The North Carolina Court of Appeals began its review on Feb. 22 of the challenge to Asheville’s removal of the Vance Monument in downtown’s Pack Square, but “it could be several weeks or several months before they render a decision,” H. Edward Phillips III, attorney for the plaintiff, told the Daily Planet on Feb. 25.

The appeal is the next step in the process to determine the fate of the Vance Monument, a 75-foot-tall granite obelisk that has been the centerpiece of downtown since it was erected in 1897. 

(Even with the case being in litigation, the city in mid-May 2021 began deconstructing the monument, beginning at its top, until a court on June 4, 2021 ordered that it immediately cease the action. At that point, and at present, only the base remains on the site (boxed in by plywood), with the stones from the monument hidden, according to City Attorney Brad Branham, in several secret locations, in case the court orders that it be rebuilt and the stones are needed.)

The litigation originally began when Phillips, on behalf of his client, the Society for the Historical Preservation of the Twenty-Sixth North Carolina Troops Inc., a historical preservation group, sued to block the monument’s removal, but the action was dismissed in Buncome County Superior Court. The group appealed that decision in May 2021.

Meanwhile, Asheville City Attorney Brad Branham has been quoted by various news sources as saying that it is still unclear when a final decision will be issued, but he reportedly said it will likely be within the next few months.

The Vance Monument was built to honor Zebulon Baird Vance, a Confederate colonel in the 26th North Carolina Troops in the Civil War, who served as the 37th and 43rd governor of North Carolina, and, later, as a U.S. senator. He was known as North Carolina’s “Civil War governor” and  was born and raised in an area near Weaverville.

Vance, a slave-owner, was a prolific writer and, according to Wikipedia “became one of the most influential Southern leaders of the Civil War and postbellum periods.” His best-known book was “The Scattered Nation,” which “has been selected by scholars as being culturally important, and is part of the knowledge base of civilization as we know it,” according to thriftbooks.com.

Vance is widely praised for being one of the lone voices in the South — or anywhere in the U.S at the time — to speak out boldly and strongly against anti-Semitism — and for treating Jews with respect. However, he also made several extremely negative remarks about blacks that were cited in Asheville City Council’s decision to demolish the landmark.

In the Feb. 25 interview with the Daily Planet, Phillips said of the action Feb. 22 in the North Carolina Court of Appeals on the Vance case that, at this time, “No decision has been rendered, which is fine. That means, basically, what they’re doing, is taking their time.”

He then discussed “the possibilities” in what the court might decide.

“The court could potentially decide the matter on the contract issue, which leaves the question of whether the Monument Protection Act applies. So, the court could certainly decide the case on the contract issue and hold off on the Monument Protection Act  issue until the state Supreme Court rules in the Winston-Salem case that was brought forward by the United Daughters of the Confederacy.

 â€œI don’t know when that case will be heard,” he said. “Given the backlog from COVID, there’s been a lot going on” and it could be a while.

Or, Phillips said, “If the court goes down the road of the contract issue, the question would be whether this is a contract, or simply a donation agreement, as the city refers to it as.” Phillips questioned whether the city contemplated any responsibility after the restoration was completed. “Was there an obligation that went beyond the four corners, or within the attachments to the contract document that created an expectation of future preservation?” he asked, rhetorically.

As for yet another possibility, Edwards noted, “The court could come in, potentially, and say, ‘Well, from our vantage point, this is where we are... This is a valid contract that has the expectation in it that the monument was to be restored for future generations, not just for the six years it stood post-restoration, when the city took it down.

“The basic thrust the city is saying is that this contract was simply a donation of time, money and restoration services… So no further obligation was placed on the parties once the restoration was complete. However, the ‘donation agreement’ (includes) nine pages of very specific requirements....”

What’s more, Phillips added, “The Jewish community of Asheville donated to the restoration effort. While there were many donors who put up a great deal of money, the Jewish community gave money because of what Vance had done for their community.“

Continuing, he said, “There was also a small monument with a plaque attached to commemorate the restoration of the monument.  Of course, that was taken down, too.”

Besides the Jewish community, Phillips noted that among the other significant contributors to the Vance Monument restoration were the law firm of McGuire, Wood & Bissette, and the Biltmore Co., which owns and runs the Biltmore Estate and other enterprises.

He reiterated that “there are people who donated to this project (the monument’s restoration) — and my clients, among their many responsibilities, was to purchase insurance coverage for the project as well.

“They (Asheville city officials) set up their parameters — and one of those parameters was 26th N.C. would have to give them their solicitation materials before being released to the public.

“The city reviewed and approved the trifold solicitation brochure, which was jointly put out by City of Asheville and the 26th N.C.” and, then quoting directly, Phillips read the Daily Planet the following statement approved by the city at the time:

“Please note that 100 percent of all donations will go toward the Vance Monument project... With your help, we can ensure that the Zebulon Vance Monument will be not only part of our past, but part of our future as well.”

 After a pause, Phillips said, “So that quote (by the city) means nothing because even though they approved the solicitation material, the city elected later to demolish it.”

 The attorney said that, if the city had been honest, it would have stated the following:

“In a staff memo dated March 23, 2021, less than six years later, that...  the Vance Monument has become a public safety threat in our community, so all of those people who donated all this money (over $138,000), it did not bind the city in any way to any long-term commitment related to the restoration.”

Instead, he said, “They (Asheville city officials) came out and said this monument is owned by the city and ‘we can do whatever we want with it because it (this agreement) doesn’t put any requirement on the city to keep this object in place....’”

Noting the irony, Phillips said, “So that the future may learn from the past” was the inscription on a small granite monument next to the Vance Monument, which, again, was language approved by the city in 2015. If they didn’t like the language the 26th NC was using, they should have questioned it then.

“So what I alleged in the complaint is that the intent of the parties (my client and the City of Asheville) was not only to restore a monument that was part of the city’s past, but part of everyone’s future… So my client felt that the restoration process would ensure the survival of the Vance Monument for many years to come. 

“Specifically, my clients believed their restoration would ensure that the monument would last another 120 years or — maybe longer.... It (the monument) already had lasted 117 years, when the restoration occurred in 2015. However, when they took it down, it was 123 years old and, in generational terms, that is six generations.”

To reiterate, Phillips stated that “the Court of Appeals could come in and find that this contract was more than just a donation agreement,” reflecting, he said, that “it does sound disingenuous… You don’t go through all that hard work to see it destroyed within six years because the contract you entered into didn’t mean anything — that it was just a donation agreement. 

“The Court of Appeals could go there. If it is a 2-1 decision against the city or my client, the city would have a right of appeal to the state Supreme Court. 

“Or if it’s a 3-0 vote against the city, it could ask for permission from the state Supreme Court to review the case. 

“Or the court could say it is just a donation agreement — and side with the city.”

Regardless of the decision, Phillips said,“Either the city or my client would go to the state Supreme Court.”

“This case, no matter which way it goes — if it goes against the city, I think they’ll appeal. If it goes against my client, we also will appeal to the state Supreme Court.

“Or, another possibility exists that the Court of Appeals could take the position that they are not going render a decision until they have guidance from the state Supreme Court on the issue of the (state) Monument Protection Act issue,” Phillips said, in concluding the Daily Palnet interview.