A Wednesday editorial in The Sun of Baltimore raises an interesting question: Would any Maryland judge be willing to issue an order requiring Talbot County to either move its Confederate monument from the courthouse lawn or move the court itself to another location?
The Aug. 11, 2021, editorial notes an order issued last month by a Roanoke County, Va., judge that a Confederate monument on county property near the courthouse must be removed during court operations or the court must be moved.
In his July 8, 2021, order, Judge Charles N. Dorsey said the court is charged with the administration of justice and “… the continued presence of the confederate monument, in its present location on Roanoke County property, and with its present content, obstructs the proper administration of justice in the Roanoke County Courthouse ….
“Consequently, either the Court must be removed to an appropriate location or the monument must be removed during the operation of Court …,” the judge ordered. He deferred any other formal action until Jan. 2, 2022, to give the county’s board of supervisors to take appropriate action on its own.
The Roanoke monument is located on the old courthouse lawn in Salem, Va., in front of a building owned by Roanoke College, but on a small parcel of land owned by the county, according to a letter Judge Dorsey sent to the county’s board of supervisors. The college wants the statue removed, has offered to pay for removal, and is willing to help research the site, the statue, and the “historical context regarding enslaved persons” in the process of developing any replacement monument.
The larger question unaddressed by the editorial is whether a Maryland judge would have the legal authority to do something similar.
An argument could be made that Talbot County’s circuit court judge could issue such an order. Judges are responsible for the administration of justice and the presence of a Confederate monument, which many view as honoring white supremacy, just outside the entrance to the circuit courthouse could be considered as damaging the proper administration of justice.
Criminal defendants and civil litigants who are African-American could make an argument that the statue’s location suggests that the Talbot County Circuit Court does not adhere to the notion of equal justice under the law. If every case involving an African-American defendant or litigant results in an argument or an appeal or a request to move the trial elsewhere, the court system would be overwhelmed by those appeals, motions, and cases moved to another venue. That would damage the proper administration of justice.
Another answer may lie in the Maryland Constitution, which states: “All Judges shall, by virtue of their offices, be Conservators of the Peace throughout the State ….”
Conservators of the peace in England were those individuals who were responsible for maintaining the king’s or queen’s peace. In America, after the Revolutionary War, the English common-law concept of the royal peace was adapted to refer to maintaining public order. However, that common law offense has been replaced in the U.S. with criminal statutes against disturbing the peace.
Furthermore, the state’s highest court has ruled that the constitutional provision gives any individual judge statewide jurisdiction for certain legal actions. The case law, however, seems to sole focus on habeas corpus, which wouldn’t be pertinent for the removal of a statue. (Habeas corpus cases are those in which a judge is asked to order a prison official to bring a person before the court to determine if that person is being unlawfully detained. In such cases, for example, an Allegany County judge could order the Worcester County warden to bring an inmate in front of the Allegany County judge for that judge to rule on whether the person was being unlawfully detained.)
Circuit court judges also may consider a petition for a writ of mandamus or a show cause order requiring a governmental official to perform a lawful duty, halt an unlawful activity, or appear before the court to show cause why the official should not have to comply.
“Writs of mandamus … are deemed necessary when the actions or inaction of government bodies or corporate officials are so inappropriate or egregious that immediate, emergency action must be taken by the legal system,” according to Cornell Law School’s Legal Information Institute.
A circuit court judge conceivably could rule that the inaction of the Talbot County Council concerning the monument’s removal is so egregious due to its effect on the proper administration of justice that the court must take immediate, emergency action to order its removal.
Certainly, any action by a Maryland judge ordering the statue’s removal would likely lead to an appeal and continued legal wrangling.
In the meantime, those who support the statue’s removal continue to press the county council to take action on its own. Numerous people spoke during Tuesday night’s council meeting asking the council to move the monument.
Judge Dorsey’s order, and accompanying exhibits, may be read below:
VaJudgeCSAMonumentRemoval
Stephen Schaare says
Hi John, Well presented, but I do not believe we want to go down this road. Elect new county council members. Takes more time, but that is our process.
These actions have a way of being abused. Let’s say a next door neighbor has a car of neon yellow in their driveway. A homeowner becomes violently ill at seeing this color, fears he may suffer from flashbacks, suffer PTSD, fashion a “molotov cocktail” and burn down not only the yellow car, but his neighbor’s house as well.
Does a Judge have the right to seize the yellow car in the name of public safety? I think not. The fear is very real to the suffering neighbor, much like a person of color truly fears less than Justice in the Easton Courthouse.
Need some measure of proportion. Let the people decide.
Henry Herr says
The key difference is that the statue is on public property, which makes sense why a court can have standing.
