I have no further witnesses, Your Honor, and I believe the parties have briefed and the court has heard argument and ruled on all outstanding motions. But, if it pleases the court, I wish to raise one additional matter: Before the case is formally submitted for decision, the court may find it useful to hear a summary of the evidence from the vantage of my client, the defendant Street Department. I know summation of this kind is not customary in a judge-tried case. I ask only because the plaintiff's counsel went ahead with a rather extended, summing up of her own. Which is fine. If the court found her presentation to be informative, I thought it might want to hear from us, too.

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Thank you, Your Honor. I will be brief. If I may step away from counsel’s table and address the court from the lectern. Let me grab my notes.

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The court has heard extensive testimony from the plaintiff, Ms. Alexis Hillsdale. She

explained quite eloquently her artistic and political intentions in painting what she refers to as the “wrap around mural” on the street side exterior of the single-story frame house at 1423 Grant Street. Grant is a residential street with modest-sized and -priced homes. It runs just three blocks, from Vanessa Boulevard to Arkin Park, and is situated in Port De Lys’ Third Ward. The mural that is the subject of these proceedings was painted across the front of the house from ground level to the roof line, as well as approximately two feet around the front corners onto the sides of the house, hence the term “wrap around.”

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Ms. Hillsdale calls her creation “dissonance next door.” For the record, she spells it in all lower-case letters. She explained her artistic method as follows: she employed what she called “splash bulb,” which involves the artist filling latex membranes the size of a clementine orange with acrylic paint that has been diluted with water. Each container, once filled, is tied off in the manner of a balloon. The paint’s consistency, as well as its color (some works are monochromatic) or mixtures of colors, is considered a central part of the artistry. The membrane, or “bulb,” is quite thin, and must be handled gently or it may burst in one’s hand. In fact, some breakage is anticipated and is seen as a serendipitous albeit minor aspect of the craft of mixing color. The bulbs then are hurled against a hard, vertical surface such as drywall set up inside of a studio, or as in this case the siding of a house or other type structure, or an exterior retaining wall or a surface constructed especially to receive the work, material that sometimes is flat and smooth, sometimes is textured but in each case the surface operates as a canvass – and the bulbs break. The thin slurry that makes up the contents, and sometimes includes paint from the artist’s or artist helper’s hands, splatter or “splash” across the intended surface.

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As few as half a dozen bulbs may be employed in a work, or as many as 100, in some cases possibly more. Here, according to the testimony, there were 57.

So, that’s what the artists who practice “splash bulb” do: they fill balloons with runny paint and lob them or pepper them against a wall. That’s what occurred here, except here it wasn’t one wall it was three –the front of the house, and a couple of feet’s worth of the two sides were all bespattered. The colors employed, according to the artist, were a direct match of the color palette taken from the juvenile board game “Candyland,” as those colors appeared on the midcentury or “classic” version. Ms. Hillsdale’s mural had one additional feature: Using a one and a half inch, straight “house trim” brush with natural bristle dipped in undiluted Bright Red (Pantone) oil-based paint, Ms. Hillsdale, or one of her assistants, hand painted in three-inch block letters to the right of the front door, beneath the mailbox, the word “Whoops!” punctuated with an exclamation point.

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According to filings with the Recorder of Deeds – let me make sure I have this right, yes – ownership of the property is titled in the name “TaDA LLC,” a limited liability company. Ownership of “TaDA” in turn is not revealed in the public filings. Nothing wrong with that. Ownership interests in corporate entities may be, but are not required to be, disclosed in the public record. Here it was kept private. The owners must, however, appoint and make public a registered agent and designate an address as a registered office for accepting service of process and other legal notice. Both must be set forth in filings with the Secretary of State.

