In these proceedings on June 28th, 1995, Judge J. Michael Flournoy was called during the depositions of the Haywoods. Repeatedly, Mr. Palmer interrupted with objections rendering our deposition of Mr. Haywood a sham. Our lawyers decided after nearly a dozen Palmer objections that enough was enough. They called Judge Flournoy for a hearing on the matter. Judge Flournoy was very annoyed, and according to Lou Muccitelli, who was representing himself in that hearing, Flournoy entered the courtroom without his Judge garb. Defendants with representation were barred from the hearing. The following is a transcript of that hearing. All of my remarks between the official Court record will be in blue
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF COCONINO
KENNETH HAYWOOD, ANNE MARIE HAYWOOD,..)
and the FLAGSTAFF DOOR CHRISTIAN FELLOWSHIP..)
CHURCH, an unincorporated association..)
.) No. CV- 95-0118
STEVEN R. SCHONER, DAVID CHARLES DIVER,.)
MARK DOUGLAS FREEMAN, DAVE OTTEMAN,..)
MARK WORKMAN, LOUIS P. MUCCITELLI, and)
JOHN and MARY DOES, I -- X...)
TRANSCRIPT OF PROCEEDINGS
Hearing re Request for Protective Order
Re Deposition Questions
June 28, 1995
HON. J. MICHAEL FLOURNOY, Judge Division 1
DAVID PALMER, ESQ
On behalf of Plaintiffs
RICHARD GRIMSRUD, ESQ
On behalf of Defendant DIVER
THELTON BECK, ESQ
On behalf of Defendant Schoner
JAMES E. LEDBETTER, ESQ.
On behalf of Defendant Otteman
LOUIS P. MUCCITELLI,
In Propria Persona
KATHRYN S. ANDERSON, RPR
Official Court Reporter.
THE COURT: Give me a number, this case number.
MR. LEDBETTER: 95-118.
THE COURT: This is case number. 95-118. This is -- its various plaintiffs. Give them the names. Someone read the names for the record.
MR. PALMER: Steven Schoner, David diver, Mark Freeman who is going to be dismissed.
THE COURT: Et al. versus the Flagstaff Christian door fellowship; is that right?
MR. PALMER: I'm sorry, Your Honor. It's Ken Haywood and Marie Haywood in the Flagstaff door Christian Fellowship Church, plaintiffs, versus Steven Ronald Schoner , David Diver, Mark Freeman, Dave Otteman, Mark Freeman, Lewis Muccitelli.
THE COURT: OK. In any event, for the record a court was contacted by someone from Aspey, Watkins and Diesels office, of which Mr. Ledbetter is a member, asking if this court would hear a motion or would discuss -- would discuss the matter with the attorneys. The court was aware -- I don't know how I was aware this is apparently the date for the depositions. And I don't know how I was aware but I guess someone told me today was the day. Anyway, I said I would have no objection, and were in court today. And why don't you go ahead for the record state who you represent, Mr. Palmer.
MR. PALMER: Your Honor, I represent the plaintiffs.
THE COURT: OK. And Mr. Beck.
MR. BECK: I'm Ted Beck. I'm a lawyer from Prescott. I represent Steve Schoner.
THE COURT: And Mr. Ledbetter.
MR. LEDBETTER: Jim Ledbetter representing defendant David Otteman; excuse me, Your Honor.
THE COURT: Mr. Grimsrud?
MR. GRIMSRUD: time and during an appearance for David Diver, Your Honor.
MR. MUCCITELLI: I'm appearing representing myself.
THE COURT: And apparently after discussing the matter with the attorneys there is a request for protective order by Mr. Palmer in regards to questions being asked at the deposition. So, Mr. Palmer, you have the floor to give your reason why you need a protective order.
MR. PALMER: Your Honor, I'm going to ask the court to issue a protective order consistent with the protective order that this court has already granted with respect to Mr. Otteman's Interrogatories. I can -- want me to read that to you or show you?
THE COURT: Whatever you want to do.
MR. PALMER: Let me read the ones that I'm particularly concerned about at this point.
No. 1, which you previously granted was, state and specify In detail all church tenets, doctrines, theological statements, missions, goals and philosophies.
2. Describe in detail all church practices, celebrations, rituals, conditions of membership and ceremonies.
Describe in detail all sources of church revenue, subsistence and income.
Describe in detail all charitable organizations which benefit from church revenue or income.
