1
IN THE UNITED STATES DISTRICT COURT
2
WESTERN DISTRICT OF ARKANSAS
3 FAYETTEVILLE DIVISION
4
JOHN S. LaTOUR L PLAINTIFF
5
V.
No. 02-5001
6 CITY OF FAYETTEVILLE, et al DEFENDANT
7
8
9 Before Honorable Jimm Larry Hendren, U. S. District Judge, as follows:
10 PRELIMINARY INJUNCTION HEARING
December 13, 2002
11 Fayetteville, Arkansas
12
13
14 APPEARANCES:
15 MR. JOHN S.
LaTOUR
PRO SE
410 North Oliver Avenue
16 Fayetteville, AR 72701
17 MR. WOODY
BASSETT
ON BEHALF OF THE DEFENDANT
BASSETT LAW FIRM
18 221 North College
Fayetteville, AR 72701
19
20
REPORTED BY: Dianne Hinson, CCR-CVR
21 Official Court Reporter
United States District Court
22 Western District of Arkansas
23 1605 Hunter Hill
Van Buren, Arkansas 72956
24
Proceedings reported by stenomask; transcript produced from
,
25
dictation.
1 INDEX
2 Page
3 Court's Opening Remarks 3
4 Witnesses Sworn 7
5 Opening Statement on behalf of the Plaintiff
6 By Mr. LaTour 9
7 Opening Statement on behalf of the Defendant
By Mr. Bassett 12
8
WITNESSES ON BEHALF OF THE PLAINTIFF
9
Examination of Keith Emis
10
Direct by Mr. LaTour
19
Cross by Mr.
Bassett
25
11 Redirect by Mr. LaTour 31
12 Examination of John LaTour
Testimony by Plaintiff LaTour 35
13 Cross by Mr. Bassett 43
Further Testimony by Plaintiff LaTour
57
14
15 EXHIBITS ON BEHALF OF THE PLAINTIFF MARKED RECEIVED
16 Exhibit 1
21
20
Exhibit 2
21
20
17 Exhibit 3 21 20
Exhibit 4 21 20
18 Exhibit 5 21 20
Exhibit 6 21 20
19 Exhibit 7 22 22
Exhibit 8 22 22
20 Exhibit 9 22 22
Exhibit 10-A 42 42
21 Exhibit 10-B 42 42
Exhibit 11 18 18
22 Exhibit 12 37 38
Exhibit 13 38 38
23 Exhibit 14 39 39
24 Exhibit 15 40 40
Exhibit 17 24 24
25 Exhibit 18 24 24
Page
1 WITNESSES ON BEHALF OF THE DEFENDANT
2 Examination of Kit Williams
3
Direct by Mr. Bassett
59
Cross by Mr. LaTour
67
4 Redirect by Mr. Bassett 85
5 EXHIBITS ON BEHALF
OF THE DEFENDANT
MARKED RECEIVED
6 Exhibit 2 58 59
Exhibit 5 26 27
7 Closing Argument on
behalf of the Plaintiff
8 By Mr. LaTour 87
9 Closing Argument on behalf of the Defendant
10 By Mr. Bassett 92
11 Court's Comments 95
12 Court Reporter's Certification 113
* * *
4
1 [Open Court - December 13, 2002 - 9:06 a.m.]
2 [Call to Order of the Court]
3 PROCEEDINGS
4 BY THE COURT: The Court calls up for consideration
5 the case of John S. LaTour v. the City of Fayetteville. This
6 hearing was set pursuant to this Court's order of November 13,
7 2002 in which the Court noted that there would be a hearing at 9
8 o'clock a.m. on Friday, December 13 on the plaintiff's Motion
9 for Preliminary Injunction in this case of John S. LaTour v.
10 City of Fayetteville, Case Number 02-5001.
11 That order followed an order of November 18 in which the
12 Court addressed certain matters that were addressed at a
13 previous hearing and in that order, certain parties were
14 dismissed and certain other rulings were made. And then the
15 Court, as already noted, entered its order of November 13 to set
16 this date and time for the hearing on the plaintiff's Motion for
17 Preliminary Injunction.
18 So is the plaintiff present and ready to proceed?
19 BY MR. LaTOUR: Yes, sir, I am.
20 BY THE COURT: Mr. LaTour, good morning.
21 BY MR. LaTOUR: Good morning.
22 BY THE COURT: Is the defendant present and ready to
23 proceed?
