Taylor v. Northam
| Decision Date | 02 September 2021 |
| Docket Number | Record No. 210113 |
| Citation | 862 S.E.2d 458 |
| Parties | Helen Marie TAYLOR, et al. v. Ralph S. NORTHAM, et al. |
| Court | Virginia Supreme Court |
Patrick M. McSweeney (Fred D. Taylor, Suffolk; Jeremiah J. Jewett, III, Richmond; Bush & Taylor, on briefs), for appellants.
Toby J. Heytens, Solicitor General (Mark R. Herring, Attorney General; Erin B. Ashwell, Chief Deputy Attorney General; Samuel T. Towell, Deputy Attorney General; Michelle S. Kallen, Deputy Solicitor General; Jessica Merry Samuels, Deputy Solicitor General; Marshall H. Ross, Senior Assistant Attorney General; Jacqueline C. Hedblom, Assistant Attorney General; Erin R. McNeill, Assistant Attorney General; Kendall T. Burchard, John Marshall Fellow, on brief), for appellees.
Amicus Curiae: A.E. Dick Howard, Charlottesville, (John F. Kerkhoff ; William G. Laxton, Jr. ; Benjamin C. Mizer ; Kamaile A.N. Turcan ; Jones Day, on brief), in support of appellees.
Amicus Curiae: Circle Neighbors (Gregory A. Werkheiser ; William J. Cook; Jessica R. G. Krauss; Cultural Heritage Partners, on brief), in support of appellees.
Amici Curiae: David W. Blight and Gaines M. Foster (Adam L. Sorensen; Joseph R. Palmore ; Morrison & Foerster, on brief), in support of appellees.
Amicus Curiae: Institution for Constitutional Advocacy and Protection (Mary B. McCord ; Annie L. Owens ; Kelsi Brown Corkran ; Shelby B. Calambokidis; Jennifer Safstrom; Georgetown University Law Center, on brief), in support of appellees.
Amicus Curiae: Old Dominion Bar Association (Frank K. Friedman ; Victor O. Cardwell ; Roanoke, Elaine D. McCafferty, Charlottesville; Woods Rogers, on brief), in support of appellees.
Amici Curiae: Professors Thomas J. Brown, W. Fitzhugh Brundage, Karen L. Cox, Hilary N. Green, Kirk Savage, and Dell Upton (Blake E. Stafford ; Christine C. Smith ; Briana M. Clark; Latham & Watkins, on brief), in support of appellees.
Amici Curiae: Property Law Professors (John B. "Jay" Swanson; Arnold & Porter Kaye Scholer, on brief), in support of appellees.
Amici Curiae: The Virginia Bar Association Law School Council at the University of Virginia School of Law, When Time Slows Down and ComMUN (James J. O'Keeffe IV ; MichieHamlett, on brief), in support of appellees.
Amicus Curiae: Virginia State Conference National Association for the Advancement of Colored People (Cullen D. Seltzer ; Cynthia E. Hudson ; Richmond, Sands Anderson, on brief), in support of appellees.
PRESENT: All the Justices
OPINION BY JUSTICE S. BERNARD GOODWYN
In this appeal, we consider whether language in an 1890 deed, signed by the then Governor of Virginia, and an 1889 joint resolution of the General Assembly, which requested and authorized the Governor to sign such deed, prohibit the Governor of Virginia from ordering the removal of a state-owned monument from state-owned property.
On July 15, 1887, the heirs of William C. Allen (the Allen heirs) conveyed by deed (the 1887 Deed) to the Lee Monument Association a round piece of property (the Circle) 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 statue 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 (the 1889 Joint Resolution), authorizing and requesting the Governor at the time, P.W. McKinney (Governor McKinney), 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 Commonwealth). In the 1889 Joint Resolution, the General Assembly expressed its opinion that the Lee Monument Association proposed "the most graceful and appropriate disposition of the equestrian statue 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, upon the completion of the Lee Monument, the Lee Monument Association executed a deed (the 1890 Deed) conveying ownership of the Lee Monument and the Circle to the Commonwealth. Governor McKinney, who was 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 1890 Deed also included a plat depicting the intended subdivision of the area surrounding the Circle along Monument Avenue and Allen Avenue.
