Injunction blocking Lee Monument removal treads uncertain legal ground

By: - June 9, 2020 6:15 pm

Protesters mill around a statue of Confederate Gen. Robert E. Lee in Richmond, which was covered in graffiti during demonstrations against police brutality and racial inequality in 2020. (Ned Oliver/Virginia Mercury)

Gov. Ralph Northam said Tuesday he is confident he will prevail over a legal challenge that is temporarily blocking crews from removing a massive statue of Confederate Gen. Robert E. Lee in Richmond.

But a UVA legal scholar says the outcome of the lawsuit, filed by a descendant of the family that gifted the property to the state in 1890, is far from certain.

“I wouldn’t be confident on either side if I were the plaintiff or the defendant,” said Alex M. Johnson Jr., a professor at University of Virginia School of Law who specializes in contract and property law.

Northam announced Thursday he plans to remove the six-story statue on Richmond’s Monument Avenue as soon as possible, saying “it’s time to replace the racist symbols of oppression and inequality.” On Monday, Richmond Circuit Court Judge Bradley B. Cavedo issued a 10-day injunction prohibiting the state from acting while he weighs a lawsuit filed by William C. Gregory, who says he is the great-grandson and heir of the couple who initially gave the property to the state.

In the suit, Gregory cites language in the deed signed by his family and the state that says Virginia “will hold said statue and pedestal and circle of ground perpetually sacred to the monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it.”

Johnson said he expects the case to hinge on two key points.

First, he said the court will have to decide whether the language in the deed is enforceable as written. On that front, he says some language in deeds can be read as precatory, meaning it merely expresses the donors’ wishes in giving the property but doesn’t otherwise carry any legal weight or obligation. He said it wasn’t obvious based on his reading of the deed whether the court would find that argument compelling.

Second, if the court does view the restrictions as enforceable, a doctrine called cy pres comes into play, which allows the court to change provisions in perpetual charitable gifts “due to essentially changed conditions since the gift was established.”

In this case, Johnson said the state could argue that honoring Lee today is no longer fundamentally possible in the context of the current public policy environment.

“Since these trusts last forever and the donor can’t foresee all the changes that can occur over the centuries, the court can … say ‘We know what they meant but that purpose has changed,’” he said. “The problem with cy pres is it’s usually strictly construed by the court. They want to honor the wishes.”

Johnson said the issue is most often debated in the context of gifts to colleges and universities and that there’s little settled law on the subject. He said he wouldn’t be surprised if the issue is ultimately decided by the Supreme Court of Virginia.

On that point, Northam’s administration agreed, suggesting Tuesday they’re prepared for a long legal battle.

“We have been preparing for this opportunity for over a year,” said Rita Davis, Northam’s legal counsel. “We were well aware of the potential legal challenges. We are also well aware of the governor’s authority to do this. … At the end of the day, we fully expect that the Circuit Court, and maybe even the Virginia Supreme Court, will affirm that.”

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.