Albert Sidney Johnston Chapter et al v. Nirenberg et al

Filing 158

ORDER DENYING 147 Motion Court-Supervised Donation Agreement Signed by Judge Elizabeth S. Chestney. (mgr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF 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,
vs.
CITY OF SAN ANTONIO,
Defendant.

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CIVIL NO.
SA-17-CV-1072-DAE

ORDER
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

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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

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The case is currently on appeal before the Fifth Circuit.
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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

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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

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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 CourtSupervised 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 IS SO ORDERED.
SIGNED this 9th day of October, 2019.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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