South Carolina seeking historic papers
The state of South Carolina and its chief archivist have asked Chief Justice John G. Roberts, Jr., to prevent the sale of nearly 450 historic documents from the Civil War era, claiming that they belong to the state. The documents involved Confederate military reports, messages between Confederate generals, and related materials. They have been appraised at $2.4 million. (The stay application is Stroup, et al., v. Willcox, et al. , 06A592. It seeks a stay pending final action on a coming appeal to the Supreme Court.)
The papers have been in private hands since a South Carolina man found them in a shopping bag in a closet at a family home, in 1999 or 2000. The man, Thomas Lee Willcox, now wants to sell them at auction, to help pay off debts; he is now bankrupt. The state argues that the papers have always belonged to the state, and that private sale of them would put them beyond recovery by the state.
The papers were taken for safekeeping by a Confederate general, just before the attack on the South Carolina capital in Columbia by Union Gen. William Tecumseh Sherman. The general was Willcox’s great-great uncle. The papers have remained within the family for nearly a century and a half.
The Fourth Circuit Court ruled in late October that, under the usual rule that possession is a strong indicator of ownership where formal title does not exist, the papers belong to Willcox. It found that the state had not overcome the presumption that they are his. It rejected the state law-based claims to ownership by the state. Willcox had planned to sell them at auction in 2004, but on the day before the auction, the state obtained a court order barring the sale. After that, Willcox filed for bankruptcy. He asked a bankruptcy judge to rule that the papers were his, but the judge found that the state was the rightful owner under South Carolina law. The District
Court, however, ruled for Willcox. That was upheld by the Fourth Circuit.
The Chief Justice has the authority to act alone on the state’s stay application, but he also has the option of sharing the decision with the full Court.
In asking the Chief Justices on Wednesday to stay the Fourth Circuit ruling, the state and archivist Rodger Stroup argued that the Fourth Circuit should not have decided the state law question itself, but should have sent the state law issues to state courts for their interpretation. (Howard Bashman of How Appelaing blog has provided this coverage of the Fourth Circuit ruling and other developments in the case.)
In an unrelated matter, the Justice Department asked the Supreme Court to clear the way for deportation of a native of Pakistan who has lived in the country since 1997. Justice Stephen G. Breyer had temporarily blocked the deportation of Harood Rashid on Dec. 6. In the request to lift that stay, the Department noted that the stay was granted without a request for a response from the government. It spelled out in its motion its argument that Rashid had failed to raise in lower courts the issue he plans to raise in an appeal to the Supreme Court — whether a misdemeanor assault conviction constitutes an “aggravated felony” involving violence or the threat of violence, under federal immigration law.
An earlier post on Breyer’s Dec. 6 stay order can be found here.
The state of South Carolina, if it believes the papers rightfully are the state’s property is not showing so by refusing to purchase the papers, to later sue to recoup the funds expended therefore.
These papers represent an asset that is apparently increasing in value every day. The state cannot argue they are rightfully the state’s papers, while conintuing to allow them to be in the hands of someone else if they have a means to obtain the papers outside a court of law.
The state has a course of action to obtain the papers without going to court. The state can purchase the papers.
The state should exhaust that avenue before seeking judicial relief.
Their failure here argues strongly, even irrecoverably against the state’s claim, as their are unlimited legal means by which these papers could be lost to them outside this country. I am unaware of any law prohibiting these papers from being moved outside the jurisdiction of the U.S.
The claim of the state as it stands, also seems to imply, had Thomas Lee Willcox negligently permitted the destruction of these papers, he might somehow be liable? No one, I believe, can accept this argument.
Again, the state should have purchased and should still purchase the papers. There may be some argument about recovery of the cost, but, given their current plea, that seems lost.
Also, in any plea for recovery of costs, the defendent, Thomas Lee Willcox, would be able then to assert 1) his ownership, and withstanding the loss of that plea 2) the value of his having recovered the papers from what appears to be almost sure destruction and certain loss, which seems to equate to a total value assessment of the value of the papers.
What the state is arguing is, if the state does not purchase these papers, they will further demonstrate a lack of ownership and interest in the papers, a lack of ownershipa and interest that has already been well demonstrated by the papers not being in the possession of the state for such a long period of time.
The court can also order the state to purchase the papers before proceeding so as to not interfere unreasonably in Thomas Lee Willcox right to sell them should he be correct in his assertion of his right to sell the papers.
Don Robertson, The American Philosopher
Limestone, Maine
Comment by Don Robertson — December 18, 2006 @ 10:29 am