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Court rejects city’s motion to dismiss Vance Monument case on basis of missed deadlines: Preservationists’ attorney likens his fight with city to Moses’ challenges
Saturday, 02 October 2021 11:40
By JOHN NORTH
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The North Carolina Court of Appeals on Sept. 21 denied the City of Asheville’s Sept. 8 motion to dismiss the case between the city (the defendant) and the Society for the Historical Preservation of the Twenty-Sixth North Carolina Troops Inc., the plaintiff.

H. Edward Phillips III, the preservationists’ attorney,  confirmed the court’s denial of the city’s motion during a lengthy interview midday Sept. 25 with the Daily Planet.

He noted that the court — also — denied the city’s two motions that it be reimbursed for attorney’s fees in the case and denied a city motion that the 26th cover Asheville’s costs of deconstructing the monument and storage.

The city filed its motion for dismissal of the case after “repeated missed deadlines” by Phillips over what the Asheville Citizen Times described in a Sept. 14 story as “the local legal fight over another prominent Confederate’s marker.” 

At one point in his interview with the Daily Planet, Phillips said he is no Moses, but that his struggle with Asheville makes him feel as if he is facing a plight similar to that of Old Testament prophet squaring off with King Ramses II, who, like all pharaohs, claimed to be “divine.” 

(According to the Old Testament, Ramses was vicious with Moses and the Israelites and, in turn, was beset with plagues. 

(“Moses is the most important Jewish prophet,” the website vox.com noted. “He’s traditionally credited with writing the Torah and with leading the Israelites out of Egypt and across the Red Sea. In the book of Exodus, he’s born during a time when the Pharaoh of Egypt has ordered every male Hebrew to be drowned.”)

 Phillips asserted, “It’s been a huge battle before the (state) Court of Appeals, which I don’t mind, but it’s just one of those things where you sit back and you just kind of have to ask yourself why this thing has been moving so fast and furious, with all these motions filed by the city going into this thing.  

“At the same time, I have a responsibility to put a record together for the Court of Appeals. Their (the city’s) latest thing has been that I’ve not done that in a timely manner — and that everything I’ve done has not been timely.”

“I suppose there are political issues — a number of things putting pressure on them (the city)… It’s one of those things where we each have to serve our clients. But in serving our clients, we still can be — in my opinion — civil with each other, as officers of the court.

“Sometimes, when you look at these things, you kind of scratch your head. There have been charges against me (by the city) in the (state) Court of Appeals. 

“The way I look at it, I’ve been practicing a long time… What it comes down to is (that) I started practicing in a different time, I suppose. I had lawyers who had attended law school and began practicing just before World War II — I had them as mentors. So when you come in, you expect civility, etc., but...

“At certain times, a phone call or an email go a long way. If we’re so focused on what we’re doing (as attorneys), we really (can easily) forget about the human side of the practice of law. 

“This latest thing (with the City of Asheville) … I’m not criticizing counsel by any stretch of the imaginition, but I just wish he  — City Attorney Brad Branham — had just picked up the phone. To me, it’s just simply one of those things where, at the end of the day, it’s more than a job, it’s also your life, in many ways, because you’ve dedicated so much to eduction to learn how to do this… 

“I remember as a young lawyer,” Phillips had as a mentor Ted Pappas, who “was at the Battle of the Bulge, which he didn’t like to talk about. Watching this man apply his (law) practice was amazing. He told me one time, ‘The practice of law is changing. You’ve gotten to see the way it has been and the way we hope it will continue to be. But we’ve got these younger folks coming in with a way that’s different.’ He didn’t say that it being different was bad. And part of that was the impact of technology. Everything’s instantaneous now. When you do that, you lose the human side.. the camaraderie. I think we owe it to ourselves to at least get to know the attorneys on the other side.

“This human contact, this teamwork, has shifted to a different form… That’s part of the underlying issue in society and the practice of law. That’s all great, but we also have to ask: ‘What is the human cost of all of this?’

“What I’ve seen in these (Confederate) monument cases … It’s becoming very dark. And that dark place is foreboding of where our society is heading. I surely don’t expect everyone to agree with me — or everyone to like me. That’d be unrealistic. 

“But there’s this underside of it… We’ve talked before of revenge… When I was a young lawyer, I would have talked to an older lawyer whether something rose to a higher level. That senior attorney would say, ‘Sit down, let’s discuss this…’ There’s a lot that older, more-seasoned attorneys have seen” that would prompt them to caution him that ‘You may be right, but I’d couch it in these terms.’

