UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

 _________________

Satanic Temple, et al., )

 )

 Plaintiffs, ) CV 18-00621-PHX-DGC

 )

 vs. ) Phoenix, Arizona

 ) January 23, 2020

City of Scottsdale, et al., ) 8:45 a.m.

 ) 

 Defendants. )

_____________________________________)

BEFORE: THE HONORABLE DAVID G. CAMPBELL, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BENCH TRIAL DAY 2

Official Court Reporter:

Patricia Lyons, RMR, CRR

Sandra Day O'Connor U.S. Courthouse, Ste. 312

401 West Washington Street, SPC 41

Phoenix, Arizona 85003-2150

(602) 322-7257

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared with Computer-Aided Transcription

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 1 of 255
 264

A P P E A R A N C E S

For the Plaintiffs: 

Kezhaya Law, PLC

By: MATTHEW A. KEZHAYA, ESQ.

1202 NE McClain Rd 

Bentonville, AR 72712

de Haan Law Firm, PLLC

By: STUART P. de HAAN, ESQ.

101 E. Pennington St., Ste. 201

Tucson, AZ 85701

For the Defendants:

Dickinson Wright, PLLC

By: SCOT L. CLAUS, ESQ.

By: HOLLY M. ZOE, ESQ. 

By: VAIL C.B. CLOAR, ESQ. 

1850 N. Central Ave., Ste. 1400

Phoenix, AZ 85004

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 2 of 255
 265

I N D E X 

EXAMINATION

WITNESS PAGE

BRIAN BIESEMEYER

Cross-Examination By Mr. Claus 279

Redirect Examination By Mr. de Haan 291

Examination By The Court 298

Further Examination By Mr. Claus 301

Further Examination By Mr. de Haan 302

KELLI KUESTER 

Direct Examination By Mr. Kezhaya 304

Cross-Examination By Mr. Cloar 335

Examination By The Court 346

DOUGLAS ALEXANDER MISICKO 

Direct Examination By Mr. de Haan 348

Cross-Examination By Mr. Claus 360

Redirect Examination By Mr. de Haan 440

EXHIBITS

NUMBER DESCRIPTION PAGE

3 The Satanic Temple IRS Letter 350

103 Web page of The Satanic 383

Temple Arizona - TST AZ - FAQ 

printed 09/17/19 

56 Archived Web page - 414

Fundamental Tenets of The 

Satanic Temple website, dated 

07/22/13 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 3 of 255
 266

(Index of Exhibits Continued)

EXHIBITS

NUMBER DESCRIPTION PAGE

57 Archived Web page - 414

Fundamental Tenets of The 

Satanic Temple website, dated 

08/05/13 

58 Archived Web page - 414

Fundamental Tenets of The 

Satanic Temple website, dated 

09/04/13 

59 Archived Web page - 414

Fundamental Tenets of The 

Satanic Temple website, dated 

11/03/13 

60 Archived Web page - 414

Fundamental Tenets of The 

Satanic Temple website, dated 

12/12/13 

63 Archived Web page - The 418

Satanic Temple Beliefs, dated 

04/17/14 

83 Articles of Organization for 419

The Satanic Temple, Inc., 

filed 11/14/17 

61 United Federation of Churches 438

LLC - Certificate of 

Organization 2014 (Michigan) 

filed 02/04/14 

78 United Federation of Churches 439

LLC - Annual Report for 2015 

(Michigan) filed 09/12/16 

79 United Federation of Churches 439

LLC - Annual Report for 2016 

(Michigan) filed 09/12/16 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 4 of 255
 267

(Index of Exhibits Continued)

EXHIBITS

NUMBER DESCRIPTION PAGE

81 United Federation of Churches 439

LLC - Annual Report for 2017 

(Michigan) file 04/03/17 

85 Restated Certificate of 439

Organization - United 

Federation of Churches LLC 

filed 05/21/18 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 5 of 255
 268

P R O C E E D I N G S

(Proceedings resumed in open court at 8:45 a.m.)

THE COURT: Thank you. Please be seated.

Morning, everybody.

EVERYBODY: Morning, Judge.

THE COURT: Counsel, I want to talk to you for a

minute about Exhibit 5 that I took under advisement

yesterday.

And I think this question also relates to Exhibit 8,

which I admitted, but I've come up with this question that I

want to ask you. And it's particularly addressed to

plaintiffs' counsel.

I was reminded last night as I looked at this issue

that Rule 801(d)(2), which is the provision under which I

admitted it, has a specific requirement. I admitted 8 and

I'm being asked to admit 5 under 801(d)(2)(C), namely, that

it's -- these e-mails are in effect an admission by a party

opponent, the City, because they were statements made by an

agent within the scope of their authority.

What I was reminded of is the sentence in 801(d)(2)

after subsection (E) which says "The statement must be

considered but does not by itself establish the declarant's

authority under (C)," which is the provision we're talking

0 8 : 4 7 : 5 3 about.

0 8 : 4 5 : 3 8 1

 2

 3

 4

0 8 : 4 6 : 1 6 5

 6

 7

 8

 9

0 8 : 4 6 : 3 0 10

11

12

13

14

0 8 : 4 6 : 5 8 15

16

17

18

19

0 8 : 4 7 : 2 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 6 of 255
 269

What that means, I think, is that if I'm going to

admit Exhibit 5, for example, under that provision, I need

more than Exhibit 5 showing that, in that case, Mr. Smith was

acting within the scope of his authority. Because the

statement, the exhibit, is not itself sufficient.

I looked at Weinstein's on Federal Evidence last

night and this requirement is explained in these words. It

says, "Under Rule 80(d)(2) the," and now it's just quoting

from the rule, "statement must be considered but does not by

itself establish the declarant's authority under (C)," close

quote.

And then Weinstein's goes on to say, "Thus, the

trial court will consider the declarant's statement in making

the preliminary determination of admissibility, but

independent proof of the existence of the declarant's

authority to speak for the party will also be required."

And so the question that I have for plaintiffs'

counsel is what independent proof do I have from the trial

that David Smith, for Exhibit 5, was authorized to speak on

behalf of the City of Scottsdale?

MR. KEZHAYA: Your Honor, I'll start with answering

the question. The independent proof is Councilwoman Klapp 

said essentially the city council is the board of directors

with the highest elected officials of the City.

0 8 : 4 9 : 2 4 But I do want to clarify we were proposing that the

0 8 : 4 7 : 5 3 1

 2

 3

 4

0 8 : 4 8 : 1 0 5

 6

 7

 8

 9

0 8 : 4 8 : 3 0 10

11

12

13

14

0 8 : 4 8 : 4 4 15

16

17

18

19

0 8 : 4 9 : 0 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 7 of 255
 270

Court find it under (D), not (C). (D) is the agent within

the course and scope of their agency. (C) is they're

authorized to make a statement on the subject.

THE COURT: Well, that's helpful. But that sentence

at the end goes on to apply to (D) as well.

MR. KEZHAYA: Yes, Your Honor. And it's

substantially the same.

So we all talked with multiple witnesses about the

city charter, the Court can take judicial notice of the city

charter, and the city charter designates that the city

council is the highest echelons of city government.

It's pretty clear, as the Court has already found,

that these are public officials speaking with their

constituents about matters of policy concerns. Ms. Klapp

testified "we create policy for the City."

And I don't know if that answers your question

fully, but we also had -- 

THE COURT: Go ahead.

MR. KEZHAYA: We also had testimony to the effect

from multiple witnesses, and we're going to elicit some more

from -- later today to the effect of when anyone e-mails this

citycouncil@Scottsdaleaz.gov, it goes to all of the city

council. And as can be pretty clear from the statements

themselves, what is happening is these people are e-mailing

0 8 : 5 0 : 4 9 the city council address and individual city council members

0 8 : 4 9 : 2 7 1

 2

 3

 4

0 8 : 4 9 : 4 5 5

 6

 7

 8

 9

0 8 : 4 9 : 5 9 10

11

12

13

14

0 8 : 5 0 : 1 4 15

16

17

18

19

0 8 : 5 0 : 3 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 8 of 255
 271

are responding from their own non

citycouncil@Scottsdaleaz.gov, but, for example,

KLittlefield@Scottsdaleaz.gov.

And so while the letter itself does not prove that

Councilwoman Klapp is in fact Councilwoman Klapp, it is also

not in dispute -- or not Klapp, I'm sorry, Littlefield and

Smith in the other case. It is also not a subject of dispute

whether Councilwoman Littlefield is in fact a member of the

city council, nor is it a matter of dispute whether

Councilman Smith is in fact a city council member for the

City.

Does this fully address the Court's question?

THE COURT: It's helpful, but let me ask an

additional question.

And this is going to be the question to defense

counsel as well.

MR. KEZHAYA: Yes, Judge.

THE COURT: (C), which I now understand is not your

primary argument, requires that the individual be authorized

to make a statement. The defense would argue city council

people are not authorized to make any statement on behalf of

the City unless they act as a body.

(D) is different. (D) only requires that the

individual be an agent or employee and that the individual be

0 8 : 5 2 : 0 9 speaking on a matter within the scope of that relationship

0 8 : 5 0 : 5 2 1

 2

 3

 4

0 8 : 5 1 : 0 5 5

 6

 7

 8

 9

0 8 : 5 1 : 2 4 10

11

12

13

14

0 8 : 5 1 : 3 4 15

16

17

18

19

0 8 : 5 1 : 4 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 9 of 255
 272

while it exists.

What is the basis for me to conclude that

Councilman Smith or Councilman Littlefield were either an

agent of the City of Scottsdale or an employee of the City of

Scottsdale?

MR. KEZHAYA: Klapp testified that the city council

members are paid a salary, she testified it took 25 hours per

week of her job. The city charter, which again the Court can

take judicial notice of, specifically identifies them as the

highest echelons of the City government. I really don't see

a way that the City can dispute whether the city council are

agents or employees of the City government.

With respect to these particular issues, Scot's very

antsy to jump up say, aha, but it wasn't in an open meeting.

That's a subject for the Court to determine whether or not

the open meeting specifically prohibits it and whether they

complied with the open meeting requirement.

Klapp said she had minimally heard discussions from

up to two council members on the subject, which were

definitely not a part of the open meeting. So we know some

level of discussions were going on.

From the contents of the e-mails, I think it is

pretty clear that they deliberated on this subject, albeit

off the record, and made a determination that TST is a

0 8 : 5 3 : 3 3 religion and we need to provide for that or in the

0 8 : 5 2 : 1 2 1

 2

 3

 4

0 8 : 5 2 : 2 9 5

 6

 7

 8

 9

0 8 : 5 2 : 4 4 10

11

12

13

14

0 8 : 5 3 : 0 1 15

16

17

18

19

0 8 : 5 3 : 1 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 10 of 255
 273

alternative we can remove all of the open invocation

meetings.

So I think just from the contents of the message

itself, perhaps it doesn't itself establish authority, but

from the city charter, from Klapp's testimony, from I believe

Mayor Lane's testimony as well, I think there is ample

evidence to find that in fact the city council are agents and

employees of the City, although, to me, there's really not a

legal distinction to the two of relevance here.

THE COURT: Okay. Let me ask this question of

defense counsel.

First let me check something.

This is directed, Mr. Claus, to your side. It seems

to me that subsection (C) of 801(d)(2) specifically requires

that the individual be authorized to speak. 801(d)(2)(D)

does not require that. There's nothing in the rule that says

they have to be authorized to speak. It says they have to be

an agent or employee at the time they make the statement.

My question to you is, if an individual is paid a

salary and works 25 hours a week for the City of Scottsdale,

how can I conclude that that person is not an employee of the

City?

MR. CLAUS: Three, at least three reasons,

Your Honor.

0 8 : 5 5 : 3 0 One, individuals are paid a salary to act as members

0 8 : 5 3 : 3 6 1

 2

 3

 4

0 8 : 5 3 : 4 8 5

 6

 7

 8

 9

0 8 : 5 4 : 0 8 10

11

12

13

14

0 8 : 5 4 : 5 3 15

16

17

18

19

0 8 : 5 5 : 1 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 11 of 255
 274

of the council and act as the council. That is what is

codified in the city charter in articles 6 and 7. Individual

council members cannot act individually as agents of the City

according to the city charter of the Scottsdale city

government.

Moreover, Your Honor, there is no record, there's no

evidence in this case that the e-mails that comprise

Exhibit 5 and presumably -- I'm sorry, the e-mails that are

missing from Exhibit 5 but are -- looks like it was cobbled

together, an e-mail was sent and a response was sent, and

e-mails contained in Exhibit 8 do not reflect at all that

these e-mails were sent to the body at citycouncil@az.gov.

In fact, these e-mails suggest exactly the opposite

because there is at -- in Exhibit 8, at least, there is an

e-mail and a reply.

Bennett versus Yoshina, Your Honor, the case that we

referred to, stands for the proposition that governmental

actors don't act as agents for the government within the

course and scope of their agency merely because they make

statements while they are employed by the governmental body.

Moreover, Your Honor, in Exhibit 8, Exhibit 8

demonstrates within the body of the text that Ms. Littlefield

was not speaking in the course and scope of her agency as a

councilperson. Instead, she states exactly the opposite.

0 8 : 5 7 : 2 4 She states her personal -- twice, Your Honor, she modifies

0 8 : 5 5 : 3 4 1

 2

 3

 4

0 8 : 5 5 : 5 6 5

 6

 7

 8

 9

0 8 : 5 6 : 1 7 10

11

12

13

14

0 8 : 5 6 : 4 0 15

16

17

18

19

0 8 : 5 6 : 5 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 12 of 255
 275

her statement with the word "personally." Not as a

councilmember, not as a council, not within the course and

scope of her agency as council, but states it clearly as

being something she believes personally.

What Suzanne Klapp testified to is that individual

councilmembers do not have to check their personal opinions

or personal beliefs at the door when they agree to become a

councilmember.

When they act as a legislative body for the City,

they act as a whole, not individually. There is no

demonstration in these e-mails whatsoever, and there is

certainly no evidence that has been presented by the

plaintiffs that any of these statements were made on behalf

of the City, as an agent for the City, or, and this is what's

most important, Your Honor, within the course and scope of

that agency because there is no -- honestly, Your Honor,

there is no evidence in the record that David Smith was a

councilmember. We're not disputing that David Smith was a

councilmember at some point. I honestly don't know if he was

a councilmember on -- what is the date of this e-mail --

5/23/2016. He likely may have been.

But I have no idea if this e-mail, and you have no

idea, which is most important, whether this e-mail was sent

from a personal e-mail account, governmental e-mail account,

0 8 : 5 9 : 1 3 and what you do know, Your Honor, is that this e-mail bears

0 8 : 5 7 : 3 0 1

 2

 3

 4

0 8 : 5 7 : 5 0 5

 6

 7

 8

 9

0 8 : 5 8 : 1 0 10

11

12

13

14

0 8 : 5 8 : 3 1 15

16

17

18

19

0 8 : 5 8 : 4 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 13 of 255
 276

no indication that it was sent within the course and scope of

David Smith's agency relationship, if that agency

relationship existed.

THE COURT: Well, Exhibit 14 shows David Smith

present at city council meetings in 2016. I think that is

sufficient evidence that he was on the council.

We can talk about this a long time. Let me ask you

one specific question and get your thoughts on that.

I'm not sure 801(d)(2)(D) requires me to find that

Mr. Smith was authorized by the City to speak about it. The

question is was he an employee, which I think he was, number

one; number two, and this may be the heart of your argument,

was this matter, namely the application of the plaintiffs to

give the invocation, a matter within the scope of that

relationship? Namely, was that part of his employment

relationship with the City?

If the answer to those two questions are yes, it

seems to me (D) is satisfied and I don't have to find that he

was authorized either by the City or the city charter to

speak on its behalf because it was a matter within the scope

of his employment.

MR. CLAUS: And in fact --

THE COURT: And incidentally --

MR. CLAUS: I'm sorry. I apologize, Your Honor.

0 9 : 0 0 : 3 8 THE COURT: That's Okay.

0 8 : 5 9 : 1 7 1

 2

 3

 4

0 8 : 5 9 : 2 9 5

 6

 7

 8

 9

0 8 : 5 9 : 4 8 10

11

12

13

14

0 9 : 0 0 : 1 0 15

16

17

18

19

0 9 : 0 0 : 2 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 14 of 255
 277

The case you gave me focuses on agency. It doesn't

drill down to this specific issue. I read it last night.

But I'm interested in your thoughts on that specific one.

MR. CLAUS: Sure. I'm glad you narrowed that

question, Your Honor. Because what the evidence reflects in

this case is exactly the opposite. It compels me to answer

your question not yes, but no. Because the testimony in this

case from Mayor Lane, the testimony in this case from

Councilwoman Klapp, and the testimony that has been elicited

on direct examination from Brian Biesemeyer demonstrates

irrefutably that the question regarding who may give an

invocation and if this group may give an invocation and the

decision-making with respect to this invocation is absolutely

not within the legislative course and scope of the council or

its members. That instead, that decision was an

administrative decision made only by one person,

Brian Biesemeyer. The testimony that has been elicited from

the plaintiffs demonstrates that.

THE COURT: I understand that point.

MR. CLAUS: And, Your Honor, I do have one more case

that stands for the proposition that the body, if the body

has no knowledge of the comments, or somehow takes a position

to ratify the comments, they should not fall within

801(d)(2)(D), and it is Hernandez versus Arizona, 702 F.

0 9 : 0 2 : 2 3 Supp. 2d 1119, 1127.

0 9 : 0 0 : 3 9 1

 2

 3

 4

0 9 : 0 0 : 5 0 5

 6

 7

 8

 9

0 9 : 0 1 : 1 3 10

11

12

13

14

0 9 : 0 1 : 3 8 15

16

17

18

19

0 9 : 0 1 : 5 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 15 of 255
 278

THE COURT: Okay. I understand those points.

I want to move on. But any last comments, just so I

understand your thoughts on that specific issue we just

talked about?

MR. KEZHAYA: Your Honor, I just want to be clear

that the City is arguing that a politician is categorically

barred by the city charter from addressing constituents'

concerns about policy. That's their argument.

These are politicians. Their job is forming city

policy. Constituents raise an issue about city policy, and

councilmembers address those concerns by e-mails.

He says, well, the decision was clearly made by a

city officer, but he neglects the part where everyone's

testified that the city officer serves at the pleasure of the

council. If these e-mails get admitted, we have had four out

of seven city councilmembers who have all addressed The

Satanic Temple and said we don't like them because they're

satanists.

Would that impact the city officer's

decision-making? He testified no, but I submit that's a

subject of fact for the Court.

And as for there's no proof that this was sent to

the city council, I remind the Court the subject line of the

e-mail that we're talking about is regarding urgent message

0 9 : 0 3 : 4 5 for Mayor Jim Lane and city councilmembers. I don't see any

0 9 : 0 2 : 3 3 1

 2

 3

 4

0 9 : 0 2 : 4 2 5

 6

 7

 8

 9

0 9 : 0 2 : 5 9 10

11

12

13

14

0 9 : 0 3 : 1 6 15

16

17

18

19

0 9 : 0 3 : 2 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 16 of 255
 279

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

way that you can argue there is no evidence that this was

sent to the city council. They're arguing it, but there's

simply no basis for it.

THE COURT: Okay. Thanks for those comments. I

want to look at that case a little more closely and

801(d)(2)(D) during the break, so I'll get you a ruling later

on today.

All right. We're going to resume with the

cross-examination.

Mr. Biesemeyer, you can come back to the witness

stand. You are still under oath for purposes of the trial.

THE WITNESS: Yes, sir. 

THE COURT: And defense counsel, you can proceed

with cross-examination.

MR. CLAUS: May I approach?

THE COURT: Yes, you may.

BRIAN BIESEMEYER,

recalled as a witness herein, after having been previously 

sworn or affirmed, was examined and testified as follows: 

C R O S S - E X A M I N A T I O N 

BY MR. CLAUS: 

Q Mr. Biesemeyer, good morning.

The courtroom deputy is handing you an exhibit that

we'll talk about a little bit later. I just wanted you to

0 9 : 0 5 : 0 8 have it in front of you.

0 9 : 0 3 : 4 9 1

 2

 3

 4

0 9 : 0 3 : 5 7 5

 6

 7

 8

 9

0 9 : 0 4 : 1 1 10

11

12

13

14

0 9 : 0 4 : 4 2 15

16

17

18

19

1 1 : 1 9 : 0 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 17 of 255
 280

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

Mr. Biesemeyer, could you please explain to the Court

what your current position is with the City?

A I'm the executive director for Scottsdale Water.

THE COURT: Hold on just a minute. Let's make sure

that mic's working.

THE WITNESS: Hello?

THE COURT: Yeah, we're turning it on.

THE COURTROOM DEPUTY: Turning it off and on again.

Try tapping it.

THE WITNESS: Testing, testing.

THE COURTROOM DEPUTY: Try again now.

THE WITNESS: Hello.

THE COURT: Okay. Let's start over again.

MR. CLAUS: Thank you, Your Honor.

BY MR. CLAUS: 

Q Good morning, Mr. Biesemeyer. I'm still Scot Claus. I

still represent the City of Scottsdale.

Can you please explain to the Court what your current

position is with the City.

A I'm the executive director for Scottsdale Water.

Q You are no longer acting city manager; is that correct?

A I'm no longer.

Q When you were acting city manager, did you have all of the

powers and responsibilities of the city manager under the

0 9 : 0 6 : 1 4 Scottsdale city charter?

0 9 : 0 5 : 1 0 1

 2

 3

 4

0 9 : 0 5 : 2 0 5

 6

 7

 8

 9

0 9 : 0 5 : 3 5 10

11

12

13

14

0 9 : 0 5 : 5 1 15

16

17

18

19

0 9 : 0 6 : 0 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 18 of 255
 281

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

A I did.

Q Did you familiarize yourself with the powers and duties of

the city manager of the Scottsdale city charter before

accepting the position of acting city manager?

A I did.

Q Is it accurate that you served as acting city manager on

two different occasions?

A That's correct.

Q Can you tell the Court when the first occasion was?

A The first was the summer of 2014, I believe. Let me get

my -- backtrack that. The city manager, Fritz Behring, had a

stroke in that first summer, and I served for three months as

he recovered from his stroke.

Q And then when did you become acting city manager again?

A And then that would have been -- I -- in 2015 again, he

had another stroke, and then I again stepped in as acting city

manager.

Q How long did you hold that position as acting city

manager?

A The second time was for 19 months.

Q You were acting city manager in February of 2016?

A I was.

Q And in -- up through at least May 23 of 2016?

A I was.

0 9 : 0 7 : 3 3 Q Under the Scottsdale city charter, are the powers and

0 9 : 0 6 : 1 6 1

 2

 3

 4

0 9 : 0 6 : 2 6 5

 6

 7

 8

 9

0 9 : 0 6 : 3 5 10

11

12

13

14

0 9 : 0 7 : 0 2 15

16

17

18

19

0 9 : 0 7 : 1 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 19 of 255
 282

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

duties of the city manager different from the powers and

duties of the mayor?

A Yes. They are.

Q Are the powers and duties of the council different under

the Scottsdale city charter from the duties of the city

manager?

A They are.

Q Under Article III Section 2 of the Scottsdale city

charter, when you were acting as city manager, sir, were you

the chief executive of the administrative branch of city

government?

A I was.

Q Were you, as the city manager, responsible for the proper

administration of all affairs of the City --

A Well -- 

Q -- not otherwise assigned by the charter to another

officer?

A Yes.

Q From January 2016 -- you were asked by Mr. de Haan about

decisions. Is there a distinct difference between the council

enacting legislative policy determinations and the city

manager making administrative decisions?

A Very clearly.

Q Does the city council direct your administrative decisions

0 9 : 0 9 : 0 7 as city manager?

0 9 : 0 7 : 3 7 1

 2

 3

 4

0 9 : 0 7 : 5 0 5

 6

 7

 8

 9

0 9 : 0 8 : 0 9 10

11

12

13

14

0 9 : 0 8 : 2 2 15

16

17

18

19

0 9 : 0 8 : 4 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 20 of 255
 283

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

A They do not.

Q Does the mayor direct your administrative decisions as

city manager?

A The mayor does not.

Q The decision that -- did you make the decision to send a

denial to the organization calling itself The Satanic Temple

regarding an invocation request in May 2016?

A I did.

Q Was that an administrative decision that you made?

A It was.

Q Was anyone other than the city manager -- did anyone other

than the city manager have the power or duty to make that

decision?

A No.

Q You were asked a lot about the council, acting at the

pleasure of the council and the mayor. I'm going to ask you a

question that it's safe to answer since -- you're no longer a

city manager; correct, sir?

A Yes, that's correct.

Q Was it -- did you even ask to be considered to be city

manager when that position was posted?

A I did not.

Q Did you care what the mayor and council thought about your

administrative decision to deny the invocation request?

0 9 : 1 0 : 4 8 A I did not.

0 9 : 0 9 : 1 1 1

 2

 3

 4

0 9 : 0 9 : 1 9 5

 6

 7

 8

 9

0 9 : 0 9 : 4 2 10

11

12

13

14

0 9 : 1 0 : 0 4 15

16

17

18

19

0 9 : 1 0 : 3 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 21 of 255
 284

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

Q There's been testimony about how unique this situation

was. I want to talk to you about that.

Prior to learning that an organization calling itself

The Satanic Temple had sought to give an invocation, had you

ever been faced as acting city manager with having to make a

decision whether to allow a Tucson-based organization to give

an invocation?

A I had not.

Q Are you aware of any charter provision which vested in any

officer, other than you, the responsibility to determine

whether to allow a Tucson-based organization to give an

invocation?

A Could you say that again? I'm sorry.

Q Sure. Are you aware of any charter provision which vested

in any other officer of the City, other than you as acting

city manager, the power or responsibility to determine whether

to allow a Tucson-based organization to give an invocation?

A No.

Q When you made the decision to inform -- to direct

Kelli Kuester to inform Jeremy Zarzycki that the organization

calling itself The Satanic Temple would not be permitted to

give an invocation, were you influenced at all in your

decision-making process by Mayor Lane's campaign material?

A I've not even seen his campaign material.

0 9 : 1 2 : 3 3 Q That was going to be my next question, Mr. Biesemeyer.

0 9 : 1 0 : 5 5 1

 2

 3

 4

0 9 : 1 1 : 1 2 5

 6

 7

 8

 9

0 9 : 1 1 : 3 2 10

11

12

13

14

0 9 : 1 1 : 4 7 15

16

17

18

19

0 9 : 1 2 : 0 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 22 of 255
 285

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

Had you even seen Mayor Lane's campaign material at the time

you made your decision?

A I had not.

Q Do you care about politicians' campaign material when

you're fulfilling your role as the chief executive

administrative officer for the City of Scottsdale?

A No.

Q Were you influenced -- I'll ask it the reverse way this

time. Had you read at all any editorial opinion post by

Suzanne Klapp before you made your decision?

A I did not.

Q Were you influenced at all by any editorial opinion

written by Suzanne Klapp in making your administrative

decision to deny the invocation?

A No.

Q Did anyone describe to you the personal opinions held by

Ms. Klapp before you made your decision to deny the

invocation?

A Not her personal opinions.

Q Were you influenced at all by the mayor of Scottsdale,

Jim Lane, in making your administrative decision as chief

executive officer of the City of Scottsdale in denying the

invocation requested by one of the plaintiff representatives?

A No.

0 9 : 1 4 : 0 5 Q Were you influenced at all by the city council as a body

0 9 : 1 2 : 3 5 1

 2

 3

 4

0 9 : 1 2 : 4 5 5

 6

 7

 8

 9

0 9 : 1 3 : 0 9 10

11

12

13

14

0 9 : 1 3 : 2 5 15

16

17

18

19

0 9 : 1 3 : 4 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 23 of 255
 286

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

or any individual city councilmember in making your

administrative decision?

A No.

Q Had anyone delivered or described to you the contents of

any discrete e-mails sent to a member of the city council

before you made your decision?

A No.

Q Had anyone described or delivered to you any e-mails

written by personal city councilmembers before you made your

decision?

A No.

Q I want to have you explain to the Judge why you made the

decision you made. Can you please explain to the Judge what

you did to determine that the City had a long-standing

practice of only permitting faith-based organizations with

substantial connections to the City of Scottsdale to give an

invocation?

A I asked for research to be done, the city attorney's

office did that, on our past practices to get an understanding

what the City had done in the long term given my experience

was limited in the position.

When that research came back, it said that the

invocations were given with organizations that had

substantial ties to the City of Scottsdale.

0 9 : 1 5 : 4 2 I made the decision based on that long-standing

0 9 : 1 4 : 1 0 1

 2

 3

 4

0 9 : 1 4 : 2 6 5

 6

 7

 8

 9

0 9 : 1 4 : 4 4 10

11

12

13

14

0 9 : 1 5 : 0 4 15

16

17

18

19

0 9 : 1 5 : 2 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 24 of 255
 287

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

practice.

Q The phrase substantial connection, did that mean that the

organization had to have an address in Scottsdale?

A No.

Q Did the substantial connection mean that the organization

had to have physical location within the geographic limits of

Scottsdale?

A No.

Q When you made the decision, what did you think substantial

connection meant?

A In the -- generally in the metropolitan area and with a

substantial number of citizens in Scottsdale that had

affiliation with that organization.

Q Are you familiar with the intersection of Scottsdale Road

and McDonald?

A I am.

Q Does it surprise you that an organization with an address

at the intersection of Scottsdale Road and McDonald, while

technically within the confines of Paradise Valley, has a

substantial connection to the City of Scottsdale?

A That would not surprise me.

Q So we talked about and I asked you to explain to the Judge

the first part of your decision-making process and what you

did to reach that decision. I want to try to talk about the

0 9 : 1 7 : 1 3 second part.

0 9 : 1 5 : 4 7 1

 2

 3

 4

0 9 : 1 5 : 5 7 5

 6

 7

 8

 9

0 9 : 1 6 : 1 2 10

11

12

13

14

0 9 : 1 6 : 3 8 15

16

17

18

19

0 9 : 1 6 : 5 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 25 of 255
 288

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

What resources did you use to try and figure out if

the organization that had requested to give an invocation had

a substantial connection to the City of Scottsdale in this

case?

A I, again, asked the city attorney's office to do that, as

I would ask many different parts of our organization to

research things on my behalf in other decisions.

Q And what was the determination after you had that

investigation performed with respect to the organization

calling itself The Satanic Temple? Did -- was there a

determination that that organization lacked any connection to

the City of Scottsdale?

A That was --

MR. de HAAN: Objection. Hearsay.

THE COURT: Hold on just a minute.

Overruled.

BY MR. CLAUS: 

Q Was the determination that that organization lacked any

connection to the City of Scottsdale?

A That was the determination.

Q And is that why you directed Kelli Kuester to write

Jeremy Zarzycki an e-mail May 23, 2016, to deny the

invocation?

A It was.

0 9 : 1 8 : 3 2 Q I keep saying the invocation. And I've had Exhibit 4 put

0 9 : 1 7 : 1 4 1

 2

 3

 4

0 9 : 1 7 : 3 1 5

 6

 7

 8

 9

0 9 : 1 7 : 5 0 10

11

12

13

14

0 9 : 1 8 : 0 3 15

16

17

18

19

0 9 : 1 8 : 1 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 26 of 255
 289

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

in front of you. Exhibit 4 is in evidence. Can you please

take a look at it.

Did any, anyone, connected with the plaintiff ever

deliver to you Exhibit 4?

A No.

Q Did anyone connected with the plaintiff ever describe to

you the contents of Exhibit 4?

A No.

Q Did anyone connected with the plaintiff tell you one word

about the viewpoint held by someone named Michelle Shortt?

A No.

Q Did anyone connected with the plaintiff ever tell you one

word about the viewpoint or belief that Ms. Shortt wished to

share during something that they called an invocation?

A No.

Q Did you know from any other source what the beliefs of any

plaintiffs were before you made your decision?

A Other than what was in the general press, no.

Q And did the general press tell you the viewpoints that

Ms. Shortt wished to share?

A No.

Q Did you know anything -- did anyone in the City of

Scottsdale tell you any beliefs that Ms. Shortt wished to

promote or describe during anything before a city council

0 9 : 2 0 : 1 5 meeting?

0 9 : 1 8 : 3 8 1

 2

 3

 4

0 9 : 1 8 : 5 7 5

 6

 7

 8

 9

0 9 : 1 9 : 1 2 10

11

12

13

14

0 9 : 1 9 : 3 4 15

16

17

18

19

0 9 : 1 9 : 5 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 27 of 255
 290

CROSS-EXAMINATION (CONT'D) - BRIAN BIESEMEYER

That was a terrible question. I'm going to strike my

own question and withdraw it.

Did anyone connected with the City of Scottsdale

describe to you any belief or viewpoint that Ms. Shortt

intended to share before you made your decision?

A No.

Q Now, the last thing I want to talk to you about is what

happened after May 23, 2016.

After May 23, 2016, did any representative of any

plaintiff contact you orally or by e-mail to try and explain

to you that the plaintiffs in this case actually did have any

connection to the City of Scottsdale?

A No.

Q Did Michelle Shortt ever contact you by e-mail, orally, or

any other communication to try and describe to you after

May 23, 2016, how she had or her organization had a

substantial connection to the City of Scottsdale?

A No.

Q Did Michelle Shortt ever contact you at all?

A No, not at all.

Q If the plaintiffs' organization had demonstrated to you

that they had a substantial connection to the City of

Scottsdale, you would have made a different decision; correct? 

MR. de HAAN: Objection. Leading.

0 9 : 2 2 : 0 9 THE COURT: Sustained.

0 9 : 2 0 : 1 6 1

 2

 3

 4

0 9 : 2 0 : 3 1 5

 6

 7

 8

 9

0 9 : 2 0 : 5 8 10

11

12

13

14

0 9 : 2 1 : 3 1 15

16

17

18

19

0 9 : 2 1 : 5 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 28 of 255
 291

REDIRECT EXAMINATION - BRIAN BIESEMEYER

BY MR. CLAUS: 

Q If the plaintiffs' organization had demonstrated to you

that they had a substantial connection to the City of

Scottsdale, would you have made a decision different than the

one you made?

MR. de HAAN: Objection. Calls for speculation.

THE COURT: Overruled.

THE WITNESS: Yes.

MR. CLAUS: That's all, Your Honor.

THE COURT: Redirect?

MR. de HAAN: Yes, Your Honor.

R E D I R E C T E X A M I N A T I O N 

BY MR. de HAAN: 

Q So the invocations, the invocation system, so to speak,

this long-standing practice of having invocations, was

essentially an all-comer system; is that fair to say?

A It was, as the parameter stated, with the substantial

connection to Scottsdale, but --

Q But that was never on the books or anything like that?

A That was not.

Q And there was no rule prohibiting groups from requesting?

A No.

Q Okay. So there was no policy made until May 23rd, 2016?

A There was no policy made.

0 9 : 2 3 : 3 6 Q Okay. And this is only after one specific group requested

0 9 : 2 2 : 1 1 1

 2

 3

 4

0 9 : 2 2 : 2 2 5

 6

 7

 8

 9

0 9 : 2 2 : 3 1 10

11

12

13

14

0 9 : 2 2 : 5 2 15

16

17

18

19

0 9 : 2 3 : 1 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 29 of 255
 292

REDIRECT EXAMINATION - BRIAN BIESEMEYER

it?

A Well, it was no policy made before or after. It was a

adherence to long-standing practice.

Q And the person that was to schedule these invocations was

Kelli Kuester?

A Yes.

Q And she's from the mayor's office?

A Yes.

Q So when you denied this group from giving an invocation,

that was basically overriding the decision of the mayor's

office?

MR. CLAUS: Objection, Your Honor. Leading and

lacks foundation.

THE COURT: Overruled.

THE WITNESS: I'm sorry, say that again.

BY MR. de HAAN: 

Q So when this group was denied the invocation based on the

decision that you made, this was essentially overriding a

decision made by someone out of the mayor's office?

A No. The mayor's office would schedule those. If there's

a controversy, they come to the city manager for that issue.

For a decision.

Q So essentially that's what happened, though. You -- the

decision was made to schedule them, and then they were

0 9 : 2 4 : 3 6 uninvited based on your decision.

0 9 : 2 3 : 3 9 1

 2

 3

 4

0 9 : 2 3 : 5 3 5

 6

 7

 8

 9

0 9 : 2 4 : 0 1 10

11

12

13

14

0 9 : 2 4 : 0 8 15

16

17

18

19

0 9 : 2 4 : 2 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 30 of 255
 293

REDIRECT EXAMINATION - BRIAN BIESEMEYER

A That's -- that's not exactly. They were -- they requested

it, and then with a conflict and requested a separate second

date, and it's when the second date occurred that they were

denied.

Q After they were already scheduled the second date?

A I don't know that.

Q Okay. Now, do you recall we did a deposition on

November 30th, 2018?

A Yes.

Q Do you recall that I asked you was there any investigation

of any groups such as what their community ties were that you

know of? Do you remember being asked that?

A I thought that was --

MR. CLAUS: This is improper impeachment.

THE COURT: How is it improper?

MR. CLAUS: Because he's reading from a deposition

and he hasn't established the predicate for impeaching the

witness with deposition testimony.

THE COURT: Overruled.

THE WITNESS: I'm sorry, state again.

