Fate of Lee monument in Richmond to be argued Tuesday before Virginia Supreme Court
By Frank Green, Richmond Times-Dispatch – 6/4/2021
The Virginia Supreme Court will hear arguments Tuesday in two cases aimed at barring the removal of Richmond’s Robert E. Lee monument, the last Confederate memorial remaining on Monument Avenue in the wake of George Floyd’s death.
Last June, Gov. Ralph Northam ordered the monument moved from state property at North Allen and Monument avenues. The General Assembly appropriated money to do so and in a budget amendment repealed the 1889 law that accepted the deed for the land and agreed to protect the monument in perpetuity.
The iconic bronze statue of Lee on a horse gained national attention last year as a focus of racial justice protests in Richmond. The base of the 60-foot-tall monument, now famously covered with graffiti, was illuminated at night with holographic images. A year ago, demonstrators at the circle — now surrounded by fencing — were tear gassed by police.
“This is the heart of the Confederacy, Richmond, and this is the central symbol of that,” said Richard Schragger, a professor at the University of Virginia School of Law and one of a number of property law professors who signed a friend of the court brief siding with the state.
Monuments to Lee have been at issue in Charlottesville and elsewhere. But Schragger said that as a result of its location, “this particular Robert E. Lee statue has been quite a symbol of the objection to Confederate monuments more generally across the South and in other places.”
A few days after Northam’s June 4, 2020 removal order, William C. Gregory, a descendant of two of the people who donated the land to the state, filed suit in Richmond Circuit Court to block it.
Gregory alleged that the 1887 and 1890 deeds giving the land to the state created a perpetual covenant prohibiting removal of the Lee statue, which he had a right to enforce as an heir to the original land donors.
When that suit failed, five area residents, two of them residents of the Monument Avenue Historic District, also sued, arguing that the 1887 and 1890 deeds require that the monument be held “perpetually sacred” by the state.
Richmond Circuit Court Judge W. Reilly Marchant ruled against them, holding that arguments to keep it in place were contrary to current public policy as established by the General Assembly last year. An injunction is in place barring the monument’s removal pending the appeal to the Virginia Supreme Court, which is also considering an appeal in the Gregory case.
The supreme court has set aside 40 minutes for arguments in the property owners’ case and 30 minutes for Gregory starting at 9 a.m. Tuesday. The cases will be argued and heard remotely. A link to the virtual proceedings will go live at 9 a.m. at http://www.vacourts.gov/
Virginia Solicitor General Toby J. Heytens will argue for the state and Patrick M. McSweeney will argue for the plaintiffs in the property owners’ case, and Joseph E. Blackburn Jr. in the Gregory case.
Other Confederate statues and memorials along Monument Avenue, including those of Thomas “Stonewall” Jackson and J.E.B. Stuart, came down following Black Lives Matter protests. But those monuments were on city, not state, property.
A brief filed in the Virginia Supreme Court by Virginia Attorney General Mark Herring’s office argues that the governor indisputably has the authority to relocate the Lee monument.
“In 1890, the then-Governor of Virginia accepted a statue from a nominally private organization of which that same Governor was also, simultaneously, the president. More than 130 years later, a different Governor decided that the statue — a piece of Commonwealth-owned property — should be relocated from one area of Commonwealth ownership and control to another. The General Assembly has agreed.
“That should be the end of the matter,” contends the brief.
Herring complains that, “In these two cases … a handful of private individuals claim a judicially enforceable right to veto the shared decision of the political branches. As plaintiffs see it, the people of 2021 may not take down a divisive symbol that those who held power in 1890 decided to put up.”
McSweeney said that a U.S. constitutional issue is in play and there could be a potential appeal of a Virginia Supreme Court decision to the U.S. Supreme Court.
In the event the state wins and the plaintiffs appeal to the U.S. Supreme Court, Herring’s office is asking the justices to immediately dissolve the injunction so the statue can be removed.
