Lauren Bon, granddaughter of Walter Annenberg (and a member of the board of directors of the Annenberg foundation), has joined forces with a group of veteran activists who say trustees of the VA property have not lived up to the letter nor the spirit of the original 1888 deed which handed over hundreds of acres of land to the federal government for the purpose of establishing a permanent home for disabled soldiers.
Ms. Bon runs the Metabolic Studio, a charitable activity of the Annenberg Foundation. For two years, the Metabolic Studio ran a gardening project called “Strawberry Flag” on the VA property. This project was recently canceled by the VA.
In a 32-page position paper (see below), attorney Richard L. Fox, working for the Metabolic Studio, outlines a broad range of arguments suggesting breach of trust and fiduciary responsibility on the part of the Department of Veterans Affairs. The group’s goal is to force the VA to return the use of the land to a permanent home for disabled soldiers, as spelled out in the original 1888 deed and the Act of Congress authorizing the home.
Ms. Bon was joined by Robert Rosebrock, a local veteran activist who has said for years the VA needs to open its doors more to veterans in need. He decries efforts by those who seek to establish a public park, conduct theatrical events, sub-lease the property to private schools or use the land for private functions.
Those who follow VA land use issues know this is a complicated matter with many competing interests and philosophies regarding what is best. Over the years, there has been talk about selling the property and leasing it out to commercial interests. Some would like to see more programs on the campus for homeless veterans. The Veterans Park Conservancy is pushing the idea of a 16-acre park at the corner where Wilshire and San Vicente come together.
A few years ago the issue seemed to come to a head when Congress passed a bill stating that the land could never be sold to private interests. Now the debate is starting anew, with attention shifting to how to best use the property to promote the welfare of veterans.
The VA has just released the first draft of a long-promised “master plan,” which calls for construction of a new inpatient tower, centralization of research facilities, expansion of the cemetery onto the campus, consolidation of VA regional offices and an expansion of a homeless program through the renovation of several buildings. The plan can be found at http://www.losangeles.va.gov.
Robert Rosebrock recently proposed several high-rise towers be built on the property to house veterans (see Brentwood News, January – February issue). In a recent editorial, the Brentwood News suggested erecting a “tent city” on the VA grounds in order to provide shelter for homeless veterans currently living on the streets of Los Angeles.
It is not yet known how local veteran activists, Lauren Bon or the community at large will respond to the VA’s master plan — or how the VA will respond to alternative proposals being offered up. The VA is now calling for public commentary on its draft.
Clearly, many ideas will be examined in the months ahead. Interested parties are encouraged to read the position paper, prepared on behalf of Metabolic Studios, which follows here — and the draft master plan just put out by the VA. A downloadable pdf version of the following text, properly formatted, can be found at: http://www.dilworthlaw.com/NewsEvents/Articles?find=58469
METABOLIC STUDIO
Preserving a Home for Veterans
A Breach of Trust and Fiduciary Duty: The Failure of the Department of Veterans Affairs to Use Land Donated to the National Home for Disabled Volunteer Soldiers in West Los Angeles Under an 1888 Deed as a Home for Veterans
METABOLIC STUDIO
A Direct Charitable Activity of the Annenberg Foundation
Lauren Bon
by Lauren Bon, Janet Owens Driggs and Terence Lyons, of the Metabolic Studio, and Richard L. Fox, Esq., Dilworth Paxson LLP, Counsel to the Metabolic Studio.
1
Table of Contents
I. Forward by Lauren Bon…………………………………………………………….………….. 2
II. Annenberg Foundation: Support of Civics, Democracy, and the VA…………………………3
A. The Annenberg Legacy — Empowering Citizens in a Democratic Society………….3
B. Support of VA and Related Projects…………………………………………….………5
III. Executive Summary………………………………………………………………….……………6
IV. Background on the National Home for Disabled Volunteer Soldiers and the
West Los Angeles Branch Home…………………………………………………………………8
A. National Home Created by Act of Congress to Provide a Home for Veterans………8
B. Branch Home in West Los Angeles Created By Act of Congress to
Acquire Land to Be Permanently Used As a Home for Veterans…………………..11
C. The Land of the West Los Angeles Branch Home..…………………………….……12
D. Original Use of the West Los Angeles Branch Home As a Home for Veterans……13
V. Description of 1888 Deed Transferring Donated Land to West Los Angeles
Branch Home.……………………………………………………………………….…………..14
VI. 1888 Deed Created a Charitable (or Public) Trust Requiring That Donated Land Be
Permanently Used by VA As a Home for Veterans…………………………………………..15
A. Applicable Law Establishes That a Charitable (or Public) Trust Is Created
When Land Is Donated to a Governmental Entity Subject to a Deed
Restriction That Land Be Used for Charitable or Public Purpose……………….….15
B. Fiduciary Duty of Governmental Entity Holding Land Subject to
Charitable (or Public) Trust…………………………………………………….….….18
C. 1888 Deed Created a Charitable Trust Subjecting VA to a Fiduciary Duty
to Permanently Use Donated Land As a Home for Veterans…………..……………22
VII. Failure of VA to Use Donated Land Under 1888 Deed As a Home for Veterans
Constitutes a Breach of Its Fiduciary Duty, an Impermissible Diversion from
the Purpose to Which Land Was Dedicated and a Violation of Donor Intent…………..….25
VIII. Sovereign Immunity Has Been Waived by the United States with Respect to
Enforcement of the Obligation of the VA to Adhere to Its Fiduciary Duty to
Permanently Use Land Donated Under 1888 Deed As a Home for Veterans…………..……28
IX. Conclusion………………………………………………………………………………………..29
X. Index of Exhibits…………………………………………………………………….…………..31
2
I. Forward by Lauren Bon
There is no question in my mind that the thirteen empty buildings located on well-irrigated lawns
on the north side of the campus of the Veteran Affairs of West Los Angeles (“VA of WLA†) will one day, in the not too distant future, once again be a home for veterans. It is only a matter of time before the veterans coming home from Iraq and Afghanistan have the need of time and space to mend. And, as the post-war experiences of the Vietnam-era veterans show, that need will only become more acute over time.
