The N.C. Supreme Court’s decision of Dec. 16 to grant discretionary review of the Vance Monument case, when it had the option to not do so, must be counted as a positive development for those seeking to preserve the historical landmark in the heart of downtown Asheville, according H. Edward Phillips III, attorney for the plaintiffs.

“I think the high court granting discretionary review tells me a lot,” Phillips told the Daily Planet in a series of brief interviews from Dec. 27 to 29. 

First, he cited the United Daughters of the Confederacy v. City of Winston-Salem case over a Confederate monument that “went to the (state) Court of Appeals and then the state Supreme Court — and they had to take it” because the lower court decision was not unanimous.

“In the Vance Monument case, the high court had discretion. If they did not think the case raised an important issue, they would not have granted discretionary review. That doesn’t happen all of the time — less often than not,” Phillips said.

Phillips added, “The (high) court may believe that I have punched the ticket, as the members of my client’s organization, the Society for the Preservation of the 26th North Carolina Troops, live throughout the state and have donated funds for restoration of the monument,” prior to the city’s decision to demolish it.

“We have consistently asserted that, with the work of fundraising and restoration, the City of Asheville desired to make an effort with the aid of my client at the conservation and preservation of the monument.

“Once you restore something for static display, typically you do not have have to maintain it,” Phillips asserted. “You’re talking about an obelisk — and the first time, it lasted 130 years” before (major) maintenance and restoration were required. “So you would expect it to last another 130 years,” with the restoration financed by the joint city-26th fundraising effort enabling the work to be completed.

In a separate Dec. 27 interview, Phillips began by addressing “the theory of standing,” which, in this instance, is based on the Orange County v. North Carolina Department of Transportation case.

“I think the (state) Supreme Court may believe there is something to the Vance Monument case... that I might be right on the track, or, at least, they want to consider the arguments.”

In alluding to the vote by council to demolish the monument five years after the restoration, Phillips said, “Well, five years into the future is not consistent with the act of preservation, so if the City of Asheville  — in joint solicitation material — wanted the monument to be available for future generations, it lied.”

He added that, in the aforementioned UDC v. Winston-Salem case, Paul Newby, chief justice of the N.C. Supreme Court, asked the attorney for Forsyth County who, in his judgment, enforces the Monument Law” (state Monument Protection Act) in North Carolina. 

“The answer (from the county attorney) was: “The Department of Justice.”

According to Phillips, Newby then asked the county attorney “if there was a private right of action?” to which the county attorney said, “The answer is ‘no.’

“The chief justice then asked the county attorney, ‘Does the (state) Monument Protection Act apply?’”

In response, the county attorney said, “Yes — only when it is a public monument on public property.”

After a pause, Phillips told the Daily Planet, “So that’s the answer... And I believe the (state supreme) court knows it (the MPA) applies to political subdivisions of the state.” Conversely, in regard to the Vance Monument, he said, “the City of Asheville has screamed that ‘It’s ours!’ — and took it one step further, saying, ‘We own it and we are going to destroy it!”

Phillips continued, “The government cannot control association,” including gatherings of white supremacists. 

(Phillips noted — passionately and at length — in the series of interviews with the Daily Planet that he personally abhors the very concept of white supremacy, as does his client, but he feels the rights of freedom of association and free speech must be be allowed, as per guarantees in the U.S. Constitution.)

“Even if we despise them, these people (or anyone else) still have the right to gather, whether we like them (or their viewpoints),” he said. 

As for the Vance Monument serving as a gathering place for white supremacists, which was a concern expressed by some on Asheville City Council, Phillips said that that reasoning does not justify destroying a piece of history. “You should not destroy the monument.”

Under the state MPA, a locality either must leave a statue standing at its current site, or “the only other option is to move it to a place of equal prominence.”

Meanwhile, in a Dec. 28 interview, Phillips reiterated that he interprets the N.C. Supreme Court’s decision to “hear the (Vance Monument) case” as possibly meaning “the court believes there is something that requires their attention and review in this matter — and that’s why they granted discretionary review.” 

He reiterated that the North Carolina Court of Appeals “had decided the case unanimously (affirming the  dismissal of the lower court) and so the North Carolina Supreme Court has now exercised its discretion to hear the review.

