Court Rulings Favor County In Wal-mart Trial Hearing
By Scott C. Boyd
(December 2010 Civil War News)

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ORANGE, Va. – The judge made several rulings on expert witnesses, depositions and a fired county administrator at a Nov. 15 hearing in the Wilderness Wal-mart suit that is due to go to trial on Jan. 25.

Orange County Circuit Court Judge Daniel R. Bouton turned down plaintiffs’ motion to remove seven expert witnesses and depose members of the Orange County Board of Supervisors.

The hearing on the lawsuit to prevent construction of a Wal-mart Supercenter at the entrance to the Wilderness battlefield had been scheduled for Oct. 21 (see CWN November issue), but was postponed due to a death in an attorney’s family.

The lawsuit filed on Sept. 23, 2009, was triggered by the Supervisors’ Aug. 25, 2009, vote to approve a special use permit allowing Wal-mart to construct a 138,000-square-foot store at the intersection of State Routes 3 and 20.

Plaintiffs are the Friends of Wilderness Battlefield and six local residents. Defendants are the Orange County Board of Supervisors (BOS), Wal-mart, developer JDC Ventures and the landowners 3 & 20 Limited Partnership.

Judge Bouton rejected a plaintiffs’ motion to strike seven of eight proposed defense expert witnesses, but ordered that the defense provide more information about the expected testimony for the seven in question by Nov. 23.

“What [the defendants] gave us,” plaintiffs’ attorney Robert Rosenbaum told Civil War News in explaining his objection, “did not give us the disclosures we were entitled to concerning their experts.”

Rosenbaum said he had an additional objection to one of the defense experts because the witness “proposed to testify about legal conclusions. Virginia law does not permit expert witnesses to testify about legal conclusions.”

The judge said he would not rule at this hearing on the additional objection to the witness, according to Rosenbaum.

Previously, the plaintiffs proffered four expert witnesses, including Pulitzer Prize-winning historian James McPherson, to speak about the historical significance of the proposed Wal-mart site during the battles of Chancellorsville and the Wilderness.

Summaries of each expert witness’ testimony have to be provided.

The judge upheld a defense motion to prevent deposition of BOS members.

“The judge basically ruled that we could not inquire into most areas with the supervisors. There might be some relatively small exceptions to that ruling that haven’t been resolved yet,” Rosenbaum said.

“I lost on this one. I’m not going to try to hide it,” he added.

Rosenbaum disputed a Fredericksburg Free Lance-Star published account that quoted him as saying in court that deposing the BOS was “crucial” to the plaintiffs’ case.

“I never said that in court or otherwise. This is certainly not crucial to our case,” Rosenbaum told Civil War News.

Judge Bouton ruled against the plaintiffs’ efforts to seek information about the Board of Supervisors’ firing of former county administrator Bill Rolfe on July 3, 2009, or other questions about personnel.

Rosenbaum said the plaintiffs never asked for Rolfe’s personnel file. “What we wanted to inquire about is whether the news stories that appeared at the time were accurate that Rolfe was fired because he recommended that the BOS consider an alternate site [for the proposed Wal-mart].”

Rosenbaum said, “Other [Orange County] staff members took actions that are inexplicable and we wanted to get some discovery to find out whether the real reason for their actions was that they were trying to give the BOS what it wanted.”

The Board of Supervisors’ attorney, Sharon Pandak, in an email described the judge’s reasoning as that “personnel matters were not relevant to the litigation.”

Zann Nelson, president of the Friends of Wilderness Battlefield, wrote in an email after the hearing, “More often than not, performing one’s duty as a responsible citizen is not always popular. But stay the course we will, utilizing the democratic system and holding our elected leaders accountable. It is a time-worn process; we respect the judge’s decisions and will move forward with vigor.”