United States District Court, W.D. Texas, San Antonio Division
ALBERT SIDNEY JOHNSTON CHAPTER, CHAPTER NO. 2060, UNITED DAUGHTERS OF THE CONFEDERACY; ROBIN TERRAZAS, PRESIDENT; AND JEAN CAROL LANE, FIRST VICE PRESIDENT; Plaintiffs,
v.
CITY OF SAN ANTONIO, Defendant.
ORDER
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
MAGISTRATE JUDGE.
Before
the Court in the above-styled cause of action is the Motion
for Court-Supervised Donation Agreement filed by the City of
San Antonio [#147], which was referred to the undersigned for
disposition on September 16, 2019. The Court held a hearing
on the motion on October 8, 2019, at which all parties
appeared through counsel. For the reasons that follow, the
Court will deny the motion.
This
case concerns the removal of a monument to a Confederate
soldier from Travis Park in downtown San Antonio. Plaintiffs
are the Albert Sidney Johnston No. 2060 Chapter of the United
Daughters of the Confederacy (“ASJ”) and various
officers of the Chapter. Plaintiffs sue the City of San
Antonio, the Mayor of the City of San Antonio, and the
individual City Council members who voted for the removal of
the monument. Plaintiffs contend that from 1896 to 1900 the
Barnard E. Bee Chapter of the Daughters of the Confederacy
(ASJ's predecessor) raised money to erect the monument to
honor the Confederate dead and placed a time capsule under
the monument's foundation. (Third Am. Compl. [#43] at
¶ 1.) Plaintiffs believe the time capsule contains the
roster of the chapter, Confederate bills and coins, a
Confederate flag, pressed flowers from a Confederate coffin,
daily newspapers, and an Old Testament used by a Southern
prisoner during the Civil War. (Id. at ¶ 2.)
Plaintiffs allege that the San Antonio City Council passed an
ordinance on March 27, 1899, granting the Barnard Bee Chapter
the right to use the land in the center of Travis Park for
the placement of the monument in perpetuity. (Id. at
¶ 5.)
The San
Antonio City Council voted to remove the monument from Travis
Park on August 31, 2017 and approved Ordinance No. 17-4900
authorizing the removal. (Id. at ¶ 10.) The
Sons of Confederate Veterans filed a lawsuit to stop the
removal, styled Brewer, et al. v. Nirenberg, et al.,
5:17-CV-837-DAE, but were unsuccessful.[1] (Id. at
¶ 13.) The monument and cannons flanking the monument
were removed that same day. (Id.) Plaintiffs contend
the monument was and is the property of the United Daughters
of the Confederacy, the Barnard Bee Chapter, and ASJ, and
they also claim that the City Council failed to include
Plaintiffs in discussions about the monument's removal.
(Id. at ¶ 14.)
Plaintiffs'
lawsuit asserts that the acts of Defendants constitute
violations of the First, Fifth, and Fourteenth Amendments
pursuant to 42 U.S.C. § 1983 and conversion under Texas
law. (Id. at 6-8.) Plaintiffs allege Ordinance No.
17-4900 is unconstitutional under the First Amendment because
it curbs Plaintiffs' right to exercise free speech on its
private property-the land underneath the monument that was
allegedly given to the Barnard Bee Chapter. Plaintiffs
believe the removal of the monument resulted in the taking of
its real property without due compensation or procedural due
process. Plaintiffs' Third Amended Complaint seeks the
“[r]eturn of its property, or just compensation for the
loss of its property, ” compensatory damages, punitive
damages, and an injunction prohibiting Defendants “from
depriving Plaintiffs of their use of the Travis Park property
and that the monument and time capsule be replaced in Travis
Park, ” and a declaratory judgment that
“Plaintiffs have right to use of the land in Travis
Park for the Confederate monument.” (Id. at
8-9.)