Through this case, though, we came to learn that TaDA is one hundred percent owned by Ms. Hillsdale. She created TaDA as a holding company for 1423 Grant Street. She had TaDA acquire Grant Street to serve as a canvas for her wrap-around splash bulb mural. A man named Simpson, Alois Simpson, was appointed TaDA’s registered agent. Simpson has no other relation to the art world, no connection at least of which we are aware. He is the owner-manager of a luncheonette called Simpson’s by the Arcade in downtown Port De Lys. He also does tax returns for hire, including for Ms. Hillsdale. He is married to one of Ms. Hillsdale’s cousins. The address

of TaDA’s registered office is that of the Grant Street property itself and as I mentioned TaDA’s only business is ownership of the Grant Street property.

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The crux of the case against the Street Department concerns the destruction of the wrap-

around mural: How it happened, and who, if anyone, should be held legally responsible for its loss. There’s no dispute the mural has been irretrievably destroyed. It was installed during the early morning hours of April 19 of last year. Sixteen days later, on the afternoon of May 5, the Street Department power washed the splash bulb paint from the front of the Grant Street property. All that remains of the artist’s work is traces of the paint that had wrapped around and adhered to the sides of the structure. The paint on the front was entirely obliterated.

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The Street Department was operating under the authority of City Ordinance 02-409B, which embodies the city’s efforts to control graffiti. The ordinance limits regulation to “unwanted” graffiti, which it defines in terms a “public display of etchings, paintings or other markings on private property” that are “etched, painted, or otherwise marked on the property of another without permission of the owner.”

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A prior version of the ordinance, challenged in litigation and later repealed, presumed graffiti to be a form of vandalism. It defined the prohibition and violation in terms of “defacement” proven in part by its “lacking artistic merit.” The current ordinance neither presumes nor permits judgment about artistic merit. I bring this up to make clear that the old ordinance has no bearing on this case. It had long since been repealed before Ms. Hillsdale’s mural was in place.

As amended the ordinance is designed to do nothing more than discern whether the complained of display was installed or erected without property owner consent. The amended

ordinance prescribes a procedure for resolving this issue. The framework is simple: The property owner is asked. If the property owner confirms that consent has been given for the display, the display remains up. If not, the display comes down or is removed.

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The procedure ordinarily is resolved immediately. It is set in motion with a complaint, typically from the owners of they property on which the display appears. In other words, most instances of what we think of as unwanted graffiti are, indeed, resolved by the property owner notifying the Street Department by email that the markings were not permitted and should be removed. An owner’s complaint is complete when it identifies the property address, attests to the property’s ownership, briefly describes the offending display, and confirms it was effected without consent. Some complaints, though, such as those arising from the display on the Grant Street property, originate from neighboring property owners. This typically occurs when the property owner is absentee or is indifferent to or neglectful of property maintenance. These complaints, too, must be submitted to the Street Department. Here, the record reflects the Street Department’s receipt of eight complaints by neighboring or nearby residents within the first 48 hours of the mural’s installation.

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For these “third-party” complaints, the ordinance requires the street department to provide the property owner written notice sent by certified mail. The notice must identify by address the property in question and locate where on the property the complained-of display is situated. This may be accomplished in whole or in part with a photograph, although a photograph is not required. The notice developed by the Street Department is a pre-printed form which the street department completes through check marks of relevant boxes and filling in blank spaces according to simple instructions. Prominently displayed at the top of the notice form is a statement of the ordinance’s requirement that the property owner respond to the Street Department within five business days and confirm whether or not the complained-of display has been installed with the property owner’s permission. Under the ordinance, notwithstanding the actual date of delivery, receipt of the street department notice is deemed to have occurred, and calculation of the five business days response period begins, three business days after the date of mailing of the notice.

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A complained-of display will be presumed to have been installed without permission and will be removed by the Street Department without further notice and without delay if the property is not occupied at the time of the complaint and the owner fails to respond to the notice within the prescribed period of five business days.

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Your Honor, the parties have stipulated to the sequence of events preceding, including,

and following the neighbors’ complaints concerning the Grant Street property: The street department received the first complaint by phone message on April 20, a Tuesday. The following day, Wednesday April 21, an inspector visited the property, prepared the notice and posted it by certified mail addressed to Mr. Simpson, TaDA’s registered agent, at 1423 Grant Street.