I would ask that the court reaffirm that protective order with respect to issues that came up in depositions and that it be extended to cover any spiritual matters existing between plaintiffs and any other person or church. I've no objection to them inquiring into any connections or if they can show there some secular matter that some secular relevance of what they're trying to get to, I have no objection to that.
THE COURT: Mr. Ledbetter, Mr. Beck, whatever.
MR. BECK: Well, Ted Beck Your Honor. What we're hearing from Mr. Palmer and what has been transpiring this morning during our attempts to depose his client really don't ring the same way. And I frankly believe the less the court could see the questions and the objections are made to have actually -- where the record has already been made this morning, the court really is being asked to rule kind of in the dark.
THE COURT: I agree.
MR. BECK: I don't think this is a proper proceeding. Each question would be a different ruling. He's told us he's going to find us on every question I've asked him. You mean we have to go to the judge on each particular question --
(And this is a crucial point that Mr. Beck has brought up, insofar as Mr. Palmer has objected to just about anything that was asked of his client, Mr. Haywood in the deposition.)
THE COURT: Let me ask you this, Mr. Beck, what do you want to find out? I understand depositions -- I've always been able to ask almost any question available at the time of deposition but I don't think religious practice under these people have -- the people that testified -- you can correct me if I'm wrong -- but there's large sums donated to the predecessor of this church. There is an allegation that this church is associated with the Prescott church and that this church, I think there is in the admission by the reverend, they gave 10% or something to the Prescott church, or words to that effect. Now what you want to go into? I think that I would grant in regard to the practices because I think the testimony was that they'd like to, you know, do away with this church. But I'm not going to let you go into the practices. What information do you want?
MR. BECK: Let me make a prefatory statement if I may, Your Honor. I really don't believe that the religious practices of the plaintiff Church or any of the churches it might be affiliated with have a relevance and are frankly no concern to me in my preparation to me in my preparation to me to present my defendants case. However, there is a relationship that exists between this preacher and previous members of that religion.
THE COURT: In Prescott?
MR. BECK: Prescott, Glendale, Lancaster, Yardale.
THE COURT: What's Lancaster? California.
MR. BECK: Lancaster, California to which he has testified this morning. Let me give you two examples as to why I think you're being asked to rule in the dark. I frankly suggest you not rule at all today. The two examples are at one point in a deposition proceedings this morning Mr. Haywood mentioned that either someone had been or should have been -- seems to me a pastor of one of the door churches had been removed from his ordination, which is not the term he uses, had been revoked. And --
THE COURT: Where was that minister, in Prescott or here?
MR. BECK: I don't know they even identified the person. If he did, I don't remember. But Mr. Ledbetter attempted to ask him, is there anyone who has similar authority over you? And the objection was made that that invades the protective religious privilege and we got an instruction not to answer. A different example is you may recall there was testimony here are the night of the order to show cause hearing about impact teams and that there was an impact team present to assist in the opening night, August 27. The question today was asked, something to the effect, what is an impact team? Response, object, and instruction not to answer. That invades their religious privileges.
A COURT: I understand where you're coming from. Let Jim argue. Mr. Ledbetter.
MR. LEDBETTER: Thank you, Your Honor. I'll be very brief.
The allegations against my client is that he caused emotional damages because he referred to them as a cult and that their reaction to that was that they had physical manifestations. It, including a heart attack, because my client called him a cult, or some heart palpitations or something that's in the complaint.
(The "heart attack" that Mr. Haywood claimed was not founded or supported in any medical records from his physician. I have those records that were subpoenaed for the Court record-- no heart attack, mild or otherwise was indicated for a 30 year old man, which Mr. Haywood was at the time.)
I should be inclined to discover information as to the religious practices if the term cult is inappropriate. And, in fact, in the Jerry Falwell case versus Hustler Magazine, our U.S. Supreme Court said that if there is truth in the statements said, you can't have emotional harm from the statement being said because of my clients first amendment privileges.
Your Honor, if there is any allegation that the signs are inappropriate, that they have threatening, that the content is wrong, we should be able to know what, in fact, is happening. That's one issue.
The second issue, Your Honor, you can't get emotional damages if your reaction to a statement is unreasonable. That's Arizona law. You have to have a reasonable reaction to what was said. It can't be a severe outrage or distress if, in fact, it's truthful or that there is a reasonable basis for that. We're being prevented from understanding what, in fact, is going on in terms of these church practices.
