“That’s wishful thinking,” said lawyer Patrick McSweeney, who represents five residents challenging Northam’s action.
A spokeswoman for Virginia Attorney General Mark R. Herring (D) noted Monday that his office has asked the court to expedite its handling of any appeal, and the court said it would consider the request.
Herring “remains committed to taking this divisive relic to Virginia’s racist past down as quickly as possible,” spokeswoman Charlotte Gomer said in an emailed statement.
Northam ordered the statue removed from state property on Monument Avenue in June amid a local and national uproar over police violence against African Americans. Demonstrators in Richmond focused on the city’s Confederate monuments as symbols of persistent racial inequity.
Legal challenges kept Lee standing throughout the summer, even as Mayor Levar Stoney had nearly a dozen other Confederate memorials taken down from city property. Over time, the towering figure of Lee — covered with graffiti, surrounded by tributes to Black people who lost their lives at the hands of police — became a national icon of racial reckoning.
McSweeney’s suit said Northam’s order to remove Lee violated the terms of a resolution the General Assembly passed in 1889 promising to care for the statue forever. The state also accepted deeds under those terms.
In October, Circuit Judge W. Reilly Marchant ruled in Northam’s favor but placed an injunction against the statue coming down so the five residents could appeal.
The appeal filed Monday said Marchant had erred in several ways, including by accepting actions the General Assembly took last summer. During a special legislative session, lawmakers passed an amendment to the state budget setting aside money for the statue’s removal and rescinding the 1889 resolution. Marchant ruled that the legislative action showed a clear change in public policy regarding the statue.
McSweeney argues the action was improper because it amounts to “special legislation” — meaning a law targeting one specific case, which is unconstitutional, instead of setting out broad policy.
Herring’s office argued at trial that a budget amendment is by definition aimed at something specific, such as funding for a school or a construction project.
The state now has a chance to respond to the appeal, and the high court must decide whether to take the case. It was unclear how long that might take to play out.
Even if the state panel eventually rules in Northam’s favor, McSweeney said his clients could appeal to the U.S. Supreme Court, contending that the state’s action violates federal contract law.
Meanwhile, in a chilly rain on Monday afternoon, the circle around the Lee statue was empty of the usual clusters of demonstrators. Signs on the new metal fencing warned unauthorized visitors to “keep out.” Memorials remained around the statue’s base, but the state’s Department of General Services said if the Lee statue comes down, those items will be removed and stored “until a decision is made as to their disposition.”