The Removal of Confederate Monuments: Considerations for Municipalities
Over the last few years, a growing number of citizens have called for the removal of confederate monuments while other groups have demanded their preservation. What considerations should a local government include in its analysis in determining whether to remove a statue?
The answer depends on the facts and procedural posture. In United Daughters of the Confederacy, et al. v. City of Winston-Salem, et al., decided by the North Carolina Court of Appeals on December 15, 2020, the Court agreed with the lower court’s dismissal of the lawsuit on the basis that the plaintiffs lacked standing. The plaintiff alleged that, as a genealogical organization whose members are descendants of veterans of the Confederate States of America, it assisted in raising funds to erect the statue in 1905 and had a legally protected interest in the statue’s fate. In recent years, the statue was listed on the National Registry of Historic Places but remained on public property and was not owned by the plaintiff. At the time the City decided to remove the statue, it was located on privately owned land and had been conveyed to a private third-party.
In reviewing the plaintiff’s complaint filed as a declaratory judgment, the Court found the pleadings failed to establish a basis for ownership or any other interest in the statue by plaintiff. “To establish standing, a plaintiff must demonstrate three things: [(1)] injury in fact, a concrete and actual invasion of a legally protected interest; [(2)] the traceability of the injury to a defendant’s actions; and [(3)] the probability that the injury can be redressed by a favorable decision.” Neuse River Found, Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 114, 574 S.E.2d 48, 51–52 (2002). The mere filing of a declaratory judgment is not sufficient, on its own, to grant a plaintiff standing. See Beachcomber Prop., L.L.C. v. Station One, Inc., 169 N.C. App. 820, 824, 611 S.E.2d 191, 194 (2005).The Court noted that ownership rights to the property being removed were necessary to satisfy the requirement that a legally protected interest was present.
The dissenting opinion challenged whether the various federal and state procedural requirements were met by the City. In the dissenting opinion, Judge John Tyson concluded that the plaintiff possesses the individual standing of its members and Chapters and representational standing to seek a declaratory judgment and other relief. Judge Tyson’s dissent highlights additional statutory and procedural rules for municipalities to consider when engaging in a process for removal of a public statue.