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THEORETICAL ROADMAP
TO UNDO #SILENTSHAM
==========

Some thoughts on trying to unwind the "settlement" between the NC Division Sons of Confederate Veterans and the UNC system, that is set to create a $2,500,000.00 Klan Annuity

(v2.0 because the other thread broke)
Some obligatory disclaimers:

➡️ This is gonna take several hours to roll out, because I'll be tweeting in between work (gonna be on the road for roughly 2 hours, plus meetings at 2p and 4p)

➡️ I'm a practitioner, not a scholar. There's a non-zero chance I'm very wrong somewhere
➡️ Originally I sent to tell me about typos ASAP, but it turns out fixing them breaks the thread. So still tell me, but keep in mind errors won't be corrected until later in the thread and you'll have to keep reading to notice
*BACKGROUND DOCUMENTS*

M (@m1523751) was kind enough to take the court documents and OCR them plus upload to Scribd, so they can't be DMCA'd

Docs are here:

Several folks, including M, have also posted the full victory statement from SCV Grand Wizard R. Kevin Stone

I'm linking to the one shared by @indyweek though, because they also include an editorial on why this is all hot garbage:

indyweek.com/news/orange/so…
The key documents we'll be relying on during this roadmap are:

1️⃣ The SCV's Verified Complaint

2️⃣ The Grand Wizard's Statement
For the non-lawyers, a "Verified" Complaint is just a lawsuit that includes an affidavit swearing that the facts alleged in it are true

The affiant was R. Kevin Stone

The notary was his lawyer, C. Boyd Sturges III
(For those who followed the Threadnought, yes it looks like Sturges committed notary fraud by notarizing the affidavit on an iPad without Stone directly in front of him like it claims in the jurat. I'll leave that to others to investigate.)

*WHY THE SCV'S LOLSUIT WAS A JOKE*

If you haven't read the Verified Complaint yet, please do

Because I read it

And sweet cherubic Baby Jesus Hisownself is it some gibberish
I would not be the slightest bit surprised if C Boyd Sturges III is a QAanon acolyte
The SCV's argument is basically this:

1️⃣ Married women back then couldn't sign contracts without their husband's permission, so that's why the contract to build the statue was signed by the University of North Carolina President instead of the United Daughters of the Confederacy
2️⃣ The UNC President – a government employee – was acting as an agent for the UDC when he signed the contract

3️⃣ He was also acting as an agent when he raised $5,000 from UNC students and alumni, toward the $7,500 bill

4️⃣ Therefore the entire statue was a gift from UDC to UNC
5️⃣ Since the entire statue was a gift, the oral dedication speech given at the statue's unveiling provided the terms of the gift

6️⃣ The oral speech had the word "forever" in it

7️⃣ The statue was taken down, so the "forever" was breached
8️⃣ Because "forever" was breached, the gift has to be returned

9️⃣ SCV bought the cause of action from UDC, enabling them to sue in their place

That's it. That's the entire LOLsuit.
There are a *lot* of fatal infirmities in that theory, that we're going to walk through shortly

But let's first address point #9 and talk about the concept of "standing"
Standing is a simple concept that is convoluted af in application

At its most basic, it means you are the proper person to file a particular lawsuit. You have a right to be in court on that issue.
I could spend several days of Twitter threads going over standing and its great many nuances

Some of its key features include:

➡️ a requirement that the Plaintiff must be actually or imminently injured by the Defendant (no lawsuits over "general grievances")
That actual or imminent injury must be "concrete and particularized"

We call this the "injury-in-fact" requirement

The 2nd key prong of standing is showing causation

The injury-in-fact must have been caused by the Defendant. It must be "fairly traceable" to the Defendant's conduct
Then the 3rd piece is redressability

The injury-in-fact that the Plaintiff claims was caused by the Defendant must be the type of thing a court is capable of fixing

It has to be likely, not just speculative, that a favorable court ruling would redress the injury
If you meet those three prongs – injury-in-fact, causation, redressability – you have what we refer to as "constitutional standing"

You've met the *minimum* requirements to sue
There are also *a lot* of what are called "prudential" standing considerations

Think of them as gatekeeping functions – even though you have constitutional standing, it's a bad idea to consider your lawsuit anyway because reasons
Some prudential standing doctrines–

➡️ Ripeness: if the dispute isn't ready to be heard yet – isn't "ripe" for resolution – the court shouldn't hear it

