.

 

1                             PROCEEDINGS OF MAY 12.2003
2

3     THE COURT: Ladies and gentlemen, the Court calls up

4 for consideration the case of John S. LaTour, the Plaintiff,

5 versus City of Fayetteville, Arkansas. This is File Number 02-

6 5001, and the matter is set for trial today by previous orders

7 of the Court.

8         However, the Court has already conducted a short pre-

9 trial in-chambers with Mr. LaTour for the Plaintiff, who is pro

10 se representing himself, and also Mr. Woody Bassett, who is the

11 counsel representing the Defendant, City of Fayetteville. As a

12 result of that pretrial conference, the Court has determined

13 that it is necessary as a preliminary matter to conduct a short

14 Daubert hearing.

15         Mr. LaTour has offered an expert witness to testify in

16 connection with the trial of this matter, and the Defendant,

17 City of Fayetteville, has objected to that testimony on at least

18 a couple of grounds. So before commencing the trial itself, the

19 Court will conduct a short Daubert hearing.

20         Now, is the Plaintiff present and ready to proceed?

21         MR. LaTOUR: Yes, sir, we are.

22         THE COURT: Mr. LaTour, you want to introduce your

23 assistant who will be helping you?

24         MR. LaTOUR: This is Mr. Jeff Kendrick. Jeff helped me

25 on legal research and has been very helpful.

 

  -1-

 

1         THE COURT: All right, Mr. Kendrick, thank you, and

2 welcome. And, Mr. Bassett, you've already indicated you have no

3 objection to Mr. Kendrick sitting --

4         MR. BASSETT: That's correct.

5         THE COURT: All right. Mr. Bassett, is the Defendant

6 present and ready to proceed?

7         MR. BASSETT: Yes, sir. Sitting with me at counsel

8 table, Your Honor, for the record, is Kit Williams, Fayetteville

9 City Attorney.

10         THE COURT: All right, Mr. Williams. Now, gentlemen,

11 you indicated to me in chambers that you wish to invoke the rule

12 sequestering the witnesses, and I think we should do that at the

13 outset even before we commence the Daubert hearing for obvious

14 reasons. So let me ask, do you, Mr. LaTour, have all of your

15 witnesses here that you expect to call today?

16         MR. LaTOUR: Yes, sir, everybody is here.

17         THE COURT: Mr. Bassett, do you have any witnesses you

18 know of?

19         MR. BASSETT: No, sir, unless possibly Mr. Williams.

20         THE COURT: All right. Ladies and gentlemen, if you

21 understand you may be called as a witness in this case in this

22 hearing, please stand and raise your right hand to be sworn.

23 Mr. Williams, you may want to be sworn just in case you're going

24 to be called.

25         MR. WILLIAMS: Yes, sir, I will.

 

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1 (The witnesses were duly sworn by the Court Services Officer.)

2         THE COURT: Thank you. Please be seated. Ladies and

3 gentlemen, just be seated, if you don't mind, for just a moment.

4 Let me just make a few comments. Those of you who will be

5 called as witnesses need to understand that the rule

6 sequestering the witnesses has been invoked, actually by both

7 parties in this case, and the Court routinely grants it as a

8 matter of course when that request is made.

9         The meaning of the granting of the rule means that a

10 person who is going to be called as a witness must stay outside

11 the courtroom where he or she cannot hear what is happening

12 until they come in to testify. While you're outside the court-

13 room, you may not discuss your testimony with each other. You

14 can talk about baseball or apple pie or whatever else you want,

15 but do not discuss your testimony, either what it is going to be

16 if you have not yet been in, or what it has been once you have

17 been in. For example, it would be inappropriate to step back

18 out and say, you know, "Watch the guy in the red tie. He's

19 asking hardball questions." Just don't do that. It would be

20 improper.

21         Once you have completed your testimony, I will ask the

22 attorneys to please release you, and if you are told that you

23 are released, then you may leave, or stay and listen if you

24 like. But nonetheless, even after you have been released, it

25 still would be inappropriate to converse with any witnesses who

 

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1 are still waiting to testify or who have not been released. So

2 if you will accommodate us on that, we will greatly appreciate

3 that.

