Virginia Isn't Bound by 1890 Deed to Perpetually Display Robert E. Lee Monument

"Governor McKinney had no power to contract away the Commonwealth's essential power of freedom of government speech in perpetuity by simply signing the 1890 Deed."

Today's Virginia Supreme Court decision in Taylor v. Northam (unanimous opinion by Judge Bernard Goodwyn) deals with an 1890 deed, which conveyed a Robert E. Lee monument to the State, with the provision that,

The State of Virginia, party of the third part acting by and through the Governor of the Commonwealth and pursuant to the terms and provisions of the [1889 Joint Resolution] executes this instrument in token of her acceptance of the gift and of her guarantee that she will hold [the Lee Monument and the Circle] perpetually sacred to the Monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it.

In 2020, Governor Ralph Northam decided to remove the Lee Monument from the donated land, and plaintiffs objected. The court concluded, in part:

The merits of the arguments for and against the retention of the Lee Monument in its present location are for the political branches to consider. Our function as a Court is to address the legal claims before us. The essence of our republican form of government is for the sovereign people to elect representatives, who then chart the public policy of the Commonwealth or of the Nation. Democracy is inherently dynamic. Values change and public policy changes too.

The Government of the Commonwealth is entitled to select the views that it supports and the values that it wants to express. The Taylor Plaintiffs erroneously assert that the Commonwealth is perpetually bound to display the Lee Monument because of the 1887 Deed, the 1890 Deed, and the 1889 Joint Resolution.

A restrictive covenant against the government is unreasonable if it compels the government to contract away, abridge, or weaken any sovereign right because such a restrictive covenant would interfere with the interest of the public. "[T]he State cannot barter away, or in any manner abridge or weaken, any of those essential powers which are inherent in all governments, and the exercise of which in full vigor is important to the well-being of organized society." "[C]ontracts to that end are void upon general principles," and they cannot be saved from invalidity by the constitutional prohibition against laws that impair the obligation of contracts.

Governor McKinney had no power to contract away the Commonwealth's essential power of freedom of government speech in perpetuity by simply signing the 1890 Deed. Similarly, the General Assembly of 1889 had no authority to perpetually bind future administrations' exercise of government speech through the simple expedient of a joint resolution authorizing the 1890 Deed. The Commonwealth has the power to cease from engaging in a form of government speech when the message conveyed by the expression changes into a message that the Commonwealth does not support, even if some members of the citizenry disagree because, ultimately, the check on the Commonwealth's government speech must be the electoral process, not the contrary beliefs of a portion of the citizenry, or of a nineteenth-century governor and legislature.

Therefore, any restrictive covenant purportedly created through the 1890 Deed, which would prevent the Commonwealth from moving a monument owned by the Commonwealth and on property owned by the Commonwealth is unenforceable because, at its core, that private property interest is the product of a nineteenth-century attempt to barter away the free exercise of government speech regarding the Lee Monument in perpetuity.

The government's right to free speech is an essential power inherent in all governments, and that agreement, entered by Governor McKinney signing the 1890 Deed as authorized by the General Assembly, is unenforceable. The circuit court also did not err in holding that any restrictive covenants created by the 1887 Deed or the 1890 Deed, as applied to the Commonwealth, are unenforceable because they contradict current public policy and are unreasonable, even without considering the effect of the 2020 Budget Amendment on the enforceability of those covenants….

Seems right to me.

Comments

[DaveM]

Two questions:

1. Would it have mattered if there was a time limit? "The State shall take care of it for at least 50 years..." I get that you can't encumber a future administration in perpetuity, that doesn't even make sense as a practical matter.

2. Can the plaintiffs demand the return of the memorial, on the grounds that the previous contract terms have not been honored?

[Bored Lawyer]

"2. Can the plaintiffs demand the return of the memorial, on the grounds that the previous contract terms have not been honored?"

That to me is the crux. Maybe the governor of Virginia can't sign away the Commonwealth's right to speak its mind. But nor can he steal someone's land or take it on false pretenses. The donor's heirs should now demand it back.

[DaivdBehar]

I would like to buy the statue, especially if gigantic. I would like to place it on my property in Lower Merion, 70% Democrat traitors to this country. Those dirty cheaters put Biden over the top, in PA at 3 AM, on Wednesday after election day.

[Formerly Known as Stash]

On a reversion, the answer is no. At common law, a conveyance and a contract are two very different things. Generally, covenants made with a conveyance are deemed independent of the conveyance, absent an express term. They are enforced like any contract, that is, by collecting damages or by specific performance. Here, there is no express term that violation of the "guarantee" would result in a reversion of the property to the grantor.

