14 F.4th 329
5th Cir.2021Background
- In 1899 the Barnard E. Bee chapter of the United Daughters of the Confederacy erected a Confederate soldier monument in a San Antonio park and placed a time capsule beneath it.
- The Albert Sidney Johnston (ASJ) chapter formed in 1932 and functionally succeeded the Bee chapter when the Bee chapter dissolved in 1972.
- The City of San Antonio removed the monument and time capsule just over a century after the monument’s erection; ASJ sued the City alleging First and Fourteenth Amendment violations.
- The district court dismissed for lack of standing, finding ASJ had no property or other legally protected interest in the monument, time capsule, or park center; the Fifth Circuit reviewed de novo.
- ASJ relied on an 1899 document it characterized as conveying a property interest or a privilege to use the land; the City argued the park land was inalienable, any permission was a revocable license limited to the Bee chapter, and no written transfer to ASJ existed.
- The Fifth Circuit held ASJ lacked a property or liberty interest (and therefore standing), declined to find a transferable easement or irrevocable license in ASJ, noted McMahon’s agreement/authoring-speech distinction, and affirmed dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for First Amendment claim | ASJ had standing because it had a property/right to keep the monument on public land and thus suffered a concrete injury | ASJ lacked any legally protected, particularized interest; plaintiffs merely agree with the monument’s message | No standing; plaintiffs lacked a particularized injury and merely agreed with the monument’s speech (McMahon controls) |
| Existence of property interest (easement/license) | 1899 document conveyed an easement or irrevocable license to use the park center | Park land was generally inalienable; any permission was a limited, revocable license and not a transferable easement | No transferable property interest to ASJ; park dedication rules and Texas law favor inalienability and revocability |
| Whether any right transferred to ASJ after Bee dissolution | ASJ implicitly succeeded Bee’s rights and thus retained the interest | Any right (if it existed) belonged to the Bee chapter and terminated on dissolution; no writing shows Bee assigned rights to ASJ | Even assuming a right existed, it passed only to Bee and ended with its dissolution; ASJ produced no written assignment |
| Fourteenth Amendment procedural due process claim | Removal deprived ASJ of a protected property or liberty interest without due process | No protected interest to be deprived; in any event ASJ members had public hearing opportunities | No due-process violation: no protected interest and members had opportunity to be heard; claim fails for lack of particularized injury |
Key Cases Cited
- McMahon v. Fenves, 946 F.3d 266 (5th Cir. 2020) (distinguishing agreeing-with-speech from authoring-speech for standing)
- Physician Hosps. of Am. v. Sebelius, 691 F.3d 649 (5th Cir. 2012) (standard for de novo appellate review of jurisdictional dismissal)
- Sierra Club v. Morton, 405 U.S. 727 (1972) (standing requires concrete, particularized injury beyond generalized value preferences)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (injury in fact must be concrete and particularized)
- Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972) (procedural due process protects recognized liberty and property interests)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (due-process balancing; meaningful opportunity to be heard)
- Zachry v. City of San Antonio, 305 S.W.2d 558 (Tex. 1957) (municipal corporations lack power to sell or convey land dedicated as a park)
- Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex. 1962) (easements in gross are ordinarily not transferable)
- Thompson v. Clayton, 346 S.W.3d 650 (Tex. App.—El Paso 2009) (licenses in real estate are revocable at will)