STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF GASTON 20-CVS-3996 NAACP (NATIONAL ASSOCIATION FOR ‘THE ADVANCEMENT OF COLORED PEOPLE), etal, Plaintiffs, Vs. ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT GASTON COUNTY, Defendant. This matter came on for hearing before Robert C. Ervin, Superior Court Judge, presiding over the January 5, 2024 session of Civil Superior Court in Gaston County on the Motion for Summary Judgment filed by the defendants. When the matter was called for hearing, Gagan Gupta and Stuart M. Paynter appeared for the plaintifis and Bradley K. Overcash and Emily L. Poe appeared for the defendant. The Court, having reviewed the contents of the file maintained by the Clerk of Superior Court of Gaston County and the submissions and memorandum of law from the parties and having heard arguments from counsel for the parties, concludes as a matter of law that: 1, The statute at issue in this case is N. C. Gen. Stat. 100-2.1 2, This statute was adopted on July 22, 2015 by the General Assembly of North Carolina in Session Law 2015-170. 3. The plaintiffs refer to this statute as “the Patriotism Act.” 4. Section 1 of Session Law 2015-170 recites that “this act shall be known as the Cultural History Artifact Management and Patriotism Act of 2015.” This title seems to be designed to identify the newly enacted law as the “CHAMP” Act.5. The Court recognizes that findings of fact and conclusions of law are not necessary in an order determining a motion for summary judgment. Bland v. Branch Banking & Trust Co., 143 ... -N. C. App. 282, 547 S. E. 2d 62.(2001).. Bee a = : 6. A trial judge is not required to make findings of fact and conclusions of law in determining a motion for summary judgment, and if he does make some, they are disregarded on appeal. Vulcan Materials Co. v. Iredell County, 103 N. C. App. 779, 407 S. E, 2d 283 (1991); White v. Emerald Isle, 82 N. C. App. 392, 346 S. E. 2d 176 (1986). 7. North Carolina’s appellate courts have recognized that siich findings “may be helpful, if the facts are not at issue and support the judgment.” Metts v. Tuner, 149 N. C. App. 844, 561 S. E. 2d 345 (2002); Bland, 143 N. C. App. at 285. 8. To the extent that this order finds or recites facts, it is the Court’s determination that these facts are not at issue. 9. The Court concludes in this case that there are no genuine issues of material fact and the parties are entitled to judgment as a matter of law as set forth in this order. IS THE SUBJECT OF THIS CONTROVERSY AN OBJECT OF REMEMBRANCE UNDER THE CHAMP ACT? 10. The CHAMP Act or N. C. Gen, Stat. 100-2.1(b) by its title places “limitations on removal” of “objects of remembrance located on public property.” 11. The statute defines the term “object of remembrance” to mean “a monument, memorial, plague, statute, marker or display of a permanent character that commemorates an event, a person, or military service that is part of North Carolina’s history.” 12. The object at issue has been identified as the “Confederate Heroes Monument” and includes a statue of a Confederate soldier holding a rifle. 13. The front of the monument states “Confederate Heroes” in the stonework. 14. The front of the monument also has an image of a Confederate flag. 15. The initials “CSA” for Confederate States of America are found on two sides of the monument. 16. The rear of the monument recites that the monument was erected by the Gastonia Chapter of the U. D. C. which is likely the United Daughters of the Confederacy and the Children of the Confederacy. 17. The base of the statue also states, “the Noble Service of the Sons of Gaston County is our Perpetual Heritage.” 18. The base of the statue on the other side indicates that the statue is “In Memory of the Gaston County Soldiers.”19. The object at issue in this case appears to be a monument, memorial, statue or display as. those terms are commonly understood. “20. Based on the materials used and the object’s longevity, which now exceeds 100 hundred years of age, it appears to be of “a permanent character.” 21. The object also appears to commemorate the military service of certain Gaston County citizens in the Civil War as soldiers for the Confederacy which is a part of North Carolina’s history. 22. As such, the object at issue fits within the statutory definition of an “object of remembrance” as that term is defined in N. C. Gen, Stat. 100-2.1. DOES THE CHAMP ACT PROHIBIT RELOCATION OR REMOVAL OF THE OBJECT OF REMEMBRANCE? 23. The defendant seeks a declaratory judgment that “the monument in dispute cannot be removed, relocated, and/or altered in any way according to N. C. Gen. Stat. 100-2.1.” 