Lee Statue’s Future Still Undecided After Last-Minute Appeal

Days before the deadline, Richmond residents appealed the circuit court’s October decision.

RICHMOND-The fences went up around Richmond’s Robert E. Lee statue Monday. Virginia’s Department of General Services said the goal was to keep people safe while they prepared to remove Lee’s image. However, the monument will remain standing for at least a few more weeks, as everyone waits to hear from the Supreme Court of Virginia. 

A group of Richmond residents filed an appeal Monday, asking the Virginia Supreme Court to keep the statue in its current location. This is the same case Richmond Circuit Court Judge W. Reilly Marchant shot down in October. Marchant said the state could remove Lee’s statue, but only after the Virginia Supreme Court decided if they would hear an appeal. No appeal came, but state officials still had to wait until the deadline before moving the statue. Now, right before the three month period expires January 27, Helen Taylor, Evan Massey, Janey Heltzel, George Hostetler and John-Lawrence Smith have asked Virginia’s top court to take a look at their case. 

The situation involves a bronze statue of Lee in Marcus-David Peters Circle. It stands 21 ft. tall and weighs 12 tons. Based on state records, this is the last and largest monument of its kind in Virginia. It’s also the one that’s caused the most legal challenges over its removal. 

How Did We Get Here? 

In June, Gov. Ralph Northam called the statue a racist symbol, ordering it to be removed. In response, Taylor, Massey, Heltzel, Hostetler and Smith filed a lawsuit, attempting to stop the memorial’s removal. They argued the federal government designates Monument Avenue and the surrounding area as a National Historic Landmark District. Without the statue, they were afraid the status would go away too. That means each homeowner could lose “favorable tax treatment” and see property values drop. 

Here’s where the legal argument came into play. The Monument Avenue residents argued Northam didn’t legally have the power to remove the statue. Doing that, they said, would violate the agreement reached 131 years ago. When the General Assembly accepted a transfer of property in 1889, they agreed to several restrictive covenants in the deeds, the group’s attorneys argued. 

You Can’t Enforce the Lee Covenant

Marchant agreed that the 1890 deed and the other documents were in fact restrictive covenants. The issue, he said, is that it doesn’t matter. 

“The Virginia Supreme Court has long held that in order to enforce deed restrictive covenants, such enforcement must not be contrary to public policy,” he wrote. “Nor should conditions have so radically changed as to practically destroy the original purposes of the covenant.” 

The Virginia Supreme Court and Virginia Court of Appeals have long said it’s the General Assembly, not the court system, that determines public policy, Marchant added. And, he pointed out, they 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. 

RELATED: Judge Rules State Can Tear Down Statue

What Does The Lee Appeal Say? 

The appeal is basically a rehash of the same arguments presented to the circuit court. The Assembly allocated funding to remove the statue during its special session last fall. The group argues that since the main focus of the session was supposed to be COVID-19 relief, then the budget addition was illegal. Marchant also addressed this in his Oct. 27 ruling, saying the group didn’t present any evidence to back up their claim.  

So now everyone continues to wait. If the Supreme Court decides to hear the case, then the monument has to stay up until a ruling is handed down. If they refuse, then the state can tear it down. 

Meanwhile, the monument and the area around it have been transformed over the last seven months. Protests continue to be held in the Circle, with a community growing up around it. The giant concrete pedestal of the statue is now covered by colorful and constantly changing graffiti, many of the messages profanely denouncing police and others demanding an end to systemic racism and inequality.A recent piece in The New York Times Style Magazine included the statue in its current state among a list of 25 of the “most influential works of American protest art since World War II.”

Brian Carlton is Dogwood’s managing editor. You can reach him at [email protected].