STATE OF NOR“H CAROLINA IN THE GENERAL COURT OF JUSTICE * SUPERIOR COURT DIVISION COUNTY OF GasTON ,- CASENO. a 3 NAACP (NATIONAL ASSOCIATION FOR | joy, ‘THE ADVANCEMENT OF COLORED PEOPLE) GASTON COUNTY BRANCH; \NABVETS (NATIONAL ASSOCIATION FOR BLACK VETERANS, INC.) GASTON ‘COUNTY CHAP-ER; ETA MU LAMBDA (CHAPTER OF ALPHA PHI ALPHA FRATERNITY, INC; KAREN BRINGLE; COMPLAINT AND PETITION FOR GRACIE MOORE; and JOSE TROCHE, DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF Plain, GASTON COUNTY; GASTON COUNTY BOARD OF COMMISSIONERS; and COMMISSIONERS TRACY PHILBECK, ‘TOM KEIGHER, CHAD BROWN, JACK BROWN, ALLEN FRALEY, BOB HOVIS and RONNIE WORLEY in their official capacities, Defendants Plaintiffs NAACP (National Associaton forthe Advancement of Colored People) Gaston CCounty Branch; NABVETS (National Assocation for Blick Veterans, In.) Gaston County Chapter; Ba Mu Lambda Chapter of Alpha Phi Alpha Fratemity, Inc Karen Bringle; Gracie ‘Moore; and José Toche (collectively, “Plantifs), by and through counsel, allege s follows INTRODUCTION 1 This lawsuits brought by a multi-racial coalition of citizens and supporting groups because local officals refuse to move 9 monument valorizing an era of slavery, secession, andWhite supremacy from the main entrance to the Gaston County courthouse. The multi-story srueture—described by current county officals as the “Confederate Heroes Monument” and jolation of mulkiple topped with an armed soldier—threatens public safety and stands in provisions ofthe North Carolina Constitution, Its presence harms county taxpayers, particularly Black residents. Yet the Gaston County Board of Commissioners refuses to act. AS result, Plaintiffs must inte this lawsuit 2 Thetext ofthe North Carolina Constitution and decisions ofthe Supreme Court of [North Carolina alow for this legal scion. ‘Taxpayers can bring suit to challenge the illegal or of local officials, And North Carolinians can sue directly under the state unconstittional ‘Constitution when rights protected by that fundamental and supreme law are violated, 3. Plaintiffs ask this court to declare that Gaston County's Confederate monument stands illegally and to find that defendants have a legal responsibility to end the violation outh (DeeSouth), UNC Chapel Hill University Library) (credit: Documenting the AmericanPARTIES - Plaintiffs 4, Plantiff National Association for the Advancement of Colored People Gaston County Branch (Gaston NAACP) is & civil rights organization whose mission includes “eliminatfing] racial hatred and racial discrimination.” The members ofthe Gaston NAACP reside and pay taxes in Gaston County. Christopher Thomason is President of the Gaston NAACP. 5. Plaintiff National Association for Black Veterans, Inc., Gaston County Chapter (Gaston NABVETS) seeks to end discrimination and racism on behalf of Black military veterans. ‘A majority of Gaston NABVETS members reside and pay taxes in Gaston County. Foster Steen serves as commander of Gaston NABVETS. 6. Plaintiff Eta Mu Lambda Chapter isthe Gaston County-based brench of Alphe Phi Alpha Fraternity, Inc, the fist intercollegiate fraternity established for Black men, The Eta Mu Lambda Chapter was organized 1959. ‘The mission ofthe chapter, ike that ofthe national fietemity, is “to help comect the educational, economic, politcal, and socal injustices faced by ‘Avian Americans” A majority ofthe Chaper's member resid and pay taxes in Gaston County Wiliam A. Gardin J. isthe group's President. 7. ‘Theorganizational plants have standing to bring this ation pursuant to Crecke Pointe Homeowner's Ass'n, Ine. v: Hopp, 146 N.C. App. 159,552 S.E.24 220 (2001), and other cases hldng that organizations an sek legal redress on behalf oftheir members 8. Gravie Moore is a Black resident of and taxpayer in Gaston County. She maved to Gaston County approximately two years ago. 9. Keren Bringle isa white resident of and texpayer in Gaston County 10. José Troche is @ Hispanic resident of and taxpayer in Gaston County.nL. lack organizational and individual plaintiffs have standing to bring this action pursuant to Corum ». Uni. of North Carolina, 330'N.C. 76,413 SE.24276 (1993), Craig v. New Hanover County Board of Education, 363 N.C. 334, 678 S.E.2d 351 (2009), and other cases holding that when the constitutional rights of North Carolinians are violated they can seek redress instate cout. 12, AllPlaintiffs have standing to bring this action pursuant to Freeman v. Board of ‘County Commissioners,27 N.C. 209, 7 SE-24 354 (1940), Goldston». North Carolina, 361 N.C. 26, 637 SE2d 816 (2006), and other cases holding that taxpayers have standing to challenge unlawful or unconstitutionel government actions. 