➡️ Mootness: if the dispute is already resolved before the court decides, the court shouldn't decide it
➡️ Political questions: the court shouldn't decide cases interpreting powers the federal or state constitutions delegate to other branches

➡️ Advisory opinions: the court can only decide bona fide disputes (but: some state constitutions explicitly empower courts to give these)
➡️ Third party standing: with only a few exceptions, people who are not part of the dispute can't bring a lawsuit over the dispute

I might be missing some, but those are the main prudential standing questions coming to mind
MIDPOINT THREAD INTEGRITY CHECK:

You should be able to scroll from here all the way up to the tweet that says this is the roadmap

Then click that tweet, and you should be able to scroll all the way back down to here

Please do that and confirm it worked before I continue
It *looks like* the thread is still working, so let's continue

As I mentioned before, standing doctrine is convoluted and has tended to change willy-nilly over the years based on shifting reasons

Most of the standing cases have, unsurprisingly, been developed in federal courts
Probably the most famous modern case on *federal* standing – taught in law schools nationwide – is the 1992 Supreme Court ruling Lujan v Defenders of Wildlife, 504 US 555

oyez.org/cases/1991/90-…
From Lujan at 560:

"Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements..."
"First, the plaintiff must have suffered an 'injury in fact' – an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical."
"Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court."
"Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."

oyez.org/cases/1991/90-…
As with most things, each of those elements to constitutional standing has been litigated over the years too
For example, do you only have fear of a future injury? Not good enough for constitutional standing according to Clapper v Amnesty Int'l, 568 US 398 (2013)
Was there a violation of a statute, but you weren't *really* hurt by it? Not good enough for constitutional standing according to Spokeo v Robins, 578 US ___ (2016)
The importance of these federal court cases on standing are twofold:

1️⃣ They flesh out the contours of the legal doctrine

2️⃣ North Carolina courts – even though they're not bound by federal standing rules – sometimes adopt them as North Carolina law
Access to North Carolina courts are governed first by the state constitution, Article I, Section 18

You can seek redress in the courts for "injury done him in his lands, goods, person, or reputation"
And the NC Supreme Court has occasionally relied on federal standing doctrine to interpret what that means (Dunn v Pate in 1993, Empire v DEHNR in 1994, State v Hart in 2015) – but never fully adopted the "constitutional standing" doctrine from Lujan+Spokeo
(For the civil procedure nerds, there is speculation a pending NC Supreme Court case – Dan Forest v EMPAC – could provide a basis to adopt Spokeo as state doctrine. But it could also get resolved on First Amendment grounds so who knows.)
The reason I've been spending so much time explaining what standing is and how it works is b/c a lack of constitutional standing is what's called a "jurisdictional" defect

If you don't have standing, the court can't hear the case

And any court orders in it are void ab initio
("Void ab initio" == invalid from the beginning)
MIDPOINT BREAK

I've gotta drive to Mebane so I'm gonna pause here

If you don't mind, see if you can scroll from here to the top of the thread

Then click that top tweet, and try to scroll back down to here
It was not. An SCV member provided it to me b/c apparently the Grand Wizard has been mishandling $$$

I wasn't even fully certain it was authentic – until they filed the DMCA complaint, which they couldn't do without claiming ownership

Driving back
Alright, let's continue with why the SCV LOLsuit was so bad

Bad to the point of appearing to be a fraud on the court by SCV lawyer C. Boyd Sturges III, aided and abetted by UNC's lawyers Tom Shanahan (General Counsel) and Ripley Rand (outside counsel at Womble Bond Dickinson)
Remember:

➡️ You need standing to sue

➡️ If you don't have standing, court orders in the case – like consent judgments – are void ab initio

➡️ The SCV's theory of the case was here:

Remember also that the Complaint that was filed was *verified*

SCV Grand Wizard R. Kevin Stone signed an affidavit, swearing under oath, that what was in the lawsuit was true

Including his claim that SCV has standing. Which you should compare with his victory statement.
But we can't rest on R. Kevin Stone lying of course. He can always just say he was lying to his members, not lying to the court

So let's go a little deeper into why their theory of the case is LOLable

For example, consider this paragraph from the (Verified) Complaint
In the preceding paragraphs, SCV goes to some length to note that Francis Preston Venable was the President of the University of North Carolina

They also note that under NC's then-existing couverture laws, a married woman couldn't sign a contract without her husband's consent
The reason for that was because NC legislators preferred their women like SCV preferred their slaves: property

