Residents Want Virginia Supreme Court to Hear Lee Appeal

The afternoon sun illuminates the statue of Confederate General Robert E. Lee on Monument Ave in Richmond, Va., Monday, Oct. 19, 2020.

By Brian Carlton

October 30, 2020

Judge Marchant amends his order after a challenge from Attorney General Mark Herring.

RICHMOND-Before state officials can take down the last Confederate statue in Richmond, they may have one more legal battle to fight. Several Richmond residents filed a notice of appeal on Thursday, announcing they want the Virginia Supreme Court to weigh in on the case. 

The issue here involves a bronze statue of Robert E. Lee on Monument Avenue, one standing 21-feet-high and weighing 12 tons. According to state records, this is the last and the largest monument of its kind in Virginia. And one at the center of a legal battle now stretching into its fifth month. Some Monument Avenue residents filed a lawsuit when Gov. Northam announced plans to take it down in June. They claimed removing the statue would damage their property values and tax credits, as the area surrounding the statue is part of a National Historic Landmark District.

The group argued removing Lee’s statue is illegal, due to the language in the 1890 deed. This week, Richmond Circuit Court Judge W. Reilly Marchant rejected that argument.

A loss in local court

In his ruling, Marchant agreed the 1890 deed and the other documents were in fact restrictive covenants. The issue, he said, is that it doesn’t matter. Any covenant must not be contrary to public policy, he wrote. And the General Assembly sets public policy.

The Assembly, Marchant wrote, made public policy very clear on this issue during this fall’s special session. That’s when they passed House Bill 5005 and Senate Bill 5015. Halfway through those budget bills, there’s a specific line making it clear what lawmakers want done with the statue. 

“The Department of General Services, in accordance with the direction and instruction of the Governor, shall remove and store the Robert E. Lee Monument or any part thereof,” the bills say. 

The bills also repeal the Joint Resolution from 1889, which gave then-governor Phillip McKinney authority to accept the deed from the Lee Monument Association. 

“These acts of the General Assembly clearly indicate the current public policy of the General Assembly, and therefore the Commonwealth, to remove the Lee Monument from its current position on the state owned property on Monument Avenue,” Marchant wrote. 

What happens now?

As for the statue’s future, it will remain in Monument Avenue for now, after some additional legal battles this week. Marchant ruled on Tuesday that Gov. Northam had the legal authority to order the statue’s removal. However, due to the appeal, he suspended that ruling until the Supreme Court decides if they’ll hear the case.

That didn’t satisfy Virginia Attorney General Mark Herring, who challenged the suspension Thursday morning. In his motion to reconsider, Herring argued the court didn’t have the authority to keep the monument up while the appeal’s being considered.

“[The Virginia Code] does not authorize this Court to prohibit the Governor from removing the Lee statue during the pendency of a yet-to-be filed appeal,” Herring wrote.

As a result, Marchant changed Tuesday’s ruling. He fully restored the injunction put in place back in August, preventing anyone from removing the Lee statue. That injunction will remain in place until the Supreme Court makes a decision about the appeal. If they refuse to hear the case, the injunction will be dissolved. State officials can remove the statue at that point. If they agree to hear it, then the injunction remains until the Supreme Court issues a ruling.

There is no timeline for when the full appeal will be filed.

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