13, _Allindividual plaintiffs and many members ofthe organizational plaintiffs suffer personal and direct effects from the statue as they must pass within sight of Gaston County's ‘Confederate monument in order to complete routine activities in and around the courthouse. The [Back plaintiffs are particularly vulnerable to harms caused by white supremacists attracted tothe PARTIES - Defendants 14, Defendant Gaston County isa body polite and corporate, organized and existing under the laws of the State of North Carolina, with capacity to be sued as provided by North Carolina General Statute (N.C.G.S. §1534-11 15. Defendants Tracy Philbeck, Chad Brown, Jack Brown, Bob Hovis, Allen Fraley, ‘Tom Keigher, and Ronnie Worley are the members of the Gaston County Board of Commissioners Which is the govering body of Gaston County. These individuals are sued in their oficial ‘capacities. According to U.S. Census figures, approximately eighteen percent (18%) ofthe county 4population i Black. Commissioners ae elected countywide and serve four-year terms. A Black person has nt served onthe Board since 208, URISDICTION 16, This General Cour of Justice has subject mater juristition and authority to heat this civil mater tat seeks a declaratory judgment pursuant toN.C.GS, §7A-240 and $1253, The ‘Superior Cour she proper division where, a here, the principal elie sought ithe enforcement or declaration of ey claim of consitiona ight, N.C.GS, §7A-245(e. This court ha personal Jurisdiction over this matter because defendants Gaston County and the Gaston County Board of * Commissioners are units of Nort Carolina local government subject ost and he individual Tau oe42, While defendants refuse to move symbol of white supremacy, public bodies and officials across North Carolina have done so. These include: the City of Rockingham (Richmond County Daily Journal, “Rockingham to remove Confederate monument,” Aug. 11, 2020), Pitsboro (ew York Times, “Confederate Statue in North Carolina Comes Down After 112 years,” ‘Nov. 20, 2019), and the North Carolina Court of Appeals (WRAL.com, “Statue of former chief Justice who was slave owner removed from NC Court of Appeals building” July 8, 2020) Importantly, seveal Boards of County Commissioners have voted in favor of removing Confederate monuments from courthouse entrances and other prominent public spaces including in Anson, Bunconbe, Chatham, Lenoit, Pit, Vance, and Warren, ‘These actions are consistent ‘withthe directive of North Carolina Governor Roy Cooper who stated in June 2020: “Monuments to white supremacy don’t belong in places of allegiance, and it's past time that these painful ‘memorials be moved in a sae, legal way.” 43. Noth Carolina General Statute §100-2.1 (the 2015 “Monuments Law") did not preclude any of these removals and the act doesnot deter this action. The “Monuments Law” is inapplicable because, by its own terms, “it does not apply to the following ... fan object of remembrance for which a building inspector or similar officiel has determined poses threat to public safety because of an unsafe or dangerous condition.” Multiple public officials across North Carolina have determined that Confederate monuments on government property pose « public safety threat and there is no reason to conclude that Gaston County's monument is distinguishable; as set forth in Paragraph 36 above, defendant Commissioner Worley has conceded that Gaston County's monument is putting citizens and law officers “in continual harm's way.” Moreover, Gaston County's atomey has pronounced publicly thatthe monument can be removed consistent withthe 2015 law. According to WCNC.com, County Attorney Jonsthan Sink “ssid the orignalPlan (to relocate the monument o private property] is well within the guidlines of «2015 tate governing public monuments” ("Removal of Gaston County Confederate monument now ncertan;* Aug. 25,2020) 44, Indeed, defendants’ now-sbandoned plan to transfer the monument tothe Sons of Confederate Vetens (SCV) i an