24. The plaintfis seek the permanent removal of the object at issue. 25. N.C. Gen. Stat. 100-2.1 provides that “an object of remembrance located on public property may not be permanently removed and may only be relocated temporarily or permanently under the circumstances listed in this subsection and subject to the limitations in this subsection.” 26. The CHAMP Act creates a general prohibition on the removal of such “objects of remembrance.” 27. However, N. C. Gen, Stat, 100-2.1(b) and (c ) provide for certain exceptions. 28. The CHAMP Act addresses both the removal and the relocation of objects of remembrance, ‘The terms “relocation” and “removal” are not defined in the Act. 29. Based on the Court's interpretation of N. C. Gen. Stat. 100-2.1(b) and (c), there are, at least, four exceptions which could permit relocation of the object at issue and two exceptions to the prohibition which could permit removal of the object at issue. 30. N. C. Gen. Stat. 100-2.1(b) provides that “an object of remembrance that is temporarily relocated shall be returned to its original location within 90 days of completion of the project that required its temporary removal. 31. At this time, the defendant is not pursuing a temporary relocation of the object at issue. 32. Consequently, this exception is not currently at issue in this case. 33. N.C. Gen. Stat. 100-2.1(b) further provides that “an object of remembrance that is permanently relocated shall be relocated to a site of similar prominence, honor, visibility, availability, and access that are within the boundaries of the jurisdiction from which it was relocated.”34. This subsection further provides that “an object of remembrance may not be relocated to a museum, cemetery, or mausoleum unless it was originally placed at such a location.” 35." The plaintiffs stinply seek remival of the objéét at issie from thé courthouse groiinds. Relocation is not necessarily inconsistent with that request. 36. The defendant does not appear to be proposing any such permanent relocation at this time. 37. This option appears to remain available to the County under N. C. Gen. Stat. 100-2.1 and the Court, by its order, is not considering nor ruling upon any potential future permanent relocation plan. 38. N. C. Gen. Stat. 100-2.1(b) also lists other “circumstances under which an object of remembrance may be relocated.” This portion of the statute seems to create two other additional exceptions to the prohibition on the relocation of an object of remembrance. 39. An object of remembrance may be relocated “when appropriate measures are required by the State or a political subdivision of the State to preserve the object.” N.C. Gen. Stat. 100- 2.1(0)(1). 40. There is no evidence before the Court to indicate that the State or any political subdivision is requiting relocation to preserve the object at issue in this case. 41. N.C. Gen, Stat. 100-2.1(b)(2) also permits relocation “when necessary for construction, renovation, or reconfiguration of buildings, open spaces, parking or transportation projects.” 42. There is no evidence before the Court that such a project is presently planned in the vicinity of the location of the object at issue. 43. Consequently, neither of the exceptions set forth in N. C. Gen. Stat. 100-2.1(b)(1) or (2), which authorize relocation of an object of remembrance, is presented in this case at this time. 44. N.C. Gen. Stat. 100-2.1(c ) provides that “this section does not apply to the following” three additional exceptions. 45. These provisions appear to create three exceptions to the prohibition on removal of an object of remembrance. 46. The first of these exceptions to the removal prohibition applies to “highway markers set up by the Board of Transportation...” The object at issue is not a highway marker. 47. The second of these exceptions to removal applies to “an object of remembrance owned by a private party that is located on public property and that is the subject of a legal agreement between the private party and the State or a political subdivision of the State governing the removal or relocation of the object.” 48. Early in the chain of events which lead to this litigation, the County Commissioners voted to. transfer the object at issue to the Gaston Chapter of the Sons of Confederate Veterans. 49. Evidently, the Sons of Confederate Veterans decided to decline to participate in this transfer.50. As a result of this action by the Sons of Confederate Veterans, the County Commissioners voted not to proceed with the attempted transfer. ‘51. The statute does ot, by its terms, preclude such a transfer of the object at issue. 