The Metabolic Studio, a direct charitable activity of the Annenberg Foundation, has been on-site on the campus of the VA of WLA since July 2009. We have had the privilege of working with veterans and clinicians here. I have never before worked with such committed and able people.
The focus of the work has been the Strawberry Flag: an artwork made of salvaged strawberries and reclaimed water that was fully powered off the VA grid. The daily practice associated with tending to living things helped to de-alienate one of the well-irrigated but under-purposed quads.
Not one but two Memorandum of Understanding Agreements issued by the executive leadership of the VA of WLA under its director Donna Beiter authorized us to do this work.
This position paper is meant to open up a discussion on how we can better serve the numbers of people who are the human cost of war. Currently, the hospital at the VA of WLA is responding to the ever-growing need of the large community of veterans in this county of 250,000 veterans.
But it is not enough. The total number of beds at the VA of WLA itself, inclusive of all residential treatment programs, is under 1,400 — this in a county where there are 20,000 homeless veterans on the streets each night.
I believe that we were initially given our leave to create and sustain our Strawberry Flag project as part of the Planetree Initiative. Planetree puts holistic, patient-centered care on hospital properties. Because the Metabolic Studio operates as a site-based probe of the Annenberg
Foundation, Strawberry Flag came fully funded, insured, and staffed. Furthermore, the Annenberg Foundation, where I serve as a director, has been in the forefront of American
communications and civics, with a proven commitment to veterans, for over half a century. Our main offices are in Los Angeles. I believe this offered the VA of WLA a certain amount of confidence in engaging with us.
The large-scale Strawberry Flag was a deployable experimental acquaponic strawberry farm that was operated by a team of veterans who worked for the Metabolic Studio as part of the VA of WLA’s compensated work therapy (“CWT†) program. Made of salvaged and reclaimed strawberries, and tended to by a team of CWT veterans, the sculpture grew not only strawberries but also a culture around itself. A veterans’ print studio was created, an active kitchen was
established that among other things served tea daily, and the Strawberry Gazette newsletter emerged. These innovations were the result of the optimism created by the Strawberry Flag artwork and the ingenuity of the veterans and the clinicians who saw opportunity there. Why
then has all this been put to an abrupt end by the leadership of the VA of WLA?
The answer is in the hornet’s nest of issues that buzz around land use here. This property is very
valuable, as are the private residences surrounding the VA of WLA. The growing problem of veteran homelessness, plus the public perception of veterans as unstable, has made them “undesirables†on property that is held in trust for their very benefit. This position paper seeks to
readdress this. It is a position that warrants and needs defending. Wading through historical deeds, enabling legislation, historical accounts, contracts, and other relevant documents and materials is cumbersome and labor-intensive work. The Metabolic Studio believes it is worth it.
Clearly, we ought not fight wars if we cannot support the people who risk their lives to fight. The original deed of 1888, which gave this land for veteran use, secures it in trust as a home for these people in perpetuity. The VA is the contemporary custodian of that trust.
The Metabolic Studio works at the intersection of art practice and philanthropy. Since 2005, I have focused on physical and social brownfields — places incapable of supporting life. The sites where I have worked have given me a unique opportunity to engage with bureaucracies that hold land in trust for the people of California. So as to better assist them in making progress in the
often-daunting tasks associated with remediating these brownfields, I have learned to wade through the complexities of working with such bureaucracies as the California State Park System (Not a Cornfield, 2005-6), the Los Angeles Department of Water and Power (Silver and Water, 2006-ongoing), and the United States Department of Veterans Affairs (Strawberry Flag, 2009-
2010).
Among the brownfields I have worked on, the property at the VA of WLA is something of a paradox. It is beautiful, an earthly paradise. It has been a healing place for a millennium — known by the Tongva as a place of three streams with curative properties. It will be again.
President Obama has made a commitment to end homelessness for veterans in his first term. That promise is still possible. It involves a redefinition of this property as a first step back to include that which it has been and will be once again: a home for recuperating soldiers.
Lauren Bon
The Metabolic Studio
II. Annenberg Foundation: Support of Civics, Democracy, and the VA
A. The Annenberg Legacy — Empowering Citizens in a Democratic Society
Civic responsibility. Stewardship of American democracy. Dissemination of information. These ideas and ideals established more than half a century ago by Walter and Leonore Annenberg opened the doors to a new era of duty, citizenship, and education in the information age of
America. With an uncanny eye toward the future, the Annenbergs set the stage for what would become a transformative, influential, and enduring legacy for generations. A true citizen of the world, Ambassador Walter Annenberg, the founder of the Annenberg Foundation, was at the forefront of the philanthropic movement that paved the way for a greater civic cause — one that
would make a difference in the lives of our country’s citizens.
From the start, Ambassador Annenberg understood that education and access to information were the foundation for an evolving intelligent society. The Annenberg Foundation has supported a remarkable array of organizations concerned with civics and democracy. By endowing university communication schools, public policy centers, libraries, and historical institutions, as well as providing hundreds of millions of dollars in grants for educational, social,
cultural, and civic purposes, the Annenberg Foundation has empowered individuals to become citizens of a democracy — a democracy established to achieve the greatest good for the greatest number. The following highlights only some of the organizations and initiatives created by the
Annenberg Foundation over the last half a century. These all play an invaluable role in providing research and accessible information that educates and empowers every American to become an enlightened citizen of democracy — a democracy the eyes of the world look upon to set such an
example.
