Richmond Circuit Court Judge W. Reilly Marchant wrote in the decision released Monday that "the public interest does weigh in favor" of a temporary injunction barring the statue's removal.
Separately, Marchant dismissed entirely as not "legally viable" the claims filed by a descendant of signatories to an 1890 deed that transferred the statue to the state, and he dissolved an existing injunction in that case.
Plaintiff William C. Gregory, the great-grandson of land donors, had argued the state agreed to “faithfully guard” and “affectionately protect” the statue on historic Monument Avenue that is among the most prominent Confederate tributes in the U.S. His attorney didn’t immediately respond to a request for comment.
The governor appreciates the dismissal of the Gregory case and “looks forward to another victory in court as soon as possible,” his spokeswoman, Alena Yarmosky, said in a statement.
“This statue will come down — and Virginia will be better for it,” she said.
In the property owners' case, Marchant found that the plaintiffs have the general standing to sue.
Four of the plaintiffs own property near the statue; another is a trustee of a property owner. Among them is Helen Marie Taylor, a longtime Monument Avenue resident and defender of the statues. The group argues that removing the Lee statue — the last Confederate statue now standing on Monument Avenue — could result in the loss of the neighborhood’s National Historic Landmark designation, “which will have a substantial adverse impact, “ including the loss of ”favorable tax treatment and reduction in property values.”
In deciding whether to issue an injunction, Marchant considered one of their five claims — that they have a right to enforce restrictive covenants contained in deeds from 1887 and 1890 dealing with the statue and land it rests upon. The judge found that the plaintiffs are likely to succeed on that issue “under the common law doctrine of restrictive covenants running with the land.”
He said he would hear evidence and arguments on all five counts at another hearing. Court records did not indicate such a hearing has been scheduled.
University of Virginia law professor Richard Schragger said the judge’s ruling was “favorable” for the property owners.
“That doesn’t mean the state can’t prevail, but that the judge has at least taken the basic facts and read them in a favorable light for the plaintiffs,” said Schragger, who teachers property law and whose scholarship includes a focus on the intersection of constitutional law and local government law.
He said he expects the case to end up before the Supreme Court of Virginia on appeal.
Virginia Attorney General Mark Herring has filed a motion to dismiss the property owners’ lawsuit and “remains committed to ensuring this divisive, antiquated relic is removed as soon as possible,” according to a statement from his spokeswoman, Charlotte Gomer.
Patrick McSweeney, an attorney for the property owners, has said he does not comment on pending litigation.