Over the last few years, Confederate monuments in many North Carolina towns and cities have been objects of controversy. As one who parked for eighteen years in the shadow of the towering and now-departed Confederate monument at the North Carolina Capitol, I was interested to read Edwards, et al., v. Town of Louisburg, a split and published opinion issued on August 15, 2023 by the North Carolina Court of Appeals.
The Town of Louisburg has had a monument since May 13, 1914, when it was dedicated to the memory of Franklin County Confederate dead. Protests around the monument occurred in June, 2020, leading the Louisburg Chief of Police to advise town officials that public safety was a concern.
At an emergency meeting on June 22, 2020, the Louisburg town council voted to remove and relocate the monument. At a regularly scheduled meeting held about a month later on July 20, 2020, the town council voted to ratify its June 22, 2020 decision.
The next day, plaintiffs filed an action in Franklin County Superior Court, seeking a temporary restraining order, a preliminary injunction, and a declaratory judgment, asking to have the town council’s actions regarding the monument declared void. Defendant Town responded by filing a motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim. On July 28, 2020, the trial court denied plaintiffs’ motion to dismiss and motion for a preliminary injunction. On March 28, 2022, the trial court entered an order granting summary judgment in favor of the defendant. The plaintiffs appealed.
A divided panel of the Court of Appeal affirmed the trial court (Judge Gore writing for the panel, Judge Zachary concurring, Judge Tyson dissenting). The majority first noted that the trial court did not explain its rationale in allowing summary judgment for the defendant. However, it further observed that if summary judgment can be sustained on any grounds, it would not be disturbed on appeal.
Accordingly, the Court first addressed the question of the plaintiff’s standing to pursue a declaratory judgment. It pointed out that a plaintiff seeking such relief was required to demonstrate that it had sufficiently suffered an injury, citing both Comm. to Elect Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 563, 853 S.E.2d 698, 714 (2021) and United Daughters of the Confederacy v. City of Winston-Salem, 383 N.C. 612, 625, 881 S.E.2d 32, 44 (2022). Here, although the plaintiffs argued that the ownership of the monument was a disputed fact, the majority reviewed the record and determined that “each plaintiff party to this action either denies they have an ownership interest in the Monument or admits that they do not own the Monument.” As a result, the majority found that the plaintiffs lacked standing.
The plaintiffs next argued that the defendant failed to provide proper notice of its June 22, 2022 meeting. The Court of Appeals majority observed that the defendant (through its town council) voted at its regular June 22, 2020 meeting to ratify the earlier action. Because the plaintiffs did not challenge that ratification, the majority found this issue moot. The majority then affirmed the trial court’s order granting summary judgement in favor of the defendant on all claims.
The dissent first addresses the issue of standing. Like the majority, the dissent relies on Comm. to Elect Dan Forest and United Daughters of the Confederacy. According to the dissent, the North Carolina Constitution does not require that a plaintiff allege that it suffered “injury in fact” when challenging the validity of a statute. Instead, the dissent maintains, “the legal injury itself gives rise to standing,” citing Dan Forest at 608, 853 S.E.2d at 733 (italics in dissent). Thus, says the dissent, a plaintiff must address two issues. First, does the relevant statute (here, the Declaratory Judgment Act) confer a cause of action on the plaintiff? Second, if so, has the plaintiff satisfied the statutory requirements to bring a claim?
The dissent argues that the majority erred when it distinguished this case from the holding of the Supreme Court of North Carolina in United Daughters of the Confederacy, which held that the correct remedy for lack of jurisdictional standing is to dismiss without prejudice. Accordingly, the dissent contends that the trial court’s order on summary judgment as to standing should be reversed and remanded to the trial court for entry of an order to dismiss without prejudice.
This case can be appealed to the Supreme Court of North Carolina as a matter of right on the basis of the dissent. While the difference between the majority and the dissent seems to be merely whether the trial court’s dismissal should have been with or without prejudice–and in fact the majority never directly addresses that issue–the opinion is nevertheless intriguing because both the majority and the dissent rely on the same Supreme Court opinions to reach conflicting results. The differences between the majority and the dissent appear to run deeper than the bare question of the nature of the trial court’s dismissal. While we could see the parties present an array of statutory and constitutional issues on appeal (or PDR), my fellow blogger Troy Shelton notes that the Supreme Court of North Carolina will be hearing a different monuments case that’s scheduled for November 1, 2023.
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