More to the point, perhaps, is that the covenant is unenforceable.
Consider, for example, the very common deed covenants that prevented the buyer from selling to Blacks, Catholics and Jews. That covenant could be deemed unenforceable without creating a reversion the property to the seller. I note that generally restrictive covenants are disfavored as "repugnant to the fee"--that is, inconsistent with the attributes of ownership.

I note that in contracts, like statutes (see ACA litigation), when there is an invalid or unenforceable term, there is a question whether the provision is "severable" from the rest of the transaction. Many contracts contain severability clauses, indicating that in case of invalidity of a particular provision the rest of the contract will remain in effect. That question does not arise with regard to a covenant made in conjunction with a conveyance. For conveyances the common law law rule is essentially no take-backs without an express term. And, on the equity side: "Equity abhors a forfeiture." It would have been easy to say that "breach of this provision shall result in a reversion of the property" to the grantor. The lack of such a term precludes the remedy.

So even if the covenant had been enforceable, its violation could not result in a reversion to the donor. The only remedy was an injunction, which was denied because the provision was unenforceable. If there had been a time limit, it might, as a practical matter, have been enforceable, particularly during, say the first fifty years of its existence. But, of course, there was no need to enforce it during that period.

[StellaLink_the dog]

Mostly my thoughts as well reference enforceability of the covenants. Also, even if it were possible that a violation of the covenants would result in "reversion of the property to the grantor," exactly who would that be? Heirs of the Allen estate, perhaps, but none of the plaintiffs are heirs; they are current owners of property claiming a right to benefit from the covenants, not heirs of the grantor estate. If somebody lives in a development with enforceable covenants and a neighbor violates those covenants causing harm, the harmed neighbor doesn't get ownership of the violator's property. Is this not correct?

[Brett Bellmore]

Indeed, if the terms of the conveyance are legally invalid, shouldn't they have to return both land and statue?

[Formerly Known as Stash]

See my comment above.

[Cal Cetín]

Sounds fair to me. Otherwise we'd get stuck with Lee monuments, Sanger monuments, etc.

[Sebastian Cremmington]

A positive thing to come out of the absurd position that once a monument is erected it is sacrosanct and must remain at that exact location in perpetuity…is that George P Bush wanted to move the Alamo memorial statue a few hundred feet as part of the Alamo redevelopment and the nuts actually were intellectually honest and so they opposed Bush!?! So hopefully his political career will soon be over. Btw, apparently Bush’s law license has been inactive for years and now he is running for AG…his sense of entitlement (that he is entitled to a political career) is mind boggling.

[Mark Leen]

"[T]hat private property interest is the product of a nineteenth-century attempt to barter away the free exercise of government speech regarding the Lee Monument in perpetuity." What about non-disclosure agreements? Non-disparagement clauses?

[Greg J]

Or government purchase of land? Of government sale of land / other property?

This is yet another garbage "because we say so" ruling

[Krayt]

I have no love of statues like this, but far less love for situational ethics, the high valuation of principles when they support your already-decided position, and the pooh poohing of them when they don't.

These are smoke and mirror power grabs which are the type of thing free people need to keep an eye on.

This is another "we love democracy until we don't!" ruling. Today, they love it. Tomorrow, off to the courts to overturn it. Next day, love it again.

In introductory English writing in college, the thesis, antithesis, synthesis dialectic years later became an obvious intellectual fraud because it orients around this principle. It is, however, effective rhetorical style.

[Formerly Known as Stash]

Actually it is grounded in a few hundred years of common law. Restrictive covenants are disfavored in the law because they are "repugnant to the fee" and will not be enforced when contrary to public policy. See, e.g., Munroe v. Hall, 1 S.E. 651 (N.C. 1887) (“it is repugnant to the fee -simple estate previously conveyed...and is therefore simply void”)Please provide the citations to the contrary. This is not an English class, it is the English common law.

[Formerly Known as Stash]

I doubt very much that a clause put into the donation of a monument could require that the government "shall never disparage policy X" or would to never disclose the terms of the donation, contrary to public policy.

[FourteenFour]

Just put it on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.”

[Cal Cetín]

Heh, heh...how many people will get that reference? Lots, I hope.

[A nerdy Fred]

Good to hear from someone who relishes a classic!

That, however, would not comply with the language
"she will hold [the Lee Monument and the Circle] perpetually sacred to the Monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it."

That is unenforceable, says the court, and Professor Volokh agrees. But even if it were enforceable, then wouldn't Virginia be in compliance if they moved the statue to a museum?

[Brett Bellmore]

Wouldn't they have to move the Circle to a museum, too?

Anyway, the whole point of taking it down is exactly to disrespect it; Violating the terms of the agreement is central to their aim here, they're not going to put it on display in a museum if they can avoid it.

Maybe they should make a gift of it to Stone Mountain.