Jim Richardson says
To be exact, fourteen Talbot County citizens spoke for an hour at last Tuesday’s county council meeting in support of removing the monument. The meeting marked the one-year anniversary of the council’s shameful vote to keep the monument in place. Curiously, there were no individuals that spoke in favor of keeping the monument. At one point during the testimonials, the council members were “entertained” by a chorus that sang a rousing rendition of ‘We Are Not Going Away.’
Paul Callahan says
It is my understanding that PTH decided that going over the same thing time and again with no additional information to provide is basically harassment. 14 is a good showing but the county population is over 37,000. Fourteen is .000378 percent of our population.
It is far more democratic to allow 100% of our voters to make a decision in the ballot booth in privacy and without fear of being labeled a “racist” or other extremely offensive labels.
The opportunity for 100% of our resident to provide their decisions without intimidation, fear or reprisals is much preferable than .000378 % making the decision for them. It is called democracy.
Additionally the MtM past claims that they represent the majority of Talbot Countians was disproven by the “yard sign battle”. Talbot countians asked for and displayed 400 PTH signs in half the time the MtM put out 300. Certainly not a vote by all but certainly tells the council very clearly that the MtM does not speak for the majority of Talbot residents.
Henry Herr says
Just checking where you got the yard sign facts. Seems like a weird conclusion to draw based off yard signs. There were more Trump signs in Talbot County than Biden signs, but Biden still won the county. Maybe the public information request of responses for removal of the statue during the public hearing would make sense?
Also seems weird to insinuate that there are more people that are scared to be called than those that are too afraid to come forward to voice how the statue makes them truly feel from fear of being badgered and physically threatened. I know many people who have been threatened including myself.
Paul Callahan says
Do you deny that Richard publicly called our council members “racist” and seeing through the “eyes of white privilege” for not voting as he desired?
That type of behavior is very threatening to our citizens. The #1 comment I have heard from the residents of Talbot is they fear speaking their opinions publicly for fear of reprisals against them.
Are you now denying history from just a year ago? Or do you need a PHD expert to do a study first.
The privacy of the ballot box, free from intimidation, from reprisals, labels, allegations etc, is the only way many of our citizens would feel comfortable communication their thoughts.
Henry Herr says
That’s exactly my point. Many people on both sides fear retribution and violence. That’s why people on both sides have not come forward publicly and you cannot assert the county’s opinion either way. The best information was polling data collected by the New Yorker. You have no data and proof otherwise.
In addition, Mr. Potter has every right to call out racism and racist practices. His comments were ruled to be protected by first amendment speech after the council illegally stopped his comments.
I’m a little confused why you think his words and behavior is so reprehensible. If the president of the NAACP stated that I was being racist and looking through the eyes of my privilege I certainly wouldn’t hang up on him. As an elected official isn’t it their job to hear the constituents point of view and hear harsh criticisms?
I see nothing wrong with his comments. How can a community grow if elected officials ignore any statements from the president of the NAACP after he says their actions are racist. Wouldn’t the council want to know why he thinks that? Wouldn’t they want to come together to find a compromise? But instead this council just ignores it’s citizens and their point of view because their feelings were hurt. How mature and helpful for a community.
Vincent De Sanctis says
Between this approach, i.e., the use of the courts and the recent statement of Attorney General Frosh, the Talbot County Council has the legal cover to remove the statue while the three in opposition can avoid responsibility for a decision that they are fearful of making.
Greenwood says
Have a judge make the decision? No way, that makes the county councils job too easy. Let’s keep the pressure on and vote accordingly.
Eva M. Smorzaniuk, MD says
Thank you Mr. Griep, for bringing to attention this brave and honest action by Judge Dorsey, but also for your eloquent and succinct legal justification. It is amazing to see the difference between the reactions of various people in public service! Clearly, this judge is unafraid to speak the truth. In contrast, our County Council is willing to ignore moral imperative and choose the spineless approach of non- decision.
Michael Davis says
Since the beginning, we don’t vote on rights. I wish we could vote on the 2nd Amendment because it would go down, be we don’t get to vote on it. We should not have to vote to take down a racist monument in our mists. That is the job of the Talbot County Council that has refused to do their duty either because they are racist or cowards, most likely both. There is nothing wrong with a judge doing it. Nothing is lost by having a government agent do the right thing. It is in our Constitution.
The slippery slope argument has been misused here over and over again. The argument makes sense if there is a real chance of sliding down the slope. For example, all of history, both White, Black, and Brown, will not disappear if we move that friggin’ monument. Four thousand years of history books will all vanish according to those who say moving the monument is a slippery slope to erasing history. I’ll bet not even one Talbot history book vanishes. Getting rid of that monstrosity is not a slippery slope to anywhere. And having a judge remove it is also not a slippery slope to anywhere. It is the right thing.