UDC’s quest to restore Winston-Salem Confederate monument stumbles over ownership

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Workers remove the Confederate monument from downtown Winston-Salem earlier this month. (file photo)

A North Carolina Superior Court judge heard arguments on Tuesday for why he should or shouldn’t allow a United Daughters of the Confederacy lawsuit seeking to restore the Confederate monument in downtown Winston-Salem to go forward, but made no decision.

The city of Winston-Salem, Forsyth County and the private entity that owns the location of the former monument argued that United Daughters of the Confederacy doesn’t have standing to bring the suit. Among other arguments, they said the nonprofit wasn’t injured by the city’s decision to remove the monument last month.

But James Davis, the lawyer representing the plaintiffs, portrayed his client as an aggrieved victim pushed beyond the bounds of toleration.

“The United Daughters of the Confederacy was injured by the cost of having to bring this action,” Davis told Superior Court Judge Eric Morgan. “If they hadn’t been brought into this, they wouldn’t have had to spend money to propound this case.”

Later he added, “If you invite me to a fight, I have the right to defend myself. How can you say I’m not the injured party when you have your knuckles raised? The United Daughters of the Confederacy said they were not gonna be bullied. Their ire was got up and they’ve filed a complaint.”

Lawyers for the three defendants expressed various levels of exasperation.

“Their lawyer says they were injured because they had to bring a lawsuit,” Forsyth County Attorney Gordon Watkins said. “Does that make any sense?”

“We were sued,” he added. “We did not seek to become part of this lawsuit.”

Davis reminded the judge that the United Daughters of the Confederacy has made no claim to own the monument.

“All we’re asking the court to do is make a judicial determination as to who owns the monument,” he said.

James Wilson, another lawyer for the plaintiffs, told the judge it was “suspicious” that the county has no record of who owns the statue, which was dedicated on the grounds of the old Forsyth County Courthouse in 1905.

A finding that the United Daughters of the Confederacy owns the monument would open the door for the them to pursue a claim that their due process rights were violated when the city declared the monument a public nuisance and removed it. The plaintiffs have a pending motion for preliminary injunction to seek a restraining order against the city, but Judge Morgan heard only the motions for dismissal by the three defendants on Tuesday.

Alternately, were a judge to find that the county owned the statue, the organization would likely claim that the city’s action violated a 2015 law prohibiting removal of monuments from public property. But even that prospect presents a long and winding road for the plaintiffs: The county sold the property to Winston Courthouse LLC, an ownership entity set up by Richmond, Va.-based Clachan Properties to develop luxury apartments, in 2014. The plaintiffs would somehow have to make the case that the county retained ownership of the monument, or an easement of some sort, even while transferring ownership of the land on which it sits.

“The key point is that the land is our land,” said Jodi Hildebran, a lawyer who represents Winston Courthouse LLC. “It is not public property.”

Hildebran also sought to have the case dismissed on a technicality. She said the James B. Gordon Chapter of the United Daughters of the Confederacy, which reportedly raised money to erect the monument, is no longer registered as a legal corporation. The United Daughters of the Confederacy North Carolina Division, whose president Sara Powell attended the hearing, was formed in 1992, according to corporate records.

“I haven’t seen anything that links this entity to the entity that raised the money back in 1905,” Hildebran said.

Davis responded that the James B. Gordon Chapter is a “subsidiary” of the North Carolina Division, and that even though the two organizations might not have identical membership rosters, they share the same set of bylaws.

The lawyers for the two sides also debated whether the Confederate monument is “personal property” or a “fixture.”

Arguing for the United Daughters of the Confederacy, Davis cited an 1854 case in which the New York State court ruled in favor of a sculptor who argued that a sundial on his property was a fixture. But Watkins cited a 1978 case decided by the North Carolina Supreme Court finding that a gasoline distributor could remove its pumps from a gas station after the new owner opted to stop buying its product.

The irony was not lost on the defense attorneys that in this case the argument is over property that the land owner doesn’t want.

“Usually, it’s something of value, and the owner is arguing, ‘No, no, no, that belongs to us,’” Hildebran said. “In this case, we don’t want it.”

None of the parties dispute that the deed transferring ownership from the county to the new owners of the Old Forsyth County Courthouse excludes the Confederate monument from the sale. Hildebran suggested that whether the courts rule that the Confederate monument is “personal property” or a “fixture,” the United Daughters of the Confederacy’s mission to restore the monument to its old location is doomed to fail.

“When somebody doesn’t sell a fixture, their remedy is they get to come and take it back,” she said.

Citing contemporaneous newspaper accounts, Winston-Salem City Attorney Angela Carmon argued that by all accounts the monument was erected with permission from the county and that there is no evidence the county claimed ownership.

“Even if you say, the county owns the monument or the Daughters owns the monument, it’s irrelevant because it was placed on the county property with permission, and then the permission was withdrawn,” she said. “The new owners said, ‘Come and get it.’”

Judge Morgan gave no indication of when he might rule on the motions to dismiss, saying that the case law cited by the lawyers was “voluminous,” and he wants to take the time to review it.

Sara Powell, president of the United Daughters of the Confederacy North Carolina Division, declined to comment after the hearing on Tuesday.

The judge continued motions to quash subpoenas filed by the United Daughters of the Confederacy to compel testimony from Miranda Jones, an antiracist activist who has played a prominent role in public demonstrations by Hate Out of Winston calling for removal of the monument.

The subpoena hints at a legal strategy by the United Daughters of the Confederacy to promote a theory that the city conspired with activists to manufacture a crisis that would justify removing the statue.

Subpoenas issued to Jones, along with Mayor Allen Joines and Assistant City Manager, request that they appear in court to testify and produce “personal notes, messages, memoranda, text messages and emails, letters and any other correspondence pertaining to the Confederate monument,” over a period of seven years. Jones declined through her lawyer to comment on Tuesday.

The United Daughters of the Confederacy had also sought to disqualify Carmon from representing the city in the matter.

The organization said in a motion filed in March that “testimony sought from attorney Carmon relates to the development and collection of information to support defendant city’s strategy to identify plaintiff as the designated owner of the Confederate monument, failure to direct the investigation into the act of vandalism performed at the location of the Confederate monument, and the defendant city’s failure to direct law enforcement to disperse individuals gathered on the streets of Winston-Salem without a permit.” The motion also said the organization wanted Carmon to identify “the party or parties she referenced in her statement who uttered threats of civil unrest or damage to the Confederate monument.”

Carmon said in a filing responding to the motion that she has “no direct or personal knowledge of any matters related to plaintiffs’ lawsuit other than those I have learned during the course of my legal representation of the city. The matters of which I have direct and personal knowledge are protected by the attorney-client privilege.”

John Rogers of Hate Out of Winston said members of the group showed for the hearing to support Jones, against what he called an attempt by the United Daughters of the Confederacy “to harass and conduct a fishing expedition,” and to follow up to ensure that the city and the private owner of the Old Forsyth Courthouse follow through on their commitment to keep the monument down.