Albert Sidney Johnston Chapter et al v. Nirenberg et al

Filing 97

ORDER GRANTING 89 Motion to Strike 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.
RON NIRENBERG, IN HIS OFFICIAL
CAPACITY AS MAYOR OF THE
CITY OF SAN ANTONIO; CITY OF
SAN ANTONIO, ROBERT TREVINO,
IN HIS OFFICIAL CAPACITY AS A
MEMBER OF THE SAN ANTONIO
CITY COUNCIL; WILLIAM SHAW,
IN HIS OFFICIAL CAPACITY AS A
MEMBER OF THE SAN ANTONIO
CITY COUNCIL; REBECCA
VIAGRAN, IN HER OFFICIAL
CAPACITY AS A MEMBER OF THE
SAN ANTONIO CITY COUNCIL; REY
SALDANA, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
SAN ANTONIO CITY COUNCIL;
SHIRLEY GONZALES, IN HER
OFFICIAL CAPACITY AS A
MEMBER OF THE SAN ANTONIO
CITY COUNCIL; GREG
BROCKHOUSE, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
SAN ANTONIO CITY COUNCIL; ANA
SANDOVAL, IN HER OFFICIAL
CAPACITY AS A MEMBER OF THE
SAN ANTONIO CITY COUNCIL;
MANNY PALAEZ, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
SAN ANTONIO CITY COUNCIL; AND
JOHN COURAGE, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
SAN ANTONIO CITY COUNCIL;

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Defendants.

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

ORDER
Before the Court in the above-styled and numbered cause of action is Plaintiffs’ Second
Motion to Strike Defendant’s Designation of Expert Witness [#89]. The motion was referred to
the undersigned for disposition on September 24, 2018 pursuant to Rules CV-72 and 1(c) of
Appendix C of the Local Rules of the United States District Court for the Western District of
In reviewing the motion, the Court has also considered Defendant’s Response to

Texas.

Plaintiffs’ Second Motion to Strike [#92]. The Court held a hearing on the motion on October 9,
2018, at which the parties were present as represented by counsel. After considering the motion
and response, the record in this case, and the arguments of counsel at the hearing, the Court will
GRANT Plaintiffs’ Motion [#89].1
I. Background
Again, this case concerns the removal of a monument to a Confederate soldier from a
public park in San Antonio. Plaintiffs are a local San Antonio Chapter of the United Daughters
of the Confederacy 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 pursuant to 42 U.S.C. § 1983 for violations of the First, Fifth, and
Fourteenth Amendments and assert a Texas-law claim of conversion. (Third Am. Compl. [#43].)
Plaintiffs seek the return of the monument and damages.
By their motion, Plaintiffs ask the Court to strike the testimony of Charles Zech, an
expert designated by Defendant the City of San Antonio. (Expert Designation [#70] at 3.) Zech
is a partner in the law firm of Denton, Nevarro, Rocha, Bernal & Zech P.C., where he is the
attorney in charge of the law firm’s municipal law practice. (Zech Expert Report [#89-1] at 1.)
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The Court notes that it orally denied Plaintiffs’ First Motion to Strike Defendant’s
Designation of Expert Witness [#85] at the close of the October 9, 2018 hearing.
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Zech has over 17 years of experience in municipal law and as a city attorney advising cities on
regulatory, due process, first amendment, and government functions issues. (Id.)
Zech’s expert report contains the following opinions: (1) a city council does not have the
power to legally bind the decisions of future city councils; (2) ordinances adopted by one city
council may be amended by a subsequent city council; (3) Plaintiffs’ due process rights were
satisfied by the City Council’s process leading up to the removal of the monument; and (4) a
City’s placement and maintenance of a monument in a public park is government speech not
subject to restrictions of the Free Speech Clause even if the monument was donated by a private
entity; and (5) the decision of whether and where to display monuments in a public park is a
governmental function that falls under the maintenance and operations of public parks. (Id. at 2–
7.) Plaintiffs argue that Mr. Zech should not be permitted to testify as an expert because his
opinions are inadmissible legal opinions on ultimate legal issues in this case.
In response, the City agrees with Plaintiffs that Mr. Zech should not be permitted to
testify as to the legal ability of one city council to bind its successors, the legal standard for
reviewing governmental decisions about government speech and public displays, and whether
municipal monumental displays are governmental or proprietary. The City concedes that these
opinions are conclusions of law. The City argues, however, that Mr. Zech should be permitted to
testify as to one matter—that Plaintiffs received adequate due process preceding the removal of
the monument. The City maintains that this testimony relates to a fact question, not a legal issue.
II. Legal Standard
In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993), the Supreme
Court held that trial judges must ensure that any and all scientific testimony or evidence admitted
is not only relevant, but reliable. Subsequent to Daubert, Rule 702 of the Federal Rules of