52, Presumably, the plaintiffs might be amenable to acquiring the object at issue and relocating their newly acquired personel property to a site of their choosing or removing the object at issue. 53. In this instance, the evidence indicates that defendant Gaston County still owns the object at, issue and this additional exception is presently not applicable. 54, Finally, there is an exception to the prohibition on removal when “an object of remembrance for which a building inspector or similar official has determined poses a threat to public safety because of an unsafe or dangerous condition.” 55. The defendant has submitted an affidavit from Brian Sciba, CZO, which recites that he is the Director of Building and Development Services for Gaston County. Sciba’s affidavit also indicates that he is a Level III Building Inspector. In his affidavit, Sciba opines that “the ‘Monument is structurally stable and does not pose a threat to public safety.” 56. There is no evidence before the Court that the monument is structurally unsound and, therefore, constitutes a threat to public safety on that ground. 57. The plaintiffs contend that the object at issue is a threat to public safety due to potentially violent behavior that has occurred in close proximity to the object’s Location. 58. The General Assembly on June 11,2015 approved an act entitled “An Act to Create the Criminal Offense of Graffiti Vandalism.” This act created a specific crime for writing, soribbling, marking, painting, defacing or besmearing “any statute or monument situated in any public place” by any type of pen, paint or marker. 59. A law review article entitled “North Carolina's Heritage Protection Act: Cementing Confederate Monuments in North Carolina’s Landscape, 94 N. C. L. Rev. 2176 (2016) noted that this act was “enacted amidst cries for removal of Confederate monuments and rampant Confederate monument vandalism.” 94. C. L. Rev. 2176, 2179. 60. These other acts seem to indicate a legislative intent to protect objects of remembrance from destruction or damage and interpreting the CHAMP Act to permit removal of an object of remembrance based on threatened violence or destruction seems inconsistent with this legislative intent, 61. The statute, by its terms, prohibits “removal” of “an object of remembrance.” It does not appear to preclude alteration or modification of an object of remembrance. 62. As such, the CHAMP Act does not appear to prohibit the County from reassessing whether the soldiers were “heroes” or whether their service was “noble.”63. There are at least eight exceptions to the CHAMP Act's prohibition of removal or relocation of the object at issue. Five of these exceptions are potentially applicable to the object at issue in this case pending future developments. 64. N.C. Gen. Stat. 100-2.1 does not preclude the removal, relocation or alteration of an object of remembrance so long as the County complies with the terms of that statute. 65. In order to grant the defendant's request for a declaratory judgment to the effect that N. C. Gen. Stat. 100-2.1 precludes the defendant from removing the object at issue, this Court would bbe required to act as an ostrich and bury its head in the sand to pretend that these statutory exceptions do not exist. 66. The defendant's request for a declaratory judgment to the contrary is denied. DOES THE PROHIBITION ON REMOVAL OF THE OBJECT AT ISSUE VIOLATE THE CONSTITUTION? 67. The plaintiffs seek a declaration from the Court “declaring that “Section 3(c ) of the Patriotism Act (codified as N. C. Gen. Stat. 100-2.1) as applied to the Gaston County Confederate monument is unconstitutional to the extent it could be found to preclude removal.” 68. It is well settled that courts should construe a statute so as to avoid a constitutional question. Inre Arthur, 291 N. C. 640, 231 8. E. 2d 614 (1977). 69. Based on the Court’s interpretation of N. C. Gen. Stat. 100-2.1, that statute does not preclude relocation or removal of the object at issue in this case. 70. The plaintiffs are not entitled to a declaration that N. C. Gen. Stat. 100-2.1 is unconstitutional since it does not preclude relocation or removal of the object at issue. DOES THE PRESENCE OF THE OBECT AT ISSUE ON THE PREMISES OF THE GASTON COUNTY COURTHOUSE VIOLATE THE CONSTITUTION OF NORTH CAROLINA? 71. The plaintiffs also seek a declaration that existence or presence of the “the monument violates one or more provisions of the North Carolina Constitution.” 72. The plaintiffs rely on a number of different provisions of the Constitution of North Carolina. 