE CITY COUNCIL
OF BIRMINGHAM
VALERIE ABBOTT, individually and as
MEMBER OF THE CITY COUNCIL
OF BIRMINGHAM
WILLIAM PARKER, individually and as
MEMBER OF THE CITY COUNCIL
OF BIRMINGHAM
SHEILA TYSON, individually and as
MEMBER OF THE CITY COUNCIL
OF BIRMINGHAM
STEVEN HOYT, individually and as
MEMBER OF THE CITY COUNCIL
OF BIRMINGHAM
MARCUS LUNDY, individually and as
MEMBER OF THE CITY COUNCIL
OF BIRMINGHAM
DEFENDANT(s).

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COMPLAINT
COMES NOW, the Plaintiff SAVE OUR SOUTH, by way of Complaint for
Declaratory Judgment and a Complaint for Preliminary Injunction and avers the
following:
1)

The plaintiff is an unincorporated nonprofit organization with its principal

place of business in Jefferson County, Alabama.

2)

Defendant, Ronald D. Mitchell is a duly appointed member of the Public Park

and Recreation Board of the City of Birmingham, and is the acting president
of said board.

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3)

Defendant, Larry D. Cockrell is a duly appointed member of the Public Park

and Recreation Board of the City of Birmingham.

4)

Defendant, Larry D. Cockrell is a duly appointed member of the Public Park

and Recreation Board of the City of Birmingham.

5)

Defendant, Dr. Bernard Kincaid is a duly appointed member of the Public

Park and Recreation Board of the City of Birmingham.

6)

Defendant, Theodore L. Smith is a duly appointed member of the Public Park

and Recreation Board of the City of Birmingham.

7)

Defendant, Kevin Moore is a duly appointed member of the Public Park and
Recreation Board of the City of Birmingham and is the acting Director of said
board.

8)

Defendant PUBLIC PARK AND RECREATION BOARD OF THE CITY OF

BIRMINGHAM is a duly organized entity registered with the Secretary of
State of Alabama.

9)

Defendant CITY COUNCIL OF BIRMINGHAM is the elected governmental

entity for the City of Birmingham.

10)

Defendant Mayor William A. Bell is the duly elected mayor for the City of
Birmingham.

11)

Defendant, Johnathan Austin is a duly elected member of the City Council of

Birmingham, and is the acting president of said council.

12)

Defendant, Jay Roberson is a duly elected member of the City Council of

Birmingham.

13)

Defendant, Lashunda Scales is a duly elected member of the City Council of

Birmingham.

14)

Defendant, Kim Rafferty is a duly elected member of the City Council of

Birmingham.

15)

Defendant, Valerie Abbott is a duly elected member of the City Council of

Birmingham.

16)

Defendant, William Parker is a duly elected member of the City Council of

Birmingham.

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17)

Defendant, Sheila Tyson is a duly elected member of the City Council of

Birmingham.

18)

Defendant, Steven Hoyt is a duly elected member of the City Council of

Birmingham.

19)

Defendant, Marcus Lundy is a duly elected member of the City Council of

Birmingham.

INTRODUCTION
20)

Plaintiff incorporates paragraphs 1-19 above as if set out fully herein.

21)

This is an action for declaratory relief and a preliminary injunction to settle

important questions concerning the purpose, powers and duties of the Public
Park and Recreation Board of the City of Birmingham and the City Council of
Birmingham.

22)

The Public Park and Recreation Board of the City of Birmingham has
recently voted to remove a monument/memorial located within Linn Park.

23)

Upon information and belief, the City Council of Birmingham has considered
and/or approved the request/recommendation of the Park and Recreation
Board to remove the confederate monument.

24)

Upon information and belief of the plaintiff, the Confederate Monument also
known as the Confederate Soldiers and Sailors Monument, was erected at its
present location in Linn Park between the years of 1894 and 1905.

25)

Upon information and belief of the plaintiff, the Confederate Soldiers and
Sailors Monument was formally dedicated on April 26, 1905 and the
Honorable Mel Drennen, Mayor of Birmingham, and Governor Russell
Cunningham accepted the Confederate Soldiers and Sailors Monument as a
gift from the United Daughters of the Confederacy on behalf of the City of
Birmingham and the State of Alabama.

26)

This monument has remained at its current location in excess of 110 years.

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27)

This monument commemorates veterans of the War Between the States, aka
Civil War, and has inscribed upon it the words from Jefferson Davis The
manner of their death was the crowning glory of their lives.

28)

Upon information and belief of the plaintiff, this area of the City of
Birmingham is recognized as a historic district and is listed on the Federal
Register of Historic Places and the Alabama Register of Historic Places.

29)

Because of these designations, this area of Birmingham containing Linn Park

is under the supervision of the Alabama Historical Commission.

30)

The Confederate Soldiers and Sailors Monument, being dedicated to the

State of Alabama in 1905 as a monument, is under the control of the
Alabama Department of Conservation and Natural Resources.

