Attorney General to SC Supreme Court: take up lawsuit challenging state Heritage Act

The office of State Attorney General Alan Wilson is asking the S.C. Supreme Court to take up a lawsuit challenging the constitutionality of the state’s Heritage Act, a law enacted in 2000 to make it almost impossible to remove historic monuments.

“Given the State’s strong interest, we urge the Court to accept this action in its original jurisdiction,” wrote Robert Cook, Wilson’s top opinion writer, in a letter to the high court.

Ordinarily, it takes years for a lawsuit to go through various appeals and make it to the Supreme Court for a final ruling. But occasionally, in matters of high public interest where the disputes are primarily matters of law, the State Supreme Court accepts a lawsuit filed without making it go through appeals. That is called “original jurisdiction.”

In July, three prominent citizens — a Columbia city council member, a former state lawmaker and a survivor of the 2015 Charleston church massacre of nine Black parishioners by a white supremacist — filed a lawsuit challenging the Heritage Act and asking the high court to hear the case.

The lawsuit argues that the 20-year-old Heritage Act unlawfully requires future legislatures to meet an almost impossible standard of a two-thirds “super majority” in each chamber in order to remove war monuments and other memorials in public spaces.

The lawsuit also asserts that by assuming the power to approve changes in monuments in cities and counties, the state Legislature has taken over powers that properly belong to local governments under the state’s home rule laws. “This undermines the very essence of democracy,” the lawsuit said.

In an opinion earlier this summer, the attorney general’s office said that Heritage Act provision that requires a “super majority” to change monuments and names is likely unconstitutional. However, Wilson’s opinion concluded that the General Assembly does have the power to approve changes in historic monuments and other structures. Attorney General opinions are not binding.

The Attorney General’s office’s most recent letter underscores the urgency surrounding the matter.

”The Heritage Act touches virtually every community in the State. Historic monuments, memorials, the naming of streets and roads, all preserved by the Act, abound everywhere,” Cook’s letter said.

“Enacted in 2000, as part of the compromise to remove the Confederate Battle Flag from the Statehouse Dome, the Act is today constantly in the public eye. Many monuments, statues or memorials, erected long ago in a different time and place in the State’s history, such as the (Ben) Tillman Monument, are now highly controversial as many citizens feel offended by what a particular monument or memorial may symbolize,” Cook’s letter said.

“ While the governing body of a political subdivision, such as Orangeburg, or a state university, such as Clemson or USC, may wish to remove the monument or memorial, or rename a structure, their only recourse is a two-thirds vote of each house of the General Assembly,” the letter said.

(Although Cook’s letter mentioned the Tillman statue on State House grounds, there is an ongoing controversy over whether that statue is in fact covered by the Heritage Act — at least that part of the Act that requires a two-thirds majority in each chamber.

For one thing, the Tillman statue is on State House grounds, which are overseen by the Legislature, not local governments. For another, some argue that the Heritage Act’s language, which seeks to protect monuments to military figures and events as well as other specifically enumerated objects — streets, bridges, structures, parks and preserves — does not include the Tillman statue.)

In recent months, the death of George Floyd, a Black man who died while in custody of Minneapolis police, has heightened white awareness of longstanding African American grievances about discrimination and unfair treatment. A viral video of how Floyd died went viral on the Internet and sparked protests by whites as well as Blacks around the state, nation and world.

Those protests led to moves by Clemson and Winthrop universities and the University of South Carolina to try to do away with giving prominence to names on their campuses associated with white supremacy and the pre-Civil War slavery era.

Cook’s letter to the Supreme Court also asks permission to file a “friend of the court” brief, even though the Attorney General is not a named party to the lawsuit.

The plaintiffs are:

▪ Jennifer Pinckney, the widow of Clementa Pinckney, the state senator slain along with eight other African Americans in 2015 at Mother Emanuel AME Church by Dylann Roof, a white supremacist from Columbia who revered the Confederate flag. Convicted of the murders, he is now on federal death row.

▪ Howard Duvall, Columbia city council member, who is a member of the city’s Arts and Historic Preservation Committee.

▪ Kay Patterson is a former African American S.C. House and Senate member, long active in civil rights and social causes. Patterson has a historical marker memorializing his birthplace and accomplishments.

Defendants in the case are Gov. Henry McMaster, a Republican; SC Senate President Harvey Peeler, R-Cherokee; and House Speaker Jay Lucas, R-Darlington. They have until next week to file replies in the Supreme Court.

The lawsuit was filed by Columbia attorney Matthew Richardson and State Sen. Gerald Malloy, D-Darlington.

This story was originally published August 14, 2020 at 1:00 PM with the headline "Attorney General to SC Supreme Court: take up lawsuit challenging state Heritage Act."