“I am very pleased that they granted review, as it is not over until until the (state) Supreme Court states that it is.”

He further explained the following as reasons as to why this case could end with a positive outcome:

“We have standing... despite the fact the attorney general’s office has argued in other cases that groups like the N.C. Division of the Sons of Confederate Veterans and local camps do not have standing — and they cite the City of Reidsville case for that standing. 

“But there’s also Orange County vs. the Department of Transportation (case), wherein the NCDOT was going to widen a road in the county that would have significantly damaged a local historical site — and also damage or destroy protected environmental areas. 

As a result, a “local historical preservation group became involved in the case, along with the county, and environmental groups and the court said there existed a geographical nexus between the plaintiffs and the protected areas because these groups had members living in Orange County who were directly impacted.

“Chief Justice Newby said in the UDC case that the UDC had not informed the court where the UDC members lived.

“That’s been my argument on ‘standing.’ First, my plaintiffs are a historical preservation group. Second, they have members who live in Buncombe County and the City of Asheville, with some of these members who donated $1,000 or more for the preservation” of the Vance Monument.

“On that point, I think, just on a representational basis, my client has standing… as well as those outside of Asheville and Buncombe County— there are members in the state who also donated funds. 

“Then you can look at it on standing based on contract… There was nothing else required of the 26th, other than to do maintenance work, the state Court of Appeals held. I argued that there really was no maintenance needed on the obelisk that lasted about 130 years… And after restoration that it should last the same time.

“What the city, the (Buncombe) superior court and the (state) court of appeals agreed on is ... this was just a donation agreement. But, the court of appeals went one step further by saying there was no future requirement under the contract. 

“But my argument always has been that that donation agreement was coupled with the attachments which were part of the agreement, including the language requiring that the text of the solicitation material be approved by the city and that it must be joint solicitation material. 

“In that solicitation material, the city approved language that says the Vance Monument has been around for generations of Ashevillians to enjoy —  and (Phillips paraphrased as follows) ‘we want it to be around for future generations of Ashevillians.’ 

“The city also agreed to restore the wrought-iron fence around it. Also, it OK’d a monument that honored donors, including language that stated, ‘So that the future may learn from the past.’  The court said that language doesn’t matter because it doesn’t give you any claim to any future with the monument. 

“But when the city uses language that shows a commitment to future generations of Ashevillians, involving a monument that had lasted about 130 years before a restoration was needed... so the presumption was (after the recent restoration), it would last another 130 years.”

Rhetorically, Phillips asked, “So why did the city approve that language if they had no intention of keeping it for more than five years? 

“The only answer to that is the social justice movement has caused the destruction of monuments throughout the nation with which they don’t agree — and the Vance Monument is no exception.

“And instead of proposing new monuments to be erected for people who either have not had their voice heard in the public arena, or have been forgotten, they only want to take monuments down, rather than recognizing other voices that should be heard and by doing so, provide a limited and skewed view of history.

“They are arguing that these monuments are skewed because they only present one side. If you are not happy, why not erect monuments representing other deserving people,” rather than destroying monuments with which one disagrees?

 â€œThey want to squelch speech they don’t like, period. So if it offends them... It’s a very limited future, where ‘It’s what we say that matters’ — and ‘we don’t want to have any competing voices.’ It’s (the result of) conditioning and programming people to condemn history that they don’t like — and to never consider other options or opinions.”

Phillips added that there are “issues aplenty resulting from the UDC v. Winston-Salem case” that recently went before the state Supreme Court.

As he had mentioned in a previous interview, Phillips pointed out that the (state supreme) court asked attorneys in the UDC case whether or not the thought “the (state) Monument Act applied to political subdivisions of states, including Winston-Salem.

“If I recall correctly, the question was asked of the attorney for the City of Winston-Salem. And she replied that she felt the court had jurisdiction, but in this case, it doesn’t because (as Phillip paraphrased) ‘we are asserting this is a private monument on private property (in Winston-Salem) — not a public monument on public property.”

In his interpretation, Phillips said, “You have a city attorney arguing that the law applies, while others don’t. So at some point, the farce has to end,

“That’s one of the reasons I think the (high) court took the (Vance Monument) case because they will have the opportunity to set the record straight on when the law applies.