And finally, they opened the door by in this hearing saying, were solely independent, we have no relationship to Prescott, except to their credit they said there is a spiritual affiliation. Your Honor, they opened the door on that issue and we should be able to --
THE COURT: Mr. Grimsrud.
MR. GRIMSRUD: Your Honor, I'm new to this case.
THE COURT: Welcome aboard.
MR. GRIMSRUD: I have -- perhaps a different viewpoint after the last testimony as per this court's order per page three. The connection between Prescott and this church is of great practical importance to the determinations in this case thus far. Quote, these defendants went against plaintiffs Haywood without even knowing them or their teachings, end quote. That's from the order.
Now the defendant also made this a significant issue in at least one of the pleadings as I have a copy of, and legal memorandum regarding competing First Amendment rights; says the defendant didn't -- they were picketing against his predecessor church, had absolutely nothing you do with Mr. Heywood's church.
THE COURT: So what are you saying?
MR. GRIMSRUD: Well, here's what I saw. Mr. Beck cited two examples. Here's what I saw in the deposition I sat in on this morning. There was a blanket objection to many questions relating to religious beliefs and practices. In one of those objections was, I believe, that who gave Mr. Haywood, Ken Haywood his ministry training, then there was an objection, similar objection made by plaintiffs as to who ordained him until it was revealed that I guess --
(A crucial point regarding Mr. Haywood's perjury in the first hearing where he stated that there was "no affiliation" or relationship between him and Mitchell's church in Prescott)
THE COURT: I understand that but what's your --
MR. GRIMSRUD: Well, finally, I think you can see where these objections are coming from. I believe that the question was asked, did Mr. Haywood talk with Pastor Mitchell of Prescott about this matter before deciding to commence his lawsuit? And the objection was made.
THE COURT: So you think there he should be able to -- use should be able to ask any question; right?
MR. GRIMSRUD: No, I don't think they should be able to ask any question about their religious beliefs and practices but should be able to ask questions about the connection between the two.
THE COURT: Okay, go ahead.
MR. MUCCITELLI: To me I just want to go on record that the whole purpose of this lawsuit is to silence my first amendment objections. My religious belief is in opposition to Mr. Haywood's religious beliefs. Only mine are on a picket sign, not inside a building. These are my religious beliefs as a former member of their parent organization.
We both know the same man. The man he received his ordination from is a man I've followed for 11 years. The connection is a very serious because I do know what I believe, therefore, I can stand in opposition to that under my First Amendment right. That's the whole purpose of this lawsuit is to shut me and my friends up.
MR. PALMER: Your Honor, can I suggest-- I suggested under the deposition that it's very hard to frame my objections to the countless questions that can be asked, you know, spiritual matters and issues in this lawsuit. We may not have a problem with answering some of them, others that we don't see any connection to whatsoever, and we understand that it puts the court in a very difficult position to try --
THE COURT: It doesn't put me out all. I just think whole action is ridiculous; both sides. (Flournoy was now shouting)
MR. PALMER: Okay. What --
THE COURT: I think it is a waste of time, but go-ahead.
MR. PALMER : What I suggested to Mr. Beck, if they want to ask questions about spiritual beliefs, practices --
THE COURT: Let me ask you this. (shouting) You got your injunction, in fact, I extended it 30 yards. I marked It off myself. I was going to go just to a dentist's office at Rose and Fourth, but the dentist's office -- he's not listed so I looked them up in the book. I didn't write the name down. I extended 30 yds to the corner of Rose and Fourth, so you've got that. These people do have a right to picket somewhere. Maybe that's too far. Maybe it isn't. That's what I thought was fair and reasonable
. But you have this lawsuit to you have filed against them. And so what you've done, if you want to dismiss your lawsuit with the exception of the injunctive relief sought, you can do that. You don't have to go through all this. But I think that they have the right, even know I personally believe that this is an action that people should get together and they should settle it. If there's been money paid and it's been improperly used, that should be accounted for.
The evidence is that this went into a predecessor church. Might be the same, the victory Chapel or Potters House, I wasn't really clear which. I state by doing this you've opened the door and I think it will really probably -- you know, if you asked some appeal court they'd say, you could ask almost any question in deposition -- sometimes in personal injury action you could ask ridiculous questions about people that have no relevance whatsoever to the lawsuit. That's allowed. I think I've got to allow them to almost -- they can ask any question they want.
(And this is what we wanted, "we can ask any question we want" of Mr. Haywood in our deposition of him)
Mr. Beck has implied he doesn't want to go into the practices. It's Mr. Muccitelli, you know, he undoubtedly wants to go into the practices. But he says he knows what the practices are.
