Judge declines to issue preliminary injunction to removal of confederate statue

BY CASEY MANN, News + Record Staff
Posted 11/13/19
PITTSBORO — Superior Court Judge Susan Bray on Wednesday denied a request for a preliminary injunction filed by the Winnie Davis Chapter of the United Daughters of the Confederacy to prevent …

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Judge declines to issue preliminary injunction to removal of confederate statue

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PITTSBORO — Superior Court Judge Susan Bray on Wednesday denied a request for the preliminary injunction filed by the Winnie Davis Chapter of the United Daughters of the Confederacy to prevent Chatham County from removing the Confederate statue from the grounds of the Historic Chatham County Courthouse.

With the judge's decision, there appears to be nothing to prevent the county from removing and storing the Our Confederate Heroes statue while the monument's ownership is determined.

The judge also granted a motion by the West Chatham Branch of the NAACP and the local advocacy group Chatham for All to participate in the case.

The legal battle over the fate of the statue is rooted in a lengthy legislative process where the Chatham County Board of Commissioners ultimately voted 4-1 in August to request the UDC reclaim the statue, which the county argues the Daughters own. A subsequent vote by county commissioners in October, which fell along the same lines, ordering county staff to safely remove and store the statue, triggered filings from three Chatham residents and the Winnie Davis Chapter requesting legal relief from the act with a temporary restraining order until today's occurred.

While the temporary restraining order was put in place by Judge Casey Visor almost two weeks ago, Judge Bray determined that the lawyers for the UDC did not meet the legal burdens required for a preliminary injunction while the question of ownership of the statue is determined. Those requirements are three-fold — the likelihood that the Plaintiffs would be successful, irreparable harm and a balance of inequities.

Ownership

If the statue is deemed to be owned by the county, it would warrant protections under state law. But if it is owned by the UDC, they would have no recourse to stop the county from removing it. This makes ownership a key element of the case.

The attorneys for the county as well as those for the West Chatham Branch of the NAACP and Chatham for All argued that a license, a document obtained from the N.C. Archives, indicates the statue is the property of the UDC. Nick Ellis, an attorney representing Chatham County, noted in court Wednesday that the license between the county and the UDC uses the language “authorized and permitted to erect” as well as the phrase “care and keeping of the Daughters of the Confederacy.” Ellis also argued that there is no ordinance or resolution, a requirement by state statute, stating the county was taking possession of the statue.

Conversely, attorneys for the UDC argued Wednesday that the monument was a gift, stating that the inscription on the statue included the word “gift,” indicating the intention to give the monument to the county. However, county attorneys argued that the full inscription does not say that it is a gift from the UDC to the county, but rather a gift to the memory of the Confederate solders.

UDC attorney James Davis also argued that the county has asserted “dominion” over the statue, including footing the cost of repairs in the late 1980s. The county's attorneys, however, noted that Davis had not brought in a single case that supported that assertion. As such, Ellis noted numerous cases and statutes that outlined the ways that a county government can obtain property.

Irreparable harm

Davis argued that the county had threatened “criminal trespass” if the UDC did not take the statute, which would cause an irreparable harm. However, Ellis countered that at no point, based on the minutes of the Board of Commissioners meetings and its own resolutions, did the county threaten criminal charges.

Ellis also argued that the “criminal” charge premise, which the UDC used in part to secure the temporary restraining order, was one of several “material facts that have been misrepresented” by the UDC's attorneys.

Balance of inequities

Davis argued that the efforts by the commissioners were part of a “manufactured argument” of racism and part of a national movement by the “far left” to “whitewash history” and claim the “war between the states” was about slavery rather than states rights and economics. He also stated that the commissioners, who are elected by countywide votes, do not represent a majority of county residents.

Conversely, attorney Phillip Harris, who represents the NAACP and Chatham for All, argued that the Civil War was fought over slavery, noting the cessation documents of each of the states including North Carolina. At the same time, both Harris and Ellis noted that the intent of the UDC's case was to “infringe private speech” onto government, a assertion that both attorneys produced numerous case law to support.

After all legal counsel was provided an opportunity to make their case, Bray sat silently reviewing binders provided by both parties in the case. The courtroom, with a full audience in anticipation of a answer, hung on her every word.

She first asked about a “scheduling matter,” that of the several “motions to dismiss” filed, which was subsequently scheduled for ‪Dec. 2.‬

“As far as the motion preliminary injunction,” Bray began. “As has been stated by counsel, the issues for the court to consider — based on the arguments of counsel and the briefs that were presented and argued in court, including the exhibits and affidavits — the court finds that the plaintiffs have not met the burden.”

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Vickie A
Excellent article. Thorough and accurate
| Thursday, November 14