Big Law and Local Government

By David Montgomery

What is a small town or county to do when it is invaded by national pressure groups with unlimited resources?  That is the problem faced by Talbot County on Maryland’s Eastern Shore, but the ramifications of the question extend nationwide.  The target in Talbot County is a memorial located on the grounds of the county courthouse to local men who fought for the Confederacy, comprising a statue and a base with the names of the 84 “Talbot Boys”.  There have been sporadic efforts local efforts to remove the statue.  One was resolved with a compromise in 2004 to add a statue of Frederick Douglass, who grew up in Talbot County.  In 2017 the County Council, under the leadership of its African-American president Corey Pack, voted unanimously to keep the statue.  The leader of the local NAACP was never completely satisfied, but the matter lay quiet until last summer.  

As in other places, the killing of George Floyd and the resurgence of Black Lives Matter (BLM) in demonstrations and riots across the country had an effect here, only a 90-minute drive from Washington DC and Baltimore.  The first reaction seemed to be entirely local, as a small Progressive contingent of full and part-time residents led a march on the Courthouse with perhaps 100 participants and started Facebook pages, letters to the editor and OpEd columns in local papers.  At this time, events in Talbot County were not much different from those in small towns celebrated in national media for their awakening to BLM and antiracism, events which were claimed to involve “little participation by outsiders.”  

Then in August 2020 things changed.  Corey Pack, again President of the County Council, had a “change of heart.”  He introduced a motion to remove the memorial, along with motions to mandate diversity statements in the employee manual and diversity training for county employees.  Critical race theory had arrived.  The motion to remove the statue was defeated by a 3-2 vote with opposition led by Laura Price.  The leader of the local NAACP accused Ms Price of racism and “white fragility” during public comments at that meeting.  (In a foretaste of the current situation, the ACLU threatened the Council with legal action for cutting him off after those personal attacks.)  Immediately, small groups started noisy protests disrupting County Council meetings until it abandoned in-person meetings entirely.  Local high school students made videos alleging widespread racism in Talbot County, with the help of a community on-line newspaper The Talbot Spy. The NAACP leader’s Facebook page became a destination for vicious attacks on Ms Price and the other Council members who voted to retain the memorial. 

At that point, events in Talbot County began to receive broader attention.  The New Yorker published a commentary by a local high school graduate who went on to Harvard and Oxford before returning home.  It started with her “lived experience” of racism growing up in Talbot County in the late 1990s (uncorroborated by contemporaries) and then descended to nasty character assassination of the County Council.  It, of course, attracted widespread and unwanted attention. 

A debate then raged in local newspapers for months, with OpEds by one side followed by comments from the other and disputatious letters to the editor, on and on.  Then yellow signs appeared saying in black letters “Move Talbot’s Confederate Monument,” countered after a few weeks by blue signs with white letters that said “Preserve Talbot History.”  

The “Move the Monument” group (MTM) mounted an aggressive public relations campaign, adding multiple webinars and on-line lectures about slavery, the “Lost Cause” movement and racism to their continued writings in the local press.  Their supporters appeared at repeated County Council meetings to continue pressing for the removal of the monument, wearing yellow t-shirts emblazoned with their demands.  The Preserve Talbot History (PTH) group responded with more writing, and appearances of their own at Council meetings.  While MTM was concentrating on removal of the statue, PTH supported proposals made in 2018 and by Council member Laura Price for a compromise solution of adding a memorial to Union veterans (and particularly US Colored Troops in which hundreds of Talbot County residents served) on the courthouse grounds.  

It appeared for a long time that both sides were pursuing their objectives by raising public awareness and working local politics.  Then the stakes were raised, and intervention for organizations outside the county appeared openly for the first time.  In early April, announcements of a massive march and rally to coincide with the “Juneteenth” celebration of the end of slavery appeared in Montgomery County and other newspapers, on the Maryland ACLU website, and in other news aggregators.  In these largely identical stories, the organizers predicted 1000 marchers coming from the Baltimore-Washington area and beyond.  A “digital communications director” for the Maryland ACLU was frequently quoted about the march. Subsequent to the event, it was reported as far away as Pocatello, Idaho, all suggesting an orchestrated campaign going far beyond local residents.