[Bob from Ohio]

Governments don't have rights, the people do.

So much for contract and property rights in Virginia. If fashion changes, you lose.

[Cal Cetín]

Why, it's statue-tory rape!

(I've been waiting for a chance to use that one)

But seriously, can it really be true that one generation can bind all others? Even if the statue's location were embodied in the state constitution, the legislature and people could overrule that provision. Would you make a contract where the people didn't even vote, superior to a state constitution?

[Cal Cetín]

Assume they chartered a corporation to manage the statue with a provisio in the charter that the statue was to be perpetual?

Then they'd still have to deal with this reservation of power in the VA constitution:

"Article IX. Corporations
Section 6. Corporations subject to general laws
The creation of corporations, and the extension and amendment of charters whether heretofore or hereafter granted, shall be provided for by general law, and no charter shall be granted, amended, or extended by special act, nor shall authority in such matters be conferred upon any tribunal or officer, except to ascertain whether the applicants have, by complying with the requirements of the law, entitled themselves to the charter, amendment, or extension applied for and to issue or refuse the same accordingly. Such general laws may be amended, repealed, or modified by the General Assembly. Every corporation chartered in this Commonwealth shall be deemed to hold its charter and all amendments thereof under the provisions of, and subject to all the requirements, terms, and conditions of, this Constitution and any laws passed in pursuance thereof. The police power of the Commonwealth to regulate the affairs of corporations, the same as individuals, shall never be abridged."

https://law.lis.virginia.gov/constitution/article9/section6/

In such a climate, would their public policy really allow a perpetual, unamendable contract or grant?

[Krayt]

Five years ago, if the descendants of whoever walked onto the land and unilaterally took it back, violating the contract, would the state have wasted a second arresting them?

It is more important, not less, to hold the power slingers to account, as they perpetually chomp at the Trix cereal to violate the girders licensing their power.

At a minimum, since the state wants to violate the contract, or maybe declare it void all along, give back the statue and land, if it applies.

Stopping the power hungry from growing their power at their own whim is in everybody's interest.

I see no need the statue must remain up, only that if the government doesn't want it anymore, give it back.

Ford gave land for the feds to put up a VA hospital. The feds shut it down some years back, tore down the hospital, and gave the land back. Slight twist, that was part of the contract.

[StellaLink_the dog]

"At a minimum, since the state wants to violate the contract, or maybe declare it void all along, give back the statue and land, if it applies."

Give it back to whom? No party to this suit, as far as I can tell, is an heir to the Allen estate. Buying property from someone may give you a right to benefit from covenants, but surely it wouldn't give you rights of inheritance, would it?

[Will Nonya]

"can it really be true that one generation can bind all others?"

Seems like the same argument those that think the Constitution should be invalided because it was written by white .en centuries ago.

I don't give a shit about the statue but invalidating an agreement made with the government shouldn't be something done by executive fiat. At the very least it should have been a legislative process with redress to anyone with a stake in the original agreement. You didn't see them give the land back to the descendants, you just saw them decide they didn't want to uphold their agreement any more, no backsies.

[Rossami]

re: "can it really be true that one generation can bind all others?"

Yes. In fact, the Constitution explicitly requires it. If the first generation runs up a government debt, subsequent generations are nevertheless required to honor it and (eventually, we hope) repay it.

[Cal Cetín]

In theory, absolutely. It's one of those things I'll believe when I see.

[Cal Cetín]

In theory, absolutely. It's one of those things I'll believe when I see.

[DewbieDewbieDoo]

You can say that again.

[Bored Lawyer]

"and (eventually, we hope) repay it."

BWAHAHAHAHAHAHAHAHAHA

Seriously, do you think or government debt is every going to be paid back?

Here is a corker: many are concerned about how China is coming to dominate the world, including the United States. I share that view. However, in the last several decades, we have financed massive debt through borrowing, chiefly from China. If you are concerned about Chinese dominance, perhaps balancing the budget and stopping further indebtedness to them should be a priority. Yet no one on any side or end of the political spectrum even wants to discuss it.

[Brett Bellmore]

Trying to actually do anything about it gets you outbid in buying votes, so not trying to do anything about it is a precondition for doing anything else.

Trump was actually trying to do something: Adjusting our relations so that when the crash came we'd be in a better position to survive it, on account of being more self-sufficient industrially, and an energy exporter: If you can't continue borrowing, you really need to have something to sell, and to minimize what you can't avoid buying.

All that got shifted into reverse when Biden took office, of course: The Chinese don't want us to survive the coming crash.

[Krayt]

This is what inflation is for. The political class' wealth goes up as they toss around trillions and get in the way of business. Inflation means nothing to them. Only spending to get elected, and then the graft associated with it, which only accrues to those who manage it.