“And quite frankly, I wish we (the City of Asheville attorneys and him) could have talked about some of these things … And the allegation that I misrepresented the facts to the court… At the end of the day, all I want to do is do the best I can on behalf of my client — and do what I believe is right under the law. 

“And, if I’m told, ‘You’ve failed,’ as long as I’ve done the best I can... that’s all that can be asked of you. And I don’t begrudge the city to have this position, but at some level, it’s hurtful. I’d certainly never intentionally misrepresent anything to a court, because it’s just wrong.

“So the initial appeal was filed, then I filed an emergency motion. Asheville had filed a response to my initial motion. Then they used their time to ‘run down the clock’… From there, the court issues that order to further stop deconstructing the Vance Monument. So at that point, the city files a motion for a bond, asking my client to cover the cost. I filed against the bond. They also filed twice for attorney’s fees. 

“I acquiesced — after talking to my client — on the city giving a briefing, as long as we got to give a briefing, too. I had problems with their copies and clarity. And I’m grateful that the city later sent ‘clean’ copies. It was still being compiled and we were fighting deadlines.”

Phillips added, “So at that point, they (the city) filed a response to my request for a stay of the entire appeal until the Court of Appeals deals with the Winston-Salem (Confederate monument) case with the United Daughters of the Confederacy.

‘In my motion, I said many of the issues were identical. I attached the actual notice of appeal filed by the UDC’s counsel before the (state) Supreme Court. Yes, it is true there are property issues” as well.

Phillips said the No. 1 issue is: “Does the (state) Monument Protection Act apply? If it does, what are the requirements of municipalities before the N.C. Historical Commission?

“If not, what duties are placed upon them by this law in relation to these objects of remembrance as defined by the law?”

Phillips then noted that “the position of my clients is ‘not so fast.’ We feel the law does apply. And there’s the question of who owns the monument in Winston-Salem — and we don’t have that issue here (in Asheville with the Vance Monument case), but we have a contractual issue here. There’s a similar theme. What is this contract? What does it provide for? What is the meaning of it?

“You know,” Phillips told the Daily Planet, “the city (Asheville) wasn’t happy with me taking that position, which was fine. They have every reason to do that.

“If I’ve got a ‘motion to stay’ hanging out there, then we don’t have anything to ‘brief’ just yet, so that’s why I never filed a brief. However, I did file for an extension to file the brief. And it’s now due Sept. 29 — and it will be filed on time.

“We also are looking at the timeline. The city lost a motion to dismiss (the case), attorney’s fees,” a request to deny an extension for him to file the brief…. “And they also lost on their request against my clients to have a bond in place for expenses they incurred because of the stay.

“You win some, you lose some. It’s just the nature of the beast. I’ve been fighting this thing, step by step. Every inch I’ve gotten, it’s been a fight to get there… It’s never going to be easy. On the flip side, it can be difficult, but you don’t have to make it personal...

“I bring this up to say it’s a ‘slog’ — and it’s a tenacious fight. And you are fighting City Hall and the powers-that-be. And because you’re doing that, there’s not going to be any quarter… 

“I have zealously advocated on the part of my clients. It’s one of those things where I can of look at all of these things … and I look toward faith.” (Phillips noted that his faith is Christianity).

“There are going to be struggles. I believe I’m doing the right thing. And if you believe you’re doing the right thing, it’s not going to be easy. 

“But I want people to understand that the people on the other side are human beings … We are each others’ brothers and sisters. At the end of the day, it really comes down to us watching out for each other. If that’s true, why do you want these monuments to come down? 

“My position is ‘no’” on removal of the Confederate — and other — monuments. “But here’s the better position — it’s to place memorializations in other areas. I think people whose ancestors who have been downtrodden” should be honored with monuments, too.

“Even looking at Western North Carolina, it was a hot-bed of strong Union support. My question is: Why aren’t there monuments to Southern Unionists?

“Gov. (Roy) Cooper has said, ‘We know what these monuments are — they are monuments to white supremacy. We as a government know what it is. You’re too silly to know what it’s not.’”

To the aforementioned assertion by Cooper, Phillips said, “That’s a slippery slope. That’s why I fight these cases so hard — that nobody that’s ever walked this earth is perfect,” unless, he said, one has Christian beliefs — and then the lone exception would be Jesus Christ. 

“Because there are no perfect people, we have to take the good and the bad. I don’t think Zebulon Vance was a monster. He was a man of his time — rightly or wrongly. But there are things he did that were good, that were just. 