The Annenberg Foundation created the two preeminent schools of communication in the United States. The Annenberg School of Communication at the University of Pennsylvania was created in 1958, and The Annenberg School of Communication at the University of Southern California1 was created in 1971. These schools are at the forefront of education, research, and policy studies on the processes, nature, and consequences of existing and emerging media. In 1993, the
Annenberg Foundation created the Annenberg Public Policy Center at the University of Pennsylvania. This Center conducts and releases research, holds conferences, and hosts policy discussions where scholars address the role of communication in politics, civics, health care, and
other important arenas. The Center’s researchers have drafted materials that have helped policy-makers, journalists, scholars, constituent groups, and the general public better understand the role that media plays in their lives and the life of the nation. The Center’s work includes FactCheck.org, a website that is a nonpartisan, nonprofit “consumer advocate” for voters that aims to reduce the level of deception and confusion in U.S. politics. They monitor the factual accuracy of what is said by major U.S. political players in the form of TV ads, debates, speeches, interviews, and news releases. The Center also operates the Leonore Annenberg Institute for
Civics, which brings together elements from Annenberg Public Policy Center civics programs and develops novel resources for students to increase their understanding of American democratic institutions and to help them become informed citizens engaged in shaping
America’s future.
In 1994, the Annenberg Foundation created the Annenberg Institute for School Reform at Brown University. This institute aims to transform traditional school systems into “smart education systems†that develop and integrate high-quality learning opportunities in all areas of students’ lives — at school, at home, and in the community. They conduct research, work with partners to
build capacity in school districts and communities, and share their work through print and Web publications. In 1997, Annenberg Media2 was created by the Annenberg Foundation, which uses media and telecommunications to advance excellent teaching in American schools. This mandate is carried out by the funding and broad distribution of educational video programs with
coordinated Web and print materials for the professional development of K-12 teachers.
Annenberg Media’s multimedia resources help teachers increase their expertise in their fields and
assist them in improving their teaching methods.
In 2000, the Annenberg Center for Education and Outreach at the National Constitutional Center
Now known as the Annenberg School of Communication and Journalism at the University of Southern California.
2
Now known as Annenberg Learner.
5
was created by the Annenberg Foundation. Its stated goal is “to provide people throughout the
country — and the world — access to the programs of the National Constitution Center. These
programs help people of all ages better understand the Constitution and its principles and to
improve their citizenship skills.†Its Resource Center houses lesson plans, references, computers
with Internet access, textbooks, and classroom instructional materials. In 2001, the Annenberg
Foundation created the Annenberg Foundation Trust at Sunnylands, which promotes a better
understanding of civics and the democratic process. This includes having a Sunnylands
Classroom website, an interactive classroom for students and teachers that provides them with
resources such as videos, documentaries, film segments, and interactive web exercises to support
their learning and understanding of current events. It also conducts a Constitution Project, which
creates and distributes print, online, and video materials about the Constitution to provide
schools and institutions with high-quality programs for use around Constitution Day in
September and beyond.
In 2007, the Annenberg Foundation established the Annenberg Presidential Learning Center at
the Ronald Reagan Presidential Library and Museum. This Center promotes civic engagement
through a variety of mechanisms including working with youth journalists and young community
leaders. Students grades K-12 learn about leadership and the American Presidency, and the
Center incorporates four key elements to aid students in their learning: programming and special
events, educational resources, curriculum, and tours of the museum.
B. Support of VA and Related Projects
The Annenberg Foundation has always been in the forefront of the support of veteran-related
projects, stemming from the long-standing dedication of its founder, Ambassador Walter
Annenberg, in supporting veteran causes. As one prime example, in 1994, General Colin Powell
was the commencement speaker at the graduation ceremony at Howard University in
Washington, D.C. Ambassador Annenberg was one of the honorees. Noting Ambassador
Annenberg’s support of veterans, General Powell stated:
Ambassador Annenberg, one of your honorees today, is a dear friend of mine and
is one of America’s leading businessmen and greatest philanthropists. You have
heard of his recent contribution to American education and his generous gift to
Howard. A few years ago I told Mr. Annenberg about a project I was involved in
to build a memorial to the Buffalo Soldiers,3 those brave black cavalrymen of the
3
African American soldiers wishing to remain in the United States Army following the Civil War were eventually
organized into the Ninth and Tenth Cavalry regiments. Their service during the conflict with the American Indians
of the Great Plains proved invaluable, but went unpraised until recent times. Called many names, the soldiers of
these two regiments were dubbed “Buffalo Soldiers.” In 1982, when General Colin Powell was Deputy Commander
at Fort Leavenworth, Kansas, he was appalled by the meager recognition of the Buffalo Soldiers. Two alleys were
named in honor of the 9th and 10th U.S. (Horse) Cavalry. He vowed that if he was ever in a position to do
something to give the Buffalo Soldiers their due honor, he would. The Buffalo Soldiers Monument was officially
dedicated on July 25, 1992 at Fort Leavenworth. More than 10,000 people were in attendance when Senator Robert
Dole brought the message to approximately 500 veterans from the 9th and 10th (Horse) Cavalry Association.
General Colin Powell was the keynote speaker.
6
West whose valor had long gone unrecognized. Ambassador Annenberg
responded immediately, and with his help the memorial now stands proudly at
Fort Leavenworth, Kansas.
The following are only a few selected examples of the Annenberg Foundation’s support for
veteran-related projects and support of the military through grants made by the Foundation:
! David Geffen School of Medicine in UCLA for the Maddie Katz Memorial Fund of
Operation Mend in the plastic surgery division to provide plastic surgery to veterans from
the Iraq and Afghanistan wars.
! New Directions Inc. for the Veterans Capacity Building Project to expand services and
meet the needs of veterans in the Los Angeles area.
! Injured Marine Semper Fi Fund for the Family Support Program to provide financial
assistance to Marines or Sailors injured in combat or combat-related training, and
members of other services injured while supporting Marine units, including family
members in need of travel, food, and lodging while caring for soldiers.
! VetFund Foundation for Project Gold Star to recognize families who have lost a loved
one while serving in the U.S. Military.
! Operation Homefront, Inc. for Emergency Services, which provides support to American
military personnel and their families through assistance with essential needs including
food, bills, overdue rent and mortgage payments, and utilities in San Diego, California.
! National World War II Museum, Inc. for Phase IV of The Road to Victory capital
campaign to further the expansion of the facility located in New Orleans, Louisiana.
! Grant for the Buffalo Soldier Monument in Fort Leavenworth, Kansas.
! Millions of dollars of donations to the Air Force at Colorado Springs, the Army at West
Point, and the Navy at Annapolis.