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There’s also no dispute that the notice was actually received at the property, and, in fact, it arrived the following day, April 22, a Thursday. As it happens under the ordinance, though, the five-day response period did not start to run until Monday, April 26, three business days after actual mailing, meaning Ms. Hillsdale through her company TaDa had until Monday, May 3, to notify the street department of its consent to the display.

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That never came to pass. Ms. Hillsdale confirmed during discovery in this case that neither TaDa nor Mr. Simpson responded to the notice at any time. Ms. Hillsdale acknowledged on cross examination that neither she nor anyone else associated with TaDA ever notified Mr. Simpson of the existence of TaDA or his appointment as its registered agent or the property’s designation as registered office, or even of the property’s existence. What’s more, Ms. Hillsdale admitted that, for all times relevant to this proceeding, the Grant Street property was vacant and neither TaDA nor Ms. Hillsdale ever made arrangements to check for or collect mail that was delivered to the property.

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In fact, Ms. Hillsdale testified that she had not become aware of complaints or the street department’s notice and subsequent actions until she was contacted by a reporter from Port De Lys Public Radio, KPDL, on the afternoon of May 5, just hours after the street department had power washed the mural from the front of the Grant Street property.

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*

Your Honor, I fear a growing restlessness by the Court in response to what it may

consider to be the tedium of all this procedural and bureaucratic detail. If the court has grown a little weary, I understand. But I would be grateful for the Court’s continued patience. I wish to assure the Court that there is purpose to this presentation which I hope to make clear in that brief part of my summary that remains.

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*

Ms. Hillsdale volunteered in her deposition testimony and confirmed at trial, quite

generously under the circumstances, her belief that the Street Department adhered to the requirements of the ordinance and appears to have made an “honest mistake” in power washing away Ms. Hillsdale’s expressive work. She further acknowledges that the ordinance under which the city proceeded is narrowly drawn, that it is “content neutral” in that it does not target any point of view but applies without favor or regard to form to all public displays that reasonably could be considered to fall within the definition of graffiti that are the subject of complaint, and action is taken only against those that have been installed as a result of trespass or otherwise without consent.

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According to Ms. Hillsdale, though, the street department’s good faith doesn’t matter. Under the First Amendment of the United States Constitution, she argues, any government abridgement of artistic expression, however innocent or ostensibly reasonable, is actionable in a court of law – and gives rise to strict liability for money damages. This, she argues, is especially true when artistic expression has a political dimension. The only question before the court, she argues, is how much: How much should she be compensated for the physical destruction of her expressive work by the city’s street department?

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In support of these propositions, Ms. Hillsdale relies primarily on the expert testimony of Louise Johanson, Ph.D, the Elijah Tanner Family Professor of Modernist and Postmodern Art History and Expressive Human Rights at Eliot University, with joint appointments to Eliot University’s Fine Arts and Law School faculties. By Dr. Johanson’s lights Ms. Hillsdale occupies a prominent place as a painter and political polemicist mainly for having extended modernist traditions of abstract expressionism. Ms. Hillsdale, according to Dr. Johanson, is a leading figure of an avant garde school. She has won prominence under the name of “hijinks rejectionism” and stands at the center of a form of artistic expression that is uniquely in service of politics in its radical challenges to the political status quo of what adherents see as the privileged classes. Artistic expression so motivated, according to Ms. Hillsdale’s argument, is entitled to special, near absolute constitutional protection – even from innocent mistake.

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Quoting from Dr. Johanson’s testimony: “The defining characteristic of hijinks rejectionism is that it challenges unflinchingly and seeks to disrupt every privilege sought to be preserved by the ruling classes. This includes privileges asserted by working class allies and apologists of a ruling class. These artistic forms, of which “dissonance next door” already is seen as a breakthrough, museum quality archetype, seeks to achieve its ambitious social and political goals by taking aim at and intentionally upsetting aesthetic norms and inviting mockery and ridicule, also sometimes called the “artistry of anathema.”