BY MR. de HAAN: 

Q Do you recall being asked before if there was an

investigation about where these groups were?

A I recall being asked if I personally conducted one.

0 9 : 2 5 : 5 2 Q Do you remember saying that there was no investigation per

0 9 : 2 4 : 4 0 1

 2

 3

 4

0 9 : 2 5 : 0 2 5

 6

 7

 8

 9

0 9 : 2 5 : 1 4 10

11

12

13

14

0 9 : 2 5 : 3 0 15

16

17

18

19

0 9 : 2 5 : 4 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 31 of 255
 294

REDIRECT EXAMINATION - BRIAN BIESEMEYER

se that you know of?

A Oh, into -- I'm sorry --

MR. CLAUS: Objection, Your Honor. Misstates -- if

counsel is going to read from a deposition, the witness

should be given a copy of it. And I'm telling you, it is

misleading because it misstates the deposition testimony.

THE COURT: Well, it is fair that he be shown the

deposition testimony if you're asking about it.

MR. de HAAN: May I approach?

THE COURT: Yeah. Do you have a copy for yourself

and for him?

MR. de HAAN: I do.

BY MR. de HAAN: 

Q Mr. Biesemeyer, if I could direct you to page 8.

THE COURT: Please identify the date of the

deposition.

BY MR. de HAAN: 

Q And Mr. Biesemeyer, are you looking at what was handed to

you?

A I am.

Q Do you recognize that?

A Yes.

Q And could you describe what that is?

A States the deposition of Brian Kevin Biesemeyer dated

0 9 : 2 7 : 0 7 November 30th, 2018.

0 9 : 2 5 : 5 4 1

 2

 3

 4

0 9 : 2 6 : 0 2 5

 6

 7

 8

 9

0 9 : 2 6 : 1 4 10

11

12

13

14

0 9 : 2 6 : 4 9 15

16

17

18

19

0 9 : 2 6 : 5 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 32 of 255
 295

REDIRECT EXAMINATION - BRIAN BIESEMEYER

Q Could I direct you to page 8.

THE COURT: Excuse me, was that -- did you say 2018

or '19?

THE WITNESS: This says 2018.

THE COURT: Is that the correct date?

MR. de HAAN: That's correct.

THE COURT: Okay.

BY MR. de HAAN: 

Q If I could have you read from line 3.

A Line 3, page 8. "Question: Okay. Now, as far as who

participated, was there any investigation of any groups such

as what their community ties were that you know of?"

MR. CLAUS: And, Your Honor, there's an objection

that was lodged because --

THE COURT: What's the objection?

MR. CLAUS: The objection that was lodged was an

objection to foundation and objection to preserve the form.

The question asks who participated. Was there any

investigation of any groups? There's no foundation as to

what groups Mr. de Haan was talking about.

THE COURT: All right. That objection is overruled.

THE WITNESS: Sorry --

BY MR. de HAAN: 

Q You can continue from after the objection.

0 9 : 2 8 : 1 9 A Yeah. The witness, myself: "I know of no investigation

0 9 : 2 7 : 0 9 1

 2

 3

 4

0 9 : 2 7 : 2 0 5

 6

 7

 8

 9

0 9 : 2 7 : 3 3 10

11

12

13

14

0 9 : 2 7 : 5 1 15

16

17

18

19

0 9 : 2 8 : 0 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 33 of 255
 296

REDIRECT EXAMINATION - BRIAN BIESEMEYER

per se but all the groups that I witnessed had a connection to

the City of Scottsdale during that time, had a substantial

connection to the City of Scottsdale at that time."

Q And then -- 

A Keep reading?

Q -- what's the next question? 

Sure.

A "How do you know that?

"Answer: They were either located in Scottsdale or

I can't say either located in Scottsdale or represented or

were nearby and represented in Scottsdale. As far as I know,

when I was there, all of them were actually in Scottsdale. I

don't recall it even outside Scottsdale during that time."

Q So a couple things.

Today you are saying that there was an investigation.

A There was an investigation into our past practices.

Q And that included your saying where they were located.

MR. CLAUS: Objection, Your Honor, vague. It's

almost leading.

THE COURT: Overruled.

THE WITNESS: Yes.

BY MR. de HAAN: 

Q Okay. So this -- this wasn't a decision you made just by

yourself?

0 9 : 2 9 : 2 5 A It was a decision I made by myself. I didn't make it

0 9 : 2 8 : 2 4 1

 2

 3

 4

0 9 : 2 8 : 3 4 5

 6

 7

 8

 9

0 9 : 2 8 : 4 1 10

11

12

13

14

0 9 : 2 9 : 0 1 15

16

17

18

19

0 9 : 2 9 : 1 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 34 of 255
 297

REDIRECT EXAMINATION - BRIAN BIESEMEYER

without information.

Q And as it turns out, not all of these were located in

Scottsdale or they -- in other churches of people that gave

invocations?

A They were not.

MR. de HAAN: If I may have just a moment,

Your Honor.

THE COURT: You may.

BY MR. de HAAN: 

Q So it wasn't common practice that the people who give

invocations would submit to you their community ties?

A No.

Q And it wasn't practice that they would show you what the

invocation was ahead of time?

A No.

Q And that was never -- that was never a factor in deciding

who could give the invocation?

A It was not.

Q And you don't know the source of the list that these

invocations came from?

A I personally do not.

Q And this all occurred after at least one city

councilmember said they had concerns about that particular

group's invocation?

0 9 : 3 1 : 0 9 A If you're discussing the conversation I had with

0 9 : 2 9 : 2 8 1

 2

 3

 4

0 9 : 2 9 : 3 7 5

 6

 7

 8

 9

0 9 : 3 0 : 1 9 10

11

12

13

14

0 9 : 3 0 : 3 0 15

16

17

18

19

0 9 : 3 0 : 5 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 35 of 255
 298

EXAMINATION - BRIAN BIESEMEYER

Suzanne Klapp, that's correct.

Q Okay. And why was there an investigation?

A I'm sorry, into?

Q Why was there an investigation into this one particular

group?

A Why wasn't there an investigation prior to the decision

or -- 

Q Why was there only an investigation about one group that

asked to give an invocation?

A Because it seemed to be out of the norm of our normal

operation.

Q Okay.

MR. de HAAN: Nothing further.

E X A M I N A T I O N 

BY THE COURT: 

Q I have a couple of questions for you, Mr. Biesemeyer.

On that last question that was asked by plaintiffs'

counsel as to why the investigation occurred, could you

explain to me the events that led up to your feeling that you

needed to make a decision on this? Why did it land on your

desk for you to make a decision?

A Again, because it seemed very out of the normal for

someone from Tucson to give an invocation. Obviously there

was a lot of conflict in the community on this as well. So it

0 9 : 3 2 : 5 9 looked like we should look into that. I've not seen any

0 9 : 3 1 : 1 3 1

 2

 3

 4

0 9 : 3 1 : 3 8 5

 6

 7

 8

 9

0 9 : 3 1 : 5 3 10

11

12

13

14

0 9 : 3 2 : 0 0 15

16

17

18

19

0 9 : 3 2 : 3 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 36 of 255
 299

EXAMINATION - BRIAN BIESEMEYER

groups that were not connected either in Scottsdale or well

connected with Scottsdale give invocations. Seemed like we

should look into what we had been doing over a longer history

than my experience as city manager.

Q What do you mean when you said there was a lot of conflict

in the community on this as well?

A As evidenced by the e-mails that had been -- the many,

many e-mails that were coming in to the city manager office --

or, I'm sorry, the mayor's office.

Q And what did you understand those e-mails to be saying?

A I'd understood that they were on both sides of the issues,

but they were just very numerous and very passionate.

Q How did you learn about those e-mails?

A From Ms. Kuester. From Kelli.

Q Did you ever review the e-mails?

A I did not.

Q You mentioned that in response to the cross-examination

questions that you did not know the beliefs of any of the

plaintiffs except for what was in the general press. What was

in the general press that you read before this decision about

the plaintiffs or their beliefs?

A Only in their -- only the mention that they were from

Tucson and that it was The Satanic Temple. Not specific to

their beliefs. Mostly just the name.

0 9 : 3 5 : 0 3 Q You indicated that you had a conversation with

0 9 : 3 3 : 0 3 1

 2

 3

 4

0 9 : 3 3 : 1 9 5

 6

 7

 8

 9

0 9 : 3 3 : 3 8 10

11

12

13

14

0 9 : 3 4 : 1 5 15

16

17

18

19

0 9 : 3 4 : 3 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 37 of 255
 300

EXAMINATION - BRIAN BIESEMEYER

Councilman Klapp.

A Yes, sir.

Q What did she say to you about this issue that you could

recall?

A That she objected to the City allowing The Satanic Temple

to give an invocation.

Q Did she explain why?

A She did not.

Q Did she say anything else about her views or feelings?

A No.

Q Did she suggest in that conversation what decision you

should make?

A No. She gave me her opinion that we should not.

Q Was it unusual for a councilwoman or a councilman to be

expressing opinions to you on matters of city administration?

A It was not unusual. They would express their opinions,

pro or con, on decisions I would make. It was not uncommon

for them to call me and -- and this conversation occurred

within a number of different issues that the councilwoman was

concerned about.

Q What was your general view of what you, as the city

manager, should do with those opinions that were expressed to

you by members of the council?

A Generally I try to explain the process that we have in

0 9 : 3 6 : 4 3 place, how we are going about doing that, and that if there

0 9 : 3 5 : 0 7 1

 2

 3

 4

0 9 : 3 5 : 1 8 5

 6

 7

 8

 9

0 9 : 3 5 : 3 2 10

11

12

13

14

0 9 : 3 6 : 0 6 15

16

17

18

19

0 9 : 3 6 : 2 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 38 of 255
 301

FURTHER EXAMINATION - BRIAN BIESEMEYER

was any concerns about that, how council might want to address

that through policy.

Q Did you have that kind of a discussion with Ms. Klapp

about this specific issue?

A Not on this specific issue, no, sir.

THE COURT: Okay. Thanks. You can step down.

MR. CLAUS: May I follow up on your question? Just

that one last question, Your Honor.

THE COURT: Yeah, you can. I'll let them follow up

as well.

MR. CLAUS: Thank you. That's all right.

F U R T H E R E X A M I N A T I O N 

BY MR. CLAUS: 

Q I'm going to ask the question more bluntly than His Honor

did, Mr. Biesemeyer.

Did the council contain seven individuals with

different personalities who expressed different opinions to

you all the time about all sorts of things; correct?

A Yes.

Q Could you do your job as city manager if you cared about

or reacted to all of the myriad opinions that were expressed

to you by city councilmembers on a variety of topics?

A I could not.

Q I'm going to ask it bluntly. Did you -- did you care if

0 9 : 3 8 : 0 6 the decision you made upset or displeased any individual

0 9 : 3 6 : 5 0 1

 2

 3

 4

0 9 : 3 7 : 0 3 5

 6

 7

 8

 9

0 9 : 3 7 : 1 4 10

11

12

13

14

0 9 : 3 7 : 2 2 15

16

17

18

19

0 9 : 3 7 : 3 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 39 of 255
 302

FURTHER EXAMINATION - BRIAN BIESEMEYER

councilmember?

A No.

MR. CLAUS: That's all, Your Honor.

THE COURT: Plaintiffs' counsel.

F U R T H E R E X A M I N A T I O N 

BY MR. de HAAN: 

Q After the Court asked, you said, "We thought it was

necessary to investigate. We felt compelled to investigate."

Who is "we"?

MR. CLAUS: Your Honor, this is outside of the scope

of your question and it's outside of the scope --

THE COURT: Overruled.

THE WITNESS: I guess I used -- well, would have

been myself and in discussion -- when -- the discussion I had

with the city attorney.

BY MR. de HAAN: 

Q And this is after the mayor's office told you about the

15,000 e-mails?

A Yes.

Q So you had been communicating with Ms. Klapp and the

mayor's office.

A I've been communicating --

Q About this issue specifically.

A About -- there were some conversations about the issue,

0 9 : 3 9 : 2 8 yes.

0 9 : 3 8 : 1 2 1

 2

 3

 4

1 1 : 1 9 : 0 9 5

 6

 7

 8

 9

0 9 : 3 8 : 4 4 10

11

12

13

14

0 9 : 3 9 : 0 4 15

16

17

18

19

0 9 : 3 9 : 1 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 40 of 255
 303

FURTHER EXAMINATION - BRIAN BIESEMEYER

Q And the conversation you had with Klapp now you're saying

is she specifically told you she objected to this invocation

being scheduled?

A That's correct.

Q Were there any communications with the mayor about this?

A No.

Q But it was the mayor's office that told you about the

community objections to this invocation?

A They told me about the numerous e-mails coming in.

Q And was this all verbal communication?

A Yes. Either verbally or via telephone.

Q Via telephone. Okay.

MR. de HAAN: Nothing further.

THE COURT: Okay. Thank you, sir, you can step

down.

THE WITNESS: Thank you.

THE COURT: All right. Plaintiffs' next witness.

MR. KEZHAYA: Kelli Kuester, Your Honor.

THE COURTROOM DEPUTY: Raise your right hand.

KELLI KUESTER,

called as a witness herein, after having been sworn or 

affirmed, was examined and testified as follows: 

THE COURTROOM DEPUTY: State your name for the

record and spell your first and last name.

0 9 : 4 1 : 0 3 THE WITNESS: Kelli Kuester. K-E-L-L-I.

0 9 : 3 9 : 3 0 1

 2

 3

 4

0 9 : 3 9 : 4 2 5

 6

 7

 8

 9

0 9 : 4 0 : 0 1 10

11

12

13

14

0 9 : 4 0 : 1 3 15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 41 of 255
 304

DIRECT EXAMINATION - KELLI KUESTER

K-U-E-S-T-E-R.

THE COURTROOM DEPUTY: There's no E on the end of

Kelli?

THE WITNESS: There's no E on the end of Kelli.

THE COURTROOM DEPUTY: Thank you.

D I R E C T E X A M I N A T I O N 

BY MR. KEZHAYA: 

Q Good morning, ma'am.

A Good morning.

Q How do I pronounce your name?

A Kelli Kuester.

Q Kuester. Thank you. I've heard it many different ways,

so I was unsure.

A That's Okay.

Q Ms. Kuester, in early 2016 you were the management

assistant to the mayor and council; right?

A Yes.

Q What year did you start that job?

A Summer of 2015.

Q Are you still in that job?

A Yes.

Q As part of this job, you scheduled speakers for

legislative invocations; is that right?

A For city council meetings, yes.

0 9 : 4 2 : 0 0 Q Yes.

0 9 : 4 1 : 0 6 1

 2

 3

 4

0 9 : 4 1 : 1 9 5

 6

 7

 8

 9

0 9 : 4 1 : 2 9 10

11

12

13

14

0 9 : 4 1 : 3 6 15

16

17

18

19

0 9 : 4 1 : 4 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 42 of 255
 305

DIRECT EXAMINATION - KELLI KUESTER

And the way you scheduled these invocations was going

off of some kind of a list; is that right?

A Yes, that's correct.

Q Who created that list?

A I'm not sure exactly how it was created or who created it.

It was given to me when I took the job.

Q Okay. But you -- importantly, you did not create it?

A That's correct.

Q Did you ever add on to it or remove from it, change it in

any way?

A Each year I have added on and have kept track of the list.

Q What do you add to the list?

A I keep track of everyone who comes into the city council

meetings and gives an invocation. And as new folks come in, I

add their names, and go on each year from that.

Q How do new folks come into these invocations?

A One example may be if my boss, the chief of staff, meets

somebody and presents to me their business card and asks me to

contact them for an invocation.

Q Okay. Other than TST, has anyone ever reached out to you

affirmatively to be placed on this list?

A Within the last few months I just had someone, but prior

to The Satanic Temple, no.

Q Okay.

0 9 : 4 3 : 3 3 When you mentioned someone would hand their card, or

0 9 : 4 2 : 0 3 1

 2

 3

 4

0 9 : 4 2 : 1 4 5

 6

 7

 8

 9

0 9 : 4 2 : 2 7 10

11

12

13

14

0 9 : 4 2 : 4 7 15

16

17

18

19

0 9 : 4 3 : 0 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 43 of 255
 306

DIRECT EXAMINATION - KELLI KUESTER

rather the card would be handed to you by the chief of staff,

was that before The Satanic Temple came in?

A Yes.

Q Okay.

And when was that?

A It could be any time that she may go to an event or have a

meeting with someone. That could happen at any point.

Q So this was more than one occasion?

A Yes.

Q How often did that happen before The Satanic Temple came

in?

A Roughly I could give you an estimate, maybe just a few

times a year that could happen.

Q So let's see here. If I remember correctly, you started

summer of 2015; right?

A Yes.

Q So at least once before TST came into the picture in

February of 2016; right?

A I would say that that's accurate.

Q So are we talking two or three times? More than that?

A I wouldn't say more than that, no.

Q At some point TST did come into the picture; right?

A Yes.

Q In fact, you got a call from a person named

0 9 : 4 4 : 4 6 Jeremy Zarzycki. Do you remember that?

0 9 : 4 3 : 3 7 1

 2

 3

 4

0 9 : 4 3 : 5 0 5

 6

 7

 8

 9

0 9 : 4 4 : 0 3 10

11

12

13

14

0 9 : 4 4 : 1 7 15

16

17

18

19

0 9 : 4 4 : 3 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 44 of 255
 307

DIRECT EXAMINATION - KELLI KUESTER

A Yes, I do.

Q Do you remember when that call was?

A I do not remember the exact date of when that was, no.

Q Was it early February?

A Possibly. Yes.

Q We've seen a lot of e-mails from February 9 and 10. Was

it before that?

A I believe so. To the best of my memory, I think it's

possibly the first week of February.

Q Okay. And pursuant to that phone call, you scheduled an

invocation for TST, didn't you?

A With that phone call, I did schedule the invocation, yes.

Q And to be clear, we're talking about this first phone call

in early February?

A Yes.

Q Was there any rule against someone calling you up and

saying we'd like to give an invocation?

A No.

Q In fact, as you testified earlier, this is not the first

time that you had received some kind of notice that people not

on that list wanted to give an invocation; right?

MR. CLOAR: Objection. Misstates.

THE COURT: Overruled.

BY MR. KEZHAYA: 

0 9 : 4 6 : 0 1 Q This is not the first time -- when you received that phone

0 9 : 4 4 : 5 1 1

 2

 3

 4

0 9 : 4 5 : 0 0 5

 6

 7

 8

 9

0 9 : 4 5 : 1 3 10

11

12

13

14

0 9 : 4 5 : 2 9 15

16

17

18

19

0 9 : 4 5 : 3 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 45 of 255
 308

DIRECT EXAMINATION - KELLI KUESTER

call from Jeremy Zarzycki, that was not the first time that

someone had indicated they wanted to give an invocation;

right?

A I'm sorry, could you say that one more time.

Q Jeremy Zarzycki was not the first person who ever

requested an opportunity to give an invocation; is that right?

MR. CLOAR: Objection. Misstates.

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q Is that right?

THE COURT: You can answer.

THE WITNESS: Jeremy Zarzycki was the first time

that someone had called me to request an invocation.

BY MR. KEZHAYA: 

Q I understand that you're saying that he was the first

person who's ever called you. That's not my question. My

question to you is whether anyone before Jeremy Zarzycki had

made a request, not necessarily of you, and not necessarily by

a phone call.

A I had been directed by the chief of staff in other

instances to schedule invocations.

Q From people who were not on the list; right?

A Correct.

Q Because they've requested it; right?

0 9 : 4 7 : 0 4 A I'm not sure if they requested it of her. I was directed

0 9 : 4 6 : 0 3 1

 2

 3

 4

0 9 : 4 6 : 1 3 5

 6

 7

 8

 9

0 9 : 4 6 : 2 6 10

11

12

13

14

0 9 : 4 6 : 3 6 15

16

17

18

19

0 9 : 4 6 : 5 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 46 of 255
 309

DIRECT EXAMINATION - KELLI KUESTER

by my chief of staff to schedule.

Q Okay. And she didn't give you any information about what

caused her to request you -- or to schedule them for an

invocation; is that right?

A No.

Q I may have asked an unclear question.

Did the chief of staff provide you this contact

information and additional background information for this is

why I'm asking you to give them an invocation?

MR. CLOAR: Objection. Calls for hearsay. 

MR. KEZHAYA: It's --

THE COURT: Overruled.

You can answer.

THE WITNESS: If she provided me a business card,

she may have just asked me to schedule an invocation. I

didn't always get a complete background as to why she may

have wanted that done.

BY MR. KEZHAYA: 

Q I noticed you used the word always. So sometimes she did

give you a background; right?

A Correct.

Q What was the background that you can recall?

MR. CLOAR: Objection. Calls for hearsay.

THE COURT: What is your response to hearsay?

0 9 : 4 8 : 1 0 MR. KEZHAYA: This is the clear agency rule, Judge.

0 9 : 4 7 : 0 8 1

 2

 3

 4

0 9 : 4 7 : 2 0 5

 6

 7

 8

 9

0 9 : 4 7 : 3 6 10

11

12

13

14

0 9 : 4 7 : 4 9 15

16

17

18

19

0 9 : 4 8 : 0 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 47 of 255
 310

DIRECT EXAMINATION - KELLI KUESTER

She's talking about her boss, the chief of staff, providing

her contact information for someone to give an invocation.

THE COURT: Your response?

MR. CLOAR: Your Honor, he's laid no foundation as

to whether that was within the chief of staff's scope of

agency; he's not invoked any exception under 801(d)(2); he's

not indicated which provision of 801(d)(2) he's invoking,

whether it's (C) or (D); and he has not provided anything

other than the statement itself to indicate that it is within

the scope of 801(d)(2).

THE COURT: I think you need to lay additional

foundation.

MR. KEZHAYA: Yes, Your Honor.

BY MR. KEZHAYA: 

Q The chief of staff is your boss; right?

A Yes, that's correct.

Q And early 2016 what was the name of your boss?

A Rachel Smetana.

Q Did you take employment instructions from your boss?

A Employment instructions?

Q If your boss told you to do something, would you do it?

A Yes.

Q Provided it was within the course and scope of your

employment; right?

0 9 : 4 9 : 0 6 A Yes.

0 9 : 4 8 : 1 1 1

 2

 3

 4

0 9 : 4 8 : 2 0 5

 6

 7

 8

 9

0 9 : 4 8 : 3 5 10

11

12

13

14

0 9 : 4 8 : 4 2 15

16

17

18

19

0 9 : 4 8 : 5 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 48 of 255
 311

DIRECT EXAMINATION - KELLI KUESTER

Q Provided that it's within the course and scope of her

employment to give you these instructions; right?

A Yes.

Q And she handed you a business card; right?

A Yes.

Q And she told you to schedule an invocation; right?

A Yes.

Q And you scheduled the invocation, didn't you?

A Yes.

Q What did she tell you when she gave you background around

the time she gave you the card?

A When --

MR. CLOAR: Objection, Your Honor. Vague as to

time.

THE COURT: Overruled.

THE WITNESS: One example may be that she has met

this person at an event and she would like me to reach out to

them.

BY MR. KEZHAYA: 

Q Okay. Is that all she told you?

A In that particular instance that I can remember, yes.

Q When this was instance?

A I can't recall that.

Q Tell me more about this instance. Who this was person?

0 9 : 4 9 : 5 4 MR. CLOAR: Object. Vague.

0 9 : 4 9 : 0 6 1

 2

 3

 4

0 9 : 4 9 : 1 4 5

 6

 7

 8

 9

0 9 : 4 9 : 2 2 10

11

12

13

14

0 9 : 4 9 : 3 4 15

16

17

18

19

0 9 : 4 9 : 4 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 49 of 255
 312

DIRECT EXAMINATION - KELLI KUESTER

THE COURT: Overruled.

THE WITNESS: I can't recall that either.

BY MR. KEZHAYA: 

Q Was this instance in 2016?

A I do not believe so.

Q Was it before Jeremy Zarzycki gave you a call?

A I believe so.

Q As I recall, you started your employment in 2015, so it

must be somewhere between summer of 2015 and February 2016.

Would you agree with that?

A Correct.

Q What was the nature of this organization's religious

beliefs?

MR. CLOAR: Object. Vague. Which organization?

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q What was the nature of the religious beliefs espoused by

this business card?

MR. CLOAR: Objection. Foundation.

THE COURT: Overruled.

THE WITNESS: The name of the organization?

BY MR. KEZHAYA: 

Q Let's start with the name.

A I believe it's the Islamic Speaker Bureaus of Arizona.

0 9 : 5 0 : 4 9 Q And this was pre-2016?

0 9 : 4 9 : 5 6 1

 2

 3

 4

0 9 : 5 0 : 0 4 5

 6

 7

 8

 9

0 9 : 5 0 : 2 0 10

11

12

13

14

0 9 : 5 0 : 3 3 15

16

17

18

19

0 9 : 5 0 : 4 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 50 of 255
 313

DIRECT EXAMINATION - KELLI KUESTER

A I believe so.

Q There was a Muslim speaker in November of 2016. Do you

remember that?

A I believe -- I'm getting the years a little bit confused,

but yes.

Q Okay. Are you open to the possibility that this happened

after TST came in? Or are you certain this happened before

Zarzycki gave the call?

A It could have happened after. Like I said, she's given me

a couple of cards. There's been a couple of contacts.

Q Okay. So this may not be before Zarzycki, but someone

else was scheduled for an invocation who was not on that list

before Zarzycki; right?

MR. CLOAR: Your Honor, best evidence.

THE COURT: Overruled.

I think you should re-ask the question. It was a

little confusing.

MR. KEZHAYA: Yes, Judge.

BY MR. KEZHAYA: 

Q Let's move on.

During your phone call with Zarzycki, did you ask any

qualifying questions of The Satanic Temple?

A No.

Q Did you know when talking with Zarzycki that an

0 9 : 5 2 : 0 7 organization named The Satanic Temple was requesting to give

0 9 : 5 0 : 5 3 1

 2

 3

 4

0 9 : 5 1 : 0 9 5

 6

 7

 8

 9

0 9 : 5 1 : 2 2 10

11

12

13

14

0 9 : 5 1 : 4 3 15

16

17

18

19

0 9 : 5 1 : 4 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 51 of 255
 314

DIRECT EXAMINATION - KELLI KUESTER

an invocation?

A Yes.

Q Through your phone conversation with Zarzycki, did you

take the impression that it wouldn't necessarily be Zarzycki

who gave this invocation?

A I don't believe he told me the specific person during the

phone call who would be giving the invocation.

Q Did he indicate it would be him?

A I don't believe he said he would be doing it, no.

Q Did he just indicate that someone from TST would be giving

the invocation?

A Correct. To the best of my knowledge, I believe he just

requested that The Satanic Temple give an invocation at the

next Scottsdale city council meeting that was available.

Q At the time you received that phone call, had you heard of

The Satanic Temple?

A Yes.

Q What was your understanding of The Satanic Temple in terms

of geographically where they're located?

A I had heard they were in Tucson.

Q And where did you hear that from?

A On the news.

Q Okay. Did you have any personal knowledge? Do you know

any satanists?

0 9 : 5 3 : 1 9 A No.

0 9 : 5 2 : 1 0 1

 2

 3

 4

0 9 : 5 2 : 1 9 5

 6

 7

 8

 9

0 9 : 5 2 : 3 8 10

11

12

13

14

0 9 : 5 2 : 5 4 15

16

17

18

19

0 9 : 5 3 : 0 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 52 of 255
 315

DIRECT EXAMINATION - KELLI KUESTER

Q Had you ever attended any structure that had signage that

said The Satanic Temple on it?

A No.

Q Had you ever performed any sort of an independent

investigation at all to verify whether The Satanic Temple was

actually based in Tucson?

A No.

Q Okay. 

Earlier you testified that you did not ask any

qualifying questions of The Satanic Temple; right?

A Correct.

Q Did you ever ask anyone qualifying questions before

scheduling them?

A No.

Q When your boss handed you a card and said I want you to

schedule these people for an invocation, did you confirm that

they had some kind of substantial connection to Scottsdale

before scheduling them?

A Beyond looking at some basic information on the card, no.

Q Did your boss tell you that they had been through some

form of vetting process before telling you to give them an

invocation?

MR. CLOAR: Objection. Calls for hearsay.

THE COURT: Overruled.

0 9 : 5 3 : 2 0 1

 2

 3

 4

0 9 : 5 3 : 3 1 5

 6

 7

 8

 9

0 9 : 5 3 : 4 7 10

11

12

13

14

0 9 : 5 3 : 5 5 15

16

17

18

19

0 9 : 5 4 : 1 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 53 of 255
 316

DIRECT EXAMINATION - KELLI KUESTER

BY MR. KEZHAYA: 

Q Did your boss ever tell you they had been through some

sort of vetting process before instructing you to permit them

an opportunity to give an invocation?

A Specifically she did not state that, no.

Q Did she say one way or the other?

A No.

Q During that phone call with Zarzycki, you didn't ask what

the contents of the invocation would be, did you?

A No.

Q During any of your phone calls with any of the people that

you've ever requested -- scheduled an invocation for, did you

ever request the contents of their invocation?

A No.

Q Does the City of Scottsdale have some form of policy

reviewing invocations for permissible religious content?

A No.

Q As I recall, you testified earlier that you received a

phone call from Zarzycki and you scheduled it; is that right?

A Yes.

Q About how long did that phone conversation last?

A I would say maybe three to five minutes. Not long.

Q After you scheduled The Satanic Temple, at some point you

informed the mayor and the chief of staff of the decision; is

0 9 : 5 5 : 5 3 that right?

0 9 : 5 4 : 2 9 1

 2

 3

 4

0 9 : 5 4 : 3 9 5

 6

 7

 8

 9

0 9 : 5 4 : 5 3 10

11

12

13

14

0 9 : 5 5 : 0 7 15

16

17

18

19

0 9 : 5 5 : 3 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 54 of 255
 317

DIRECT EXAMINATION - KELLI KUESTER

A Of the scheduling, yes.

Q Yes. 

And the mayor told you that you did the right thing,

didn't he?

A Yes.

Q He also told you that you needed to treat The Satanic

Temple as you would any other religion; is that right?

A Any other -- yes. Yes.

Q Did you ever tell Biesemeyer that The Satanic Temple is

from Tucson?

MR. CLAUS: Your Honor, could we have just a modicum

of respect and not refer to people just by their last names?

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q Did Brian Biesemeyer ever tell you -- or pardon --

MR. KEZHAYA: Strike that, Your Honor.

BY MR. KEZHAYA: 

Q Did you ever tell Biesemeyer that The Satanic Temple is

from Tucson?

A I don't recall telling Mr. Biesemeyer that specific

information.

Q You said you don't recall, or affirmatively no?

A I honestly can't remember having told him that specific

information.

0 9 : 5 7 : 1 0 Q Okay. If Biesemeyer testified that you did tell him that,

0 9 : 5 5 : 5 4 1

 2

 3

 4

0 9 : 5 5 : 5 8 5

 6

 7

 8

 9

0 9 : 5 6 : 1 5 10

11

12

13

14

0 9 : 5 6 : 3 1 15

16

17

18

19

0 9 : 5 6 : 4 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 55 of 255
 318

DIRECT EXAMINATION - KELLI KUESTER

would he be lying?

MR. CLOAR: Objection, Your Honor. He's asking her

to vouch --

THE COURT: Objection is sustained.

MR. CLOAR: Thank you, Your Honor.

BY MR. KEZHAYA: 

Q There was some form of public outcry following the initial

scheduling of The Satanic Temple, wasn't there?

A The City received quite a few e-mails, yes.

Q Were the bulk -- well, were several of these e-mails

objecting to The Satanic Temple giving invocation?

MR. CLOAR: Objection. Best evidence.

THE COURT: Overruled.

THE WITNESS: I'm sorry, what was the question?

BY MR. KEZHAYA: 

Q Were these e-mails objecting to The Satanic Temple giving

an invocation?

MR. CLOAR: Objection. Hearsay.

THE COURT: What's your response on hearsay?

MR. KEZHAYA: Uh --

THE COURT: Is it being offered for the truth of the

matter asserted?

MR. KEZHAYA: No, Your Honor. The important thing

is we're leading into the part where she tells Biesemeyer,

0 9 : 5 8 : 2 3 Mr. Biesemeyer, that there's a lot of e-mails. Something

0 9 : 5 7 : 1 6 1

 2

 3

 4

0 9 : 5 7 : 2 3 5

 6

 7

 8

 9

0 9 : 5 7 : 3 9 10

11

12

13

14

0 9 : 5 7 : 5 3 15

16

17

18

19

0 9 : 5 8 : 1 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 56 of 255
 319

DIRECT EXAMINATION - KELLI KUESTER

happened that caused an investigation in the process. So

we -- 

THE COURT: I'm going to overrule the objection.

Whether or not the person writing the e-mail personally

objected, and that was their actual belief is not the issue.

The issue is whether they received e-mails that objected, and

so it's not being offered for the truth of the matter

asserted.

MR. CLOAR: Thank you, Your Honor.

BY MR. KEZHAYA: 

Q Were they?

A I would say the majority of the e-mails were upset that

the invocation was scheduled.

Q Do you remember the number of e-mails that the City

received in the span of a morning?

MR. CLOAR: Objection. Foundation.

THE COURT: Overruled.

THE WITNESS: I know one organization was able to

generate over 15,000 e-mails.

BY MR. KEZHAYA: 

Q Was the correct number 15,207?

A That sounds accurate from the one organization.

Q Okay. So in fact there was more than 15,207, it just so

happens that this one organization sent 15,207?

0 9 : 5 9 : 3 3 A That's correct.

0 9 : 5 8 : 2 9 1

 2

 3

 4

0 9 : 5 8 : 3 8 5

 6

 7

 8

 9

0 9 : 5 8 : 5 1 10

11

12

13

14

0 9 : 5 9 : 0 3 15

16

17

18

19

0 9 : 5 9 : 1 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 57 of 255
 320

DIRECT EXAMINATION - KELLI KUESTER

Q What was this organization? Was it a church?

A I believe so.

Q Do you remember which church?

A I do not.

Q Did the volume of this predominantly negative feedback

crash city servers?

MR. CLOAR: Objection. Foundation.

THE COURT: Overruled.

THE WITNESS: It created a problem so our IT

department had to make sure all the e-mails with a particular

subject line were redirected to my e-mail in-box.

BY MR. KEZHAYA: 

Q Would you describe that problem as crashing the City?

A That is how it was described to me by the IT department.

Q At some point you were actually the recipient of all these

e-mails; is that right?

A Yes.

Q What caused that?

A There were so many e-mails going into the mayor and

council e-mail in-boxes, so IT asked that all e-mails with the

subject line be diverted to my in-box so that the mayor and

council could still receive their day-to-day e-mails so that

they weren't so flooded.

Q What was the subject line, do you remember?

1 0 : 0 1 : 0 1 A To the best of my memory, I believe it said "No Hail Satan

0 9 : 5 9 : 3 4 1

 2

 3

 4

0 9 : 5 9 : 5 0 5

 6

 7

 8

 9

1 0 : 0 0 : 0 6 10

11

12

13

14

1 0 : 0 0 : 2 9 15

16

17

18

19

1 0 : 0 0 : 4 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 58 of 255
 321

DIRECT EXAMINATION - KELLI KUESTER

prayer."

Q You responded to some of these e-mails, didn't you?

A I responded to the non-form letter e-mails that were

received. The 15,207, I did not respond to those.

Q Ones that had individualized feedback, did you respond to

those?

A I made every attempt to respond to as many as possible.

Q Was the nature of your response to the effect of the mayor

and some members of city council have asked me to thank you

for your input?

MR. CLOAR: Objection. Best evidence.

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q Was it?

A I believe so, yes.

Q In that response, did you also indicate that if the mayor

and city council don't allow this, they have to end the

practice of having invocation?

MR. CLOAR: Same objection, Your Honor.

THE COURT: Overruled.

THE WITNESS: That does sound -- that does sound

familiar, to the best of my memory, yes.

BY MR. KEZHAYA: 

Q Do you also recall giving feedback or giving responses to

1 0 : 0 2 : 2 4 this feedback to the effect of "the mayor finds this whole

1 0 : 0 1 : 0 7 1

 2

 3

 4

1 0 : 0 1 : 3 0 5

 6

 7

 8

 9

1 0 : 0 1 : 4 5 10

11

12

13

14

1 0 : 0 1 : 5 1 15

16

17

18

19

1 0 : 0 2 : 1 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 59 of 255
 322

DIRECT EXAMINATION - KELLI KUESTER

affair personally repugnant and does not condone this group,

its belief, or mission"?

MR. CLOAR: Same objection.

THE COURT: Overruled. 

THE WITNESS: Yes, I think I did have that in some

of my responses, yes.

BY MR. KEZHAYA: 

Q Did you prepare a form response to aid you

administratively in getting these responses out?

A I believe the chief of staff formed it, got the mayor's

approval. It was then given to me to help send out responses

quickly, yes.

Q Do you remember when these -- when this response was being

sent? Was it at least in February?

A I believe so, yes.

Q Was it also in May?

A I can't honestly recall how long that lasted.

Q Okay. In terms of this public outcry, help me understand,

what was the duration of it? This was like a two- or

three-day kerfuffle or was this a wider campaign?

