This story was updated with new information at 4:23 p.m. on June 10.
A Virginia judge has temporarily blocked the state from removing the Robert E. Lee Monument in Richmond because of an 1890 deed that says the state has to “perpetually” protect it. But Governor Ralph Northam maintains he can, legally, take it down.
The injunction is in response to a lawsuit filed by a descendant of one of the donors of the property where the statue resides.
Alex Johnson is a law professor at the University of Virginia who specializes in property law and real estate. He said outcomes in similar cases have been mixed.
“It’s a mess,” Johnson said. “About half of them come out and say it’s a gift. You can’t attach conditions to it. Once you give the property, the donee can do whatever he, she, it wants. The other half say it’s [a] contract.”
He said major gifts, like monuments or college scholarships for instance, often come with conditions. Johnson said, in some cases, those conditions can be altered if they can no longer be met. But in other cases, the gift’s conditions are considered legally binding. Johnson said the legal issues around the Lee monument will likely take time to sort out.
“That statue isn’t going anywhere for a while,” he said, “Because once it’s gone, it’s hard to put the genie back in the bottle.”
If the property heirs successfully fight efforts to take down the statue, the state could ultimately take it back, said University of Richmond Law Professor Allison Tait.
The court could determine the state has the right to take it down. But it could also rule that the property should go back to the heirs because conditions laid out in the deed could not be met. If the latter happens, Tait said the state can use eminent domain to recapture the private property and convert it into some other public use.
“It would definitely be for a public purpose,” Tait said. “It’s a roundabout in the middle of a public street, right? And then they would just have to pay the heirs for the land.’
At Tuesday’s press conference, an attorney for the governor’s office said the legal battle will be a multi-stage process that may go to the Virginia Supreme Court.
Governor Northam said the state is prepared for the fight.
“This is a statue that is divisive,” he said. “It needs to come down and we are on very legal, solid grounds to take it down.”
A separate lawsuit to stop the statue’s removal was filed in federal court Monday. This time, a Henrico man claims the statue’s removal violates federal law governing historic landmarks.
William Davis, who filed the complaint, said because the monument is listed on national and state historic registers it must be protected.
“It cannot be removed, except for very few limited exceptions, none of which are even close,” he said in an interview.
State officials maintain the historic designation is honorific and does not legally protect the monument.