So inflating away your savings is irrelevant. Inflating away their own is irrelevant because the graft tops it off many, many times over.

[Charles Epperson]

No ot does not. The Constitution even has multiple methods to change or invalidate any portion of it except the number aof Senators per State, but in the vein of replacing things the adoption of the US Constitution was in direct violation of the Articles of Confederation.

"Article XIII. Every State shall abide by the determinations of the united states, in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards con-firmed by the legislatures of every state."

In reality you cannot bind the future ever.

[Brett Bellmore]

You can even change the number of Senators; You just have to do it as a two step process, first you amend Article V to permit it, which Article V conveniently doesn't prohibit.

[Purple Martin]

And actually, the Articles of Confederation allowed member-states to leave, which all 13 eventually did.

[Bored Lawyer]

"Why, it’s statue-tory rape!"

I salute your punitude.

[Krayt]

He deserves a pedestal for that one!

[LawTalkingGuy]

Being able to exercise control over people and property in perpetuity is one of the more well known and ancient ideas in contract and property law. Contractual restrictions on trade need to have reasonable time limits. There is a well known rule against perpetuities in granting future interests on property that will vest well after the grantor has died. Restraints on alienation are disfavored. Restrictive covenants that run with the land are okay in part because a would be purchaser will have notice of the restrictions and can take that into account when making a decision.

So I don’t see why in this context it’s really such an affront to contract or property rights that people who didn’t even sign the thing can force a government to carry a message without limitation forever.

[Krayt]

The people didn't personally sign it. They signed it on behalf of the government, in their official capacity.

The statue shouldn't have to remain, but give it and maybe the land back, if that was part of the deal.

[Formerly Known as Stash]

Bob, you are just wrong on the law. This is all about property rights. Restrictive covenants that seek to bind an owner regarding the use or alienation of property are disfavored and have been invalidated for hundreds of years. You can disagree as to policy or on an abstract notion of fairness, but the legal issue was not close. Even EV doesn't do his "on the one hand, and on the other." I haven't seen a single citation to any authority in a single comment railing against the ruling as lawless. What court has ruled differently?

[The Turtle Dove]

Holding any government contract void ab initio if it compels government speech or restricts the speech rights of the government was arguably at least a bridge too far along the line of ten thousand bridges, bridge-tunnels, and land-bridges between the facts of this case and that area of law. We are going to need these laws for other things, you know.

Mr. D.

[Formerly Known as Stash]

It was not held void ab initio, it was held unenforceable. Two completely different things.

[The Turtle Dove]

Admittedly not in so many words, but I think this language would justify a pin-cite for that proposition:

"A restrictive covenant against the government is unreasonable if it compels the government to contract away, abridge, or weaken any sovereign right because such a restrictive covenant would interfere with the interest of the public. ..... “[C]ontracts to that end are void upon general principles,” and they cannot be saved from invalidity by the constitutional prohibition against laws that impair the obligation of contracts. Id "

Mr. D.

[Formerly Known as Stash]

Courts can be pretty loose when using the word "void" and often do not specify whether the contract is void or voidable. Once "voided" or declared unenforceable a contract is accurately described as "void." Here the transaction--the donation of land to the state--was not illegal or against public policy. Only the separate covenant was. It would seem that so long as the covenant was consistent with public policy, there was nothing wrong with complying with it--it was only when it became contrary to public policy i.e. "would interfere with the interest of the public" that it became void.

[Rev. Arthur L. Kirkland]

Bigots lose again in modern America. The tide of the American culture war is strong, durable, and good.

[DaivdBehar]

Artie, when does the culture reach your replacement with a diverse?

[Krayt]

That they lose is cool. That they do so in a possibly dubious manner, especially one that will be ignored in other situations going forward, is in nobody's interest, bigot or anti-bigot.

The problem lo these centuries has been the abuse of the power, not who had the honor of abusing it. Times change, and may again, especially if the historically ignorant, under the thumb of power abuse for centuries, now fancies it safe to let it loose because they control it.

There's no historical evidence democracy can safely wield dictatorial powers long term, and government growing its power at its own whim, because it won a simple majority, is one such item.

Indeed, history shows freedom is commonly lost because a neo-dictator convinced them to grant massive power expansion for an emergency.

So, make bigots lose, but in a controlled, constitutional manner

[Formerly Known as Stash]

It is not dubious. Citations contra? It will not be ignored because it is the compelled conclusion based on hundreds of years of common law. If the "historically ignorant" are the problem, physician, heal thyself. If the statue was MLK, the legal conclusion would be the same. You wanna argue with the policy, fine. But don't pretend it in any way offends the law or the constitution.

[Will Nonya]

So, if something can be deemed as speach then that overrides any contractual aspects and can therefore be changed at whim?