4        So now I mentioned earlier that we're going to have a

5 short hearing before we commence the trial itself, so I will ask

6 that all those witnesses, with the exception of Mr. Smith and

7 Mr. Williams, to now withdraw, and then we'll call you back as

8 soon as we can.

9         All right, Mr. LaTour, were you going to call your

10 proffered expert and we will hear -- well, before you do that,

11 let me ask, Mr. Bassett, if you wish to state any objection you

12 might have on the record.

13         MR. BASSETT: Yes, sir. The Defendant would object to

14 Mr. Smith testifying, Your Honor, for several reasons. First of

15 all, we were not notified until last week that Mr. LaTour had

16 some intention of calling Mr. Smith to testify, and that, of

17 course -- I realize that Mr. LaTour is representing himself, but

18 that is obviously a clear violation of the Court's Scheduling

19 Order. We had zero notice that Mr. Smith would be called. We

20 have absolutely no idea what his intended testimony might be, so

21 therefore it would be prejudicial for the Plaintiff to be

22 allowed to offer Mr. Smith as a witness, expert witness, at the

23 trial of this case.

24         Also, Your Honor, we would object on the basis that we

25 anticipate that what Mr. LaTour wants to do with Mr. Smith on

 

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1 the witness stand is to elicit certain opinion testimony from

2 him with regard to constitutional law issues, with regard to

3 some of the other legal issues that are involved in this case,

4 and under the Federal Rules of Evidence, Your Honor, we don't

5 believe that that would in any way assist or be helpful to this

6 Court in making a decision on the issues in this case.

7         And furthermore, we believe, or anticipate anyway,

8 with all due respect to Mr. Smith -- I know him personally, and

9 he's a good guy and he's a smart guy, and he's done a lot in his

10 life, but we don't believe that he has the kind of expertise or

11 knowledge that would in any way assist this Court to make a

12 decision in this case. The decision in this case is up to Your

13 Honor and not up to some expert witness who might want to offer

14 opinions about signs and constitutional law matters.

15         So for those reasons, Your Honor, we object.

16         THE COURT: All right, thank you. Mr. LaTour, do you

17 have a response, please?

18         MR. LaTOUR: Your Honor, I readily admit that I was

19 late and tardy in notifying Mr. Bassett about my decision to

20 call Mr. Smith as an expert, but I would point out to the Court

21 that I would not characterize it as zero notice. I noticed him

22 last week on -- I mailed it on Wednesday. He should have

23 received it on Thursday. He had all day Thursday and all day

24 Friday. Mr. Smith did make himself available for deposition

25 twenty-four hours a day. We stated that in the notice to Mr.

 

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1 Bassett for depositions, and apparently counsel for the City was

2 not able to schedule that in. We understand the procedural

3 shortcomings there, and we'd appreciate the Court's leniency in

4 letting Mr. Smith give testimony in spite of those facts.

5         THE COURT: Mr. LaTour, let me ask if Mr. Bassett is

6 correct in his belief that your intention is to call Mr. Smith

7 as an expert on the law.

8         MR. LaTOUR: No, sir, not on the law exactly. In

9 dealing with facts and applying those to the law. We're chal-

10 lenging -- Mr. Smith's testimony will be centered on our 11 challenge as applied, not the facial challenge. 

12         THE COURT: Well, I'm not sure I followed that. Now,

13 you are asking Mr. Smith to consider facts and then determine 14 how the law applies to them?

15         MR. LaTOUR: (No response.)

16         THE COURT: I guess what I'm getting at is, what kind

17 of expert opinion am I getting other than on the law?

18         MR. LaTOUR: He will give you an opinion -- he will

19 give you his expert opinion on how the city sign ordinance was

20 applied in my case, whether that was --

21         THE COURT: That's a conclusion of law, isn't it, or

22 opinion of law?

23         MR. LaTOUR: Yes, sir.

24         THE COURT: Okay. Well, I just want to be sure. All

25 right, thank you.

-6-

 

1     Let me just say for the record, I think the objection

2 is well-taken to the late proffer of the expert witness. The

3 Court entered its Scheduling Order, as I know both parties know,

4 back on September 30~, 2002, and yet like most, if not all of

5 the Court's Scheduling Orders, required in Paragraph 7 that all

6 parties must make initial expert disclosures not later than

7 ninety days prior to the trial date, and rebuttal experts and

8 disclosures must be made within thirty days thereafter.