admission that removal ofthe monument i permissible under the “public safety" exception. See N.C.G.S. §100-2.1(cX3). (CAUSES OF ACTION 45. Plhintifs re-allege and incorporate by reference the allegations stted in the receding paragraphs a if fly set forth here ‘COUNT ONE Violation ofthe North Carolina Constitution —Equality and Equal Protection Provisions (Brought by Black Plaintiffs Against All Defendants) 46. Cental o our state Constitution are the declarations that “all persons are created qual” (Atl , Section 1) nd that “fo person shall be denied the equa protection ofthe laws” (nicl, Seton 19, 47. Noth Carolina courts have held that these equality protections are particularly relevant to and important for Black citizens. As the Court of Appeals has explained: “Couns tradionlly have employed a two-tiered scheme of analysis when evaluating equal protection claims. The uppe: tier of equal protection analysis requiring stit scrtiny of a governmental ly interferes with the exercise of @ classification applies only when the cl fundamental right r operates to the peculiar disadvantage ofa suspect clas.” Dobrowolska v Wall, 138 N.C. App. 1, 14, $30 S.£.2d 590, 600 (2000) (emphasis added), And, as the Supreme jeation impermis Court has noted, « “traditional indieia of cuspectnecs” ie being “subjected to [] © history of purposeful unequal treatment.” White v, Pate, 308 N.C. 759, 768, 304 S.E.24 199, 205 (1983),Sst recently, an opinion authored by Chief Justice Beasley provided a stark reminder ofthe extent to which Black Nerth Carolinians have lived through such a infu history. “Afr the Civil War sand Reconstction, [ racism and legal segregation remained rampant in North Calin and across the South... The same racially oppressive beliefs that fled segregation manifested ‘hemselves through public ynchings, the disproportionate application ofthe death penalty against Aican-Americen defendants, and the exclision of Aftican-Americans fom juries” State» Robinson _N.C._,__SE.24__,2020 Lexis 700, at*7-8 (14 Aug. 2020). Chief Justice Beasley ‘ded that“acaly oppressive practices and belie (] permeated every level of American society during the Jim Crow era." 1d. Of couse, one such manifestation of these racially oppressive practices was the installation of Confederate monuments including the one sill taning in font ‘ofthe Gaston County courthouse 48. And Gaston County's Confederate monument is nat jst symbol of past and present diserimination but an instrument of it. Every juror who enters the Gaston County courthouse must view « governmental embrace of white supremacy before tying to provide ‘impartial justice. The Black plaintiffs and their members have no choize but to eanduct ity sctiviies inthe shadow of a demeaning monument that repeatedly atracts those espousing racist and white supremasst views. In addon, the monument inevitably resus in impermissible aca stratification and stigmatization. 49. The presence and maintenance of Gaston County's Confederste monument by defendants denies the Black plein equal protection under the law. It thus violates thei rights under the North Carolina Constitution as established by Corum and Craig. Because the Black Plaintilfe have no other adequate legal romody, this dest aston under the Constitution can proceed. Asthe Craig Court held emphatically: “This Court could hardly have besn clearer in its anholding in Corum: ‘(Ij the absence ofan adequate state remedy, one whose sate constitutional rights have been sbridged has a direct claim against the State under our Consttution.”” The Craig (Court added (agein affirming and building on Corum): “individuals may seek to redress all, constitutional violations, in keeping with the ‘fundamental purpose’ of the Declration of Rights to ‘ensure thatthe violation of [constitutional] rights is never permitted by anyone who might be invested under the Constitution withthe powers of the Stte."" 50. Pursimply: Corum and Craig were tailor made for this case and, coupled withthe ‘equal protection provision in the state Constitution (along with the antirace discrimination guarantee discussed below), these cases demand the monuments removal, 51. The Gaston County Confederate monument amounts to an ongoing violation of Plaintifs' rights to equal protection under the North Carolina Constitution. Accordingly, Paints seek an order