Then on May 8, 2021 a legal team headed by the ACLU and the 560-lawyer international law firm of  Crowell and Moring filed suit to compel Talbot County to remove the Talbot Boys. They represented two plaintiffs, an attorney from the Talbot County Office of Public Defenders and the same president of the local NAACP, Richard Potter.  

On June 19 Easton was prepared for huge crowds, but an objective source reports about 200 marchers showed up. Examination of videos and panoramic photos posted on the MTM Facebook page confirm that number, and reveal that white marchers outnumbered African-American marchers by about 10-1.  The small total, despite what appears to be active recruiting of marchers from outside the County, suggests that if put to a vote, there would not be overwhelming support for Moving the memorial.  The even smaller number of African-American marchers suggests further that the memorial is not a major issue for that local community as a whole.  

Thus, perhaps anticipating their lack of widespread local support, the ACLU and NAACP in conjunction with some local activists willing to be named plaintiffs had a uniquely American backup plan – litigation. If you cannot win in a duly constituted legislature, turn to the courts to write new laws and extend Constitutional rights to embrace broader privileges. 

The lead attorney from Crowell and Moring explained the basis for the lawsuit:

“The Talbot Boys statue stands at the entrance to the courthouse—a place that serves a central role in ensuring fairness and delivering justice in our system of laws. With its Confederate soldier atop the pedestal staring down at all who enter the courthouse, it is an affront to all citizens of conscience, Black citizens especially. It was erected to intimidate and the county’s insistence that it remain only doubles down on that message of intimidation. The Confederacy was composed of traitors to the country and defenders of white supremacy, and monuments glorifying its racist cause cannot be maintained by governments consistent with the U.S. Constitution and other laws.”

The Maryland ACLU put out its own press release on the lawsuit, echoing his sentiments.  

Even granting the hyperbole that an attorney might use to advance his clients’ interests, this short statement is exceptional in the large number of facts relevant to Talbot County that it leaves out or distorts, mirroring as it does the words repeated numerous times by MTM supporters in local newspapers and Facebook pages. 

For a simple list:

1. The Talbot Boys memorial stands on the left side of the path to the Courthouse; the statue of Frederick Douglas stands on the right side.
2. As is lost on the opponents of the statue, the soldier is depicted in a posture of surrender, with furled flag on which southern stars are barely visible, and is facing the street, not the path.
3. Soldiers who fought for the Confederacy were never found guilty of treason; President Andrew Johnson pardonedall of them.  This was crucial in Maryland, because without those former Confederate soldiers it was impossible to reconstitute the state militia.
4. Talbot County had a unique history that leaves little room for the claim that its soldiers intended to defend white supremacy.  Examining historical records, family documents and the timing of enlistments from Talbot County in the Confederate Army reveals that most took place after Federal troops occupying Maryland had engaged in brutal suppression of civil liberties and Constitutional rights, including arresting judges.

The complaint filed by the ACLU and Crowell and Moring includes a recitation of past and current instances of racism and white supremacy, none having any direct connection to the Talbot Boys memorial.  Their apparent intention is to create an emotional response based on guilt by association: viz, a confederate flag was carried by rioters in the US Capitol on June 6, therefore the confederate flag carried by the statue in Easton is a threat to public safety (Complaint, ¶11).  

The heart of the case appears to be this: “a Black lawyer who has worked in the Easton Office of the Maryland Public Defender for the last decade, explained the effects she feels from a Confederate statue situated at the place she works…”  The lawsuit alleges that these subjective feelings of someone viewing the statue after having chosen to accept employment where the statue had been for ninety years make its presence “both unconstitutional and illegal under federal law and the laws of the State of Maryland.”

The very absurdity of the legal theories underpinning the complaint raises questions about its purpose.  At least one distinguished attorney has opined (here) that it is unwinnable in court.  But Talbot County is too small to have the resources to fight on its own against the ACLU, which in 2019 had over $160 million in annual revenues.  Crowell and Moring reports having 560 lawyers, which implies top line revenues of more than $1 million per lawyer or over $550 million annually.  The firm can afford to assign 6 lawyers, including 2 partners, to a pro bono case with no limit on hours.  In contrast, the entire Talbot County budget is $55 million in 2021.

Ironically, there is a sad parallel between this attack on local democratic government and the events of 1861 that were the reason why many of those named on the Talbot Boys base crossed the Chesapeake to fight with the Confederacy.

