2015, October 24 | Saturday 4:41 am

by Peter Samuel

Led by Alderwoman Donna Kuzemchak the Board of Aldermen voted five-to-zero for removal of the Taney memorial outsideTheVote City Hall at their regular meeting October 15. Ald Kuzemchak has been arguing  for removal of the memorial to the infamous pro-slavery and confederate partisan judge since 1998.

While the City’s legislative body voted that the Taney bust and accompanying Dred Scott plaque “be removed from City Hall Park” questions remain about what follows. Implementation of the removal is up to the Mayor and City staff.

We asked the Mayor

Mayor Randy McClement chaired the two and a half hours of debate on Kuzemchak’s resolution mid-month but expressed no view himself. We asked the Mayor this week what he’s doing in response to the Board vote.

McClementIn an email response he listed things that need to be done to make the removal happen:

(1) finding a “receiver” to take the memorial

(2) getting firm quotes to move it

(3) finding funds to pay for the move

(4) deciding if the nearby Thomas Johnson (TJ) statue should also be moved

(5) any City approvals needed “such as HPC”

McClement summed up by saying of the Taney memorial: “it will not move overnight.”

On (1) the Mayor has discussed with the St Johns Catholic Church the possibility of relocating the Taney bust and Dred Scott plaque to their East Third Street Cemetery where Taney is buried. Bill Milani chairman of the Church’s Cemetery Board told us Church leaders have assured the Mayor they will work with the City on finding a suitable place to relocate the memorial. It could be placed within the Cemetery by Taney’s tombstone. The Cemetery is enclosed by a high stone wall but is open to the public in daylight hours through gates on 3rd and 4th streets.

Or if a more public place were decided upon the East 3rd Street Cemetery wall has a grassed verge of 4 or 5ft between the edge of the sidewalk of East 3rd Street and the stone wall – enough space for the public 24/7 display of the bust and plaque. That public grass verge is the property of St Johns Church.

On (2) Lough Memorials, tombstone suppliers have provided the City an estimate of $4,000 for moving the memorial.

GrassVerge2996On (3) this $4k is in a City budget for 2015-2016 with estimated revenues of $124 million.

On (4) the Board of Aldermen Resolution did not touch on the TJ statue because no one objects to him being at the front of City Hall – he is Frederick’s Founding Father and a Patriot of the Revolutionary War, so the Mayor is under no legislative sentiment to move him.

(5) is most interesting – whether the Board of Aldermen (BofA) should put themselves in the position to be overruled by the Historic Preservation Commission (HPC.) That provoked  sharp exchanges among the aldermen.

Could the Historic Preservation Commission overrule the elected BofA?

Alderman Josh Bokee expressed concern for “the possibility that an unelected, appointed body (the HPC) would have a final decision that would overrule (the decision of) the elected body’s (Board of Aldermen).”

He said: “let’s not go through a circular process…and take the chance that an appointed board would overrule an elected board, only to come back to the elected board  and bring everyone back here again. We should put it in the resolution.”Bokee

That wasn’t done. The resolution left open how the Mayor should handle the move, what further approvals if any, were needed.

Aldermen Michael O’Connor and Kelly Russell protested strongly at Bokee’s suggestion, both saying City law requires that the HPC review any structures to be demolished or moved.

Jurisdiction of HPC 

It is true that the Land Management Code applies HPC authority over “any site or structure within a historic preservation (zoning) overlay” [Sec 423 Purpose (b) p257] But the HPC can only consider applications referred to it by the City.

City agencies and departments normally apply for HPC review when they want to make alterations to structures in the historic district –  just like private property owners. But it is not at all clear as Ald Russell and O’Connor both claimed in debate during the hearing that the City is required to do this as a matter of law.

