State Appeals Court rejects lawsuit challenging Alamance Confederate monument

The North Carolina Court of Appeals has rejected a lawsuit challenging the Confederate monument outside the Alamance County Courthouse in Graham. Tuesday’s unanimous decision affirmed a trial judge’s ruling against monument critics.

State and local NAACP groups led a 2021 lawsuit against the county. Plaintiffs argued that county commissioners’ “maintenance and protection” of the monument was unconstitutional, according to the Appeals Court opinion.

“[W]e conclude that Defendants lack authority from our General Assembly to remove the Monument based on N.C. Gen. Stat. § 100-2.1 (the ‘Monument Protection Law’ or the ‘Law’) and that the Monument Protection Law as applied in this dispute is constitutional,” wrote Chief Judge Chris Dillon.

“The record conclusively shows that the Monument is a monument located on public property which commemorates military service that is part of North Carolina’s history,” Dillon wrote. “In so concluding, we note our federal government recognizes that service in the Confederate Army qualifies as ‘military service.’ “

“We further note that North Carolina recognizes ‘Confederate Memorial Day’ as a legal public holiday,” he added. “Thus, we conclude as a matter of law that the Monument was of the type intended to be covered by the General Assembly when it enacted the Monument Protection Law.”

State law blocked county commissioners from removing the monument, appellate judges agreed. “[W]e conclude the General Assembly has not clothed Defendants with authority to remove the Monument under the facts of this case,” Dillon wrote.

The Appeals Court rejected arguments that Alamance commissioners acted with discriminatory intent. “Defendants’ intent in not relocating the Monument is irrelevant in this case,” Dillon said. “Even if some of the Defendants had a discriminatory intent, as alleged by Plaintiffs, that intent was not the reason that the Monument has remained in front of the courthouse — the Monument has remained in place because the Monument Protection Law forbids Defendants from moving the Monument.”

“Defendants’ hands are tied — even if they wanted to move the Monument, they could not,” Dillon added.

The Appeals Court dismissed the argument that spending tax money to protect the monument was unconstitutional.

“Defendants spent funds on the law enforcement response to protests at the Monument and on the erection of a fence to protect the Monument,” Dillon wrote. “There is no doubt that expenditures for public safety and protection of county-owned property serve a public purpose. Public safety is a primary objective of local government, as carried out by law enforcement, and supports the county’s general welfare by maintaining a safe environment for the community. And preventing damage to county-owned property saves the county from paying for repairs later on when the property is damaged.”

The opinion tackled critics’ argument that the Confederate monument violated the state’s constitutional obligation to have “open courts.”

“We conclude that the Open Courts Clause does not prohibit the placement of an object of historical remembrance in or around a courthouse, though some may find offense,” Dillon wrote. “Indeed, in many courthouses and other government buildings across our State and nation, there are depictions of historical individuals who held certain views in their time many today would find offensive.”

“In this case, Plaintiffs fail to show they are denied the Clause’s guarantees,” Dillon added. “They do not contend that the Alamance County courthouse is not regularly in session or that legal remedies are being withheld, nor do they contend that trials are closed to the public or that criminal defendants are denied speedy trials.”

Judges Donna Stroud and Valerie Zachary joined Dillon’s opinion.

The same panel heard oral arguments in the case last November.

“This particular monument — not all Confederate memorials, certainly not all monuments — but this particular one in Alamance County, situated as it is on the place where Mr. Wyatt Outlaw was lynched in 1870, dedicated in 1914 by someone who praised the monument as standing as a memory to the great achievements of our own race and blood, dedicated by Mr. Henry London, who was on record as wanting to purge North Carolina of the ignorant Negro vote, … we have laid out plenty of evidence that this particular monument commemorates white supremacy,” argued Mark Fleming, the Boston-based lawyer representing the plaintiffs.

“This case is not about whether you like or dislike Confederate monuments,” argued Christopher Geis, the Winston-Salem-based attorney representing Alamance County. “It’s about the rule of law, and whether we are going to — as a court and as a society — honor the rule of law, even when that law might not be popular with some.”

Geis pointed to the 2015 state law banning the removal of historical monuments from public property. “The Alamance County monument was erected 109 years ago, and the law was passed eight years ago,” Geis said. “Nothing has changed in the intervening time periods except the opinions of some people that the monument does not belong there.”

“This monument controversy has been going on for eight years and five months,” Geis added. “Four eight years and four months of that time, that monument law has been in place — tying the county’s hands.”

Opponents argued that a state law could not stand in the way of their claim that the Alamance monument represents racial discrimination. “The Constitution has to trump the statute,” Fleming argued. “It’s the supreme law of North Carolina. We don’t think there’s any question about that, which is why I say the monuments law is in many ways a red herring here.”