24 BY MR. BASSETT: Yes, sir.
25 BY THE COURT: Mr. Bassett, good morning.
5
1 All right. Gentlemen, you've heard me state the purpose of
2 our hearing. I understand that both parties may desire to call
3 certain witnesses and to present certain evidence. I have been
4 given a sheet effecting, I believe, several exhibits. I'm not
5 sure, I believe we have something like 17 or 18 exhibits that
6 Mr. LaTour wishes to introduce. Mr. Bassett, did you see those?
7 BY MR. BASSETT: No, sir, I don't think I have.
8 BY THE COURT: Mr. LaTour, did you give him a copy of
9 that list of exhibits?
10 BY MR. LaTOUR: No, sir, but I will.
11 BY THE COURT: Would you, please?
12 BY MR. LaTOUR: Certainly.
13 BY THE COURT: And let's see if --
14 BY MR. BASSETT: I can look at it real quickly here,
15 Your Honor.
16 BY THE COURT: Well, we can -- Kitty Gay, would you
17 mind making Mr. Bassett a copy of that. Also, Mr. Bassett, I
18 believe you favored me with a list of your proposed exhibits,
19 five of them and one witness. Did you give a copy of that to
20 Mr. LaTour? And if you did not, would you do that as well?
21 BY MR. BASSETT: Yes, sir.
22 BY THE COURT: And Kitty will make you a copy, Mr.
23 LaTour, so both of you will have --
24 BY LAW CLERK: We have copies.
25 BY THE COURT: Do you? All right.
6
1 Now then, gentlemen, why don't we just take just a moment--
2 Mr. Bassett, have you seen these exhibits that Mr. LaTour
3 proposes? I think there are several photographs. I'm not sure
4 what they are, I've not seen them. Mr. LaTour, is that what
5 they are; photographs?
6 BY MR. BASSETT: I think, judge -- Judge, I believe
7 I've seen -- I think I've seen -- If we might have just a moment
8 to look at the photographs real quickly.
9 BY THE COURT: Sure. And while you're doing that; Mr.
10 LaTour, have you seen what Mr. Bassett proposes to use as his
11 exhibits?
12 BY MR. LaTOUR: They look accurate.
13 BY THE COURT: All right, okay. Now then, Mr.
14 Bassett, have you had a chance to look his over?
15 BY MR. BASSETT: Doing it right now, Your Honor.
16 [Pause] All right, judge.
17 BY THE COURT: Have you seen those?
18 BY MR. BASSETT: Yes, sir.
19 BY THE COURT: All right. Then gentlemen, let me say
20 now I have not looked those over. I'm going to assume now from
21 what's been said that since each of you have looked over the
22 other's submissions, that if and when you offer them to me, we
23 won't have any quarrel about you haven't seen them. I'm not
24 saying you don't have objections -- we'll see about that -- but
25 at least you have viewed them.
7
1 Now then, I believe you indicate you have one witness, Mr.
2 Keith -- is it Emis?
3 BY MR. LaTOUR: Correct.
4 BY THE COURT: All right. Is he here?
5 BY MR. LaTOUR: He is.
6 BY THE COURT: Good morning, sir. And Mr. Bassett, I
7 believe you indicate you have one witness?
8 BY MR. BASSETT: Yes, sir.
9 BY THE COURT: Mr. Williams? And is Mr. Williams
10 going to be sitting as your corporate representative?
11 BY MR. BASSETT: Yes.
12 BY THE COURT: Okay. Then those are the only two
13 witnesses? And I don't think it makes any sense to invoke the
14 rule. I'm going to allow Mr. LaTour to start first and I assume
15 he'll call Mr. Emis. Now unless -- Do you wish the rule and ask
16 Mr. Emis to withdraw after he's --
17 BY MR. BASSETT: No, sir.
18 BY THE COURT: Okay. All right then, Mr. Emis and Mr.
19 Williams, would you both stand, raise your right hand and be
20 sworn so we can get you sworn in before we start.