COMPLAINT FOR DECLARATORY RELIEF

31)

The plaintiff hereby incorporates paragraphs 1-30 above as if fully set out
herein.

32)

This action arises out of the recent events, acts and occurrences both from
the City Council of Birmingham and the Public Park and Recreation Board of
the City of Birmingham.

33)

Upon information and belief, on or about July 1, 2015, the Public Park and
Recreation Board of the City of Birmingham voted to remove the Confederate
Soldiers and Sailors Monument from Linn Park.

34)

Upon information and belief, the City Council of Birmingham has approved
the recommendation of the Park and Recreation Board to remove the
monument.

35)

This monument is under the control of the Alabama Department of

Conservation and Natural Resources.

36)

Pursuant to Alabama Code 9-2-2, the general functions and duties of the
Department of Conservation and Natural Resources is to maintain,
supervise, operate and control all state parks, monuments and historical
sites.

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37)

Upon information and belief, this area of the City of Birmingham known as
Linn Park is designated as a historical district and is under the supervision of
various entities including the Alabama Historical Commission, the Alabama
Department of Conservation and Natural Resources, the Birmingham
Historical Society and others.

38)

Veteran graves, headstones and monuments are subject to federal law

protection under the Veterans Administration. The soldiers and sailors of the
Confederate States of America are designated by U.S. law as United States
Veterans.

39)

Upon information and belief, the conveyance and dedication of this land
which is now known as Linn Park has stipulations as to how the park is
managed.

40)

Upon information and belief, the dedication and acceptance of this

Confederate Soldiers and Sailors Monument as a gift to the City of
Birmingham and the State of Alabama has stipulations as to its permanency
of placement at its current location.

41)

This area of Birmingham known as Linn Park also contains other memorials
to veterans of wars including the Spanish American War, the American
Revolution as well as memorials to the Civil Rights movement in Birmingham
and the State of Alabama.

42)

Alabama Code 13A-7-23.1. Desecration, defacement, etc., of memorial

of dead; states that:
Any person who willfullyinjures, defaces, removes, or destroys any
tomb, monument, gravestone..or other structure or thing placed or
designed for a memorial of the dead, or any fence, railing, curb, or any
enclosure for the protection or ornamentation of any tomb, monument, ..
shall be guilty of a Class A misdemeanor.

43)

This Confederate Soldiers and Sailors Monument is not only a monument,

but is also a memorial to the dead, both distinctions which place it within the
protections of Alabama Code 13A-7-23.1 (1975).

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44)

Alabama Historical Commission is mandated by statute to promote and

increase knowledge and understanding of the history and heritage of
Alabama including historical sites, buildings and objects from and which
commemorate the Confederacy era.

45)

Upon information and belief, the City Council of Birmingham has no authority
to order the removal of the Confederate Soldiers and Sailors Monument.

46)

Upon information and belief, the Public Parks and Recreation Board of the
City of Birmingham has no authority to order the removal of the Confederate
Soldiers and Sailors Monument.

47)

Upon information and belief, neither the Public Parks and Recreation Board
of the City of Birmingham nor the City Council of Birmingham have received
permission or authority to order the removal of the Confederate Soldiers and
Sailors Monument from the appropriate governing state agency whom has
control over the monument.

48)

By reason of the foregoing, an actual and justiciable controversy exists

between the defendants and the plaintiff and other members of the public.

49)

Alabama Code 6-6-222 (1975) confers jurisdiction upon this Court to declare
the rights, status, and other legal relations between the defendants and the
plaintiffs.

50)

That the plaintiff is an aggrieved association within the State of Alabama and
is entitled to bring this action to declare the rights of the Defendants to
unilaterally and unlawfully alter the historical and heritage significance of
objects, buildings, monuments and landmarks from the Confederacy era and
to unlawfully order the removal of certain monuments from parks within the
State of Alabama.

WHEREFORE, the plaintiff requests this Court to make the Defendants party to this
action, to require them to plead or answer otherwise the allegations set out in this
Complaint, and after a hearing on the merits, enter an ORDER:

