United Daughters of the Confederacy v. City of Winston-Salem

• Citation: 2022 NCSC 143
• Decision Date: 16 December 2022
• Docket Number: 21A21
• Parties: UNITED DAUGHTERS OF THE CONFEDERACY, NORTH CAROLINA DIVISION, INC., and JAMES B. GORDON CHAPTER #211 of THE UNITED DAUGHTERS OF THE CONFEDERACY, NORTH CAROLINA DIVISION, INC. v. CITY OF WINSTON-SALEM, by and through ALLEN JOINES, MAYOR OF WINSTON-SALEM, NORTH CAROLINA, FORSYTH COUNTY; COUNTY OF FORSYTH, NORTH CAROLINA, by and through DAVID R. PLAYER, CHAIRMAN OF THE BOARD OF COMMISSIONERS; and WINSTON COURTHOUSE, LLC
• Court: United States State Supreme Court of North Carolina

2022-NCSC-143

UNITED DAUGHTERS OF THE CONFEDERACY, NORTH CAROLINA DIVISION, INC., and JAMES B. GORDON CHAPTER #211 of THE UNITED DAUGHTERS OF THE CONFEDERACY, NORTH CAROLINA DIVISION, INC.
v.
CITY OF WINSTON-SALEM, by and through ALLEN JOINES, MAYOR OF WINSTON-SALEM, NORTH CAROLINA, FORSYTH COUNTY; COUNTY OF FORSYTH, NORTH CAROLINA, by and through DAVID R. PLAYER, CHAIRMAN OF THE BOARD OF COMMISSIONERS; and WINSTON COURTHOUSE, LLC

No. 21A21

Supreme Court of North Carolina

December 16, 2022

Heard in the Supreme Court on 29 August 2022.

Appeal pursuant to N.C. G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 275 N.C.App. 402 (2020), affirming an order entered on 8 May 2019 by Judge Eric C. Morgan in Superior Court, Forsyth County, granting defendants' motions to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.

James A. Davis for plaintiff-appellants.

Anargiros N. Kontos, Deputy City Attorney, and Angela I. Carmon, City Attorney, for defendant-appellee City of Winston-Salem.

B. Gordon Watkins III, County Attorney, for defendant-appellee Forsyth County.

Allman Spry Davis Leggett & Crumpler, P.A., by Jodi D. Hildebran; and Nelson Mullins Riley & Scarborough LLP, by Lorin J. Lapidu,s for defendantappellee Winston Courthouse, LLC.

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Mark Dorosin and Elizabeth Haddix for Chatham for All, North Carolina Commission on Racial & Ethnic Disparities in the Criminal Justice System, Dr. Joyce Blackwell, Dr. Phillip A. Clay, Algin Holloway, Patrice High, Edith A. Hubbard, Walter Jackson, Bradley Johnson, Philip McAlpin, Angelia Euba McKoy, Henry Clay McKoy, Lisa V. Moore, Moses G. Parker, Melvin L. Watt, Melvin L. Williams, Camille Z. Roddy, and Jimmy Barnes, amici curiae.

Matthew R. Joyner and H. Edward Phillips for Sons of Confederate Veterans, amicus curiae.

ERVIN, JUSTICE

¶ 1 In this case, plaintiff United Daughters of the Confederacy, North Carolina Division, Inc., challenges a decision made by defendant City of Winston Salem to remove a Confederate monument from the grounds of the former Forsyth County Courthouse.^[1] Although the courthouse and surrounding real property was originally owned by defendant Forsyth County, the County had sold the property to defendant Winston Courthouse, LLC, a private entity that had converted the courthouse building into private residential apartments, prior to the monument's removal. The trial court granted defendants' motions to dismiss for lack of subject matter jurisdiction pursuant to N.C. G.S. § 1A-1, Rule 12(b)(1), and failure to state a claim upon which relief could be granted pursuant to N.C. G.S. § 1A-1, Rule 12(b)(6), and

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the Court of Appeals affirmed the dismissal order in a non-unanimous decision. The issue before this Court on appeal is whether the facts alleged in plaintiff's amended complaint were sufficient to establish that plaintiff had standing to challenge the City's action. After careful consideration of the record in light of the applicable law, we hold that, even though plaintiff lacks standing to proceed in this case, the trial court erred in dismissing the amended complaint with prejudice. As a result, we affirm the decision of the Court of Appeals, in part; reverse that decision, in part; and remand this case to Superior Court, Forsyth County, for further proceedings not inconsistent with this opinion.

I. Factual Background A. Substantive Facts

¶ 2 Plaintiff is a nonprofit corporation organized under the laws of the State of North Carolina, having first registered with the Secretary of State in 1992. According to the allegations contained in plaintiff's amended complaint, in 1903 the James B. Gordon Chapter #211 of the United Daughters of the Confederacy "began a movement to place a Confederate monument in Court House Square in Winston, North Carolina." In its complaint, plaintiff alleges that the local chapter had approved a proposed design for the monument, initiated plans "to obtain a monument at a cost of no more than $3,000.00," and launched a fundraising campaign to raise money for the monument's construction.

