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