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Both Ms. Hillsdale and Dr. Johanson explained the current controversy regarding the Grant Street installation into this broader framework of “hijinks rejectionism” in the following way: The section of Grant Street situated in the Third Ward and includes the Grant Street property exemplifies the remains of what once had been a bastion of the unspoiled working class, a place of small undecorated homes punctuated by corner groceries and taverns. Both witnesses explained how “dissonance next door” sought to challenge working class people still living on the street, descendants of denizens whom the artist believes have betrayed their
wholesome unprivileged ancestry by anemically acceding to a corrupted city bureaucracy devoted to the steady destruction through gentrification of what had been working people’s birthright of economic struggle. The mural, to use Ms. Hillsdale’s terms, was created as an offensive multichromatic “wake up call” which seeks to stay and even reverse the social equivalent of oceanic tides and thus is entitled to the ultimate Constitutional protections through imposition of strict liability against the Street Department for its innocent but nonetheless destructive acts.

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Your Honor, let me be plain: there is no basis in law or remotely accepted jurisprudential

theory that supports Ms. Hillsdale’s assertion of such vast Constitutional protection. There is no precedent for the astonishing legal proposition Ms. Hillsdale seeks to advance. Nothing in our

Constitutional history intimates so expansive a constitutional right or provides the slightest foothold that might serve as a foundation from which so expansive a right might ascend. In simple, direct terms, what she proposes is an absurdity.

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But it would be a mistake for this court to not accord some basic respect for the claim even if only for its audacity. Indeed, the defendant Street Department is prepared to meet Ms. Hillsdale’s argument on its own terms:

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The evidence at trial shows that the Street Department’s bureaucratic process and physical obliteration of the “wrap around mural” on the Grant Street property, far from violating or even impeding any right to political expression, was itself fundamental and essential to Ms. Hillsdale’s full realization of the expressive, political speech embodied in the Grant Street work. Stated in practical terms, the mural would have remained a silent abstraction had it not galvanized feelings and action on the part of Grant Street neighbors. The very purpose of this action, after all, according to Ms. Hillsdale’s theory of Constitutional protection, was to challenge and undermine political privilege by activating, exposing, and holding up to ridicule the banality of the governmental bureaucracy. The stated object of Ms. Hillsdale’s artistry thus was expected and only was achieved because of the “destructive” act of which Ms. Hillsdale now complains and for which she seeks money damages.

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But was it “destructive?” Here, lies the crucial piece of evidence, which Ms. Hillsdale’s theory overlooks, and which reveals the answer to this question to be “No” and which thus conclusively defeats her claims, revealing it to be unfounded:

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Here, Your Honor, I refer to the uncontested appraisal testimony by Mr. Ian Culbertson, of Culbertson & Douglas Fine Arts. He estimated values for the remains of Ms. Hillsdale's otherwise obliterated mural, that which “wrapped around” sides of the Grant Street property and was left largely untouched by power washing, to range between $250,000 and $500,000. According to Mr. Culbertson, had the mural not been subjected to the Street Department’s actions but remained intact it would only have fetched between $50,000 and $75,000 depending on the timing of the holding of a hypothetical well-advertised auction sale. Mr. Culbertson acknowledged that it is counterintuitive to realize that the relic was more valuable than the untouched work, but that this is explained by the work’s artistic “actualization” by forces collateral to the expressive work that the artist directly brought to bear.

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In other words, the complained-of actions by the Street Department, as measured by political notoriety affecting the market value of the Grant Street work, were decidedly generative and not “destructive.” Creative artistry and related political speech weren’t abridged, they were enhanced. Ms. Hillsdale’s failure to recognize this is understandable. It should be forgiven as an honest mistake.

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Your Honor, for the foregoing reasons, we request that Ms. Hillsdale's claim be dismissed, with each party to bear their own costs.

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("An honest mistake" was first published here on the Eddie Roth Reader in July 2024).