A I would say it lasted longer, two -- more than two to

three days. I would say more in the weeks to months,

possibly.

Q So at some point there was a need of a rescheduling; is

1 0 : 0 3 : 5 9 that accurate?

1 0 : 0 2 : 2 7 1

 2

 3

 4

1 0 : 0 2 : 3 8 5

 6

 7

 8

 9

1 0 : 0 2 : 5 2 10

11

12

13

14

1 0 : 0 3 : 1 0 15

16

17

18

19

1 0 : 0 3 : 3 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 60 of 255
 323

DIRECT EXAMINATION - KELLI KUESTER

A Yes.

Q Did you receive a second phone call from Zarzycki?

A No. I Received an e-mail from Mr. Zarzycki.

MR. KEZHAYA: Your Honor, we've introduced

Exhibit 6; is this right?

THE COURT: You mean is it admitted in evidence?

MR. KEZHAYA: Yes, Your Honor.

THE COURT: Yes.

MR. KEZHAYA: Could we show the witness Exhibit 6,

please?

THE COURT: Yes.

BY MR. KEZHAYA: 

Q Ms. Kuester, is this the e-mail you're referring to that

you received from Zarzycki?

A Yes.

Q It notes just confirming that TST cannot attend to do the

April 5 invocation; is that right?

A Yes.

Q Was this the first you heard of this need of rescheduling?

A Yes.

Q Okay. And then you ultimately did reschedule, then,

cutting to the chase, for July 6; is that right?

A Yes.

Q When you made this rescheduling decision, was it prompted

1 0 : 0 5 : 2 2 by any determination what The Satanic Temple's substantial

1 0 : 0 4 : 0 0 1

 2

 3

 4

1 0 : 0 4 : 1 9 5

 6

 7

 8

 9

1 0 : 0 4 : 2 9 10

11

12

13

14

1 0 : 0 4 : 4 7 15

16

17

18

19

1 0 : 0 5 : 0 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 61 of 255
 324

DIRECT EXAMINATION - KELLI KUESTER

connection to Scottsdale was?

MR. CLOAR: Your Honor, could you have counsel

re-ask the question? He stepped away from the mic. I

couldn't hear.

THE COURT: The mic -- I couldn't follow it either.

MR. KEZHAYA: Beg your pardon, Your Honor.

BY MR. KEZHAYA: 

Q When rescheduling, did you perform any sort of

investigation into The Satanic Temple?

A No.

Q Did you request any information from the Satanic Temple

about why should we let you give an invocation?

A No.

Q Did you request where are you physically located?

A No.

Q Did you request what is your membership? Where are they

and how many?

A No.

Q Did you request the nature of their religious beliefs?

A No.

Q Did you request the contents of the proposed invocation?

A No.

Q Is all of your discussions regarding rescheduling the

Exhibit 6 that you just saw, and then a response that looks

1 0 : 0 6 : 2 4 like the next day providing him additional dates?

1 0 : 0 5 : 2 8 1

 2

 3

 4

1 0 : 0 5 : 3 6 5

 6

 7

 8

 9

1 0 : 0 5 : 4 3 10

11

12

13

14

1 0 : 0 5 : 5 6 15

16

17

18

19

1 0 : 0 6 : 0 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 62 of 255
 325

DIRECT EXAMINATION - KELLI KUESTER

A Yeah, I provided the July 6 date as an opportunity for

them to reschedule.

Q Other than that first phone call, did you ever have any

subsequent phone calls from Zarzycki?

A No, I don't believe so.

Q Did you ever notify the city manager of the volume of

public feedback on the decision to schedule The Satanic

Temple?

A I don't remember if I was the one that specifically told

Mr. Biesemeyer the amount of public input we had received. I

can't recall that.

Q Did you tell someone else who you believed told

Biesemeyer?

MR. CLOAR: Objection. Calls for speculation.

THE COURT: Overruled.

THE WITNESS: I kept in touch with my chief of

staff, as well as the councilmembers, to the amount of input

that we had been receiving.

BY MR. KEZHAYA: 

Q So in terms of the chain of command, so to speak, it goes

you, chief of staff, and -- I'm making a poor record. You are

at the bottom tier importantly for this. The next level up is

chief of staff. And then the next level, at least one level

up from chief of staff is the city council. Where does

1 0 : 0 7 : 5 3 Biesemeyer fall in that framework?

1 0 : 0 6 : 3 1 1

 2

 3

 4

1 0 : 0 6 : 4 4 5

 6

 7

 8

 9

1 0 : 0 7 : 0 7 10

11

12

13

14

1 0 : 0 7 : 2 1 15

16

17

18

19

1 0 : 0 7 : 3 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 63 of 255
 326

DIRECT EXAMINATION - KELLI KUESTER

MR. CLOAR: Objection. Foundation.

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q And by Biesemeyer, I mean the city manager.

A The city manager reports to the mayor and city

councilmembers.

Q Okay. So does the chief of staff report to the city

manager?

A No.

Q Okay. So is the city manager's office separate from the

mayor's office?

A Yes.

Q Earlier you testified that your job title was management

assistant to the mayor and city council; is that right?

MR. CLOAR: Objection. Misstates.

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q Is that right?

A In 2016 my title was management assistant to the mayor,

city council.

Q And city council?

A Um-hmm. Yes.

Q You clarified 2016. Is it something different now?

A My current job title is management assistant to the mayor.

1 0 : 0 8 : 4 9 Q Okay. The mayor -- well, we don't care about that.

1 0 : 0 7 : 5 5 1

 2

 3

 4

1 0 : 0 8 : 0 6 5

 6

 7

 8

 9

1 0 : 0 8 : 1 2 10

11

12

13

14

1 0 : 0 8 : 2 6 15

16

17

18

19

1 0 : 0 8 : 3 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 64 of 255
 327

DIRECT EXAMINATION - KELLI KUESTER

So the city manager's office is separate from the

mayor's office; is that right?

MR. CLOAR: Objection. Asked and answered.

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q Is -- sorry, is that a yes?

A The city manager's office is separate from the mayor's

office.

Q Is the mayor a full-time position?

A Yes.

Q Okay.

Your administrative role as management assistant to

the mayor and city council at this relevant time, what were

your duties for the city council?

MR. CLOAR: Objection. Vague as to "this relevant

time."

THE COURT: Overruled.

THE WITNESS: To respond to constituent complaints,

concerns, and input that the mayor and city council receive.

BY MR. KEZHAYA: 

Q Is that the full scope of your -- the job duties?

A That's the majority of my job duties, I would say, not the

full scope.

Q When you respond to constituents, do you receive

1 0 : 1 0 : 0 3 instructions from, for example, the mayor and maybe individual

1 0 : 0 8 : 5 2 1

 2

 3

 4

1 0 : 0 9 : 0 6 5

 6

 7

 8

 9

1 0 : 0 9 : 1 7 10

11

12

13

14

1 0 : 0 9 : 3 7 15

16

17

18

19

1 0 : 0 9 : 5 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 65 of 255
 328

DIRECT EXAMINATION - KELLI KUESTER

city councilmembers for how they would like you to respond?

A That's a difficult question to answer. Not so much from

the city councilmembers, no. My job is mainly to let the

constituent know that we've received their concern and to try

to resolve the issue.

Q Okay.

A Not to share opinions of mayor and councilmembers.

Q That's not your normal job, to share the opinions of mayor

and councilmembers; is that right?

A I do not share their opinions.

Q Earlier you testified that some of your feedback was to

the effect of the mayor finds this organization repugnant and

does not -- pardon me, give me just a second to find the quote

again.

"The mayor finds this whole affair personally

repugnant and does not condone this group, its belief or

mission."

Earlier you testified this was some of the feedback

that you were giving constituents. Do you remember that?

A You are correct. My apologies. In that case I was

directed to do so by the chief of staff who gave me that

information that was approved by the mayor.

Q Okay. What was different about this time? As opposed to

your normal run-of-the-mill constituent feedback?

1 0 : 1 1 : 3 9 A That's a great question. I'm not sure. I did what I was

1 0 : 1 0 : 0 9 1

 2

 3

 4

1 0 : 1 0 : 2 9 5

 6

 7

 8

 9

1 0 : 1 0 : 4 2 10

11

12

13

14

1 0 : 1 0 : 5 6 15

16

17

18

19

1 0 : 1 1 : 1 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 66 of 255
 329

DIRECT EXAMINATION - KELLI KUESTER

told.

Q At some point you were instructed to deny, or rather

revoke the invitation extended to The Satanic Temple; is that

right?

A Correct.

Q Who was the person that ordered you to send the e-mail?

A Mr. Biesemeyer.

Q And earlier you testified that Mr. Biesemeyer is in a

separate office from your office; is that right?

A Yes.

Q Did Mr. Biesemeyer have authority to tell you what to do?

MR. CLOAR: Objection. Foundation.

THE COURT: Overruled.

THE WITNESS: As the city manager, I am able to take

direction from him, yes.

BY MR. KEZHAYA: 

Q Help me understand the chain of command, then.

So Mr. Biesemeyer's in a separate office. Does he

have his own separate staff?

A Yes.

Q Does he have his own analog to you, people who can send

e-mails on his behalf?

A Yes.

Q So why you? Why were you the one sending this e-mail?

1 0 : 1 2 : 4 9 A My assumption would be is that I'm the one who schedules

1 0 : 1 1 : 4 3 1

 2

 3

 4

1 0 : 1 1 : 5 8 5

 6

 7

 8

 9

1 0 : 1 2 : 1 0 10

11

12

13

14

1 0 : 1 2 : 2 2 15

16

17

18

19

1 0 : 1 2 : 3 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 67 of 255
 330

DIRECT EXAMINATION - KELLI KUESTER

the invocations.

Q Okay. What other instructions do you take in the regular

course of your job from the office of the city manager?

A If we receive a constituent concern regarding something

that is going on in the City, I may reach out to the city

manager's office and staff for assistance in getting something

resolved.

Q Okay. And so you'll reach out to the office of the city

manager. But my question to you was when do you take

direction from them. So you'll reach out to them for help,

then what?

Help me draw a line from your reaching out to them

for help and then their telling you what to do.

A It's the city manager's office. They assist, they give

direction on a regular basis.

Q Did you coordinate the contents of this message with

Brian Biesemeyer, the cancellation e-mail?

A My recollection is that Mr. Biesemeyer gave me the

language to use in that message.

Q I have an e-mail.

Do you recall sending an e-mail on May 23rd to

Brian Biesemeyer at 3:08 p.m.?

A No, I don't recall this particular one that you're talking

about.

1 0 : 1 4 : 4 5 Q Would it refresh your recollection to see a document that

1 0 : 1 2 : 5 2 1

 2

 3

 4

1 0 : 1 3 : 0 8 5

 6

 7

 8

 9

1 0 : 1 3 : 2 3 10

11

12

13

14

1 0 : 1 3 : 4 3 15

16

17

18

19

1 0 : 1 4 : 0 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 68 of 255
 331

DIRECT EXAMINATION - KELLI KUESTER

appears to be an e-mail from Kelli Kuester to

Brian Biesemeyer?

MR. CLOAR: Objection, Your Honor. Whatever

counsel's about to attempt to refresh the witness's

recollection with is not in the joint pretrial and is not on

the exhibit list.

MR. KEZHAYA: Judge, we're just trying to refresh

her recollection. I'm just trying to get her to recall what

the facts of this case were.

THE COURT: It's an exhibit you want to use during

the trial, though; right?

MR. KEZHAYA: I don't actually want to introduce the

exhibit, Your Honor. I just want to refresh her recollection

of whether she sent this e-mail.

THE COURT: Have you said anything in the final

pretrial order that indicates to the defense that you

intended to use this exhibit during trial?

MR. KEZHAYA: No, Your Honor. This was something

that we didn't actually intend to use.

THE COURT: I'm going to sustain the objection.

MR. KEZHAYA: Yes, Judge.

BY MR. KEZHAYA: 

Q Please help me remember your testimony. Did you say that

Brian Biesemeyer provided you the contents of the e-mail?

1 0 : 1 5 : 5 4 A To the best of my memory, yes.

1 0 : 1 4 : 4 9 1

 2

 3

 4

1 0 : 1 4 : 5 8 5

 6

 7

 8

 9

1 0 : 1 5 : 1 0 10

11

12

13

14

1 0 : 1 5 : 2 0 15

16

17

18

19

1 0 : 1 5 : 3 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 69 of 255
 332

DIRECT EXAMINATION - KELLI KUESTER

Q Okay. And did you get the impression whether that e-mail

had been cleared by the city council and the mayor?

MR. CLOAR: Objection. Speculation.

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q Yes or no?

A I didn't --

THE COURT: If you can answer yes or no.

THE WITNESS: I didn't get any impression. I was

just given an e-mail to send.

BY MR. KEZHAYA: 

Q Okay. Was this process of The Satanic Temple's invocation

a politically difficult process for the office of the mayor

and the office of the city manager?

MR. CLOAR: Objection. Speculation.

THE COURT: Overruled.

MR. CLOAR: Lack of foundation.

THE COURT: Overruled.

THE WITNESS: As a city employee, getting involved

in politics is not really part of my scope.

BY MR. KEZHAYA: 

Q Earlier you mentioned that the majority of your scope is

just replying to constituent concerns. Do you remember that?

A Yes.

1 0 : 1 6 : 5 2 Q What are the nature of constituent concerns that typify

1 0 : 1 5 : 5 7 1

 2

 3

 4

1 0 : 1 6 : 0 8 5

 6

 7

 8

 9

1 0 : 1 6 : 1 5 10

11

12

13

14

1 0 : 1 6 : 3 3 15

16

17

18

19

1 0 : 1 6 : 4 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 70 of 255
 333

DIRECT EXAMINATION - KELLI KUESTER

your responses?

MR. CLOAR: Objection. Vague.

THE COURT: Overruled.

THE WITNESS: I'm sorry, can you say that one more

time?

BY MR. KEZHAYA: 

Q Earlier you testified that the bulk of your job is

responding to constituent concerns; right?

A Yes.

Q What is the typical constituent concern that you're

responding to?

A There is no typical -- 

Q There is no typical -- 

A -- constituent concern.

Q Okay.

A It's everything from the aviation department down to the

water department.

Q Okay. Do they generally revolve around matters of policy?

A To be honest, there is no general when it comes to a

constituent concern. It's flight path noise to potholes.

Q As a general matter, when you are responding to

constituent concerns, are you responding to approximately

15,207 e-mails from one organization?

A That is not a typical response or a typical day, I would

1 0 : 1 8 : 0 0 say, no.

1 0 : 1 6 : 5 6 1

 2

 3

 4

1 0 : 1 7 : 0 5 5

 6

 7

 8

 9

1 0 : 1 7 : 1 2 10

11

12

13

14

1 0 : 1 7 : 1 9 15

16

17

18

19

1 0 : 1 7 : 3 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 71 of 255
 334

DIRECT EXAMINATION - KELLI KUESTER

Q Okay. Had you ever denied anyone an invocation before The

Satanic Temple?

A No.

Q To your knowledge, has anyone at the City ever denied a

religious organization an invocation?

A No.

Q And that's not just before The Satanic Temple, that

includes after The Satanic Temple?

A Correct.

Q When you -- do you recall the cancellation e-mail?

A I don't recall the wording that was used, no.

MR. KEZHAYA: Could we provide the witness with

Exhibit 12, Your Honor?

BY MR. KEZHAYA: 

Q Do you recall this e-mail?

A Yes.

Q Nowhere in that e-mail provides any kind of appeals

process, does it?

A No.

Q Nowhere in that e-mail does it invite The Satanic Temple

to demonstrate their substantial connection, does it?

A No.

Q Nowhere in that e-mail does it define what a substantial

connection is in particular terms, does it?

1 0 : 1 9 : 5 0 A No.

1 0 : 1 8 : 0 6 1

 2

 3

 4

1 0 : 1 8 : 2 6 5

 6

 7

 8

 9

1 0 : 1 8 : 4 4 10

11

12

13

14

1 0 : 1 9 : 2 4 15

16

17

18

19

1 0 : 1 9 : 3 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 72 of 255
 335

CROSS-EXAMINATION - KELLI KUESTER

MR. KEZHAYA: If I may have a moment, Your Honor?

THE COURT: You may.

MR. KEZHAYA: Pass the witness, Your Honor.

THE COURT: All right.

Cross-examination.

MR. CLOAR: Could we give the witness Exhibit 15, as

well, please, and Exhibit 7 if she doesn't already have it.

THE COURTROOM DEPUTY: 7?

MR. CLOAR: 7. 6, 7, 12, and 15.

Could we have the video monitor switched over to

defendants' side, please.

Thank you.

C R O S S - E X A M I N A T I O N 

BY MR. CLOAR: 

Q Good morning, Ms. Kuester.

A Good morning.

Q Ms. Kuester, there's been a lot of discussion about a list

this morning. And I want to clear up a little bit of

confusion for the Court about the list.

In front of you should be a folder labeled

Exhibit 15. Do you have that in front of you?

A Yes.

MR. CLOAR: Michelle, could you publish Exhibit 15

on the monitors, please.

1 0 : 1 9 : 5 7 1

 2

 3

 4

1 0 : 2 0 : 0 3 5

 6

 7

 8

 9

1 0 : 2 0 : 4 0 10

11

12

13

14

1 0 : 2 0 : 5 1 15

16

17

18

19

1 0 : 2 1 : 0 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 73 of 255
 336

CROSS-EXAMINATION - KELLI KUESTER

BY MR. CLOAR: 

Q Since becoming management assistant to the mayor, you've

invited folks to come give invocations on behalf of the city

council before regular city council meetings; right?

A Yes.

Q Using a list that you maintain?

A Yes.

Q I want you to take a look at Exhibit 15 and familiarize

yourself with it. Is Exhibit 15 that list?

A Yes.

Q Now, can you tell the Court if there are any pages of

Exhibit 15 that you personally created?

A Page 5 of 8, Invocation 2015.

Q So the fourth page of Exhibit 15? I know the numbering

makes it rather confusing, but I believe it is the fourth?

A Yes. That page to the end is what I have created.

Q Is it fair to say all of the typewritten pages are the

pages you created?

A Yes.

Q You took the job of management assistant to the mayor in

summer of 2015; right?

A Yes.

Q Can you explain to the Court when you took the job of

management assistant to the mayor, how you went about creating

1 0 : 2 2 : 3 3 the first page, which is Invocation 2015 of Exhibit 15, how

1 0 : 2 1 : 1 0 1

 2

 3

 4

1 0 : 2 1 : 1 9 5

 6

 7

 8

 9

1 0 : 2 1 : 3 1 10

11

12

13

14

1 0 : 2 2 : 0 7 15

16

17

18

19

1 0 : 2 2 : 2 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 74 of 255
 337

CROSS-EXAMINATION - KELLI KUESTER

you created that list.

THE COURT: It's not the first page of Exhibit 15.

MR. CLOAR: Fourth page, Your Honor. 

THE COURT: It's -- 

MR. CLOAR: If I said the first page, I misspoke.

THE COURT: It's not the fourth page. It's about

the 15th page of what is marked as Exhibit 15. If you're

talking about Bates number 7323; is that right?

MR. CLOAR: Yes, Your Honor.

THE COURT: Okay. That's about 12 pages in, because

the handwritten pages are before it in the exhibit. I

understand the page you're on now.

MR. CLOAR: My apologies, Your Honor. I will use

Bates stamps for the rest of the cross-examination.

THE COURT: That would help.

BY MR. CLOAR: 

Q Ms. Kuester, could you explain to the Court how you went

about creating -- the small numbers in the right-hand corner

are called Bates stamps. Will you understand if I refer to

those as Bates stamps? It says COS-ST-007323.

A The bottom right-hand corner, yes.

Q Yes. Okay.

A Yes.

Q Was the Bates stamp ending in terminal number 7323 the

1 0 : 2 3 : 4 0 first version of this list that you were in charge of

1 0 : 2 2 : 3 7 1

 2

 3

 4

1 0 : 2 2 : 4 5 5

 6

 7

 8

 9

1 0 : 2 3 : 0 3 10

11

12

13

14

1 0 : 2 3 : 1 7 15

16

17

18

19

1 0 : 2 3 : 2 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 75 of 255
 338

CROSS-EXAMINATION - KELLI KUESTER

creating?

A Yes.

Q Could you explain to the Court how you went about creating

what is labeled as page 7323 of Exhibit 15.

A Yes. So when I started in the summer of 2015, we still

had some dates that we needed to fill for the rest of 2015.

So I went back to, I think, the previous two years and I

collected the contact information that we had, and I sent an

e-mail blast out that showed the remaining dates that we had.

And I asked our -- anyone who was on that list to sign up for

the remaining dates.

In October of 2015, I believe I received the new

city council meeting dates for 2016, so again I took the

contact information that I had from the two previous years

and I asked that they just sign up for any dates that they

were interested in providing an invocation for 2016.

And that's how I continued my processing forward.

Q I'd like to break that down into pieces. So typically you

send out what you've referred to as an e-mail blast. Do you

mean one large e-mail to everybody whose contact information

is on page 7323 with Exhibit 15, for instance?

A Yes. That, and maybe the page before, possibly, if I

needed additional names.

Q And when you send out that e-mail blast, do you give them

1 0 : 2 5 : 0 7 the invocation dates available for -- the invocation dates

1 0 : 2 3 : 4 3 1

 2

 3

 4

1 0 : 2 3 : 5 2 5

 6

 7

 8

 9

1 0 : 2 4 : 1 5 10

11

12

13

14

1 0 : 2 4 : 3 1 15

16

17

18

19

1 0 : 2 4 : 4 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 76 of 255
 339

CROSS-EXAMINATION - KELLI KUESTER

available for the next calendar year?

A Yes.

Q And it's every regular city council meeting; right?

A Yes.

Q And does your -- you may have answered this already, but

does your list change from year to year?

A Yes, it could change from year to year.

Q To your knowledge, did any of the entities or people

listed on Exhibit 15 lack a substantial connection to the City

of Scottsdale?

A No.

Q From the day you started scheduling invocations until

February 8, 2016, did any group contact you asking to give an

invocation on behalf of the Scottsdale city council without

you asking them first?

A No.

Q To your knowledge, have you been the only point of contact

from the City for scheduling invocations?

A Yes.

Q Have you ever once asked what a party asking -- strike

that.

Have you ever asked once -- strike that again.

Have you ever asked anybody who was scheduled to give

an invocation what their religious beliefs were?

1 0 : 2 6 : 1 6 A No.

1 0 : 2 5 : 1 0 1

 2

 3

 4

1 0 : 2 5 : 1 8 5

 6

 7

 8

 9

1 0 : 2 5 : 3 4 10

11

12

13

14

1 0 : 2 5 : 5 2 15

16

17

18

19

1 0 : 2 6 : 0 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 77 of 255
 340

CROSS-EXAMINATION - KELLI KUESTER

Q Did you care?

A No.

Q To your knowledge, has the City ever declined an

invocation because of the god or gods whom the invoker called

upon?

A No.

Q Now, Mr. Zarzycki contacted you February 8th, 2016; right?

A Yes.

Q Not somebody named Michelle Shortt?

A No.

Q Have you ever spoken to somebody named Michelle Shortt?

A No.

Q Prior to this litigation, had you ever even heard the name

Michelle Shortt.

A No.

Q So Mr. Zarzycki's phone call on February 8th, 2016, that

was the first time you received a request to give an

invocation without you reaching out first; true?

A Yes.

Q Did Mr. Zarzycki ever tell you any of his religious views?

A No.

Q Did you ask him?

A No.

Q Did Mr. Zarzycki ever tell you the views of any of the

1 0 : 2 7 : 1 6 plaintiff entities that are here today?

1 0 : 2 6 : 1 7 1

 2

 3

 4

1 0 : 2 6 : 2 6 5

 6

 7

 8

 9

1 0 : 2 6 : 3 9 10

11

12

13

14

1 0 : 2 6 : 5 0 15

16

17

18

19

1 0 : 2 7 : 0 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 78 of 255
 341

CROSS-EXAMINATION - KELLI KUESTER

A No.

Q Did you ask Mr. Zarzycki about the religious views of any

of the plaintiff entities?

A No.

Q Did anyone ever describe the contents of any proposed

invocation to you?

A No.

Q You did schedule Mr. Zarzycki's group to give an

invocation before a Scottsdale city council meeting; right?

A Yes.

Q Do you remember the date of that meeting?

A The original date was April 5th of 2016.

Q Did Mr. Zarzycki's group give an invocation April 5th,

2016?

A No.

Q Why not?

A They requested to reschedule. They needed to cancel

April 5th.

Q I'd like you to grab Exhibit 6 in front of you. 

MR. CLOAR: Michelle, if you could publish Exhibit 6

on the monitors, please.

BY MR. CLOAR: 

Q I'm showing you Exhibit 6. Is that the e-mail

Mr. Zarzycki sent you asking you to reschedule?

1 0 : 2 8 : 1 7 A Yes.

1 0 : 2 7 : 1 8 1

 2

 3

 4

1 0 : 2 7 : 2 7 5

 6

 7

 8

 9

1 0 : 2 7 : 4 3 10

11

12

13

14

1 0 : 2 7 : 5 5 15

16

17

18

19

1 0 : 2 8 : 0 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 79 of 255
 342

CROSS-EXAMINATION - KELLI KUESTER

Q After Mr. Zarzycki sent you Exhibit 6, did you respond to

Mr. Zarzycki?

A Yes, I did.

Q Did you give Mr. Zarzycki alternate dates?

A Yes, I did.

Q I'd like you to grab Exhibit 7 now in front of you. 

MR. CLOAR: And Michelle, if you could publish

Exhibit 7.

BY MR. CLOAR: 

Q Is Exhibit 7 the response you sent to Mr. Zarzycki?

A Yes.

Q What alternate days did you give him?

A July 5th or July 6th.

Q Do you know which date he picked?

A July 6th.

Q Did Mr. Zarzycki's group give an invocation on July 6th?

A No.

Q Why not?

A I was asked by Mr. Biesemeyer to cancel the invocation for

July 6th.

Q Have you ever asked a Tucson-based group to give an

invocation on behalf of the Scottsdale city council before a

regular city council meeting?

A No.

1 0 : 2 9 : 1 4 Q What about a group from Payson?

1 0 : 2 8 : 1 8 1

 2

 3

 4

1 0 : 2 8 : 3 0 5

 6

 7

 8

 9

1 0 : 2 8 : 3 7 10

11

12

13

14

1 0 : 2 8 : 5 0 15

16

17

18

19

1 0 : 2 9 : 0 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 80 of 255
 343

CROSS-EXAMINATION - KELLI KUESTER

A No.

Q Prescott?

A No.

Q Bisbee?

A No.

THE COURT: We're going to break at this point. We

will resume in 15 minutes at a quarter to the hour.

(Recess taken from 10:29 to 10:45.)

THE COURT: Please be seated.

MR. KEZHAYA: Your Honor, one quick point of order.

How much time do we have?

THE COURT: I'll let you know at noon.

MR. KEZHAYA: Yes, Judge. 

THE COURT: And if I can do it during the

questioning, I'll do it, but --

Actually, hold on a minute. Yours is all on my

iPad, I think.

You have used 52 minutes today so far.

MR. KEZHAYA: Okay. Yes, Judge.

THE COURT: Okay.

MR. CLOAR: Thank you, Your Honor.

BY MR. CLOAR: 

Q Just a few more questions I think, Ms. Kuester. Okay?

A Okay.

1 0 : 4 6 : 3 7 Q Ms. Kuester, did you ever have any conversation with any

1 0 : 2 9 : 1 6 1

 2

 3

 4

1 0 : 2 9 : 2 0 5

 6

 7

 8

 9

1 0 : 4 5 : 5 9 10

11

12

13

14

1 0 : 4 6 : 0 7 15

16

17

18

19

1 0 : 4 6 : 3 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 81 of 255
 344

CROSS-EXAMINATION - KELLI KUESTER

member of the city council where they directed you to cancel

the requested invocation?

A I'm sorry, can you say that one more time?

Q Sure. Did you ever have any conversations with any member

of the Scottsdale city council where they directed you to

cancel Mr. Zarzycki's requested invocation?

A No.

Q Did you ever have a conversation with the mayor,

Mayor Lane, where he asked you to cancel Mr. Zarzycki's

requested invocation?

A No.

Q Did Mr. Biesemeyer ever say words to you to the effect of

I dislike the Satanic Temple, or words to that effect?

A No.

Q Did Mr. Biesemeyer ever say anything to you that gave you

the impression that he disliked The Satanic Temple or a --

MR. KEZHAYA: Objection, Your Honor.

BY MR. CLOAR: 

Q -- calling itself The Satanic Temple?

MR. KEZHAYA: All these questions of what did

Mr. Biesemeyer tell you is hearsay.

MR. CLOAR: It's not being offered --

THE COURT: Hold on.

MR. CLOAR: My apologies, Your Honor.

1 0 : 4 7 : 3 8 THE COURT: Overruled.

1 0 : 4 6 : 4 0 1

 2

 3

 4

1 0 : 4 6 : 5 1 5

 6

 7

 8

 9

1 0 : 4 7 : 0 4 10

11

12

13

14

1 0 : 4 7 : 2 3 15

16

17

18

19

1 0 : 4 7 : 3 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 82 of 255
 345

CROSS-EXAMINATION - KELLI KUESTER

BY MR. CLOAR: 

Q Would you like me to re-ask the question?

A Yes, please.

Q Of course. Did Mr. Biesemeyer ever say words to you that

you took to mean that Mr. Biesemeyer disliked The Satanic

Temple?

A No.

Q After you -- after the -- strike that.

After the May 23rd, 2016, e-mail where The Satanic

Temple was informed they would not be permitted to give an

invocation, did you ever hear from anybody affiliated with

plaintiffs ever again?

A No, I did not.

Q Between May 23, 2016, and the commencement of this

litigation, have you heard one word from anybody associated

with the plaintiffs at all?

A No.

Q Between May 23, 2016, and the commencement of this

litigation, has anybody ever contacted you, in the universe,

and asserted that The Satanic Temple has some connection with

the City of Scottsdale?

A No.

Q Between the time you began scheduling invocations on

behalf of the city council and May 23, 2016, did you ever

1 0 : 4 8 : 5 8 schedule a non-faith-based speech to be given before a

1 0 : 4 7 : 4 1 1

 2

 3

 4

1 0 : 4 7 : 4 9 5

 6

 7

 8

 9

1 0 : 4 8 : 1 0 10

11

12

13

14

1 0 : 4 8 : 2 6 15

16

17

18

19

1 0 : 4 8 : 4 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 83 of 255
 346

EXAMINATION - KELLI KUESTER

Scottsdale city council meeting?

A No.

MR. CLOAR: If I may have one moment, Your Honor.

THE COURT: You may.

MR. CLOAR: Nothing further at this time,

Your Honor.

THE COURT: Redirect?

MR. KEZHAYA: No questions, Your Honor.

E X A M I N A T I O N 

BY THE COURT: 

Q I have a question for you, Ms. Kuester.

I'm looking at Exhibit 15 and sometimes under the

invocation list, such as page 7320, if you look at the lower

right-hand side, it has councilmember in the place of, it

appears, the individual giving the invocation.

Was it your understanding in those instances that a

member of the council gave the invocation?

A To the best of my memory, that may have been an instance

where it was a councilmember doing a moment of silence.

Q Okay. That leads to the second question I had. Above it

on that page is two moments of silence. What was your

understanding of the intent or what was done during a moment

of silence before the council?

A A councilmember would just request a moment of silence.

1 0 : 5 0 : 5 9 Q Is that everything you know about what was intended by

1 0 : 4 9 : 0 3 1

 2

 3

 4

1 0 : 4 9 : 2 6 5

 6

 7

 8

 9

1 0 : 4 9 : 3 5 10

11

12

13

14

1 0 : 5 0 : 0 9 15

16

17

18

19

1 0 : 5 0 : 3 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 84 of 255
 347

EXAMINATION - KELLI KUESTER

moment of silence, is that it would be requested by a

councilmember?

A Yes.

Q Did you attend the council meetings?

A Most counsel meetings I attend, yes.

Q Were you there when moments of silence were observed?

A I have been there, yes.

Q Can you just describe what happens at that time?

A When we've had moments of silence, for example, on that

page on February 20th for the Florida school shooting, that

was a particular instance where the mayor wanted to recognize

that particular event and other -- in other instances it was

just, for lack of a better word, generic moment of silence

where nothing was really being recognized, it was just a

moment of silence that was being requested.

THE COURT: All right. Thank you.

You can step down.

MR. KEZHAYA: The Court's question does not prompt

any questions from us, Your Honor.

MR. CLOAR: None from the defense, Your Honor.

THE COURT: All right. Next witness.

MR. de HAAN: Your Honor, plaintiffs call

Doug Misicko. 

MR. CLOAR: Your Honor, I left my water cup. Might

1 0 : 5 2 : 5 6 I grab it --

1 0 : 5 1 : 0 2 1

 2

 3

 4

1 0 : 5 1 : 0 9 5

 6

 7

 8

 9

1 0 : 5 1 : 2 5 10

11

12

13

14

1 0 : 5 1 : 4 8 15

16

17

18

19

1 0 : 5 2 : 0 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 85 of 255
 348

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

THE COURT: You may.

Hold on, sir.

You can get your water.

DOUGLAS ALEXANDER MISICKO,

called as a witness herein, after having been sworn or 

affirmed, was examined and testified as follows: 

THE COURTROOM DEPUTY: State your name for the

record and spell your last name.

THE WITNESS: My name is Douglas Alexander Misicko,

M-I-S-I-C-K-O.

THE COURTROOM DEPUTY: Great. Have a seat up here,

sir.

D I R E C T E X A M I N A T I O N 

BY MR. de HAAN: 

Q Good morning. Would you please state your name for the

record.

A My name is Douglas Alexander Misicko, M-I-S-I-C-K-O.

Q Thank you.

And do you typically go by a pen name or pseudonym?

A Correct.

Q What is that?

A I'm also known as Lucien Greaves.

Q Lucien Greaves. Okay. 

Now, what is your role with The Satanic Temple?

1 0 : 5 4 : 1 6 A I cofounded The Satanic Temple and I act as its lead

1 0 : 5 2 : 5 8 1

 2

 3

 4

 5

 6

 7

 8

 9

1 0 : 5 3 : 3 3 10

11

12

13

14

1 0 : 5 3 : 5 5 15

16

17

18

19

1 0 : 5 4 : 0 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 86 of 255
 349

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

spokesperson.

Q And when did that occur?

A 2013.

Q And when would you say The Satanic Temple became codified

as a religion?

A After I became involved with it in 2013.

Q And as far as any codified tenets, when did that occur?

A After my formal involvement in 2013.

Q And could you briefly describe what's your code, what's

your tenets or what have you. How many are there, things like

that.

A There are seven tenets. I can recite them if you'd like.

Q Have -- in the history of The Satanic Temple as codified,

has there been anything other than the seven tenets as far as

that?

A There have not.

Q Now, at some point was The Satanic Temple recognized by

the IRS as a 501(c)(3)?

A That is correct.

Q And did you receive a letter to that purpose?

A We did.

MR. de HAAN: May I approach, Your Honor?

THE COURT: You may.

BY MR. de HAAN: 

1 0 : 5 5 : 4 7 Q If you could please look at that document.

1 0 : 5 4 : 2 0 1

 2

 3

 4

1 0 : 5 4 : 3 0 5

 6

 7

 8

 9

1 0 : 5 4 : 5 8 10

11

12

13

14

1 0 : 5 5 : 1 2 15

16

17

18

19

1 0 : 5 5 : 2 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 87 of 255
 350

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

MR. CLAUS: Could I just ask what document?

THE COURT: What's the exhibit?

MR. de HAAN: Number 3.

THE COURT: All right.

BY MR. de HAAN: 

Q Could you describe what that letter is?

A This is the letter conferring upon us recognition by the

federal government as a establishment of religion.

Q And was that letter signed by a public official?

A Correct, it was.

Q And is that a true and correct copy of what The Satanic

Temple received from the IRS?

A Yes. From what I see, this is the letter that we

received.

MR. de HAAN: Plaintiff moves to admit Exhibit 3.

MR. CLAUS: No objection, Your Honor.

THE COURT: Admitted.

(Exhibit 3 admitted.)

BY MR. de HAAN: 

Q Now, in order to obtain this tax-exempt status, did you

have to go through a number of steps?

A Yes.

Q How long did that take?

A I believe it took about two years.

1 0 : 5 6 : 5 8 Q What kinds of things did you need to produce to be

1 0 : 5 5 : 5 5 1

 2

 3

 4

1 0 : 5 6 : 0 3 5

 6

 7

 8

 9

1 0 : 5 6 : 2 7 10

11

12

13

14

1 0 : 5 6 : 3 8 15

16

17

18

19

1 0 : 5 6 : 4 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 88 of 255
 351

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

recognized as a religion?

A We needed to establish that we had a place that was used

as something of a -- of a place of worship or where we

congregated, that we engaged in ritual religious practices and

that we held services, and various other points that I think

we qualified for each and every one upon.

Q Okay. So I'm going to kind of just list things to you.

You said you had to show religious practices?

A Correct.

Q Is that in the form of ceremony or ritual, or how did you

do that?

MR. CLAUS: Objection. Leading, Your Honor.