So, what I'm asking to do, I'm going to allow them to ask any questions that are relevant to the lawsuit, with the exception of any questions relating to religious practices and beliefs. As to religion and beliefs, if there is any question in regard to that, I'll be here all afternoon, you can come over and I'll answer that question individually. You can call me. We'll have a-- get the court reporter and you can ask me that question. That may -- if you're going into this and Mr. Ledbetter brings up the word cult, I don't know what the word -- I don't know what any legal terminology for cult, you know. I don't know whether this is a church, we can get into that. But I think your going into this, I think they can ask anything.
I'll limit it to everything except religious practices and beliefs. If they feel they want to ask a question, they can call the court. I'll be here, take time, get this court reporter and asked the question. I think that's fair.
I would say I think it's in the interests of everyone to minimize what's gone on. It's been nine months or so of agony. I'm sure that if the three times a week or whatever the picketing, its agony again getting ready to go into action each time. I do think that it's to the interests of everyone to try to settle this thing. I think by, you know, allowing these questions just causes more problems, more anger. And I think what you've got to do if you what to go through this lawsuit, you got to give them a shot to answer the questions. You're going to have to tell your client to answer the questions. Again, if you think it's just religious practices or belief, then limit it.
But those may be applicable because if you're asking -- they get the signs, that money cult or whatever it is, they may be applicable. What upsets me is that I really think that this is something that does not need to be in court. It's in court and we'll handle it.
But in depositions I think you can ask almost anything. You can ask about any hair on his head if you want to; may not have any relevance. I think that's the way depositions are framed. When you go into all this, it costs each party more and more money, court reporter time and transcripts, et cetera.
I told Mr. Ledbetter the other day if you have a camera, come take pictures of the signs and I'd like a stipulation of all parties those pictures can be entered into evidence. And then you can have a sign so they can use the signs if they want to.
(In the above Flournoy gave us the right to "ask anything" for "that is the way deposition s are framed." But he said without specific examples that if religious practice came up then he would decide. Our questions did not go to that, but were honest and straightforward. What they did was further expose Mr. Haywood's perjury, and his lawyer, Mr Palmer thought such had to be stopped.)
MR. PALMER Your Honor, I believe my secretary called back and we said that if they took -- we didn't think he really had sufficient detail. We suggested -- (Palmer was flustered by Flournoy's outburst, and statements that flew in the face of his objections)
TO COURT: Just get a camera, take a picture. I don't want the signs and the clerk doesn't want the signs. (Flournoy was shouting loudly at this point. I was outside the courtroom and heard it clearly. Lou Muccitelli who was in court pro-per confirmed what I heard) I think there -- you more importantly they have the right to picket within the injunction. If they want to use those signs, they can certainly use them. I don't want to be accused of holding the signs.
MR. PALMER: We agree that they use the five so that they could blow up the photographs. That would be fine.
THE COURT: Get something.
I'll be here all afternoon if you want to ask any questions but I think it you got to tell your client they're in the middle of a lawsuit. But it would appear to me you certainly could get together on this deal. I mean -- I think the defendants have a right to find out where the money went. I don't know whether your client can answer that.
MR. PALMER: Your Honor, one thing you said, my clients church is not a successor church to their church. The Grace Fellowship here in Flagstaff is a successor church. It's my understanding that those are the people that have the books that they seek.
THE COURT: maybe I have the wrong -- hang on..
At the hearing I don't think we really went into that. I know generally it was Victory Chapel, then it was Potters House and then it was Grace Fellowship , or whatever. I further realize there is a church down in Prescott which I don't really know what the name of it is and the allegation was that this church was connected with the Prescott Church. And the testimony of the minister was he gave 10% of whatever is donated to the Prescott Church. Further, that he -- a fellow in Prescott, minister, whatever his name is -- I think there was testimony that he ordained him or he studied under or what ever. So, in any event, I think with a lawsuit you can -- you've got to answer those questions.
(Again, Flournoy loudly instructs Palmer that his client must answer our deposition questions.)
MR. PALMER: Well, the ordained -- the reason I objected, I don't want to waive my objection to the religious beliefs or practices because.
