An heir of persons who donated the land for Richmond's Robert E. Lee statue and five nearby property owners told the Virginia Supreme Court on Tuesday that restrictive covenants of more than 130 years ago bar the removal of the last Confederate memorial on Monument Avenue.
Gov. Ralph Northam ordered the statue moved last June 4 after it became a flashpoint for racial justice protesters following the death of George Floyd. The General Assembly appropriated money for its removal and repealed the 1890 law that accepted the deed for the land and that agreed to protect the monument in perpetuity.
Shortly after Northam's order, William C. Gregory, a great grandson of two of the people who donated the property that became Lee Circle, sued to block the removal, contending that 1887 and 1890 deeds giving the land to the state created a perpetual covenant prohibiting removal. Five area residents, two of them living in the Monument Avenue Historic District, also sued.
Richmond Circuit Court Judge W. Reilly Marchant ruled against them, holding that arguments to keep it in place were contrary to new public policy as established by the General Assembly last year. However, an injunction is in place barring the monument’s removal pending the appeal to the Virginia Supreme Court.
The justices had set aside more than an hour Tuesday to hear arguments during the virtual session from lawyers on each side. But the hearings were over in less than half the time allotted, and no justice asked a single question of either side.
Patrick M. McSweeney, an attorney representing the property owners, argued Tuesday that "the court should reverse the decision below because the decision was based upon an unconstitutional enactment of the General Assembly which had not yet been signed by the governor."
"And the court also relied on - improperly relied on - testimony of experts about public policy," added McSweeney. "Ultimately, the restrictive covenants that we rely on are and were valid and enforceable," he argued.
His clients contend that last year's General Assembly's budget amendment repealing the 1889 law was unconstitutional, calling it "special" legislation.
"There's no question that it was special legislation ... only a single object was involved," said McSweeney. "Special laws cannot invalidate restrictive covenants, which in this case clearly involves a contract." McSweeney said that only a legitimate, Constitutional action of the General Assembly can change public policy.
Virginia Solicitor General Toby J. Heytens disagreed.
"This case is about whether a handful of private individuals possess a judicially enforceable right, to override the decision of the Commonwealth's political branches and the will of many of their own neighbors to force the Commonwealth of today and tomorrow to continue to maintain this statue indefinitely," Heytens argued.
He urged the justices to side with Marchant and hold that, "regardless of whether [the] plaintiffs ever had any sort of enforceable property right, that right was extinguished by the 2020 law and that law is perfectly Constitutional."
It is not known when the Supreme Court will rule in the cases. If the plaintiffs lose they could potentially appeal to the U.S. Supreme Court, possibly further delaying any removal of the statue.
To that end, Heytens told the justices, "as of today, June 8, 2021, the governor has been enjoined from acting for an entire year, as of today, despite having prevailed on the merits in every single challenge seeking to block his actions.
"For that reason I think it is critically important that the court not only affirm the circuit court's decision on the merits, but also to make clear that the injunction pending appeal is immediately dissolved and that the new status quo is that the governor may act unless plaintiffs succeed in obtaining a new injunction from this court or a higher court," Heytens said.
Joseph E. Blackburn Jr., an attorney representing Gregory, also asked the justices to reverse Marchant. His client, said Blackburn, "is here to stop the sovereign, from doing what the sovereign can't do and to stop the sovereign from breaking its word."
Heytens said that Gregory's case fails for all of the reasons the other case does and for other reasons.
In court filings, Heytens and Virginia Attorney General Mark Herring argued that "government-owned monuments on government-owned land are core government speech, and plaintiffs are seeking to use the equitable powers of the courts to force the government of 2021 to continue saying things it no longer wishes to say."
On Tuesday, Heytens told the justices that "no court has ever recognized a personal inheritable right to dictate the content of core government speech about a matter of racial equality and this court should not be the first one ever to do so."
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 last year. But those monuments were on city, not state, property.
Carl Tobias, a professor at the University of Richmond School of Law, said the justices will decide how they wish to resolve the appeals and write the opinions.
"That normally requires six to nine weeks," Tobias said. "However, COVID has slowed that time frame somewhat."