9         Also incumbent with that requirement is that the

10 expert supply a statement concerning the intended opinions and

11 testimony that he or she intends to give, and the reasons for

12 that, which I think are fairly obvious. It is important for the

13 opponent to know that there's going to be an expert and the

14 tenor of the expert's testimony for a number of reasons, so that

15 that party can decide whether or not to depose the expert wit-

16 ness and whether the deponent desires to get an expert of its

17 own to meet the expected testimony of the expert witness.

18         This wasn't done in this case. The Court observes, as

19 far as it knows, there was not a lot of discovery done in this

20 case by either side, and I suspect that's true because it

21 appears that not many, if any, material facts are in dispute or

22 have been from the outset of this case, and I think that is born

23 out by recent events which led the Court to remove this case

24 from its jury trial docket.

25         So it appears to me that the facts upon which this

 

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1 case turns are not legion or even, frankly, many, nor does it

2 appear that they are inordinately complicated. It seems to me

3 they are rather straightforward. But most importantly, it seems

4 to me that they are not in dispute, although we are going to

5 have a hearing on at least one factual issue that Mr. LaTour

6 claims is still in dispute and that is material, so it's not

7 surprising to me that there was not extensive discovery in the

8 way of depositions and so forth.

9         It is surprising to me, in light of what I have just

10 said, that either side would feel the need to call an expert

11 witness because, as I know Mr. Bassett knows and as Mr. LaTour

12 being a law student, well advanced in his studies as I under-

13 stand it, I'm sure quite well knows, that the Court permits

14 expert testimony when it appears that the trier of fact would be

15 aided by the testimony of an expert witness where you have

16 matters, complicated matters, of science, engineering, and

17 things of that nature that the lay fact finder in the form of

18 jurors would have difficulty understanding in following the

19 proof or the theories that are being offered. Those comments

20 obviously are true with respect to a judge sitting alone, if the

21 judge would be aided by that expert testimony in understanding

22 the facts. The Court is not aware, however, of any authority

23 for the proposition that parties can be permitted, or should be

24 permitted, to call experts on the law to aid the Court in its

25 understanding of the law.

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1 The Court is guided, obviously, by the decisions and

2 the precedential decisions of courts of record, starting with

3 the United States Supreme Court, certainly on constitutional

4 issues, and the Court is also aided in most cases by legal

5 briefs that are filed by the litigants, and that has been the

6 case here, and there are situations in which friend of the court

7 briefs or amicus briefs can and are filed to help in educating

8 the Court as to the existence of precedential decisions and

9 their meaning and their pertinent application to the matters

10 then before the Court.

11         But aside from those features, the Court is not aware

12 of any reason or any authority for the proposition that a party

13 should call as an expert witness a witness who is simply going

14 to opine on what the law is or how it should be applied in a

15 given case.

16         So it seems to me, for a variety of reasons, not the

17 least of which is that the expert was not disclosed in a timely

18 fashion so that the Defendant could have a reasonable oppor-

19 tunity to depose that expert and determine whether there was a

20 basis to object. I assume had that occurred, the Defendant

21 might very well have made a more material objection along the

22 lines that I have been discussing here.

23         So it also seems, as a secondary matter -- and I will

24 certainly hear, I'm sure, from Mr. Smith in a moment, that there

25 is no basis or no reason to require expert testimony in this

 

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1 case because there is no factual dispute or no essential factual

2 dispute, first of all, and secondly, even if there were dis-

3 putes that -- factual disputes, it does not seem to me that they

4 would be of a nature that would require the need for expert

5 testimony in order for the Court, sitting as finder of fact, to

6 understand those facts.

7         And then finally, as I mentioned, I don't believe

8 there is any authority for the proposition that an expert should

9 be offered to aid the Court in knowing and understanding what

10 the law is. So I'll sustain your objection, Mr. Bassett, on the

11 grounds stated, and will not permit Mr. Smith to testify.

12         But as I indicated to you, Mr. LaTour, I certainly

13 will allow you to make a short proffer in line with what I've

14 said. I think there are pretty simple questions to be asked of

15 an expert witness. First, what are your qualifications that

16 make you an expert about whatever you're going to talk about.