THE COURT: Overruled.

THE WITNESS: All of the above, ceremony or ritual

services, spiritual guidance, I believe, that type of thing.

BY MR. de HAAN: 

Q Does the Satanic Temple have its own unique iconography?

A It does.

Q Does The Satanic Temple have a monument?

A Satanic Temple does have more than one monument.

Q Are there certain texts that are considered doctrinal to

The Satanic Temple?

A There are. We have a list of canonized texts that include

things like Milton's Paradise Lost, Anatole France's Revolt of

1 0 : 5 8 : 1 8 the Angels, and others from the literary satanic tradition.

1 0 : 5 7 : 0 0 1

 2

 3

 4

1 0 : 5 7 : 2 2 5

 6

 7

 8

 9

1 0 : 5 7 : 3 6 10

11

12

13

14

1 0 : 5 7 : 4 5 15

16

17

18

19

1 0 : 5 8 : 0 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 89 of 255
 352

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q And when you say literary satanic tradition, how far back

are we talking?

A We're talking about around 17th century, starts with

Milton's Paradise Lost.

Q So is it fair to say you did not invent satanism?

A I did not invent satanism. And I feel that The Satanic

Temple just better describes satanism.

Q Does the Satanic Temple have an ordination program?

A The Satanic Temple is rolling out its ordination program.

We've been working on it for about four years now so that we

can have qualified and competent people to represent satanism,

performing services, and acting as clergy and chaplains.

Q Do people visit -- well, first, where is the physical

location headquartered?

A The Satanic Temple headquarters in located in Salem,

Massachusetts.

Q And do people come to visit it?

A There are many people regularly come to visit The Satanic

Temple headquarters in Salem and refer to that as a

pilgrimage.

Q Does the Satanic Temple recognize holidays?

A We do.

Q Does The Satanic Temple engage in any kind of charity or

public services?

1 1 : 0 0 : 0 0 A We do.

1 0 : 5 8 : 2 3 1

 2

 3

 4

1 0 : 5 8 : 3 6 5

 6

 7

 8

 9

1 0 : 5 8 : 5 9 10

11

12

13

14

1 0 : 5 9 : 2 7 15

16

17

18

19

1 0 : 5 9 : 4 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 90 of 255
 353

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q Could you describe maybe a couple of those.

A Yeah. Sometimes some of our chapters will collect

clothing for the homeless. Many chapters have collected

menstrual hygiene products for those who can't afford them.

And other such charity work, from beach cleanups to helping

out at animal shelters.

Q And are these things organized with the main hierarchy of

The Satanic Temple?

A They all gain the approval of the national council of The

Satanic Temple. Often they're proposed by the individual

chapters themselves.

Q How many chapters in the United States, if you know

offhand?

A I don't know offhand, but we have a presence of either

mass and probationary chapters or officially formally

recognized chapters in each of the 50 states.

Q Do you have to be an official member of The Satanic Temple

to adhere to the Satanic Temple's beliefs?

A No. We have allies who identify with other religious

beliefs, but not all of them choose to identify as satanists.

Q And to be in a leadership position in The Satanic Temple,

do you have to identify as a satanist?

A You do.

Q I know we talked briefly about the hierarchy. Is there a

1 1 : 0 1 : 4 0 hierarchical structure?

1 1 : 0 0 : 0 1 1

 2

 3

 4

1 1 : 0 0 : 2 0 5

 6

 7

 8

 9

1 1 : 0 0 : 4 2 10

11

12

13

14

1 1 : 0 0 : 5 9 15

16

17

18

19

1 1 : 0 1 : 2 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 91 of 255
 354

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

A There is, yeah. There is the executive ministry, which

would consist of me and the other cofounder. There's a

council that we have that deliberates over issues related to

chapter requests, activities they want to engage in, and then

there's the chapter heads themselves, their media liaisons,

and the active chapter members.

Q Now, as far as national chapter, are these permanent

positions?

A They're not.

Q And is there some kind of process by which someone wants

to do public speaking or be a chapter head that -- is there an

approval process?

A Yes, there is.

Q Okay. Now I want to take you to around the end of 2015,

beginning of 2016. Was The Satanic Temple in operation?

A Yes.

Q And were there chapter heads around the country?

A There were.

Q Do you -- or who has permission to grant somebody the

ability to either public speak or be a chapter head? Who has

the authority to do that?

A Either executive ministry or the council.

Q And how many people are in the council?

A Currently, I'm not sure, but we had kind of capped the

1 1 : 0 3 : 0 2 number at nine. I think there's seven now.

1 1 : 0 1 : 4 2 1

 2

 3

 4

1 1 : 0 1 : 5 8 5

 6

 7

 8

 9

1 1 : 0 2 : 1 4 10

11

12

13

14

1 1 : 0 2 : 2 9 15

16

17

18

19

1 1 : 0 2 : 4 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 92 of 255
 355

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q Okay.

In 2015 -- do you know Michelle Shortt?

A I do.

Q When did you come to know Michelle Shortt?

A I believe that was 2015.

Q Now, how did this invocation situation come about? Why

would you want to do -- why would you want members to do

invocations?

A The impetus to do invocations came not only from asserting

pluralism in light of the Greece versus Galloway Supreme Court

decision which stated that public invocations could be given

before public meetings so long as there was no religious

discrimination against which religious groups could do so and

no discrimination against nonbelievers as well.

But beyond just asserting pluralism, we were also a

new religious organization and wanted to make people aware

that we have an affirmative message and we have concerned

people within our ranks willing to engage in a positive way

with their communities.

Q And do you know, can you say with any certainty how many

members The Satanic Temple has?

A I cannot say with any certainty, but to say it numbers in

the hundreds of thousands.

Q Is that just in the United States?

1 1 : 0 4 : 4 5 A No. It's internationally.

1 1 : 0 3 : 0 5 1

 2

 3

 4

1 1 : 0 3 : 2 1 5

 6

 7

 8

 9

1 1 : 0 3 : 4 3 10

11

12

13

14

1 1 : 0 4 : 0 5 15

16

17

18

19

1 1 : 0 4 : 3 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 93 of 255
 356

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q Now let's turn to Scottsdale.

At some point, did anyone in Arizona request to be an

invocator or someone that gives invocations?

A I believe I was in contact with Michelle Shortt about an

invocation in Phoenix. And the Phoenix invocation, they

decided to move to a policy of silence, whereupon I believe it

was Michelle who decided to apply to give an invocation in

Scottsdale, being that Scottsdale had no prerequisites for who

was allowed to deliver the invocation that would prevent her

from doing so.

Q Who authorized her to do this?

A I did.

Q Is she a member of The Satanic Temple in good standing?

A She was.

Q She's no longer -- or as far as you know, it came out

she's no longer a chapter head; is that your understanding?

A Correct. She's no longer a chapter head.

Q Is she still authorized to speak on behalf of The

Satanic Temple?

A She is.

Q Now, let's talk about the invocation itself that was

discussed. Do you know the invocation in question?

A I do.

MR. de HAAN: May I approach?

1 1 : 0 6 : 3 0 THE COURT: You may.

1 1 : 0 4 : 4 8 1

 2

 3

 4

1 1 : 0 5 : 1 2 5

 6

 7

 8

 9

1 1 : 0 5 : 4 1 10

11

12

13

14

1 1 : 0 5 : 5 2 15

16

17

18

19

1 1 : 0 6 : 0 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 94 of 255
 357

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

BY MR. de HAAN: 

Q What is the source of that invocation?

MR. CLAUS: Objection, Your Honor. I don't know

what he's showing the witness.

THE COURT: You need to identify the exhibit.

MR. de HAAN: Number 4. Plaintiffs' 4.

MR. CLAUS: Thank you.

BY MR. de HAAN: 

Q Do you see the document in front of you?

A I do.

Q Do you recognize that?

A I do.

Q Could you describe what it is?

A I'm sorry?

Q Could you describe what it is?

A It is the invocation that Michelle Shortt intended to

deliver in Scottsdale.

Q And what is the source of it?

A I'm the source of it. I authored it.

Q And when did you do that?

A I did that after the Supreme Court decision Greece versus

Galloway in response to a journalist from the Los Angeles

Times reaching out to me and asking what a Satanic invocation

might look like.

1 1 : 0 7 : 4 8 Q Is this, to you, a religious invocation?

1 1 : 0 6 : 3 0 1

 2

 3

 4

1 1 : 0 6 : 5 5 5

 6

 7

 8

 9

1 1 : 0 7 : 0 9 10

11

12

13

14

1 1 : 0 7 : 1 4 15

16

17

18

19

1 1 : 0 7 : 2 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 95 of 255
 358

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

A It is.

Q Now, as far as the contents of this invocation, what is

the intent?

MR. CLAUS: Objection, Your Honor. Foundation.

Relevance as to his intent.

THE COURT: Overruled.

THE WITNESS: The intent, I think, is one of

personal empowerment and liberation. An affirmative message

for people to kind of look within regardless of whatever

indoctrination they might have gone through or whatever

presumptions they might have, and look at the best available

evidence and move forward.

BY MR. de HAAN: 

Q Now, the word agnosticism is in there.

A Correct.

Q What does that mean to you?

A To me that means that you should withhold judgment the

best you can until you have the best available evidence with

which to weigh it by.

Q What do you mean when you say "arcane doctrines born of

fearful minds in darkened times"? What is that referring is

to?

A That refers to any doctrine --

MR. CLAUS: Objection. Relevance as to his intent.

1 1 : 0 9 : 0 3 THE COURT: Overruled.

1 1 : 0 7 : 5 1 1

 2

 3

 4

1 1 : 0 8 : 0 0 5

 6

 7

 8

 9

1 1 : 0 8 : 2 1 10

11

12

13

14

1 1 : 0 8 : 3 8 15

16

17

18

19

1 1 : 0 8 : 4 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 96 of 255
 359

DIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

THE WITNESS: That refers to any doctrines that

would put somebody in a position of subjugation or silence,

and it needs to be taken -- the sentence needs to be taken in

its entirety and needs to be taken actually by the individual

and how they perceive what an arcane doctrine from darkened

times might be. For one person, one doctrine might be

something that demands their servitude. For other people it

might be a metaphorical statement about some type of internal

universal struggle.

So for that reason it doesn't put a fine point upon

distinguishing any particular doctrine or religious

viewpoint, it just tries to imbue people with the sense of

personal empowerment that if there are such doctrines that

they feel subjugate them, they should feel to librate

themselves from those.

BY MR. de HAAN: 

Q Now, you had mentioned that this is religious to you. Is

The Satanic Temple theistic?

A It is not.

Q What is the difference between identifying as a

Satanic Temple satanist and being an atheist?

A Well, I think The Satanic Temple's beliefs speak to

something more generalized that is uninformed by, untouched

by, and I would argue untouchable by science, in that it views

1 1 : 1 0 : 3 9 this universal struggle against tyranny and autonomy, it puts

1 1 : 0 9 : 0 5 1

 2

 3

 4

1 1 : 0 9 : 2 2 5

 6

 7

 8

 9

1 1 : 0 9 : 4 0 10

11

12

13

14

1 1 : 1 0 : 0 0 15

16

17

18

19

1 1 : 1 0 : 1 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 97 of 255
 360

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

this kind of value upon balance that can't be proven, but it

does speak to universal truths of the utmost importance.

MR. de HAAN: May I have a moment, Your Honor.

No further questions, Your Honor.

THE COURT: Cross-examination.

MR. de HAAN: Your Honor, briefly, may I approach

to --

C R O S S - E X A M I N A T I O N 

BY MR. CLAUS: 

Q Good afternoon, Mr. Misicko.

The first thing I want to talk to you about is you

were excluded from the courtroom pursuant to the invocation of

the rule on exclusion; correct?

A I don't know.

Q You were sitting outside abiding your testimony; correct?

A Correct. By my choice of sitting outside of the

courtroom.

Q I see.

I put some exhibits in front of you. Could you

please get the folder with Exhibit 76 in it, please.

Do you have Exhibit 76 in front of you, sir?

A I do.

Q Do you see how Exhibit 76 has the title Affiliation

Agreement?

1 1 : 1 6 : 2 6 A Correct.

1 1 : 1 0 : 4 3 1

 2

 3

 4

1 1 : 1 1 : 2 3 5

 6

 7

 8

 9

1 1 : 1 5 : 1 9 10

11

12

13

14

1 1 : 1 5 : 3 8 15

16

17

18

19

1 1 : 1 5 : 5 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 98 of 255
 361

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q If you go to the last page, sir.

A Okay.

Q Do you see how the affiliation agreement is signed by

Michelle Shortt and Stu de Haan?

A I do.

Q You have never provided in this litigation any affiliation

agreement between the United Federation of Churches LLC and

anything calling itself the Arizona Chapter of The Satanic

Temple that is signed by any authorized party of the United

Federation of Churches LLC; correct?

A Correct.

Q And you have not produced in this litigation any

affiliation agreement at all; correct?

A I don't understand.

Q You have not produced in this litigation any affiliation

agreement between the United Federation of Churches LLC and

The Satanic Temple. You, meaning Mr. Misicko.

A Oh, I don't know. For all I knew I had provided this one.

Q Okay. Is Exhibit 76 the "this one" to which you are

referring?

A Yes.

Q Is Exhibit 76 the only affiliation agreement that you have

produced in this litigation?

A My understanding is that it is not, but I'm not certain.

1 1 : 1 7 : 4 9 Q You have not produced an affiliation agreement between the

1 1 : 1 6 : 2 6 1

 2

 3

 4

1 1 : 1 6 : 3 9 5

 6

 7

 8

 9

1 1 : 1 6 : 5 8 10

11

12

13

14

1 1 : 1 7 : 1 1 15

16

17

18

19

1 1 : 1 7 : 3 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 99 of 255
 362

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

United Federation of Churches LLC and Michelle Shortt or The

Satanic Temple Arizona that contains an authorized signature

of the United Federation of Churches LLC; correct?

A I'll take your word for it.

Q No, sir, I'm asking you to testify under penalty of

perjury, have you --

A I'm under the impression that every statement I give is

under penalty of perjury.

Q It is, sir. And that's why I'm asking you to testify, not

taking my word for it.

Do you know, sir, that you have not produced in this

litigation anything called an Affiliation Agreement other than

Exhibit 76?

A No, I don't recall what all we handed over to you.

Q You've never spoken with Mayor Jim Lane; correct?

A Correct.

Q For any reason; correct?

A Correct.

Q You've never spoken with a Councilwoman Suzanne Klapp;

correct?

A Correct.

Q For any reason?

A Correct.

Q You've never spoken with any member of the Scottsdale city

1 1 : 1 8 : 5 5 council who was a member in 2016; correct?

1 1 : 1 7 : 5 3 1

 2

 3

 4

1 1 : 1 8 : 0 8 5

 6

 7

 8

 9

1 1 : 1 8 : 2 2 10

11

12

13

14

1 1 : 1 8 : 3 8 15

16

17

18

19

1 1 : 1 8 : 4 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 100 of 255
 363

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

A That is correct.

Q And you've never spoken with a member of the Scottsdale

city council that was a member of the city council in any

year; true?

A True.

Q You have never requested the opportunity for anyone to

give an invocation before a Scottsdale City council meeting;

is that correct?

A I never directly contacted the city council about an

invocation.

Q And you've never spoken with any employee of the City of

Scottsdale for any reason; correct?

A Correct.

Q You've never delivered a written communication to the City

of Scottsdale describing the beliefs of the organization

calling itself The Satanic Temple; is that correct?

A I personally did not.

Q And you never directed anyone to send any written

communication on behalf of the United Federation of Churches

LLC doing business as The Satanic Temple, you never directed

anyone to send any written communication to a representative

of the City of Scottsdale describing the beliefs of the

organization calling itself The Satanic Temple; true?

A I believe that I gave Stu and Michelle explicit permission

1 1 : 2 0 : 1 3 to do that kind of correspondence and reach out and ask to

1 1 : 1 8 : 5 9 1

 2

 3

 4

1 1 : 1 9 : 0 7 5

 6

 7

 8

 9

1 1 : 1 9 : 2 3 10

11

12

13

14

1 1 : 1 9 : 3 3 15

16

17

18

19

1 1 : 1 9 : 5 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 101 of 255
 364

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

give the invocation. But I directly did not.

Q At no time have you delivered a written communication to

the City of Scottsdale describing any connection between the

organization that calls itself The Satanic Temple and the City

of Scottsdale; correct?

A There is no reason I would do so.

Q So you did not; correct?

A We were never asked.

Q You did not; correct?

A Correct.

Q Let's talk about the organization. You claim to be a

cofounder of The Satanic Temple?

A I am.

Q And you just testified, quote, there have not, end quote,

ever been anything other than the seven tenets with respect to

The Satanic Temple. Do you recall that testimony?

A There was never any other codified set of beliefs in the

founding of The Satanic Temple.

Q United Federation of Churches LLC owns the trademark The

Satanic Temple; correct?

A Correct.

Q The United Federation of Churches LLC owns the domain name

www.thesatanictemple.com; correct?

A Correct.

1 1 : 2 1 : 3 6 Q You know as a matter of historic fact that you were

1 1 : 2 0 : 1 7 1

 2

 3

 4

1 1 : 2 0 : 3 5 5

 6

 7

 8

 9

1 1 : 2 0 : 4 3 10

11

12

13

14

1 1 : 2 0 : 5 8 15

16

17

18

19

1 1 : 2 1 : 2 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 102 of 255
 365

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

involved with The Satanic Temple as of July 22, 2013; correct?

A Correct.

Q And you know as a matter of fact that as of July 22, 2013,

the website www.thesatanictemple.com stated that there are

nine fundamental tenets, with nine being a significant satanic

number; correct?

A Correct. That was a placeholder website preceding my

involvement with the Satanic Temple.

Q No, sir. July 22, 2013, was a day on which you had

already become involved in the Satanic Temple.

A Yes. Well, not everything happened on one day at one

time.

Q That wasn't my question, sir.

As of July 22, 2013, you had been involved with The

Satanic Temple for nearly seven months; correct?

A And we had not yet changed the placeholder website.

Q Sir, that wasn't my question. If you could answer my

question.

A Say again.

Q Sure. As of July 22, 2013, you --

A Yes, as of that date --

Q -- you had --

A -- we had not changed the placeholder website.

Q Let me ask my question, please.

1 1 : 2 2 : 5 9 A Carry on.

1 1 : 2 1 : 4 1 1

 2

 3

 4

1 1 : 2 2 : 0 3 5

 6

 7

 8

 9

1 1 : 2 2 : 2 1 10

11

12

13

14

1 1 : 2 2 : 3 2 15

16

17

18

19

1 1 : 2 2 : 4 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 103 of 255
 366

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q As of July 22, 2013, you had been associated with The

Satanic Temple as its so-called spokesperson for nearly seven

months. Is that a true statement or a false statement?

A It could be either. I'm not that certain on the timeline. 

Q Could you please look at Exhibit 56.

MR. CLAUS: In fact, could you get Exhibits 57, 58,

59, and 60, as well.

THE WITNESS: I do not have a 56.

MR. CLAUS: Oh.

And 56 apparently.

I apologize.

BY MR. CLAUS: 

Q I have asked the courtroom deputy to give you Exhibits 56,

57, 58, 59, and 60.

You know that as of August 5, 2013, you were involved

as a purported spokesperson for The Satanic Temple; correct?

A Correct.

Q And do you know that as of September 4, 2013, you had been

involved with The Satanic Temple as its purported

spokesperson; correct?

A Yeah, I believe so.

Q And you know that as of November 3, 2013, you were

involved as the purported spokesperson for The Satanic Temple;

correct?

1 1 : 2 5 : 0 1 A Correct.

1 1 : 2 3 : 0 0 1

 2

 3

 4

1 1 : 2 3 : 2 2 5

 6

 7

 8

 9

1 1 : 2 3 : 4 9 10

11

12

13

14

1 1 : 2 4 : 2 6 15

16

17

18

19

1 1 : 2 4 : 4 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 104 of 255
 367

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q And you know that as of December 12, 2013, you were

involved as a spokesperson for something that called itself

The Satanic Temple; correct?

A Correct.

Q And you also know that on July 22, 2013, August 5, 2013,

September 4, 2013, November 3, 2013, and December 12, 2013,

the domain name and website owned and controlled by the United

Federation of Churches LLC, www.thesatanictemple.com,

represented that there are nine fundamental tenets, with nine

being a significant satanic number associated with the thing

calling itself The Satanic Temple; correct?

A Yes, from --

MR. de HAAN: Objection.

THE WITNESS: -- from a placeholder website --

THE COURT: Hold on, please.

What's the objection?

MR. de HAAN: Your Honor, this is not relevant.

This has been disavowed multiple times as not being relative

to The Satanic Temple from an archive website. Additionally,

it is more prejudicial than probative because this has no

relevant value to the founders' statement of what The Satanic

Temple is. 

THE COURT: Overruled.

BY MR. CLAUS: 

1 1 : 2 6 : 1 9 Q You testified, on questioning by your counsel, when you

1 1 : 2 5 : 0 1 1

 2

 3

 4

1 1 : 2 5 : 1 5 5

 6

 7

 8

 9

1 1 : 2 5 : 4 8 10

11

12

13

14

1 1 : 2 6 : 0 1 15

16

17

18

19

1 1 : 2 6 : 0 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 105 of 255
 368

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

were asked have there ever been anything other than seven

tenets, you testified under penalty of perjury, quote, there

have not, end quote; correct?

A Yes, I have testified everything under penalty of perjury.

And I will tell you again that that was a placeholder website

and nobody viewed any of that as codified -- a codified part

of the religion.

Q It was a placeholder website in July of 2013 when you were

acting as spokesperson? August, September, November, and

December of 2013, when you were acting as spokesperson?

A Yes. It was a placeholder website until it was changed to

the formal website with the codified tenets.

Q But in 2013, the thing that called itself The Satanic

Temple had already been engaging in activities; correct?

A Those activities probably prevented me from doing any web

work.

Q You know who Malcolm Jarry is; correct?

A Correct.

Q Malcolm Jarry is a fake name; correct?

A It's a pseudonym.

Q Mr. Jarry's real name is Cevin with a C, C-E-V-I-N,

Soling? True?

A Yes.

Q Cevin Soling, who also uses the name Malcolm Jarry, is the

1 1 : 2 7 : 5 2 managing member of the United Federation of Churches LLC; is

1 1 : 2 6 : 2 4 1

 2

 3

 4

1 1 : 2 6 : 3 8 5

 6

 7

 8

 9

1 1 : 2 6 : 5 5 10

11

12

13

14

1 1 : 2 7 : 2 0 15

16

17

18

19

1 1 : 2 7 : 3 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 106 of 255
 369

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

that correct?

A Correct.

Q And UFC, United Federation of Churches LLC, not only owns

the domain name for The Satanic Temple, owns the trademark for

The Satanic Temple, but also owns all of the other trademarks

used and associated with The Satanic Temple; correct?

A Correct.

Q You know that Malcolm Jarry, aka -- or rather

Cevin Soling, aka Malcolm Jarry has the authority to act and

speak on behalf of the United Federation of Churches LLC;

correct?

A Correct.

Q You also know that Malcolm Jarry has admitted that The

Satanic Temple was founded --

MR. de HAAN: Objection. Hearsay.

THE COURT: What's your response on hearsay?

MR. CLAUS: He has just established that one of the

plaintiffs in this case, the United Federation of Churches

LLC --

THE COURT: Just tell me what your response is.

Under what rule?

MR. CLAUS: 801(2)(D)(2) -- 801(d)(2)(D),

801(d)(2)(C) it is not definitionally hearsay.

THE COURT: Objection is overruled.

1 1 : 2 7 : 5 6 1

 2

 3

 4

1 1 : 2 8 : 0 9 5

 6

 7

 8

 9

1 1 : 2 8 : 3 2 10

11

12

13

14

1 1 : 2 8 : 5 3 15

16

17

18

19

1 1 : 2 9 : 0 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 107 of 255
 370

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

BY MR. CLAUS: 

Q You know that Malcolm Jarry has stated that The Satanic

Temple was founded as, quote, a media stunt to expose what you

view as religious hypocrisy; correct?

A I do not believe that he ever said that.

Q You do not believe that Malcolm Jarry ever said that The

Satanic Temple was founded as a media stunt?

A I do not know what leads you to believe that and I don't

know that I've ever heard that.

Q You have seen the movie Hail Satan?

A I have.

Q You were in the movie Hail Satan?

A I was.

Q The movie Hail Satan that uses your likeness; correct?

A Correct.

Q Uses your pseudonym; correct?

A Correct.

Q You authorized the makers of Hail Satan to use your name

and pseudonym; correct?

A Correct.

Q The movie Hail Satan uses the trademark protected symbols

and words and phrases of the United Federation of Churches

LLC; correct?

A Correct.

1 1 : 3 0 : 3 3 Q And authorization was given for that as well; correct?

1 1 : 2 9 : 2 3 1

 2

 3

 4

1 1 : 2 9 : 4 0 5

 6

 7

 8

 9

1 1 : 3 0 : 0 0 10

11

12

13

14

1 1 : 3 0 : 1 3 15

16

17

18

19

1 1 : 3 0 : 2 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 108 of 255
 371

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

A Correct.

MR. CLAUS: Can you pull up Exhibit 105.

Time stamp 4:30 to 4:50.

MR. de HAAN: Your Honor, I'm going to object as to

hearsay. He's about to show a documentary that was not

created by The Satanic Temple, that was created by a director

that's not present to testify who's -- their own creative

expression --

THE COURT: I hear your hearsay objection.

Are you going to seek admission of Exhibit 105?

MR. CLAUS: I'm going to seek admission of the

statement of Malcolm Jarry, and then the statements of

Doug Misicko in Exhibit 105. And for that --

THE WITNESS: I can guarantee you --

THE COURT: Hold on. Hold on, sir.

MR. CLAUS: And I'm not going to show --

THE COURT: What's your response to the hearsay

objection?

MR. CLAUS: I'm not going to show any hearsay and

I'm not going to ask for admission of any hearsay portions of

Exhibit 105. We had provided --

THE COURT: The film is hearsay.

MR. CLAUS: The film -- the film is not hearsay to

the extent it contains the statements of Mr. Misicko, the

1 1 : 3 1 : 4 9 statements of Mr. Jarry, the statements of Ms. Shortt.

1 1 : 3 0 : 3 6 1

 2

 3

 4

1 1 : 3 0 : 5 9 5

 6

 7

 8

 9

1 1 : 3 1 : 1 4 10

11

12

13

14

1 1 : 3 1 : 2 6 15

16

17

18

19

1 1 : 3 1 : 3 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 109 of 255
 372

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

THE COURT: There's a double hearsay problem here.

We've got statements of -- I believe you're going to show

Mr. Jarry, but there's a second level of hearsay, which is

the film created by somebody else. How do you overcome that

hearsay problem?

MR. CLAUS: I'm not offering the film to prove the

truth of the statements made in the film. I'm offering the

statement of Malcolm Jarry to demonstrate that Mr. Misicko is

not telling Your Honor the truth about Malcolm Jarry, the

manager of the United Federation of Churches --

THE COURT: So you are offering the film to prove

the truth of what Mr. Jarry said?

MR. CLAUS: Malcolm Jarry's statement, Your Honor.

THE COURT: How do you overcome the second level of

hearsay?

MR. CLAUS: There is no second level of hearsay,

Your Honor, because we're not -- the second level --

THE COURT: Let me give you this example. Let's say

we have a police report that is hearsay, and within it is

quoted the statement of somebody that is also hearsay. That

is a double hearsay problem.

What we have here in effect is a document, a film,

that is hearsay, and we have within it a second statement of

Mr. Jarry that is hearsay. That is a double hearsay problem.

1 1 : 3 3 : 0 6 And for the film, with that statement to be admitted, you

1 1 : 3 1 : 5 3 1

 2

 3

 4

1 1 : 3 2 : 0 6 5

 6

 7

 8

 9

1 1 : 3 2 : 2 9 10

11

12

13

14

1 1 : 3 2 : 4 1 15

16

17

18

19

1 1 : 3 2 : 5 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 110 of 255
 373

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

have to overcome both levels of hearsay.

So my question is how do you overcome the film

hearsay problem?

MR. CLAUS: I overcome it by using at least the

generalized exception. There is no -- there is no question

as to the authenticity of the film that Mr. Misicko just

said --

THE COURT: What do you mean by general exception?

Are you talking about the residual exception?

MR. CLAUS: No, Your Honor. The general exception

that permits the Court to allow out-of-court statements so

long as there is an ample demonstration that those

out-of-court statements -- the purpose of the hearsay rule,

Your Honor, is to protect against out-of-court statements.

THE COURT: I think you're talking about the

residual exception, Rule 807; is that right?

MR. CLAUS: Yes, Your Honor.

This statement has a circumstantial guarantee of

trustworthiness. The film is a transmittal media. It's a

recording mechanism for his statement.

And I will say, Your Honor, on this point, they did

not produce to us the recorded statements of Mr. Misicko.

THE COURT: That's not relevant to the hearsay

issue. Let's stay on Rule 807.

1 1 : 3 4 : 3 4 MR. CLAUS: Yes. There is no question as to the

1 1 : 3 3 : 0 9 1

 2

 3

 4

1 1 : 3 3 : 1 8 5

 6

 7

 8

 9

1 1 : 3 3 : 3 4 10

11

12

13

14

1 1 : 3 3 : 5 4 15

16

17

18

19

1 1 : 3 4 : 1 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 111 of 255
 374

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

circumstantial guarantee of trustworthiness of the Hail Satan

documentary in which Mr. Misicko, Ms. Shortt, Mr. Soling,

Mr. de Haan made statements.

THE COURT: I think I understand your argument. Do

you have additional points to make?

MR. CLAUS: I do not have additional points,

Your Honor.

THE COURT: What is your response on 807?

MR. de HAAN: Your Honor, under 807(a)(2), there's

got to be a showing that this is more probative on point than

any other relevant evidence. He could have subpoenaed

Mr. Jarry. He's going to take, conceivably out of context,

part of an entire documentary for one statement, which also

raises a 403 objection.

So I would submit there's still double hearsay,

which this isn't the most probative evidence he could have

for this when -- when -- if he knew who Mr. Soling was the

entire time, he could have subpoenaed him.

THE COURT: I understand your point. 

You could have deposed Mr. Jarry; correct?

MR. CLAUS: I could not have deposed Mr. Jerry,

Your Honor.

THE COURT: Why?

MR. CLAUS: Because this film was not released until

1 1 : 3 5 : 3 9 April 27, 2019. There is a body of people who knew about the

1 1 : 3 4 : 3 9 1

 2

 3

 4

1 1 : 3 4 : 5 6 5

 6

 7

 8

 9

1 1 : 3 5 : 0 5 10

11

12

13

14

1 1 : 3 5 : 2 0 15

16

17

18

19

1 1 : 3 5 : 3 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 112 of 255
 375

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

statements long before the close of discovery. We were not

one of them.

THE COURT: You answered the question.

Was discovery closed by April of --

MR. CLAUS: Yes, it was, Your Honor.

THE COURT: What is your response, Mr. de Haan?

MR. de HAAN: First of all, this is a documentary

that was in production for three years where there's been

significant changes, there's an entire arc of the story of

this documentary that has things that are absolutely not

relevant --

THE COURT: He's not seeking to admit the whole

document. My question is, is it true that this film wasn't

produced and released until after the close of discovery in

this case?

MR. de HAAN: My recollection -- which date are we

talking about?

THE COURT: He said April 2019.

MR. KEZHAYA: Your Honor, may I?

THE COURT: Yes.

MR. KEZHAYA: Mr. Misicko was deposed in the second

wave of discovery. If I remember correctly, it was

approximately September of 2019. If they were aware of this

documentary, and they reasonably could have been since it was

1 1 : 3 6 : 5 6 produced in -- it was released, I should say, in April of

1 1 : 3 5 : 4 4 1

 2

 3

 4

1 1 : 3 5 : 5 3 5

 6

 7

 8

 9

1 1 : 3 6 : 0 3 10

11

12

13

14

1 1 : 3 6 : 1 6 15

16

17

18

19

1 1 : 3 6 : 4 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 113 of 255
 376

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

2019, and they had the expectation that they might want to

use some of these statements to prove -- I gather that the

general relevance of this is that TST is not a real religion,

and they could have deposed Mr. Soling.

THE COURT: Is it right that you deposed Mr. Misicko

during the second wave of discovery?

MR. CLAUS: I did depose Mr. Misicko and found out

about Hail Satan during that.

THE COURT: So you could have deposed Mr. Jarry

during that period as well.

MR. CLAUS: No, Your Honor. Because your order

limited us to four depositions. Or strike that.

Your order limited us to four depositions of an hour

apiece only on the issue of standing and the issue of subject

matter jurisdiction. We could not have, under your Court's

order. And discovery ended, Your Honor, in this case, on

February 1, 2019. I will point out that to the best of my

knowledge, Mr. Soling is a Massachusetts resident and not

subject to the subpoena power of this Court.

THE COURT: Well, of course he is. Of course he is

for a deposition.

MR. CLAUS: No, no, no, Your Honor, for trial. One

of the arguments was that we could have subpoenaed Mr. Soling

for trial.

1 1 : 3 8 : 1 2 THE COURT: Okay.

1 1 : 3 6 : 5 8 1

 2

 3

 4

1 1 : 3 7 : 1 0 5

 6

 7

 8

 9

1 1 : 3 7 : 2 2 10

11

12

13

14

1 1 : 3 7 : 3 7 15

16

17

18

19

1 1 : 3 8 : 0 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 114 of 255
 377

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

MR. CLAUS: We could not.

THE COURT: Well, I assume Exhibit 105 was listed in

the final pretrial order?

MR. CLAUS: It was, Your Honor.

THE COURT: Can you tell me where it's described.

MR. CLAUS: It's -- it is in Exhibit A -- I'm sorry,

strike that, your Honor.

THE COURT: A is the --

MR. CLAUS: Yes --

THE COURT: -- exhibit list of the plaintiffs.

I've got it in front of me.

MR. CLAUS: Thank you, Your Honor. You're better at

this than I am.

THE COURT: Actually, I'm not -- what I have is

defendants' exhibit list, but there's no objections.

MR. CLAUS: The objections are on page 28 of the

final pretrial order, which show what we have described it as

excerpts from Hail Satan video.

THE COURT: Okay. Let me look at that.

That's where the objection is. Where is your

description of Exhibit 108 and how you intended to use it at

trial?

I'm asking this because of the requirement in

Rule 807(b).

1 1 : 4 0 : 0 6 MR. CLAUS: One second, Your Honor.

1 1 : 3 8 : 1 4 1

 2

 3

 4

1 1 : 3 8 : 2 1 5

 6

 7

 8

 9

1 1 : 3 8 : 3 8 10

11

12

13

14

1 1 : 3 9 : 0 2 15

16

17

18

19

1 1 : 3 9 : 4 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 115 of 255
 378

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

I have this, Your Honor. May I approach?

THE COURT: You may.

That's what I've got as well. But my copy doesn't

show any docket number so I don't know if that came from the

final pretrial order.

I think -- isn't this your trial exhibit list,

Mr. Claus?

MR. CLAUS: We're searching, Your Honor.

I apologize, Your Honor, that -- here's our copy of

our -- the joint pretrial order does not have our exhibit

list.

THE COURT: All right. How much longer do you have

in your questioning?

MR. CLAUS: Of Mr. Misicko?

THE COURT: Yeah.

MR. CLAUS: Approximately 45 minutes.

THE COURT: Let's carry on. We'll deal with this

during the lunch hour so we don't keep everybody waiting.

MR. CLAUS: Thank you, Your Honor.

BY MR. CLAUS: 

Q You got involved with Malcolm Jarry and the thing called

The Satanic Temple because you are casting actors for a

mockumentary; correct?

A Incorrect.

1 1 : 4 2 : 0 5 Q A film project, sir?

1 1 : 4 0 : 5 2 1

 2

 3

 4

1 1 : 4 1 : 0 6 5

 6

 7

 8

 9

1 1 : 4 1 : 2 8 10

11

12

13

14

1 1 : 4 1 : 3 9 15

16

17

18

19

1 1 : 4 1 : 5 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 116 of 255
 379

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

A I was not casting actors for a film project.

Q You got involved with Mr. Jarry for The Satanic Temple

because you were involved in some degree in the film project

that was to be a mockumentary; correct?

A I was consulting as a satanist on a project involving the

concept of satanism.

Q And you knew that Malcolm Jarry was producing a film

project to be a mockumentary; correct?

A I knew he was producing a film project about satanism.

Q Well, you knew that Mr. Jarry cast an actor pretending to

be the head of The Satanic Temple; correct?

A That is correct. And as a satanist, I was helping consult

on the authentic nature of satanism so it could be best

portrayed.

Q Well, the actor pretending to be the head of The Satanic

Temple wasn't a satanist; correct?

A He was not.

Q The goal of The Satanic Temple is to mock religion and

those who hold deeply and sincere religious beliefs; correct?

A That is incorrect. I'm not sure where you heard that.

Q The Satanic Temple doesn't have an actual temple; true?

A Well, that's debatable. We have our headquarters in Salem

that we could refer to as a temple.

