Back at the Orange County Courthouse for #SilentSham, round 2. I'll be live-tweeting here.
We're at the lawyers-milling-around-and-yuckin'-it-up stage of the proceedings.
A neither-here-nor-there observation of this courtroom and this case: women are solidly represented in the student ranks of law schools and have been for a long time. But not this courtroom.
Judge Baddour (JB): He'll allow oral argument from amici. #SilentSham
Boyd Sturges (BS): Standing became an issue mostly because of the email the head of the SCV sent to his membership. Lots of "huffin' and puffin'."
BS: for 100 years, UNC could've moved the statue. But they didn't, and then it was too late, because the NC monuments law came into effect in 2015, and that then forbade the monument from being moved. #SilentSham
That's an odd thing to say, since the premise of the lawsuit was that if UNC ever moved the monument, it would revert to the ownership of the United Daughters of the Confederacy...
BS: "My client's ultimate issue is honoring the dead of that era."
Now Boyd Sturges is saying that it's at best a "colorable" claim that the UDC regained ownership of the monument when it was removed from McCorkle Place. And that gave them the ability to negotiate, and then settle the case.
A big theme underlying this presentation is that the judge "should not let the perfect be the enemy of the good."
Sturges is saying that his client had "the standing to negotiate this deal." But you don't need standing to negotiate. You need standing to *sue*.
Now Ripley Rand, for UNC: Emphasizes facts. 1. Idea of putting the monument at UNC was the UDC's. (here he's trying to counter the claim that UNC owned the monument from the get-go.)
Ripley Rand (RR): we don't dispute anything that the university historian has said in her affidavit. But what she has found doesn't contradict the idea that this monument was a gift from UDC to UNC.
Now RR concedes that the monument could be seen as an unconditional gift from UDC to UNC. Or as lots of other things. But a "reasonable view" of the facts is that UDC made a conditional gift to UNC.
RR now argues that there were endless numbers of complex legal issues that could have been litigated ... but this agreement was a "reasonable view" of those issues and UNC thought it wise to get the matter settled.
RR's argument is weak. He's surely right that UNC didn't need judicial findings about complex legal issues to give (or sell) the monument to the UDC/SCV. But UNC didn't do that. *It got a court to make judicial findings because it wanted a court settlement.*
Bottom line: this was a volatile moment. The BOG wanted to resolve things. It had to follow the Monument Law. The BOG was under no obligation to litigate. It found a party with a "colorable claim" to ownership (UDC/SCV) and decided to "settle things" (hah!) by this settlement.
It's quite remarkable to see the difference in RR's tone/position compared to December. Today he's trying to dig himself out from under a mountain of legal problems. Back in December he was speaking like he had this in the bag.
JB: I'll be happy to hear from the friends of the court.
Elizabeth Haddux stands to speak for the students who tried but failed to intervene in the lawsuit back in December.
(sorry, *Haddix*)
Haddix (EH): a court's jurisdiction can't be created by agreement of the parties.
EH says the facts are clear that UDC never owned the monument; UNC always owned it. And UDC (as women during the time when women couldn't do legal things independent of men) couldn't have had ownership. And even if they could, and did, the gift was plainly unconditional.
EH seems unquestionably right to me. Again, I repeat: if the BOG wanted to *give* the monument to the UDC/SCV, they could presumably have done so. But what they couldn't do was get a court to sign off on the conclusion that they *had* to *return* the monument to UDC/SCV.
EH: the Monuments Law doesn't apply because there's a public safety exception, and everyone agrees the monument posed a risk to public safety.
My comment: this is *absolutely key*. As EH says, maybe there was some uncertainty to the legal correctness of this view of the "public safety" exception in the Monuments Law. BUT WHY THEN DIDN'T UNC PURSUE A THEORY BASED ON *THAT* "REASONABLE INTERPRETATION" OF LAW AND FACTS?
Now Burton Craige (BC) is speaking on behalf of the UNC alumni friends of the court.
BC: Archival records show that UDC *never owned* the monument in the first place. UNC owned it. Entered into contract with sculptor. Paid the sculptor. Took delivery of monument. Installed the monument. Two-thirds of $$ came from UNC alumni.
BC: UDC couldn't claim restored ownership of something it never owned in the first place.
(My editorial comment: This argument that UDC never owned the monument, and that it always belonged to UNC, seems more legally contestable than the argument that UDC owned it but then made an unconditional gift of it to UNC.)
(BC's argument seems to depend on the notion that everyone milling around on McCorkle Place at the moment of the 1913 dedication was "in" on a polite illusion that what they were witnessing was UNC's receipt of a gift from UDC. I find that hard to believe.)
JB: I have a couple of questions I'd like to ask.
1. Had a different approach occurred, e.g. the removal of the monument by the university, or a declaration by UNC that the safety exception applied, who would have standing to challenge that declaration?
1. Had a different approach occurred, e.g. the removal of the monument by the university, or a declaration by UNC that the safety exception applied, who would have standing to challenge that declaration?
RR: UNC didn't want to invoke the public safety exception because anyone with an ownership interest in the monument would've been able to sue. And UNC wanted this to go away without further litigation.
BS: The legislature could've challenged a declaration by UNC that the public safety exception applied.
EH: the Monuments Law did not create a private right of action, even in a private owner of the monument. NC law is clear that the *legislature needs to clearly state a private party can sue*.
JB: The Monument Law also contemplates involvement of the NC Historical Commission. Am I right that the monument could've been removed with the approval of that body?
BS: yes.
RR: yes, but it can only be moved in a way that complies with other provisions of that law.
My comment: it's shocking to me that the judge and the lawyers are all unfamiliar with the terms of the NC Monuments Law. They're all struggling to give an answer to a really basic question about that law.
JB: My last question -- it's a narrow one. Could the settlement agreement be legal and yet the court not have jurisdiction because there's no standing?
THIS IS AN IMPORTANT QUESTION
The answer, of course, is yes: UNC could've done what it did without a judicial declaration that it was obliged by law to do so!!!!!!!!! (But it didn't want to -- it wanted a legal declaration as a fig leaf.)
(It seems to me the only issue with a private contract would've been whether laws about publicly owned property would've allowed UNC to gift it or sell it. For ex, maybe NC law would've required UNC to put monument up for public auction rather than giving it to the confederates.)
JB: The court will vacate the judgment!
JB: The judgment is void. Plaintiff did not have standing.
BOOM!
The lawsuit is dismissed.
Everyone who has had a hand in pushing back on this ridiculous arrangement should feel very good about what we've done.
The BOG wanted this to go away and their lawyers thought they'd found a clever way to do it. They wanted us to just let this go. That's why they did it the afternoon before Thanksgiving.
But people declined that invitation and applied reasoned, critical pressure. And that strategy was vindicated today.
JB: I am demanding of the trustee an accounting of any expenditures to date from the trust. JB wants the money returned.
EH is now arguing that no money should've been spent from the trust, including no money for lawyers.
JB: does anyone want the dismissal order to include instructions about the monument itself?
RR: I need to talk to my clients about that.
RR: I need to talk to my clients about that.
JB: I request to you, Mr. Rand, on behalf of BOG, that you communicate the position of your client on this to the court by a filing of some sort by next Monday at 5:00. (we're talking here about the disposition of Silent Sam itself...)
I wish someone would ask where the damn thing actually is right now...
I must admit, this thread has aged well.