granting injunctive relief and requiring immediate removal ofthe monumeat. See Seaboard Air Line R.R Co. v. Atlantic Coast Line RR. Co, 237 N.C 88, 94, 74 SE.2d 430, 434 (1953) (a cour of equity “may, by its mandate, compel the undoing of thse act that have been illegally done, aswell a it may, by its prohibitive powers, restrain the doing of legal acts... A ‘mandatory injunction besed on sufficient allegations of wrongful invasion of an apparent right may be issued to restore the original situation”). counrtwo of the North Carolina Consttution—Anti-Race Discrimination Pr (Brought by Black Plaintiffs Against All Defendants) vi 52. The North Carolina Constitution goes beyond the United States Constitution in prohibiting race-rlated discrimination, North Carolinians are promised “equal protection” but thon are alco separately and additionally guaranteed that no person shall “bo cubjectod to lscrimination by ‘he State because of race.” Constitutional scholars view the two provisions ascomprising “the most important section of Article I the Decl and Paul M. Newsy, The North Carolina Stete Constitution 68 (2013). Importantly, Professor Orth and Justice Newby also see the two clauses as distinct, noting that the equal protection clause jon of Rights.” See John V. Orth ‘vas “drawn fom the Fourteenth Amendment” while the nondisriminaion clause was “based on federal civil rights legislation.” 1d. Their opinion matches that ofthe legal leaders who proposed the section, “Proposed Sec. 19 ads tothe present aw ofthe land provision a gurantee of equal protection ofthe ws and prohibition of improper discrimination by the State” See Report of the North Carolin State Constitution Staéy Commission tothe Nor Carolina State Bar andthe ‘North Carolina Ba: Associ jon 74 (1968), 53, As oted in Count One, Gaston County's Confederate monument harms the Black pilsintiffs particularly. It thus not only denies them equal protection but also subjects them to discrimination because of their race. And when the Commissioner defendants voted in August 2020 to maintain tke monument, they were aware that their official action would bear more heavily fon one race-—that represented by the Black plaitiffs—than other races, As the Court of Appeals recently affirmed, when official action bears more heavily on one race than another, it constitutes ‘an impermissible end unconstitutional “discriminatory impact.” Holmes v. Moore, N.C. App _ 80 .E.2d 244,254 (2020). The discriminatory impact on the Black pls Gaston County's Confederate monument is s violation of the consttuion’s anti-race discrimination provision that must be remedied, 54. The Gaston County Confederate monument amounts to an ongoing violation of Plaintifs rights tobe fre from race-based discrimination under the North Caroling Constitution, Plaintiff oosk an order granting injunctive relief and requiring immediate removal of theTHREE ‘Violation of the North Carolina Constiution—Misuse of Taxpayer Money for ‘Unconstitutional Purposes (Brought by All Plaintiffs Against All Defendants) 55, Too often, Black Americans are unfuily and unlawfully subject to racial Aiscrimination bul then must fight alone forthe equality they should have received as a birthright ‘Thankfully, the Supreme Court of North Carolina's decisions such as Goldson allow white and ffs so the burden of removing « Hispanic resdens: of Gaston County to ally 95 co-plai ‘monument, which should never have been erected, need not be shouldered solely by Black community members. 1 Plaintfs, as individual (or groups comprising) wxpaying residents 56. Specifically, of Gaston County, havea legal right to public servants who spend county resources for 8 “public purpose,” that son lawfil and consintionl activites. But defendants’ expenditures related to the Gaston County courthouse Confederate monument violate multiple provisions ofthe North Carling Constitution including AmticleI, Sections 4-5 (anti-secession, prosunion clauses); Article V, Section 2(“putlic purpose” clause; and the racial equality provisions discussed in Count One aid, o otherwise unconstitutional for defendants and Count Two. Putanother way, itis za to maintain a monument that contravenes the anti-secession and pro-union clauses ofthe North Caroline Constitution and violates its recial equality guarantees. Under Freeman, Goldston, and other binding decisions of North Carolina's appellate courts, Gaston County taxpayers such as Pints have staring to challenge this improper goveramenal activity. The fact that defendants are spending taxpayer dollars for activities related to these constitutional violations further suppors this cause of action. 