Q You could refer to as a temple. But on your website that

1 1 : 4 3 : 4 6 you published as of today, you don't refer to it as a temple,

1 1 : 4 2 : 0 8 1

 2

 3

 4

1 1 : 4 2 : 2 0 5

 6

 7

 8

 9

1 1 : 4 2 : 4 4 10

11

12

13

14

1 1 : 4 3 : 0 1 15

16

17

18

19

1 1 : 4 3 : 2 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 117 of 255
 380

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

you refer to it as a museum; correct?

A I refer to it as The Satanic Temple.

Q That is a museum and a gift shop; correct?

A It is the Satanic Temple headquarters.

Q That has a museum and a gift shop; correct?

A It has a museum and a gift shop.

Q The Satanic Temple doesn't worship Satan; correct?

A Depends on what you mean by worship.

Q Well, The Satanic Temple does not believe that Satan

exists as an actual thing; correct?

A As an actual conscious entity, no.

Q No, I'm wrong? Or no, you don't believe that it exists?

A Please rephrase.

Q Sure. The Satanic Temple does not espouse a belief in an

entity or being referred to as Satan; correct?

A Not an isolate discrete conscious entity known as Satan,

no.

Q The Satanic Temple does not espouse a belief system that

calls for the worship of a superhuman controlling power;

correct?

A That is correct.

Q Because The Satanic Temple espouses beliefs that shun a

belief in a superhuman controlling power; correct?

A Depends what you mean by shun.

1 1 : 4 5 : 1 8 Q Well, The Satanic Temple tells the world that it, quote,

1 1 : 4 3 : 5 0 1

 2

 3

 4

1 1 : 4 4 : 0 2 5

 6

 7

 8

 9

1 1 : 4 4 : 1 9 10

11

12

13

14

1 1 : 4 4 : 3 7 15

16

17

18

19

1 1 : 4 5 : 0 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 118 of 255
 381

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

does not wish to have anyone succumb to religious groupthink,

end quote; correct?

A I don't know where that quote is from.

Q Do you have Exhibit 103 in front of you, sir?

A I do.

Q The Satanic Temple Arizona chapter is authorized to use

the intellectual property owned by the United Federation of

Churches LLC; correct?

A Correct.

Q Is authorized to use a website directing the public to the

website maintained by The Satanic Temple Arizona; correct?

A Correct.

Q And The Satanic Temple, you, take very seriously the way

in which chapters utilize the brand of The Satanic Temple;

correct?

A Correct.

Q If you'd turn to page 2 of Exhibit 103.

You see how -- strike that.

Exhibit 103 is an FAQ, a frequently asked questions

printout of the website of The Satanic Temple Arizona.

A I see it.

MR. CLAUS: Move for admission --

BY MR. CLAUS: 

Q Er, I'm going to impeach you first.

1 1 : 4 7 : 0 6 Do you see there is bolded language "Does TST." You

1 1 : 4 5 : 2 1 1

 2

 3

 4

1 1 : 4 5 : 4 3 5

 6

 7

 8

 9

1 1 : 4 6 : 0 5 10

11

12

13

14

1 1 : 4 6 : 3 3 15

16

17

18

19

1 1 : 4 6 : 5 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 119 of 255
 382

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

see that bolded language?

A Yes.

THE COURT: Are you moving this document into

evidence?

MR. CLAUS: I will, Your Honor. I just want to

focus the witness and then I'll ask --

THE COURT: You can't use it until it's in evidence.

MR. CLAUS: I understand, Your Honor. I just wanted

to focus the witness of where I was going.

MR. de HAAN: I have an objection to its admission.

THE COURT: If he asks him any question about the

document, I'll require it be admitted first.

MR. CLAUS: We move for admission of Exhibit 103.

THE COURT: All right. What's the objection?

MR. de HAAN: He's not the author of this document

as far as has been established, as far as I know. Also, I --

relevance. More prejudicial than probative. It's an excerpt

of the entire thing. I don't know how this is admissible.

THE COURT: Well, what is the basis for your

objection?

MR. de HAAN: First, relevance. I don't see --

THE COURT: Well, relevancy is overruled.

MR. de HAAN: Okay. 

THE COURT: What else is the basis for your

1 1 : 4 8 : 0 2 objection?

1 1 : 4 7 : 1 5 1

 2

 3

 4

1 1 : 4 7 : 1 9 5

 6

 7

 8

 9

1 1 : 4 7 : 3 0 10

11

12

13

14

1 1 : 4 7 : 4 0 15

16

17

18

19

1 1 : 4 7 : 5 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 120 of 255
 383

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

MR. de HAAN: Also, I don't think he's established

that he had personal knowledge that this particular page of a

website existed that he didn't author.

THE COURT: Well, that's not a basis for opposing

the admissibility of a document. It may be a basis for

objecting to a question.

MR. de HAAN: Okay. Understood, Your Honor.

THE COURT: Those are all of your objections?

MR. de HAAN: Yes, Your Honor.

THE COURT: I'll admit Exhibit 103.

(Exhibit 103 admitted.)

MR. CLAUS: Thank you, Your Honor.

BY MR. CLAUS: 

Q Now, directing you to that bold heading in the center of

the page that starts with the words "Does TST." Do you see

that?

A Yes.

Q So I'm going to ask you again, The Satanic Temple tells

the world that it does, quote, not wish to have anyone succumb

to religious groupthink, end quote; correct?

A The Satanic Temple Arizona apparently has that, but this

is the first I'm seeing it.

Q Sir, as the purported spokesperson of The Satanic Temple,

you just told the Court that you take very seriously the way

1 1 : 4 9 : 0 9 in which chapters use your brand and your trademarks; correct?

1 1 : 4 8 : 0 3 1

 2

 3

 4

1 1 : 4 8 : 1 2 5

 6

 7

 8

 9

1 1 : 4 8 : 2 3 10

11

12

13

14

1 1 : 4 8 : 3 0 15

16

17

18

19

1 1 : 4 8 : 5 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 121 of 255
 384

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

A Correct. And that does not conflict with my statement

that I had not read this before.

Q The Satanic Temple is a trademark that is owned by United

Federation of Churches LLC; correct?

A Correct.

Q Chapters of The Satanic Temple are authorized to operate

websites by you; correct?

A Correct.

Q And chapters of The Satanic Temple are authorized to use

the trademarks and intellectual property of The Satanic

Temple, that is actually the United Federation of churches

LLC, by you; correct?

A Correct. Nonetheless, this is the first I'm seeing this

page.

Q Do you see how this page told the public that, quote, The

Satanic Temple does not proselytize to the public nor do we

wish to have anyone succumb to religious groupthink"?

A Yes, I'm seeing that now for the first time.

Q And that statement is in response to a question, "Does TST

offer any public services, i.e., church, sermons," question

mark; correct?

MR. de HAAN: Objection. He has not established a

time that this was published.

THE COURT: Overruled.

1 1 : 5 0 : 5 1 THE WITNESS: I'm sorry, ask again.

1 1 : 4 9 : 1 5 1

 2

 3

 4

1 1 : 4 9 : 2 7 5

 6

 7

 8

 9

1 1 : 4 9 : 4 5 10

11

12

13

14

1 1 : 5 0 : 0 5 15

16

17

18

19

1 1 : 5 0 : 3 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 122 of 255
 385

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

BY MR. CLAUS: 

Q Sure. That statement that The Satanic Temple does not

proselytize to the public nor do we wish to have anyone

succumb to religious groupthink, was in response to the

question above it, "Does TST offer any public services, i.e.,

church," comma, "sermons," question mark; correct?

A I am seeing that on this page that I'm now viewing for the

first time.

Q Local chapters of the Satanic Temple did not have any

physical locations as of May 23, 2016; correct?

A I'm unsure.

Q As of the date this lawsuit was filed, Arizona chapter of

The Satanic Temple did not have any physical location;

correct?

A I don't know that that's correct.

Q Look at the first page of Exhibit 103, sir.

Do you see a date at the bottom of the page on the

right-hand side?

A I do.

Q 9/17/2019; correct?

A I believe that would be the date it was printed.

Q And this lawsuit had been filed as of 9/17/2019; correct?

A Correct.

Q Well, since you raised that, sir, do you see on

1 1 : 5 2 : 3 3 Exhibit 103, above the date there's a heading called "Recent

1 1 : 5 0 : 5 2 1

 2

 3

 4

1 1 : 5 1 : 0 5 5

 6

 7

 8

 9

1 1 : 5 1 : 2 9 10

11

12

13

14

1 1 : 5 1 : 5 3 15

16

17

18

19

1 1 : 5 2 : 1 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 123 of 255
 386

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Posts"; correct?

A Correct.

Q And the post refers to TST AZ chapter head Michelle Shortt

resigns; correct?

A Correct.

Q And there is a date for that as well; correct?

A Correct.

Q What is that date, sir?

A June 11, 2019.

Q As of June 11, 2019, this lawsuit had been filed; correct?

A Correct.

Q Assuming that the website promulgated by The Satanic

Temple Arizona with your permission follows the laws of

physics, it would have been impossible for Exhibit 103 to

publish a post about Michelle Shortt's resignation on June 11,

2019, unless Exhibit 103 postdated that date; correct?

A You really don't need me up here to answer these

questions. Anybody could be looking at this. I'm seeing this

for the first time.

THE COURT: I'm not understanding your point,

Mr. Claus.

BY MR. CLAUS: 

Q The point is you can now deduce that the statement that

The Satanic Temple local chapters do not have physical

1 1 : 5 3 : 5 0 locations is a statement that was made after the lawsuit in

1 1 : 5 2 : 4 4 1

 2

 3

 4

1 1 : 5 2 : 5 2 5

 6

 7

 8

 9

1 1 : 5 3 : 0 0 10

11

12

13

14

1 1 : 5 3 : 1 9 15

16

17

18

19

1 1 : 5 3 : 3 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 124 of 255
 387

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

this case was filed; correct?

A I don't see -- I don't recall you pointing out there was a

statement that we don't have physical locations.

Q Okay. Why don't you go to page 2 of Exhibit 103.

Above the bolded centered text, "Does TST offer any

public services, i.e., church, sermons," there is a sentence

that starts with the word "currently"; correct?

A Correct.

Q "Currently local chapter" --

THE COURT: What page are you on?

MR. CLAUS: Page 2 of Exhibit 103.

THE COURT: Okay.

BY MR. CLAUS: 

Q "Currently local chapters of The Satanic Temple do not

have physical locations." 

Correct?

A Right, it says that on this page.

Q And you testified that The Satanic Temple referred to its

physical headquarters as the temple. Do you recall that

testimony you just gave?

A Correct.

Q If you look at the first page of Exhibit 103, the question

"where's the temple located" is answered with the words "The

Satanic Temple headquarters, also known as the Salem Art

1 1 : 5 5 : 1 8 Gallery in Salem, Massachusetts, is open to the public."

1 1 : 5 3 : 5 4 1

 2

 3

 4

1 1 : 5 4 : 1 4 5

 6

 7

 8

 9

1 1 : 5 4 : 2 9 10

11

12

13

14

1 1 : 5 4 : 4 0 15

16

17

18

19

1 1 : 5 4 : 5 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 125 of 255
 388

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Correct?

A Correct.

Q You talked, when you were being examined by Mr. Haan, that

The Satanic Temple engages in worship. Do you remember that

testimony?

A I do not.

Q It's a true statement that worship is antithetical to

satanism; correct?

A I'm not sure where you're getting this quote that I said

we engage in worship.

Q It's true, is it not, sir, that worship is antithetical to

satanism; correct?

A Depends on how you define worship.

Q If you turn to Exhibit 103, again page 2.

The third line from the bottom of the text above the

inverted house. The words that say "worship is antithetical

to satanism and we worship no beings save ourselves."

When you authorized The Satanic Temple Arizona to use

your brand, your trademark, and your intellectual property,

did you have any idea what was meant by worship when you

authorized The Satanic Temple Arizona to say worship is

antithetical to satanism and --

A You would have to speak to the author of this particular

text.

1 1 : 5 7 : 0 8 Q That wasn't my question, sir.

1 1 : 5 5 : 2 3 1

 2

 3

 4

1 1 : 5 5 : 4 1 5

 6

 7

 8

 9

1 1 : 5 5 : 5 6 10

11

12

13

14

1 1 : 5 6 : 2 4 15

16

17

18

19

1 1 : 5 6 : 4 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 126 of 255
 389

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

A I did not directly authorize these words. This is the

first time I'm seeing this text. If you want answers about

this text, you would have to speak to the person who authored

this text.

MR. de HAAN: I'm going to object at this point to

relevance. I'm not sure what the relevance of any of this

is.

THE COURT: I'm not sure either.

MR. CLAUS: Your Honor, he testified on direct that

The Satanic Temple did engage in worship. That's the point.

BY MR. CLAUS: 

Q You talked to Mr. de Haan about rituals performed by The

Satanic Temple. Do you recall that testimony?

A Yes.

Q The rituals performed by The Satanic Temple are completely

ad hoc; correct?

A Incorrect.

Q Well, they are rituals that you and Mr. Jarry have

invented; is that correct?

A That is incorrect.

Q You and Mr. Jarry have invented rituals that are intended

to mock individuals who actually hold deeply religious

beliefs; true?

A That is not true.

1 1 : 5 8 : 2 0 Q Well, you and Mr. Jarry created something that you called

1 1 : 5 7 : 1 0 1

 2

 3

 4

1 1 : 5 7 : 2 3 5

 6

 7

 8

 9

1 1 : 5 7 : 3 3 10

11

12

13

14

1 1 : 5 7 : 5 0 15

16

17

18

19

1 1 : 5 8 : 0 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 127 of 255
 390

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

a Pink Mass; correct?

A That is correct.

Q That was one of the rituals of The Satanic Temple;

correct?

A That is correct.

Q That you and Mr. Jarry invented; correct?

A Correct. We authored that.

Q And the Pink Mass was designed specifically to demonstrate

your contempt for Fred Phelps of the Westboro Baptist Church;

correct?

A Incorrect.

Q Well -- 

THE COURT: We're going to break at this point,

Mr. Claus. We're at the noon hour. We will resume at

1 o'clock.

You can step down, sir.

I will give you the time you've used --

MR. CLAUS: Thank you, Your Honor.

THE COURT: -- before you leave the courtroom.

Folks can leave if you want to. We're going to be

here just a minute. Or you can stay.

MR. CLAUS: Your Honor, I noticed Mr. --

THE COURT: All right. Counsel, as of now,

plaintiffs have used four hours and 51 minutes. Defendants

1 2 : 0 2 : 0 9 have used three hours and 38 minutes from the time -- that

1 1 : 5 8 : 2 4 1

 2

 3

 4

1 1 : 5 8 : 3 3 5

 6

 7

 8

 9

1 1 : 5 8 : 5 7 10

11

12

13

14

1 1 : 5 9 : 0 3 15

16

17

18

19

1 1 : 5 9 : 1 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 128 of 255
 391

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

means there's a total of about two and a half hours remaining

in the 11 hours we set aside for the trial.

What I'd like you to do during the noon hour is,

unless you've already done it, identify the disclosure that

you made in the final pretrial order about Exhibit 105.

MR. CLAUS: Yes.

THE COURT: And then we'll address Exhibit 105 after

the lunch hour.

Are there other matters we need to address?

MR. CLAUS: May we have an admonishment that counsel

should not be speaking with Mr. Misicko about his examination

while cross is pending, please.

THE COURT: Well, he can prepare him for redirect.

We established at the final pretrial order -- at the final

pretrial conference that he can do that.

MR. CLAUS: That's fine. Thank you.

MR. KEZHAYA: There was one other matter,

Your Honor. It was my understanding of the Court's final

pretrial scheduling order that we had to produce a physical

copy of all of our exhibits on December 16 for them to be

admissible. Is that a correct understanding?

THE COURT: What is the point you're getting at?

MR. KEZHAYA: We did not receive a physical copy of

the Hail Satan documentary until much later than December 16,

1 2 : 0 3 : 2 1 as I recall.

1 2 : 0 2 : 1 4 1

 2

 3

 4

1 2 : 0 2 : 2 8 5

 6

 7

 8

 9

1 2 : 0 2 : 3 9 10

11

12

13

14

1 2 : 0 2 : 5 5 15

16

17

18

19

1 2 : 0 3 : 0 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 129 of 255
 392

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

THE COURT: You knew it was -- what the documentary

was?

MR. KEZHAYA: We were aware of the documentary, but

on December 16 we did not get any kind of a notification of

these are what our exhibits are, as I recall. And I have to

say "as I recall," Your Honor.

THE COURT: Was it listed as an exhibit to be used,

the Hail Satan documentary?

MR. KEZHAYA: It was not, Your Honor. We have a

document that was actually produced as we were creating the

final pretrial order that has a list of what was originally

produced on Exhibit -- on December 16 as a sequential

beginning with 1, and then during the course of finalizing

the pretrial order it was renumbered. The ones that are

blank are the ones that were not produced to us on

December 16.

THE COURT: You had them by the time of the final

pretrial order?

MR. KEZHAYA: I do have it in front of us, yes,

Your Honor.

THE COURT: So --

MR. KEZHAYA: The pretrial order I do not currently

have in front of us.

THE COURT: You filed the pretrial order

1 2 : 0 4 : 1 6 January 3rd. Are you saying you didn't know their exhibits

1 2 : 0 3 : 2 2 1

 2

 3

 4

1 2 : 0 3 : 3 0 5

 6

 7

 8

 9

1 2 : 0 3 : 4 2 10

11

12

13

14

1 2 : 0 3 : 5 9 15

16

17

18

19

1 2 : 0 4 : 0 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 130 of 255
 393

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

by January 3rd?

MR. KEZHAYA: No, Your Honor. I may be mistaken.

I'm talking about the amended scheduling order that indicated

we, as I recall, had on December 30 was the initial timeline,

and two weeks before we had to provide --

THE COURT: I understand that. I'm not

understanding what your concern is. You knew by the time of

the final pretrial order that they were going to try to admit

that documentary or portions of it.

MR. KEZHAYA: Yes, Your Honor, and our objection is

noted in the pretrial order.

THE COURT: And are you saying that because you

didn't get a physical copy on December 16th, I should

preclude them from using it here?

MR. KEZHAYA: It's noncompliance with the order. I

just wanted to bring it to the Court's attention.

THE COURT: Okay. You've done that.

MR. KEZHAYA: Okay. Thank you, Your Honor. 

THE COURT: We'll see you at 1 o'clock. Thanks.

(Recess taken from 12:05 to 1:00.)

THE COURT: Thank you. Please be seated.

All right, folks, let me just remind everybody in

the courtroom that phones cannot be used in the courtroom.

Tablets and computers can be used by counsel or if there's a

1 3 : 0 1 : 2 3 reporter, if they're on airplane mode, but phones should not

1 2 : 0 4 : 1 8 1

 2

 3

 4

1 2 : 0 4 : 2 9 5

 6

 7

 8

 9

1 2 : 0 4 : 4 4 10

11

12

13

14

1 2 : 0 4 : 5 3 15

16

17

18

19

1 2 : 0 5 : 0 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 131 of 255
 394

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

be used in the courtroom.

I want to come back to Exhibit 105, assuming you're

still wanting to admit portions of it.

MR. CLAUS: Yes, Your Honor.

THE COURT: The question or the argument that's been

made is that the film is admissible under the residual

exception 807.

I should make clear on the record that I believe

statements by Mr. Jarry are not barred by the hearsay rule

because the testimony in the case clearly indicated that

Mr. Jarry was authorized to speak on behalf of The Satanic

Temple and is, I think, a manager of The Satanic Temple. So

I think that falls within rule 801(d)(2)(C) and 801(d)(2)(D).

But we still have, in my view, a double hearsay

problem with the film.

I don't know if you all are looking at current

versions of Rule 807. It was amended five weeks ago. And

one of the comments made me think you might be looking at an

older version. So I printed out the recent version that was

amended effective December 1st.

Mr. Claus, sounds like you've got the current

version.

MR. CLAUS: I do, Your Honor. Thank you.

THE COURT: We'll hand the other new version to

1 3 : 0 2 : 5 0 plaintiffs' counsel.

1 3 : 0 1 : 2 7 1

 2

 3

 4

1 3 : 0 1 : 3 9 5

 6

 7

 8

 9

1 3 : 0 1 : 5 9 10

11

12

13

14

1 3 : 0 2 : 1 9 15

16

17

18

19

1 3 : 0 2 : 4 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 132 of 255
 395

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

As far as the new Rule 807 is concerned, I think the

first part of (A) is satisfied -- well, this doesn't go to

admissibility, but I don't think it's admissible under any

other exception in 803 or 804.

So the question is whether it has sufficient

guarantees of trustworthiness and whether it is more

probative on the point for which is it is offered than any

other evidence that the proponent can obtain through

reasonable efforts. We talked about that before lunch. I

understand the parties' arguments.

And then there is the notice requirement in

subsection B. I wanted to find out what the notice was. If

I could --

MR. CLAUS: I could pull that up, Your Honor.

THE COURT: Okay. 

MR. CLAUS: Oh, can we ask for our monitors to be

on? 

BY MR. CLAUS: 

Q The written notification will be contained in the e-mail

that should be on your screen on December 16, 2019, at

3:03 p.m. "Hi Stu. Our packet and documents inadvertently

omitted one exhibit from our list because it is not in paper

form. We intend to use as an exhibit excerpts from the

documentary Hail Satan, which we will either send by a disk or

1 3 : 0 4 : 1 0 e-mail once we figure out the technical components of the

1 3 : 0 2 : 5 7 1

 2

 3

 4

1 3 : 0 3 : 1 1 5

 6

 7

 8

 9

1 3 : 0 3 : 2 7 10

11

12

13

14

1 3 : 0 3 : 3 7 15

16

17

18

19

1 3 : 0 3 : 4 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 133 of 255
 396

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

exhibit."

THE COURT: What's the date of that?

MR. CLAUS: December 16.

THE COURT: Okay. 

MR. CLAUS: Can you see, Your Honor, on your screen?

THE COURT: I couldn't read the date.

There, I see it now. Okay.

What is your thought, Mr. Claus, with respect to

807(a)(1)? That is, that the statement is supported by

sufficient guarantees of trustworthiness after considering

the totality of circumstances under which it was made and

evidence, if any, corroborating the statement?

MR. CLAUS: Sure. Mr. Misicko, the witness, has

testified that he not only made statements in the documentary

Hail Satan, but did so only after providing a release on his

own behalf for the use of his likeness, image, and

statements.

He testified that the statements of Malcolm Jarry

were made as the manager, the only manager of the United

Federation of Churches LLC and that United Federation of

Churches LLC also gave the waiver for the use of the

intellectual property, brand, and statements contained

therein.

As far as the circumstantial guarantees of

1 3 : 0 5 : 3 2 trustworthiness, I think that's the real inquiry. There

1 3 : 0 4 : 1 3 1

 2

 3

 4

1 3 : 0 4 : 1 8 5

 6

 7

 8

 9

1 3 : 0 4 : 3 4 10

11

12

13

14

1 3 : 0 4 : 5 4 15

16

17

18

19

1 3 : 0 5 : 1 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 134 of 255
 397

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

doesn't seem to be any legitimate debate that Mr. Misicko and

Mr. Jarry and Ms. Shortt and Mr. de Haan made the statements

that they made in Hail Satan.

To satisfy any concern the Court may have over

trustworthiness, before we play any sound we can put the

image of Mr. Misicko or Mr. Jarry, although he is blacked out

but it says Malcolm Jarry on the screen, and have Mr. Misicko

either admit or deny that he is the person depicted in the

video.

There is a corollary to my argument with respect to

807(a)(1) and that does get back to the MIDP that required

written or recorded statements known by the plaintiff to be

disclosed. Mr. de Haan said that this had been in the works

for three years, that written and recorded -- or recorded

statements had existed for three years.

And in their MIDP response to paragraph 2, which

required them to state the names and addresses of persons who

have given written or recorded statements, they responded

with the name "all relevant recorded statements are in the

form of e-mail correspondence, public statements by or with

the City of Scottsdale and public statements made by or

behalf of City of Scottsdale."

If they had disclosed in the MIDP response the

existence of these recorded statements, we could have done

1 3 : 0 7 : 1 9 discovery to add any requirements necessary that the Court

1 3 : 0 5 : 3 8 1

 2

 3

 4

1 3 : 0 5 : 5 6 5

 6

 7

 8

 9

1 3 : 0 6 : 2 0 10

11

12

13

14

1 3 : 0 6 : 3 9 15

16

17

18

19

1 3 : 0 7 : 0 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 135 of 255
 398

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

believes are necessary to bring this -- these statements in

under 807. But I believe on the record that you have before

you, Your Honor, 807(A) and 807(B) are satisfied.

THE COURT: All right. Response from plaintiffs'

counsel.

MR. de HAAN: First of all, Your Honor, this

documentary was made by a filmmaker that's in New York. The

documentary has people's faces blanked out. The documentary

has stories told in the past tense. There's a whole context

between scenes of how TST started, where it went from there.

As far as trustworthiness, this is an artist's,

essentially, story about TST from the outside regarding an

entire history of an organization that was spanning over

years. As far as the context, I just don't see how -- first

of all, it has any bearing to this case, but also how it

still gets over the double hearsay in that this isn't made by

The Satanic Temple. This is someone's outside view of The

Satanic Temple. And the way that it's put together is that

artist's view within contexts throughout the film that, you

know, are their views, not ours. How it's put together

necessarily.

Also, as far as whatever statement that he wishes to

play, without context, it's just a statement in a vacuum by

someone who's not here to be cross-examined, and that's the

1 3 : 0 8 : 5 5 problem with the trustworthiness.

1 3 : 0 7 : 2 4 1

 2

 3

 4

1 3 : 0 7 : 3 7 5

 6

 7

 8

 9

1 3 : 0 7 : 5 8 10

11

12

13

14

1 3 : 0 8 : 2 1 15

16

17

18

19

1 3 : 0 8 : 3 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 136 of 255
 399

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

THE COURT: Okay.

Mr. Claus, exactly what is it you propose to play

from Exhibit 105?

MR. CLAUS: The statem- -- and that is the issue,

Your Honor. We're not asking to play --

THE COURT: I'm asking what exactly you propose to

play.

MR. CLAUS: The statements of Mr. Misicko, the

statements of Mr. Jarry. I believe there's a statement of

Stu de Haan. I believe there is a statement of

Michelle Shortt. Those are the statements that we wish to

play. None of the artistic gloss on those statements, merely

the statements. And this witness can be cross-examined.

THE COURT: All right.

As I've indicated, I believe that the statements of

Mr. Jarry are admissible under Rule 801(d)(2)(C) and (D). If

there's an objection to other individuals who might be shown

from the film, that hearsay objection can be made and I'll

consider whether their statements come within a hearsay

objection.

My conclusion is that the video itself, Exhibit 105,

to the limited extent it will be used, is admissible under

Rule 807.

I conclude that there are sufficient guarantees of

1 3 : 1 0 : 1 2 trustworthiness in that the only thing to be shown will be

1 3 : 0 8 : 5 8 1

 2

 3

 4

1 3 : 0 9 : 0 6 5

 6

 7

 8

 9

1 3 : 0 9 : 1 8 10

11

12

13

14

1 3 : 0 9 : 3 8 15

16

17

18

19

1 3 : 0 9 : 5 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 137 of 255
 400

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

the statements of individuals, not the artistic construction

of the film or any other messages in the film. And the fact

that it's apparent that the -- from Mr. Misicko's testimony

that the individuals with The Satanic Temple were willing

participants in the creation of the video.

I also conclude that it's more probative on the

point of what they said in the video than any other evidence

that could reasonably be obtained because the video wasn't

released until after the close of discovery in this case.

And I conclude that the December 16th e-mail

satisfies the written notice requirement of Rule 807(B).

When we get to playing those excerpts, Trish, I'm

going to ask you, if you can, to take down what is said in

the film. If you have trouble with that, let me know. I

want to have a clear record of what exactly was played at

trial and I think the easiest way to do that is to have it

transcribed. But we'll see how clear it is as it comes out.

All right. With that ruling, you can proceed.

MR. CLAUS: Thank you, Your Honor. May I just have

one brief to set up with my --

THE COURT: Yes.

MR. CLAUS: Thank you.

BY MR. CLAUS: 

Q Mr. Misicko.

1 3 : 1 1 : 4 4 A Hi.

1 3 : 1 0 : 1 7 1

 2

 3

 4

1 3 : 1 0 : 3 3 5

 6

 7

 8

 9

1 3 : 1 0 : 4 9 10

11

12

13

14

1 3 : 1 1 : 0 6 15

16

17

18

19

1 3 : 1 1 : 2 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 138 of 255
 401

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q Still Scot Claus, still with Dickinson Wright, still

representing the City of Scottsdale.

I'm going to go back and ask you about your initial

involvement with The Satanic Temple. Your initial involvement

was regarding a film project to film a rally regarding

Governor Rick Scott of Florida?

A My initial involvement was as a consultant, as a satanist

informing a project about satanists.

Q And that project included a rally ostensibly for

Rick Scott, the governor, or the then governor of Florida?

A Correct.

Q That utilized an actor to portray the head of The

Satanic Temple.

A Correct.

Q And that was the first activity that you were involved in

with The Satanic Temple; correct?

A I was involved in consulting on what constitutes authentic

satanism.

Q Right. I'm glad you used the word authentic.

That activity, which was your first involvement with

The Satanic Temple, was started, according to Mr. Jarry, as a,

quote, media stunt, end quote, to expose what The Satanic

Temple believed was religious hypocrisy; is that correct or

incorrect?

1 3 : 1 3 : 1 5 A That is incorrect. You're quoting the wrong person.

1 3 : 1 1 : 4 4 1

 2

 3

 4

1 3 : 1 1 : 5 5 5

 6

 7

 8

 9

1 3 : 1 2 : 2 3 10

11

12

13

14

1 3 : 1 2 : 3 2 15

16

17

18

19

1 3 : 1 2 : 4 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 139 of 255
 402

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

MR. CLAUS: Could you pull up clip 2.

This is Exhibit 105, clip 2.

(Clip 2 played as follows: 

PERSON IN FILM: The Rick Scott rally was a media

stunt to show the hypocrisy of what Rick Scott was

doing and it required a spokesperson.)

THE WITNESS: That was not Malcolm Jarry.

BY MR. CLAUS: 

Q That --

A I guarantee you. Watch the film. You said you watched it

during my deposition.

Q Is that Cevin Soling, sir?

A That is not.

MR. de HAAN: Object. Move to strike, Your Honor.

THE COURT: What is it you're moving to strike?

MR. de HAAN: Whatever it was just played was not

what counsel purported to be playing.

THE COURT: There is no evidence before me, is

there, Mr. Claus, that the individual who just spoke was

Mr. Jarry?

MR. CLAUS: There is, Your Honor -- there is not in

that clip, Your Honor. We'll get to -- there are other clips

that have that same figure with -- I'll just ask the witness.

BY MR. CLAUS: 

1 3 : 1 4 : 2 2 Q Who is that?

1 3 : 1 3 : 1 9 1

 2

 3

 4

1 3 : 1 3 : 2 9 5

 6

 7

 8

 9

1 3 : 1 3 : 4 2 10

11

12

13

14

1 3 : 1 3 : 5 9 15

16

17

18

19

1 3 : 1 4 : 1 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 140 of 255
 403

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

A I guarantee you that is not Malcolm Jarry.

Q Who is it?

THE COURT: Let's wait for a question, please.

THE WITNESS: Certainly.

BY MR. CLAUS: 

Q Who is it?

A It is a man who went by the name of Nicholas Crowe, listed

as an original collaborator in the film, if you watch the

film.

Q Original collaborator in The Satanic Temple film?

A Correct.

Q And he was authorized to make those statements; correct?

A No. He was on his own.

THE COURT: Okay. On the basis of the current --

MR. CLAUS: We'll withdraw, Your Honor.

THE COURT: -- record, I'm not going to consider

clip 2 of Exhibit 105.

MR. CLAUS: We'll withdraw it, Your Honor.

BY MR. CLAUS: 

Q You and Mr. Jarry created something called the Pink Mass?

A Correct.

Q Now, the Pink Mass was -- and that was the first ritual in

which you were involved as the spokesperson of the thing you

call The Satanic Temple; correct?

1 3 : 1 5 : 1 5 A Correct.

1 3 : 1 4 : 2 3 1

 2

 3

 4

1 3 : 1 4 : 2 9 5

 6

 7

 8

 9

1 3 : 1 4 : 3 8 10

11

12

13

14

1 3 : 1 4 : 5 3 15

16

17

18

19

1 3 : 1 5 : 0 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 141 of 255
 404

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q And the Pink Mass was designed specifically to demonstrate

your contempt for a Baptist church; correct?

A Incorrect.

Q Well, the creation of the Pink Mass was intended as a

mockery of the deeply held religious beliefs of adherence to

the Mormon church; correct?

A Wildly incorrect.

Q So you and Mr. Jarry did not create the Pink Mass to mock

the belief by followers of the LDS faith in post death

baptism?

A It is correct that we did not create the Pink Mass to

disparage the LDS church.

MR. CLAUS: Clip 4, please.

Before we play much, I'm just going to confirm when

we start playing that it is Malcolm Jarry.

(Clip 4 played as follows: 

MALCOLM JARRY: One of the things that I wanted to

play on is, you know, the Mormons have the belief --) 

THE COURT: Stop it there.

BY MR. CLAUS: 

Q That is Malcolm Jarry; correct?

A That is Malcolm Jarry; correct.

MR. CLAUS: So can we go back to the beginning and

play it?

1 3 : 1 6 : 2 6 MR. de HAAN: Your Honor --

1 3 : 1 5 : 1 6 1

 2

 3

 4

1 3 : 1 5 : 3 0 5

 6

 7

 8

 9

1 3 : 1 5 : 5 4 10

11

12

13

14

1 3 : 1 6 : 0 9 15

16

17

18

19

1 3 : 1 6 : 1 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 142 of 255
 405

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

THE COURT: Hold on just a minute.

This is clip 4?

MR. CLAUS: Clip 4 of Exhibit 105.

MR. de HAAN: I'm objecting to this as well for the

same issues. I don't know who's exactly going to be played

in this clip, I don't know who's going to be speaking, I

don't know what the relevance is of it either.

THE COURT: Well, he just identified it as Malcolm

Jarry as the speaker. So I assume that's all we're going to

see in this clip.

MR. CLAUS: It is, Your Honor.

THE COURT: All right. Objection is overruled.

(Clip 4 played as follows: 

MALCOLM JARRY: One of the things that I wanted to

play on is, you know, the Mormons have the belief that

they can baptize the dead and do this postmortem

conversion, so that I propose that every time a

same-sex couple kisses, that she's pleasured in the

afterlife.)

BY MR. CLAUS: 

Q Who was going to be pleasured in the afterlife using the

deeply held religious beliefs of the LDS church in post death

baptism, sir?

A This has nothing to do with the LDS church.

1 3 : 1 7 : 2 2 Q Sir -- 

1 3 : 1 6 : 2 7 1

 2

 3

 4

1 3 : 1 6 : 3 5 5

 6

 7

 8

 9

1 3 : 1 6 : 4 8 10

11

12

13

14

1 3 : 1 6 : 5 3 15

16

17

18

19

1 3 : 1 7 : 0 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 143 of 255
 406

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

A I'm not sure --

Q -- who was going to, according to the Pink Mass you

invented, going to be pleasured in the afterlife based upon

the deeply held religious belief --

A You're wildly cherrypicking and taking things wildly out

of context.

THE COURT: Excuse me, let him finish the

question --

THE WITNESS: Okay. 

THE COURT: -- and he'll let you finish the answer.

THE WITNESS: Okay.

THE COURT: Re-ask the question, please.

MR. CLAUS: I will, sir.

BY MR. CLAUS: 

Q Who, whose mother were you seeking to baptize in the

afterlife?

A Nobody's.

Q Right. Because there was nothing sincere at all about

actually baptizing anyone in the afterlife; correct?

A Depends on how you define sincerity.

Q Well, you were using this thing you created called a Pink

Mass that utilized the deeply held religious beliefs of

members of the LDS faith in post death baptism to not actually

baptize anyone; correct?

1 3 : 1 8 : 2 5 A It had nothing to do with the LDS church.

1 3 : 1 7 : 2 2 1

 2

 3

 4

1 3 : 1 7 : 3 4 5

 6

 7

 8

 9

1 3 : 1 7 : 4 0 10

11

12

13

14

1 3 : 1 7 : 4 8 15

16

17

18

19

1 3 : 1 8 : 0 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 144 of 255
 407

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q Well, it had to do with you mocking deeply held religious

beliefs and the pastor of a Baptist church; correct?

A No. This is where you're wildly cherrypicking and taking

things wildly out of context.

Q So there --

A The overall message --

THE COURT: Let him finish.

THE WITNESS: Exactly.

BY MR. CLAUS: 

Q Since I'm wildly cherrypicking -- 

A Yes. 

Q -- tell the Judge over whose grave your invented Pink Mass

was held?

A Okay. So since you want the full context of this, we

decided up front that we would never engage in activities that

were meant to just disparage a particular religious belief or

person, but that we'd always assert our own affirmative

values.

MR. CLAUS: Move to strike as nonresponsive. I

asked for who.

THE COURT: Please respond to the question. Your

counsel can ask for elaboration on redirect. But please

respond to that question.

THE WITNESS: Okay. 

