On June 8, Richmond Circuit Judge Bradley B. Cavedo granted a temporary injunction to block the state from taking down the 130-year-old statue, responding to a lawsuit filed by a descendant of the couple who signed the deed giving land for the monument to the state.
Cavedo ruled Thursday that the descendant, William C. Gregory, had not proved that he had standing to bring the suit. A lawyer for the state attorney general’s office argued that restrictions in the deed requiring Virginia to “affectionately protect” the statue could only be invoked by an owner of the property, not by the heirs of the original owners.
But the judge said he wanted Gregory’s attorney, Joseph Blackburn, “to have another shot at it.” So he allowed 21 days for Blackburn to file a new complaint that addresses the issue of standing and said he would keep the injunction against removing the statue in place indefinitely.
Attorney General Mark R. Herring (D) attended the hearing, but the state’s case was argued by state Solicitor General Toby J. Heytens. He objected to extending the injunction, noting that because the judge had dismissed the plaintiff’s initial case, there was “no basis as a matter of law for obtaining a temporary injunction.”
But Blackburn argued that the statue had stood for 130 years and any action should come slowly. Earlier he had bemoaned the “lawlessness” of recent demonstrations in Richmond, which have led to three other Confederate statues being torn down and left the granite base of Lee’s statue covered with graffiti.
A further delay in removing the statue “is in the public interest,” Blackburn said. “Maybe things will cool down in the city of Richmond by then.”
Cavedo seemed to agree and then delivered a striking rebuke to Northam.
“The state seems to think that the monument is the property of the governor,” the judge said. “My view is that the monument is the property of the people of the commonwealth, and the governor is more of a custodian or fiduciary on their behalf. . . .
“To think the governor could take down the monument to George Washington and the Founding Fathers on Capitol Square, or the Houdon marble in the rotunda [of the Capitol] — I don’t think he has any authority to do something like that. It belongs to the people.”
He scheduled another hearing for July 23.
Afterward, Herring was quick to note that the judge had agreed with the state’s position questioning Gregory’s standing to bring the case. But he said he was “disappointed” that the judge had extended the injunction and given Gregory a chance to “have another bite at the apple.”
“The governor has the authority” to take down the statue, Herring said, calling the monument “a symbol of Virginia’s racist past.”
He added that Gregory “did not have the ability to veto the governor’s direction. The governor is the person who is in a position to make those decisions and is the democratically elected person to represent the views of the entire commonwealth.”
Herring vowed to “use every legal avenue we have” to get the statue taken down and said he was confident the governor would ultimately prevail. Northam, who has vowed to pursue the case to the state Supreme Court if necessary, said at a news conference Thursday that “as soon as we get through the court process, the Robert E. Lee statues will be moved from Monument Avenue and Richmond.”
After the original injunction prevented the state from taking down the Lee statue, protesters took matters into their own hands, toppling the three Confederate statues and a monument to Christopher Columbus.
This week, officials placed concrete barriers around the traffic circle where the Lee statue is located, preventing vehicles from driving onto the grass and potentially harming demonstrators.
Officials said the barriers are also aimed at stopping anyone from trying to use a vehicle to pull down the statue, which weighs some 12 tons.
Another lawsuit filed this week sought to block the statue’s removal on the grounds that it would damage surrounding property values. Herring had successfully referred that suit to federal court, and on Wednesday the plaintiffs withdrew it.
On Thursday, Blackburn told the judge that several of the property owners might want to join his lawsuit anonymously.
Lee’s fate is not the only battle shaping up. The General Assembly passed a bill earlier this year that allows localities to remove war memorials on their own property. Northam signed that bill into law, and Richmond’s City Council has said it will act to remove the other four Confederate memorials on Monument Avenue when the law takes effect July 1.
Details of Thursday’s hearing were provided to the media by a pool reporter, because the judge limited seating in the courtroom to 10 people, citing concerns about social distancing and the novel coronavirus.
Initially, it appeared no reporters would be allowed in. Then the attorney general’s staff surrendered seats so three members of the news media would have access.
Herring expressed dismay Thursday that the court had not made room for reporters. He has complained about lack of access to two other hearings in the case, including the fact that when the original injunction was issued last week, the attorney general’s office itself was not notified that a hearing was being held.
Last Friday, Herring’s office said lawyers for Gregory served notice that they were seeking to get the injunction extended and then called back moments later with the judge on the phone.
The attorney general then petitioned the court to hold all future hearings in public.
Laura Vozzella contributed to this report.