21 WITNESSES SWORN
22 BY THE COURT: All right, thank you. Please be
23 seated, gentlemen.
24 Now Mr. LaTour and Mr. Bassett, we have had a previous
25 hearing with which we discussed to some extent the matter that's
8
1 before you today and you have both filed extensive written
2 briefs and positioned papers on the matter, so I don't know that
3 an opening statement is necessary but if you wish to give one,
4 I'll be happy to hear it.
5 What say you, Mr. LaTour?
6 BY MR. LaTOUR: Yes, sir. I'd like to make an opening
7 statement.
8 BY THE COURT: And Mr. Bassett?
9 BY MR. BASSETT: Judge, yes, I will.
10 BY THE COURT: I assume if he does, you will?
11 BY MR. BASSETT: I guess I should --
12 BY THE COURT: All right. How much time do you think
13 you'll need? And the reason I ask that, Mr. LaTour; if you're
14 like me sometimes -- It reminds me of what Mark Twain said one
15 time ;about a writer. They asked him why his speech was so long
16 and he said, "I just got started writing and it was too late to
17 quit."
18 And so I need to -- How much time do you want to talk in
19 your opening statement?
20 BY MR. LaTOUR: Would five minutes be appropriate?
21 BY THE COURT: That would be fine, whatever. Is that
22 enough for you, Mr. Bassett?
23 BY MR. BASSETT: Yes, sir.
24 BY THE COURT: All right, five minutes. And Ms.
25 Spellman here -- Ardia Anne Spellman, my secretary -- is acting
9
1 as our courtroom deputy. Do you have a watch down there?
2 Okay. Mr. LaTour, five minutes. We'll be real careful
3 about our time here today. Go ahead.
4 BY MR. LaTOUR: Thank you, Your Honor. Thanks for
5 entertaining these issues before this court.
6 In my research, I turned up four requirements for a
7 Preliminary Injunction and those requirements are stated in the
8 case of Dataphase Systems Inc. v. C.L. Systems. It was an
9 Eighth Circuit case, and they listed four requirements as
10 follows:
11 The threat of irreparable, i.e., not easily calculated
12 monetary terms of harm to the movant, the movant being myself;
13 Two, the state of balance between this harm and the injury
14 that granting the injunction will inflict on the other parties
15 litigant -- in this case, the city;
16 Three, the probability that movant will be successful or
17 will succeed on the merits of the case; and
18 Fourth, public interest.
19 In this particular case applying our facts to these four
20 requirements, I find that the harm that's being perpetrated upon
21 me by the city ordinance and the enforcement of the city
22 ordinance is irreparable. My speech is being squelched, I am
23 being restricted in the operation of my sign when time and
24 temperature displays are operated at their owner's desire and
25 can easily change their messages.
10
1 The rationale for the prohibition against the function of
2 signs is that it detracts from public safety and it detracts
3 from the aesthetics of the city. However, the city is at a loss
4 to explain why time and temperature signs can function and not
5 invoke these detrimental effects but when my sign functions, it
6 causes these detrimental effects.
7 Moreover, the city has offered no proof whatsoever to
8 indicate that functioning signs cause additional traffic
9 accidents. Since this case began, I've been observing signs and
10 flashing lights at various times of the year in the city of
11 Fayetteville. One of the largest displays of flashing lights
12 occurs every fall during the labor day weekend. It's called the
13 Washington County Fair.
14 The Washington County Fair is operated by the fair board,
15 of course, a non-profit corporation here in Washington County
16 but the carnival comes from Tulsa Oklahoma; the Murphy Brothers
17 Expositions. They are a private, for profit corporation and
18 they're the ones that operate one of the largest displays of
19 flashing and blinking lights in northwest Arkansas every year.