This
lawsuit has now been pending for almost two years. The
District Court has twice denied Plaintiffs' motions for a
preliminary injunction, concluding that Plaintiffs failed to
demonstrate a likelihood of success on the merits of their
constitutional claims or a cognizable property interest in
the land and time capsule. (Orders Denying Preliminary
Injunction [#23, #83].) However, the District Court has
issued several orders to ensure the conservation of the
monument and the time capsule during the pendency of this
litigation. The City moved the cornerstone containing the
time capsule to a climate-controlled facility in August 2018
to prevent its degradation. (Advisory [#78].) The Court
subsequently ordered the City to protect the contents of the
time capsule and appointed a special master to oversee their
conservation. (Orders [#83, #114].) The special master will
open the time capsule on October 26, 2019. (Order [#154].)
There are now two dispositive motions pending before the
District Court. Plaintiffs move for partial summary judgment,
arguing that the evidence establishes their ownership of the
statue and an easement in the land beneath it. (Pls.'
Mtn. for Summ. J. [#132].) Defendants move for summary
judgment, arguing all of Plaintiffs' claims fail as a
matter of law because there is no evidence of ownership of
land or property interest with respect to the monument and
the land upon which it is situated. (Def's. Mtn. for
Summ. J. [#133].)
Against
this procedural history, the City filed the motion currently
before the Court- Defendant's Motion for Court-Supervised
Donation Agreement [#147]. By its motion, the City asks the
Court to supervise the execution of a donation agreement by
which the City would donate the monument to ASJ, including
its cornerstone, and transport the monument a distance of up
to 100 miles from the City's center at the City's
expense to premises owned or occupied by ASJ or another
location specified in writing by ASJ. Plaintiffs responded to
the motion highlighting their issues with the proposed
agreement and proposing a modified agreement. The parties
filed an Advisory prior to the Court's scheduled hearing
on the City's motion indicating they still could not come
to an agreement as to any donation of the monument [#156].
At the
Court's hearing on the City's motion, the City
conceded that the Court lacked authority to compel Plaintiffs
to submit to the proposed agreement or to accept donation of
the monument and cornerstone. And Plaintiffs voiced their
continued opposition to the proposed agreement at this
juncture. However, although the parties both acknowledged
that a donation of the monument would not resolve all
outstanding merits issues in this suit, they also agreed that
both sets of parties would inure benefits from the transfer
of possession and ownership of the monument and cornerstone
to Plaintiffs at this stage in the litigation.
Part of
the relief requested by Plaintiffs in their Third Amended
Complaint is the return of their property. The proposed
donation agreement transfers the monument into
Plaintiffs' possession as one of its terms. Notably, the
District Court has expressed skepticism as to the validity of
Plaintiffs' ownership interest in the monument and real
property at issue and is poised to issue a final ruling on
the cross-motions for summary judgment that are currently
pending. If the District Court rules in favor of the City,
any appeal by Plaintiffs of an unfavorable ruling to the
Fifth Circuit could extend this litigation out for another
year or more, during which time the City would no longer be
required to conserve the monument or hold it for a future
possible return to Plaintiffs.
Moreover,
even if Plaintiffs were to ultimately prevail before the
District Court on appeal, it is unlikely that they would
receive all the relief they seek, particularly the desire for
the monument to be returned to the center of Travis Park in
downtown San Antonio. More likely remedies include the
transfer of the monument into Plaintiffs' possession
(i.e., what the City is offering here); the award of
some compensation to Plaintiffs; and/or an order for the City
Council to provide substitute procedural due process.
Accordingly, although the undersigned must deny the motion in
light of the parties' lack of agreement as to its terms,
the undersigned will order the parties to confer once again
on a possible agreement to transfer the monument from the
City's possession and control to the Plaintiffs'
possession and control and file an advisory to the Court
within two weeks of this Order.
IT
IS THEREFORE ORDERED that the City of San
Antonio's Motion for Court-Supervised Donation Agreement
[#147] is DENIED.
IT
IS FURTHER ORDERED that the parties confer about the
issues raised in the City's motion, the advantages of a
donation at this stage in the litigation, and the terms of
the proposed agreement, and file a joint advisory via
CM/ECF no later than October 23, 2019 that indicates
whether there were able to reach some form of agreement.
IT
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