Virginia Supreme Court Asked to Dismiss Confederate Injunction

By Brian Carlton

November 10, 2020

Herring asks for permission to tear down Lee monument, despite pending appeal

RICHMOND-Mark Herring wants to tear down Richmond’s Robert E. Lee monument and he’s tired of waiting. On Tuesday, Herring filed a motion with the Virginia Supreme Court, asking the justices to throw out a lower court’s ruling.

The ironic part is that Herring actually won in that earlier ruling. In October, Richmond Circuit Court Judge W. Reilly Marchant ruled the state could remove the monument. However, he suspended the ruling because the plaintiffs said they planned to appeal to the Virginia Supreme Court. If they refuse to hear the case, the injunction will be dissolved. State officials can remove the statue at that point. If they agree to hear it, then the injunction remains until the Supreme Court issues a decision.

That timeframe wasn’t fast enough for Virginia’s attorney general. Herring argued that by suspending the ruling, Marchant gave the plaintiffs exactly what they wanted.

“Despite having just rejected plaintiffs’ claims on the merits, however, the circuit court then gave plaintiffs the same relief they had sought all along,” Herring wrote. “[The court didn’t analyze] any of the traditional factors for granting equitable relief or even requiring plaintiffs to post a bond. This Court should vacate the circuit court’s injunction.”

But if the Virginia Supreme Court wasn’t willing to consider that option, Herring suggested an alternative.

“In the alternative, the Court should establish procedures for resolving plaintiffs’ appeal from their circuit court-loss on an expedited basis,” Herring wrote.

Basically, he’s asking the Virginia Supreme Court to speed up their decision.

A Unique Case

The issue here involves a bronze statue of Lee on Richmond’s Monument Avenue, one standing 21-feet-high and weighing 12 tons. According to state records, this is the last and largest statue of its kind in Virginia.

State officials want to take it down. A group of local residents are afraid removing the statue would damage their property values and increase their tax bill. They argued Gov. Northam didn’t legally have the power to remove the statue. Doing that, they claim, would violate the agreement reached 131 years ago. When the General Assembly accepted transfer of property in 1889, they agreed to several restrictive covenants in the deeds.

There’s just one problem, Marchant ruled. Any covenant must not be contrary to public policy. And the General Assembly sets public policy.

The Assembly, Marchant wrote, made public policy very clear on this issue during this fall’s special session. That’s when they passed House Bill 5005 and Senate Bill 5015. Halfway through those budget bills, there’s a specific line making it clear what lawmakers want done with the statue.

“The Department of General Services, in accordance with the direction and instruction of the Governor, shall remove and store the Robert E. Lee Monument or any part thereof,” the bills say.

The bills also repeal the Joint Resolution from 1889, which gave then-governor Phillip McKinney authority to accept the deed from the Lee Monument Association.

Stuck in Time

Here’s where it gets interesting. Before Monday, the last filing in the case was a notice of appeal on Oct. 29. All that means is the group of residents plan to appeal but they haven’t done it yet. Herring’s concern is that by doing nothing, the group gets what they want. The monument can’t be removed while the appeal is active.

That’s why he asked the Virginia Supreme Court to step in.

“[An] appellate court having jurisdiction over [an] appeal” may “modif[y] or vacate[]” any injunction pending appeal,” Herring said, referring to Virginia Code Section 8.01-631D. “Because plaintiffs have already filed their notice of appeal, this court has jurisdiction even though plaintiffs have not yet filed their petition for appeal.”

Per Virginia law, any group has 30 days to file an appeal. That means the Richmond group has until Nov. 28 to get their documents in.