1 3 : 1 9 : 2 3 Well, what -- sorry, what was your question?

1 3 : 1 8 : 2 9 1

 2

 3

 4

1 3 : 1 8 : 4 5 5

 6

 7

 8

 9

1 3 : 1 8 : 5 0 10

11

12

13

14

1 3 : 1 9 : 0 2 15

16

17

18

19

1 3 : 1 9 : 1 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 145 of 255
 408

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

BY MR. CLAUS: 

Q Over whose grave was this Pink Mass that you created

performed?

A Catherine Johnston.

Q And who was Catherine Johnston?

A A resident of Mississippi.

Q And mother of whom, sir?

A Fred Phelps.

Q And Fred Phelps was the pastor of what, sir?

A The Westboro Baptist Church.

Q So you -- and you performed the Pink Mass only over the

grave of Fred Phelps' dead mother; correct?

A Explicitly -- explicitly with the intention of celebrating

same-sex unions.

Q And you personally, as an act of this thing you call The

Satanic Temple, showed your contempt for sincere actual

religious belief by placing your bare testicles on the

gravestone of Fred Phelps' mother; correct?

A No. I was showing my acceptance of same-sex unions.

MR. de HAAN: Your Honor, I don't know how this

weights into this litigation at all.

THE COURT: What is the relevancy, Mr. Claus?

MR. CLAUS: Because a religion has to exist to bring

an Establishment Clause claim. A religion is not predicated

1 3 : 2 0 : 4 0 upon mocking the deeply held religious beliefs of others.

1 3 : 1 9 : 2 5 1

 2

 3

 4

1 3 : 1 9 : 3 4 5

 6

 7

 8

 9

1 3 : 1 9 : 4 5 10

11

12

13

14

1 3 : 2 0 : 0 3 15

16

17

18

19

1 3 : 2 0 : 2 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 146 of 255
 409

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

That is not a religion. That is a sociopolitical

countermyth.

THE COURT: The objection is overruled, but I don't

think we ought to spend a great deal of time on this.

MR. CLAUS: We're almost done, Your Honor.

THE COURT: All right.

BY MR. CLAUS: 

Q So you testified that the reason you put your bare

testicles on a pastor's dead mother's grave was, you just

testified, to celebrate same-sex unions?

A Correct. In contrast to the hateful message put out by

the Westboro Baptist Church specifically.

Q And was putting your bare testicles on the mother -- the

dead mother of a pastor part of a religious ritual, according

to you, sir?

A You're going to have to rephrase the question.

Q No -- I will ask it again.

A Okay. Then no, that played no part of it.

Q The Satanic Temple has also engaged in what it calls

rituals to mock adherence to the Catholic church, as well;

correct?

A Wildly incorrect.

Q You were involved in something called a Black -- that you

called a Black Mass; correct?

1 3 : 2 2 : 0 7 A Correct.

1 3 : 2 0 : 4 4 1

 2

 3

 4

1 3 : 2 0 : 5 3 5

 6

 7

 8

 9

1 3 : 2 1 : 1 0 10

11

12

13

14

1 3 : 2 1 : 3 5 15

16

17

18

19

1 3 : 2 1 : 5 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 147 of 255
 410

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q Was the Black Mass described in Hail Satan as a, quote,

deliberate perversion of Catholic mass, end quote?

A By who?

Q No, sir. My question is, was --

MR. de HAAN: Objection. Hearsay.

THE COURT: Sustained, unless the individual is

identified.

BY MR. CLAUS: 

Q Did Malcolm Jarry describe Black Mass as a deliberate

perversion of Catholic mass?

A I can guarantee you he did not.

Q Did someone involved with The Satanic Temple, one of the

plaintiffs in this case, describe Black Mass as a, quote,

deliberate perversion of Catholic mass, end quote?

MR. de HAAN: Objection. Hearsay.

THE COURT: Sustained.

BY MR. CLAUS: 

Q Did you authorize anyone or did Malcolm Jarry authorize

anyone to state with the release that was given for Hail Satan

that Black -- the Black Mass held by The Satanic Temple was a

deliberate perversion of a Catholic mass?

A No. Nobody ran that past me.

Q Your organization promotes a philosophy that's not

theistic at all; correct?

1 3 : 2 3 : 2 5 A Correct.

1 3 : 2 2 : 0 7 1

 2

 3

 4

1 3 : 2 2 : 2 2 5

 6

 7

 8

 9

1 3 : 2 2 : 3 4 10

11

12

13

14

1 3 : 2 2 : 4 8 15

16

17

18

19

1 3 : 2 3 : 0 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 148 of 255
 411

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q Purely secular; correct?

A Correct.

Q You got involved in the Black Mass because you believed

that religion constitutes superstition; correct?

A That was not why I became involved with the Black Mass.

Q So you stated that you intended to put on the Black Mass

and be a part of the Black Mass as a, quote, declaration of

independence from superstition, end quote; correct?

A That is correct.

Q The Satanic --

A I believe it was a personal declaration of independence

from superstition.

Q The Satanic Temple is not itself a religion; correct?

A That's wildly incorrect.

MR. CLAUS: May I approach your courtroom deputy,

Your Honor?

THE COURT: You may.

BY MR. CLAUS: 

Q Sir, do you recall being designated as a Rule 30(b)(6)

designee for the organization called the United Federation of

Churches LLC?

A Yes.

Q And you sat for a deposition as the designee on

September 24, 2019?

1 3 : 2 6 : 0 8 A Correct.

1 3 : 2 3 : 2 6 1

 2

 3

 4

1 3 : 2 3 : 3 7 5

 6

 7

 8

 9

1 3 : 2 4 : 0 4 10

11

12

13

14

1 3 : 2 4 : 5 1 15

16

17

18

19

1 3 : 2 5 : 5 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 149 of 255
 412

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q Do you recall also being designated as a Rule 30(b)(6)

designee for the organization called The Satanic Temple, Inc.?

A Yes.

Q And you also sat for that deposition on September 24,

2019?

A Correct.

Q I've handed you the deposition transcripts that have

different colored covers. The deposition of the 30(b)(6)

designee of The Satanic Temple, Inc., has a red cover. And

United Federation of Churches LLC has an orange cover. So I

will try and help you by referring to the color of the covers.

MR. KEZHAYA: Your Honor, could we get copies of

these? We don't have red or -- looking at the first page of

this, it's not apparent which deposition is which.

MR. CLAUS: I will also state on the record which

one is which.

THE COURT: Will that help?

MR. KEZHAYA: Possibly, Your Honor. Depends on -- I

have an 83-page copy and a 59-page copy. There are two

depositions. Which one is the 83?

THE COURT: The 83 is the United Federation of

Churches.

MR. KEZHAYA: Thank you, Your Honor.

Ah. Thank you.

1 3 : 2 6 : 0 8 1

 2

 3

 4

1 3 : 2 6 : 2 3 5

 6

 7

 8

 9

1 3 : 2 6 : 4 1 10

11

12

13

14

1 3 : 2 7 : 0 1 15

16

17

18

19

1 3 : 2 7 : 1 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 150 of 255
 413

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

BY MR. CLAUS: 

Q So just to remind you of the question I asked to which you

responded absolutely not, or words to that effect, The Satanic

Temple is not itself a religion.

And you answered?

A You tell me. I'm saying it is.

Q Okay. I'm going to have you look at the deposition

transcript of The Satanic Temple, Inc., which is the

red-covered transcript which has 59 pages.

At line 9, on page 36, sir, I'll let you get there.

Just look up when you get to page 36.

I'll read the question that I asked you.

"What is the religion promoted by the corporation

identified in Exhibit 18? I will avow Exhibit 18 is the

articles of incorporation for The Satanic Temple."

Did I read that question correctly?

A Yes.

Q And your answer was "Satanism;" correct?

A Correct.

Q And then my question was: "So accurately characterized,

satanism is the religion, not the Satanic Temple; correct?"

And your answer was: "Satanism is the religion of

The Satanic Temple."

Do you see that?

1 3 : 2 9 : 1 0 A I do.

1 3 : 2 7 : 2 6 1

 2

 3

 4

1 3 : 2 7 : 4 1 5

 6

 7

 8

 9

1 3 : 2 8 : 2 0 10

11

12

13

14

1 3 : 2 8 : 4 2 15

16

17

18

19

1 3 : 2 8 : 5 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 151 of 255
 414

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q The seven tenets, you wrote the seven tenets; correct?

A I co-authored the satanic tenets. Or the seven tenets.

Q Who was the co-author, was that Mr. Jarry?

A Correct.

Q The seven tenets are unique to the Satanic Temple;

correct?

A I would argue that they describe something that was

pre-existing, but we were the first ones to really put it down

in codified form.

Q Well, even your own website, up through December of 2013,

did not have the seven tenets; correct?

A Correct.

MR. CLAUS: By the way, Your Honor, I'd like to move

to admit Exhibits 57, 58, 59, 60, 63. I'm sorry.

THE COURT: You need to speak into a mic, please.

MR. CLAUS: I apologize, Your Honor, I thought that

was picking me up.

I would like to move to admit, Your Honor,

Exhibits 56, 57, 58, 59, and 60.

MR. de HAAN: I'm just going to renew the objection

as to relevance and more prejudicial than probative since

this has been disavowed.

THE COURT: I'm going to overrule the relevance and

403 objections and admit Exhibits 56 through 60.

1 3 : 3 0 : 4 7 (Exhibits 56 through 60 admitted.)

1 3 : 2 9 : 1 2 1

 2

 3

 4

1 3 : 2 9 : 2 8 5

 6

 7

 8

 9

1 3 : 2 9 : 4 2 10

11

12

13

14

1 3 : 3 0 : 1 0 15

16

17

18

19

1 3 : 3 0 : 2 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 152 of 255
 415

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

MR. CLAUS: Could you also, unless you already have,

give the witness Exhibit 61 and Exhibit 63.

BY MR. CLAUS: 

Q Before we get to those exhibits, Mr. Misicko, you know

what the Church of Satan is; correct?

A Correct.

Q And the Church of Satan does not promote or prescribe the

seven tenets you and Mr. Jarry wrote in the last seven years;

correct?

A Correct.

Q And you know what a theistic satanist is; correct?

A Correct.

Q And you know that theistic satanists practice a religion

they call satanism; correct?

A I don't know of any theistic satanic organizations, but I

do know that that is the definition. A theistic satanist is

somebody who venerates an actual Satan.

Q And the seven tenets you wrote are not prescribed by

theistic satanists; correct?

A I don't know. In fact, there are some who do embrace the

seven tenets who I have met out when giving public lectures

and the like.

Q Well, theistic satanists would believe that there is an

actual God and an actual Satan; correct?

1 3 : 3 2 : 3 1 A Correct.

1 3 : 3 0 : 5 9 1

 2

 3

 4

1 3 : 3 1 : 3 6 5

 6

 7

 8

 9

1 3 : 3 1 : 4 6 10

11

12

13

14

1 3 : 3 1 : 5 9 15

16

17

18

19

1 3 : 3 2 : 1 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 153 of 255
 416

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q And those tenets, your seven tenets, specifically eschew

that notion; correct?

A Not necessarily.

Q But you're familiar with LaVeyan satanism; correct?

A Correct.

Q And LaVeyan satanists do not prescribe or promote the

seven tenets you wrote seven years ago with Mr. Jarry;

correct?

A They do not promote any concept of satanism that runs

outside of the satanic bible as authored by Anton LaVey.

Q I'm going to have you look now, sir, at Exhibit 63.

As of April 17, 2014, it is accurate to say that you

had been acting as a spokesperson for The Satanic Temple for

more than a year; correct?

A Maybe. But I was then.

Q And if you look at Exhibit 63, is an internet archive of

the domain name owned at that time by the United Federation of

Churches LLC for TheSatanicTemple.com; correct?

A Yes, this is the same placeholder website we went over

ad nauseam an hour ago.

Q In fact, Mr. Misicko, while I appreciate your commentary,

my question was that Exhibit 63 is an archived website for the

domain name owned by the United Federation of Churches LLC

SatanicTemple.com; is that correct or incorrect?

1 3 : 3 4 : 1 3 A I don't know that United Federation of Churches existed at

1 3 : 3 2 : 3 2 1

 2

 3

 4

1 3 : 3 2 : 4 9 5

 6

 7

 8

 9

1 3 : 3 3 : 0 1 10

11

12

13

14

1 3 : 3 3 : 2 9 15

16

17

18

19

1 3 : 3 3 : 5 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 154 of 255
 417

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

the time of the website. It certainly didn't exist at the

time this website was posted.

Q The United Federation of Churches LLC owned the --

A Yes, it's still owned, the Web domain -- 

THE COURT: Wait -- 

THE WITNESS: -- where the placeholder was.

THE COURT: Excuse me. Wait for the question,

please.

THE WITNESS: Sorry.

BY MR. CLAUS: 

Q The United Federation of Churches owned and controlled,

according to your prior testimony, the website

www.SatanicTemple.com; correct?

A Yes, it owned the domain where the placeholder site

resided before it was revised.

Q And as of April 17, 2014, the website owned and controlled

by the United Federation of Churches described God as

supernatural and outside of this sphere; correct?

A Correct.

Q It also described the website owned and controlled by the

United Federation of Churches as of April 17, 2014, described

satanists subordinate to God but mankind's only conduit to the

dominion beyond the physical; correct?

A Correct. But to be fair, I would still describe God as

1 3 : 3 5 : 4 2 supernatural, even though I don't believe in a supernatural

1 3 : 3 4 : 1 7 1

 2

 3

 4

1 3 : 3 4 : 3 4 5

 6

 7

 8

 9

1 3 : 3 4 : 3 8 10

11

12

13

14

1 3 : 3 4 : 5 3 15

16

17

18

19

1 3 : 3 5 : 1 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 155 of 255
 418

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

god.

Q And as of April 17, 2014, the website owned by the United

Federation of Churches LLC told people who accessed the

website owned and controlled by the organization called The

Satanic Temple, quote, only Satan can hear our prayers and

only Satan can respond; correct?

A Yes, that was a placeholder website that pre-existed the

formal establishment of The Satanic Temple and was not revised

until later on thereafter.

Q Let's talk about The Satanic Temple, Inc., one of the

entities that is a plaintiff in this matter.

The Satanic Temple, Inc., was not organized as a

corporate entity until November 14, 2017; correct?

A I believe that's correct.

Q If you look at Exhibit 83, please, it should be in a

folder in front of you.

MR. CLAUS: Before we move on, Your Honor, I move to

admit Exhibit 63.

THE COURT: Is there an objection to Exhibit 63?

MR. KEZHAYA: Did you say 83 or 63?

THE COURT: He just moved 63. The one we've been

talking about.

MR. de HAAN: No objection.

THE COURT: Admitted.

0 9 : 2 5 : 0 3 (Exhibit 63 admitted.) 

1 3 : 3 5 : 4 5 1

 2

 3

 4

1 3 : 3 5 : 5 7 5

 6

 7

 8

 9

1 3 : 3 6 : 3 3 10

11

12

13

14

1 3 : 3 6 : 5 1 15

16

17

18

19

1 3 : 3 7 : 0 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 156 of 255
 419

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

BY MR. CLAUS: 

Q Now I'm having you look at the folder with Exhibit 83,

Mr. Misicko.

Is Exhibit 83 the Articles of Organization for the

Satanic Temple, Inc.? 

A I'm so sorry, I keep doing that. I apologize.

Q Is Exhibit 83 the Articles of Organization for The Satanic

Temple, Inc.?

A Yes.

MR. CLAUS: I move to admit Exhibit 83, Your Honor.

MR. de HAAN: No objection.

THE COURT: Admitted.

MR. CLAUS: Thank you.

(Exhibit 83 admitted.)

BY MR. CLAUS: 

Q Michelle Shortt has never been an officer or director of

The Satanic Temple, Inc.; correct?

A I don't know how you would describe her through the

affiliate agreement.

Q Would you please -- do you recall describing for me during

the deposition of The Satanic Temple, Inc., on September 24th,

2019, that Michelle Shortt was not an officer or director of

The Satanic Temple, Inc.?

A No.

1 3 : 3 8 : 2 3 Q It is the deposition with the red cover, the deposition of

1 3 : 3 7 : 1 7 1

 2

 3

 4

1 3 : 3 7 : 2 3 5

 6

 7

 8

 9

1 3 : 3 7 : 4 6 10

11

12

13

14

1 3 : 3 7 : 5 2 15

16

17

18

19

1 3 : 3 8 : 0 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 157 of 255
 420

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Satanic Temple, Inc. I'm going to ask you to turn to page 24.

Just let me know when you've gotten there, please.

A Okay.

Q Please follow along with me as I read the question

starting at line 5.

"No, I want to know if Michelle Shortt has ever held

a position as an officer of the corporation The Satanic

Temple, Inc."

Did I read that question correctly, sir?

A Correct.

Q What was your one word answer?

A My answer was "No." But here I'd offer the caveat that I

was referring to The Satanic Temple, Inc., as the overarching

organization. I'm not a corporate lawyer so I don't know how

that fits in with the affiliate agreement and those agreements

thereafter. I know we gave them the trademark rights and the

right to speak on behalf of us. But, I mean, our corporate --

our incorporation documents are something put together by

lawyers with the most useful structure for what we're doing in

mind.

Q I know you don't like me reminding you that when you

testify, you testify under penalty of perjury, but when I took

your deposition and asked you if Michelle Shortt has ever held

a position as officer in the corporation The Satanic Temple,

1 3 : 3 9 : 5 5 Inc., you did not say any of the words you just said; correct?

1 3 : 3 8 : 2 6 1

 2

 3

 4

1 3 : 3 8 : 5 1 5

 6

 7

 8

 9

1 3 : 3 9 : 0 7 10

11

12

13

14

1 3 : 3 9 : 2 2 15

16

17

18

19

1 3 : 3 9 : 4 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 158 of 255
 421

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

A Correct.

Q You said "No"; correct?

A Correct. But I'm offering you the caveat now.

Q And when I asked you, sir, "Has Michelle Shortt ever held

a position as a director of The Satanic Temple, Inc.," you

gave me the one word answer "No"; is that true or is that

false?

A It's true along with the caveat that you are pointing

exactly to the people who signed the paperwork as director and

as officer, pointing out that none of them were

Michelle Shortt, and I was agreeing with you.

Q No, sir, I wasn't pointing to anything. I asked you a

question and you responded with no caveats and nothing other

than a one word answer, "No"; true?

A Yes, if you take -- if you take this script in isolation,

we see that I said no to that question.

Q Yep. That's how it works.

The Satanic Temple, Inc., has never filed a

certificate with the Arizona Corporation Commission; is that

correct?

A I'm not actually certain of that. I don't know how the

affiliate agreements work; I'm not a corporate lawyer, I

didn't set up the corporate structure.

Q When I asked you -- if you'd turn to the next page,

1 3 : 4 1 : 1 7 please, page 25, beginning at line 12, "Has The Satanic

1 3 : 3 9 : 5 9 1

 2

 3

 4

1 3 : 4 0 : 0 9 5

 6

 7

 8

 9

1 3 : 4 0 : 2 6 10

11

12

13

14

1 3 : 4 0 : 4 4 15

16

17

18

19

1 3 : 4 1 : 0 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 159 of 255
 422

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Temple, Inc., ever filed a document with the Arizona

Corporation Commission," you answered, "Not that I -- not that

I'm aware of, no." 

Correct?

A Correct.

Q And when I asked you, sir, if The Satanic Temple had ever

filed a document with the Arizona Secretary of State, you

answered, "Not to my knowledge, no." 

Correct?

A Correct.

Q The Satanic Temple, Inc., has no written agreement with

the owner of the trademark The Satanic Temple, the

intellectual property comprising The Satanic Temple, or any

other agreement with the United Federation of Churches LLC;

correct?

A I'm sorry, say again.

Q Sure. The owner of the intellectual property for The

Satanic Temple is the United Federation of Churches LLC.

You've testified to that numerous times today; correct?

A Correct.

Q There is no written agreement between the United

Federation of Churches LLC and the organization The Satanic

Temple, Inc.; correct?

A I don't know.

1 3 : 4 2 : 4 4 Q You knew on September 24th, 2019, sir, if you turn to

1 3 : 4 1 : 2 4 1

 2

 3

 4

1 3 : 4 1 : 3 7 5

 6

 7

 8

 9

1 3 : 4 1 : 5 0 10

11

12

13

14

1 3 : 4 2 : 1 3 15

16

17

18

19

1 3 : 4 2 : 2 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 160 of 255
 423

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

page 33 of the transcript of the deposition with the red

cover, the same transcript we've been talking about.

I asked you -- are you there, sir? 

I asked you at line 25 of page 33, "Do you know if

The Satanic Temple has any written agreements with the United

Federation of Churches LLC?" 

And you answered, as the only designee for that

entity, "Not that I -- not that I know of. I don't think

there's formal paperwork --"

I interrupted. I apologized for that.

"Okay." And you finished your answer "-- elucidating

that."

Do you see that, sir?

A No. Is this -- you say this is page 33?

Q Page 33, starting at line 25. The very last line.

I asked you, as the only designee of The Satanic

Temple, Inc., "Do you know if The Satanic Temple, Inc., has

any written agreements with the United Federation of Churches

LLC?"

And your answer, beginning at line 3, was: "Not that

I -- not that I know of. I don't think there's formal

paperwork elucidating that."

Correct?

A Correct. I didn't know then and I don't know now.

1 3 : 4 4 : 2 5 Q The Satanic Temple, Inc. -- strike that.

1 3 : 4 2 : 5 0 1

 2

 3

 4

1 3 : 4 3 : 1 8 5

 6

 7

 8

 9

1 3 : 4 3 : 3 9 10

11

12

13

14

1 3 : 4 3 : 4 9 15

16

17

18

19

1 3 : 4 4 : 0 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 161 of 255
 424

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

The United Federation of Churches LLC, that entity

does not play any role in determining or governing who may

become a member of the Arizona chapter of The Satanic Temple;

true?

A I don't know what you mean by that.

Q I'll ask it again.

The United Federation of Churches LLC does not play

any role in governing or determining who may be a member of

the Arizona chapter of The Satanic Temple. Is that a true

statement or false statement?

A I don't know because I don't know what that means.

Q If you get out the deposition transcript with the

orange -- imagine that -- the deposition transcript of the

United Federation of Churches LLC, that is the 83-page

deposition.

If you turn, please, to page 55 of that deposition

transcript and just let me know when you're there.

You knew on September 24, 2019, when I was asking you

as the only designee of the United Federation of Churches LLC

that the United Federation of Churches has never played a role

in governing or determining who may be a member of The Satanic

Temple; correct?

A Correct.

Q And you told me then, because it was true then, that the

1 3 : 4 6 : 2 0 United Federation of Churches LLC has never played a role in

1 3 : 4 4 : 3 2 1

 2

 3

 4

1 3 : 4 4 : 4 8 5

 6

 7

 8

 9

1 3 : 4 5 : 0 4 10

11

12

13

14

1 3 : 4 5 : 2 8 15

16

17

18

19

1 3 : 4 6 : 0 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 162 of 255
 425

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

governing or determining who may be a member of the Arizona

chapter of The Satanic Temple; correct?

A I think what's going on here is that --

Q I want you to answer my question --

A -- I might not have known what you're talking about then,

and I don't think I know what you're talking about now. I'm a

designee of the United Federation of Churches. I spoke

directly with Michelle Shortt and Stu de Haan giving explicit

permission --

THE COURT: Hold on. Hold on. That's not the

question.

THE WITNESS: Okay. 

THE COURT: If he asks you to answer a question yes

or no, do so if you can. If you can't, tell him you can't

answer it yes or no.

THE WITNESS: I understand.

THE COURT: And then if your counsel wants to give

you time to elaborate, they'll do that.

THE WITNESS: Thank you.

BY MR. CLAUS: 

Q Sir, you just testified about your lack of understanding.

But I want to take to you line 9 on page 55 of the

September 24th, 2019, deposition of you as the only 30(b)(6)

designee of the United Federation of Churches LLC.

1 3 : 4 7 : 2 6 When I asked you at line 9: "Okay. Does the United

1 3 : 4 6 : 2 6 1

 2

 3

 4

1 3 : 4 6 : 3 9 5

 6

 7

 8

 9

1 3 : 4 6 : 5 3 10

11

12

13

14

1 3 : 4 6 : 5 9 15

16

17

18

19

1 3 : 4 7 : 0 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 163 of 255
 426

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Federation of Churches LLC play any role in governing or

determining who may be a member of the Arizona chapter of The

Satanic Temple," you did not tell me in response that you were

confused; correct?

A Correct.

Q You did not tell me in response that you did not

understand my question; correct?

A Correct.

Q You did not tell me in your response that you could not

answer my question because it required you to exceed the

knowledge that you had as a designee; correct?

A Correct. And in that light, I can tell you what I think I

meant --

Q No, sir, I'm not asking --

A -- which is that the United States -- United Federation of

Churches --

THE COURT: Hold on. I know it's frustrating to

you, but you need to answer his questions.

THE WITNESS: Okay.

BY MR. CLAUS: 

Q No, sir. The answer that you gave me was, "No. The

Arizona chapter is autonomous in that regard."

Is that the answer you gave me?

A Correct.

1 3 : 4 8 : 3 3 Q Thank you.

1 3 : 4 7 : 2 9 1

 2

 3

 4

1 3 : 4 7 : 4 8 5

 6

 7

 8

 9

1 3 : 4 7 : 5 7 10

11

12

13

14

1 3 : 4 8 : 0 8 15

16

17

18

19

1 3 : 4 8 : 1 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 164 of 255
 427

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

A However -- 

Q You -- 

A -- that does not speak to the --

Q No, sir --

A -- membership the chapter has in management of that

chapter as a member.

THE COURT: Mr. Misicko, please confine your answer

to the question.

BY MR. CLAUS: 

Q In fact, sir, chapters of The Satanic Temple are given a,

quote, maximum of autonomy; correct?

A I see what you're misunderstanding is here.

Q No, sir, I'm asking --

A There's a difference between membership and management.

MR. CLAUS: Your Honor --

THE COURT: Ask the question --

MR. CLAUS: -- I'm going to move to strike that

response as nonresponsive.

BY MR. CLAUS: 

Q And ask: Chapters of The Satanic Temple are given, quote,

a maximum of autonomy. Is that incorrect or is that a correct

statement?

A The maximum that we can allow within -- 

Q Thank you. 

1 3 : 4 9 : 2 2 A -- certain limitations.

1 3 : 4 8 : 3 7 1

 2

 3

 4

1 3 : 4 8 : 4 0 5

 6

 7

 8

 9

1 3 : 4 8 : 4 9 10

11

12

13

14

1 3 : 4 9 : 0 6 15

16

17

18

19

1 3 : 4 9 : 1 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 165 of 255
 428

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q One does not need to be a satanist to be a member of the

Arizona chapter of The Satanic Temple; true?

A You'd have to ask the management of The Satanic Temple who

are all identified as satanists.

Q The Satanic Temple, Inc., talking about The Satanic

Temple, Inc., has never communicated with the City of

Scottsdale; correct?

A Not to my knowledge, no.

Q As of today -- strike that.

As of September 2019, you believed that there were

450 members of The Satanic Temple who lived in Arizona;

correct?

A Correct.

Q And you assumed that all 450 of those members were

secularists; correct?

A I assumed nothing.

Q Well, you told me during the deposition of you as the

30(b)(6) designee of The Satanic Temple, Inc., that you did

assume that all 450 were secularists; correct?

A Where's this?

Q Sure. The deposition with the red cover, the

September 24, 2019, deposition of you as the 30(b)(6) designee

of The Satanic Temple, Inc. Please turn to page 53.

Strike that.

1 3 : 5 0 : 5 8 We'll start at 52 to put it in context.

1 3 : 4 9 : 2 4 1

 2

 3

 4

1 3 : 4 9 : 4 0 5

 6

 7

 8

 9

1 3 : 4 9 : 5 5 10

11

12

13

14

1 3 : 5 0 : 1 6 15

16

17

18

19

1 3 : 5 0 : 3 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 166 of 255
 429

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Just tell me when you're there.

A I'm there.

Q I asked you, starting at line 18: "Today, as the designee

of The Satanic Temple, Inc., do you know how many members of

The Satanic Temple reside in the State of Arizona?"

You answered: "I don't know but I can give you a

minimum number."

I interrupted.

"If I check my -- my phone here, a minimum number of

450."

Did I read my question and your answer correctly,

sir?

A Correct.

Q And then I asked you, beginning at line 9: "Do you know,

of the members in Arizona today, those 450, how many are

secularists?"

Did I read that correctly?

A Correct.

Q Please tell the Court what you answered on that day.

A On that day I said, "I assume they're all secularists."

Q Thank you.

Being a member of the organization called The Satanic

Temple is not only available to a practicing satanist, but

also to those who wish to merely advance secularism or are

1 3 : 5 2 : 2 8 advocating for individual liberty; correct?

1 3 : 5 1 : 0 4 1

 2

 3

 4

1 3 : 5 1 : 2 4 5

 6

 7

 8

 9

1 3 : 5 1 : 4 2 10

11

12

13

14

1 3 : 5 1 : 5 2 15

16

17

18

19

1 3 : 5 2 : 0 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 167 of 255
 430

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

A Are you asking if that was your question or is that your

question now?

Q Sir, I'm asking you.

THE COURT: Clarify, please.

MR. CLAUS: I will, thank you.

BY MR. CLAUS: 

Q Being a -- I'm asking you the question, standing here

right now.

Being a member of the organization called The Satanic

Temple is not only available to practicing satanists but also

to those who wish to merely advance secularism or advocate for

individual liberty. Is that a true statement or false

statement?

A That's true.

Q You do not know how many members of The Satanic Temple

resided in Scottsdale, Arizona, as of February 2016; correct?

A I knew there were members in Scottsdale.

Q Sir, that's not my question. You do not know how many

members of The Satanic Temple resided in Scottsdale, Arizona,

as of February 2016. Is that true or is that false?

A I did not have an exact number. No.

Q In fact, you cannot testify under penalty of perjury that

any members of The Satanic Temple resided in Scottsdale as of

February 8, 2016; correct?

1 3 : 5 3 : 5 0 A I believe that I can.

1 3 : 5 2 : 3 4 1

 2

 3

 4

1 3 : 5 2 : 4 2 5

 6

 7

 8

 9

1 3 : 5 2 : 4 8 10

11

12

13

14

1 3 : 5 3 : 0 9 15

16

17

18

19

1 3 : 5 3 : 2 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 168 of 255
 431

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q Sir, take out the deposition with the orange cover.

Please turn to page 13. Tell me when you're there.

Are you there, sir?

A I'm there.

MR. CLAUS: Let the Judge get there as well.

THE COURT: I'm good.

BY MR. CLAUS: 

Q I asked you at line 15: "Do you know, under penalty of

perjury, if any members of the Satanic Temple resided in the

City of Scottsdale, Arizona, as of February 8, 2016?" 

And you responded at line 19: "I -- I could not tell

you that with 100 percent certainty."

That was my question and that was your answer when

you sat as the only designee of the United Federation of

Churches LLC on September 24, 2019; correct?

A Well, this is going to be a procedural issue because I've

done research since then and I don't know where the Court

stands on me introducing that into testimony.

MR. CLAUS: I know where I stand, Your Honor. And

it has not been disclosed ever.

THE COURT: You're asking the questions.

MR. CLAUS: I'm asking --

THE COURT: Witnesses don't have to disclose

testimony ahead of time. You don't have every witness coming

1 3 : 5 5 : 2 5 forward disclosing information. If you choose to ask it, he

1 3 : 5 3 : 5 2 1

 2

 3

 4

1 3 : 5 4 : 2 3 5

 6

 7

 8

 9

1 3 : 5 4 : 3 8 10

11

12

13

14

1 3 : 5 4 : 5 5 15

16

17

18

19

1 3 : 5 5 : 1 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 169 of 255
 432

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

can give the answer.

MR. CLAUS: But my question was as of September 24,

2019.

THE COURT: Well, and as of the deposition.

MR. CLAUS: Right.

THE COURT: That was his answer as of the

deposition.

BY MR. CLAUS: 

Q And that was your answer as of the deposition; correct?

A As of the deposition; correct.

Q Michelle Shortt has never been a manager of the United

Federation of Churches LLC; correct?

A Correct.

Q The United Federation of Churches LLC, the organization

that owns and controls all of the trademarks and intellectual

property of The Satanic Temple, has never sought tax-exempt

status; correct?

A I'm sorry, who has not?

Q The United Federation of Churches LLC, which owns and

controls all of the trademarks and intellectual property of

The Satanic Temple, that entity has never sought tax-exempt

status; correct?

A I don't know if it's considered tied in with that through

its relationship to The Satanic Temple, Inc. Again, I'm not a

1 3 : 5 6 : 3 0 corporate lawyer, I don't know how these things are

1 3 : 5 5 : 2 7 1

 2

 3

 4

1 3 : 5 5 : 3 6 5

 6

 7

 8

 9

1 3 : 5 5 : 4 2 10

11

12

13

14

1 3 : 5 5 : 5 5 15

16

17

18

19

1 3 : 5 6 : 1 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 170 of 255
 433

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

intertwined.

Q You had no problem answering my question during the time

you testified as the designee on September 24, 2019. If you

look at the orange deposition --

THE COURT: Excuse me. Is that a question?

BY MR. CLAUS: 

Q -- at the orange deposition --

THE COURT: Let's ask the question, please.

BY MR. CLAUS: 

Q The orange deposition, sir. Page 28.

Are you there?

A Yes.

Q At line 17, I asked you the question: "Has the United

Federation of Churches LLC ever sought tax-exempt status from

the IRS?" 

And you answered as the Rule 30(b)(6) designee: "To

my knowledge, that was never, never, the route we pursued that

with."

That was your answer; correct?

A I believe that was also my answer this time.

Q Cevin Soling, who goes by the name Malcolm Jarry, is the

only manager of the United Federation of Churches LLC;

correct?

A Correct.

1 3 : 5 8 : 0 0 Q You do not know of any document that permits The Satanic

1 3 : 5 6 : 3 3 1

 2

 3

 4

1 3 : 5 6 : 4 4 5

 6

 7

 8

 9

1 3 : 5 6 : 5 0 10

11

12

13

14

1 3 : 5 7 : 2 5 15

16

17

18

19

1 3 : 5 7 : 4 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 171 of 255
 434

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Temple, Inc., to lawfully use the trademarks and intellectual

property owned by the United Federation of Churches LLC;

correct?

A I do know of such a document.

Q Sir, when you testified as the Rule 30(b)(6) designee of

the United Federation of Churches LLC you told me you knew of

no such document; correct?

A Right. As of deposition, I did not know of such a

document.

Q If you look at page 34, line 23, of the orange-covered

deposition.

"Question: Okay. Do you know if the United

Federation of Churches LLC has entered into a licensing

agreement with The Satanic Temple, Inc., whereby The

Satanic Temple, Inc., is permitted to lawfully use the

trademark, quote, The Satanic Temple?" 

And your answer was, "Again, let me say I know of no

legal documentation that would -- that would confer that

right."

Correct?

A Correct.

Q And you knew --

A Now I do.

Q -- you knew when you were sitting for your deposition on

1 3 : 5 9 : 3 4 September 24, 2019, that you had been designated as the only

1 3 : 5 8 : 0 3 1

 2

 3

 4

1 3 : 5 8 : 1 7 5

 6

 7

 8

 9

1 3 : 5 8 : 3 2 10

11

12

13

14

1 3 : 5 9 : 0 7 15

16

17

18

19

1 3 : 5 9 : 2 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 172 of 255
 435

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

deponent knowledgeable about the topics listed in the notice

of Rule 30(b)(6) deposition; correct?

A Incorrect.

Q Turn, sir, to page 6 of the orange-covered deposition, the

deposition of United Federation of Churches LLC. I'm going to

start at line 19 on page 6.

"Exhibit 7 is the notice of 30(b)(6) deposition of

the United Federation of Churches LLC. Do you see that?

"Answer: Yes.

"Question: And please take a look at Exhibit A to

Exhibit 7, which is the list of topics for which you've been

designated as deponent. Exhibit A to Exhibit 7.

"Answer: Okay. Yes.

"Question. Do you agree that you are the person

most knowledgeable about the topics listed in Exhibit A of

Exhibit 7?" 

And your answer was: "The most knowledgeable

representative of the company in question."

And I clarified. "Question: Of the United

Federation of Churches LLC?"

And you answered: "Correct, yeah."

Right?

A I see no discrepancy in my answer today.

Q You sat for the Rule 30(b)(6) deposition of the United

1 4 : 0 1 : 2 5 Federation of Churches as the only designee produced with

1 3 : 5 9 : 3 9 1

 2

 3

 4

1 4 : 0 0 : 0 7 5

 6

 7

 8

 9

1 4 : 0 0 : 3 0 10

11

12

13

14

1 4 : 0 0 : 4 9 15

16

17

18

19

1 4 : 0 1 : 0 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 173 of 255
 436

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

knowledge about the topics identified in the notice of

deposition. That is a true statement; correct?

MR. de HAAN: Objection. Relevance at this point,

Your Honor. Also asked and answered.

THE COURT: Overruled.

THE WITNESS: As the only knowledgeable

representative of the company in question.