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Evidence was amended to provide that a witness ―qualified as an expert . . . may testify . . . in the
form of an opinion . . . if (1) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a fact issue, (2) the
testimony is based upon sufficient facts or data, (3) the testimony is the product of reliable
principles and methods, and (4) the witness has applied the principles and methods reliably to the
facts of the case.‖ Fed. R. Evid. 702. The Daubert analysis applies to all proposed expert
testimony, including nonscientific ―technical‖ analysis and other ―specialized knowledge.‖
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). When expert testimony is
challenged under Daubert, the burden of proof rests with the party seeking to present the
testimony. Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276 (5th Cir. 1998). A district court
enjoys broad discretion in determining the admissibility of expert testimony, and such decisions
will not be disturbed on appeal unless a ruling is ―manifestly erroneous.‖ Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 142 (1997).
III. Analysis
Plaintiffs’ Third Amended Complaint alleges that Defendants deprived them of their
property without procedural due process in violation of the Fifth and Fourteenth Amendments,
pursuant to 42 U.S.C. § 1983. (Third Am. Compl. [#93] at 7–8.) Plaintiffs claim that the City
omitted its normal processes and refused to include Plaintiffs in discussions about the monument
and time capsule before their removal. (Id.)
To prevail on a takings claim or procedural due process claim under the Fifth
Amendment, Plaintiffs first must establish that they have a protectable property interest in the
monument and its contents. See Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262,
269 (5th Cir. 2012) (applying this rule to a takings claim); Castle Rock v. Gonzales, 545 U.S.

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748, 756 (2005) (noting that ―[t]he Due Process Clause does not protect everything that might be
described as a benefit: To have a property interest in a benefit, a person clearly must have more
than an abstract need or desire and more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.‖) (citation and internal quotation marks omitted).
Once such a property interest has been established, three factors are evaluated and balanced to
determine whether the process provided passes constitutional muster: (1) the private interest
affected by the official action; (2) the risk of an erroneous deprivation of such interest through
the procedure used, and the probative value, if any, of addtiional or substitute procedural
safeguards; and (3) the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would entail. See
Mathews v. Eldridge, 424 U.S. 319 (1976).
Mr. Zech’s report indicates that if he testifies, his testimony on due process would
contain the following opinions:
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The factors set forth in Mathews v. Eldride would govern the procedural due process
inquiry;

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The City Council held two separate meetings over a period of two weeks where the City
Council debated and considered the removal of the monument;

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Both meetings were posted with sufficient notice for Plaintiffs to attend and Plaintiffs
did attend;

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Plaintiffs had an opportunity to be heard at both meetings and in fact voiced their
position on the removal;

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This opportunity to be heard has been held to be meaningful as to time and manner
under analogous case law concerning the removal of a monument in a case from the
Eastern District of Louisiana,―where the Court held, on similar facts, that Plaintiffs
participation and speaking at two separate public meetings discussing an ordinance to
remove a monument was considered a meaningful opportunity to be heard‖;

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Plaintiffs’ due process rights were satisfied.

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(Zech Expert Report [#89-1] at 5–6.) The Court, in its discretion, finds that these opinions will
not help the trier of fact understand the evidence in this case or determine a fact issue, see Fed.
R. Evid. 702(a), and improperly invade the province of the judge and jury.
First, this Court, not Mr. Zech, is responsible for instructing the jury on the law
governing this case. Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir. 1997) (―There being only
one applicable legal rule for each dispute or issue, it requires only one spokesman of the law,
who of course is the judge.‖) (quoting Specht v. Jensen, 853 F.2d 805, 807 (10th Cir. 1988)
(internal citations omitted)).