! Sun Valley Adaptive Sports for the Higher Ground program that helps recently injured
veterans return to work, school, and their communities — working to give veterans the
self-confidence and skills necessary to thrive in order to return to their everyday lives.
III. Executive Summary
This position paper is a product of the Metabolic Studio, a direct charitable activity of the
Annenberg Foundation led by artist Lauren Bon, a director of the Annenberg Foundation. The
Annenberg Foundation has been a leader in the philanthropic support of American civics, with a
proven commitment to veterans, for over half a century. This paper addresses the breach of trust
and the violation of the fiduciary duty of the United States Department of Veterans Affairs
7
(“VA†) in failing to adhere to the restrictions imposed upon it pursuant to an 1888 deed (“1888
Deed†), under which land in West Los Angeles (“WLA†) that was donated to the National Home
for Disabled Volunteer Soldiers (“National Home†) was required to be permanently used as a
home for disabled veterans.
It is the position of the Metabolic Studio that the restrictions imposed under the 1888 Deed
created a charitable (or public) trust under which the National Home had a legally imposed
fiduciary duty as a trustee to permanently use the donated land as a home for veterans.
Consequently, as successor to the National Home, the VA holds the donated land only in the
capacity of a trustee and is subject to such legally imposed fiduciary duty. Under applicable law,
the donated land can only be used in a manner that directly contributes to the provision of a
home for veterans, and the VA is not permitted to divert the use of the land for another or
different purpose,4 even if such other use results in rental or other income to the VA.
Rather than adhering to its obligation under the 1888 Deed, the VA has chosen to jettison the
restrictions placed on the donated land on its own whim. In doing so, the VA has turned its back
on the fiduciary duty that the acceptance of a restricted donation of land imposed upon it.
Indeed, rather than using the donated land as a home for veterans, the status of a veteran on the
WLA VA has shifted from that of “resident†of a home to that of “patient†in a hospital to be
charged, cured and moved on. Moreover, the VA has used the donated land for a multitude of
purposes that, beyond any doubt, do not directly contribute to the provision of a veterans’ home.
Even worse, these other uses effectively bar the use of the donated land from its dedicated
purpose as a home for veterans. Notably in this regard, land-sharing agreements between the VA
and commercial and other organizations continue to put the donated land to uses that have
absolutely nothing to do with providing a home for veterans, but are in fact antithetical to such
use.
This position paper is intended to elucidate the land use issues of the VA of WLA that should be
considered going forward and to serve as evidence of a clear and present need for a discussion
and review of these issues at this stage in the evolution of the 1888 Deed. These issues will move
forward into time well beyond the present and, with utter certainty, the veterans of this country,
including those about to return home from war and the 20,000 veterans living on the streets of
Los Angeles County, are entitled to have them fully considered and reviewed.
4
As discussed below, the 1888 Deed, which originally conveyed 300 acres in WLA as a donation to the National
Home by John P. Jones and Arcadia B. de Baker, contained specifically stated restrictions that required the National
Home to “locate, establish, construct and permanently maintain†a branch home of the National Home on such
property. The Santa Monica Land & Water Company (successor to and owned by John P. Jones and Arcadia B. de
Baker) subsequently contributed another 235.5 acres under an 1899 deed (“1899 Deed†). Although the 1899 Deed
did not contain specifically stated restrictions on the use of the donated property, because the branch home in WLA
was created by an Act of Congress of March 2, 1987 for the sole purpose of having the National Home “locate,
establish, construct, and permanently maintain a branch of said National Home,†the land donated under the 1899
Deed is considered restricted to the same extent as the land donated under the 1888 Deed and, as a result, the VA
has the same fiduciary duty to use the donated land under both deeds as a home for veterans. The primary focus of
this position paper, however, is on the original contribution of 300 acres under the 1888 Deed following the Act of
Congress of March 2, 1887, which authorized the creation of the VA of WLA and its acquisition of land under the
1888 Deed.
8
IV. Background on the National Home for Disabled Volunteer Soldiers
and the West Los Angeles Branch Home
A. National Home Created by Act of Congress to Provide a Home for Veterans
The National Home for Disabled Volunteer Soldiers was incorporated by Congress by the Act of
March 3, 1865, c. 91, 13 Stat. 509. See Exhibit 1 attached hereto for enabling legislation. As a
result of “the federal government accept[ing] responsibility for sheltering citizen-veterans,†5 the
National Home created a series of branch homes for veterans throughout the country, which were
operated by a Board of Managers.6 Originally known as “National Asylum for Disabled
Volunteer Soldiers and Sailors of the Civil War,†after years of encouragement from the Board
of Managers and with no debate, the name was officially changed by Congress on January 23,
1873 to the “National Home for Disabled Volunteer Soldiers†to codify the “domestic character
of this federal institution†7 and to reflect its true purpose: the provision of a home for veterans.
The Military Affairs Committee of the House of Representatives emphasized that the branch
homes of the National Home were to be “homes for the country’s defenders, not asylums for the
helpless poor whom society through the laws of its existence is bound to support.†8
The National Home offered “a generous and dignified space for citizens,†a system of relatively
comfortable, modern, and ornamented branch homes providing veterans with “food and board,
medical care, recreation, religious instruction, and employment opportunities … without
suffering from the stigma afflicting nonveterans forced to seek help from the local poorhouse.†9
The National Home was “not a charity,†but “a home tendered to the veteran … as a partial
remission of the debt the government was obligated to pay†to those “who fought in the nation’s
service.†10 The provision of a home to veterans by the National Home, therefore, was not based
5
Patrick J. Kelly, “Creating a National Home: Building the Veterans’ Welfare State 1860-1990†(1997) (hereinafter
“Kelly†), at 129.