BY MR. CLAUS: 

Q Which --

A The lawyers who put together the paperwork, they would be

more knowledgeable, they would be more knowledgeable

deponents. I cannot say that I would be the most

knowledgeable deponent about the corporate structure of The

Satanic Temple. But as a representative of the company

itself, I'm what we've got.

Q You know, as the designee of the United Federation of

Churches, that Michelle Shortt never asked the manager of the

United Federation of Churches LLC for authority to speak on

behalf of that organization; correct?

A Incorrect.

Q Could you please turn to page 35 of the orange colored

deposition, the deposition of you as the designee of the

United Federation of Churches LLC.

Starting at line 25.

1 4 : 0 2 : 5 9 "okay. Prior to February 8, 2016, did

1 4 : 0 1 : 3 0 1

 2

 3

 4

1 4 : 0 1 : 4 1 5

 6

 7

 8

 9

1 4 : 0 1 : 4 9 10

11

12

13

14

1 4 : 0 2 : 0 3 15

16

17

18

19

1 4 : 0 2 : 2 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 174 of 255
 437

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

Michelle Shortt ever ask Cevin Soling, as the manager of the

United Federation of Churches LLC for permission to speak on

behalf of that legal entity?" 

And your answer was: "Not that I'm aware of."

Correct?

A Again, I'm not seeing the discrepancy. I'm still not

aware of it today. But I'm not making the absolute claim that

she did not.

Q The operating agreement for the United Federation of

Churches LLC does not confer agency authority on anyone other

than the manager of that entity; correct?

A Correct.

Q You do not know the date that Michelle Shortt became a

member of The Satanic Temple, do you?

A I do not.

MR. CLAUS: Let me just check, Your Honor, and I

think I'm done.

BY MR. CLAUS: 

Q Do you --

MR. CLAUS: I'm sorry, can I ask for the witness,

unless he's already been given it, Exhibit 61.

THE WITNESS: I've got it.

THE COURT: He has it, Christine.

MR. CLAUS: Oh. Okay. Thank you.

1 4 : 0 3 : 0 5 1

 2

 3

 4

1 4 : 0 3 : 2 1 5

 6

 7

 8

 9

1 4 : 0 3 : 3 6 10

11

12

13

14

1 4 : 0 3 : 5 9 15

16

17

18

19

1 4 : 0 4 : 3 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 175 of 255
 438

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

BY MR. CLAUS: 

Q Sir, I've asked for you to be handed Exhibit 61. Can you

take a look at it, please.

A Yes.

Q Do you recognize Exhibit 61 to be the certificate of

organization for the entity called the United Federation of

Churches LLC?

A Yes.

Q And dated February 4, 2014?

A Correct.

Q Which predated Exhibit 63, which identified God and Satan

as supernatural on April 17, 2014; correct?

A Correct.

MR. CLAUS: I move for admission of Exhibit 61,

Your Honor.

MR. de HAAN: If I may have a moment to examine

this, Your Honor.

No objection.

THE COURT: Admitted.

(Exhibit 61 admitted.)

MR. CLAUS: Could you hand the witness Exhibit 78,

please. And 79. And 81. And 85.

This is just getting it in evidence. I apologize,

Your Honor.

1 4 : 0 6 : 3 7 THE COURTROOM DEPUTY: Any others?

1 4 : 0 4 : 5 8 1

 2

 3

 4

1 4 : 0 5 : 0 9 5

 6

 7

 8

 9

1 4 : 0 5 : 2 5 10

11

12

13

14

1 4 : 0 5 : 4 2 15

16

17

18

19

1 4 : 0 6 : 0 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 176 of 255
 439

CROSS-EXAMINATION - DOUGLAS ALEXANDER MISICKO

THE COURT: Why don't you ask plaintiffs' counsel if

they object to the admission of any of those.

MR. CLAUS: Thank you.

THE COURT: Give them the numbers.

MR. CLAUS: I will. I'm going to actually bring it

over to them if Your Honor will allow.

THE COURT: That's fine.

MR. CLAUS: Thank you.

(Counsel confer.)

MR. de HAAN: No objections.

THE COURT: All right. What are those exhibits

again?

MR. CLAUS: 78, 79, 81, 85, Your Honor.

THE COURT: All right. Those exhibits are admitted.

(Exhibits 78, 79, 81, and 85 admitted.) 

MR. CLAUS: We can just -- if you can put

Exhibit 85, I just have a couple of questions about it, in

front of the witness.

BY MR. CLAUS: 

Q Exhibit 85 is a restated certificate of organization for

the United Federation of Churches LLC that was submitted to

the Massachusetts Corporations Division on May 21, 2018. Do

you see that? The last page. Certification from

William Galvin, Secretary of the Commonwealth.

1 4 : 0 8 : 4 1 A Correct.

1 4 : 0 6 : 3 8 1

 2

 3

 4

1 4 : 0 6 : 4 6 5

 6

 7

 8

 9

1 4 : 0 7 : 2 5 10

11

12

13

14

1 4 : 0 7 : 4 8 15

16

17

18

19

1 4 : 0 8 : 1 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 177 of 255
 440

REDIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

Q And in box 3, the United Federation of Churches LLC is

asked to describe the general character of the business and if

the limited liability is organized to render professional

service, the service to be rendered; correct?

A Correct.

Q And in the general character of business in the restated

certificate of organization filed with the Commonwealth of

Massachusetts on 5/21/2018, the United Federation of Churches

LLC, did not mention religion at all; correct?

A Correct.

Q The lawsuit in this case had been filed as of May 21,

2018; true?

A Correct.

MR. CLAUS: That's all I have for this witness,

Your Honor.

THE COURT: Redirect?

MR. CLAUS: It will just take me a second to get my

many binders out of the way here.

R E D I R E C T E X A M I N A T I O N 

BY MR. de HAAN: 

Q In order to do anything public, public facing in The

Satanic Temple, does there have to be permission sought by the

organization?

A There does.

1 4 : 1 0 : 4 5 Q Which, if someone were to request to do a ritual or

1 4 : 0 8 : 4 3 1

 2

 3

 4

1 4 : 0 9 : 0 4 5

 6

 7

 8

 9

1 4 : 0 9 : 2 3 10

11

12

13

14

1 4 : 0 9 : 3 5 15

16

17

18

19

1 4 : 1 0 : 2 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 178 of 255
 441

REDIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

invocation -- well, I'll ask one at a time, someone to do a

ritual that were illegal, would you authorize it?

A We would not.

Q If someone was to give a public invocation that was

intentionally offensive to a specific religion, would you

allow it?

A Absolutely not. We have language in our affiliation

agreement that lets all our chapters know that we must advance

our affirmative values with every public facing thing we do

and not disparage other religious viewpoints or individuals.

Q And have you had people do that?

A We have had people act outside the boundaries of our -- of

our -- of our permission to do things in our name.

Q And what happened to them within the organization?

A They have gotten kicked out from the organization.

Q As far as the Pink Mass that was referenced, was that a

Satanic Temple maneuver or was that you personally?

A That was part of the very nascent origins of The Satanic

Temple which have been documented by religious scholars that

take us seriously as a religion and a documentarian who came

away making a documentary from us concluding that we are an

authentic religion.

Q Has anything like that ever happened since?

A It has not.

1 4 : 1 2 : 3 0 Q Is being a secularist and a satanist mutually exclusive?

1 4 : 1 0 : 4 8 1

 2

 3

 4

1 4 : 1 1 : 0 2 5

 6

 7

 8

 9

1 4 : 1 1 : 1 7 10

11

12

13

14

1 4 : 1 1 : 4 1 15

16

17

18

19

1 4 : 1 2 : 0 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 179 of 255
 442

REDIRECT EXAMINATION - DOUGLAS ALEXANDER MISICKO

A It is not.

Q Would you authorize anybody, any member of The Satanic

Temple to do -- to lead a public ritual or give an invocation

that did not openly identify as a satanist?

A I would not.

Q And you said how many people -- how many people did you

testify approximately are in The Satanic Temple?

A We're in the hundreds of thousands now.

Q And do you know every one of them?

A I do not.

Q Do you know when any of them joined or all of them joined?

A I do not.

Q Do you maintain chapter websites?

A I do not.

Q Do you know if's it's easy or difficult to maintain

demographics on satanists?

A It is difficult given the reticence of many to identify

publicly as satanists.

Q In order to become a satanist, do you have to speak to the

manager?

A You do not.

Q Is there an entire system of vetting leadership?

A There is a very thorough vetting process.

Q Do you appoint officers within a chapter?

1 4 : 1 4 : 1 0 A I do not. I appoint -- I can appoint chapter heads and

1 4 : 1 2 : 3 5 1

 2

 3

 4

1 4 : 1 2 : 5 4 5

 6

 7

 8

 9

1 4 : 1 3 : 1 0 10

11

12

13

14

1 4 : 1 3 : 2 4 15

16

17

18

19

1 4 : 1 3 : 4 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 180 of 255
 443

weigh in on -- see, we'd have to go to time. At the

beginning, I was appointing chapter heads, and later on we

moved that to a council and the council deliberates upon who

is qualified and who best advances our message.

Q And who appoints officers within a chapter?

A The chapter leadership.

Q Is it common for there to be certain officers, such as a

treasurer or a secretary or something like that?

A It is.

Q If someone wants to give an invocation, is there a

prescribed invocation or could they -- could anybody giving an

invocation go outside of that?

A They can choose what they want, but they're going to have

to run it by us before they deliver it in our name.

Q And if it was off message, so to speak, what would happen?

A We would not allow the invocation to be delivered in our

name.

Q You said that as of now you are aware of members within

Scottsdale that were members at the time of late 2015, early

2016?

A I know that we had members in Scottsdale then.

Q Do you know if there are now?

A I have not kept track.

MR. de HAAN: Nothing further.

1 4 : 1 6 : 0 6 THE COURT: All right.

1 4 : 1 4 : 1 7 1

 2

 3

 4

1 4 : 1 4 : 3 4 5

 6

 7

 8

 9

1 4 : 1 4 : 5 5 10

11

12

13

14

1 4 : 1 5 : 1 1 15

16

17

18

19

1 4 : 1 5 : 4 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 181 of 255
 444

Thank you, sir. You can step down.

MR. de HAAN: Plaintiffs rest.

THE COURT: All right.

MR. CLAUS: Your Honor, we'll be making a motion for

judgment as a matter of law. We'll make it orally.

May I use the restroom before we do that, please?

THE COURT: Yeah.

How long do you think the motion will take?

MR. CLAUS: Less than 15 minutes.

THE COURT: Why don't we go ahead and take the

afternoon break now, then. We will resume at 2:35.

MR. CLAUS: Thank you, Your Honor.

(Recess taken from 2:17 to 2:32.)

THE COURT: Thank you. Please be seated.

Mr. Claus, you wanted to make a motion?

MR. CLAUS: Yes, Your Honor. May I -- I don't know,

if you haven't calculated it, then I don't want you to take

up time doing it. But if you have calculated, remaining

time, please.

THE COURT: I haven't. I can do it pretty quickly.

Would it help both sides?

MR. KEZHAYA: It would aid the plaintiffs, as well,

Your Honor.

THE COURT: All right. Give me just a minute.

1 4 : 3 4 : 2 7 All right. As of now plaintiff has used four hours

1 4 : 1 6 : 0 6 1

 2

 3

 4

1 4 : 1 6 : 2 4 5

 6

 7

 8

 9

1 4 : 1 6 : 4 0 10

11

12

13

14

1 4 : 3 2 : 5 7 15

16

17

18

19

1 4 : 3 3 : 0 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 182 of 255
 445

and 59 minutes. Defendants have used four hours and 41

minutes.

MR. CLAUS: Thank you, Your Honor.

Pursuant to Rule 52(c) of the Federal Rules of Civil

Procedure, Your Honor, we ask the Court to enter judgment as

a matter of law against the plaintiffs for a host of reasons.

The first argument I want to touch on involves the

various plaintiffs and it relates to the Court's ongoing duty

to assure itself that it has subject matter at every stage of

the litigation and recognizing that standing is a component

of subject matter jurisdiction.

Your Honor, when it entered its motion to dismiss on

the motion that was filed with respect to subject matter

jurisdiction indicated that there was no evidence at the time

whether Michelle Shortt was a member of The Satanic Temple.

Mr. Misicko just testified that he could not testify under

penalty of perjury that Michelle Shortt was a member of The

Satanic Temple at any time prior to the filing of this

lawsuit.

Your Honor had a question in a footnote, I believe

it was footnote 2 of the order on the motion to dismiss, as

to whether the unincorporated association that purports to be

a plaintiff in this case ceased to exist when the Adversarial

Truth LLC was formed, and the Court was provided that answer

1 4 : 3 6 : 2 5 in the irrefuted testimony of Michelle Shortt when she

1 4 : 3 4 : 3 2 1

 2

 3

 4

1 4 : 3 4 : 5 0 5

 6

 7

 8

 9

1 4 : 3 5 : 1 5 10

11

12

13

14

1 4 : 3 5 : 4 0 15

16

17

18

19

1 4 : 3 6 : 0 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 183 of 255
 446

testified that Adversarial Truth LLC was formed for the

purpose and did, in fact, operate the Arizona chapter of The

Satanic Temple.

Along those lines, Your Honor, you both saw and you

heard that the Adversarial Truth LLC did -- still to this day

does not have an affiliation agreement with the only entity

that controls The Satanic Temple, the United Federation of

Churches LLC. And the unilaterally signed affiliate

agreement, which is Exhibit 76, demonstrates that that

affiliation did not exist in February 2016 when the purported

invocation was sought, did not exist in May 2016 when the

purported invocation was denied.

The Satanic Temple, Inc., one of the plaintiffs in

this case, did not exist until November 2017, according to

the testimony of Mr. Misicko.

With respect to Michelle Shortt, Michelle Shortt

must show that her injuries were caused by the conduct of the

City to show standing, that she suffered a concrete and

particularized injury, she suffered a concrete and

particularized injury as a result of the conduct of the City,

and that that injury is redressable.

On that issue, Your Honor, there is a surfeit of

testimony that Michelle Shortt never spoke to a

representative of the City of Scottsdale, never sought the

1 4 : 3 8 : 3 5 ability to do anything from the City of Scottsdale.

1 4 : 3 6 : 3 0 1

 2

 3

 4

1 4 : 3 6 : 4 8 5

 6

 7

 8

 9

1 4 : 3 7 : 1 9 10

11

12

13

14

1 4 : 3 7 : 4 9 15

16

17

18

19

1 4 : 3 8 : 1 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 184 of 255
 447

Mr. Zarzycki, according to the only evidence in this

courtroom, never identified Michelle Shortt as a proposed

speaker. And most importantly, Your Honor, there is no

testimony in this case that the City of Scottsdale ever

caused injury to Michelle Shortt by denying her the ability

to give an invocation because no one in this courtroom

testifying on behalf of the City of Scottsdale knew who

Michelle Shortt was until this lawsuit was filed.

Critically, Your Honor, on the Establishment Clause

claim, the evidence adduced in this case demonstrates as a

matter of law that the plaintiffs cannot prevail on their

Establishment Clause claim.

An invocation is, by definition, government speech.

Ms. Shortt testified on examination by her own

lawyer whether Exhibit 4 constituted an invocation or

constituted a speech. She testified that it constituted

speech. A speech, not an invocation.

And we know that's true because she also testified

that she did not seek to give that speech on behalf of the

City of Scottsdale city council. Yet, as a matter of law

according to Town of Greece and Marsh, that is exactly what

an invocation is. In fact, courts have recognized that

invocations are a unique type of government speech because

the governmental body, not the public, is the primary

1 4 : 4 0 : 3 8 audience for that invocation.

1 4 : 3 8 : 4 0 1

 2

 3

 4

1 4 : 3 8 : 5 6 5

 6

 7

 8

 9

1 4 : 3 9 : 2 0 10

11

12

13

14

1 4 : 3 9 : 4 3 15

16

17

18

19

1 4 : 4 0 : 1 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 185 of 255
 448

Because the invocation constituted government speech

as a matter of law, the plaintiffs had no protectable right

in that speech, Your Honor, according to McGowan, Supreme

Court decision, which is supported by Simpson, the Fourth

Circuit decision.

With respect to the denial of the invocation itself,

there is no evidence in this case adduced by the party who

has the burden of proof that any representative of the City

of Scottsdale was ever told any belief, viewpoint, or idea

either held by or sought to be espoused by any plaintiff.

And critically, the person who made the decision to

deny the invocation is one person, Brian Biesemeyer, who

testified that no representative of any plaintiff ever

informed him of any belief, viewpoint, or religion that the

plaintiffs seek to espouse during an invocation.

The plaintiffs have the burden of proof, Your Honor.

The plaintiffs have offered no proof that Mr. Biesemeyer knew

of the existence of Michelle Shortt, that Mr. Biesemeyer

based his decision on anything other than the information

that he sought to be delivered to him so he could fulfill his

role as the chief executive officer in charge of

administrative decisions.

And that point is also critical, Your Honor. This

was not, according to the only testimony in this case, a

1 4 : 4 2 : 4 4 legislative decision. It was an administrative decision.

1 4 : 4 0 : 4 5 1

 2

 3

 4

1 4 : 4 1 : 0 8 5

 6

 7

 8

 9

1 4 : 4 1 : 4 0 10

11

12

13

14

1 4 : 4 2 : 0 8 15

16

17

18

19

1 4 : 4 2 : 2 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 186 of 255
 449

And there was one person in charge of that administrative

decision, Brian Biesemeyer. And according to the only

testimony you've heard in this case, no councilmember, the

mayor, and the council sitting as a whole could not direct

Mr. Biesemeyer to alter his administrative decision. And in

any event, there is no evidence, there is simply no evidence

in this case that Mr. Biesemeyer's decision, administrative

decision was influenced by any statement made by the mayor or

any statement made by the council.

So the plaintiffs have not met the burden that would

be necessary to get this case to a jury if a jury had been

impaneled, which means that they have not met their burden.

That should preclude the Court from entering the judgment as

a matter of law.

That's all, Your Honor.

THE COURT: Plaintiffs' counsel.

MR. KEZHAYA: Thank you, Your Honor. May it please

the Court.

I'll begin by noting that the City did not raise a

52(c) motion on our Equal Protection claim.

As for summary judgment -- subject matter

jurisdiction, Your Honor, the question is standing. Standing

involves three parts: Injury, causation, redressability.

There is also another requirement, which is, is TST a real

1 4 : 4 4 : 3 2 religion. I'll cover each in turn.

1 4 : 4 2 : 5 1 1

 2

 3

 4

1 4 : 4 3 : 0 8 5

 6

 7

 8

 9

1 4 : 4 3 : 3 2 10

11

12

13

14

1 4 : 4 3 : 5 3 15

16

17

18

19

1 4 : 4 4 : 1 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 187 of 255
 450

Was Michelle Shortt injured by the City revoking the

invocation? The answer is yes.

How do we know? It was undisputed that she was the

one to perform the invocation. The City may have not talked

to her specifically, they may not have talked to Mr. Misicko

individually, but she was the one to give the invocation. An

invocation was scheduled for July 6, and that invocation was

revoked.

We have submitted some evidence, which is all that

we have to do to survive a 52(c) motion, that the reason

behind the revocation was due to religious animus, not to

this nebulous substantial connection policy. So we have an

injury.

The next question is do we have causation? The

answer is yes. How do we know that? The city manager was

the chief executive officer of the City. At all stages

throughout this litigation, up until about three weeks ago,

it was always undisputed that the city manager was acting on

behalf of the City. They may try to insulate the city

council and the mayor from the fact that this decision was

made. However, it is beyond dispute that it was the City

that did the revoking of the invitation.

The last question is redressability. Can the Court

redress this injury? The answer once again is yes. How?

1 4 : 4 6 : 0 3 Enjoin the City from precluding The Satanic Temple from

1 4 : 4 4 : 3 5 1

 2

 3

 4

1 4 : 4 4 : 4 4 5

 6

 7

 8

 9

1 4 : 4 5 : 0 1 10

11

12

13

14

1 4 : 4 5 : 2 0 15

16

17

18

19

1 4 : 4 5 : 3 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 188 of 255
 451

giving an invocation. The Court can also order costs of this

litigation and the Court can also attorneys' fees of this

litigation. That will, as a practical matter, resolve this

issue for the plaintiffs.

The last issue, which I think is the real issue for

today's trial, or the past two days trial, is, is TST a real

religion. Have we submitted some evidence about whether TST

is a religion? We believe emphatically the answer is yes.

Michelle Shortt testified, if I remember correctly,

approximately two hours, mostly on the issue of does she

believe the seven fundamental tenets and her concept of what

we call The Satanic Temple, is that a religion? Yes. She

testified, "This organization takes the same place that God

does for me as it would for other people."

She testified at length about iconography. She

showed us her pendants. She described her tattoos. She

described ceremony. She described the feelings that she felt

when engaging in ceremony. She described fellowship. In

every conceivable way, TST is a religion as established by

Michelle Shortt.

Not only did we establish that TST is a real

religion through Michelle Shortt, Mr. Misicko, the cofounder

of the organization, testified at length today about the

religious nature of the organization.

1 4 : 4 7 : 3 3 Not only did we testify at length about the

1 4 : 4 6 : 0 6 1

 2

 3

 4

1 4 : 4 6 : 2 0 5

 6

 7

 8

 9

1 4 : 4 6 : 3 9 10

11

12

13

14

1 4 : 4 7 : 0 0 15

16

17

18

19

1 4 : 4 7 : 2 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 189 of 255
 452

religious nature of the organization, we testified at length

about the religious nature of the invocation.

In short, this is a religious organization. It was

always a religious organization. It was never a dispute

about whether this is a religious organization.

The Court has subject matter jurisdiction for the

foregoing reasons.

The next question is do we have an Establishment

Clause case. He indicates -- Mr. Claus indicates that the

invocation is not religious because Ms. Shortt testified that

she would not give it on behalf of the city council. That

misconstrues Ms. Shortt's testimony. She was saying that she

would not give it on behalf of the city council because she

was testifying that she would give it on behalf of The

Satanic Temple.

And once again, Mr. Misicko testified at length

about the intended meaning behind the religious invocation.

He also testified at length about the fact that this is not

intended to offend anyone, although it may offend some

people; that is not their problem.

Mr. Claus also argued that there is no document

conferring authority, at least that has been produced today,

between the LLC, Adversarial Truth LLC, and The

Satanic Temple, Inc. This is a governance issue, Your Honor.

1 4 : 4 8 : 5 7 There's no argument before the Court that they did not have

1 4 : 4 7 : 3 6 1

 2

 3

 4

1 4 : 4 7 : 4 8 5

 6

 7

 8

 9

1 4 : 4 8 : 0 2 10

11

12

13

14

1 4 : 4 8 : 1 6 15

16

17

18

19

1 4 : 4 8 : 3 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 190 of 255
 453

authority. In fact, Mr. Misicko testified at some length

that he is the top of TST, along with the cofounder, and he

gave express authority to Ms. Shortt and Stu de Haan. So

there is express authority, and the ensuing events in this

litigation show ratification, as if there's any doubt. 

Mr. Claus also argues that there was nobody of the

City was told about the religious beliefs of TST or the

invocation or substantially pretty much anything else about

TST. Once again, Your Honor, this misconstrues the issues.

The testimony showed very clearly that they didn't ask anyone

anything of any of their religious invocations before

scheduling them. This goes to show religious animus.

For the foregoing reasons, Your Honor, we have

standing, we have an Establishment Clause case, and to

whatever extent that was a 52(c) motion our Equal Protection

Clause issue, we also have an Equal Protection case.

THE COURT: All right. I'm going to take the motion

under advisement. I'm sure your closing arguments will touch

on some of these points as well. But I think, because I'm

not going decide it now, we ought to go ahead with the

defense evidence.

MR. CLAUS: The first thing we would like to do,

Your Honor, is to make our offer of proof with respect to

Mr. de Haan.

1 4 : 5 0 : 2 8 THE COURT: You want to take time on the record to

1 4 : 4 9 : 0 0 1

 2

 3

 4

1 4 : 4 9 : 1 8 5

 6

 7

 8

 9

1 4 : 4 9 : 4 0 10

11

12

13

14

1 4 : 4 9 : 5 5 15

16

17

18

19

1 4 : 5 0 : 1 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 191 of 255
 454

do it? I thought you said you were going to do that in

writing.

MR. CLAUS: I -- I do want to take the time to do it

on the record because it's not going to be very long.

THE COURT: All right.

MR. CLAUS: If permitted to be called as a witness

in this case, Mr. de Haan will be expected to admit the

following:

That the plaintiff entities represent a

sociopolitical countermyth, not a religion.

That the plaintiff entities are not a religion

because they are, in fact, a political activist organization

focused on challenging governmental practices that they

believe implicate the First Amendment.

He would be forced to admit that he has previously

indicated that he enjoys the attention afforded to him by

plaintiffs' myriad publicity stunts, calling himself at one

point, quote, a publicity whore, end quote.

Mr. de Haan would be expected to admit the

plaintiffs do not engage in worship, which is what

Mr. de Haan would admit is the, quote, antithesis of what

humans are meant to do, end quote. And that rather than

being a religion, Mr. de Haan would admit that plaintiffs',

quote, entire purpose is, quote, free speech, end quote.

1 4 : 5 2 : 0 3 Mr. de Haan would be expected to admit that

1 4 : 5 0 : 3 0 1

 2

 3

 4

1 4 : 5 0 : 3 9 5

 6

 7

 8

 9

1 4 : 5 0 : 5 5 10

11

12

13

14

1 4 : 5 1 : 1 7 15

16

17

18

19

1 4 : 5 1 : 3 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 192 of 255
 455

plaintiffs have no unified system of belief, no worship

service, no canonical text, and no system of ordination.

Mr. de Haan would be expected to admit that plaintiff

Adversarial Truth LLC did not exist at any relevant point in

time during the litigation.

That there was no written authorization for

Ms. Shortt to act on behalf of any plaintiff until after the

intended invocation.

And Mr. Shortt would be forced to admit -- or, I'm

sorry, strike that. Mr. de Haan would be forced to admit that

he is unable to identify any conversations that he has had or

was aware of with representatives of the City in which

representatives of the City demonstrated or expressed animus

toward any plaintiff or any religious view they have.

Mr. de Haan would be expected to admit he has no

belief in a higher power or deity and expressly rejects such

belief.

Mr. de Haan would be expected to describe the belief

system to which he and others ascribe associated with the

plaintiffs as being void of the characteristics typical of

religious beliefs.

Mr. de Haan would be expected to admit that the

plaintiffs' attempt to give an invocation was part of an

organized campaign to disrupt municipal government. That he

1 4 : 5 3 : 3 4 was a co-chapter head of the Arizona chapter of The

1 4 : 5 2 : 0 5 1

 2

 3

 4

1 4 : 5 2 : 2 4 5

 6

 7

 8

 9

1 4 : 5 2 : 3 6 10

11

12

13

14

1 4 : 5 2 : 5 6 15

16

17

18

19

1 4 : 5 3 : 1 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 193 of 255
 456

Satanic Temple, and that that Arizona chapter of The

Satanic Temple was not formed until August 2016.

Mr. de Haan would be forced to admit that prior to

August 2016, neither Michelle Shortt nor The Arizona chapter

of The Satanic Temple had the right to use the trademarks

owned by the United Federation of Churches LLC, including the

trademark The Satanic Temple.

Finally, Your Honor, if Mr. de Haan is allowed to be

called, he would be expected to admit that he never

communicated the beliefs or viewpoints of any plaintiff to any

representative of the City of Scottsdale.

THE COURT: All right. And as I indicated at the

final pretrial conference, you've made a record on that. I'm

not going to consider any of those facts that Mr. de Haan

would have testified to. I would consider them if they came

from other witnesses because I believe the defendants waited

far too long in this litigation to designate opposing counsel

as a witness.

But that's on the record, so you've made your offer

of proof.

MR. CLAUS: Thank you, Your Honor. 

THE COURT: So let's go ahead with the evidence you

wish to present. 

MR. CLAUS: The defense rests, Your Honor.

1 4 : 5 4 : 4 2 THE COURT: Okay. Anything -- well, there is no

1 4 : 5 3 : 3 5 1

 2

 3

 4

1 4 : 5 3 : 5 3 5

 6

 7

 8

 9

1 4 : 5 4 : 0 6 10

11

12

13

14

1 4 : 5 4 : 2 4 15

16

17

18

19

1 4 : 5 4 : 3 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 194 of 255
 457

rebuttal because there's been no defense evidence.

All right. Then what I want to do is hear what else

you want to make in the way of arguments, if any, besides

what you just covered. Then I will have a few questions for

you.

MR. KEZHAYA: Yes, Your Honor. Thank you. And once

again, may it please the Court.

THE COURT: Yes.

MR. KEZHAYA: The Court's very well versed in the

law in this matter, but there's a case that was cited as

Malnak 2 of the Alvarado case, if the Court remembers the

Alvarado case from the order denying motion to dismiss for

lack of standing.

Alvarado's a very interesting case to me because it

goes to the issue of when is something a religion. It

doesn't really answer it, but it does give us few indicia,

which is what they called it helpful indicia. It's not a

test for helpful indicia.

Malnak goes into substantially more detail. And the

gist of it is you don't have to believe in God to be a

religion. That is a very well settled fact in First

Amendment jurisprudence.

Now, Scot, Mr. Claus, will argue that while that's

technically true under Town of Greece, this is something of

1 4 : 5 6 : 0 8 an island in First Amendment jurisprudence. That's not

1 4 : 5 4 : 4 4 1

 2

 3

 4

1 4 : 5 4 : 5 8 5

 6

 7

 8

 9

1 4 : 5 5 : 1 5 10

11

12

13

14

1 4 : 5 5 : 3 2 15

16

17

18

19

1 4 : 5 5 : 4 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 195 of 255
 458

entirely true, Your Honor. The recent Bladensburg Cross

case, the -- I believe there was AHA versus American Legion,

specifically addressed that idea and said no, Town of Greece

does not make something that would otherwise be

unconstitutional okay. It's just that you have to take a

very special notice of the historical nature of invocations.

THE COURT: Did you cite that case in your proposed

findings?

MR. KEZHAYA: Not that I recall, Your Honor, but it

was cited in the order denying motion to dismiss.

THE COURT: Bladensburg was? 

MR. KEZHAYA: Yes, Your Honor. That's the AHA

versus American Legion. It was published in 2019, June of

2019, by SCOTUS.

Bearing these legal points in mind, I think it's

necessary for context on what is the evidence of this case.

Well, the evidence is fairly clear --

THE COURT: I want to have you pause for a minute

because -- 

MR. KEZHAYA: Yes, sir.

THE COURT: -- I want to make sure that I'm

remembering the case you talked about.

I'm not remembering that name. Could you give me

the cite to that case?

1 4 : 5 7 : 5 1 MR. KEZHAYA: Yes, Your Honor.

1 4 : 5 6 : 1 4 1

 2

 3

 4

1 4 : 5 6 : 2 5 5

 6

 7

 8

 9

1 4 : 5 6 : 4 1 10

11

12

13

14

1 4 : 5 6 : 5 8 15

16

17

18

19

1 4 : 5 7 : 0 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 196 of 255
 459

THE COURT: Are you referring to the Supreme Court

case about the cross in Maryland?

MR. KEZHAYA: Yes, Your Honor. This is the

Bladensburg Cross, I believe it's actually Bladensburg,

Maryland.

THE COURT: Okay. I didn't remember citing it

before. I don't see it in my order, but I just wanted to

make sure I understood which case you were referring to.

MR. KEZHAYA: Was I mistaken? Did the Court not

cite that in its order?

THE COURT: I don't know. I just looked through my

order and I couldn't see it. I didn't remember citing it,

but I will certainly consider it.

MR. KEZHAYA: Thank you, Your Honor.

Just in case the Court did not cite it, I may have

found it separately in my own research and I'll submit to the

Court --

THE COURT: It's easy to find.

MR. KEZHAYA: Yes, Your Honor.

So bearing these legal issues in mind, I think the

real question for this case is the facts, what can we

actually prove. And here's what we can prove.

Zarzycki made a call to Kelli Kuester in early

February of 2019. She testified as much. She talked to him.

1 4 : 5 9 : 1 8 It was a three- to five-minute phone conversation that in

1 4 : 5 8 : 2 2 1

 2

 3

 4

1 4 : 5 8 : 3 3 5

 6

 7

 8

 9

1 4 : 5 8 : 4 4 10

11

12

13

14

1 4 : 5 8 : 5 3 15

16

17

18

19

1 4 : 5 9 : 0 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 197 of 255
 460

summary was, who are you, when do you want to do it, okay,

we'll see you there.

Importantly is what was not in that phone

conversation. There was no question of what is the

Satanic Temple's beliefs. What will the invocation be. How

many members do you have in the City of Scottsdale. How many

physical locations do you have in the City of Scottsdale.

None of these questions were asked. She instead treated them

just as she would any other religion and she scheduled them

for the invocation.

A public outcry happened. Such volume of public

feedback came out that it crashed city servers. Ms. Kuester

was appointed the person to field this volume of public

feedback, and it sounds like it's actually the primary scope

of her case, and she coordinates with the mayor and the city

council what her messaging would be to the public.

And importantly, that messaging included that the

mayor found TST to be repulsive or repugnant and he does not

condone its beliefs, mission, or purposes.

This is very clear showing of religious animus.

It's circumstantial, but it's a very clear showing of

religious animus.

Some more time goes on, and a rescheduling takes

place. Somewhere in the mix of all of this the mayor

1 5 : 0 0 : 4 5 publishes a statement to the effect of we're not going to let

1 4 : 5 9 : 2 1 1

 2

 3

 4

1 4 : 5 9 : 3 1 5

 6

 7

 8

 9

1 4 : 5 9 : 4 9 10

11

12

13

14

1 5 : 0 0 : 0 9 15

16

17

18

19

1 5 : 0 0 : 3 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 198 of 255
 461

them do this, let the satanists do this.

Ms. Klapp, Councilwoman Klapp, writes an article to

the effect of there is no current policy requiring who can

come in and when can they give invocations, but there should

be one, and that she does not welcome the satanists group.

More circumstantial evidence of racial -- religious animus.

Some more time goes on. It sounds like the public

outcry became more fevered, particularly around the

rescheduling, culminating in Ms. Kuester coordinating with

the chief of staff of the City who coordinated with the city

manager of the City, a separate office, and the city manager

stepped in, took control, and arranged an investigation with

the city attorney's office to find out a way to keep The

Satanic Temple out with a facially neutral basis for why it

would be constitutional.

The problem with this ostensibly neutral basis is

that it was never applied to anyone else. Nobody was ever

inquired of how many members they have or how many physical

locations they have. Nobody was ever inquired of what is the

nature of your religious beliefs or what invocation would you

give. Only The Satanic Temple was subject to these

requirements. Only The Satanic Temple was ever denied.

The other way that we know that this substantial

connection policy is a pretext is that every time someone

1 5 : 0 2 : 2 4 sits down to try to define it, one of two things happens:

1 5 : 0 0 : 4 7 1

 2

 3

 4

1 5 : 0 1 : 0 1 5

 6

 7

 8

 9

1 5 : 0 1 : 2 1 10

11

12

13

14

1 5 : 0 1 : 4 2 15

16

17

18

19

1 5 : 0 2 : 0 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 199 of 255
 462

Either the definition shifts or they refuse to give a

definition.

In February 2018 -- er, pardon me, June of 2018,

Exhibit 17, City says, oh, well, they're all Scottsdale

based. They're all based in Scottsdale. But that didn't

turn out to be true.

Later, when Mr. Biesemeyer testified in

deposition --

THE COURT: What is the June of 2017 reference

you're making?

MR. KEZHAYA: Pardon, Your Honor, I may have

misspoke. I meant Exhibit 17. It's June of 2018. This is

the motion to dismiss filed -- er, the brief in support of

the motion to dismiss filed by the City.

About nine months later, Mr. Biesemeyer testifies in

deposition and he says, okay, well, maybe they weren't all

strictly inside of Scottsdale. There was this one

organization, Brophy, that was just a couple miles out, but

we had enough people in there. I can't tell you how many

people we had of the City of Scottsdale in this thing, this

Brophy Academy, but it had a substantial connection.

Well, what is substantial connection. There were no

real elements. This is the gist of his testimony.

Then, about a year later, we had a motion to dismiss

1 5 : 0 3 : 3 5 for lack of standing. The substantial connection policy

1 5 : 0 2 : 2 8 1

 2

 3

 4

1 5 : 0 2 : 3 8 5

 6

 7

 8

 9

1 5 : 0 2 : 4 8 10

11

12

13

14

1 5 : 0 3 : 0 0 15

16

17

18

19

1 5 : 0 3 : 1 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 200 of 255
 463

shifts once again. And it's, well, are you a real religion.

What is the nature of your invocation going to be?

But once again the facts don't prove this up because

a moment of silence is not a religious invocation. They

argue you have to invoke a literal deity. There are no

literal deities invoked by a moment of silence. That's what

a moment of silence is.

It is very clear that the substantial connection

policy is in their pretext. We have, assuming the Court

admits Exhibits 5 and 8, four out of seven city

councilmembers who published or otherwise made public records

of statements that objected to TST, not because they

considered TST from Tucson, but because they considered TST

to be offensive to their religious beliefs. There is no

question that religious animus had a substantial motivating

factor behind the substantial connection policy.

