The Confederate monument on the Daviess County courthouse lawn is owned by Fiscal Court and is theirs “to dispose of as they choose,” according to a 16-page ruling issued Friday by Judge Lisa Payne Jones. The Kentucky Division of the United Daughters of the Confederacy claimed they owned the monument, but in her ruling Jones was thorough and adamant that is not and has never been the case.
Summary of ruling
In her conclusion, Jones wrote that in summary, “The Daviess County Confederate Monument was surrendered to the county at the time of its unveiling. The Daviess County Fiscal Court has maintained possession of the Confederate monument on courthouse square. They have maintained its upkeep and appearance and assumed responsibility for its insurance. They have acted openly and publicly at all times since 1900 as the sole owner and party responsible for the monument. Any groups involved in the fundraising for and creation of the monument have long since abandoned any interest in the property if, in fact, they ever had any such interest. Plaintiff has failed to present a genuine issue of material fact to the contrary.”
Initial responses
Daviess County Claud Porter said they won’t take any action just yet because the UDC will have a 30-day period to file a notice of appeal.
“We won’t do anything concrete until after that 30 day period,” Porter said.
Nicholas Goetz, an Owensboro attorney representing the UDC, said “We respect the ruling, but we of course disagree with the judge. … I’ve referred this back to my clients and their preferred counsel. We’re taking it under advisement and kind of surveying some options going forward, and I don’t think there’s been a decision made at this point, just given the timeframe, as to an appeal.”
Highlights of ruling
1 – “The Daviess County Confederate Monument was never the property of the John C. Breckenridge Chapter 306 of the Kentucky UDC.”
Jones noted that the UDC asserted that Chapter 306 owns the monument because “no other entity bore the responsibility to raise the necessary funding, commissioning the artist, designing, erecting and dedicating the Owensboro Confederate Memorial.”
However, Jones wrote, “This claim is clearly not supported by the historical record which shows (1) the Confederate Association raised more funds for the monument than Chapter 306, (2) the sculptor was selected by a committee which consisted of members of Chapter 306 and members of the Confederate Association and members of the Rice E. Graves Camp, (3) the appearance of the monument was first described by the Confederate Association in 1892, before the existence of the DDCCA or Chapter 306, (4) the erection and dedication of the monument was accomplished through a collaborative effort of several organizations. Nothing in the historical record shows that the DDCCA or Chapter 306 ever asserted ownership over the Daviess County Confederate Monument by word, document, or action.”
Jones further wrote that the tribute written on the pedestal crediting Chapter 306 with the erection of the monument “is just that, a tribute, a recognition of the significant contribution of the women, and not a deed or a claim of ownership.”
“By analogy, the sidewalk in front of the RiverPark Center, a mere two blocks from the monument, is comprised of bricks bearing the names of persons and entities who contributed to the construction of that facility. Those bricks do not give ownership of the building to those individuals. Not even the bricks themselves are the property of the donors. A person whose name appears on a brick could not pull it up and take it away. The brick is symbolic. The same reasoning applies to the inscription on the pedestal.”
2 – “Even if the John C. Breckenridge Chapter 306 owned the monument originally, it was subsequently abandoned.”
Jones noted that monuments on government property and the history surrounding their placement have been heavily scrutinized, and that determination of ownership has largely been analyzed on a case-by-case basis.
Jones said documentation is often contained in the historical record showing the intent of the parties by outlining ownership, allocation of costs of maintenance, and restrictions on use or provisions for removal of the monument. There could also be documentation in an organization’s minutes showing the donor continued to provide for the upkeep of a monument placed on public land.
“The lack of documentation in the historical record weighs against Plaintiff (UDC) in this case,” Jones wrote.
She also wrote, “Once the statue was paid off, nothing in the historical record shows Chapter 306 exercised any authority over the monument. … Even if historical documentation existed to show Chapter 306 ever had an ownership interest in the monument, the actions of Chapter 306, or the lack of action, show that the monument was intended as a gift.”
Jones also added, “If the monument was not considered a gift, then it certainly was abandoned by those who paid for and erected it, whether that be the Confederate Association or Chapter 306 or the UDC. … There is no question from the record that neither the Confederate Association, Chapter 306, nor the UDC have acted in such a way over the last 120 years to show a belief that the monument belonged to them.”