“But there were things he said that weren’t acceptable by today’s standards. All I know is, if we’re looking for people who never did or said anything wrong, you’d constantly be purging everyone” and removing every monument at some point.

“I just don’t think it’s the government’s job to come in and tell everyone what to think. 

“With the (Asheville) city task force, it said, ‘We don’t want this monument up in any form, as it will just be a rallying point for white supremacists.’”

To the task force’s assertion, Phillips told the Daily Planet, “My clients wouldn’t want that,” either. “They want to preserve historical items that have value to the people of the state and the world. If you preserve history, it reminds you of the good, the bad and the ugly.”

At that point, he noted, “So the Vance Birthplace (near Weaverville) doesn’t want the monument” either. “I’m not criticizing them for not wanting the monument....

“Now you’ve got (U.S.) Congress stepping in (with proposed legislation) that would strip Confederate monuments from battlefields. It’s a ludicrous thing. 

“Zebulon Vance, yes, he was a colonel in the 26th for one year (on the side of the Confederacy), and then he was a wartime governor” for the Confederacy.

“Then he did more good after the war with the Jewish community in North Carolina,” with no one else coming even close, “and he did a lot to bolster people’s stance toward the Jewish religion. That’s got to count for something…. “

However, Vance’s aforementioned accomplishments in defense of, and on behalf of, the state’s Jewish community now count for nothing with Asheville’s elected leaders and many of their constituents, he said, and “what that does is put us in a world where the goal line is constantly moving. So when you eradicate one group of ne’er-do-wells, then who — and what — becomes the next group of ne-er-do-wells?”

What’s more, Phillips asserted, “There even are cries about (Abraham) Lincoln — to take down his monuments because he didn’t do enough (to end slavery) and that he was, at heart, a white supremacist.

“We’re trying to ‘parse’ history. If you’re crying out about these horrors that happened 150 years ago, then why aren’t you also crying about today’s slavery and going to the embassies of certain countries, saying you need to do more to protect women” and slaves?

“So we pick these fights because it fits a narrative. But to be honest — and to be consistent — you need to fight everything. The (annual) Women’s March, I get it. But shouldn’t these women also have carried signs crying about women in the other parts of the world” where “women (are) sold off into sex slavery because they were less than them and ‘prizes of war’ — that’s how the Islamic State viewed these women. This was happening on the same timeline as President (Donald) Trump’s inauguration. 

“In reality, there is evil everywhere in the world. You can’t sit back and say the evil that affects me is greater than the evil that affects someone else. 

“So when you’re speaking out about something that happened 160 years ago (with the Civil War and slavery), you also should be speaking out about its contemporary form today. Don’t those women and girls matter? 

“I think they (today’s women who are deprived of rights or outright enslaved) matter more than a monument does, in terms of protesting against it....”

Then, in returning to a discussion of his treament in the case by the City of Asheville, Phillips — who noted he has been practicing law for about 27 years — said, “In an older time, and not so long ago, it’s one of those things — it’d be the decent thing to do.”

So with the City of Asheville, what would have been the “decent” way for the city to handle the Vance Monument case?

“We could enter into a nondisclosure matter, to provide the opportunity to view where these things (Vance Monument parts) are stored,” Phillips replied.

“I also don’t think it would have taken much effort, to sit down originally, with the company doing the ‘deconstruction’ for it, to run an inventory of where each part was removed and was stacked. That would have been a good thing to do. 

“Even ‘reconstructing’ the thing while memories are fresh would have been a good thing. If I’m on the other (city) side, whenever I can do anything that will alleviate some tension in the case, it’s not a big deal,” but pays off in the long run.

“Ultimately, if the city prevails, it’s really no skin off its back” to be courteous. “It’s nothing — and you’ve done something to ease the tension and then, if you win, you still can grind the monument up into fine powder.

I mean, we could win. We could lose. It’s a gamble. It depends on what the state Supreme Court decides on the Winston-Salem (Confederate monument) case. And how the (state) Court of Appeals deals with our case.”

And so what is the “latest news” in the Vance Monument case?

“The latest news is everything in this is the status quo, which is defined by the city.” He said the city’s attitude is: “‘We’ve removed all these pieces from Pack Square Park. We know where they are (secretly stored). That’s sufficient.’ 

“So it’s one of those things, that’s their position,” Phillips told the Daily Planet.

