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Monument Avenue residents refile lawsuit challenging removal of Lee statue
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Monument Avenue residents refile lawsuit challenging removal of Lee statue

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Concrete barriers form a ring around the Robert E. Lee statue on Monument Avenue in Richmond June 17.

Less than a week after dropping a similar lawsuit, five Richmond residents who live in the Monument Avenue Historic District are suing Virginia over its planned removal of the Robert E. Lee statue.

The lawsuit, filed Tuesday in Richmond Circuit Court but announced Wednesday, reiterates claims in previous complaints that taking down the statue would decrease property values and hurt tax incentives.

The suit potentially complicates a hearing scheduled for Thursday in a separate case, in which a judge is set to consider lifting an injunction that blocks the state’s plans.

“Plaintiffs will also suffer injury as a result of the loss of a priceless work of art from their neighborhood and the degradation of the internationally recognized avenue on which they reside,” the lawsuit states.

This is the third lawsuit filed by residents of the city’s famous street challenging Gov. Ralph Northam’s plans to remove the former capital of the Confederacy’s most prominent Confederate symbol. A similar suit, with at least one of the same plaintiffs while the rest remained anonymous, was dropped last Thursday, and the residents had previously withdrawn their lawsuit in federal court.

In the most recent effort to keep the statue up, the residents of the historic district criticize recent protests of racial injustice and say there is “no urgent need to remove” the Lee statue, which has served as the epicenter of the city’s activism.

“The Court should decline to be swept up by the current hysteria about removal of monuments,” a court filing from the plaintiffs reads. “The only issue here is the legality of Governor Northam’s removal order.”

Attorney General Mark Herring’s office reiterated that the state has the authority to take down the statue.

“Attorney General Herring remains committed to ensuring the removal of this divisive and antiquated relic as soon as possible,” Herring chief of staff Michael Kelly said in a statement.

Filing the most recent lawsuit are Helen Marie Taylor, Evan Morgan Massey and John-Lawrence Smith, who are Monument Avenue residents, joined by Janet Heltzel and George D. Hostetler, who live on Allen Avenue near the monument. Patrick McSweeney, a former chairman of the Republican Party of Virginia, represents the residents, who all live within view of the monument, according to a court filing.

Taylor and Massey are plaintiffs in a separate lawsuit seeking to restore the Confederate monuments the city has taken down this month. A hearing has not been scheduled in that case, according to online court records.

In a memorandum supporting their motion for a temporary injunction, the residents also criticized a June filing from the attorney general that says Northam has “both the authority and the moral obligation to remove this badge of white supremacy from its place of exaltation.” They said the “moral obligation” appeal has “no bearing on whether the Governor has the legal authority to act as he proposes.”

“If public officials can disregard the law and act on their private sense of what is permissible, every citizen is encouraged to do the same,” the filing states, specifically referencing the recent protests, which the plaintiffs refer to as “rampant lawlessness,” in Richmond since the May killing of George Floyd in the custody of Minneapolis police. “Mobs have claimed the right to injure innocent citizens, damage public property, destroy business properties, block public streets, occupy public spaces, and violently attack law enforcement officers.”

They added: “All of this has been predicated on the notion that every individual has the moral right to decide for himself or herself what is permissible.”

The residents claim in their refiled complaint that Northam is bound by language of 19th century agreements to consider the monument and the area around it “perpetually sacred” and “faithfully guard it and affectionately protect it.” It’s a similar argument to one that William Gregory, the great-grandson of the people who signed over to the state the land the statue stands on, is making in a separate case.

In a separate court filing, the five plaintiffs ask to take part in Thursday’s hearing in Gregory’s case, which, under a judge who no longer is presiding over the case, twice resulted in injunctions stopping the state from removing the statue. Gregory’s hearing is scheduled for 2:45 p.m., while a hearing in the new case is set for 3:45 p.m., according to online court records.

Carl Tobias, a law professor at the University of Richmond, said a city judge could reject the plaintiffs’ case “on judicial economy grounds, given the judicial resources devoted to the case” after its back-and-forth of being filed and withdrawn.

“If that does not happen, the judge may need to decide whether those plaintiffs have standing and, if not, he should dismiss the case,” Tobias said.

If they have standing, Tobias said, the judge should consider consolidating the cases, which Virginia code leaves to the discretion of the judge. Judge Bradley B. Cavedo, the judge in the initial Gregory hearings before recusing himself in the case last week, granted a motion from the state to dismiss Gregory’s initial complaint, citing a lack of standing.

W. Reilly Marchant, whom the General Assembly appointed to the bench in 2014, is the new judge in the Gregory case. He also was assigned to the previous Taylor case.

Standing is also the key issue in a federal lawsuit challenging Northam’s removal plans.

Henrico County resident William Davis filed suit last month, claiming the removal would violate federal landmark law. The Lee statue has been listed on the National Register of Historic Places since 2007.

In response to a federal judge’s Tuesday order that Northam respond to Davis’ motion for an emergency injunction, the state said Davis doesn’t have standing in the case.

“While Plaintiff may have a personal interest in maintaining the Lee Monument in its current location, that is not enough,” the filing reads. “Instead, Plaintiff must allege harm to his legal interests in order to meet the requirements for standing, which Plaintiff has not done.”

It’s unclear when U.S. District Judge Henry E. Hudson will make a ruling in the case.

Tobias said federal judges are reluctant to grant injunctions when a state judge has denied doing so.

jmattingly@timesdispatch.com

(804) 649-6012

Twitter: @jmattingly306

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