73. Section 18 of Article I of the Constitution of North Carolina provides that “All courts shall be open; every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial or delay” 74, At its heart, the Open Courts provision serves to protect the institutional integrity of our state courts by constitutionally guaranteeing that justice is administered openly in public. DTH Publishing Corp. v. University of North Carolina, 128 N. C. App. 534, 496 S. E. 2d 8 (1998).75. Axticle I, Section 18 of the North Carolina Constitution provides the public access to our courts. Article I, Section 18 guarantees a qualified constitutional right on the part of the public to attend civil court proceedings. France v, France, 209 N.C. 406, 414, 705 S.E. 2d 399 (2011). 76. The hearing held in this matter was held in open court in Gaston County and the proceedings ‘were open to the public and the media. 77. The presence of the Confederate monument does not close the courts to the public and, therefore, does not abridge this component of the Open Courts provision. 78. The Open Courts provision has also been interpreted as providing a guarantee to those who suffer injury to their persons, property or reputation, the right to seek redress therefore in the courts of this state. In re Belk, 107 N. C. App. 448, 420 S. E. 2d 682 (1992). 79. The plaintiffs in this case and other litigants, who are offended by the presence of the Confederate monument, are not denied their right to seek redress for injury to their persons, property or reputation in court. 80. The plaintiffs had an opportunity to pursue their claims before this court despite the presence of the Confederate monument outside the courthouse entrance. 81, The presence of the Confederate monument does not abridge the Open Courts provision. 82. Section 19 of Article I of the Constitution of North Carolina provides in pertinent part that “no person shall be denied the equal protection of the laws, nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.” 83. In onder to establish a violation of the Equal Protection Clause, both proof of a racially discriminatory purpose and proof that the law actually produces disparate effects are required to demonstrate the law's unconstitutionality. Holmes v. Moore, 384 N. C. 426, 886 S. E. 2d 120 (2023). 84. A party seeking to prove an Equal Protection Clause violation must prove that “the law was enacted with a discriminatory intent on the part of the legislature, and the law actually produces a meaningful disparate impact along racial lines.” Holmes, 384 N. C. at 440, 85. Failure to provide sufficient evidence of disparate impact ends the matter. Holmes, 384 N. C. at 457. 86. The plaintiffs offer abundant evidence in support of their effort to show that the presence of the object of remembrance evidences a discriminatory purpose on the part of Gaston County. 87. The presence of the object of remembrance based on acts by Gaston County does not evidence discriminatory intent on the part of the State court system. 88. The issue is whether the plaints offered evidence of a discriminatory impact caused by the actions of Gaston County.89. To establish an Equal Protection Clause claim, the plaintiffs must offer specific factual proof that the action at issue causes a disproportionate racial i impact. Coleman v. Miller, 117 F.3d $27 -- l® Cir, 1997). - aoe se eae coe 90. The judicial power of the State is vested in the General Court of Justice. Article IV, Section 1 of the Constitution of North Carolina. 91. The judicial power of the State is vested exclusively in the General Court of Justice. N. C. Gen, Stat. 7A-3. 92. N. C. Gen. Stat. 7A-4 provides that “the General Court of Justice constitutes a unified judicial system for purposes of jurisdiction, operation and administration, and consists of an appellate division, a superior court division and a district court division.” 93. The sessions of court held at the Gaston County courthouse are conducted by either the ‘Superior Court Division or the District Court Division. 94. Counties in which a district court has been established have an absolute statutory duty to provide judicial facilities. Tn re Alamance County Court Facilities, 329 N.C. 84, 405 S. E. 2d 125 (1991). 95. North Carolina statutes obligate counties and cities to provide physical facilities for the judicial system operating within their boundaries. Id. 329 N.C. at 99. 96. North Carolina law requires counties to provide facilities for the operation of the state’s judicial system. Wood v. Guilford County, 355 N. C. 161, 558 S. E. 2d 490 (2002). 97. The courts in North Carolina are part of the State Government and are not operated nor conducted by the 100 counties. 98. The County of Gaston owns and maintains the object at issue. It is not the property of nor maintained by the State’s court system. 