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A) Declaring that the Public Parks and Recreation Board of the City of
Birmingham nor the City Council of Birmingham have no authority to
order the removal of the Confederate Soldiers and Sailors Monument
from its current location in Linn Park.
B) Declaring that the Park and Recreation Boards recommendation and vote
of July 1, 2015 and any other votes or recommendations concerning the
removal of the monument are unlawful.
C) Declaring that the Public Parks and Recreation Board of the City of
Birmingham nor the City Council of Birmingham cannot order the removal
or relocation of the Confederate Soldiers and Sailors Monument.
D) Declaring that the Confederate Soldiers and Sailors Monument is a
monument acquired by the State of Alabama and is protected under the
statutes governing state parks which are under the control of the Alabama
Department of Conservation and Natural Resources.
E) Declaring that the Public Parks and Recreation Board of the City of
Birmingham and the City Council of Birmingham is prohibited from
directing that any objects, monuments, sites, graves, bodies and
landmarks concerning the history and heritage of the State of Alabama be
removed, relocated, transferred, destroyed, or otherwise not maintained
in their current status and location.
F) Declaring that the Mayor nor the president of the City Council of
Birmingham or of the Public Parks and Recreation Board of the City of
Birmingham have the authority to order the removal of the Confederate
Soldiers and Sailors Monument or that other objects, monuments, sites,
graves, bodies and landmarks concerning the history and heritage of the
State of Alabama be removed, relocated, transferred, destroyed, or
otherwise not maintained in their current status and location upon their
direction.
G) Make any other declarations and orders and such other relief as this Court
deems proper.

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COMPLAINT FOR PRELIMINARY and FINAL INJUNCTION

51)

The plaintiff hereby incorporates paragraphs 1-50 above as if fully set out
herein.

52)

This action arises out of the recent events, acts and occurrences both from
the Public Parks and Recreation Board of the City of Birmingham and the
City Council of Birmingham concerning the removal of the Confederate
Soldiers and Sailors Monument located in Linn Park within the city limits of
Birmingham, Alabama.

53)

Upon information and belief, the Public Parks and Recreation Board of the
City of Birmingham and the City Council of Birmingham have usurped their
authority by directing that the Confederate Soldiers and Sailors Monument
located in Linn Park be removed.

54)

Upon information and belief, the Public Parks and Recreation Board of the
City of Birmingham nor the City Council of Birmingham have the authority to
direct or order that the Confederate Soldiers and Sailors Monument located
in Linn Park be removed.

55)

Upon information and belief, this monument was dedicated not only to the
City of Birmingham, but also to the State of Alabama on April 26, 1905 and
accepted by the Governor of the State, Russell Cunningham.

56)

Upon information and belief, the monument was acquired as a gift to the
State of Alabama and as such, it is under the supervision and protection of
the director of parks in the Alabama Department of Conservation and Natural
Resources pursuant to Alabama Code 9-2-10.

57)

Upon belief of the plaintiff and other concerned citizens of the State of
Alabama, this usurpation of authority by the defendants will continue without
the intervention of the judicial branch of the State of Alabama.

58)

The defendants are not acting within their lawful bounds or performing their
lawful duty.

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WHEREFORE, the plaintiff respectfully request a judgment that:

A) This complaint be treated as an affidavit in support of the
motions and pleadings contained therein;
B) This complaint be treated as Plaintiffs motion for preliminary
injunction;
C) Defendant(s)

individually,

and

as

elected

or

appointed

members, and/or their successors to office or their delegates be

temporarily

restrained

from

directing

that

any

objects,

monuments, sites, graves, bodies and landmarks concerning

the history and heritage of the State of Alabama be removed,
relocated, transferred, destroyed, or otherwise not maintained in
their current status and location.
D) Defendant(s) Public Parks and Recreation Board of the City of
Birmingham and the City Council of Birmingham be temporarily
restrained from directing that any objects, monuments, sites,
graves, bodies and landmarks concerning the history and
heritage of the State of Alabama be removed, relocated,
transferred, destroyed, or otherwise not maintained in their
current status and location, which includes the Confederate
Soldiers and Sailors Monument.
E) Defendant(s) Public Parks and Recreation Board of the City of
Birmingham and the City Council of Birmingham individually,
and as elected or appointed members, and/or their successors
to office or their delegates be permanently restrained from
directing that any objects, monuments, sites, graves, bodies and
landmarks concerning the history and heritage of the State of
Alabama be removed, relocated, transferred, destroyed, or
otherwise not maintained in their current status and location.
F) Declares that the Public Parks and Recreation Board of the City
of Birmingham and the City Council of Birmingham have no

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authority to order the removal of the Confederate Soldiers and

Sailors monument located in Linn Park.
G) Declares that any order or ordinance enacted or approved by
the City Council of Birmingham which removes or alters the
Confederate Soldiers and Sailors monument located in Linn
Park is unlawful.
H) Declares that the Public Parks and Recreation Board of the City
of Birmingham and the City Council of Birmingham is prohibited
from directing that any objects, monuments, sites, graves,
bodies and landmarks concerning the history and heritage of the
State

of

Alabama

be

removed,

relocated,

transferred,

destroyed, or otherwise not maintained in their current status

and location.
I) Awards Plaintiff reasonable attorney fees and the costs of this
action.
J) Awards Plaintiff such other and further relief as this Court may
deem just and proper.
Done this 20th day of July, 2015.

s/Melvin Hasting____
Melvin Hasting, (HAS016)
Attorney at Law
407 2nd Ave SW
P.O. Box 517
Cullman, Al 35056-0517
(256) 736-2230

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