Victory in Bee County, Texas
October 15, 2013
Nathaniel DT Lyons
On September 23, the Bee County, Texas Commissioner’s voted to ban the Confederate Flag from the Bee County Expo Center – which included the Western Week Festival starting this coming Friday 18-20 October in Beeville, Texas. Bee County is named for the Father of 2 Confederate Generals: BG Barnard E. Bee, Jr who gave Jackson his nickname & BG Hamilton P. Bee who defended the Texas coast. Texas Military Images, Inc had applied for and received a vendor’s booth and this past Friday, requested permission to display the Confederate Battle flag. The Western Week Committee replied that they would respond to TMI with a decision. Now let us be clear- Western Week had no part in this decision, the decision was adopted unilaterally by the County Commissioners. From an insider the County’s position was as of last Friday – NO SURRENDER. No Confederate flags on County property – PERIOD!!! So this morning chief Trial Counsel Lyons prepared the following letter (below) for the County Attorney, Michael Knight, and started drafting a complaint & temporary restraining order and making sure a federal judge in Corpus Christi would be available for a hearing. The letter to the County Attorney was emailed just at 11AM Central time.
A sympathetic reporter called at 4:00 EST to tell us that the County Commissioner’s rescinded the ban – saying “oh y’all misunderstood us – we didn’t mean ban the Confederate flag from the Expo – just from the county flagpole. The Confederate flag is welcome at Western Week!
So a bloodless victory – the good guys don’t always lose and the bad guts don’t always win. We’re sorry the Commissioner’s cratered so fast as the best lesson for these small town bullies would be to make them pay the SLRC’s attorney’s fees (Lyons spent about 18 hours on research, drafting & negotiation), but that would ultimately be paid by the long suffering Bee County taxpayer. So we rejoice and move on to the next case. Your support of SLRC makes this important work possible. DONATE today
PO Box 1235
Black Mountain, NC 28711
HERE’S the letter to the County Attorney:
SOUTHERN LEGAL RESOURCE CENTER, Inc
90 Church Street
Black Mountain, NC 28711
October 14, 2013
Mr. Michael Knight
Bee County Attorney
Re: Texas Military Images, Inc. booth at Western Week
Dear Mr. Knight:
Please take note that I represent Texas Military Images, Inc., Texas non-profit Corporation and an approved vendor for the upcoming Western week at the Bee County Expo Center.
On Friday, Maggie Willis, a TMI volunteer, requested permission to display a Confederate flag at the Western Week booth, as well as Sons of Confederate Veterans applications and brochures. Vendor Chairman Laurie Rothlisberger emailed Maggie Friday afternoon that the TMI request would be considered by the entire Western Week Committee.
One serious bar to a favorable response to TMI’s request is the current contract language for the Bee County Exposition Center adopted September 23, 2013 by the Bee County Commissioner’s to wit:
O. Bee County Commissioner’s Court and/or Expo Center management reserves the right to reject any offensive language or displays including the Confederate fla(g), or other offensive flags, banners, posters, signs, etc., that it feels are inappropriate or offensive and will not (be) permitted to be displayed at any part of the expo grounds during any and all events.
This is our request that the Bee County Commissioner’s remove the above language from the current lease for the Bee County Exposition Center as patently unconstitutional. As unconstitutional, the above provision is void ab initio, voidable and therefore unenforceable by either the Western Week Committee or the Bee County Commissioner’s. By use of the unconstitutional provision banning Confederate flags, the Bee County Commissioners have turned the Western Week Committee into “state actors” or more precisely, a private party acting under “color of law.”
There are five tests for determining whether a private party’s involvement with local government justifies the conclusion that the party was engaged in “state action.”
1. Under the symbiotic relationship theory, state action is present when the state and private party have a symbiotic relationship; state action is present only when the state profited from a private wrong…
2. Under the public function theory, state action exists when a private party performs a function that has been historically and traditionally the exclusive prerogative of the state…
3. Under the “sufficiently close nexus” test, state action exists if the local government ordered the private conduct, or “exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State…
4. Under the joint participation theory, a private individual who jointly participates in the alleged constitutional wrongdoing with a local official is engaged in state action…
5. Under the pervasive environment theory, a private association may be considered a state actor if the state is “pervasively entwined” with the association.
Leesom v Guadalupe County et al CA No. SA-10-CV-0480 OG United District Court for the Western District of Texas, san Antonio Division 2011 US Dist LEXIX 46251
Citing West v. Atkins 487 US 42 (1988) and Lugar v Edmondson, 457 US 922 (1982) and
AM Mfrs Mut Ins Co v Sullivan 526 US 40 (1999) Leesom attached
Rundus v. City of Dallas, 634 F3rd 309 (5th Cir. 2011) sets up a 2 part test for state action, 1) the restriction represents an official City policy or custom Monell v Dept of Soc Servs, 436 US 658, 691 (1978) and 2) State Fair of Texas’s conduct in enacting and enforcing the restriction is “fairly attributable” to the City. Lugar v Edmondson , 457 US 922 (1982) Rundus attached.
In Brentwood Acad. v Tenn Secondary School Athletic Assn, 531 US 288, 304 (2001), the Supreme Court of the United States articulated four tests for determining whether a private entity’s actions amount to state action: (1 Public function; 2) Compulsion; 3) joint action; 4)and governmental nexus…. A plaintiff need only satisfy one of these tests to show that a private entity acted under color of state law. Webber v 1st Student Inc; 1:11-cv-03032 CL, United States District Court for the District of Oregon, Medford Division. 2012 US Dist. LEXIS 186553 attached.
Although of the cases cited only Brentwood found state action by the Defendants, all the cases make clear that inquiry into state action is “fact intensive” and a question of law for the court. It seems clear to me that the vote of the Bee County Commissioner’s changing the Bee County Expo’s contract terms to ban Confederate flags is clearly an act prohibited by the First Amendment. Further, the County binding that term on the Western Committee through their contractual relationship with the Bee County Expo Center makes them “state actors” or “private parties acting under color of law,” if they attempt to enforce the Confederate flag ban on Texas Military Images, Inc.
I want nothing more than to have a pleasant conversation with you regarding amicable resolution of this issue, that will allow Texas Military Images, Inc. to participate in Western Week with all of their rights intact.
Please call me to discuss. With Western Week starting the end of this week, this matter is very time sensitive. I need to know the County’s (and Western Week Committee’s – they are cc’d) position before the end of the business day tomorrow to hopefully prevent all the action necessary for federal judicial vindication of TMI’s rights.
Kirk D. Lyons
Chief Trial Counsel
Southern Legal Resource Center, Inc.
In view of the County’s vote on banning the Confederate flag, a private resolution or policy change by the Western Week Committee on the Confederate flag for this year’s event will still be considered by TMI Inc as acting under “color of law.”
CC: TMI Bd of Directors
Western Week Committee
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