Tuesday, February 19, 2008
While not a legal profession case, an unpublished decision issued by the North Carolina Court of Appeals may be of interest to history fans. The issue relates to a battle flag of the 18th North Carolina regiment, captured at Petersburg on April 2, 1865. The soldier who captured the flag was awarded the Medal of Honor for the action. The flag was returned to North Carolina by President Grover Cleveland and remained in the Hall of History "until at least 1953." Respondent in the proceedings "purchased the flag for approximately $10,000 around 1970 after seeing it advertised for sale in a national publication, The Shotgun News." The state brought this action as a Return of Public Records proceeding and prevailed notwithstanding the claim that they were aware of respondent's possession of the flag since at least 1975. The state "met its burden of proof of overcoming the presumption that State officials deaccessioned the flag as provided by law."
Regarding respondent's right to compensation:
" In ruling against Respondent as we have, we are cognizant that, on the facts before us, Respondent is deprived of a significant property interest. Nevertheless, [t]he public is not to lose its rights through loss, theft or the unexplained removal of  public records from the custody of the [State], nor because one of its citizens purchased the [records] in good faith, because it was his duty, as much as that of every other citizen, to protect the State in its rights." Only the Legislature may authorize compensation for the loss. (Mike Frisch)