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¶ 3 Plaintiff further alleges that, "on or about March 1, 1905, the Forsyth County Board of County Commissioners issued an order granting to the Plaintiff, formerly known as the Daughters of the Confederacy, permission to erect a memorial to the fallen soldiers of the Confederacy . . . upon property of the County of Forsyth."^[2] In addition, the complaint alleges that, "on or about October 4, 1905, a ceremony sanctioned by the Board of County Commissioners was conducted during which the Confederate Monument was dedicated." Finally, the amended complaint alleges that, sometime around March 2012, while acting "on behalf of the County of Forsyth, North Carolina," Ashley Neville and John Salmon of Ashley Neville, LLC, nominated the old Forsyth County Courthouse for placement on the National Register of Historic Places, with that nomination having been accepted "[o]n or about April 23, 2013[.]" Plaintiff never makes any claim to own the monument or to have any sort of contractual or property interest in it.

¶ 4 On 18 March 2014, the County executed a general warranty deed conveying the old Forsyth County Courthouse and the surrounding real property to Winston Courthouse, a private real estate developer, by means of a deed that expressly excluded from the sale "a plaque mounted inside the building, time capsule currently buried inside the building, and public monuments located outside of the building on

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the land" and provided that Winston Courthouse "agrees to execute necessary easements (in form and content that are reasonably acceptable to both parties) to allow [the County] continued access to maintain and/or remove these items from the land at the expense of [the County]." Subsequently, Winston Courthouse converted the old courthouse building into private residential apartments, with the building having been exclusively used for residential purposes since April 2015. Plaintiff has not alleged or shown that any of the easements contemplated by the deed were ever executed or recorded.

¶ 5 On 18 August 2017, shortly after an outbreak of violence in Charlottesville, Virginia, related to the proposed removal of a statue of Robert E. Lee, the monument was vandalized, with the word "Shame" having been spray painted upon it. According to Assistant City Manager Damon Dequenne, local law enforcement officers subsequently received complaints from a resident of the Winston Courthouse apartments who was "upset about armed guards patrolling the [monument]" after this incident. On 20 August 2017, local law enforcement officers identified "eight (8) concerned citizens standing guard near the [monument]."

¶ 6 In September 2017, Winston-Salem Mayor Allen Joines contacted Salem Cemetery and proposed that the monument be relocated to the cemetery, a proposition that the Salem Cemetery Board considered and approved on 24 October 2017. On 25 December 2018, the monument was vandalized a second time, with the

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words "Cowards &Traitors" having been spray-painted on it. According to Mr. Dequenne, this incident "raised concerns that someone might try to topple the [monument] in a manner similar to that in Chapel Hill and other cities" and that "any efforts to topple the [monument] might result in injury to persons on the sidewalk as well as private property."

¶ 7 On 31 December 2018, City Attorney Angela Carmon sent a letter to plaintiff's president and registered agent and to Winston Courthouse's management regarding the recent acts of vandalism at the monument.^[3] According to Ms. Carmon, the events in question had "invoke[d] significant concern about the safety of the [monument] and the potential for confrontation, breaches of the peace[,] and other nuisance type conduct similar to that endured by other cities," with the City not being "in a position to provide constant security checks necessary for the protection of the [monument] and to mitigate the recuring acts of vandalism." In addition, Ms. Carmon stated that the monument "does not appear" to be "publicly owned" and that "[c]laims of ownership of the [monument] have come from the United Daughters of the Confederacy." In light of existing "concerns for overall public safety and protection of the [monument]," Ms. Carmon "direct[ed] [plaintiff] to remove and relocate by January 31st the [monument] from its present location to a more secure location where the same can be protected from vandals and others looking to create a

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Charlottesville type incident in Winston-Salem," noting that a "[f]ailure to comply with this direction may result in the [C]ity seeking a court order for the removal and relocation of the [monument] to preserve the same and to address public safety concerns[.]" On 8 January 2019, counsel for Winston Courthouse sent a letter to plaintiff's representatives stating that "the recent controversy, press reports, and references to potential violence have raised serious concerns for some of [Winston Courthouse's] residents" and that, "in order to protect the residents and the [p]roperty," Winston Courthouse "cannot allow the [monument] to remain on the [p]roperty."

¶ 8 At the public comment portion of the 7 January 2019 Winston-Salem City Council meeting, several City residents spoke in favor of removing or relocating the monument. On 13 January 2019, protests occurred near the monument during which people expressed both support for and opposition to the monument's continued presence in its current location. According to Assistant City Manager Dequenne, the Winston-Salem Police Department "planned and executed a riot and emergency type operation using ninety-three (93) officers who expended in excess of four-hundred and sixty-five (465) man hours . . . in an effort to protect the [monument] and the public." In addition, Mr. Dequenne noted that the...