6
The National Home ultimately developed into a network of eleven branch homes across the country before being
absorbed into the Veterans Administration in 1930. Suzanne Julin, “Draft: National Home for Disabled Volunteer
Soldiers; Assessment of Significance and National Historic Landmark Recommendations,†a study completed in
2007 under a Cooperative Agreement between the National Council on Public History and the National Park
Service, Midwest Regional Office (hereinafter “Julin†), at 5-6. This paper by Ms. Julin can be found at:
http://www.nps.gov/history/nhl/Themes/Special%20Studies/NHDVS.pdf. The original Board of Managers consisted
of a governing body of 100 individuals. On March 21, 1886, Congress replaced the original Board of Managers with
a board consisting of only twelve members.
7
Kelly, at 97-98.
8
Kelly, at 7.
9
Kelly, at 123.
10
Judith Gladys Cetina, “A History of Veterans’ Homes in the United States, 1811-1930†(1977) (Ph.D.
dissertation, Case Western University), at 94-96; Florence Wagman Roisman, “National Ingratitude: The Egregious
Deficiencies of the United States’ Housing Programs for Veterans and the Public Scandal of Veterans’
Homelessness,†38 Ind. L. Rev. 103 (2005), at 106.
9
upon a moral obligation to care for the helpless but was based on the concept that veterans in
need had earned the right to be provided for by their country.11
In the years between 1865 and 1870, the Board of Managers established four branch homes of
the National Home.12 During the years 1884 through 1900, the Board of Managers added four
new branch homes, including the “Pacific branch home†in WLA which opened in 1888,13 where
the VA Greater Los Angeles Healthcare System is now located. From its beginning, the Board of
Managers emphasized that the purpose of the National Home was to provide a home for
veterans. For example, an early statement issued by the Board of Managers to notify veterans of
the benefits of the branch homes read, in part, as follows:
The Home is neither a hospital nor alms-house, but a home, where subsistence,
quarters, clothing, religious instruction, employment when possible, and
amusements are provided by the Government of the United States. The provision
is not a charity, but is a reward to the brave and deserving.14 (Emphasis added.)
The first president of the Board of Managers, Benjamin F. Butler, speaking at the dedication of
the Northwestern Branch’s Main Building stated “let no soldier coming here understand that he
is coming to an almshouse. He is coming to his home, earned, richly earned, by him, and it is
his forever.†15 (Emphasis added.) This theme was followed by Louis Gunckel, another member
of the Board of Managers at the time, who stated at the dedication of the Central Branch that
“our constant aim has been to care for the disabled soldier and provide for [him] a home – a
pleasant, comfortable, and happy HOME.†16 (Emphasis added.) The promise that the
government was creating a “‘homelike institution’ … helped legitimize this entitlement, thus
allowing the National Home and its occupants to escape the stigma so often attached to
dependent nonveterans and the institutions built for their care.†17
11
See Julin, at 18. See also 1888 Republican Party Platform, reprinted in 1 Donald Bruce Johnson, National Party
Platforms 82 (1978) (“The government should ‘provide against the possibility that any [person] … who honorably
wore the Federal uniform shall become the inmate of an almshouse, or dependent upon private charity … [I]t would
be a public scandal to do less for those whose valorous services preserved the government.’†)
12
These initial four branch homes were located in Togus, Maine, Dayton, Ohio, Milwaukee, Wisconsin, and
Hampton, Virginia.
13
As discussed further below, the Pacific branch home in WLA was created by an Act of Congress of March 2,
1887, which provided “That the Board of Managers of the National Home for Disabled Volunteer Soldiers are
hereby authorized, empowered, and directed to locate, establish, construct, and permanently maintain a branch of
said National Home for Disabled Volunteer Soldiers to be by such Board located at such place in the States west of
the Rocky Mountains as to said Board shall appear most desirable and advantageous.â€
14
Proceedings of the Board of Managers, September 24, 1890.
15
Chicago Tribune, October 1, 1869.
16
Kelly, at 96.
17
Kelly, at 7.
10
The concept of the branch homes of the National Home truly being a home was supported by the
Victorian ideology of the time.18 The idea of home had a powerful connotation in Victorian
America. The home was seen as the primary unit of society and the most valued locus of care
which provided the most holistic approach to human well-being. By creating a network of
homes, the Board of Managers of the National Home signaled the government’s “intention to
assume the same domestic responsibilities for veterans, offering food, shelter, clothing, and
medical care, as mothers and wives assumed for their families in the nineteenth century
household economy.†19 “This rhetoric of domesticity, then, linked veterans’ institutional care to
the private and bourgeois family house.†20 The branch homes therefore sought to provide a home
for life by catering to the whole person — intellectual, emotional, spiritual, and physical. In an
attempt to create homelike establishments, the branch homes were distinguished in their
architecture and landscaping. “The change in name from ‘asylum’ to ‘home,’ the care taken to
construct aesthetically pleasing campuses and plan attractive grounds, and efforts to provide
entertainment and work all pointed to the Board of Managers’ insistence that the veterans not be
viewed as paupers or dependents, but as men who had earned the right to a government-
provided home.†21 (Emphasis added.)
In keeping with the original home concept of the National Home, the duration of the stay of a
veteran at a branch home was indefinite, whereby the branch home provided life-long or long-
term residences for veterans, consistent with the concept of the permanency of a home. The
branch home approached the veteran as a multifaceted human being with needs beyond only
medical care, so that a veteran living at a branch home was not considered a medicalized patient
who must “recover†and move on, but rather as someone who was being provided with a
permanent domestic living environment.
“Disability†for purposes of admission to the National Home was interpreted broadly to include
not only visible wounds, but invisible recurring illnesses, including those resulting from the
psychological impact of war. A history of the Eastern Branch states of its residents that in
“general these one-time wounded and injured soldiers had long since been patched up, and by the
time they arrived at Togus they were in about as good a shape as they would ever be again. They
weren’t coming primarily for medical care, for on the whole they were fairly hale and hearty.†22
Thus, in addition to admitting amputees and the elderly, the National Home also admitted
seemingly vigorous, young people who, as a result of suffering from the effects of other, less
visually dramatic, wartime effects, were disabled from obtaining their living by their own
18
Kelly, at 93.
19
Kelly, at 94.
20
Kelly, at 94.
21
Julin, at 18.
22
Kelly, at 128; “History of Togus, First Hundred Years†(Togus, Maine, 1976), at 142-143.
