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UPDATED: Judge dismisses Lee statue lawsuit, but issues injunction in separate case, barring removal
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UPDATED: Judge dismisses Lee statue lawsuit, but issues injunction in separate case, barring removal

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Visitors check out memorials at Robert E. Lee statue on Monument Avenue, Richmond, on June 6, 2020.

Virginia still can't take down the Robert E. Lee statue on Monument Avenue, a Richmond judge ruled Monday.

Richmond Circuit Court Judge W. Reilly Marchant dismissed a complaint filed by William C. Gregory, a descendant of the signatories of the 1890 deed that signed over to Virginia the land the statue stands on. That lawsuit had resulted in two injunctions preventing the state from taking down the best-known Confederate symbol in the former capital of the Confederacy.

In a separate ruling in a different case, Marchant issued a 90-day injunction that continues to block Gov. Ralph Northam's plans to take the Lee statue down while the case is being litigated.

"Issuing the temporary injunction would merely maintain the status quo," Marchant wrote in a 14-page opinion. "However, refusing to issue the temporary injunction might well lead to the removal of the Lee Monument during the pendency of the litigation, and before a full hearing, which clearly would not be in the public interest. At this point in time, the public interest does weigh in favor of the issuance of a temporary injunction."

That case, filed by five residents of the Monument Avenue Historic District, is now the key cog in the fight over the statue's future, which has gained increased attention since the May killing of George Floyd in the custody of Minneapolis police.

On June 4 Northam ordered the Confederate tribute taken down as soon as possible, but the legal challenges keep it standing. Protesters have gathered at the statue for much of the past two months.

Attorney General Mark Herring has filed a motion to dismiss the case brought by the residents, a spokeswoman said. That filing is pending.

"Governor Northam appreciates the dismissal of the Gregory case, and looks forward to another victory in court as soon as possible," Northam spokeswoman Alena Yarmosky said in a statement. "This statue will come down — and Virginia will be the better for it."

Asked last week if the Department of General Services, the state agency in charge of removal, has more site work to do around the statue or if it's prepared to take it down immediately should the injunction be lifted, agency spokeswoman Dena Potter said, "We'll be prepared to proceed once the way is clear."

The path got somewhat clearer Monday with the dismissal of the Gregory case.

Judge Bradley B. Cavedo, who issued the initial injunctions in June before recusing himself in the case, also had dismissed the initial filing from Gregory. Marchant, the new judge, raised issue of Gregory's standing in dismissing the amended complaint and dissolving an injunction that was set to run until Aug. 23.

"(Gregory) has articulated no substantial legal right sufficient for the Court to grant a declaratory judgment," Marchant wrote in a 13-page opinion.

An attorney for Gregory declined to comment, citing pending litigation.

Still pending is the case filed by the five residents of the historic district, including Helen Marie Taylor and Evan Morgan Massey, who are also suing Richmond Mayor Levar Stoney and the Richmond City Council over its removal of city-owned Confederate iconography last month. The case is the third filed by residents of the famous street, with the first two being withdrawn in federal and state court, respectively.

Their latest challenge, filed July 21, argues that the 1889 joint resolution authorizing Gov. P.W. McKinney to accept the monument on behalf of Virginia binds the state to keep it up. That resolution says the state must hold the statue, pedestal and ground around it "perpetually sacred," a similar statement to the one made in the 1890 deed at the center of the Gregory case. (McKinney was also president of the Lee Monument Association.)

The complaint says taking down the statue would decrease property values and hurt tax incentives if the National Historic Landmark designation were to be removed. It makes the argument that a section of state code prohibits the monument's removal. Northam, in his June 4 removal order, cited the subsection right before the one at issue in the lawsuit.

The lawsuit also claims the governor doesn't have the power to take the statue down, calling it an "encroachment ... on the legislative prerogative, responsibility and power of the General Assembly." Northam and state officials have extensively disputed the claim that he doesn't have the power.

"Attorney General Herring remains committed to ensuring this divisive, antiquated relic is removed as soon as possible," Herring spokeswoman Charlotte Gomer said in a statement Monday.

A hearing in the residents' case has not been set, according to online court records.

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