“If plaintiffs want to continue their fight beyond the Commonwealth’s own highest court, it should be their burden to convince the U.S. Supreme Court to grant a further injunction,” argues the attorney general’s office.
The plaintiffs contend among other things that Marchant erred in finding that the 1887 and 1889 deeds were contrary to public policy because the 2020 General Assembly legislation is unconstitutional and, therefore, cannot establish public policy.
Last year’s budget amendment, they argue, is a “special” law and not a general law as was found by Marchant. Impermissible “special” laws specifically target a locality or small group rather than an entire class.
The plaintiffs also argue the judge should have found, as they argued, that the General Assembly’s actions violated the state and U.S. constitutions’ contract clause.
Their appeal states that “the Robert E. Lee Monument was erected for two purposes. The first was to honor Lee and the men he led in battle. The second was to attract buyers to a real estate development just beyond the boundary of the City of Richmond.”
The plaintiffs complain that “it was not until 2020 that any Virginia official contended that the 1890 Deed was void from the date of its execution. Instead, the Commonwealth stood by silently for 130 years as lots were transferred in reliance upon the restrictive covenant, and accepted the benefits of having a major historic landmark and tourist attraction in its capital.”
“The Governor now claims the prerogative to disavow the commitment made by the Commonwealth in 1890,” they complain.
The plaintiffs noted in their brief that Northam contends that they “ignore the shameful history that gave rise to the Lee Monument and the ongoing pain caused by forcing the Commonwealth of 2021 to leave it up one moment longer.”
They responded that the residents are making legal claims based on deed covenants and constitutional rights. “It is unnecessary that they ‘win’ legally irrelevant historical debates about the Civil War, Robert E. Lee, and the motivations of those who erected the Lee Monument in order to show that they are entitled to prevail in this case,” they wrote.
Nevertheless, the brief says the plaintiffs “strongly” disagree with the characterization of the history surrounding the statue as shameful.
“As for the ‘ongoing pain’ allegedly caused by the continuing existence of the Lee Monument, if the Governor is sincerely concerned about pain, he should not be indifferent to the pain and sadness that a great many people will feel if the Lee Monument comes down,” concludes their appeal.
They are asking the justices to reverse Marchant’s judgment and order the state to permanently bar the removal of the Lee monument.
One of several briefs in support of Northam’s position was written by A.E. Dick Howard, a professor at the University of Virginia School of Law, who more than half a century ago was the executive director of the Commission on Constitutional Revision that rewrote Virginia’s Jim Crow constitution of 1902 and replaced it with one adopted by voters in 1970.
Howard argues that the General Assembly must have the power to declare the Commonwealth’s public policy. “That principle is at the core of this case,” he added.
“The General Assembly’s instruction to remove the Lee Monument is but one part of a larger policy movement to reckon with manifestations of white supremacy in the public sphere. The Circuit Court properly considered the 2020 law as evidence of the Commonwealth’s public policy position. The 2020 law is a permissible exercise of the General Assembly’s legislative power,” concluded Howard.
Carl Tobias, a professor at the University of Richmond School of Law, agreed. He added, “The supreme court is often deferential to the General Assembly when it has spoken clearly on an issue of public policy. I think that is what is critical to this case.”
L. Steven Emmert, a Virginia Beach lawyer and Virginia appellate court expert, said that in light of the pandemic, it would be difficult to know when the justices might rule on the cases after Tuesday’s arguments.
He said that prior to COVID-19, “the sweet spot for published opinions was six to nine weeks after the session week … nowadays, it’s become wholly unpredictable.”
“Of course, this isn’t the average case. The court expedited its placement … and it’s now being argued just 4 ½ months after the petition for appeal hit the clerk’s office. That’s somewhere on the order of half the usual time,” Emmert said.
“That might indicate that the justices will expedite the decision in the case, too, though there’s no way for an outsider like me to know that.”