“I don’t broadcast my strategy. I will tell my client (the 26th) whether there’s a likelihood of us prevailing on its merits. I suppose, at the end of the day, what anyone would want is to keep the case in perspective, where we can still communicate, still be cordial — win, lose or draw. 

“If you don’t want to do that, that’s your prerogative. I’m just saying I would have done things differently” than the City of Asheville’s tack. Specifically, Phillips said he would “sign a nondisclosure agreement,” enabling the plaintiff to “view the items” and that “we can guarantee everything’s safe and intact.

“But what the city’s saying is ‘trust us’ — with a wink and a nod. ‘We’re the government and we know what’s going on — trust us!’

“When I was a state employee for Tennessee, I never took that approach. I’m not faulting the city, but I believe in transparency.

“I’m not going to compare myself to Moses — he was a prophet of the Lord, God. And he was the emancipator of the Jewish slaves in all of Egypt.

“Here’s the thing — he did come to pharaoh (King Ramses II) and say, ‘Let my people go. Please do the right thing,’ hoping the pharoah might have a change of heart. 

“And I’m asking the city to ‘have a change of heart and let us verify that everything’s still intact. What have you got to lose by letting us simply inspect these pieces?’

“It’s like imploring the pharoah to alleviate my clients fears. At the end of the day, what has it cost you? It would some time of (city) employees to put together the nondisclosure agreement — and the time of a couple of employees to chaperone me and one my clients to these places to make sure everything’s there,” referring to the monument’s parts.

“In the greater scheme of things, it’s a drop in the bucket. To me, it’s a good faith approach to it. Let’s just assume the (state) Court of Appeals said the (state) Monument Protection Act applies, but the city can move this monument to another location in the city as long as it conforms to the act’s requirements. Then it doesn’t hurt to see what’s there to ensure everything’s intact, so it can be put together — if the court says it’s an appropriate remedy to reassemble it somewhere else” in Asheville, Phillips said.

Phillips added, “Moses — he was a messenger of the Lord, our God. He brought down from Mount Sinai the 10 Commandments. They are still good moral guides. 

“This whole notion — discussed by Christ in the Gospels — of ‘loving your neighbor..’ You can fight (as) hard as hell, but at the end of the day, for the attorneys (or their supporters) involved, there should never be rage because it obscures the forest because you’re staring at the trees.”

As for how Phillips would hope Asheville’s city attorneys, other officials and citizen opponents would view his role in the Vance Monument case, he said the following:

“I’m just bringing a message... Folks, I hear what you’re saying. I understand your anger — to the degree I can understand it. I empathize. I hear what you’re saying. But because I have faith, I’m required to love my neighbor. I’m just making this simple request not to be so filled with rage that that’s all you see. It’s good to be skpetical. It’s good to question. But if that rage is so centered and focused where all you want to do is destroy rather than uplift,” then a bad outcome is likely.

Rhetorically, Phillips then asked, “At the end of the day, if we (the plaintiff) lose, and this monument is pulverized into dust, has it put people to work in a permanent way? 

“Has it helped the community? 

“Has it put food on anybody’s table? 

“Has it made up for people’s hurt?

“The answer to the rhetorical question is, ‘No, it doesn’t — and hasn’t.’

“Wouldn’t it be better to put up other monuments honoring other people? I support monuments to civil rights leaders” and other “people who have had an impact on their communities … Who wouldn’t?

“It’s this whole notion of broadening our own perspective. But the things that have been put into place (whether they are considered good or bad) show the travails of the nation and its history through time — and how things have changed for the better.”

So does Phillips believe that the United States is changing for the better now?

“Yes,” he quickly replied, explaining that one obvious positive is “how we treat people who are different from us, as well as those who look like us.”

And, “from a philsophical/religious perspective,” he feels that more Americans now are “doing our best to the do the right thing — placing others on equal footing. 

“There are people who believe that the shadows of their ancestors’ shackles prevent them from truly moving forward iin our society. 

“My position to that is, while I truly don’t know their experiences and don’t pretend to know their experiences, as a human being, I treat others as I want to be treated. 

“And I treat people with courtesy, respect, compassion and empathy — and try to make things better. But I don’t want to do that in terms of destroying monuments that remind us of how far we’ve come.

“Winning people’s hearts and minds is more important than what stands in the park. 

“There is room for growth in public memorialization and public art,” Phillips said in closing the Daily Planet interview.

Branham will be sent a copy of this interview with Phillips — and his response, if any — will be published in the next edition of the Daily Planet.



 



 


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