The North Carolina Supreme Court  on Aug. 14 announced to the litigants — in the long-running case involving the fate of the Vance Monument in the heart of downtown Asheville since 1898 — that the matter has been set for oral arguments before the high court on Nov. 1 in Raleigh, according to H. Edward Phillips III, attorney for the plaintiffs.

“In terms of my clients, I think it’s great news,” Phillips told the Daily Planet in an hour-long telephone interview on Aug. 9. 

If he wins the Vance Monument case for his clients, Phillips told the newspaper, “I would think the city would have to rebuild the monument” — and most likely at its current site. “It has happened before... I’m cautiously optimistic.”

Meanwhile, upon being informed that Phillips sees the high court’s action as “good news” for the plaintiffs (the monument preservationists), Asheville City Attorney Brad Branham, speaking for the defendant (the city), told the Daily Planet — with a chuckle — in an Aug. 11 telephone interview the following:

“I see it as procedural. There’s always the option for the court to ask for oral arguments, versus just deciding off written briefs.” (A separate story featuring Branham’s latest remarks on the case appears on Page A9).

In the case, the plaintiffs, the Society for the Historical Preservation of the 26th Regiment North Carolina Troops Inc., are seeking to save the monument from demolition, citing provisions of the state Monument Protection Act — and a 2015 donation agreement between the 26th and the city for the successful restoration costing more than $138,000, financed mostly by $108,341 in donations from individual members of the 26th.

Conversely, the City of Asheville claims it simply has the right to demolish it because it is its property on land that it owns — and that the donation agreement does not constitute a contract.

City Council voted 6-1 — on March 23 — to remove the landmark bccause — according to an assertion by the Asheville Citizen Times in a story in its March 23, 2021 online edition — the Vance Monument is “dedicated to a racist governor of the Confederacy.”

Others, including Phillips, have argued that, while Vance had obvious flaws, including the racism that predominated in his era, he was, arguably, still a great man. 

Arguably, Vance was the most accomplished — and popular (during his life) — individual ever from Buncombe, with a resumé that included state representative, two-time governor and U.S. senator, during the American Civil War and Reconstruction eras.  

Also, among his writings, Vance penned “The Scattered Nation,” a book which Amazon.com — even today — describes as having “been selected by scholars as being culturally important and is part of the knowledge base of civilization as we know it.”

As the Vance Monument case has wound through the court system, the city already has deconstructed the 75-foot-high granite obelisk to its base and reportedly is storing the stones from the tower in various undisclosed city warehouses for safekeeping until the case is over. 

Also, city leaders have engaged the citizenry in a “visioning” project for Pack Square Plaza (for a future without the monument), and have implied that the ongoing litigation will be over soon, with the city easily winning the case. (The $3 million “visioning” funding is from the Mellon Foundation’s Monuments Project.)

Despite being on vacation with his family in the Charleston, S.C., area, Phillips — when informed of the newspaper’s Aug. 14 early-morning print deadline for this story for this edition — agreed to take the time to speak with the Daily Planet about the case... albeit while he was riding a road bike. 

“The state Supreme Court will first determine whether my clients have standing, which I believe they do,” Phillips said.

The attorney added that he has been able to refine his arguments in the case, as “first, we have presented the matter before the (Buncombe County) Superior Court, the North Carolina Court of Appeals and now the state Supreme Court.”

“The second thing is, we will finally hear from the state’s highest court on whether or not the monument law (the state Monument Protect Act) applies” in North Carolina. “I believe it does. Moreover, I think the state Supreme Court believes it (the MPA) does” apply.

Further, Phillips said, “The other part of the question that will be answered is ...Who is to enforce the law (on monuments)? 

“Is it a combination of the (state) Department of Justice — that is, the North Carolina attorney general and/or private organizations that have as one of their stated purposes ‘to preserve historical objects and to preserve objects to commemorate historical events and persons.’ 

“All I’m saying is that it is a good thing that the state Supreme Court is reviewing the matter.”

After a pause, Phillips asserted, “When it comes to the City of Asheville, I understand why they’re fighting and I understand their position (on the Vance Monument’s fate) ... I just happen to disagree with them — and that’s OK.”