57. Themsintonnes ofa white prema sytocennot befor 8 “publie purpose” ‘sis also required by the Constitution. It eannot bea “public purpose” for defendants to maintain‘amonument which exposes County taxpayers, including Plant, to subsidizing the security end other costs asscited with protecting a piece of unlawful County propery. And it cannot be & “public purpose” fo maintain & monument which exposes the County, and thu it taxpayers, to negligence suits should someone be seriously injured or killed as result of monument protests or counter protests. Such ask isnot hypothetical. Univesity of North Carolina at Chapel Hi cfficils recognized it when considering what todo withthe Confederate monument on campus “tbe best way to reduce potential legal exposure would be to relocate the Monument to minimize exposure to negligence claims.” (Recommendation forthe Disposition and Preservation of the Confederate Monument, Appendix D, De. 3, 2018). Gaston County's Confederate monsinent ‘so subjects the county, and ukimately its taxpayers, to risk of suit from courthouse employees alleging workplace harassment claims. Courts and the Equal Employment Opportunity ‘Commission (EEOC) have found thatthe presence of Confederate symbols is evidence ofa racially hostile environmert under the Civil Rights Act of 1968. 58. Gaston County residents have demanded publily and repeatedly that defendants remove the monument. In Hight ofthe August 25,2020 County Commission resolution dreting thatthe “Heroes Monument shall resin in its current location,” Pini are relieved of any duty to make further demands prior to seeking judicial rele. 59, The August 2020 resolution also makes this action particularly timely. And there ‘are other reasons Why itis being brought now. il defendants such as County * According fo the Couns oli Human Resources pag, it has more thin 100 employees. Many of them work inthe vicinity ofthe Coons Confeceste monument. The Gasion County Personnel Policy ponies tha ‘employees ar asad the gh wo work nan enviroment fe from Discrimination” The pac lo condeas ‘worplae haart (defined ar "[)nslicted and ameleme speech or conduct based once) tn hose work ‘environments (Cont resulting om Workplace Hurssment or Discrimination tat both a reasonable person ‘woud find hostile or busive and oe that he prclar person wh isthe objet of the harassment perce tobe osteo abusive”) aCommissioner Worley recently began acknowledging thatthe monuments symbol that causes real psn, particularly for Black residents. Second, defends’ own attorney now concedes there {is no legal prohibition on the monument’s removal, And third, defendants” decision in early ‘August 2020 to authorize the monument’ transfer to private group for placement on private if tha removal of the monument from the property exhibited atleast fora time—defendans courthouse entrance was inthe County's best interests. Taken together, these acknowledgments by defendant (all within the past few months) provide notice to County taxpayers that their elected officials concede the monuments curet placement is problematic and darseging. In aditon, cach and every dy the unlawful act of a having 8 monument to slavery, secession, and white supremacy maintined by defendants in a prominent public paces continued and repeated. Yet defendants refuse 1 act, So, for the good ofthe County, Plaintiffs must. 60, The Gaston County Confederate monument amounts to an ongoing violation of Plaintiffs rights to have taxpayer funds used for lawful purposes as guaranteed under the North Carolina Constituton. Plaintiffs sek an order granting injunctive relief and requiring immediate ‘removal ofthe monument. COUNT FOUR ina Constitution—Secession Prohibited, Allegiance to the United States Provisions (Brought by All Plaintiffs Against All Defendants) 61. Section 4 and Section 5 of Article I ofthe North Carolina State Constttion have ‘been in effet since 1868. The passage of time does not diminish thei broad and emphatic commands inludig that “al attempts, rom whatever