State’s highest court rejects lawsuit over Asheville’s Confederate monument removal

Zebulon Baird Vance monument was torn down in 2021 after approval from the Asheville City Council. Public domain image.

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  • The North Carolina Supreme Court has rejected a lawsuit challenging Asheville's removal of a Confederate statute in 2021.
  • Justices reached the same conclusion as lower courts, though the high court's opinion criticized the Court of Appeals for the way in which it addresses the plaintiffs' standing to bring the lawsuit.
  • Plaintiffs had claimed Asheville breached a contract to maintain the monument. Justice Phil Berger Jr. wrote that the plaintiffs failed to argue the merits of their breach-of-contract claim.

A unanimous North Carolina Supreme Court has rejected a lawsuit challenging Asheville’s removal of a downtown Confederate monument in 2021. It’s the same end result reached at lower courts, though Supreme Court justices reached their decision for different reasons.

The high court took issue Friday with the state Court of Appeals’ 2022 decision in the case. The Appeals Court upheld a trial judge’s decision supporting the monument’s removal. But appellate judges made a mistake when rejecting the plaintiffs’ standing to bring the lawsuit, according to the Supreme Court opinion.

“The Court of Appeals’ misapprehension of these issues would alone warrant reversal of its conclusion that plaintiff lacked standing to bring its breach of contract claim,” wrote Justice Phil Berger Jr. “Nevertheless, we take this opportunity to reiterate that ‘[w]hen a person alleges the infringement of a legal right arising under a cause of action at common law, a statute, or the North Carolina Constitution, … the legal injury itself gives rise to standing.’”

“Where a party alleges the existence of a valid contract and that such contract has been breached, that party has alleged a legal injury that gives rise to standing,” Berger wrote. “Here, the Court of Appeals reasoned that plaintiff lacked standing because it failed to ‘sufficiently allege a breach of contract claim.’ This failure goes to dismissal under Rule 12(b)(6) for failure to state a claim, not dismissal under Rule 12(b)(1) for lack of standing.”

“However, the end result is the same,” Berger explained. “The Court of Appeals alternatively affirmed the trial court’s dismissal of plaintiff’s breach of contract claim pursuant to Rule 12(b)(6), and plaintiff failed to argue the merits of its breach of contract claim in its brief to this Court.”

“[T]his issue has been abandoned by plaintiff,” Berger added.

“[W]e reverse the Court of Appeals’ determination that plaintiff’s breach of contract claim should be dismissed for lack of standing,” he wrote. “However, plaintiff abandoned the merits of its breach of contract claim in its appeal to this Court. Therefore, plaintiff has failed to assert any ground for which it has standing to contest removal of the monument.”

The high court heard oral arguments in the case last November.

The Society for the Historical Preservation of the 26th North Carolina Troops brought the suit against the city.

Erected in 1898, the monument to former governor and Confederate officer Zebulon Baird Vance was torn down with nothing but the base remaining in 2021 after Asheville’s City Council voted for its removal.

In April 2022, the NC Court of Appeals issued a ruling in favor of the City of Asheville on an appeal of a lower court lawsuit brought by the historical preservation group over the city’s decision to remove the monument, which the group argued was a breach of a contract it had entered into with the city.

The state Supreme Court entered an order later that year blocking the Appeals Court ruling and agreeing to take up the case for review.

Edward Phillips, who represented the historical preservation group before the court, argued that the city entered into a 2015 contract that the city must honor after making a $130,000 donation toward preservation efforts for the monument.

Other arguments by Phillips centered on enforcing NC state law regarding monument preservation and removal under the Monument Protection Act of N.C. Gen. Stat. § 100-2.1. Phillips contended that application of the law to the facts of the case did not warrant removal of the monument.

The justices questioned the issue of whether the historical preservation group had standing to bring the action under a contract claim and under the Monument Protection Act. Standing refers to requirements over whether a party has the capacity to bring a lawsuit to court.

Phillips presented arguments stating the group did have standing based on the residency of the group’s president as a taxpayer and resident of Buncombe County and the fact that the group and the City of Asheville entered into an enforceable contract which the city must abide by.

“Asheville argues that this is merely a donation agreement,” Phillips said in response to a potential counter argument from the defendant-appellee. “Thus, appellants have no standing. However, the intent of the donor and donor organization are quintessential reasons why standing exists. No entity or individuals undertake an extensive restoration on an almost 117-year-old monument with the belief that such restoration is not meant to preserve the restored monument well into the future. This is evident from the words on the plaque commemorating the 2015 restoration approved as part of the contract.”

Phillips’ final argument rested on whether the city and the state of North Carolina are required to comply with the Monument Protection Act.

“The final issue comes down to whether political subdivisions of this state and the executive branch are not only bound by the requirements of the monument protection act, but whether these entities will enforce the law and if not, whether enforcement of the same is available through a private right of action,” he said. “Nevertheless, whether a private right of action exists may not be controlling as to the contract and subsequent restoration, which may be sufficient to prevent the monument’s removal and destruction by the City of Asheville who has partnered with the 26th North Carolina for that restoration.”

Questions from the justices revolved around issues of contractual obligations and how they relate to standing. The justices also asked the parties whether obligations under the contract required Asheville to keep the monument in place.

The City of Asheville was represented by City Attorney Eric Edgerton, who countered Phillps’ arguments by stating that the historical preservation group lacked standing to sue and that issues over interpretation and enforcement of the contract were not applicable to the case.

“There is a total absence of any express condition or requirement in the contract that the city of Asheville maintain the monument in place for all of eternity,” Edgerton argued to the court. “That’s unambiguous. There’s nothing that anyone could point to or ask about that suggests an obligation to maintain the monument in place for all time.”

Edgerton also argued that the historical preservation group’s assertion of standing was in error according to prior case law and the standards set forth under N.C.’s Declaratory Judgment Act.

“The current standard is now unambiguous,” said Edgerton. “There’s no longer a direct injury requirement in order to bring a case under the Declaratory Judgment Act in North Carolina, but there is a requirement that the plaintiff be able to demonstrate that there is a specific legal right that they have, created by a statute that is being infringed by the government in order to have standing. That’s not present in this case.”

One of the City’s justifications for the removal of the monument in 2021 was based on the public safety risk created by its continued presence in Pack Square Park due to the civil unrest resulting from the death of George Floyd the summer before. Edgerton highlighted the risk posed by the monument in his argument to the justices.

“The city can remove a monument if there is a risk to public safety under the Monument Protection Act,” he said. “In July of last year, it was the target of a bombing severe enough that the FBI was required to investigate.”