Silent Sam settlement scrapped — but questions remain

As Policy Watch reported yesterday, an Orange County Superior Court Judge effectively scrapped the UNC System’s controversial “Silent Sam” legal settlement with the NC Sons of Confederate Veterans Wednesday. The group will not keep the Confederate monument that was toppled by protesters in 2018 or the $2.5 million UNC had agreed to pay in a trust toward the statue’s care.

Judge Allen Baddour, who initially approved the deal and signed the consent order, found after further examination and argument that the Confederate group had no legal standing to sue in the first place. He voided the original order and dismissed the original lawsuit, which was constructed through collaboration by lawyers for UNC and the Confederate group to reach a pre-arranged settlement.

Baddour has given UNC’s lawyers until Monday to tell him whether they want his order to direct them on what to do with the statue itself. But he ordered the trust dissolved and money returned.

There are, however, some interesting and complicated questions remaining — and we heard them from readers on Twitter, Facebook and over e-mail in the wake of yesterday’s ruling.

While some things are still in flux, we can answer some of these questions here and now.

So, the Sons of Confederate Veterans don’t get to keep anything?

The judge’s determination is that they were not entitled to the statue or the $2.5 million placed in a non-profit trust because they didn’t have standing to sue in the first place.

The judge is ordering the trust dissolved and the funds returned to UNC.

However…

Boyd Sturges, attorney for the NC Division of Sons of Confederate Veterans, told Baddour that $52,000 from the trust has already been spent on legal fees. While Sturges assured the judge in December that no money would be spent from the trust, he said Wednesday that the money had already been spent before that agreement was made after the last court date.

Baddour ordered an accounting of how much is now in the trust, how much has been spent and when. It is unclear whether UNC will be able to recover the money already paid toward legal fees.

Elizabeth Haddix, the attorney with the Lawyers’ Committee for Civil Rights Under Law, UNC students and faculty in their attempt to intervene in the settlement case and was instrumental in the settlement ultimately being invalidated. She told Baddour Wednesday that the $52,000 should go back to the UNC System.

“If the trust never should have existed in the first place, because the court had no jurisdiction to create it, then these expenditures shouldn’t be covered by public funds,” Haddix said. “They should be covered by someone else.”

And what happens to the “Silent Sam” Confederate monument itself?

That is very unclear.

Lawyers for the UNC System and the Sons of Confederate Veterans have argued that if the settlement didn’t hold together, the statue would have to return to the campus of UNC-Chapel Hill to comply with the 2015 monuments law.

However, just about everyone in authority — from the FBI and campus safety officials to UNC System Interim President Bill Roper, UNC-Chapel Hill Chancellor Kevin Guskiewicz and UNC Board of Governors Chairman Randy Ramsey — are on record saying the statue should not return.

It’s possible the UNC System could assert that the safety exception in the law allowed the removal of the statue’s base after protesters toppled the monument itself and allows the school to leave it down.

It’s possible the General Assembly will involve itself to either create an exception in the statute for this situation — something for which there was a push in the last legislative session — or will move to legally force the UNC System to erect the statue in its original place or, as the law says, a place of similar prominence.

It’s possible Attorney General Josh Stein’s office will get involved, as some have urged throughout the controversy.

The 2015 monuments law complicates the issue. It has provisions for how and under what circumstances a government or its agents might remove a monument (though it makes it difficult for them to do so), but it does not speak to what should happen if someone who is not acting for the government (say, a group of protesters) removes the statue.

Baddour has given the UNC System until Monday to tell him whether it would like him to give specific directions on the statue in his order.

What about that $74,999 the Sons of Confederate Veterans got in a separate deal with the UNC System?

The UNC Board of Governors approved a separate deal with the Sons of Confederate Veterans by which they agreed to pay the group $74,999 to secure an agreement they would not display “any Confederate flags, banners, or signs before, after, or in conjunction with any group event, meeting, or ceremony on the campus of or property controlled by the UNC System … for five years.”

That figure is just $1 shy of the $75,000 limit at which Attorney General Josh Stein’s office would have to approve the settlement.

The deal wasn’t publicly revealed until December, when a group of five Board of Governors members — Jim Holmes, Darrell Allison, Wendy Murphy, Anna Nelson and Bob Rucho — disclosed it in an op-ed  for the News & Observer in which they defended the deal.