17 Number two, what have you looked at and examined and taken in to

18 account as a basis for any opinion that you want to offer, and,

19 three, do you have an opinion, and, four, what it is, and that

20 seems to make a lot of sense to me.

21         So I would ask that when you offer Mr. Smith, if you'd

22 try to follow that guideline so that we can -- if the appellate

23 court has a reason to look at this, at least they can understand

24 what Mr. Smith -- who he is and what he had on his mind and what

25 he would have said if he were permitted to testify. So do you

 

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1 want to call Mr. Smith forward, and I will let you make your

2 proffer.

3         MR. LaTOUR: Yes, sir. I call Steve Smith.

4         THE COURT: Mr. Smith, if you will, come around,

5 please, and have a seat in the witness box. You've been sworn?

6         THE WITNESS: Yes, Your Honor.

7         THE COURT: Al right. Go ahead whenever you're ready.

8 STEPHEN SMITH, being called upon to testify, and having been

9 first duly sworn, testified as follows:

10                                 DIRECT EXAMINATION

11 BY MR. LaTOUR:

12 Q.         Mr. Smith, would you state your name and your mailing
13 address for the Court's record?
14 A.         My name is Stephen Smith. I live at 340 North Ralston
15 Avenue in Fayetteville, 72701.
16 Q.         Mr. Smith, what are your qualifications to speak as an
17 expert on freedom of speech?

18 A.         I have received undergraduate and graduate degrees in
19 Communication, a Ph.D. in communication studies from North-
20 western University. I've been on the faculty at the University
21 of Arkansas for twenty years, currently holding the rank of
22 professor. I have also been a visiting scholar at Stanford Law
23 School and on the faculty of law at the University of Cambridge.
24 I have been teaching courses in freedom of speech and communi-
25 cation theory during that period of time.

-11-

 

1 Q.         Thank you. What did you look at to formulate the basis for

2 your opinion in this case?

3 A.         Well, primarily, I was looking at the sign environment in

4 terms of communication and aesthetics in the area. I observed

5 the sign that's in question in this dispute here. I observed

6 signs in other parts of Fayetteville adjacent to that area and

7 looked at the Fayetteville sign ordinance to see if it, in fact,

8 contemplated coverage of those items.

9 Q.         Do you have an opinion about how the ordinance was applied

10 to my case?

11 A.         It seems to me that the -- while the purpose and intent of

12 the Fayetteville sign ordinance may be lawful; that is,

13 preventing distractions to drivers or for aesthetic reasons,

14 that it doesn't particularly apply to your sign. In fact, the

15 first time I went to observe your sign, I didn't even see it at

16 all because of the angle at which it can be read. It's much

17 like an LCD screen, that you almost have to be at a ninety

18 degree angle and turn and look at it to actually see the

19 message. My opinion is not on the wisdom of your investment in

20 the sign, but on whether or not it causes a problem for the

21 City.

22         What I did notice in the same area, within the radius

23 of about a mile and a half driving up by the Razorback Road,

24 there's a large illuminated moving billboard in one end of

 25 Razorback Stadium that is certainly more distracting than your

 

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1 sign. There were eleven illuminated beer signs in the window of

2 a liquor store -- Daddy Don's, I believe was the name of the

3 store -- that were more distracting than your sign.

4         And, in fact, just next door to your business is a Chinese

5 restaurant that has illuminated neon allover it, which was --

6 has been malfunctioning for over six months, that flickers and

7 is much more distracting than your sign.

8 Q.         Okay, thank you very much.

9         THE COURT: l right, do you have any questions?

10       MR. BASSETT: No, sir.

11       THE COURT: Al right, thank you, Mr. Smith.

12       May he be released, gentlemen?

13       MR. LaTOUR: Yes, sir.

14       THE COURT: Mr. Bassett?

15       MR. BASSETT: Yes, sir.

16       THE COURT: Al right. Professor Smith, you are

17 released from your oath. You may go or stay as you please.

18       THE WITNESS: Thank you very much, Your Honor. It's

19 always a pleasure to be in your court.

20       THE COURT: Now then, gentlemen, let me call up the

21 case for trial. In the process of doing that, let me mention

22 that, as both parties know, this matter was the subject of a

23 Preliminary Injunction Hearing last December 13, I believe, of

24 2002, and as a result of that hearing, the Court entered an

25 Order denying Plaintiff's then request for a Prelminary Injunc-

 

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1 tion.