11
labors.23 Further, by the mid-1880s, the meaning of disability for purposes of admission to the
National Home had been broadened by the admittance of veterans who became incapacitated in
civilian life.24
B. Branch Home in West Los Angeles Created by Act of Congress
to Acquire Land to Be Permanently Used As a Home for Veterans
The branch home in WLA was specifically authorized by an Act of Congress of March 2, 1887
(“Act†) (see Exhibit 2 attached hereto for enabling legislation), which provided:
That the Board of Managers of the National Home for Disabled Volunteer
Soldiers are hereby authorized, empowered, and directed to locate, establish,
construct, and permanently maintain a branch of said National Home for
Disabled Volunteer Soldiers to be by such Board located at such place in the
States west of the Rocky Mountains as to said Board shall appear most desirable
and advantageous. (Emphasis added.)
The branch home selected by the Board of Managers of the National Home under this Act was
the “Pacific branch home†in WLA which opened in 1888. This is where the VA Greater Los
Angeles Healthcare System is now located. Thus, it was by a very Act of Congress, as
implemented by the Board of Managers, that the branch home in WLA was required to be
located, established, constructed, and permanently maintained as a separate branch home of the
National Home.
Section 2 of said Act further provided:
That all honorably discharged soldiers and sailors who served in the regular and
volunteer forces of the United States, and who are disabled by diseases, wounds,
or otherwise, and who have no adequate means of support, and by reason of such
disability are incapable of earning their living, shall be entitled to be admitted to
said home for disabled volunteer soldiers.
As discussed further above, “disability†for purposes of admission to the National Home was a
broad concept. It included not only visible wounds, but invisible recurring illnesses, including
those resulting from the psychological impact of war and, therefore, in addition to admitting
amputees and the elderly, the National Home also admitted seemingly vigorous, young people
who, as a result of suffering from the effects of other, less visually dramatic, wartime effects, or
as a result of becoming incapacitated in civilian life, were disabled from obtaining their living by
their own labors.
23
Kelly, at 128; U.S. Congress, House, Annual Report of the Board of Managers, 44th Cong., 1st sess.
24
Kelly, at 5 (“[B]y the mid-1880s Congress had dramatically broadened its eligibility requirement by admitting
elderly veterans and veterans incapacitated in civilian life†); Milwaukee Daily Sentinel, February 20, 1867.
12
Section 3 of said Act further provided “That as soon thereafter as practicable from the approval
of this act, the said Board of Managers shall secure the necessary lands and commence the
erection of suitable buildings for the use of said branch.†Pursuant to the Act, the Board of
Managers subsequently made the determination to create a Pacific branch home to be located in
WLA, which opened in 1888, and to accept the land as a donation under the 1888 Deed by John
P. Jones and Arcadia B. de Baker in order to establish such a branch home.
C. The Land of the West Los Angeles Branch Home
As further described in the “West LA VA Property Table,†attached hereto as Exhibit 3,
the land originally donated to the National Home located in WLA was conveyed under four
separate deeds, as follows:
(1) An 1888 deed (“1888 Deed†) conveying 300 acres by John P. Jones and
Arcadia B. de Baker to the National Home.25
(2) An 1888 deed conveying 300 acres by John Wolfskill to the National
Home.
(3) An 1899 deed (“1899 Deed†) conveying 235.5 acres of land by Santa
Monica Land & Water Company (successor to and owned by John P. Jones and Arcadia B. de
Baker) to the National Home. At about the same time as this deed, 20 acres of the originally
donated land by John P. Jones and Arcadia B. de Baker under the 1888 Deed was returned to
them.
(4) A 1921 deed (“1921 Deed†) conveying 35.67 acres by Roy Jones (son of
John P. Jones) and his wife Pauline to the National Home.
The land on which the VA of WLA is currently located is attributed solely to the
donation of land made in 1888 and 1899 by John P. Jones and Arcadia B. de Baker and the 1921
Deed from John P. Jones’ son. This is the case because the land donated in 1888 by John
Wolfskill is now used for the Los Angeles National Cemetery, the WLA Federal Building, and a
Los Angeles City park, with none of such land, therefore, being used by the VA of WLA. As
discussed below, the land donated under the 1888 Deed and the 1899 Deed by John P. Jones and
Arcadia B. de Baker and the 1921 Deed by Jones’ son are subject to the same restriction that
such land be permanently used to provide a home for veterans. Attached as Exhibit 4 hereto is a
current-day map showing the land attributable to each of the four deeds.26 (The colors are laid
25
This deed is discussed in detail in Paragraph V, below.
26
On this map, “Deed A†is the 1888 deed conveying 300 acres by John P. Jones and Arcadia B. de Baker to the
National Home; “Deed B†is the 1888 deed conveying 300 acres by John Wolfskill to the National Home; “Deed Câ€
is the 1899 deed conveying 235.5 acres of land by Santa Monica Land & Water Company (successor to and owned
by John P. Jones and Arcadia B. de Baker) to the National Home; and “Deed D†is the 1921 deed conveying 35.67
acres by Roy and Pauline Jones to the National Home.
13
over a USGS map which admirably depicts the boundaries and neighboring streets but is now
out-of-date in its representation of specific buildings.)
D. Original Use of the West Los Angeles Branch Home As a Home for Veterans
Consistent with the purpose of Congress in creating the National Home, the WLA branch home
sought to provide a home for life by catering to the whole person — intellectual, emotional,
spiritual, and physical. In keeping with the prevailing belief that an aesthetically pleasing
environment promoted social order and increased quality of life, for example, well-known
architect Stanford White designed the home buildings at the WLA branch home, while the
grounds were quickly transformed into “one of the most beautifully arranged and kept parks in
the country.†27 At the WLA branch home (“WLA Home†), entertainment and edification were
considered important for maintaining resident well-being. In the course of their day, a veteran
might browse the WLA Home library’s 5,545-volume collection,28 join the WLA Home baseball
team, find “an unfailing source of entertainment†29 in the WLA Home aviaries, or undertake paid
work at the home.30 In addition, a regular stream of people came to visit the WLA Home and
meet the “old soldiers†(17,912 in 1893),31 the home band performed daily, often followed by
talks, movies, magic lantern shows and, on at least one occasion, an aerial acrobatics display.