20 To my knowledge, no citation has ever been issued, no accidents
21 have been reported and I have to admit, when I drive down 1-540
22 and see those lights over there, the Ferris wheel, I'm
23 interested and I'm somewhat distracted, but not to the extent of
24 causing an automobile accident. So I question the rationale of
25 the city's own ordinance and their rationale for supporting that
11
1 ordinance.
2 I think the harm being perpetrated upon me is irreparable.
3 It's difficult to measure in monetary terms the value of freedom
4 of speech, but I think we would all agree that freedom of speech
5 is one of our most precious national rights that we have and
6 should be safeguarded at every turn.
7 The second requirement; state of balance between this harm
8 and the injury that granting the injunction will inflict upon
9 other parties litigant: It would be difficult to imagine how
10 the city would be somehow damaged if my sign is allowed to
11 function like time and temperature signs. Now if they maintain
12 otherwise, I would ask them to prove that the functioning of
13 time and temperature signs does not cause the same damage. I
14 think they'll have a difficult test doing that. So I don't
15 think there will be any injury to those parties litigant.
16 The probability that movant will be successful on the
17 merits -- In my Motion for Partial Summary Judgment, I pointed
18 out that there are no legitimate material issues of fact
19 remaining. All that's necessary is that we read the ordinance
20 and apply the laws, the rules of law established in the cases 21 that we cite.
22 The Fayetteville sign ordinance produces an illegal prior
23 restraint and it also regulates on the basis of content. Both
24 of those are odious to the U. S. Constitution as enumerated on
25 numerous occasions by a long line of court cases.
12
1 And fourth, the public interest: I think it is incumbent
2 upon all of us to safeguard the public interest and I think
3 strongly in that public interest is the right, implied if not
4 expressly stated, is the right to speak our opinion, speak our
5 minds freely in this country, in this state, in this city. And
6 I don't find that I'm able to do that under the current
7 authority of the Fayetteville sign ordinance.
8 So I ask this Court to serious consider these issues and
9 consider what we have to say today, weigh them with what the
10 city will report to you, and I trust your judgment.
11 Thank you.
12 BY THE COURT: Thank you, Mr. LaTour. Mr. Bassett, ,
13 please?
14 BY MR. BASSETT: Thank you, judge.
15 Your Honor, the City of Fayetteville passed the sign
16 ordinance back, I believe, in 1973 and it was designed for a
17 number of reasons, Number 1, I suppose, to aesthetically protect
18 the city of Fayetteville.
19 The citizens of Fayetteville, through their legislative
20 body, decided that they wanted to have some regulations of signs
21 in the city of Fayetteville. This ordinance has been in place
22 since 1973 and on several occasions, the Arkansas Supreme Court
23 has discussed or had the issue before them as to whether or not
24 it was proper to regulate signs. And of course, the Supreme
25 Court has said there is. There was even a case, Your Honor,
13
1 which addressed the issue of flashing signs. The Arkansas
2 Supreme Court said that the City of Fayetteville had the
3 authority to prohibit flashing, blinking signs.
4 Now the issue before the Court now, the issue which Mr.
5 LaTour has raised is a more narrow issue, and that is whether or
6 not the city not allowing him to flash or scroll his sign is in
7 some way a violation of his First Amendment Speech Rights. And
8 of course, we urge this Court to adopt the view that we've
9 reached that it's not. And there's several reasons for that,
10 Your Honor.
11 First of all, on Mr. LaTour's electric sign out there, he
12 has - and has the right 24 hours a day - to express his
13 political and his personal and his religious views, and he's
14 been doing that ever since he installed that sign. The only'
15 regulation that applies is that he cannot change that message,
16 you know, ever second or two like a time and temperature sign
17 does, for example. But he is allowed and clearly has been
18 expressing his political and personal and religious feelings 24
19 hours a day. And not once has anybody from the City of
20 Fayetteville told Mr. LaTour that he couldn't put any -- that he
21 couldn't express his views on that sign. Nobody has tried to
22 regulate the content.
23 The bottom line is there's only been some regulation of Mr.
24 LaTour's sign and absolutely no regulation of his views and his
25 political and religious opinions. No regulation of that
14
1 whatsoever.