Seems like the wrong precedent. I wonder what other once revered artifacts which do not match modern political sensibilities could be swept aside. How could a political body sign a document and bind others to that view in perpetuity?

I suppose we should know that an agreement with the government is non-binding on their end but as long as we allow them to back up their speech with guns all is well then.

[Rev. Arthur L. Kirkland]

Why not express happiness and gratitude because a misguided commemoration of a traitor, loser, and bigot will no longer afflict Americans' eyes?

[Bored Lawyer]

If one is an unprincipled lout like you, sure.

If one believes that principles should be upheld even when you don't like the result, not.

Someone gave the land on condition Lee be honored. If Virginia no longer wants to honor Lee (a position I agree with), it should give back the land. The old saying about having the cake and eating it springs to mind.

[Rev. Arthur L. Kirkland]

What is the principle being violated here, you bigoted, gape-jawed clinger?

I tentatively would be fine with returning the land (figuring the proper recipient might be a stretch) . . . without the bigot statue, of course.

[DaveM]

I think of all the character flaws I find irritating about the left, it's their lack of imagination that's the worst. They are seemingly unable to even conceive of someone who is "legitimately "different -- that is, someone whose opinions, although not aligned with their own, are equally valid because, after all, they're just opinions.

Where matters of taste are concerned, there can be no debate. The Romans figured that out thousands of years ago. But your modern leftist is like some Pavlovian experimental animal, primed and ready to react in exactly the same way each and every time their bell is rung.

It's the same responses, the same words, over and over, without variation.

[Formerly Known as Stash]

It seems you are not an attorney. Here the narrow question is whether a restrictive covenant in a deed is unenforceable as against public policy. This is an ancient doctrine. Your reasons for changing hundreds of years of settled law are....?

[Aladdin's Carpet]

So I dint know enough to agree or disagree with this, but "A restrictive covenant against the government is unreasonable if it compels the government to contract away, abridge, or weaken any sovereign right because such a restrictive covenant would interfere with the interest of the public" dont ... constitutions do this? And certainly the government can sign contracts with people, and grant procedures if the government violates said contracts?

So what is the issue with saying, you must maintain this for 200 years? Maybe not indefinite? Ok, so what is the time limit exactly?

[Rossami]

So if the Deed is unenforceable, they are returning the property? And paying interest for their wrongful use for the past century or so?

The court got this one wrong. Contracts are binding, even when they are signed by the government. If the government wanted to change the contract, they had alternatives. The court simply abrogating one side of the contract is not an approach that furthers liberty or holds governments accountable.

[Leaf's Chauffeur]

Meant my comment below to reply to yours. See Illinois Central. The government cannot contract away everything.

[Bored Lawyer]

I agree, except for the interest. The statue of Lee was there for all these years, so the donor's wishes were honored. Take down the statue, and you must return the land.

[Formerly Known as Stash]

Too bored to check the law? Breach of a covenant, even an enforceable one, does not work forfeiture or result in a reversion, absent an express provision, and sometimes not even then. Sue the draftsman for malpractice. Only remedy is injunction or damages.

[Leaf's Chauffeur]

Basically just Illinois Central Railroad Co. v. State of Illinois; but on crack... I think the idea is correct.

[Cal Cetín]

"on crack"

Hey, I just thought of a great idea for paying off the national debt!

[dwshelf]

Sort of like a minor. Or a renter. Can't really do business with them, because the contract is enforceable only in one direction.

[Longtobefree]

So who do I see about buying Yellowstone and putting up toll booths?
Solar powered toll booths, of course, with a significant surcharge depending on political affiliation and net worth.

[Greg J]

Democracy is inherently dynamic. Values change and public policy changes too.

Laws change, too, when you pass a new one. "In 2020, Governor Ralph Northam decided" doesn't sound like "the State of VA passed a new law."

But, for the Left, Executive Power is infinite whenever their side is in charge.

A restrictive covenant against the government is unreasonable if it compels the government to contract away, abridge, or weaken any sovereign right because such a restrictive covenant would interfere with the interest of the public

What a pile of bullshit.

Oooh, the "interest of the public"! When is something an "interest of the public"? Why, when a sleazy black robed thug decides it is, because it accords with his or her personal political beliefs.

Did the State government get something in exchange for making that commitment? Were they provided a statue for free, in exchange for agreeing to pay for it?

Then the State needs to pay for that statue, because if you agree to be bound by rule X in exchange for consideration Y, then stopping to follow rule X means you have to refund consideration Y.

And no, that doesn't mean you give the statue back, that means you pay back what it cost to make the statue in the first place. In inflation adjusted dollars.

Which means you need an appropriation passed by the State Legislature, and signed by the Governor, before you get to make that change.

