NC Supreme Court will take up lawsuit over removal of downtown Asheville's Vance Monument

ASHEVILLE - The N.C. Supreme Court will take up the case surrounding the fight over removal of a downtown monument honoring a confederate-era governor, which could mean months of waiting as the fate of Asheville's Vance Monument is decided.

In a Dec. 16 order, the Supreme Court blocked an April judgement from the N.C. Court of Appeals, which ruled in favor of the city and allowed removal of the monument, and agreed to review the case.

The initial lawsuit was filed by the Society for the Historical Preservation of the 26th North Carolina Troops in March 2021 as City Council voted to remove the monument, and the new orders from the Supreme Court further stall an already lengthy legal process, one that will soon stretch over more than two years.

Previous coverage: NC Supreme Court issues Vance Monument stay order; city responds to request for appeal

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City Attorney Brad Branham reiterated Dec. 28 that the city has been successful in every level of the state courts so far, both Buncombe County Superior Court and the N.C. Court of Appeals, and though "you never know what the court will do," the city feels confident in its arguments, "and it’s a matter of time now until we get some final decision from the courts.”

“I think it’s status quo," Branham said. "We were ready to be done, we had hoped that the court would simply uphold what had already been decided in the Court of Appeals, but this decision to take it up does nothing to substantively decide the case, it really is a continuation of where we’ve been.”

Background of the case

The lawsuit surrounds the 75-foot-tall granite Vance Monument, which stood in Pack Square Plaza in the heart of downtown Asheville since 1898, all but its base taken down as of June 2021 after Asheville City Council voted 6-1 to remove it March 23 of that year.

The society is seeking to stop the removal and potentially reconstruct the monument to former Civil War-era Gov. Zebulon Vance.

Vance opposed rights for Black people, and his family enslaved people prior to the Civil War. As a U.S. congressman, Vance wrote denigrating things about Black people, saying their blood contained "a putrid stream of African barbarism."

On April 5, the state Court of Appeals ruled in the city's favor, affirming a lower court judgment to dismiss the lawsuit and allowing removal of the monument. Later that month, Edward Phillips, lawyer for the Historical Preservation group, which brought the challenge against the city, filed a petition for discretionary review with the Supreme Court.

The city urged the Supreme Court to reject the appeal, but nearly eight months later, the Supreme Court has made its decision to hear the dispute.

“I am hopeful because I believe that the Supreme Court understands, or in their view, they think something was wrongly decided by the lower courts, that’s a potential," Phillips said of the new court order in a Dec. 28 interview with the Citizen Times. "That’s really where we stand in a nutshell today.”

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The orders signed by Justice Phil Berger Jr. offer no explanation for the decision, nor any timeline moving forward.

The next step, said Branham, requires the plaintiff to submit a brief within 30 days. The city will then respond. He said the court may or may not decide that it wants to hear oral arguments, as well.

“It’s a fairly lengthy process if the court decides to go through the entirety of it," Branham said. "This can take several months, sometimes even a year, before final decisions are rendered by the Supreme Court.”

In 2023, the North Carolina Supreme Court will have a new partisan makeup, with Republicans holding a 5-2 majority on the panel following the November general election.

As litigation continues, the court has issued a stay on any further demolition of the Vance Monument or its deconstructed materials, which are being held by the city in an undisclosed "secure" location.

In its May response to Phillips' petition for review, the city reiterated the arguments that have driven much of the case over the last year — that a 2015 donation agreement with the society did not obligate the city to maintain the Vance Monument in place.

The initial lawsuit filed by the society alleged a breach of contract between the two after the group raised more than $138,000 in 2015 to restore the monument.

Phillips said the Supreme Court's decision to hear the case was an "affirmation" for his client, and argues the restoration effort undertaken by the society was meant to ensure generations of Ashevillians would have access to the monument moving forward.

"That’s part of the contract, and (the city) approved language that connoted … that there was going to be longevity to this," Phillips said. "It was just not simply keeping it for another five years, tearing it down and then wanting to destroy it.”

