Taylor, Et Al. v. Northam, Et Al.

862 S.E.2d 458 (2021)

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Nature of the Case

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Facts

On July 15, 1887, the heirs of William C. Allen conveyed by deed to the Lee Monument Association a round piece of property located at the intersection of Monument Avenue and Allen Avenue, which is now in the City of Richmond, Virginia. The terms of the 1887 Deed required the grantee, the Lee Monument Association, to use the Circle as a site for a monument to Confederate General Robert E. Lee (General Lee), and required the Lee Monument Association to hold the Circle 'only for the said use.' Several months later, the Lee Monument Association commissioned an equestrian statute of General Lee and a pedestal (together, the Lee Monument) to be erected on the Circle. On December 19, 1889, the General Assembly passed a joint resolution authorizing and requesting the Governor to accept the donative transfer of the ownership of the Circle and the Lee Monument from the Lee Monument Association to the Commonwealth of Virginia. The General Assembly expressed its opinion that the Lee Monument Association proposed 'the most graceful and appropriate disposition of the equestrian statute of General Robert E. Lee [and land on which it is to be placed]' as a gift to the Commonwealth; and 'whereas this patriotic purpose is highly appreciated and approved by the General Assembly,' it resolved to request and authorize the Governor to accept the gift and to give the guarantee 'of the state that it will hold the said [Lee Monument] perpetually sacred to the monumental purpose to which it has been devoted.' On March 17, 1890, the Association conveyed ownership of the Lee Monument and the Circle to the Commonwealth. Governor McKinney, also the president of the Lee Monument Association at the time, signed the 1890 Deed on behalf of both the Commonwealth and the Lee Monument Association. The Allen heirs also signed the 1890 Deed. The deed states that the State of Virginia 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. On June 4, 2020, Governor Ralph S. Northam (D) (affectionately known as KKK or Blackface) announced the removal of the Lee Monument. Ps filed a complaint seeking declaratory relief, preliminary injunctive relief, and permanent injunctive relief. Ps are owners of properties located on a portion of Monument Avenue that has officially been designated as a National Historic Landmark District (the Historic District). Ps contend that D has no authority to remove the Lee Monument because the 1889 Joint Resolution binds him to perpetually maintain the Lee Monument on the Circle. Ps assert a property right to enforce the 1887 Deed and the 1890 Deed, which they claim requires the Commonwealth to perpetually maintain the Lee Monument on the Circle. D filed a demurrer, asserting that the complaint fails to state a cause of action because D, as the current Governor of Virginia, has the authority to order the removal of the Lee Monument from the Circle. D also claims the language in the 1887 Deed and the 1890 Deed is not sufficient to create a restrictive covenant. D also contends that covenant is unenforceable because it violates public policy in that the Commonwealth cannot be forced, in perpetuity, 'to engage in expression with which it disagrees.' The circuit court granted Ps' request for a temporary injunction and enjoined D from removing the Lee Monument from the Circle during the pendency of the case. D refiled and asserts that Ps failed to state a claim upon which relief could be granted, that they have no enforceable property right, that any covenant or obligation to keep the Lee Monument in perpetuity violates public policy, and that the Ps' claims fail due to changed circumstances and lack of consideration. In October 2020, the General Assembly passed House Budget Bill 5005 and Senate Budget Bill 5015 (collectively, the 2020 Budget Amendment). They repealed the 1889 Joint Resolution and ordered D to remove the monument. Both parties moved for summary judgment. The court eventually held that for a restrictive covenant to be enforceable, it must not be contrary to public policy nor should the conditions have so radically changed as to practically destroy the original purposes of the covenant. It held that D held the burden of proof on the issue and that he had done so. The circuit court stated that D's most significant evidence of current public policy is the 2020 Budget Amendment, which specifically repealed the 1889 Joint Resolution, and ordered the Lee Monument to be moved from the Circle. It concluded that these restrictive covenants are unenforceable because enforcement of the restrictive covenants would violate current public policy of the Commonwealth. Ps appealed. Ps claim they have an enforceable property interest which allows them to prohibit the Commonwealth from moving a monument owned by the Commonwealth from property that is likewise owned by the Commonwealth. They claim that D is constitutionally prohibited from ordering the removal of the Lee Monument from the Circle because a joint resolution passed by the General Assembly in 1889 states the Commonwealth's current public policy and it strips the Governor of his authority to have the Lee Monument moved from the Circle.