From AG Mark Herring’s office:
AG Herring has asked the Supreme Court of Virginia to dissolve the injunction that is currently stopping the Commonwealth from removing the Lee statue. In the alternative, AG Herring has filed a motion to expedite proceedings should SCOVA choose to take up the appeal.
In the motion to vacate the injunction pending appeal, AG Herring notes that “After a full trial, the circuit court determined that all of plaintiffs’ claims failed and entered final judgment for respondents (the Commonwealth). Despite having just rejected plaintiffs’ claims on the merits, however, the circuit court then gave plaintiffs the same relief they had sought all along (an injunction forbidding the Governor from removing the statue), without analyzing any of the traditional factors for granting equitable relief or even requiring plaintiffs to post a bond. This Court should vacate the circuit court’s injunction.”
AG Herring adds that, “In the alternative, the Court should establish procedures for resolving plaintiffs’ appeal from their circuit court-loss on an expedited basis, thereby mitigating (though not eliminating) the prejudice resulting from the circuit court’s extraordinary actions.”
In the motion, AG Herring argues that SCOVA should dissolve the injunction because, “the circuit court failed entirely to consider the traditional factors necessary to determine whether plaintiffs were entitled to the ‘extraordinary remedy’ of an injunction…a failure exacerbated by the fact that the relevant factors weigh heavily against granting one…[and] the court misread various statutory provisions by purporting to ‘waive’ the requirement of an injunction bond.”
In the alternative, AG Herring argues that SCOVA “should expedite consideration of this matter” because the appeals process could take at least a year or more and the plaintiffs will most likely “use all of their available time…[and] [t]hat is simply too long to wait for a resolution of this critical issue.” Adding that, “The Governor announced his intention to remove the Lee statue more than 5 months ago, and every single one of the numerous legal challenges that plaintiffs and others have brought to that decision have failed in circuit court…plaintiffs are not entitled to any further injunction at this point. But having now had their day in court – and lost – it should be clear that there is no basis in equity for granting plaintiffs a new injunction that could quite easily last twice as long as the ones they have already benefitted from to date.”
In addition to filing the motion to vacate injunction pending appeal or in the alternative to expedite proceedings, AG Herring also filed a petition for review.