~ Brief explains why plaintiff lacks standing, why removal plan is lawful, and why the statue needs to come down ~

RICHMOND (July 20, 2020)—Attorney General Mark R. Herring today filed a brief defending the removal of the state-owned Robert E. Lee statue on Monument Avenue in Richmond, and has also asked the new judge hearing the case to dissolve the current injunction that bars removal of the statue.

In his brief, Attorney General Herring makes it clear that the plaintiff lacks standing to block removal of the statue, and that even if he had standing it wouldn’t matter because the plan to remove the statue is lawful. The brief makes the case for not just why the statue can be taken down, but why it should be taken down, recounting the statue’s prominent role in perpetuating Lost Cause propaganda and promoting racially segregated neighborhoods in Richmond.

“My team and I are working as hard and as quickly as possible to resolve this case and ensure that the Commonwealth can remove this this divisive and antiquated relic from its place of prominence,” said Attorney General Herring.

On June 18, Richmond Circuit Judge Bradley Cavedo dismissed plaintiff William C. Gregory’s case for lack of standing, but extended an injunction barring removal of the statue so that the plaintiff could amend his complaint. The new complaint includes only the same plaintiff who was previously found to lack standing and includes little in the way of new arguments or evidence.

A hearing on the request for a permanent injunction is scheduled for 2:45pm this Thursday in Richmond Circuit Court before Judge W. Reilly Marchant after Judge Cavedo recused himself from the case. This is currently the only state court litigation involving the Lee statue after several residents of Monument Avenue dropped their separate case last week.

Below are some notable passages from Attorney General Herring’s brief:

“The assertion at the heart of this case is staggering. Plaintiff insists that a single person—who claims, at most, an undefined fractional interest in property conveyed to the Commonwealth 130 years ago—may indefinitely veto a popularly elected Governor’s decision to relocate a massive, government-owned statue of Robert E. Lee from one area of Commonwealth ownership and control to another. According to plaintiff, no matter how tenuous his case to relief is and no matter how much pain that statue inflicts—especially on the descendants of people Lee fought to keep in bondage—plaintiff’s preference that the statue remain where it now stands must prevail over the will of Virginians as expressed through their duly elected Governor. Plaintiff’s claims are antithetical to foundational principles of democratic governance, and those principles should begin and end this case.” [Page 1]

“And under our democratic system, no one—including a purported heir of long-dead grantors—may force a sovereign Commonwealth to forever continue broadcasting a message with which it profoundly disagrees or to display and maintain on government-owned property a massive statue of a person symbolic of a time it no longer wishes to glorify. So the question here is not whether the Commonwealth of Virginia may grant its duly elected chief executive the authority to remove a piece of government-owned property that is drenched in white supremacy. It can and it has. The only question is whether a single plaintiff, offering nothing more than 130-year-old documents and unarticulated and inapplicable doctrines of the law of real property, may call upon the equitable powers of this Court to exercise a heckler’s veto over the Governor’s decision. He cannot.” [Page 1]

“After the war ended, biographers, writers, and various societies embarked on a propaganda campaign to recast the object of the war away from the preservation of slavery. As part of this campaign, Lee and other Confederate leaders were lionized as icons of the Lost Cause who represented “the ultimate demonstration of the superiority of [Southern] civilization,” a euphemism belying the cause for which they fought.” [Page 2]

“With the Lee Monument in place, the plan to develop the surrounding area into an elite and fashionable suburban neighborhood gained momentum. Real estate companies drew on the Monument’s symbolism to attract affluent white residents, advertising race-based restrictions under which “[n]o lots can ever be sold or rented in Monument Avenue Park to any person of African descent.” The deliberate creation of a prestigious neighborhood just outside the capital city was meant not only to honor Lee as a Confederate hero, but also to help usher in a new era where the rules and power structures of slavery would persist in practice, if not in name.” [Page 5-6]

“Plaintiff’s amended complaint fails to remedy the flaws that led the Court to sustain defendants’ first demurrer more than a month ago. As before, plaintiff identifies no enforceable property right permitting him to enjoin removal of the Lee statue. The property interest plaintiff claims he inherited—a right to control the Commonwealth’s use of the land in perpetuity—was not recognized in the law at the time the land was transferred and remains unenforceable as the law has evolved in modern times. See Part I, infra. And plaintiff’s new allegation that the Governor’s plan to remove the statue violates a provision of Virginia law—now Code § 2.2-2402(B)—fares no better than his first claimed statutory violation. Once again, plaintiff lacks standing to sue over the alleged violation, the provision on which he relies confers no private right of action, defendants are shielded by sovereign immunity, and plaintiff’s claim fails on the merits in any event.” [Page 10]

“By removing the Lee statue, the Commonwealth is acknowledging that celebration of the Confederate cause is (and always was) wrong and that state-sponsored displays of racial subjugation and injustice will no longer be countenanced. Plaintiff has no legally enforceable right—as a “citizen,” an “heir,” or anything else—to prevent the Commonwealth from doing so.” [Page 15]

“When the statue, pedestal, and real property were conveyed to the Commonwealth, Reconstruction had recently ended and the overwhelming view of those who held political power in Virginia (as opposed to the then-hundreds of thousands of Black Virginians who were being rapidly disenfranchised) was that Lee was a “heroic figure” to be celebrated and that the failure of his cause was a tragedy to be mourned. Today, Lee and other Confederate leaders are widely regarded as symbols of racism, injustice, and oppression, and the cause for which they fought a shameful blight on our Nation’s history. The statue has become an ever-more-painful wound and a focus of the anger and frustration felt by many who continue to suffer the effects of the disgraceful institution Lee fought to protect.” [Page 16]

“Plaintiff’s request for a permanent injunction and a declaratory judgment should be denied, the amended complaint should be dismissed with prejudice, and the existing temporary injunction should be finally dissolved.” [Page 20]

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