Phillips said he has already begun drafting his legal brief.

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Does the dismissal of Winston-Salem monument case set a precedent?

The Supreme Court order in the Vance Monument case came the same day as its ruling in a similar case, a longstanding dispute over the 2019 decision by Winston-Salem officials to remove a more than century-old Confederate statute near the old Forsyth County courthouse.

The Winston-Salem case has been a touchstone in the Vance Monument litigation, with both the city and the plaintiff referencing it in their legal arguments.

In the Winston-Salem case, the Supreme Court ruled that the local chapter of United Daughters of the Confederacy lacked standing to challenge the Winston-Salem's removal of a Confederate monument on private property, but can refile a future lawsuit making similar arguments, according to reporting from the Associate Press.

Branham noted that in the Winston-Salem opinion, the Supreme Court came down "favorably" for the city, which could indicate a legal precedent moving forward.

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“This is one of the first times in this state that this particular issue has been addressed, not only by a court, but by the highest court," Branham said.

Of the two cases, Branham said, “the parties are similar, the facts are extraordinarily similar, and if you have taken the time to read any of the previous legal filings from the parties, even the plaintiff has suggested on multiple occasions that the case out of Winston-Salem would and should have a tremendous bearing on our case."

Though Branham argued the Winston-Salem decision strengthened the city's argument, Phillips took another tack. He said if the court believed the outcome of the case was conclusive, and nothing further needed to happen, then it would not have granted his request for review in the Vance Monument case.

He noted that the Supreme Court opted to remand the Winston-Salem case to the Forsyth County Superior Court for further proceedings.

$111K reimagining of Pack Square Plaza continues

Further complicating the matter is the city's ongoing visioning process for the future of Pack Square Plaza, where Vance Monument once stood. In July, the city embarked on a $111,000 contract with McAdams Co., a Durham-based civil engineer firm, to lead the process.

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The effort will culminate in the development of a vision document that will guide the design, programming and management of the space, including the former monument site.

Branham said the city has considered how this initiative will be impacted by the ongoing litigation, and said they feel confident that the planning process will not conflict with the stay order on the monument site and materials. Only once they reach the point where the city is ready to begin developing the area, will they have to make a determination of how to proceed.

“There could be some physical delay, but nothing to stop us from what (is) currently ongoing,” Branham said.

Phillips said he did not think it was prudent for the city to continue with the process, given the circumstances.

“I respect the city of Asheville, I disagree with them on this particular issue, and we are at loggerheads on it,” Phillips said of the Vance Monument case.

“The one thing that is interesting, is they have gone ahead and moved forward with their reimagining plans. If the city of Asheville were my client, I would have told them to wait, because you don’t know what’s going to happen, and why spend the money until you know for sure?"

The waiting game

The decision to remove the monument did not come cheap. According to previous Citizen Times reporting, the court-ordered halt on the removal of the monument in June 2021 reached at least $31,824 in additional costs the first three weeks, on top of the original $114,150 contract to remove the monument.

But Branham said a loss in the Supreme Court would not necessarily mean the city must rebuild the monument and foot the bill.

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“If (the plaintiff is) successful in the Supreme Court, it is not a final decision in their favor,” Branham said. “What it would mean is the city would not be entitled to have the plaintiff’s case dismissed, so in other words, it would travel all the way back to the Superior Court, to simply continue the litigation process, which could end up in an eventual trial.”

He said the question now being battled out in the courts is if the plaintiff has the right to litigate the issue and overcome the city's motion to dismiss the suit.

“If the city is successful, at this point we will have exhausted all state court options,” Branham said. “I think the city would likely immediately proceed with final removal of the monument and revisioning Pack Square.”

Sarah Honosky is the city government reporter for the Asheville Citizen Times, part of the USA TODAY Network. News Tips? Email shonosky@citizentimes.com or message on Twitter at @slhonosky. 

This article originally appeared on Asheville Citizen Times: NC Supreme Court takes up suit on Asheville removal of Vance Monument