“Just because you say the law doesn’t apply... three times, it doesn’t make it so,” Phillips quipped.

“Now the North Carolina Supreme Court is going to decide this matter once and for all” in the Vance Monument case, Phillips surmised, adding that he thinks the high court “is going to decide that political subdivisions of the state aren’t following the (state MPA) law. 

“The city (Asheville) has asserted that it can do anything they want to do with it (the monument), as if there were no (state) Monument Protection Act — and no approving language consistent with this monument being available for future generations ... That’s what it comes down to... My case would be much more difiicult if there wasn’t a Monument Protection Act in the state.

“Ultimately, the question before the court is: Does the law apply to political subdivisions of the state and require these government actors to place them in positions of equal prominence — if they don’t like where they are currently located?

“The question is: Who is going to enforce the law (MPA)? The Forsyth attorney said that (Phillips paraphrased), ‘In my opinion, it is the Deptartment of Justice’ — which in North Carolina is the attorney general’s office — that is responsible, but, Phillips said, instead they’re in lockstep with Gov. (Roy) Cooper,” who has been quoted as follows:

“We know what these monuments are -— they are monuments to white supremacy and all of them, throughout North Carolina, must come down. The General Assembly has done nothing to enforce the law. ...”

Phillips noted that Gov. Cooper is a Democrat, as is Josh Stein, the attorney general, who, he believes, follows the governor’s lead. The state legislature continues to be Republican-controlled.

“For the Vance Monument, the city has asserted that it owns the land and the monument and they they can do with it as they please. But they are ignoring the Monument Protection Act. And they forget that when the land (originally) was deeded to the city, they forget that it was deeded for the purpose of honoring Zebulan Vance with a monument.”

In a Dec. 29 interview with the Daily Planet, Phillips began by fielding the following question from the newspaper: When will the N.C. Supreme Court decide the Vance Monument case?

In addressing the question, first Phillips noted that “the UDC case came up to the (high) court in 2020 and it was the last one on the 2020 docket, so there’s no telling... It could take 16 months or longer.”

As for the result of the UDC case, Phillips said, “Winston-Salem is not off the hook,” following the NCSS review, which resulted in the remanding of the case back to Forsyth Superior Court.

“Chief Justice Newby set this up for another day,” Phillips said. “He knows the fight’s coming in (both) the Vance Monument and UDC cases. He probably thinks there’s enough in the Vance Monument case to put an end to the monument” controversies on a legal level.

He added, “The monument law applies. You must follow its requirements. You can’t just take down monuments and destroy them. The best alternative you’ve got is to move a monument to a place of equal prominence.”

As for recent monument removal activity — to date — in North Carolina, Phillips said, “Everyone has gotten away with whatever in the hell they want to do,” without legal consequences. 

The attorney then returned to the issue of the governor’s tweets of June 2020 — “before the monuments in Raleigh were attacked. 

“He (Cooper) basically said this is the (state) legislature’s fault, stating, ‘We know these are monuments to white supremacy and if y’all (the legislature)” had not passed the MPA, “then this wouldn’t have happened.”

After a pause, Phillips asserted, “That’s not how it works. You either repeal or amend the law. He (Gov. Cooper) is picking and choosing the laws they (he and Stein) want to enforce.”

“If my client prevails, all things being equal, the court says you have standing and the contract was more than just a donation agreement and the monument act applies.

 â€œThe city is wrong, at the end of the day… because of the state MPA, Phillips added, noting that if he and his plaintiffs prevail with the high court, “It (the Vance Monument) either stays where it is — or goes to a place of equal prominence... My stance is there is no place of equal prominence in Asheville.” 

Further, Phillips asserted that, “if the (MPA) law applies, it (the monument) has to be located within the geographical bounds of the City of Asheville.

“It’s my opinion that (North Carolina) cities should think long and hard” before deciding to destroy their monuments.”

As for Asheville, Phillips said, “It’s a matter of the city figuring out the best path forward. I know what my client (the 26th) wants… The reason the legislature did this (enact the Monument Protect Act) is because they want all monuments and other objects of remembrance to be preserved… Our history is important… And the only way to come to terms with history is to stare it in the face, read books and form an educated opinion....