99. The is no violation of the Equal Protection Clause in this instance. 100. Section 2(1) of Article V of the Constitution of North Carolina provides that “the power of taxation shall be exercised in a just and equitable manner for public purposes only, and shall never be surrendered, suspended or contracted away.” 101. Section 2(7) of Article V of the Constitution of North Carolina provides that “the General Assembly may enact laws whereby the State, any county, city or town and any other public corporation may contract with and appropriate money to any person, association or corporation for the accomplishment of public purposes only.” 102. In this instance, the plaintiffs contend that the defendant’s use of fimds in connection with ‘the object at issue is not for a public purpose. 103. The plaintiffs challenge the expenditure of $500 in 1912 and $14,500 in 1998,104. Presumably, the applicable statute of limitations bars the challenge to these expenditures which took place either 110 years ago or 25 years ago. 105. Although the constitutional language speaks of the power of taxation, the limitation has not ~ been confined to government use of tax revenues. Madison Cablevision, Inc. v. Morganton, 325 N.C. 634, 643, 386 S. E. 2d 200 (1989). 106. A tax or an appropriation is certainly for a public purpose ifit is for the support of government, ot for any of the recognized objects of government. Jamison v. Charlotte, 239 N. C. 682, 696, 80 S. E. 2d 904 (1954), 107. The initial responsibility for determining what is and what is not a public purpose rests with the legislature; its determinations are entitled to great weight. Madison Cablevision, 325 N.C. at 644-645. 108. Where the declaration of our legislature is clear, ... the courts accord that determination great weight. Id. at 645. 109. The determination of whether a particular function or activity constitutes a publie purpose is a legal issue to be decided by the court. Peacock v. Shinn, 139 N. C. App. 487, 492, 533 8. E. 2d 842 (2000). 110. However, although courts “accord it great weight, itis not conclusive. Itis the duty and prerogative of this Court to make the ultimate determination of whether the activity or enterprise is for a purpose forbidden by the Constitution of the state.” Madison Cablevision, 325. C. at 645: 111, The presumption is in favor of the constitutionality of an act. All doubts must be resolved in favor of the Act. The Constitution is a restriction of powers and those powers not surrendered are reserved to the people to be exercised through their representatives in the General Assembly; therefore, so long as an act is not forbidden, the wisdom and expediency of the enactment is a legislative, not a judicial decision. Madison Cablevision, 325 N. C. at 645. 112. North Carolina’s Supreme Court has not “specifically defined ‘public purpose’ but rather has expressly declined to confine public purpose by judicial definition leaving each case to be determined by its own peculiar circumstances as from time to time arises.” Madison Cablevision, 325 N. C. at 646. 113. Generally, if an act will promote the welfare of a state or a local government and its citizens, it is for a public purpose. Peacock, 139 N.C. App. at 493. 114. The test is whether the transaction will promote the welfare of the local goverament and results from the local government's efforts to better serve the interests of its people. Peacock, 139N.C. at 494. 115. “The term ‘public purpose” is not to be narrowly construed.” Madison Cablevision, 325 N. C. at. 646.116. N.C. Gen, Stat. 153A-149(b) provides that “each county may levy property taxes without restriction as to rate or amount” for certain purposes. IIT. “Ainotig those Técogiiized puiposes are Coutts” N.C7Gén. Stat. ISSA-149(0)(1). 118. N.C. Gen, Stat, 153A-149(¢ ) further provides that “each county may levy property taxes for one or more of the purposes listed in this subsection” up to certain amounts. 119. The applicable authorized purposes under N. C. Gen. Stat. 153A-149(c) include “arts programs and museums” (153A-149(c )(6a)), “historic preservation” (153A-149(¢ )(14)), and “Jaw enforcement” (153A-149(¢ )(18)). 120. The phrase “museums and arts programs” is further defined in N. C. Gen. Stat. 160A-488 which recites that “any city or county is authorized to establish and support museums, art galleties, ot arts centers, so long as the facility is open to the public.” 121. The term “support” under N. C. Gen. Stat. 160A-488 “includes, but is not limited to, ... purchase of paintings and other works of art...and all operating and maintenance expenses of the program or facility.” N.C. Gen. Stat. 160A-488(d). 