source or upon whatever pretext, to dissolve this Union orto sever this Nation, shall be resisted withthe whole power ofthe State” and “every citizen of this State owes paramount allegiance to the Constition and government ofthe United ‘States, and no law or ordinance ofthe State in contravention or subversion thereof can have anybinding force." That these provisions remain in ill force and effect today is underscored by filed legislative efforts fo give voters en opportunity to repeal them. See News & Observer, “NC constitution’s ban on secession could be dropped under House 2 Feb. 22,2017. By literally proclaiming that tose who fought for secession and sought to subvert the government of the United States are “heroes,” Gaston Counts Confederate monument cannot be squared with these lictates. 1 thus vilates the anti-secesson,pro-Union provision inthe State Constittion and, lacking other adequate legal remedies to effectuate its emoval,Psintfs havea ight under Corum and Craig to bring tis direct constitutional ela, 62, The Gaston County Confederate monument amounts to an ongoing violation of Plain’ eights tobe fee from secession or subversive forces as guaranteed under the North ‘Carolina Constitution Plaintifs seek an order granting injunctive rele and requiring immediate removal ofthe mosument COUNT FIVE Declaratory Judgment (Brought by All Plaintiffs Against Al Defendants) 63. Punvant to NCGS. §1-253 et sep, Plaintiffs seeks declratory judgment or decree because such action by this Court wil terminate an ectual controversy or remove an uncertainty among the parties. Specifically, Plaintiffs sec and have established grounds for & judgment or decree declaring thatthe monument violates one or more provisions of the North Carolina Constitution as set forth in Counts One through Four above. 64. ‘The controversy surrounding the monument isa textbook situation for application ofthe Declaratory Judgment Act. Plaintiffs have propery invoked the Act by setting forth in this pleading “all facts necessary to disclose the existence of an detual controversy between the partes.” Lide v, Mears, 231 N.C. 111, 118, $6 8.E-24 404, 409 (1949). As result, Plaintiffs have fulfilled “(he purpose ofthe Declaratory Judgment Act [which] isto stile and afford relief from aions." Consumers Power v. Power Co., “uncertainty concerning rights status and other legal rel 285 N.C. 434, 446,206 S.E.24 178, 186 (1974). ‘RELIEF REQUESTED 65. Plaintiffs respectfully request that the Court enter judgment in their favor and against defendants by ‘4 Entering an order declaring thatthe monument violates one or more provisions of the Nomth Carolina Constitution asset forth in Counts One through Four above; , Entering an onder holding that the monument violates one or more provisions of the North Carolina Constitution as set forth in Counts One ‘through Four above, and grntng injunctive relief requiring that defendants Shall ave no more than forty-five (4) days after etry of inl oder rom this Court to remove the monument and prohibiting its placement on any ‘other public property; © Awarding lif their reasonable costs snd attorneys fes as allowed by daw, including N.C.GS, §621.7; and 44, Providing Plaintiffs all such other relief as is proper an just,Respecflly submited his, the IZay of November 2020. Cheyenne N. Chambers (NCSB: 48699) Abraham Rubert-Schewel (NCSB: 56863) TIN, FULTON, WALKER & OWEN, PLLC 1542 Union Road, Suite 103(6) 30] Bast Park Avenue Gastonia, NC 28054 Charlotte, NC 28203, shoo.com (Coa) 338-1220 Gagan Gupta (NCSB: $3119) Hampton Dellinger (NCSB: 19903) ‘Stuart M, Paynter (NCSB: 42379) Law Firm of Hampton Dellinger, PLLC ‘THE PAYNTER LAW FIRM, PLLC 732 Ninth Steet, Box 633, 106 8. Churton Steet Durham, NC 27705 Hillsborough, NC 27278, hampton dellingen@.email.eom sagupta@paynteriaw.com 19) 402-0017 suarv@inaynterlaw.com (919) 245-3116(CERTIFICATE OF SERVICE ‘This isto certify thatthe undersigned, co-counsel for Plaintifs has this day served a copy of this COMPLAINT AND PETITION FOR DECLARATORY JUDGMENT and e SUMMONS. ‘upon Defendants by certified mal, addressed as follows: Kim S. Eagle ‘County Manager Gaston County Government and Board of Commissioners 128 W. Main Avenue Gastonia, NC 28053, ‘ois the (2 Gay f Noverber, 2020. SF(NCSB, 1542 Union Bad, Suite 103(6) Gastonia, NC 28054 sascher3@yahoo.com 26