Several potential precedents from this lawsuit could be very attractive to those with an agenda of imposing progressive policies and values on local communities.  Many conservatives have argued for greater grassroots activity in local governments and particularly in school boards, to maintain their differences from Democrat-run cities where the 1619 project and questioning of gender is taught in schools, police are defunded and persecuted, and anti-racist ideologies imposed.  This has not escaped the notice of national progressive organizations and politicians, and this lawsuit could be the harbinger of widespread attempts to take over local governance through the courts.

The lawsuit leaves the County with no attractive alternatives.  

• It could attempt to make the suit moot, by unilaterally deciding to remove the statue.  Since the suit also mentions damages for the plaintiffs for past harm, that might not resolve the issue. 

• It could enter into settlement negotiations, which might lead to a compromise like the addition of a Union statue on the courthouse grounds, but that proposal has been around for a long time without gaining any support from the litigants. No matter what the agreement might be, it would be likely to result in a court order under which the court would supervise compliance with the agreement.

• It could try to find resources to defend against the lawsuit.

Either negotiating a settlement or losing in court could, in addition to burdening the County with compliance, open the door to far more mischief.  It would demonstrate the County’s vulnerability to lawsuits designed to force policy changes contrary to the wishes of voters or convictions of their elected representatives.  The wishes of progressive elements like those suing now are not confined to Confederate statues.  It is easy to imagine that the next lawsuit filed by deep-pocket progressives will be to compel adding BLM curriculum materials or indoctrination in LGBTQ+ beliefs about mutable genders to county schools. 

Next year the County Council must, under new Maryland law, appoint an Administrative Oversight Committee to handle all complaints about police officers.  Lawsuits to compel appointment of progressive, African-American or anti-police members are surely in the offing.  Compulsory training in white privilege and re-education to confess and correct racism would also be on the agenda for lawsuits.  If successful, any and all of these lawsuits could put the County’s affairs under the supervision of a distant Federal court, eliminating the ability of elected representatives to set local policy.   That should concern all citizens of the county, whether they want to move or preserve one particular memorial.

The precedent of a court-supervised settlement, or better yet a victory defining new constitutional rights to be free of any chance of encountering a disturbing sight, would have ramifications far beyond Talbot County.  It would encourage such plaintiffs to undertake such strong-arm tactics in other local jurisdictions where local governments and citizens who do not share their progressive agenda try to maintain traditional schools, effective police forces, and resist anti-racist re-education campaigns. 

Thus, the best option to my mind is to appeal for support from outside the County to mount an effective defense.  That may not be as costly as it might appear, since a Court could well grant a Motion to Dismiss at the outset or enter summary judgment against the plaintiffs after an appropriate amount of factual development.  But the County needs to be prepared to go the distance.

The Maryland Association of Counties has a clear interest in banding together to aid any individual county facing this threat, because it endangers all of them.  As Ben Franklin warned in 1754, “Join or Die.”  A progression of these lawsuits could be the end of local representative government as we know it.

The impending threat should also attract the interest of law firms or legal defense funds that put defense of our democratic way of life above the virtue-signaling of woke law firms who take Goliath’s part in these uneven fights.

I hope the County Council has the fortitude to heed Churchill:  “This is the lesson: never give in, never give in, never, never, never, never — in nothing, great or small, large or petty — never give in except to convictions of honour and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy.”  And to work as hard as Churchill did to find an ally with the overwhelming force needed to win.

BREAKING NEWS:

This afternoon, attorneys for the Talbot County Council filed a very strong motion to dismiss this lawsuit.  It is forceful, clearly stated, and abundantly supported with citations to relevant decisions and laws.

This is great news.  The County Council has taken a stand that Talbot County will not be pushed around by outside forces, and will make our own decisions about the Talbot Boys.  

The motion filed today concludes that :

The law governing this Complaint establishes Plaintiffs lack standing to bring any of the claims asserted. And, even if standing were not an issue, Plaintiffs have failed to state any claim upon which relief may be granted. For these reasons, the Complaint should be dismissed in its entirety.

A copy of the full motion to dismiss the lawsuit will be posted soon at www.preservetalbothistory.org.

Full disclosure: In addition to being an editor of the Chesapeake Observer, David Montgomery serves on the board of Preserve Talbot History.  All opinions expressed here are his own, and do not necessarily represent positions of Preserve Talbot History or the Chesapeake Observer.  He also warns, that he is not an attorney and nothing in the article should be construed as legal advice.