Herring asks Va. Supreme Court to remove injunction against taking down Lee statue

Jeremy M. Lazarus | 11/12/2020, 6 p.m.
Attorney General Mark R. Herring is officially fed up with Richmond Circuit Court judges blocking the removal of the largest …
Mr. Heytens

Attorney General Mark R. Herring is officially fed up with Richmond Circuit Court judges blocking the removal of the largest symbol of white supremacy in Virginia — the giant statue of Confederate Gen. Robert E. Lee on Monument Avenue.

It took more than five months, but Mr. Herring and his legal team are mounting an effort to get the state Supreme Court to eliminate the injunction that is halting the state’s removal of the statue, or at least to move faster to decide the statue’s fate.

In a filing Tuesday requesting action from the state’s highest court, the team led by state Solicitor General Toby J. Heytens accused the Richmond judge presiding over the Lee statue case of creat- ing a “law-free zone” in his courtroom that the state’s highest court should not allow.

Richmond Circuit Court Judge W. Reilly Marchant slapped on the latest injunction Oct. 27 despite ruling that Gov. Ralph S. Northam has the authority to remove the statue and rejecting arguments from people suing to stop it.

Judge Marchant imposed the injunction to allow the three property owners who filed the suit to appeal his ruling to the state Supreme Court. The injunction essentially continuing a 90-day injunction he had imposed before he made his decision.

By blocking the statue’s removal with the injunction, Judge Marchant follows in the legal footsteps of Judge Bradley B. Cavedo, whom Judge Marchant replaced on the case.

Judge Cavedo stepped aside because of a conflict. He lives near the Lee statue. But before stepping aside, Judge Cavedo also issued injunctions to stop Gov. Northam from removing the statue even after throwing out one case chal- lenging the statue’s removal as meritless.

Patrick McSweeney and Fred D. Taylor, attorneys for the property owners, have not issued a public comment on the filling from the attorney general’s office.

The 24-page brief from Mr. Heytens cites a state law that would allow the state Supreme Court to dissolve Judge Marchant’s restraining order as an abuse of discretion for being “based on erroneous legal conclusions.”

Mr. Heytens wrote that the judge did not properly consider whether the property owners who had sued to keep the statue were entitled to the “extraordinary remedy” of an injunction. Judge Marchant also did not require the plaintiffs to post a required injunction bond, Mr. Heytens noted, because the “court misread various statutory provisions.”

According to Mr. Heytens, Judge Marchant has claimed “ ‘total authority’ to enter sweeping injunctions against the Commonwealth on a whim or that this represents a law-free zone.”