2 Now Mr. LaTour correctly stated that the Dataphase Systems
3 case sets forth the applicable considerations for this Court to
4 consider on whether or not to grant Mr. LaTour's Motion for a
5 Preliminary Injunction. And we believe, Your Honor, that the
6 evidence produced today based on the applicable law, the Court
7 will conclude that those considerations have not been met.
8 There would be -- Well, first of all, we don't believe
9 there's any irreparable harm. He's expressing his opinion 24
10 hours a day on that sign and, by the way, with other signage on
11 his building out there. And when you balance the possible harm
12 to Mr. LaTour versus the possible injury to the City of
13 Fayetteville, the balance comes out on the side of the City of
14 Fayetteville.
15 If the Court should enjoin the city in this regard, you
16 would have an immediate, or possibly an immediate proliferation
17 of flashing and scrolling signs. And there's a big difference,
18 Your Honor, in someone driving by and seeing a time and
19 temperature sign -- which, by the way, is not speech; it's a
20 statement of ambient conditions -- but it's one thing to look up
21 there and see 30 degrees flashing or 4 o'clock in the afternoon
22 as opposed to driving by and seeing a scrolling message board on
23 a busy highway stating whatever message the person wants to
24 state. That is distracting. That is potentially dangerous and
25 the safety of motorist and aesthetic considerations are
15
1 legitimate
concerns of the city and it's been affirmed by the
2 Supreme Court.
3 The public interest is another consideration and we believe
4 that aesthetics and safety are legitimate public interest
5 considerations and the Court should take those into
6 consideration.
7 And finally, Your Honor, under Dataphase, Mr. LaTour has to
8 prove that there is a probability that he will succeed on the
9 merits in this case and we simply do not believe that he can
10 meet that burden today. And therefore, we're going to ask this
11 Court to respectfully deny Mr. LaTour's motion.
12 Thank you, Your Honor.
13 BY THE COURT: Thank you, Mr. Bassett. All right.
14 Mr. LaTour, are you ready to call your first, please?
15 BY MR. LaTOUR: Yes, sir, I am.
16 BY THE COURT: Please do.
17 BY MR. LaTOUR: I call Keith Emis.
18 BY THE COURT: Gentlemen, I'll permit Mr. LaTour to go
19 first as the seeker of the relief, but I'll certainly give both
20 sides a chance to present whatever they like.
21 BY MR. BASSETT: Your Honor? Procedurally, it might
22 be easier for all concerned, including the Court; Mr. LaTour, I
23 believe you wanted to put in these ordinances also, didn't you?
24 BY MR. LaTOUR: That's correct.
25 BY MR. BASSETT: Can we just do that by agreement, Mr.
16
1 LaTour?
2 BY THE COURT: That would be fine.
3 BY MR. BASSETT: Judge, will that be all right with 4 you?
5 BY MR. LaTOUR: Can we put in my copy?
6 BY THE COURT: All right. Which are you offering now;
7 the plaintiff's exhibits or the defendant's or both?
8 BY MR. LaTOUR: It was received yesterday.
9 BY MR. BASSETT: Judge, I think it's going to be
10 easier if we just put in our stuff separately.
11 BY THE COURT: Okay, all right. Okay, well, let's
12 just kind of see how it goes.
13 All right. Go ahead, Mr. LaTour, please?
14 BY MR. LaTOUR: Your Honor, I'm ready to offer for
15 consideration Plaintiff's Exhibit 11.
16 BY THE COURT: All right now, Plaintiff's Number 11?
17 Mr. Bassett, do you have any objection to that?
18 BY MR. LaTOUR: This is the sign ordinance.
19 BY THE COURT: It's what, now?
20 BY MR. LaTOUR: The sign ordinance.
21 BY THE COURT: Well, let's see. Eleven?
22 BY MR. LaTOUR: What number do you have?
23 BY COURTROOM DEPUTY: That's what I have.
24 BY THE COURT: Well, it says copy of the sign
25 ordinance and then it's been marked out and it says Sixth Street
17
1 lawyer sign.
2 BY MR. LaTOUR: Down near the bottom of the page,
3 judge.