Court will further examine Silent Sam settlement, standing of Confederate group

Orange County Superior Court Judge Allen Baddour rejected a legal intervention into the controversial Silent Sam settlement by UNC students and faculty Friday — but said the court will examine the specifics of the settlement.

That will include whether the Sons of Confederate Veterans, the group the UNC System gave $2.5 million and the Silent Sam Confederate monument, had standing to sue the university system in the first place.

The Lawyers’ Committee for Civil Rights Under law, which represented the UNC students and faculty who sought to intervene, will be allowed to offer an amicus brief arguing against the Confederate group’s standing.

“It’s my aim to do everything I can to get it right,” Baddour said. “The result may not be something everyone agrees with.”

Students who sought to legally intervene in the settlement said they were disappointed the judge rejected their bid — but said the court would not be examining the deal more closely without their attempt.

“We do want to claim a victory,” said De’Ivyion Drew, a UNC-Chapel Hill sophomore who was one of the students who sought to intervene in the  case. “Without the [Lawyers’ Committee for Civil Rights Under Law], we would not have been able to raise this as an important case to the judge, so that the case can be reexamined, especially with the plaintiff, the Sons of Confederate Veterans, having to reexamine their standing.”

During Friday’s hearing attorney Ripley Rand told the judge the UNC Board of Governors struck the deal with the Sons of Confederate Veterans in order to get out of a tough position. Because of safety concerns, the board didn’t want to return the statue to campus after it was torn down by protesters last year. But a 2015 state law governing such monuments suggested they would have to, Rand said — unless an agreement transferring ownership could be struck.

There were complicated questions of law on the statue’s ownership that go back to its placement on the UNC-Chapel Hill campus in 1913, Rand said. The board of governors could have fought out those legal questions all the way to the Supreme Court, he said, but that wouldn’t have guaranteed a definitive solution to the problem.

Had a lawsuit been brought to compel the university to put the statue back up on campus, leaders in the North Carolina General Assembly may have intervened in the case, Rand said. Rather than risk such a suit and outcome, Rand said, the board struck a deal with the Sons of Confederate Veterans to take the statue and provide $2.5 million in a trust for its care and display.

“The board of governors did not want to win this case,” Rand said. “The board of governors wanted finality, to bring this issue to a close.”

Rand said he understood that the students and faculty who sought to intervene  objected to the deal — but they don’t have legal standing in the case.

“Sometimes in life, you are presented with a hard situation where you have options, and all of the options you have are hard,” he said. “All of the options are painful, and there is no solution that won’t cause someone pain.”

Judge Baddour ultimately agreed with Rand on the question of standing — but said he now wants to examine the question of the Sons of Confederate Veterans’ own standing in the case and, potentially, whether the court should have some role in the operation of the trust.

“We’re encouraged that Judge Baddour said he wants to get this right,” said Elizabeth Haddix, attorney with the Lawyers’ Committee for Civil Rights Under Law.  “That he wants to look at it now and he wants to understand how the Sons of Confederate Veterans has standing to file a complaint and then be the recipient of a settlement. So, we’re encouraged by Judge Baddour doing that. He wouldn’t have done it but for our clients standing up and saying ‘Whoa.'”

Mark Dorosin, another attorney with the Lawyers’ Committee for Civil Rights Under Law, said his organization will show in its amicus brief that the Sons of Confederate Veterans don’t have standing, just as multiple Confederate groups have been found not to have standing in cases involving statues in the state.

University of North Carolina System General Counsel and Senior Vice President Tom Shanahan issued a statement Friday afternoon saying the university would cooperate with the court’s inquiries.

“We agree with the court’s ruling today that the individuals seeking to intervene in the case and set aside the settlement agreement lacked standing to do so,” Shanahan said in the statement “The UNC System remains committed to protecting public safety and to ensuring that the monument does not return to the UNC-Chapel Hill campus. We stand ready to provide additional information as requested by the court.”

Eric Muller, Dan K. Moore Distinguished Professor of Law in Jurisprudence and Ethics at UNC-Chapel-Hill, has followed this case closely and was on hand in court Friday. He said Baddour showed wisdom in deciding to examine the issues in the case more carefully.

“My sense is that he is troubled enough by what he’s heard outside the context of the litigation that he wants to signal to the parties that this isn’t over,” Muller said. “I would imagine the lawyers for UNC and the Sons of Confederate Veterans probably breathed a huge sigh of relief when Judge Baddour denied the motion to intervene. They probably thought ‘Well, that’s it. We won!’ But then he very quickly made clear that it’s not over and he wants to address, really, a multitude of issues.”

Using his discretion to further examine the settlement is “a savvy thing to do,” Muller said.

“What he’s really saying to the parties is, ‘Don’t think this is over, I’m still the judge, this case is still within my ambit and I’m not going away, I’m not going to let this go away,” Muller said. “It struck me as a frankly wise exercise of the discretion he has while the case is still live or recent, in recent memory.”