2         It is being suggested by the Defendant that the Court

3 should receive and take into account all the proof and other

4 matters that were offered at that hearing, and to that end, the

5 Defendant has proffered a transcript, a copy of which the Plain-

6 tiff already has, and the Plaintiff has made an objection to

7 certain portions of that transcript that the Court has taken

8 under advisement and then is going to look at, and so I will

9 come back to that matter as soon as I've had a chance to review

10 the portions to which Mr. LaTour makes his objection. And the

11 basis for that objection, frankly, or actually the meaning of

12 it, relates to whether it would be appropriate for Mr. LaTour to

13 recall at least one witness who testified at that hearing con-

14 cerning matters that are in that transcript, so I'll come back

15 to that at a later time.

16         The parties have also attended a hearing before this Court

17 through their counsel on May 7, last Wednesday I believe, and

18 at that time they came in at the Court's invitation to determine

19 whether there were material facts left in dispute that neces-

20 sitated a trial by jury, and the case was then set for jury

21 trial as of that time. The Court had concerns and expressed

22 them at that time as to whether there were any material facts

23 left in dispute.

24         We went over at that hearing a list of what the Court,

25 considered to be the material facts gleaned from its examination

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1 of the pleadings and other matters in this file at a previous

2 hearing that was held December 13, it then being the Court's

3 view that those material facts really were not in dispute, and

4 that what was left to be decided was what they meant under the

5 law with respect to the issues that are before the Court as

6 raised in this lawsuit.

7         The Court's belief is that the parties are in agree-

8 ment with the Court that those were essentially the material

9 facts that were in issue. Mr. LaTour, the Plaintiff, suggested

10 that there could be a number of others that were material and in

11 dispute. The Court did not agree with that, and so ruled from

12 the bench on that date, May 7th, but at the same time, the Court

13 mentioned that it would conduct a telephone conference call with

14 the attorneys the next day at 3:00 o'clock on May 8 to then

15 give the attorneys a chance, after having thought of that, to

16 dispute the Court's conclusions in that regard.

17         The main reason for doing that was because most, if

18 not all, of the alleged disputed fact issues that Mr. LaTour

19 raised on May 7 were new. They had not been seen by the Court

20 in the earlier pleadings, and that they were new, I think, to

21 Mr. Bassett as well, but it was the Court's view at that time,

22 and remains the Court's view, that those issues, in light of the

23 issues that are properly framed in this case, and have been

24 since actually it began, that they were not material or neces-

25 sarily even in dispute or material. Not that they were not

-15-

1 material, but they were in dispute.
2         But because it had come up in that fashion, and rather
3 suddenly, the Court felt it wise to give the attorneys a chance
4 to think about it, and after, by the way, reviewing the tran-
5 script of those facts, which my court reporter, Ms. Sawyer,
6 kindly typed up and handed to the attorneys the next morning,
7 that I should give them another chance to be heard on that, and
8 then that conference call, which took place on the 8th at about
9 3:00 o'clock, the attorneys had that transcript before them, and
10 when the Court inquired on their thinking, Mr. LaTour's response
11 from the Plaintiff was that he was in essential agreement that
12 the material facts were there, but he did feel that there was at
13 least one area in which he felt he needed to call some fact
14 witnesses relating to the issue of the rationale for the
15 signing, and I'll let him fill that out more completely when he
16 makes his opening statement.
17         But in light of that position by Mr. LaTour, he said,
18 "I don't believe I need a jury for that," and he then agreed,
19 upon inquiry, that he would waive the jury and simply submit
20 that issue, as well as the other factual issues that we deter-
21 mined are not in material dispute, to this Court sitting as a
22 finder of fact, and which is obviously a judge of the law, and
23 so it was determined that the jury would not be called, and this
24 case would be submitted to the Court sitting as -- by itself
25 without a jury.

-16-

1 The parties then also decided that exhibits, P1ain-
2 tiffs' exhibits that had been offered at earlier hearings, would
3 be received in this hearing in conjunction with the Court's
4 consideration of the case, sitting by itself, and those exhibits
5 were reviewed.