In 2020, the Commonwealth experienced an apparent rise in negative public sentiment concerning the Lee Monument and other Confederate monuments, which was evidenced by civil rights demonstrations and protests, as well as by damage being done to the Lee Monument and other Confederate monuments.
On June 4, 2020, Governor Ralph S. Northam (Governor Northam) held a press conference, at which he announced his intention to have the Lee Monument removed from the Circle on Monument Avenue. Governor Northam thereafter directed and approved a Department of General Services’ plan to remove the Lee Monument from the Circle.
In response to Governor Northam's actions, on July 21, 2020, Helen Marie Taylor (Taylor), John-Lawrence Smith (Smith), Janet Heltzel (Heltzel), George D. Hostetler (Hostetler), and Evan Morgan Massey (Massey) (collectively, the Taylor Plaintiffs) filed a complaint in the Circuit Court for the City of Richmond, seeking declaratory relief, preliminary injunctive relief, and permanent injunctive relief against Governor Northam, Director Joe Damico of the Virginia Department of General Services, and Director W. Michael Coppa of the Virginia Division of Engineering and Building (collectively, the Governor). With the exception of Massey, the Taylor Plaintiffs 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). Massey is the trustee for an owner of property located in the Historic District. The properties in which Heltzel, Hostetler, and Massey (collectively, the Allen heirs’ successors) hold an interest are on the plat that is depicted in the 1890 Deed.
In their complaint, the Taylor Plaintiffs contend that Governor Northam has no authority to remove the Lee Monument because the 1889 Joint Resolution binds him to perpetually maintain the Lee Monument on the Circle. They argue that Governor Northam's order violates the Constitution of Virginia because his violation of the 1889 Joint Resolution encroaches upon the legislature's powers, violates the doctrine of separation of powers, and defies the Commonwealth's current public policy as expressed in the 1889 Joint Resolution. Additionally, the Taylor Plaintiffs 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. Finally, they aver that removing the Lee Monument would violate Code § 2.2-2402(B),1 which they contend prohibits the removal of state-owned structures like the Lee Monument.
In response to the complaint, the Governor filed a demurrer, asserting that the complaint fails to state a cause of action because Governor Northam, as the current Governor of Virginia, has the authority to order the removal of the Lee Monument from the Circle. The Governor also contends, in the demurrer, that the language in the 1887 Deed and the 1890 Deed which purportedly restricts the Commonwealth's use of the property given to it, is mere precatory language, and thus the language in the 1887 Deed and the 1890 Deed is not sufficient to create an enforceable property right (restrictive covenant) as alleged by the Taylor Plaintiffs. Further, the Governor claims that, even if the language of the 1890 Deed creates a restrictive covenant, as the Taylor Plaintiffs contend, 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." Moreover, the Governor avers that "a compulsory [governmental] message violates public policy, regardless of its content" and is therefore unenforceable, and also that Code § 2.2-2402 does not provide a private right of action.
After a hearing on the matter, the circuit court granted the Taylor Plaintiffs’ request for a temporary injunction and enjoined the Governor from removing the Lee Monument from the Circle during the pendency of the case.
On August 25, 2020, the circuit court overruled the Governor's demurrer as to the Taylor Plaintiffs’ claims that Governor Northam's actions were in violation of the Constitution of Virginia. Concerning the Taylor Plaintiffs’ claims that the 1887 Deed and the 1890 Deed contain enforceable restrictive covenants, the circuit court overruled the demurrer as to the Allen heirs’ successors’ claims but sustained the demurrer as to the other Taylor P...
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