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N.C. Supreme Court’s temporary stay to halt Asheville from further razing of Vance Monument? It’s ‘common’ in such cases, city attorney asserts
Thursday, 12 May 2022 13:16

From Staff Reports 

Contrary to an assertion by the attorney for the plaintiff’s in a court case against the City of Asheville that is intent on demolishing theVance Monument, the North Carolina Supreme Court’s issuance on April 22 of a temporary stay — forbidding the city from proceeding with any further tear-down of the long-time landmark in the the heart of downtown — was nothing unusual in the world of litigation and was merely “a procedural stay,” according to Asheville City Attorney Brad Branham

“These things (Confederate monument removal cases) don’t get decided overnight,” Branham told the Daily Planet in a May 6 telephone interview. “In those interim periods (as such a case proceeds to ever higher courts), it’s extraordinarily common that these kinds of stays are issued, if it could affects the rights of the parties.”

Branham added, “We sort of expected this (the issuance of a temporary stay on further demolition by the city of the Vance Monument) was likely to occur at this (state Supreme Court) level as well. 

“The motion for the temporary stay was sought by the opposing attorney,” Branham said, without naming him. (The plaintiffs’ attorney is H. Edward Phillips III, who is representing the Society for the Historical Preservation of the 26th North Carolina Troops.)

In the April 27-May 10 edition of the Daily Planet, the newspaper’ story began by stating the following:

Barely 25 hours after the attorney for the plaintiffs — seeking to preserve forever the Vance Monument in the heart of downtown Asheville —  filed a petition to appeal its case to the N.C. Supreme Court after a lower court’s April 5 decision that affirmed the City of Asheville’s right to demolish it.

Specifically, plaintiffs’ attorney H. Edward Phillips III told the Daily Planet in an April 23 telephone interview that, “on April 22 at 11:11 a.m,” he received notice from the N.C. Supreme Court  — “only 25 hours after I filed (10:15 a.m. April 21), so the court’s not wasting any time. It’s not letting any moss grow under it.” He added that the motion for the temporary stay was “allowed by order of the court in conference... It was pretty darn fast.”

Phillips then noted, “It (the relatively quick issuance of a temporary stay by the N.C. Supreme Court) tells me two things — they’re keeping everything in status quo right now, until Asheville has an opportunity to respond. As part of the status quo, they don’t want anything done (by the city to the monument’s base) in Pack Square Park, or to components of the monument (that the city is storing.)”


In response to the story, Branham told the Daily Planet, “We didn’t oppose the stay. We didn’t file any actions to try to oppose that request. And we made no movement toward mobilizing the contractor” to complete the deconstruction of the Vance Monument. (At this point, only the base remains standing, with the stones and other pieces from the 75-foot tall granite obelisk being kept — according to city officials — for safekeeping in undisclosed warehouse 

(The monument honors Zebulon Baird Vance, a native of the Weaverville area, who served as a Confederate military officer, former two-time governor and U.S. senator. “A prolific writer and noted public speaker, Vance became one of the most influential Southern leaders of the Civil War and postbellum periods,” according to Wikipedia. Vance also was noted for taking strong public stances against anti-Semitism, but also made several highly negative statements about African-Americans.

(The most famous of Vance’s many books is “The Scattered Nation,” first published in 1871 and for which Google Books says, “This work has been selected by scholars as being culturally important, and is part of the knowledge base of civilization as we know it. This work was reproduced from the original artifact, and remains as true to the original work as possible.”

(Meanwhile, the website said of Vance and his magnum opus, “The Scattered Nation,” the following:

(“He was the only governor in the Confederacy to voice an anti-war stance and butted heads with Jefferson Davis on a number of occasions. After the war, he returned to private life and later was elected to the U.S. Senate and made a bit of a national name for himself by delivering a speech throughout the country called ‘The Scattered Nation,’ in which he related the history of the Jewish religion and called for tolerance of Jews.” Vance’s speeches later were assembled in his book.)

Meanwhile, everything except the base of the monument was removed by a contractor for the city in 2021, even though the case challenging the removal remained in litigation.

Speaking technically, Branham also noted that “you have to ask permission from the state Supreme Court for an appeal” as a result of the uninanimous vote by the state Appeals Court,” affirming the city’s right to do what it likes with the Vance Monument.

The city attorney also specified that the request filed by the plaintiffs’ attorney is called “a request for discretionary review” by the state Supreme Court to see if it will accept an appeal to it, following the lower court’s ruling, allowing the monument to be razed.

“Our (the city’s) plan was to wait out the appeal period (15 days from the Appeals Court ruling) to see if they made a request and, if they didn’t, then according to the ruling of the Court of Appeals, we (the city) had the legal right to finish up the work.” The final job would be removal of the base, given that “everything” else has been deconstructed on the Vance Monument.

If the city ends up winning the Vance Monument case, Branham said, “Generally, the stones (in storage) would be recycled. That’s the standard course of business when you hire any contractor to demolish something. It (the materials) essentially becomes the property of the contractor. It’s clear that they (the contractor) would not be permitted to sell or transmit the materials in such a way for it (the monument) to be rebuilt somewhere else.”

After a pause, he added, “So we are in a holding period on the Vance Monument” at the moment.

Regarding Phillips’ efforts, Branham said, “So there is a deadline imposed by state law” to request a state Supreme Court appeal. “He filed it in time — certainly not immediately.”

Wherein Phillips cited his effort, racing to file the request for an appeal within 15 days of the Appeals Court ruling, Branham in response deadpanned, “I think the only thing they (the plaintiffs) were ‘racing’ against was their own deadline. The city was simply waiting.’

Further, the city attorney asserted, “In no sense was the city proceeding with any aspect of the deconstruction. Our full intent is to comply with the law....

“Unfortunately, contractors don’t mobilize immediately. If we gave them notice to proceed,” if work resumed “in days, that would be extraordinarily fast.” Instead, the city attorney guessed that it would be “a week or so before” the demolition even could resume.

As to Branham’s projection on the timeline for a possible battle over the Vance Monument in the state Supreme Court, he said, “What’s most likely to happen, either it will affirm the decisions of the lower courts, or they’d determine that the North Carolina 26th had the right to bring a claim. 

“If the decision of the (state) Supreme Court is in favor of the NC 26, they would then have the right to proceed through the litigation process, going back down to the Buncombe County Superior Court.

“The original claim was dismissed at the lower level ‘under procedure’ that you must be able to state a valid legal claim. It was determined” by the Superior Court and the Appeals Court that the plaintiffs do not have a legal claim, Branham reiterated.

As for a possible eventual appeal of the Vance Monument case to U.S. Supreme Court. Branham said, “The legal right of a party to file an appeal goes all the way to the U.S. Supreme Court. To see in (the high court) a case like this would be exceedingly rare. The issue is state and federal courts have different jurisdictions. This case is really a state law case.”

Regarding Phillips’ concerns expressed in a recent interview with the Daily Planet about “activist judges” skewing the results of litigation in the lower courts, Branham concluded the interview by replying as follows:

 “Activist judges? It’s certainly possible that politics have crept into our judiciary. The reality is that, for the people on our side of the bench, we focus on advocating for our clients — and trust that the system works.”




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