Asheville: group should be sanctioned for new suit to save Confederate NC gov. monument

ASHEVILLE - a Civil War history group and its attorney should face sanctions for bringing another lawsuit to stop the removal of a Confederate governor's monument, the city says.

In a May 13 Buncombe County Superior Court filing, the city said three courts had already ruled against the Society for the Historical Preservation of the 26th North Carolina Troops, including the North Carolina Supreme Court in a March 22 decision that said the monument to Gov. Zebulon Vance could be removed.

"Plaintiff and its counsel have filed a complaint that they know is not warranted by existing law, or good faith argument for the extension, modification or reversal of existing law," wrote Senior Assistant City Attorney Eric Edgerton.

He pointed to the original case under Superior Court Judge Alan Thornburg in which the judge did not say whether his dismissal was with prejudice − meaning it was final and can't be retried − or without prejudice − meaning it was subject to further inquiry. According to case law, that silence meant with prejudice, Edgerton said.

Along with dismissing the case, the court should make the society and its attorney H. Edwards Phillips pay attorneys fees, Edgerton said in the filing. It should also impose a gatekeeper provision requiring that "before the plaintiff submits any further pleadings related to the city, it obtain certification of a N.C.-licensed attorney, other than present counsel," the filing said.

In a separate filing, the county, which is also a defendant, called for the lawsuit's dismissal.

Phillips in May 14 comments to the Citizen Times said he disagreed with the city's interpretation that the trail court judge's silence meant dismissal with prejudice.

"If it were dismissed without prejudice, which is what I believe, the result is you are able to refile because the issue of a breech of contract is a still alive and we have standing," he said. Because there have been changes in case law around monuments, that means he can argue the issue again, he said.

Despite the second suit filed May 6 to save the Vance Monument, the city said it would proceed May 14 with the removal of the final parts of once-prominent downtown granite obelisk.

The city and county agreed to remove the marker to Vance − a Confederate officer, Civil War governor and enslaver − after widespread 2020 racial justice protests across the country and in Asheville.

The society, which in 2015 paid $138,447 for the repair of the obelisk, stopped the demolition with its first 2021 lawsuit. In its ruling, the state Supreme Court said the society did have standing, reversing an N.C. Court of Appeals decision that said it didn't. But the high court ruled against the society regarding breach of contract claims.

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Joel Burgess has lived in WNC for more than 20 years, covering politics, government and other news. He's written award-winning stories on topics ranging from gerrymandering to police use of force. Got a tip? Contact Burgess at jburgess@citizentimes.com, 828-713-1095 or on Twitter @AVLreporter. Please help support this type of journalism with a subscription to the Citizen Times.

This article originally appeared on Asheville Citizen Times: Asheville: sanctions for new suit to save Confederate NC gov. monument