122. The reasonable use of public money for memorial buildings, monuments, and other public omaments designed to inspire sentiments of patriotism or of respect for the memory of worthy individuals is generally held to be for a public purpose, and within the power of the State. 63C ‘Am. Jur. 2d Public Funds, Section 55. 123, Itappears that taxes and expenditures for the maintenance of the object at issue in this case and for law enforcement to protect the object are for a public purpose as that term is understood under the Constitution of North Carolina. 123. The County’s continued placement of the object at issue on the courthouse grounds is not contrary to the constitutional limits identified by the plaintiffs. 124, The most recent United States Census data for Gaston County indicates that 17.7% of the citizens of the county are African American. That equals roughly one out of every six citizens. 125. The evidentiary showing made by the plaintiffs indicates that the object at issue communicates a message to certain citizens of Gaston County. 126. Chris Thomason, a plaintiff and the President of the Gaston County NAACP, indicated that citizens had “shared the negative feelings that arise when they see the Monument and other offensive relics that stand for the same bigoted beliefs.” 127. Thomason averred that: the Monument conveys a racially disparaging message and makes me question whether Black people, and other people of color, will receive justice in the Courthouse in front of which it stands. It shows that racism is alive and well in Gaston County and tells Black residents that if we step too far out of line, life can quickly return to how it used to bebefore the Civil War and during the Jim Crow Era. The fact that the Monument sits in front of the Courthouse puts an exclamation mark behind that statement. 128. Thomason indicated that he and other citizens “question how our local government can be~ willing to preserve such a harmful and offensive statute in front of a building that should represent faimess and equal justice for all.” 129, Guy Flemming, a plaintiff and the activities coordinator for Gaston County NABVETS, swore that “I believe that the Confederate Monument located in front of the Gaston County Courthouse is a symbol of intimidation, oppression and injustice.” 130. Flemming continued by observing that: the Monument conveys a racially disparaging message and makes me fear for the safety of Black people in Gaston County. It idolizes criminals and traitors and shows that white supremacy still exists in Gaston County. The Monument also tells Black residents that ‘we may have won the battle, but white supremacists and extremists are winning the war. 131. There is an old adage that “actions speak louder than words.” 132, Itis possible inaction may speak just as loudly. 133. Gaston County has inscribed the words “In God We Trust” into the stone over the entrance to its courthouse to communicate a message concerning its values. 134, The plaintiffs perceive that Gaston County and its Board of Commissioners have implicitly and effectively inscribed the words “In White Supremacy We Trust” into the stonework over the entrance by refusing to remove the Confederate Heroes statute from the entrance to that same courthouse. 135. The plaintiffs, by their actions prior to and during this lawsuit, have informed the County and its Commissioners that they have received this message. 136. The Court leaves it to the exercise of the sound discretion of the County and its Board of Commissioners to decide what messages they wish to communicate either directly or implicitly to the plaintiffs, their citizenry, and the world. Based on the foregoing undisputed findings of fact and the conclusions of law, the Court grants declaratory judgment as follows: 1. The object at issue in this case, the Gaston County Confederate Monument, is an “object of remembrance” as that term is defined in N. C. Gen. Stat. 100-2.1(6). 2. N.C. Gen, Stat. 100-2.1(b) and (¢ ), as interpreted by this Court, do not categorically and under all circumstances prohibit relocation or removal of this object of remembrance. 3. The Court does not determine whether the CHAMP Act is unconstitutional under the Constitution of North Carolina because, as properly interpreted, it does not in all instances prohibit removal of this object of remembrance.4, The County's failure to remove the object of remembrance to date does not constitute a violation of the Constitution of North Carolina as contended by the plaintiffs, 5. The costs of this action are’ taxed 16 the parties. ~~~ - This the aay of Ta 2024. 7 Robert C. Ervin Superior Court Judge