6         Plaintiff's exhibits were reviewed again this morning
7 off the record by the attorneys in chambers, and we determined
8 that those Plaintiff's exhibits are as follows: Numbers 1,2,3,

9 4, 5, 6, 7, 8, 9, 10-A, 10-B, 12, 13, 14, 15, 17, and 18. In

10 that list that I just mentioned, you will notice there was no

11 Plaintiff's Number 11, but I understand that Mr. LaTour agrees

12 and Mr. Bassett agrees that Defense 7 was -- is identical with

13 what had been Plaintiff's Number 11, and I think that was iden-

14 tified as being a copy of the ordinance in question and so --

15 there was no Plaintiff's 16, and I don't recall that being dis-

16 cussed in chambers, so I don't know why there is no Plaintiff's

17 16, and maybe I can be helped on that in a moment.

18         But at this juncture then, gentlemen, I'll ask you to

19 agree with me then that Plaintiff's exhibits, the numbers that

20 I've mentioned, may be received and considered by the Court in

21 the trial of this cause.

22         Do you agree, Mr. LaTour?

23         MR. LaTOUR: I agree, Your Honor.

24         THE COURT: Do you agree, Mr. Bassett?

25         MR. BASSETT: Yes, sir.

 

-17-

1         THE COURT: All right. I will also mention on the
2 record that at the pretrial conference this morning, Mr.
3 Bassett, for the Defendant, offered Plaintiff's 1, 2, 3 --
4 pardon me -- Defense 1, 2, 3, 4, 5, 6, 7, 8 and 9, and these
5 exhibits are copies of city ordinances and excerpts from city
6 ordinances, as well as certain photos of Mr. LaTour's office
7 building, of his electronic sign, and then Number 9, of course,
8 is the transcript of the earlier Preliminary Injunction Hearing
9 of December 13,2002.

10         Now then, may then Defense 1 through 8, inclusive, be

11 received and considered by the Court without objection, Mr.

12 LaTour?

13         MR. LaTOUR: Yes, sir.

14         THE COURT: And Mr. Bassett?

15         MR. BASSETT: Yes, sir.

16         THE COURT: I have 1 through 8 now. Nine is the trans-
17 cript that I mentioned earlier, and I will defer ruling on that

18 until we've had a chance to review that.

19 All right, gentlemen --

20         MR. BASSETT: Judge, may I say one thing about --

21         THE COURT: Sure.

22         MR. BASSETT: -- the Defendant's Exhibit Number 9?

23 Regardless of what conclusion the Court reaches on that, I just

24 want to say for the record that the Defendant was offerinq

25 Exhibit Number 9, which is a transcript of the Preliminary

 

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1 Injunction Hearing, held on December 13, 2002, primarily as a

2 matter of convenience for the Court.

3         We assumed, and I suppose I should ask the Court this,

4 that the testimony and the evidence in the record from that

5 hearing back on December the 13~, 2002, is on the record, in the

6 record, and it's a part of the case now, and we were offering

7 this primarily as a convenience, and just want to make sure that

8 the evidence presented at that hearing is a part of the case and

9 will be considered by the Court in any decisions reached.

10         THE COURT: Al right. Excuse me just a moment.

11 (An off-the-record discussion was held.)

12         THE COURT: Just as an aside -- I'll address that in a

13 moment, Mr. Bassett and Mr. LaTour, but I'm told by my lawyer,

14 Ms. Gay, that Number 16, the old Plaintiff's 16, was the identi-

15 fication of a witness named Emis. Does that sound right to you?

16         MR. LaTOUR: Yes, I think that is correct.

17         THE COURT: So we don't need that, I take it?

18         MR. LaTOUR: Correct.

19         THE COURT: Al right. Let me now respond, Mr.

20 Bassett, to your concerns. As you know, this again came up in

21 the pretrial and in our discussion on the telephone conference

22 call on May the 8~, and I think the record will show that at

23 that time, the parties were pretty much in agreement that the

24 Court can, and should, consider the testimony that was received

25 on the Preliminary Injunction Hearing back on December 13, and

 

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1 that since both parties have copies of that, it would only be

2 fair if the Court would have a copy of it.

3         I think the objection, Mr. LaTour, raised is not

4 necessarily an objection to the Court considering all of that

5 transcript, but his point, I think, is that if the Court is

6 going to do that, then in fairness to him, that he thought he

7 ought to be able to ask some additional questions of a witness.