The attorney then referred to a recent state Supreme Court case between the United Daughters of the Confederacy and the City of Winston-Salem over the fate of  Confederate monument, wherein, he noted, “several questions were asked that were important.”

Specifically, Phillips said, “The judge asked: ‘Does the state Monument Protection Act apply?’ The Winston-Salem city attorney said, ‘Yes, it applies to political subdivisions, but not in this case because (it was her opinion that) the monument was a private monument on private property.’ That was the answer by the city attorney,” Phillips reiterated.

“The second question sought an answer from the Forsyth County attorney as to who enforces the Monument Protection Act.”

In response, Phillips said Forsyth’s counsel said, “Your honor, the monument law is enforced by the state Department of Justice, through the attorney general”

Then, Phillips said, “There was the follow-up question: ‘Is there a private right of action?’ The answer from the Forsyth County attorney was: ‘Of course, not.’

“Therefore,” Phillips asserted, “the Forsyth County attorney and, presumably the Asheville city attorney (Brad Branham) would say the only one (who could enforce the MPA) would be the state attorney general (Josh Stein).

“A logical result of the answer by the attorney for Forsyth County is that the monument law could only be enforced by the attorney general’s office and, if the attorney general and governor are in lockstep politically, then that law would never be enforced,” Phillips said.

To that end, Phillips asked, rhetorically, “If the Monument Protect Act applies and the (state) Department of Justice doesn’t enforce it, then who is going to enforce it?” 

Taking the question a step further, he said, “So if you’re the governor, you can shut down the enforcement of that law, despite the fact that the law has not been declarated unconstituional by any court in the state of North Carolina,” he lamented. 

And by doing so, “what you do is eviscerate the power of the state legislature. So if it’s just up to the (state) Department of Justice, it will be cold day in Hades before the law is enforced.” 

Next, Phillips cited a tweet from Gov. Roy Cooper in which Cooper had said that the riots in June 2020, which occurred in Raleigh and caused chaos and vandalism, never would have occurred if the legislature had repealed the 2015 Monument Proection Act. 

“In my opinion, there’s a tone of arrogance about this,” the attorney noted. “As the chief executive of the state, you are required to enforce the laws of the state.

“If the governor did not like this law, he had every opportunity from 2015 (when the MPA was enacted) through the present day, to have sought legislature action that would have resulted in either repeal or modification of the law. Why did he not do that? Because he may have lacked the political power.

“It seems really odd to me that the position expressed by the governor in his tweet is consistent with the inaction of the attorney general,” he said.

As for the significance that Phillips is attaching the state high court’s request for oral arguments, the attorney said, “With the state Supreme Court, if you specifically stipulate that they do not want oral arguments, and the court agrees, the case will proceed without it.” Also, Phillips noted that no such stipulation was filed. 

Also, Phillips said that “the court can dispense with oral argument, if it does not believe that oral argument would be helpful to the decision-making process....

“We (the 26th, his clients) believe it (the case) should be heard. That oral argument is appropriate.”

As for a precedent for the Vance Monument case, Phillips noted, “You’ve had two cases by the (Winston-Salem) UDC (United Daughters of the Confederacy) that have gone up to the (state) Supreme Court, but this is the first one in which standing has been laid out the way we have laid it out.

“Chief Justice (Paul Martin) Newby, joined by justices (Philip) Burger (Jr.) and (Tamara) Barringer — set forth that a litigant who is alleging they have representational standing should demonstrate that even though they may be a statewide organizaation, they must demonstrate a local connection — in other words, that some of the organization’s members live in the local jurisdiction. In the case of my clients, the 26th N.C., they have members who are residents in Buncombe County, or have offices in Asheville, or some other local connection...

“The ‘interest’ (in the case) is that my clients restored the monument. They raised over $138,000” for the restoration, “of which over $109,000 was donated by various local groups, charities, citizens and including members of the 26th, who, in some instances, donated $1,000 or more individually... 

“What’s interesting is between the city and county, I think the city donated over $20,000, with another $8,000 (donation) from the county,” compared to the relatively whopping $109,000 in donations raised by the 26th.

Phillips added, “It’s easy for the city to jump ahead of the case. It’s not an indictment of the city, as I get that they want to put Pack Square Park in their rearview mirror, but they keep going on and on in this grandiose way. 