And you couldn't encumber a husband's property without his consent
But there are a few problems with that agency theory
First, it's a cardinal rule of agency law that an agent cannot have more power than the principal they're serving

If a married woman can't enter into a contract without her husband's consent, a married woman can't have an agent do it without her husband's consent either
Which, if you think about it, makes intuitive sense

Because otherwise a husband's property could be encumbered without his consent, just because the wife got an agent
And, bonus: there has to be a contract between the principal and the agent

Which a married woman back then couldn't enter into without her husband's consent 🙃
Second: a government official can't "double dip" as a private party's agent at the same time

Venable might well have been the UDC's agent on his own private time, but not while he's acting as University President
And that matters, because he was clearly acting as University President when he raised $5,000 of the $7,500 bill to the sculptor

How do we know? It's included in the SCV's lawsuit among the exhibits
Venable even notes in his letter "[t]his will make the proportion of the UDC's [ownership of Silent Sam] one-third and that of the [UNC] alumni's two-thirds."

So the SCV's entire agency theory of Venable's conduct goes splat at least 3 different ways:
1️⃣ Venable could not have been the UDC President's agent without a contract that her husband consented to

2️⃣ Even if he were an agent, he couldn't contract w/ the sculptor w/o her husband's consent

3️⃣ Even if he had, he was acting as a public employee when raising 2/3 of the $$
And that's all *long before* we get into the lunacy over treating the word "forever" in the unveiling speech as a binding gift condition

UNCCH Law professor @elmunc blows that apart – with citations to case law – in this thread:

Note well when reading @elmunc's thread: the lawyers for the parties affirmatively misrepresented the law governing gifts

That matters, because all North Carolina-licensed attorneys engaging in civil litigation are bound by the North Carolina Rules of Civil Procedure

That includes Rule 11, available here: ncleg.gov/EnactedLegisla…

Note the highlighted passage
In summary, you had absolute gibberish of a legal theory cloaked in lies by a Plaintiff and the Plaintiff's lawyer, ratified by the Defendants' lawyers, then presented to a judge for his signature

It also means the UDC never had any injury-in-fact from Silent Sam's removal
And because the UDC never had any injury-in-fact, they had nothing to assign to the Sons of Confederate Veterans

The UDC assigned a nullity
And since SCV received a nullity, they too had no injury-in-fact

Meaning they never had constitutional standing to sue in North Carolina's courts under Article I § 18 of the North Carolina Constitution

Meaning the consent judgment is void ab initio

So...
The next challenge is how do you get this in front of a judge?

And that brings us to Part II of this thread
(Technically Part IV after the disclaimers and background documents, but Part II of the substance 😉)
II. PROCEDURAL IDEAS TO UNDO THE #SILENTSHAM

Part of this is my own mental ramblings, and part of it is from consultation with 3 other attorneys

Given the subject matter, I'm leaving it in their discretion whether they want to identify themselves are not
Importantly, we also want other ideas that we haven't considered yet

That's the main reason I'm doing this Twitter thread, because crowdsourced legal theories can be scary good sometimes 😬
We've also sorted these along 2 axes: likelihood of happening, and likelihood of success if it happens

Generally, the more likely stuff is less likely to succeed and vice versa 😕
Option A: Judge Baddour reconsiders on his own

On a 10-point scale -
Odds of happening: 1
Odds of success: 10
I don't see any plausible argument that this was *not* a fraud on the court, whether it's Kevin Stone's misrepresentations belied by his victory statement, or the Rule 11 violations by the lawyers

Judge Baddour could decide he wants to hold a hearing for the lawyers to explain
The challenges of course are convincing him to do that (since idk him on a personal level and idk anybody who does that he'd listen to)

But if he decided to rescind his order on fraud grounds, it'd be hard to undo that rescission on appeal
Option B: Attorney General's involvement, either civilly or criminally

On a 10-point scale -
Odds of happening: 3
Odds of success: 8
I mentioned in the other thread that there appear to be procedural problems in how the Board of Governors approved the settlement

Namely, it was settled before the Board voted, and the University Governance Committee did not have the power to approve it solo
(And even then, the settlement was signed days before the Governance Committee even met)
Kevin Stone's lies, and the Rule 11 violations by his lawyer C Boyd Sturges III, also mean they were obtaining property by false pretenses
The Attorney General's Office could seek to have the judgment voided civilly on procedural grounds, or pursue criminal prosecution with $2.5M in restitution