Residents in uniform who wished to attend were admitted free of charge to all events.32
Attached hereto as Exhibit 5 are a series of historical photographs depicting the original use of
the WLA branch home, including the homes, gardens, landscapes, and recreational and other
facilities that created a domestic environment and a home life for veterans.
27
“Soldiers’ Home Pacific Branch, California,†The Daily Outlook, Santa Monica. Quoted in Cheryl L. Wilkinson,
“Forgotten Saviors: Disabled Civil War Veterans in West Los Angeles, A History of the Pacific Branch of the
National Home for Disabled Volunteer Soldiers 1888-1915†(2008).
28
News Notes of California Libraries, Volumes 1-2, California State Library, 1907, pp. 43 (viewable on Google
Books).
29
“Soldiers’ Home: Birds Entertain Veterans,†Los Angeles Times, Nov 15, 1903.
30
For the fiscal year ending June 30, 1908, the Home employed 83 civilians and 433 members on extra duty, with
pay, the latter, under salaries varying from $8 to $75 per month: “Close To Million,†Los Angeles Times, July 26,
1908. (See Exhibit 6 attached hereto.)
31
“Soldiers Home. The Annual Report of the Governor,†Los Angeles Times, July 19, 1893. (See Exhibit 7 attached
hereto.)
32
Los Angeles Times, August 29, 1913: “On Monday [the veterans] enjoyed combined band concert and moving
picture show. On Tuesday evening, a lecture on travels attended by stereoptican views… a band concert and moving
picture exhibition will take place on Thursday evening. Col. F. W. FitzGerald will, on Friday evening, recite his
“Epic on the Holy Land†… and on Saturday the Soldiers’ Home baseball club will contend with a nine from
Orange on the Home Field.â€
14
V. Description of 1888 Deed Transferring Donated Land
to West Los Angeles Branch Home
The 1888 Deed, attached hereto as Exhibit 8, conveyed 300 acres of land in WLA by John P.
Jones and Arcadia B. de Baker to the National Home. The deed contained a “WITNESSETHâ€
clause, specifically recognizing an Act of Congress of March 2, 1887, whereby the Board of
Managers for the National Home was authorized “to locate, establish, construct and
permanently maintain a branch of said National Home for Disabled Veterans†33 located
West of the Rocky Mountains. The branch home selected by the Board of Managers under this
Act was the “Pacific branch home†in WLA which opened in 1888, where the VA Greater Los
Angeles Healthcare System is now located. This “WITNESSETH†clause in the 1888 Deed
specifically reads as follows:
WITNESSETH: That whereas by an act of Congress approved March 2nd, 1887,
to provide for the location and erection of a branch home for disabled volunteer
soldiers West of the Rocky Mountains, the Board of Managers of the National
Home for Disabled Volunteer Soldiers, were authorized, empowered and directed
to locate, establish, construct and permanently maintain a branch of said
National Home for Disabled Volunteer Soldiers, to be by such Board, located
at such place in the States West of the Rocky Mountains as to said Board should
appear most desirable and advantageous. (Emphasis added.)
The “WITNESSETH†clause under the 1888 Deed further acknowledged that, consistent with
the Act of Congress of March 2, 1887, the land donated by the donors was subject to the express
restriction that the purpose of the land be used “to locate, establish, construct and
permanently maintain such branch of said National Home for Disabled Volunteer
Soldiers,†specifically providing as follows:
And whereas, the parties hereto of the first part [Jones and Baker] in consideration
that the party hereto of the second part [The National Home for Disabled
Volunteer Soldiers] should locate, establish, construct and permanently
maintain a branch of said National Home for Disabled Volunteer Soldiers on
a site to be selected by its Board of Managers along the dividing line between the
Ranchos San Jose de Buenos Ayres and San Vicente y Santa Monica offered to
donate to the said party of the second part, three hundred acres of land, being a
portion of said Rancho San Vicente y Santa Monica, belonging to them, the said
parties of the first part, on which to locate, establish, construct and
permanently maintain such branch of said National Home for Disabled
Volunteer Soldiers. (Emphasis added.)
The “WITNESSETH†clause under the 1888 Deed further acknowledged that in consideration of
the offer of the donated land by the donors, the Board of Managers had selected the land offered
33
In all, the 1888 Deed contains five separate references to the donated land being used to locate, establish,
construct and permanently maintain a branch home.
15
by the donors “for the purposes aforesaid,†as a result of which the National Home expressly
accepted the land to be used “to locate, establish, construct and permanently maintain such
branch of said National Home for Disabled Volunteer Soldiers.†(Emphasis added.)
Finally, the actual conveyance language under the 1888 Deed also specifically provided that the
conveyance of the land by the donors was “in consideration of the premises and of the location,
establishment, construction and permanent maintenance of a branch of the National
Home,†specifically stating:
Now therefore, in consideration of the premises and of the location,
establishment, construction and permanent maintenance of a branch of said
National Home for Disabled Volunteer Soldiers on such tract of land so
selected and of the benefits to accrue to the said parties of the first part, owners of
the said Rancho San Vicente y Santa Monica, by such location have given and
granted and by these presents do give and grant unto the said party of the second
part, all the following described land and premises, situate lying and being in the
County of Los Angeles, State of California and particularly bounded and
described as follows … for the purpose of such branch Home for Disabled
Volunteer Soldiers to be thereon so located, established, constructed and
permanently maintained. (Emphasis added.)