At least, you do in a place run under the rule of law, rather than the rule of amoral scum bags

[Ben of Houston]

Please note that the 1889 joint resolution was not a law either, so it's appears that the governor actually does have the authority to remove statues. (I presume the point would have been brought up if he did not)

I will agree that the governor should at least have requested a resolution from the legislature to overturn of the 1889 joint resolution, to stamp it beyond doubt.

Therefore, the only real question is the contract. A contract can't be binding and eternal so that others cannot change it. As others have said, even constitutions can be replaced. Now, I will agree that the statue should be returned (or at least offered) to the heirs of the original donor as the contract needs to be voided in its entirety, not just in part. However, I highly suspect they do not want it.

[bevis the lumberjack]

No, what should be returned (or condemned and paid for) is the land. Otherwise Virginia just ran a long lived bait and switch.

Also neat to see that Northam has joined the “states’ rights” crowd.

[Formerly Known as Stash]

It is funny that people who claim to desire the "rule of law" have no idea what the law is, and have no inclination to educate themselves. If the law here is so obvious, please provide a citation supporting your position. Other than sputtering and railing against government in general, I have yet to see an actual legal argument why the opinion is wrong. Shouting B.S. is not an argument.

[ReaderY]

I don’t understand this case. It seems to me to be at keast arguable that heirs of the original landholders would have a right to get the land back, since the statue was a condition of granting the land. If Virginia wants the land without the statue, it would have to pay just compensation.

But the plaintiffs aren’t asking for the land back, and they aren’t asking for compensation. They are arguing they the governor and legislature are constitutionally prohibited from changing the original terms.

This seems a weak argument. Deeds and grants are contracts. Virginia may be subject to consequences for not performing under its contract, including having to pay for the right to use the land for any purpose it wants. But contracts are never absolute prohibitions.

[Voize of Reazon]

Exactly. Anybody can breach a contract as long as they are willing to pay the damages due, Virginia should have the same ability, no more nor less.

[y81]

That's not true, in some cases the non-breaching party is entitled to specific performance, which is what the plaintiffs are seeking here. It's a complex field, but in general covenants running with the land can be specifically enforced.

[Voize of Reazon]

In some cases, often concerning easements benefiting adjoining land or with reciprocal negative restrictions in a subdivision, neither of which applies here. Do you find a "covenant running with the land" in the quoted text? I see a pledge by the State of Virginia, specifically named without any suggestion that the obligation would pass to successors in title.
The opinion avoids deciding whether a restrictive covenant (never mind one that runs with the land) exists, concluding instead that any purported covenant would be unenforceable against the State. That logic denies the plaintiffs any relief no matter how otherwise valid their claim, and is what I object to. It's to the public benefit that the State be treated as much as possible like any other contracting party, so that people can feel confident that if they deal with the State the law will protect their interests.

[Formerly Known as Stash]

I do see "restrictive covenant" and (I would have argued) an illegal restraint on alienation in perpetuity. It is, as they say, "repugnant to the fee." The state owns it. If it wants to sell it to a junk dealer for scrap, no restrictive covenant can prevent it.

The plaintiffs are in no different position than any other litigant trying to enforce an unenforceable provision. As you know, generally restrictive covenants are disfavored, and narrowly construed.

From the opinion: " The Governor also notes that the property interest described in the 1887 Deed and the 1890 Deed is unknown in law, inasmuch as “plaintiffs claim that they possess something that could perhaps most accurately (but paradoxically) be called an ‘affirmative negative easement:’ a right to compel the government to use land that it owns in one single way in perpetuity.”

Can you refute this: "The Governor avers that the Taylor Plaintiffs 'identify no case in which such a purported agreement has ever been enforced against any Virginia property owner—much less against the sovereign.'"

If you are claiming "the State be treated as much as possible like any other contracting party" it seems you should have an instance where such a covenant was found valid.

[Voize of Reazon]

Well, I'd say this one has a lot of the same elements.

But, to be clear, it isn't about whether a particular covenant with the state is being found valid or invalid. My view is that when the state plays on the field of commercial transactions and land tenure the more level that field can be the better.

[F.D. Wolf]

Virgil, quick come and see, there goes Robert E. Lee.

[DaveM]

+1 song reference, but I believe the lyric is referring to "the" Robert E. Lee -- the steamboat, not the person.

https://en.wikipedia.org/wiki/Robert_E._Lee_(steamboat)

[F.D. Wolf]

Thank you. I am always pleased to learn something new, and I did not realize that. Funny enough I have heard that Last Waltz performance many times, and had never noticed the "the" until I listened to it again just now.