The Sons of Confederate Veterans’ attorney has said that the money was used by the group to pay the United Daughters of the Confederacy to transfer their property rights to the statue to the SCV — though the court was not ultimately persuaded that those rights existed in the first place or were transferrable.

That deal appears to be a separate agreement not dependent on the settlement over Silent Sam. Judge Baddour made no order on that deal.

However, a separate lawsuit does address that deal.

Last month the DTH Media Corporation, the non-profit that operates UNC-Chapel Hill’s Daily Tar Heel student newspaper,  sued the UNC Board of Governors over both the controversial Silent Sam settlement and the $74,999 payment to the Sons of Confederate Veterans.

The suit , alleges the board violated North Carolina Open Meetings Law in the way it approved both deals.

“Both agreements with the SCV were conceived, negotiated, approved and executed in total secrecy in violation of the Open Meetings Law,” the suit states. “Owing to the defendants’ multiple violations of the Open Meetings Law, neither the plaintiff nor the public knew or could have known about either transaction until the afternoon of November 27, 2019, when the individual defendants disclosed it in an op-ed piece published by The News & Observer.”

The suit asks the court to “declare null and void, and set aside, certain actions taken and agreements entered into by defendants The University of North Carolina and the University of North Carolina Board of Governors in violation of the Open Meetings Law.”

Will there be consequences for the Board of Governors for having made this deal in the first place?

That may depend on what you mean by “consequences.”

The members of the UNC Board of Governors are appointed by the North Carolina General Assembly and closely aligned with its current Republican majority. Many of its members are either former Republican lawmakers, former GOP state and local functionaries or lobbyists closely connected with the GOP leadership.

Neither N.C. House Speaker Tim Moore nor Senate President Pro Tem Phil Berger have publicly expressed any displeasure with how the board handled the settlement.

However, there is growing public sentiment against how the settlement and the handling of the Confederate monument issue in general.

Attorney Hugh Stevens is a nationally renowned First Amendment and media lawyer who graduated from UNC-Chapel Hill and was editor of the Daily Tar Heel during his time there. After Wednesday’s hearing Stevens, wearing a Tar Heel necktie, said he and others believe the board must answer questions about how it is operating.

“There are still a lot of unanswered questions in all fo this,” Stevens said. “How did this deal get done? Who put it together? What to do ultimately with this monument and a lot of other apparatus and detritus from the whole history of slavery and the university? I think the new commission that Chancellor Guskiewicz has put together has a lot of work to do to put it all in proper context. I hope that will happen. But there are still a lot of unanswered questions. Maybe with this Daily Tar Heel suit we’ll see if we can find them out.”

Stevens said he was not confident the Board of Governors would take the proper message from Wednesday’s ruling.

“You know, I am not sure what message it sends but given their history I don’t know if they’ll hear it, whatever it is,” Stevens said.

T. Greg Doucette, a Durham lawyer who graduated from N.C. State and North Carolina Central University’s Law School, was on hand at Wednesday’s hearing as well — and pulling no punches in his assessment of what should happen next.

As a student, Doucette served as president of the UNC System Association of Student Governments, which made him a non-voting member of the UNC Board of Governors in 2008. He said he’s disgusted with the way the board has handled the Silent Sam issue and has been heavily involved in agitating for more transparency on it.

“I think Baddour realized he was getting played,” Doucette said. “This was stuff that was obvious to us the day the complaint was made. You had a lot of us saying this was total gibberish — and now it’s on the record that it was total gibberish.”

There are a lot of pieces to what happens next, Doucette said, but the steps that need to be taken are clear.

“You have to unwind the trust, you have to get the money back,” Doucette said. “And the public should get its money back from Womble Bond Dickinson (the outside law firm representing UNC) for [poor] representation, frankly. You’ve got malpractice issues with [attorney] Ripley Rand, you’ve got malpractice issues with [UNC General Counsel] Tom Shanahan. The UDC — are they keeping that $74,999? There’s a lot of mess that has to be undone. And that’s what happens when you do a collusive lawsuit under cover of darkness, trying to get shady [things] through.”