City attorney Nickols says no ordinance requires HPC review

Ald Bokee got an opinion from City Attorney Saundra Nickols. She advised the Aldermen in emails cited by Bokee: “The City’s practice has been to follow its own laws. So, in keeping with this practice,  the removal of the bust would go before the HPC…(However) (t)here is no City ordinance or City resolution that sets forth such a requirement.”

RussellK2Bokee said at the Mayor and Board hearing: “We don’t have to go that route (to the HPC.) We can just make the decision. Legal (counsel) has informed us it’s our ability and right.” Bokee said that in the case of the Taney memorial move there were considerations beyond those issues normally considered by the HPC.

Bokee right: referral to HPC is convention not law 

Ald Russell and O’Connor seemed not understand this. In high dudgeon they virtually accused their colleague Bokee of betraying his aldermanic oath to uphold the law by his mere suggestion of omitting an HPC hearing. Ald Russell dramatized this by reading the aldermanic oath ” I do solemnly swear…” and declaring that her accountability was to her oath.

Russell and O’Connor didn’t seem to grasp that Bokee had the City Attorney’s opinion to the effect that City applications to the HPC are a matter of convention or common practice, not law.TaneyBustFrntCtyHl

Bokee could have cited another argument against submitting the Taney move to the HPC.

The HPC’s Design Guidelines that are usually so detailed in their direction to the Commission — they cover ATM machines, night depositories, utility boxes, vending machines, literature racks, garden structures, street furniture, street lights, street signage — contain no specific reference to memorials, statues or busts.

HPC barred from considering content or subject matter of public art

The Taney memorial probably comes under the HPC’s general definition of ‘Public Art’ (see 2. Review of Public Art under Guidelines for Landscapes and Streets, p132.) This states that the HPC may review an application for public art only “with respect to its relationship to character-defining facades or features or its placement within a a historic streetscape or landscape…” In the SWInBlackHead120next sentence the HPC Guidelines say: “The Commission shall not consider the content, color, subject matter or style of the proposed artwork.” (‘not’ bolding is our emphasis)

Since it is the precisely the content and subject matter of the Taney memorial that are the rationale for its removal from City Hall Park the HPC is effectively barred by its Guidelines from properly considering the Taney move.

The City has another agency charged with advice on public art, the Public Art Commission. The Taney bust move could be referred to that commission. However unlike the Historic Preservation Commission the Public Art Commission has no regulatory powers. Its remit is simply to provide “advice and recommendations” on City art within the historic district. (https://www.cityoffrederick.com/index.aspx?nid=139)

Does the Board of Aldermen really want advice on a decision it has just made, and made unanimously?

“We’re asking for trouble that doesn’t exist”

DKuzemchakAld Kuzemchak, the lead sponsor of the Resolution didn’t get involved in the Bokee-Russell/O’Connor argument saying instead: “This (Resolution to move) is what we as a board of aldermen, and it is a unanimous decision, want to have happen… (W)e are saying: It is time to move that statue. We do not have the authority to force the Mayor to do that…. I believe that the Mayor and appointed boards are going to look at our decision, especially a unanimous decision of the Board of Aldermen, and try to move it forward.”

She quickly added she “could be wrong” but the resolution was all the board of aldermen could do.

In an allusion to Bokee’s suggestion they should make clear their decision was final by specifying a bypass of appointed bodies Kuzemchak said: “I think we are asking for trouble that does not exist.”

Chair Winnette doesn’t want HPC involved, said is a Mayor & Board decision

The chairman of the HPC Scott Winnette said privately a week before the vote that the HPC should not get involved in the Taney bust issue, that it should defer to the Mayor and Board. Given the Guidelines’ bar on it considering the ‘content’ or ‘subject matter’ of the Taney memorial the historic commission would be hard put to do a serious review of the move.

But Mayor McClement will decide whether to refer the matter to the HPC and the PAC.