[Syd Henderson]

It's "Robert E. Lee" the general. If they added "the" for the Last Waltz version, then it was because Joan Baez messed up the lyrics and turned the general into a steamboat that didn't go into service until after the civil war. (She also thought it was "so much cavalry" rather than "Stoneman's cavalry.")

[Voize of Reazon]

I've heard that story too and don't know whether to believe it.
The first verse has Stoneman's raids, which happened in 1865 the last year of the war, then the third verse talks about being "back home in Tennessee". That could easily be 1866 or later when the steamboat was operating on the Mississippi but the General was full-time president of Washington College in Lexington. It makes sense that the spectacle of a Robert E Lee passing through Tennessee would more likely be the steamboat than the person.
And then there's the alternate explanation that Robbie Robertson is Canadian, what would he know about the Civil War?

[Nisiiko]

I don't really want to pay for public union pensions that were promised by people long dead. It's my free speech right!

[arbitrary aardvark]

One of my ancestors, captain peter ankeny, after fighting in the revolution and founding somerset pa, gave an acre of land to somerset for a schoolhouse. last time i was there i noticed the schoolhouse is now being used for a lawyer's office.

I have not seen the deed, and I do not know if there was any reversionary clause, or how long one has to make an issue of it, or how to find all of Peter's 1000ish other descendants, but it did kinda get me wondering.

Does it make a difference that in the Lee deed there was no reversion clause? Is this a rule against perpetuities case, or a governments contracts case? If we wanted to give the land back, can the heirs be ascertained, and if not how is it handled? In a case like this, does adverse possession come into play at all? Would this make a good exam question for 1L property? What if the government, after one year, had announced that they were abrogating the agreement? Would the Lees have had a remedy at the time? If so, what has changed? Is the statue a fixture, or is it personal property, and does that matter? Say they put it on wheels to make it easier to move, is it still a fixture? I used to be pretty good at property law, but I've become rusty. I share some of the skepticism about the result, but I'm not sure what remedy exists. Probably sell the land, split proceeds with known heirs, put the rest in trust, give away the statue to whoever will keep it in the spirit intended. Maybe Rick Hasen would have a better informed opinion; I think he wrote a remedies textbook.

[arbitrary aardvark]

Now that I've read the case "seems right to me" is a fair assessment. Plaintiffs lacked standing, the proposed remedy was contrary to public policy, and possible claims about reversion were not raised or briefed. It prevents multiple issues. Such a racially charged case might not be ideal for a law school exam.

[DaivdBehar]

You should ask Josh Blackman.

[John F. Carr]

In the 17th century some rich men gave land for the benefit of the school children of Ipswich, Massachusetts. That lasted over 300 years but finally the land was sold at below market value for the benefit those with more influence than the school children of Ipswich.

[Formerly Known as Stash]

Case wasn't close. And yes, a reversion clause is necessary. Generally conveyances and covenants are considered to be independent of each other. (E.g. at common law rent was independent from the conveyance of the lease hold, i.e., you could sue for the rent, but if it was a five year lease, and there was no express reversion clause, lessee has possession for five years without paying a dime. That's changed, but even today written leases still contain an express reversion of the right to possession).

Seems to me that there was no reversion clause because the grantor wanted to over-reach to make the obligation perpetual--no option to just give it back. It is like when an employer tries to put in a draconian non-compete--just ends up being unenforceable.

[mydisplayname]

"I set out on this ground, which I suppose to be self-evident, ‘that the earth belongs in usufruct to the living’: that the dead have neither powers nor rights over it." [Jefferson to Madison, 06-Sep-1789]

Past decisions -- to accept property on which a statue is erected, to provide Medicaid handouts, to expand the abortion exception to manslaughter statutes, to pay Social Security benefits, to grant special privileges to labor union corporations, et c. -- in no way bind those living in the present. "[N]o man can, by natural right, oblige the lands he occupied, or the persons who succeed him in that occupation, to the paiment of debts contracted by him. For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come, & then the lands would belong to the dead, & not to the living, which would be the reverse of our principle. What is true of every member of the society individually, is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of the individuals."

But Somin makes a good point elsewhere: be careful little feet where you go. The 1st, 2nd, and 13th Amendments can be as easily repealed as was the 18th -- and vaccines can be mandated as easily as abortions can be prevented. While I agree with the opinion of the Court, I am reminded that the need for such an opinion resulted from unilateral gubernatorial action: Tyrant Northam ignored the simple message enshrined in the flag of Virginia and in doing so has become Eris embodied. I'm confident that the "fairest" will always reach for the golden apple, meaning that the current game of tit-for-tat is unsustainable and self-defeating.

[Formerly Known as Stash]

So every executive order by any governor or president is tyranny? Good to know

[Lee Moore]

I'm doubting this is good news for the collusive "sue and settle" people.