“Somehow, they need to put the brakes on a little bit – and tell people, ‘Right now, we’re going to put things on hold until the litigation is finally over.’ The bottom line is they can win — or lose — and from their perspective… I would have been leary of spending taxpayer money to put together a revisioning plan until the large-framed person (aka “fat lady”) sings.”

At that point, Phillips said of the Daily Planet, “I would ask your readers in their own self-reflection: Is there a level of arrogance that’s attached to that type of behavior (by the city)? 

“That’s not for me to answer. All I know is if it were me, I’d be very careful on telling my clients to move forward and spend someone else’s money... I think its great to put on a strong face. I know I could lose and my clients could lose. But if I were them (the City of Asheville), I’d be more cautious...

“To broadcast that ‘we’ve got this thing in the bag’ … I appreciate optimism, but is it ‘optimism’ to the level of arrogance?” Phillips asked, rhetorically.

So what does the attorney think of the city’s “visioning” plan efforts to rework Pack Square Plaza (and “The Block” nearby), with the expectation that the monument will be gone? the Daily Planet asked.

“Here’s what I think of the ‘visioning’ plan,” Phillips replied. “My position always has been in favor of expanding the footprint of history. If you didn’t like a portion of history — I don’t begrudge anyone to have that opinion at all. However, I ask that they should be inclusive... We know there is an historical landscape of what went on and we can construe that however we want...

“But we all should ask the question, ‘Why should I let that object have power over me? Instead of spending hundreds of thousands of dollars on what the city just has done (in deconstructing the Vance Monument to its base and storing the stones from the tower in undisclosed warehouses, along with legal costs), that same money could have been spent on projects that truly benefit the taxpayers.

“In essence, what we keep doing is ... we cast aspersions on our fellow Americans, when the real bottom line at the end of the day, all of it, is, in order to have a successful nation, we have to acknowledge our differences and embrace them as we go forward.” 

So what hope does Phillips have of winning the case before the state’s high court — and then what is the possibility of rebuilding the Vance Monument in its current location?

“The court can find in our favor,” Phillips answered. “But how far they are willing to go to make that determination” will determine the monument’s fate,

“The first question is: ‘Does the Monument Protection Act apply?’ I’m hoping the answer will be ‘yes.’

“Then, if they find the 26th has standing to bring the case,” that will be crucial for the case to proceed.

Then, Phillips asked, rhetorically, if he wins the case, “Does the monument go back up where it belongs?

“They (the high court) could say, ‘yes.’ Then, if the city wants to move it, they have to follow the parameters under the law — equal prominence and accessibility.”

Phillips then asked, again rhetorically, “Is there any place in the geographic footprint of the City of Asheville that is equally prominent to Pack Square Plaza? My idea is ... it would be very difficult” to find a place of equal prominence.

“The donor of the land for the monument (George Pack) — his (Zebulon B. Vance’s) friend who was a strong unionist, as was Vance — never intended that it (the landmark) be placed elsewhere” in the city.

Then, Phillips asked, rhetorically, “Why do we keep insisting on placing our judgment ahead of people who were there at the time — and the judgments they made” regarding a monument and its location?

“These folks may never get the relief they want” with the Vance Monument, or other efforts to destroy or revise any history with which they disagree, the attorney said. “But we judge people all of the time.”

What’s more, Phillips said, “I read academic papers all of the time. I just read one about Karl Marx’s materialist conception of history. What I found most striking was footnote 32” in an academic paper by professor August Nimtz, wherein he noted that “Karl Marx and Friedrich Engels, as contemporaries of Abraham Lincoln, followed the Civil War, and that Marx understood that President Lincoln had to shift his messaging from ‘ending secession’ to ‘destroying slavery’...

What also struck Phillips, he said, “was that Marx used the “N”-word on numerous occasions. Moreover, the academician attempted to suggest that that word didn’t mean what it does today. But he recognized that Marx used it once in an insulting manner.

“‘We cannot judge Marx out of the context of his time,’” the academic paper’s author concluded, according to Phillips.

However, as the interview with the Daily Planet concluded, Phillips was critical of Nimtz, as he quipped that it must be proper (to him) to judge others outside the context of their times —  “so long as it’s not Karl Marx, because we like him (Marx)....”