Pennsylvania Appeals Court Affirms That City Of Philadelphia Must Leave Statue Of Christopher Columbus In Marconi Plaza

By: Carl L. Engel

On December 9, 2022, the Pennsylvania Commonwealth Court, in the case In re Friends of Marconi Plaza, affirmed a trial court’s order that the City of Philadelphia must leave a statue of Christopher Columbus in Marconi Plaza, a park on Broad Street in South Philadelphia. The appellate court agreed with the trial court that the city had failed to follow its own regulations by providing the public with less than 90 days to give input on its proposal to remove the statue, and by failing to modify the proposal based on feedback received. Whether this decision marks an end to a drama that has been unfolding in the city’s news media for more than two years depends on whether the city has the political will to begin the process from scratch, so the full 90 days for public input may be provided.

The controversy over the Christopher Columbus statue began on June 13, 2020, during the protests that followed the killing of George Floyd by police officers in Minneapolis, Minnesota. On that day, residents gathered at the statue with “guns, baseball bats, golf clubs, and sticks” to “protect” the statue from perceived threats against it. Over the next several days, there were intermittent clashes between these residents and protesters who came to confront them. To ease tensions between the two groups, the City of Philadelphia covered the statue with a wooden box. The last reported conflict between residents and protestors was on June 23, 2020, a few days after the statue was covered.

On June 15, 2020, two days after the initial confrontation, Mayor Jim Kenney had directed the city’s Public Art Director to initiate the process for removing the statue from the park “as soon as possible.” In his letter to the director, Mayor Kenney suggested that Columbus’s act of “enslav[ing] indigenous people, and punish[ing] individuals who failed to meet his expected service by severing limbs, or in some cases, murder,” must be “accounted for when considering whether to erect or maintain a monument to this person.”

On June 24, 2020, the city’s Office of Arts began the process of removing the statue by beginning to collect input on the proposal from the public. On July 16, 2020, after 28 days of collecting feedback, it submitted an application to the city’s Historical Commission for the statue’s removal. The Historical Commission’s approval is required because, in 2017, the statue was designated a historical object. On July 24, 2020, after a six-hour Zoom hearing attended by more than 180 people, the Historical Commission approved the removal of the statue for its own protection and “to advance public safety.” As a condition, however, the Historical Commission directed that the statue must be kept in a secure location by a company experienced in preserving art.

The Friends of Marconi Plaza and several of its individual members appealed the decision to the city’s Department of Licenses and Inspections (“L&I”). After several days of hearings, L&I affirmed the decision of the Historical Commission. L&I reasoned that, based on letters from the Mayor and the Public Art Director, there was “credible evidence supporting a finding that the action was necessary to protect the public health and safety.” It found further that the Friends of Marconi Plaza and its members did not have standing to challenge the statue’s removal, because none of its individual members presented evidence of standing at the Historical Commission’s Zoom hearing.

The Friends of Marconi Plaza and its members appealed to the trial court, which, on August 17, 2021, reversed L&I’s decision. The trial court found that L&I had erred in denying them standing, because they consistently used and cared for the park, and are a recognized “friends” group of the Philadelphia Department of Parks and Recreation. The trial count found further that the Historical Commission’s plan to protect the statue was insufficient, because the two-page plan was “unauthenticated, unattributed, and cursory,” and the plan conceded that there was a “very good chance that parts of the sculpture may crack when it is removed” even if it were followed. With respect to public safety, the trial court observed that civil unrest at the statue had ended ten days after it had begun, and no probative or substantial evidence of ongoing threats to public safety was presented to the Historical Commission. Finally, the trial court found that the Historical Commission lacked jurisdiction to render its decision, because the Office of Arts had collected public input for only 28 days, even though its own regulations require a period of no less than 90 days. The City of Philadelphia appealed the trial court’s decision to the Commonwealth Court.

On December 9, 2022, the Commonwealth Court affirmed the trial court’s decision. As an initial matter, it agreed with the trial court that the Friends of Marconi Plaza and its members had standing to bring their appeal. Although it recognized that people generally do not have standing to bring court actions against the city based solely on their status as taxpayers, the Friends of Marconi Plaza and its members had demonstrated more than that. Specifically, the court found that the group and its members had maintained and beautified the park, including the statues therein, had participated in events there, and simply lived nearby. Therefore, they had a “substantial, direct and immediate interest in the outcome of the litigation,” and the right to bring their appeal.

The Commonwealth Court then found that the Historical Commission lacked jurisdiction to order the removal of the statue, because the Office of Arts had not collected public input for the full 90 days required by its regulations. The court reasoned that the regulations required the Public Art Director to modify the proposal based on the input received, and this could not be done in the 28 days provided. The court further observed that alternatives to removal, such as surveillance cameras or a plexiglass case, could have been considered during this process, but were not. The court held that the only remedy was to start the public-input period over again by filing a new application with the Historical Commission. It did not address the trial court’s finding regarding the absence of an ongoing threat to public safety, or its observations regarding the inadequacy of the plan for preserving the statue.

It remains to be seen how the City of Philadelphia will respond to the Commonwealth Court’s decision. While an appeal to the Pennsylvania Supreme Court is possible, the basis for the Commonwealth Court’s decision does not provide much room for the city to argue. The Office of Arts’s regulations require the city to provide 90 days for public input on the proposal to remove the statue, and that simply was not done. Therefore, the city is faced with the choice of either abandoning its campaign to remove the statue altogether, or starting again from the beginning. Until that decision is made, it cannot be said whether this saga has reached its conclusion, or whether we are only halfway there.