THE COURT: Yeah, but I really -- that's one reason -- sometimes you get all enthused about a case. It's kind of fun as lawyer. What I'm saying is I don't think -- I really don't think the courts are the places to play games. And I really think the attorneys can get together and ethically we can have the obligation to do what's right in a given case. You know, undoubtedly people have the right to file lawsuits in regard to the constitutional rights and the freedom of speech or the freedom to listen. I think we all have an obligation to do what's right in a case. It appears to me that there -- you can get together and settle this thing. You don't have to keep going but that's up to you. If you keep going, we'll keep having hearings. And is just a little frustrating, a case like this because I don't think it needs to be here. You're the one that filed the suit. You're the one that made the allegations, and you're the one that's going to have to answer the questions. (Flournoy shouted this demand that Palmer's client answer our questions, and possibly settle the case.)
MR. PALMER: We really haven't a chance to talk to them since you handed down the rulings about where we go. We didn't get our rulings until yesterday morning when the depositions rescheduled so (Palmer was flustered by Flournoy's outburst.)
THE COURT: How long has a deposition been going, two days?
MR. PALMER: Yeah. I mean I just -- our client is always, you know, if this court wants to have a settlement conference -- (By now, Palmer realizes that his Potters House lawsuit is in jeopardy of being tossed out, and he gets the "idea" that the Court wants a settlement. Unfortunately, so did we.)
THE COURT: I don't think I can settle it. I think the amount or what this court says, it's not going to make any difference. It's going to be up to the attorneys. And the attorneys have to convince their clients to call off the jam, not the defendants, the plaintiffs. They started -- whatever started it I won't go into, but really the picketing comes and the objection to the picketing and now we end up in court. It has its roots a long time ago. But I would really appreciate it If the attorneys would get together and saying their clients, how can we settle this? And then settle the thing. You need to settle this thing. On the other hand, you know, some cases aren't always settled. They keep going on and there is a real interesting point on the freedom of speech and the freedom of religion. I've read all those cases and I think my order is in compliance with the cases. But you've got your injunction. It may be time to sit down and say, hey, look, we want to get rid of this case. What can we do? And let them proceed what ever they want to go. Maybe this is going to end up joining other parties, the Prescott church. I don't know where they're going. I think when you file a lawsuit you've got to answer all those questions. But I'll be here. I'll limit every question that's applicable with the exception of religious practice in belief. If you want to go into that, you can call me and ask the question and I'll -- I may be right or wrong. I'll be right here tonight, too, so let me know. With that, that's it. Anything else?
MR. BECK: Not at this time.
THE COURT: See what you can do to settle it. I really serious about that. Anyway, but I understand. So long.
(whereupon, the hearing was concluded.)
(Thus this tumultuous hearing came to an end. Flournoy was very annoyed by the proceedings, of Palmer's objections to our questions, and it was amazing what transpired afterwards. Lou Muccitelli, pro-per defendant came out smiling with a thumbs up signal, and the looks on the faces of our lawyers showed hope. Palmer and his clients came out very badly in this hearing. The settlement came after nearly 6 more months of negotiation. Back and forth, with the Court hounding for a settlement all the way, we debated the terms. At first Potters House wanted us to accept Flournoy's injunction and their demand that we admit to guilt for all of the charges in the initial complaint.
We refused, we would not accept any admission of guilt.
We would, however, agree to the terms of the injunction and no more. 130 yards distance from their "church" and 1/4th mile from the pastor's residence. And one term that was still up in the air was "award of attorney fees."
The issue of award of fees was to be left to Flournoy. Our attorneys were certain that this would be a wash. In other words they felt that Flournoy would not award any attorney fees other than what each party had already expended.
Six months later The settlement was rendered, neither party admitted to any guilt, and it was signed, sealed and delivered to the Court.
Flournoy then did the unthinkable. HE HIT US WITH ALL OF HAYWOOD'S ATTORNEY FEES as if we were GUILTY OF ALL OF THE PLAINTIFF'S CHARGES!
Is this an out of court agreement? Similar to the ones that Flournoy was suspended from the bench for? And this was also at the same time that Flournoy was battling to hold his position on the bench.
To see the details ClickFLOURNOY (then use the BACK button to return to this page)
Did Flournoy, in an "out of court agreement" (one of the things that he was dismissed from the bench for) tell Palmer something like this:
"You settle, Palmer, and leave the rest to me."
What do you think?
NEVER, IF YOU ARE SUED BY POTTERS HOUSE SETTLE WITH THEM!
If you are innocent of the charges, stay the course; have at it, for it is better to go through the Courts and have an impartial jury to decide, than to be railroaded by a gangster organization built upon lies and deceit who have a not so impartial judge in their hip pocket.