VI. 1888 Deed Created a Charitable (or Public) Trust Requiring That
Donated Land Be Permanently Used by VA As a Home for Veterans
A. Applicable Law Establishes That a Charitable (or Public) Trust Is Created
When Land Is Donated to a Governmental Entity Subject to a Deed
Restriction That Land Be Used for Charitable or Public Purpose
Where a donor donates land to a governmental entity and the deed conveying the
property expresses the donor’s intention for the land to be permanently dedicated for a specified
charitable use for the benefit of an indefinite class of persons, a charitable trust is created and the
governmental entity is considered the trustee.34 See City of Palm Springs v. Living Desert
Reserve, 70 Cal.App.4th 613, 82 Cal.Rptr.2d 859 (1999),35 and authorities cited therein and case
34
Because the present matter involves real property, the law that would be applied by the courts of the situs of the
real property governs. Rest.2d, Conflict of Laws § 279. Accordingly, this position paper focuses on the law of
California, where the donated land is located, which was also the state in which the donors and donee were located.
Indeed, in the case of Farquhar v. U.S., 912 F.2d 468 (1990), which involved the very land donated under the 1888
Deed, California law was applied. Decisions of courts in other jurisdictions are also cited, however, to provide
further guidance on the issues presented in this matter. In addition, given the fiduciary trust duties at issue, federal
common law would also be applicable. See e.g., White v. Matthews, 420 F.Supp. 882 (D. South Dakota (1976)
(where the court stated that the reference to “laws†under the United States under 28 U.S.C. § 1331 “include federal
common law†and that the plaintiff’s well-pleaded reliance upon “trust responsibility†under federal common law
provided a “sound basis for invoking federal jurisdiction†under 28 U.S.C. § 1331).
35
In City of Palm Springs v. Living Desert Reserve, the city accepted 30 acres of donated property on the express
condition set forth in the deed that it be used in perpetuity as a desert wildlife preserve. The deed further provided
that if the city failed to use the land for such purposes, the land should be conveyed to the Living Desert Reserve.
16
law discussed below. In the context of a deed conveying donated land, the intention of the donor
is of paramount importance. City of Manhattan Beach v. Superior Court, 13 Cal.4th 232, 52
Cal.Rptr. 82 (1996). Such intention is determined “from the words which have been employed in
connection with the subject-matter, and from the surrounding circumstances†existing at the
“time of the execution of the deed.†Berkeley Hall School Foundation, 40 Cal.App.2d31, 103
P.2d 1052 (194); Goddard v. Coerver, 100 Ariz. 135, 412 P.2d 259 (1966). A court may also
rely upon recitals in the deed. Murphy v. Bilbray, 1997 WL 754604 (S.D. Cal. 1997).
It is not necessary that any particular words or conduct be manifest to create a charitable trust,
and a charitable trust may be created without using the words “trust†or “trustee.†Goddard v.
Coerver, 100 Ariz. 135, 412 P.2d 259 (1966), citing Scott on Trusts § 24-25 (2d ed. 1956);
Restatement (Second) of Trusts 2d § 24. Moreover, the law favors gifts made for a charitable
purpose and a court will liberally construe the document making such a gift to accomplish the
intent of the donor. In Re Estate of Breeden, 208 Cal.App.3d 981, 256 Ca.Rptr. 813 (1989);
Estate of Tarrant, 38 Cal.2d42, 237 P.2d 505 (1951).36 Charitable purposes that will support the
creation of a charitable trust are broadly defined to include such things as the fulfillment of
governmental purposes, relief of poverty, promotion of health, and the furthering of other
purposes the accomplishment of which is beneficial to the community or some class indefinite as
to numbers and individuals. Walton v. City of Red Bluff, 2 Cal.App.4th 117, 3 Cal.Rptr.2d 275
(1991), citing Restatement (Second) of Trusts, § 368; People v. Cogswell, 113 Cal. 129, 45 P.
270 (1896); Restatement (Second) of Trusts, § 368. “[G]ifts in aid of governmental purposes are
uniformly held to be for charitable purposes,†Estate of Hart v. County of Los Angeles, 151
Cal.App.2d 271, 311 P.2 605 (1957); Murphy v. Bilbray, 1997 WL 754604 (S.D. Cal. 1997), as
are donations for promoting the welfare of mankind at large, or of a community, or of some class
The court noted that the property was conveyed for a charitable purpose (“the fulfillment of general municipal or
other governmental purposes†), but raised the following question: “[W]as the Land given to the city in trust, or in
fee simple subject to a condition subsequent?†The court noted that when a charitable trust is created in such a
situation, the “legal title or the res or corpus of any held by the trustee, but the beneficiaries own the equitable estate
or beneficial interest.†Because the deed contained a forfeiture provision in the event of the city’s breach, the court
held that although the transfer of the land to the city was for a charitable purpose, the deed created a fee simple
subject to a condition subsequent, rather than a charitable trust. In the present matter involving the 1888 Deed, there
is no forfeiture provision, so that, contrary to City of Palm Springs v. Living Desert Reserve, the deed would not
convey a fee simple interest subject to a condition subsequent, but would create a charitable trust. Note, however,
that even in the face of a forfeiture clause, there is case law in California holding that where the deeded property is
restricted for a public purpose in all events (including upon a forfeiture), a charitable trust will be created. See
Estate of Hart, 151 Cal.App.2d 271, 311 P.2d 605 (1957), holding that land dedicated for a public park created a
“charitable trust,†stating that a “public trust arises by operation of law where a municipal corporation accepts a
grant of real property for park purposes.†In that event, the municipality holds the property “as trustee of a
charitable trust for the benefit of the public in general.†Hart v. Country of Los Angeles, 260 Cal.App.2d 512, 67
Cal.Rptr. 242 (1968).
36
See Estate of Tarrant, 38 Cal.2d 42, 46, 237 P.2d 505 (1951) (“It is the policy of the law to favor gifts for
charitable purposes, and a will providing such gifts will be liberally construed in order to accomplish the intent of
the donor†); Estate of Breeden, 208 Cal.App.3d 981, 256 Cal.Rptr. 813 (1989) (charitable trusts are favored and will
be upheld if the indenture “can possibly be construed as valid by applying liberal rules of construction designed to
accomplish the intent of the trustor or testator†); Murphy v. Bilbray, 1997 WL 754604 (S.D. Cal. 1997) (“As a
general rule, charitable trusts are favored under the law and it is the duty of the court to carry out the dominant
p