BACKGROUND:

DredScottDecisionIn what has been described as the worst decision in the history of the US Supreme Court in 1857, Dred Scott v Sanford, Chief Justice Taney said African-Americans were to be regarded as “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect,  and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic…”

Taney’s racial supremacism, going way beyond prejudice to denial of the very humanity of African Americans was shocking even in his time. Both before and during the Civil War Taney misused his position on the US Supreme Court. Historians see him as a Confederate partisan who devoted his last years to placing legal obstructions in the way of the Union war effort.

That such a racial bigot and such a partisan of the slave states should have a place of honor at the steps of Frederick’s City Hall – alongside the stars and stripes and Maryland flag – is regarded by most as terribly wrong.

Kuzemchak said that over the past seventeen years many people had told her the memorial to Taney was offensive. She agreed with them, she said during debate:

“It is time to put it in a place where those who choose to visit it can see it any time and let those who simply want to do business with their closest governing body (City government) can do so without having to walk by a bust that honored someone whose views have no place in a modern society.”

She did a first draft of the resolution but she credited her colleague Ald Kelly Russell for improving it in a rewrite.

Ald Bokee who seconded the Taney resolution said he supported it “unequivocally.” City Hall and its surrounds should be “a beacon of welcome” to all and “should represent our community.”  The statue elevated and honored Taney by its location, he said. There was no place for a statue of someone who was so offensive to so many people.DShandwritten

Ald Russell said the Dred Scott decision by Taney was “despicable” and a standing offense to the City’s African American citizens.

Ald Phil Dacey said the Taney memorial misrepresented the City’s history:”People who come to visit Frederick may misinterpret that it was a Confederate sympathizing town when in fact it was a Union town.’ More important Davey said the Taney memorial was a misrepresentation of the City’s ideals for the future. Taney had been a highly divisive figure and would be more appropriate in a museum context.

Ald Michael O’Connor said an important fact was that the City was not responsible for the original installation of the Taney memorial in 1931. The City only took over the building from the county courts in the 1980s,and it inherited the Taney bust.

“The presence of that statue in front of City Hall is in some respects our display of the confederate flag.” That was not the message to be conveyed “about who we are.”

video of Mayor and Board meeting Oct 15 at 00:48:00

http://cityoffrederick.granicus.com/MediaPlayer.php?view_id=12&clip_id=2704 

Dred Scott v Sanford 1857:

http://www.ourdocuments.gov/doc.php?flash=true&doc=29&page=transcript 

Background from ourdocuments.gov:

“In 1846 a slave named Dred Scott and his wife, Harriet, sued for their freedom in a St. Louis city court. The odds were in their favor. They had lived with their owner, an army surgeon, at Fort Snelling, then in the free Territory of Wisconsin.

DredScott“The Scotts’ freedom could be established on the grounds that they had been held in bondage for extended periods in a free territory and were then returned to a slave state. Courts had ruled this way in the past. However, what appeared to be a straightforward lawsuit between two private parties became an 11-year legal struggle that culminated in one of the most notorious decisions ever issued by the United States Supreme Court.

“On its way to the Supreme Court, the Dred Scott case grew in scope and significance as slavery became the single most explosive issue in American politics. By the time the case reached the high court, it had come to have enormous political implications for the entire nation.

“On March 6, 1857, Chief Justice Roger B. Taney read the majority opinion of the Court, which stated that slaves were not citizens of the United States and, therefore, could not expect any protection from the Federal Government or the courts. The opinion also stated that Congress had no authority to ban slavery from a Federal territory. This decision moved the nation a step closer to Civil War.TaneyDrg

“The decision of Scott v. Sanford, considered by legal scholars to be the worst ever rendered by the Supreme Court, was overturned by the 13th and 14th amendments to the Constitution, which abolished slavery and declared all persons born in the United States to be citizens of the United States.”

CORRECTION: the first version of this referred to Alderman Kelly Russell as ‘Ald Kelly’ rather than Ald Russell –  a stupid mistake for which I apologize.

- editor 2015-10-23

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