8 It was Mr. Williams, I believe, who testified at that time.

9 Because that came up rather suddenly, I simply deferred dealing

10 with it until I and my lawyer could kind of review that testi-

11 mony and see what to make of it.

12         I do not mean to suggest to either of you by handling

13 it in that fashion that what the Court already heard, obviously,

14 and took into account back on December 13 should not again be

15 considered. I don't mean to suggest that at all. I just want

16 to see what I want to do with Mr. LaTour's suggestion here that

17 he ought to be able to call back witnesses and supplement what 1

8 they've said. That could be a bit troublesome. I can't recall

19 how many witnesses testified back then, but I don't want to redo

20 that hearing, is what kind of troubled me about that. I'm going

21 to look into this and I'll tell you where I am on that a little

22 bit later if that'll be okay.

23         MR. BASSETT: Yes, sir.

24         THE COURT: Now, gentlemen, let me see if I've covered

25 everything I wanted to talk about preliminarily.

 

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1         In light of what I have gone over, it seems to me that

2 the -- we need to give the Plaintiff an opportunity to present

3 the proof that he has on this additional fact or facts,

4 remaining set of facts that he has in mind that the Court needs

5 to hear about, and so in line with that, I would certainly offer

6 the opportunity to Mr. LaTour, and Mr. Bassett if you wish, to

7 make short opening statements, hopefully short, just on that

8 issue.

9         We pretty well, I think, are acquainted with the

10 overall picture here, and since we have these facts that we have

11 discussed thoroughly the other day, I really don't know that I

12 need to hear about that, but if you want to make a short opening

13 statement to provide a focus for this area of proof that we're

14 going to deal with, I'll be happy to hear that.

15         And I would ask, Mr. LaTour -- why don't we try to

16 shoot for no more than ten minutes? I know you both have asked

17 me, and in a weak moment I think I agreed, to let you have

18 thirty-five minutes for closing, with the Plaintiff to have

19 thirty minutes to open and five minutes to close, and so in

20 light of that, I think it only fair to say a very short opening

21 statement might be in order. Maybe around ten minutes. Is that

22 agreeable, Mr. LaTour?

23         MR. LaTOUR: Very good, sir.

24        THE COURT: Mr. Bassett?

25         MR. BASSETT: Yes, sir.

 

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1         THE COURT: Al right. I'm going to put the stopwatch

2 on you, and, Mr. LaTour, and you may go. Go right ahead.

3         MR. LaTOUR: Thank you. I think I can do it in five,

4 Judge.

5         THE COURT: Good. By the way now, just so there's no

6 misunderstanding, I won't let you add that on to the thirty-

7 five.

8         MR. LaTOUR: Okay, very good.

9         The new evidence will demonstrate that the rationale

10 supporting the prohibition in the Fayetteville sign ordinance

11 that prohibits signs from flashing and blinking is misplaced and

12 unreasonable. We are going to show there are signs and attrac-

13 tion devices inside the city limits of Fayetteville that flash

14 and blink very strongly and are very magnificent displays of

15 flashing and blinking lights and they do not cause traffic

16 accidents, and aesthetically, they are the same as time and

17 temperature signs.

18         We also hope to introduce evidence of adjoining cities

19 in our region, Springdale and Rogers, that both allow signs to

20 change and function just like my sign was changing, and we've

21 observed those signs over fairly extended periods of time, and

22 the evidence will show that there were no automobile accidents.

23 There were no screeching tires. There were no near misses and

24 there were no blood marks on the streets and highways where

25 those signs were operating. The new evidence will center on

 

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1 those two examples.  Additiona1 attraction devices in Fayette-

2 ville that flash and blink or are animated, and also the

3 adjoining cities

4         We also want to introduce an official copy of the

5 Springdale sign ordinance which itself distinguishes between

6 flashing and changing signs. Springdale, in their ordinance,

7 the evidence will show, allows signs to change. It does not

8 allow signs to flash or blink. Those are the three points.

9         THE COURT: All right, thank you. Very good. Mr.

10 Bassett, please?

11       MR. BASSETT: Your Honor, just responding to those

12 particular points, first of all, it is the belief and position

13 of the City of Fayetteville that the sign ordinance in S