[Squirrelloid]

Doesn't this decision basically mean the state can never be bound by a contract? That seems like an unfortunate consequence.

[Brett Bellmore]

Only if the state, or at least the executive branch, doesn't want to be. They can totally be bound by contracts they feel like being bound by, as useless as that is.

[Formerly Known as Stash]

Er, governments have lost plenty of contract cases.

[Formerly Known as Stash]

No. It means it could not be bound by this contract.

[Brett Bellmore]

It does seem significant that the commitment was entered into by the legislature enacting a statute, while it was breached by a unilateral decision of the executive. The court cites a budget resolution, but it doesn't seem to actually say anything explicitly repealing the prior enactment.

Maybe the legislature can't commit future legislatures, but last I heard, they WERE supposed to be able to commit future executives until a future legislature changes the law. Or else what's the point of enacting laws?

[Voize of Reazon]

The 1899 Joint Resolution was not a statute. From p. 18 of the opinion:

A joint resolution is a legislative enactment of the two houses of the General Assembly that “expresses legislative opinion or sentiment on a particular issue.” [...] In Virginia, a joint resolution is distinguishable from a statute because a joint resolution does not have the force of law and does not require the Governor’s signature.

[Voize of Reazon]

I might add this is an understandable and probably common mistake because joint resolutions of Congress generally* are presented to the President and do have the force of law once signed or veto-overridden, just like a bill.

*The exception being joint resolutions that propose an amendment to the Constitution.

[KevinP]

To those who consider gifting land to the government for open space:

Note that a future government can change its mind.

[Brett Bellmore]

Anybody who has studied history knows that government promises aren't worth the paper they're written on. It doesn't cease to be disappointing to see it proven yet again, though.

[Formerly Known as Stash]

But you are probably not as disappointed as Native Americans.

[Brett Bellmore]

I was actually somewhat cheered by McGirt v Oklahoma, but it was a rare exception.

[Formerly Known as Stash]

Imagine that an ardent communist donates a clubhouse to a union with a statue of Karl Marx on the front lawn, with the promise by the union that it will maintain the statue in perpetuity. But now the union members do not like the statue and want it removed because it misrepresents the opinions of its members. Heirs of the grantor, who remain ardent commies, sue to require the union to continue the display. Can a court compel them to maintain the statue and its message?

[Ben of Houston]

I'm reminded of why the rule against perpetuities exists. All I know about this part of contract law is that it is considered a giant headache.

https://en.wikipedia.org/wiki/Rule_against_perpetuities

[Nestor33]

Hmm. Interesting ramifications. The decision states that efforts to contract away the government's freedom of speech are "void upon general principles." This would seem to hold broadly for speech that goes out of favor (say, a Robert E. Lee statue) and all other speech as well (say, a monument honoring WWII or Vietnam veterans, MLK, William Shakespeare or even pets or hobbies).

Does this mean that all acquisitions with such restrictive covenants are void ab initio? Seems like it.

And if the agreements are void, then it seems that any land, statues or other property transferred should be returned.

[Formerly Known as Stash]

Again, the provision was not void ab initio; it was unenforceable.

[John F. Carr]

You have a similar problem when willing your property to a charitable trust for eternity. The state Attorney General, not your ghost, rules over charities and decides if a use is consistent with your wishes. Obviously something that is not politically orthodox now must be inconsistent with the wishes of a man who has been dead for a century.

[Tom for equal rights]

"Therefore, any restrictive covenant purportedly created through the 1890 Deed, which would prevent the Commonwealth from moving a monument owned by the Commonwealth and on property owned by the Commonwealth is unenforceable because, at its core, that private property interest is the product of a nineteenth-century attempt to barter away the free exercise of government speech regarding the Lee Monument in perpetuity."

That seems to be the wrong legal analysis.
The governor 1890 had the legal authority to enter into a contract on behalf of the state of Virginia. One of the stipulations of that contract was to hold the property in perpetuity.

Similar to a restrictive deed that requires the property to be used as a park in perpetuity. If property ceases to be used as required in the deed, there are often a clause that compensation has to be paid or that the property reverts back to the donor or to the heirs.

[John F. Carr]

In Massachusetts we have a clause in the constitution protecting parkland -- if land was taken to be a park a supermajority vote of the state legislature is required to convert it to other purposes. I think donations would not be so protected. We don't have too many Confederate war memorials up here to use as test cases.

[Formerly Known as Stash]

It is absolutely the correct legal analysis. Generally, a covenant to hold property in perpetuity is unenforceable as an illegal restraint on alienation. This deed contained no reversion clause--that may very well have been enforceable. Courts should not invent clauses that are not in the contract. As I have repeated several times, the conveyance and a covenant are considered independent of each other at common law.