3 – “Plaintiff has no standing.”
Jones said the higher courts of Kentucky have yet to make a ruling that she could use as authority, but that a case decided by the North Carolina Court of Appeals has “historical facts virtually identical” to the one in Daviess County.
That includes a message etched on the pedestal and fundraising efforts, but the lack of a deed or other statements of ownership as well as any references to upkeep.
“The North Carolina UDC was given the opportunity to claim the monument by Forsythe County, but they refused,” Jones wrote. “Ironically, the UDC pointed to the historical record as proof they did not own the monument.”
According to Jones, with each side claiming the other was the true owner of the property, the North Carolina Court of Appeals pointed to the historical record and determined that the local Chapter of the UDC had participated in fundraising for the monument, but that alone did not give the UDC an ownership interest or standing to challenge the removal of the monument by Forsythe County.
Jones wrote, “Plaintiff (UDC) did not exist in 1900 when the Daviess County Confederate Monument was unveiled. Plaintiff did not exist in 1902 when the final payment on the monument was made. Plaintiff did not exist in 1970 when Chapter 306 faded into obscurity. Plaintiff did not exist in 1997 when the monument was openly listed as public property on the National Register of Historic Places. Plaintiff, Kentucky Division, United Daughters of the Confederacy, Inc., a 501(c)(3) corporation, sprung into existence in 2019 amid the growing public pressure nationwide to remove Confederate Monuments from prominent venues.”
She continued, “Plaintiff claims that the Daviess County Confederate Monument was the property of Chapter 306 of the Kentucky UDC and that Plaintiff now owns the monument as a successor in interest to that Chapter, but (1) Chapter 306 never owned the monument; or (2) if Chapter 306 owned the monument they subsequently abandoned the monument, or (3) if Chapter 306 did somehow possess the monument still in 1970 and passed that ownership interest to the unincorporated Kentucky Division of the UDC, that entity abandoned the monument. There was no ownership interest for Plaintiff to supposedly inherit in 2019 and, therefore, Plaintiff has no standing to seek relief from this Court.”
Jones addresses UDC’s opposition to Fiscal Court’s request for summary judgment
Jones noted that the UDC referred to numerous documents filed with the court, but said various documents were “not relevant to the question of ownership,” had “nothing to do with the monument on the courthouse lawn,” or “sheds no light on the historical record.
She also said the UDC has repeatedly pointed to the inscription on the base of the monument:
“Erected by the Breckenridge Chapter Daughters of the Confederacy 1900.”
“Plaintiff asserts that statement alone raises a sufficient question of fact as to ownership of the monument. It does not,” Jones wrote. “In neither plain language nor ‘legal-ese’ is the word ‘erected’ synonymous with the word ‘owned.’ Furthermore, in other jurisdictions, not only the courts, but the UDC itself, denied that the word indicates ownership. Finally, nothing in the historical record indicates that Chapter 306 or any other entity acted or spoke in such a way that would support Plaintiff’s interpretation.”
Jones said that while the UDC argued that additional discovery is needed, historical documents are the only available evidence to relate the events which occurred more than a century ago.
“Plaintiff has been given ample time to submit documentation which they believe to be relevant, particularly since it is presumed that documentation would be in Plaintiff’s possession if Plaintiff is indeed a successor in interest to Chapter 306,” Jones wrote.
More from conclusion
Jones said that it has been determined by the United States Supreme Court that the placement of monuments on government property constitutes government speech.
Jones wrote, “Many of these monuments were paid for by private entities and not funded by the government on whose property they sit. It is still the government’s speech. While the act of the donor is a one-time event, the municipality that displays a monument is engaging in the ongoing perpetuation of its message. … Therefore, in the eyes of the public, the Daviess County Confederate Monument and the message it conveys belong to the Daviess County Fiscal Court, and when citizens found that message objectionable and raised concerns in 2017 following the events surrounding the Charlottesville Unite the Right rally, it was the Daviess County Fiscal Court to whom they complained, not Chapter 306 which had died out nearly half a century before, and certainly not Plaintiff who did not exist until 2019.”
Jones said acting on those concerns, Fiscal Court eventually made the choice to remove the monument from the courthouse lawn.
“It was the Defendants’ speech,” Jones wrote. “It was the Defendants’ choice. It is the Defendants’ monument to dispose of as they choose.”
