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Lawyers in Richmond monuments case disagree about significance of ruling in Charlottesville case
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Lawyers in Richmond monuments case disagree about significance of ruling in Charlottesville case

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Heavy-duty fencing surrounds the Robert E. Lee monument on Monument Avenue in Richmond.

Thursday’s ruling by the Virginia Supreme Court in a Charlottesville Confederate statues case does not bode well for an attempt to restore monuments removed in Richmond last year, says a lawyer representing Richmond Mayor Levar Stoney.

A lawyer representing the plaintiffs who want to have the monuments that were removed by the city of Richmond put back, disagrees.

The justices held Thursday that a 1997 amendment to state law preventing localities from removing war monuments could not be applied retroactively — overturning a circuit court decision that had blocked the city of Charlottesville from removing statues of Robert E. Lee and Thomas “Stonewall” Jackson.

In Richmond, some of the same plaintiffs attempting to restore statues removed by the city also are seeking to bar the removal of the Lee statue on state property along Monument Avenue. These plaintiffs are asking the Virginia Supreme Court to review Richmond Circuit Court Judge Reilly Marchant’s rejection of their request to restore the statues that have been removed.

They contend that the monuments were illegally removed from city property during Black Lives Matter and George Floyd protests last summer.

On July 1, Stoney ordered the removal of Confederate monuments from city property labeling them a threat to public safety. The City Council voted on Aug. 3 to ratify Stoney’s order after more than a dozen statues already had been removed.

Jeffrey Breit, a Virginia Beach lawyer representing Stoney, said Thursday’s ruling that the city of Charlottesville can remove the statues supports the position of Richmond’s City Council and Stoney.

“We feel good about the opinion ... the reasoning helps us wonderfully,” contends Breit. He added that the ruling shows that “if City Council wants to take them down, that’s their prerogative.”

Patrick McSweeney, a lawyer representing the plaintiffs, disagreed. He said the Charlottesville ruling does not impact his clients’ case concerning the monuments removed from city property, or separate efforts to prevent Gov. Ralph Northam from removing the Lee statue situated on state property.

“That has nothing to do with our case,” McSweeney said Thursday of the Supreme Court ruling.

The Virginia Supreme Court has agreed to hear the appeal in the case of the proposed Lee monument removal in Richmond. But the justices have not yet decided whether to consider McSweeney’s request that they review Marchant’s ruling in the case concerning the removed monuments.

The Lee statue is on state property and the removed monuments were on city property, and different issues are involved.

Breit said he believes the Virginia Supreme Court is unlikely to agree to review the case concerning the removed monuments since the court has been reluctant to twice address the same issue, “or even a cousin issue, when they think they have [already] spoken clearly.”

McSweeney’s clients contend that Richmond officials did not adhere to the state law concerning the removal of war memorials in the city. They filed a petition with the Supreme Court last month asking the justices to reverse Marchant’s decision denying an injunction that would restore the monuments.

The plaintiffs argue Marchant abused his discretion when denying the injunction even though Marchant conceded that Stoney’s action was unlawful.

Neither Breit nor McSweeney believe that Thursday’s ruling impacts two other cases on appeal before the Virginia Supreme Court that have thus far blocked the removal of the Lee monument from Monument Avenue.

McSweeney’s clients contend that deeds written in 1887 and 1890 instruct the state to hold the monument at Lee Circle and its surrounding land “perpetually sacred.” One of the lawsuits was filed by a woman who lives near the statue and other neighbors. The other lawsuit was by a descendant of a signatory of the 1890 deed.

When ruling against the plaintiffs in that case, Marchant held, among other things, that the actions of the General Assembly weighed heavily in his decision. Both the House and Senate approved bills in the 2020 special session that void the 1887 and 1890 agreements.

The Lee statue was given to the state as part of a restrictive covenant, and a restrictive covenant can stand only if it aligns with public policy, wrote the judge.

In the Charlottesville case, the city sought to take down the Lee and Jackson statues following the violence in the “Unite the Right” rally in 2017.

Writing for the unanimous high court on Thursday, Justice Bernard Goodwin noted that “the Statues were erected long before there was a statute which both authorized a city’s erection of a war memorial or monument and regulated the disturbance of or interference with that war memorial or monument.”

“In other words [the law in question] did not provide the authority for the City to erect the Statues, and it does not prohibit the City from disturbing or interfering with them,” he added.

Last year, the General Assembly changed the law and permits localities to remove such monuments.

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