“It has become a cottage industry to talk about all of the ills of the past and how certain people are victims and others are the victimizers.

As for some Asheville-area historians holding doctorates, who also bill themselves as progressive activists and who — citing their expertise as historians — condemn Vance as bad and evil, Phillips said, “When I look at historians and others academics” who are speaking out in favor of the monument demolishment movement, he said it brings him much pain over the hypocrisy.

“I have an undergraduate degree in history — and I’ve continued to study history since I graduated” — and it is hard for him to believe that trained historians allow themselves to lose their objectivity and instead help to destroy history.

“I’m challenging the activists,” he asserted. “You can either pick yourself up and fight to move forward in a positive way by carving out your place in the world and usher in a new era of public art, or you can fight and litigate over these issues. I prefer that new monuments be built, so that our children feel connected and have heroes to admire, whether its Freedmen of North Carolina who fought for our nation’s independence, the self-emancipated men who joined the Union Army in the Civil War, or the Tuskegee Airmen of the Second World War.”

Again, Phillips said he does not believe so-called historians any more than he does those from any other profession, especially elected officials. “If a politician speaks today, do we believe every word out of their mouth? My answer would be ‘no!’ So why would we believe every word said by a politician in the past,” as giving a true picture of that individual’s character, or the thoughts and views of the local population at that time?

“These activist professors are looking at things in terms of ‘presentism,’” wherein “you will always see that your past is flawed. Then you’ll self-flagellate for the rest of your life. (According to the Oxford dictionary, “presentism” is defined as “uncritical adherence to present-day attitudes, especially the tendency to interpret past events in terms of modern values and concepts.”)

So, if Phillips wins his case before the N.C. Supreme Court, does he think Asheville would appeal the case?

“The Supreme Court of the state is pretty much the end. They’d have to have an issue to give them the ability to go to the U.S Supreme Court. It’s not impossible, but you’d better have a good set of facts.

“If we lost, I just don’t think at the end of the day that my clients ,or even myself, would be willing to go down that road. Going to the U.S. Supreme Court, you take cases that the court feels are important enough to move the ball forward… As an attorney, if the law is so clear and everyone says it’s not, just maybe the U.S. Supreme Court would take up the case.”

After a pause, Phillips said, “I’m not opposed” — if he lost the case before the state court — to appealing the Vance Monument case to the US, Supreme Court, if that is the desire of his clients. However, he added, “I tend to think we would not appeal to the U.S. Supreme Court.”

Regarding the City of Asheville, he noted, “They spent however many dollars — $180,000 —  to take down the monument. Now, they’ve spent another $111,000 on this ‘reimagining’” of Pack Square, with the expectation that the monument would be removed — and in some way — replaced. “It could be another $200,000 to put the monument back up. Plus, there’s the storage cost.” 

“Why would you put up a monument and have it taken down, because of the whims of the loudest ones of a minority of people, when the majority in most of these locations (around the nation and sstate) do not support the monument removals?” Phillips said, citing various polls.

If the city loses the case, “You’re looking at a half-million dollars — or more — (in wasted spending) by the City of Asheville, when this is all said and done, for legal and other costs.

 â€œWouldn’t it have been better if the city had used that same money (around $500,000) to build another monument to honor…” someone or something worthwhile?

 â€œBy taking it (the Vance Monument) down, you’re settling for a mediocre result. If you believe people need to be inspired, put up a work of art by an African-American, or that honor African-American contributors in history,” while leaving the Vance Monument intact.

“I’m cautiously optimistic (about the possibility of winning the case) because I believe in my heart of hearts that the court took this up for a reason. I don’t know where the majority (on the high court) is going to go. I do have hope at the end of the day that the position of my clients and myself will be vindicated.” 

The attorney also asserted that the MPA “applies and you cannot — for light and transient causes —  remove these monuments from the public forum and destroy them. 

“Further, if the (monument protection) law applies, as I believe it does, the only option is to place these monuments in a location that is of equal prominence.

“It’s going to be very difficult to find a place of equal prominence in downtown Asheville” to relocate the Vance Monument if he wins his case, Phillips said, in concluding the series of interviews with the Daily Planet for this story.