By opining on the legal standards governing this case and

articulating the Mathews factors for the jury, Mr. Zech improperly assumes the role of judge in
this case. The Court will not permit Mr. Zech to testify as a legal expert as to the contours of
federal law on procedural due process or as to what standards should apply in this case.
Secondly, the majority of opinions in Mr. Zech’s expert report are simply not helpful to
the jury, in that they merely restate facts that any layperson would be able to easily comprehend
without the assistance of an expert. The Advisory Committee Notes for Rule 702 explain that
―[t]here is no more certain test for determining when experts may be used than the common
sense inquiry whether the untrained layman would be qualified to determine intelligently and to
the best possible degree the particular issue without enlightenment from those having a
specialized understanding of the subject involved in the dispute.‖ Fed. R. Evid. 702 advisory
committee’s notes (internal quotation omitted). Mr. Zech’s opinions can be distilled to the
following: the City had two meetings, of which Plaintiffs were given notice and chose to attend,
and at which Plaintiffs were both given the opportunity to be heard and expressed their opinions.
These facts will undoubtedly be placed into evidence by lay witnesses, and no legal expert is
required to communicate them to or illuminate them for the jury.

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Third, Mr. Zech’s legal opinion that the facts in this case are analogous to a case from the
Eastern District of Louisiana reads more like a section of a summary judgment brief than an
expert report and expresses nothing more than his legal opinion that the conclusions of the
Louisina federal court comport with his view of the law on procedural due process. Again, it is
the Court’s role to instruct the jury on the law applicable to this case, not Mr. Zech’s or the
Louisiana court’s. Moreover, this part of Mr. Zech’s opinion is likely to confuse the jury, as Mr.
Zech does not disclose in his opinion that the posture of that case was on a motion for a
preliminary injunction where the Court was not addressing the ultimate merits of the case, only
whether the plaintiffs had demonstrated a likelihood of sucess on the merits of their procedural
due process claim for purposes of their motion for preliminary relief. See Monumental Task
Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 598 (E.D. La. 2016), aff’d sub nom. Monumental Task
Comm., Inc. v. Chao, 678 Fed. App’x 250 (5th Cir. 2017). The Louisiana court did not hold that
as a matter of law the process plaintiffs were afforded comported with due process.
Finally, the Court will not permit Mr. Zech to opine on the ultimate issue in this case that
Plaintiffs’ procedural due process rights were satisfied by the process the City Council afforded
them. Although expert testimony is not objectionable solely because ―it embraces an ultimate
issue to be decided by the trier of fact,‖ see Fed. R. Evid. 704(a), experts are not permitted to
render conclusions of law, Owen v. Kerr–McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983).
Allowing Mr. Zech to testify that Plaintiffs’ due process rights were satisfied falls into the gray
area where ultimate issues of fact track closely with legal conclusions and therefore invades the
province of the factfinder. See Owen, 698 F.2d at 240. Where a witness’s testimony expresses
an ultimate view on whether the underlying conduct in a case violated the Constitution, this
opinion is no longer only a fact-based opinion but a statement of legal conclusion. See United

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States v. Teel, 299 Fed. App’x 387, 389 (5th Cir. 2008) (―We further conclude that the district
court properly barred Teel’s expert from going beyond consideration of the conduct to offer legal
conclusions regarding whether the assault on Williams constituted excessive force.‖).
Although ―merely being a lawyer does not disqualify one as an expert witness,‖ a lawyer
may only testify as an expert where the proposed testimony involves questions of fact.
Askanase, 130 F.3d at 672. As the Court has already explained, Mr. Zech’s proposed testimony
will not assist the trier of fact on the questions of fact before it and his testimony on the ultimate
question of a due process violation is an impermissible legal conclusion. Accordingly, the Court
will grant Plaintiffs’ motion.
IT IS THEREFORE ORDERED that Plaintiffs’ Second Motion to Strike Defendant’s
Designation of Expert Witness [#89] is GRANTED.
SIGNED this 18th day of October, 2018.

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

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