The challenge is that I don't think Josh Stein has the spine to get involved – in an election year – before it's too late
Option C: municipalities move to intervene

On a 10-point scale -
Odds of happening: 4
Odds of success: 5
Kevin Stone's victory statement made clear that the SCV is planning more of these sham lawsuits

If you live in a town with one of these statues, either still standing or recently removed, you *will* be extorted by the SCV for taxpayer cash
That also means there are common issues of law shared by these municipalities and by UNC

A basis for permissive intervention under Rule 24, basically asking the judge to let them into the suit too...
...that would be filed in tandem with a motion under Rule 60(b) to set aside the judgment
This has the benefit of guaranteeing alllllll of the problems can be raised: errors in substantive law, errors in procedure, all of it

And if the judge denies the motions, those denials can be challenged on appeal

The problem is convincing a municipality to get involved
Option D: A "derivative suit"-esque lawsuit by either taxpayers or students

On a 10-point scale -
Odds of happening: 10
Odds of success: 2
There's -0- doubt in my mind that UNC Interim President Bill Roper and every. single. person. on the UNC Board of Governors who played a role in this settlement breached their fiduciary duty to the public
There are also unknown questions regarding the origin documents on things like the UNC Endowment, and who the beneficiaries of that are according to those documents
Either could provide a concrete and particularized injury to merit suit

The challenge is that *normally* taxpayers don't have standing to challenge spending decisions by government agencies
North Carolina does have some favorable common law history on taxpayer suits, but it's not an area I'm sufficiently well-versed on to confidently say it would work
The upside is that alllllll the defects – both substantive and procedural – could be spelled out in the Complaint, and any adverse rulings would be appealed
That's everything we've been able to come up with so far

Options B and C were my contributions, so if you think they're more stupid than the rest don't hold that against the other lawyers I talked with please 🤪
Consider this tweet the ending point of the "official" roadmap thread, and everything after here as Q&A and new ideas from folks
Importantly: please RT parts of this thread widely to get better distribution and feedback 🥺

For better or worse, Twitter's algorithm leads to a 98% drop-off in readership from the start of a thread to any midpoint in it
Dear @threadreaderapp, compile please
I hadn't considered that angle, very good point

But how do you convince a city's legal team to do it?

I swear too much to get elected to Congress 😉

I think it can RT'd by anyone! I'll RT it when I see it

You may very well be right, but given how cavalierly the UNC system leadership acts with endowment money, I'm skeptical

Not near my PDF of the Complaint at the moment, but I vaguely think I recall them arguing the statue was real property because it was affixed to the land?

I may be imagining that. Reading their filings gave me brainworms

Agreed, but I'd argue there's a distinction between quantum of evidence needed to upend the judgment outright vs what Judge Baddour would need to call a hearing to determine if he'd been hoodwinked

Based on what is currently known, I think that's the most-viable of the Option D theories

There may be better ones based on what's learned re, e.g., the UNC Endowment restrictions

I think the most-effective group on those grounds would be the UNC General Alumni Association, but I'd imagine others would work too

Let me clarify: I swear too much *publicly* to get elected to Congress 😉 I can't even get a faculty gig because of my Twitter feed 😂

I've been informed by @CScottHolmes that the UDC wasn't even incorporated back then, so there wasn't a group with the legal capacity to own property 🤔
The judgment requires that the transfer go to a new trust that has to be created (if it hasn't been already)

The BOG assumed they could get all this through before anyone would both ask the questions, get the answers, and mobilize before it's too late

Just from the holiday break alone, it's already been a week since the settlement was filed

I have strong and sharply negative opinions about the lawyers representing the University, so I'll refrain from opining here 😉

More specifically the @nytimes interviewing the Plaintiff and him being dumber than a bucketful of moldy cheese cubes

No clue. Oddly enough, I'm told several BOG members who folks would think might feel differently apparently voted against the settlement b/c they think Silent Sam should've gone back up where it was

Aye, theories in this thread!

There will likely be at least one lawsuit, just not sure whether it will work

Went ahead and pinned this thread to my profile page so it's easy to reach

If you're a lawyer with feedback on options – or, even better, if you know potential Plaintiffs – please chime in 😬
So the UDC money was transferred into a university-owned bank account?? 😂

One of the lawyers suggested adding the State Auditor's Office to the list of people to intervene

Idk what powers the Auditor would have to undo the deal, but if anyone knows Beth Wood's team maybe give them a call?
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