If the Court takes that as true, the burden now

shifts under an Equal Protection Clause analysis. Equal

Protection says if you have a minority religion and religious

beliefs taking part of the creation of a policy, then the

government must show strict scrutiny. Under strict scrutiny,

the government has a compelling state interest that is

narrowly tailored to meet that end.

But what does this policy have that is compelling?

1 5 : 0 5 : 0 7 They have never to date advanced any compelling interest.

1 5 : 0 3 : 3 9 1

 2

 3

 4

1 5 : 0 3 : 5 0 5

 6

 7

 8

 9

1 5 : 0 4 : 0 8 10

11

12

13

14

1 5 : 0 4 : 2 7 15

16

17

18

19

1 5 : 0 4 : 4 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 201 of 255
 464

They have never to date identified how this policy is

narrowly tailored to that interest.

There is no question that we have an Equal

Protection Clause claim.

The only question that they have raised is do they

have an Establishment Clause claim. And the only way that

they can get there, in my opinion, is by saying that TST is

not a real religion. The problem with that is that all of

the documentary evidence, the e-mails from the councilpeople

specifically address the question of whether the City

considers TST to be a religion. And they find that they do.

We have an Establishment Clause claim, we have an

Equal Protection Clause claim, and we believe we have met our

burden of proof.

Does the Court have any questions?

THE COURT: I do. Give me, if you would, what you

believe your -- what the law's precise definition of a

religion is for purposes of this case.

MR. KEZHAYA: In terms of a precise definition

Your Honor, I don't think we have one. Malnak 2 --

importantly I should clarify it's not Malnak 2 the majority,

it's Malnak 2 the Adams concurrence. Judge Adams out of the

Third Circuit spends, if I remember right, approximately 15

pages in 1979 at least trying to identify what exactly is a

1 5 : 0 6 : 2 8 religion.

1 5 : 0 5 : 1 3 1

 2

 3

 4

1 5 : 0 5 : 2 5 5

 6

 7

 8

 9

1 5 : 0 5 : 4 1 10

11

12

13

14

1 5 : 0 5 : 5 5 15

16

17

18

19

1 5 : 0 6 : 0 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 202 of 255
 465

Judge Adams goes at some length talking about, well,

initially it started with it required a belief in God, but I

believe it was the Torcaso case out of 1954, among a couple

of others. Shempp was another one we cited at length in the

motion for summary judgment.

Well, clearly -- clearly the belief in God is not

requisite for -- it's something to be considered a religion.

Alvarado gives us the three helpful indicia, which

is do they address the fundamental and imponderable matters.

Well, clearly yes. The reason being that all of this talk

waxing poetical about justice and rebellion against tyranny

and the internal struggle, basically everything that

Mr. Misicko testified to, all go to that first point with

great clarity.

Number two, if I remember correctly, was the

formalism. That's mostly what Michelle Shortt's testimony

was for, the iconography, the religious ceremony. The fact

that TST has an ordination program that albeit it is still

working on.

What we have here is an organization that I think in

every way meets the definition, certainly of Alvarado, but,

you know, Your Honor, if you ask me for a succinct

definition, I would say is it a religion if they believe in

God. And I think that if they believed in a literal Satan,

1 5 : 0 7 : 5 4 none of us would be here today. The only question do they

1 5 : 0 6 : 2 9 1

 2

 3

 4

1 5 : 0 6 : 4 4 5

 6

 7

 8

 9

1 5 : 0 7 : 0 0 10

11

12

13

14

1 5 : 0 7 : 1 9 15

16

17

18

19

1 5 : 0 7 : 3 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 203 of 255
 466

have to believe in God, and Malnak 2 very clearly says no,

among a number of other SCOTUS cases.

THE COURT: Do you agree that the plaintiffs must be

a religion to assert their Establishment Clause and Equal

Protection claims?

MR. KEZHAYA: I don't agree with that, Your Honor.

There's the SCOTUS case, if I remember right it was

1942. This was the one where I think it was the State of

Kentucky required school prayer and a number of atheists said

we don't want our kids reciting school prayer. The Supreme

Court made it very clear you cannot discriminate among

religion versus religion and you cannot discriminate among

religion and nonreligion. The Establishment Clause prohibits

the advancement of religion and prohibits the inhibition of

religion. This becomes, I think, more of a theological

question than I'm allowed to speak to.

THE COURT: It sounds like you disagree with the

book club hypothetical I put into the ruling on the motion to

dismiss. 

MR. KEZHAYA: I'm not sure I do, Your Honor, because

I think it goes to -- the Court cited, I think very aptly,

which is do they -- I think, really, do they consider

themselves to be a religious belief. I think it also rolls

into the Alvarado club. I don't think that a Thoreau club by

1 5 : 0 9 : 1 0 itself, a Thoreau book club by itself, is a religion. But

1 5 : 0 7 : 5 7 1

 2

 3

 4

1 5 : 0 8 : 1 1 5

 6

 7

 8

 9

1 5 : 0 8 : 2 3 10

11

12

13

14

1 5 : 0 8 : 4 2 15

16

17

18

19

1 5 : 0 8 : 5 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 204 of 255
 467

once they start bringing in iconography, I don't know, let's

say there's symbolism of Thoreau that I'm not familiar with,

they start tattooing themselves, they start generating

pendants of it, they start putting monuments of it together,

they start having Thoreau ceremonies, this is becoming very

clearly a religion.

THE COURT: You'd say, then, that the Hells Angels,

who have a lot of iconography and a lot of ceremony, are a

religion?

MR. KEZHAYA: I would say no, Your Honor, because I

don't think they consider the Hells Angels to take the same

place God does in other groups. So I think that's what the

distinguishing factor is between, for example, a gang and a

religion.

THE COURT: But you would then say that the book

club can make out an Establishment Clause claim if they're

denied the right to do a Thoreau reading if they have tattoos

and ceremony.

MR. KEZHAYA: If they have tattoos, ceremony, in our

case at least an ordination program being rolled out, ritual

services, all of the -- basically if we change satanism to, I

suppose, Thoreauism and analogized everything that we've

testified to over the past couple days, I believe that this

organization would be a religion.

1 5 : 1 0 : 3 1 But now we've substantially deviated from the

1 5 : 0 9 : 1 4 1

 2

 3

 4

1 5 : 0 9 : 2 7 5

 6

 7

 8

 9

1 5 : 0 9 : 4 0 10

11

12

13

14

1 5 : 0 9 : 5 8 15

16

17

18

19

1 5 : 1 0 : 1 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 205 of 255
 468

hypothetical.

If it benefits the Court, I'd like to add an

additional point I think is, for me, compelling, which is the

organization of TST. We're not talking about ad hoc people

who consider themselves satanists. We're talking about the

undisputed testimony is in the hundreds of thousands, if I

remember correctly, members of an organization very top-down

controlled with what is the messaging going to be.

There is -- notwithstanding Ms. Shortt's testimony,

in my opinion, there is doctrine of this canon.

THE COURT: Well, sort of along those lines, have I

received any evidence in this trial that would make the

unincorporated association a religion?

MR. KEZHAYA: I think yes, Your Honor. Ultimately,

TST transcends the corporate form. We have this

unincorporated organization that may or may not have been

incorporated into the LLC, but, frankly, I don't think the

law's very clear on when does a group of people stop existing

as an unincorporated association.

THE COURT: I could be wrong, but I don't remember

any evidence about the unincorporated association in the last

two days, other than Ms. Shortt's agreement that they formed

for secular purposes.

Was there any other evidence about that association,

1 5 : 1 2 : 2 8 what they believed, what organization they had, what

1 5 : 1 0 : 3 5 1

 2

 3

 4

1 5 : 1 1 : 2 0 5

 6

 7

 8

 9

1 5 : 1 1 : 3 7 10

11

12

13

14

1 5 : 1 1 : 5 3 15

16

17

18

19

1 5 : 1 2 : 1 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 206 of 255
 469

membership they had, how they practiced? Anything like that?

MR. KEZHAYA: Well, the incorporated association,

Your Honor, is The Satanic Temple. What we were attempting

to do is provide the Court with the entities that attempted

to give structure to The Satanic Temple, and then we threw in

this extra one because if we were wrong about all of the

entities, there was this unincorporated association.

All of it is The Satanic Temple. That's why we've

always been referring to them as The Satanic Temple

regardless of which particular entity.

THE COURT: Adversarial Truth and the

Satanic Temple, Inc., were both formed after the City of

Scottsdale said no; right?

MR. KEZHAYA: Yes, sir.

THE COURT: Am I correct that the only basis upon

which you assert standing is associational standing?

MR. KEZHAYA: You are correct, Your Honor.

THE COURT: Okay.

MR. KEZHAYA: All of the entities are there solely

as an associational standing.

THE COURT: With respect to associational standing,

what evidence has been presented that shows that Ms. Shortt

is a member of Adversarial Truth, LLC?

MR. KEZHAYA: Your Honor, the testimony was all that

1 5 : 1 4 : 1 3 she was a member of The Satanic Temple and that The Satanic

1 5 : 1 2 : 3 3 1

 2

 3

 4

1 5 : 1 2 : 4 5 5

 6

 7

 8

 9

1 5 : 1 3 : 0 0 10

11

12

13

14

1 5 : 1 3 : 1 6 15

16

17

18

19

1 5 : 1 3 : 2 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 207 of 255
 470

Temple is -- The Satanic Temple is the core set of beliefs

that I don't think is properly enshrined in any of the

organization to the exclusion of any of the other

organizations.

This is a fairly complex body that, in my opinion,

has been perhaps in mishmash form creating entities as has

been needed from a couple of people who are clearly not

corporate lawyers, as the clear testimony of Mr. Misicko was.

They're doing their best to create corporate governance, but

that doesn't mean they don't have standing.

THE COURT: Well, I think I understand your argument

that if she's a participant in the Satanic Temple, she's a

member of Adversarial Truth.

Besides that, is there any specific evidence that

Ms. Shortt is a member of Adversarial Truth that would give

Adversarial Truth associational standing?

MR. KEZHAYA: I believe there was no testimony that

she identifies as a member of Adversarial Truth, Your Honor.

Allow me to correct that. I believe the testimony

was that she formed Adversarial Truth and she created it, and

that she identifies as a satanist in Arizona. And the

chapter of the TST Arizona is given structure by the

organization.

In terms of the formal legal requirements of is the

1 5 : 1 5 : 5 5 LLC a proper nonprofit corporation with proper members, I

1 5 : 1 4 : 1 6 1

 2

 3

 4

1 5 : 1 4 : 3 0 5

 6

 7

 8

 9

1 5 : 1 4 : 5 5 10

11

12

13

14

1 5 : 1 5 : 0 9 15

16

17

18

19

1 5 : 1 5 : 3 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 208 of 255
 471

don't know the answers to these questions, candidly. But I

think to the extent that this group is an unincorporated

association, I think that's what -- I think that's really how

it plays in.

THE COURT: A related question is what evidence is

there that Adversarial Truth LLC that limited liability

corporation, is a religion?

MR. KEZHAYA: We would incorporate all of the same

arguments of TST, Your Honor. This is what I'm getting at.

Well, the governance was, I think at all times, including

perhaps today, not attended to in the way that perhaps I

would.

THE COURT: It is true -- well, let me state it

differently. There's been no evidence that Adversarial Truth

has received tax-exempt status; is that right?

MR. KEZHAYA: Yes, Your Honor.

THE COURT: And there's been no evidence that United

Federation of Churches has received tax-exempt status?

MR. KEZHAYA: I'm less clear on that one,

Your Honor. Tax-exempt status, as I understand it, I'm not a

tax lawyer, but there's a -- it's cited in the IRS letter, is

a particular provision that says essentially, you are a

church. TST, I believe, Inc., is a church.

My understanding of churches is that they're able to

1 5 : 1 7 : 2 2 confer their tax-exempt status to non-tax-exempt entities

1 5 : 1 5 : 5 8 1

 2

 3

 4

1 5 : 1 6 : 1 2 5

 6

 7

 8

 9

1 5 : 1 6 : 3 5 10

11

12

13

14

1 5 : 1 6 : 5 3 15

16

17

18

19

1 5 : 1 7 : 0 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 209 of 255
 472

basically as a tax-exempt way to flow money through it.

So if The Satanic Temple, Inc., for example, let's

say someone in Arizona wants to donate to The Satanic Temple

Arizona, they could give their money to TST, Inc., TST, Inc.,

can give that person a tax deduction, and then that money can

then go to TST Arizona.

THE COURT: Is there any evidence that's been

presented during the trial that The Satanic Temple, Inc., has

conferred its tax-exempt status on United Federation of

Churches or has made United Federation of Churches an arm of

the TST church or anything of that sort?

MR. KEZHAYA: Yes, Your Honor. This goes to

Mr. Misicko's testimony expressly permitting Ms. Shortt to

create the TST Arizona chapter of the affiliation agreement.

THE COURT: I'm talking about TST and the United

Federation of Churches.

MR. KEZHAYA: Oh, I'm sorry, Your Honor.

THE COURT: Is there any evidence that TST has done

anything to make United Federation of Churches an appendage

of the church or the money arm of the church or anything like

that?

MR. KEZHAYA: I don't believe that question was

relevant to the legal issue. To at least our understanding

of the legal issues before the Court, so no.

1 5 : 1 8 : 5 7 THE COURT: So what evidence do I have, then, that

1 5 : 1 7 : 2 8 1

 2

 3

 4

1 5 : 1 7 : 4 7 5

 6

 7

 8

 9

1 5 : 1 8 : 0 7 10

11

12

13

14

1 5 : 1 8 : 2 8 15

16

17

18

19

1 5 : 1 8 : 4 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 210 of 255
 473

UFC is a church? Or, pardon me, is a religion. United

Federation of Churches?

MR. KEZHAYA: Your Honor, the United Federation of

Churches is -- the testimony was Mr. Misicko established The

Satanic Temple. The other testimony was that he created or

at least is identified as an owner of the LLC, as I recall

through the documentary exhibits that Mr. Claus introduced,

the articles of organization and whatnot.

There was also evidence that he created The Satanic

Temple, Inc. He testified at some length --

THE COURT: Well, you can see a question coming so

you stopped.

MR. KEZHAYA: Yes, Your Honor.

THE COURT: There certainly are lots of people

affiliated with churches who form for-profit corporations -- 

MR. KEZHAYA: Yes, sir.

THE COURT: -- that might have some business related

to the church, but those for-profit corporations are not

deemed to be religious, are they?

MR. KEZHAYA: Yes, Your Honor.

THE COURT: They are deemed to be religious?

MR. KEZHAYA: Oh, I'm sorry, I was confused by

the --

THE COURT: Yeah, it was a bad question.

1 5 : 2 0 : 0 3 I mean, let's assume hypothetically, just because it

1 5 : 1 9 : 0 0 1

 2

 3

 4

1 5 : 1 9 : 1 4 5

 6

 7

 8

 9

1 5 : 1 9 : 3 4 10

11

12

13

14

1 5 : 1 9 : 4 4 15

16

17

18

19

1 5 : 1 9 : 5 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 211 of 255
 474

comes to mind, the historical example of a religious leader

who was on television a lot back in the East and who formed

some sort of big theme park, Disneyland-type theme park. It

was owned by a for-profit corporation. The fact that he

formed it or even used it in his ministry didn't make that

for-profit corporation a church, did it?

MR. KEZHAYA: I'm not familiar with this news

article. On those facts alone, no, it is not a church. I

assume, being a minister, presumably he's creating a park

that espouses religious beliefs, so that may change things.

THE COURT: Well, the reason I'm asking that

question is when I said what makes UFC a church, you said it

was formed by Mr. Misicko.

MR. KEZHAYA: Oh, I -- 

THE COURT: And I don't see how his forming of it

makes it a church. It seems to me I need more evidence that

UFC does things that would make it a religion. And I'm

asking what evidence is there. I think the only thing I

heard about it was it owns a museum. It owns the

headquarters. It owns the copyright. Well, the trademarks.

The websites.

MR. KEZHAYA: And the trademarks are used to espouse

religious beliefs.

THE COURT: Sure. Well, I guess my question is, I

1 5 : 2 1 : 2 5 understand that argument, is there any other evidence that

1 5 : 2 0 : 0 5 1

 2

 3

 4

1 5 : 2 0 : 2 2 5

 6

 7

 8

 9

1 5 : 2 0 : 4 3 10

11

12

13

14

1 5 : 2 0 : 5 2 15

16

17

18

19

1 5 : 2 1 : 1 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 212 of 255
 475

you would put forward that shows that UFC is a religion?

MR. KEZHAYA: That we would put forward?

THE COURT: I mean that you have put forward.

MR. KEZHAYA: That we have put forward?

THE COURT: Right.

MR. KEZHAYA: Well, Your Honor, this again goes back

to the use of this phrase, The Satanic Temple. The Satanic

Temple is a trademark owned by UFC, LLC. If, for example,

someone in Arizona gives a Menstruatin' with Satan, I believe

the testimony was a drive for the purpose of creating a

charity event, then -- and if that is a religious event, then

I think that logically it is tied back ultimately to UFC,

LLC.

This is all done with his express permission.

Mr. Misicko testified at some length that if not him

personally, then someone in the organization, be it the

council or the chapter head or someone, approves this.

So I think that the evidence is pretty clear that

UFC LLC takes its trademarks very seriously, it controls its

trademarks very seriously, and anyone doing anything in its

name, unless it takes issue with it, is espousing religious

beliefs. Thus, logically, UFC is espousing religious

beliefs.

It's an agency theory, Your Honor.

1 5 : 2 3 : 0 2 THE COURT: Okay. Thanks.

1 5 : 2 1 : 2 8 1

 2

 3

 4

1 5 : 2 1 : 3 9 5

 6

 7

 8

 9

1 5 : 2 1 : 5 6 10

11

12

13

14

1 5 : 2 2 : 1 3 15

16

17

18

19

1 5 : 2 2 : 3 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 213 of 255
 476

Mr. Claus.

MR. CLAUS: May we first ask to toggle over to the

defense presentation.

Thank you.

Good afternoon, Your Honor. Scot Claus,

Dickinson Wright, along with my colleagues on behalf of the

Defendant City of Scottsdale.

I want to start my argument, Your Honor, by doing

something that may -- that might at first blush seem odd. I

want to talk about the remedy that the plaintiffs seek if

they prevail in this case in which they claim they were

denied the ability to give an invocation. 

And to do that, I want to bring up Exhibit 4,

please.

Exhibit 4 contains the text that Michelle Shortt,

upon examination by her own counsel, admitted was not an

invocation, but was a speech.

You recall, Your Honor, Ms. Shortt was sitting there

testifying and Mr. de Haan asked her, he gave her the binary

proposition, would you call this an invocation or a speech? 

Her response, a speech.

And we know that Ms. Shortt was telling the truth

because it is not -- Exhibit 4 is not an invocation in any

sense. It is not an invocation in plain meaning and it is

1 5 : 2 5 : 0 0 not an invocation as a matter of law.

1 5 : 2 3 : 0 6 1

 2

 3

 4

1 5 : 2 3 : 3 2 5

 6

 7

 8

 9

1 5 : 2 3 : 4 7 10

11

12

13

14

1 5 : 2 4 : 1 0 15

16

17

18

19

1 5 : 2 4 : 3 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 214 of 255
 477

Ms. Shortt admitted that she sought to invoke

nothing. She sought to invoke guidance from nothing and from

no one.

She sought to invoke guidance from nothing to guide

the decision-making of the city council.

She sought to invoke neither the name nor the spirit

of any divine being or divine idea to lend solemnity to,

assist, or unify the Scottsdale city council.

Instead, she sought to give a speech that she

admitted referred to the deeply held religious beliefs of the

members of the Scottsdale community that's, quote, delusions

of old.

That referred to the religious beliefs of not only

the Scottsdale community, but the members of the council as,

quote, arcane doctrines born of fearful minds in darkened

times.

And when I asked her if members of the community and

members of the council might be offended by that speech, by

having their religious beliefs chided as delusions, by having

their sincere religious beliefs mocked as being arcane

doctrines born of fearful times and darkened minds, she told

you under oath she did not care.

That is why Exhibit 4, the speech that

Michelle Shortt wanted to give in 2016 and wants to give if

1 5 : 2 7 : 0 0 she prevails, is not an invocation as a matter of law.

1 5 : 2 5 : 0 5 1

 2

 3

 4

1 5 : 2 5 : 2 5 5

 6

 7

 8

 9

1 5 : 2 5 : 5 3 10

11

12

13

14

1 5 : 2 6 : 1 2 15

16

17

18

19

1 5 : 2 6 : 3 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 215 of 255
 478

The United States Supreme Court recognized in Marsh

versus Chambers that to be an invocation, one must, quote,

invoke divine guidance on a public body entrusted with making

the laws, end quote.

And that such an invocation is not only permissible,

but laudable because, quote, we are a religious people whose

institutions presuppose a supreme being.

And that cite is 463 U.S. 783 at 794 and '95.

Marsh is not the only legal guidance on which the

Court should rely to determine that as a matter of law,

Exhibit 4 did not in 2016 and cannot, if the court grants any

relief, be an invocation.

Town of Greece versus Galloway recognizes that

invocations have been practiced by Congress -- and now I'm

quoting, practiced by Congress since the framing of the

Constitution. To, quote, lend gravity to public business,

remind lawmakers to transcend petty differences in pursuit of

a higher purpose and express a common aspiration to a just and

peaceful society.

In Fields versus Speaker of the Pennsylvania House of

Representatives, 936 F.3d 142 at 149, the Third Circuit Court

of Appeals recognized that, quote, as a matter of traditional

practice, a petition to human wisdom and the power of science

does not capture the full sense of 'prayer' historically

1 5 : 2 9 : 0 2 understood. At bottom, legislative prayers seek divine

1 5 : 2 7 : 0 6 1

 2

 3

 4

1 5 : 2 7 : 2 5 5

 6

 7

 8

 9

1 5 : 2 7 : 5 7 10

11

12

13

14

1 5 : 2 8 : 1 5 15

16

17

18

19

1 5 : 2 8 : 3 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 216 of 255
 479

guidance in lawmaking.

The Fourth Circuit, Your Honor, in Simpson versus

Chesterfield County Board of Supervisors, 404 F.3d 276,

determined not only what an invocation was but also recognized

that an invocation is government speech, quote, intended to

solemnize the occasion, end quote. And that it was within the

province of the governmental body on whose behalf the

invocation was given to decide the message to be delivered.

And -- and that is a critical point, Your Honor. As

a matter of law and undisputed testimony, the invocations that

were sought to be given by the city council expressed in

Exhibit 4 was not sought to be given on behalf of the

government or a governmental body to lend solemnity to the

council proceedings and to provide a unifying message.

Michelle Shortt testified that she -- when asked

directly, did you seek to give an invocation on behalf of the

city Council, she answered no.

And from the text of Exhibit 4, the Court can

absolutely conclude without her testimony that she did not

seek to provide solemnity to the proceedings of the council or

to provide a unifying message to the council.

Instead, she testified that she recognized her speech

might cause offense that is empathetical to unity and

solemnity and that she didn't care.

1 5 : 3 1 : 0 4 Under Matal versus Tam, Your Honor, Supreme Court

1 5 : 2 9 : 0 8 1

 2

 3

 4

1 5 : 2 9 : 2 8 5

 6

 7

 8

 9

1 5 : 2 9 : 4 9 10

11

12

13

14

1 5 : 3 0 : 1 1 15

16

17

18

19

1 5 : 3 0 : 3 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 217 of 255
 480

case, 137 Supreme Court Reporter 1744, the Scottsdale city

council meetings -- strike that -- the Scottsdale city council

invocations are government speech because the invocations are

intended, as Mayor Lane testified, as Suzanne Klapp testified,

to convey messages for the purposes desired by the city

council.

That's the thing, Your Honor. This is -- this is the

time for proof. This is the trial in this matter in which the

plaintiffs, not the defendants, bear the burden of proof. The

plaintiffs, each of the plaintiffs, bears the burden of proof

on each element of each plaintiff's claims.

And here, Your Honor, they have not challenged the

testimony of Mayor Lane that the purpose of invocations, as

long as he can remember, before he became a councilmember 16

years ago, is to have someone speak on behalf of the council,

to lend solemnity to the occasion, and to give a unifying

message.

I think his testimony was, Your Honor, it brings us

all together.

Suzanne Klapp gave not the same, but similar

testimony, that it is the city council that invites

organizations with a substantial connection to give an

invocation, and it is within the purview of the City council

to do so.

1 5 : 3 2 : 4 5 Because, as the Fields court recognized, and I'm

1 5 : 3 1 : 0 6 1

 2

 3

 4

1 5 : 3 1 : 2 4 5

 6

 7

 8

 9

1 5 : 3 1 : 4 2 10

11

12

13

14

1 5 : 3 2 : 0 7 15

16

17

18

19

1 5 : 3 2 : 2 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 218 of 255
 481

quoting, Your Honor, the government may control what is or is

not expressed in order to convey its own message in an

invocation because, quote, the prayer is what a chosen agent

of the government says as part of the government's own

operations.

Why? Why? Because as the Supreme Court recognized

in Town of Greece, the government is not only seeking to have

the invocation given on its behalf, but, quote, the principal

audience for invocations is not indeed the public, but

lawmakers themselves.

Because of this, Your Honor, the City may limit

invocations opening city council meetings to those which are

religious in nature. That is recognized in the cases I have

just cited and also Barker versus Conroy, 921 F.3d at 1131.

Also, Your Honor, Barker stands for the proposition

that is exactly the opposite of what was told to you by

plaintiffs' counsel.

The Barker court recognized that it has never

suggested that legislators must allow secular as well as

religious prayers.

On this point, Your Honor, the evidence again is

categorical and unrefuted. Ms. Shortt testified numerous

times that the organization on whose on behalf she sought to

give the invocation in 2016 was a purely secular organization.

1 5 : 3 4 : 4 0 Mr. Misicko testified that he believed that all 450

1 5 : 3 2 : 4 9 1

 2

 3

 4

1 5 : 3 3 : 0 8 5

 6

 7

 8

 9

1 5 : 3 3 : 2 8 10

11

12

13

14

1 5 : 3 3 : 5 5 15

16

17

18

19

1 5 : 3 4 : 1 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 219 of 255
 482

members of The Satanic Temple who resided in Arizona as of the

time of his deposition in September of 2019 were secularists.

Every message, Ms. Shortt admitted, sought to be

conveyed was a secular message. The city council has the

right pursuant to the law of this land to limit invocations to

religious and not secular message.

THE COURT: Let me interrupt you and ask a couple of

questions.

MR. CLAUS: Sure.

May I get some water, Your Honor?

THE COURT: Yeah, you can.

MR. CLAUS: I'm going steal this. They were from my

colleagues.

THE COURT: Looking specifically at the facts of

this case, how can I conclude that the invocations of the

City of Scottsdale council meetings were intended to be

speech on behalf of the council if the council did nothing to

review them in advance, to inquire about the substance, to

screen them in any way? They didn't know what these people

were going to say when they came in. How, then, can I

conclude that it was the policy of the council in this case

to have all invocations be on their behalf?

MR. CLAUS: Because that is the only under oath

testimony you have received that has been unrefuted in this

1 5 : 3 6 : 1 9 case. Mr. -- Mayor Lane was asked that question

1 5 : 3 4 : 4 7 1

 2

 3

 4

1 5 : 3 5 : 0 8 5

 6

 7

 8

 9

1 5 : 3 5 : 2 2 10

11

12

13

14

1 5 : 3 5 : 4 2 15

16

17

18

19

1 5 : 3 6 : 0 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 220 of 255
 483

specifically.

THE COURT: I know he said that it was on behalf,

but I don't understand how that's possible if they didn't

look at if first and say, yeah, that represents our views,

that's speech by us.

MR. CLAUS: Oh, Your Honor, but -- but that's a

different question. The -- the practice of allowing

religious and not secular invocations is -- does not mean

that the council as a body or each councilor or the mayor has

to agree or ratify the viewpoint to be expressed.

The point is that it goes to what Your Honor has not

received in evidence. The only evidence you have is that

Ms. Kuester maintained a list of faith-based organizations

from which she invited participants to give invocations. The

fact that Ms. Kuester maintained a list of faith-based

organizations demonstrates that the City of Scottsdale

maintained a list of faith-based organizations to give an

invocation.

And both Mayor Lane and Ms. Klapp not only testified

that they -- Your Honor, it -- and this goes to -- this is

the most important word, perhaps, in this part of the Court's

analysis, the word invitation.

The testimony is unrefuted that the City has never

invited anyone to give an invocation. I hope you'll recall

1 5 : 3 7 : 5 6 this back-and-forth. Both the mayor and Ms. Klapp were asked

1 5 : 3 6 : 2 3 1

 2

 3

 4

1 5 : 3 6 : 3 3 5

 6

 7

 8

 9

1 5 : 3 6 : 5 0 10

11

12

13

14

1 5 : 3 7 : 1 3 15

16

17

18

19

1 5 : 3 7 : 3 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 221 of 255
 484

if the City had ever invited a group to deliver a secular

message for an invocation to the council, and they testified

that that had not occurred.

So the issue, Your Honor, is what evidence do you

have that the City had a practice of inviting faith-based

organizations to give an organization for the purpose of

unifying and bringing together the council, that is the only

evidence you have, Your Honor.

THE COURT: A second question. You cite several

cases -- Marsh, Fields, and Simpson -- for the proposition

that an invocation must invoke divine guidance.

Other than the few questions I asked Ms. Kuester, I

don't believe I received any evidence about the moments of

silence that are reflected in the city council minutes.

If the city council was holding moments of silence,

can I conclude that the invocation policy was limited to

actions which invoked divine guidance?

MR. CLAUS: Your Honor, a moment of silence is not,

either in plain meaning or as a matter of law, an invocation.

And, again, it's skews to suggest it --

THE COURT: That is not an invocation? 

MR. CLAUS: A moment of silence is not an

invocation.

THE COURT: Even though it is listed in the City's

1 5 : 3 9 : 3 5 documents as an invocation?

1 5 : 3 8 : 0 3 1

 2

 3

 4

1 5 : 3 8 : 1 8 5

 6

 7

 8

 9

1 5 : 3 8 : 3 9 10

11

12

13

14

1 5 : 3 9 : 0 2 15

16

17

18

19

1 5 : 3 9 : 2 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 222 of 255
 485

MR. CLAUS: Yes. Your Honor, it is -- that is not

the evidence that you have received. The evidence that you

have received is that a list was given that identified times

and dates. Not that a moment of silence was by definition of

the council an invocation. It was an administrative list

that was maintained that filled in blanks, and the blank

is -- column that you were referring to is a column that

has -- it says "invocation," and the moment of silence

demonstrates that it is not an invocation because if it was

an invocation, that would be filled in with something other

than moment of silence. That demonstrates that a moment of

silence is not an invocation.

And, Your Honor, there is nothing that compels the

city government to not have a moment of silence? To not have

a moment of silence to recognize the victims of the Oregon

school shooting in lieu of an invocation? That's what Marsh

and Fields and Galloway and all of these cases recognized, is

that because it's government speech, the government gets to

choose the message that it wants to hear. And if it wants to

hear no message during a particular council meeting, it can

make that choice too.

THE COURT: I don't have any evidence that a moment

of silence was viewed by the City as a non-invocation, do I?

MR. CLAUS: You don't have any evidence that a

1 5 : 4 1 : 1 3 moment of silence was viewed by the City, by the party with

1 5 : 3 9 : 3 7 1

 2

 3

 4

1 5 : 3 9 : 5 0 5

 6

 7

 8

 9

1 5 : 4 0 : 1 4 10

11

12

13

14

1 5 : 4 0 : 3 5 15

16

17

18

19

1 5 : 4 0 : 5 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 223 of 255
 486

the burden of proof, that a moment of silence was considered

as an invocation.

THE COURT: Well, it's on the list of invocations

for each year. That could be viewed as evidence that it was

viewed as an invocation.

MR. CLAUS: Except that the words demonstrate that

it is not a moment of -- that it is not an invocation

because -- I'll get the list, Your Honor.

THE COURT: Look at Exhibit 15, page 7323.

MR. CLAUS: Sure. 

Right. Moment of silence.

You see, Your Honor, the entry demonstrates that the

person who filled out that page, that entry from whom the

Court has no evidence, did not indicate all of the

information that was indicated before an invocation. That

instead, in lieu of an invocation, a moment of silence was

taken for the Oregon shootings.

There is no evidence to the contrary, Your Honor.

There is no evidence by the plaintiffs, who bear the burden

of proof.

I don't want to interrupt if you have any other

questions, Your Honor.

THE COURT: No. Go back to your argument, please.

MR. CLAUS: Sure.

1 5 : 4 2 : 4 4 The invocation -- the practice of the City of

1 5 : 4 1 : 1 6 1

 2

 3

 4

1 5 : 4 1 : 2 5 5

 6

 7

 8

 9

1 5 : 4 1 : 4 2 10

11

12

13

14

1 5 : 4 2 : 1 3 15

16

17

18

19

1 5 : 4 2 : 3 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 224 of 255
 487

Scottsdale is undeniably constitutionally permissible. And

the speech Ms. Shortt intended to give is not religious or an

invocation in any sense because it disparages those who

maintain religious beliefs as being deluded and arcane.

THE COURT: Well, let me interrupt you there on that

point as well because I've heard you assert that and it

raises a question.

The Town of Greece says that a city council does not

need to and in fact should not tolerate prayers that

disparage religious belief.

There is no evidence that that's the reason the City

in this case turned down this invocation; correct?

MR. CLAUS: That is absolutely correct, Your Honor.

That's why I said I was starting my argument with what would

happen if the relief was granted. No, that -- you're exactly

right, Your Honor, there is no evidence because it's not true

that the City denied the invocation that she sought to give

because Exhibit 4 disparages the hearers.

But it is why the Court can't grant the remedy

plaintiffs seek because you're right, on that point an

exclamation point is required because, as the Supreme Court

recognized in Marsh, a legislative prayer violates the

Establishment Clause if that prayer has, quote, been

exploited to proselytize or disparage any other faith or

1 5 : 4 4 : 2 9 belief.

1 5 : 4 2 : 5 0 1

 2

 3

 4

1 5 : 4 3 : 1 2 5

 6

 7

 8

 9

1 5 : 4 3 : 3 2 10

11

12

13

14

1 5 : 4 3 : 4 5 15

16

17

18

19

1 5 : 4 4 : 0 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 225 of 255
 488

So my point is not, Your Honor, that the

irreligiosity of Exhibit 4, the denigrating nature of

Exhibit 4, the mocking nature of Exhibit 4, the

non-invocation nature of Exhibit 4 was a reason why

Michelle Shortt was denied in the first instance.

Instead, my point, Your Honor, is that the

plaintiffs in this case have asked for relief to compel the

City to allow Exhibit 4 to be given before a City of

Scottsdale council meeting, and that remedy would violate the

United State's Constitution.

And you don't need to make that conclusion, because

Ms. Shortt testified that she recognized that her speech may

be offensive to the hearers of the speech that are on the

council and that her speech may be offensive to the hearers

of her speech that are in the public body -- that are -- that

are in the gallery listening.

That is precisely why the Court can't grant the

relief the plaintiffs seek because that relief would require

the City to violate the Establishment Clause.

But more importantly, Your Honor, with respect to

the invocation practice itself, because the invocation is

government speech, on their Equal Protection claim as a

matter of law they must fail, because as the Ninth Circuit

recognized in Johnson versus Poway Unified School District,

1 5 : 4 6 : 1 6 658 F.3d 954 at 970, individuals, quote, have no personal

1 5 : 4 4 : 3 0 1

 2

 3

 4

1 5 : 4 4 : 5 3 5

 6

 7

 8

 9

1 5 : 4 5 : 2 1 10

11

12

13

14

1 5 : 4 5 : 4 0 15

16

17

18

19

1 5 : 4 5 : 5 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 226 of 255
 489

interest in government speech on which to base an Equal

Protection claim, end quote.

That same conclusion is bolstered by the

United States Supreme Court's decision in Rosenberger versus

Rector and Visitors of Virginia, 515 U.S. 819, 833,

Your Honor, where the Supreme Court recognized, quote, we

have permitted the government to regulate the content of what

is or is not expressed when it enlists private entities to

convey its own message, end quote.

The only evidence you have heard in this case is

that the city council seeks when it asks for an invocation

for those invocations to be given on its behalf. The only

evidence you have heard in this case is that --

I didn't know if you had a question.

THE COURT: I'm waiting. I do have one. Go ahead

and finish your sentence.

MR. CLAUS: -- is -- the only evidence you have in

this case, Your Honor, is that the city council asks for

invocations to be given to guide its decision-making process.

THE COURT: That argument would necessarily mean

that if the City of Scottsdale said, "We're going to have

Baptists give invocations but not Catholics," that could

never be an Equal Protection violation; correct?

MR. CLAUS: Your Honor, I recognize that that is an

1 5 : 4 8 : 1 1 odd conclusion and one that seems counterintuitive, but under

1 5 : 4 6 : 3 0 1

 2

 3

 4

1 5 : 4 6 : 4 2 5

 6

 7

 8

 9

1 5 : 4 7 : 1 3 10

11

12

13

14

1 5 : 4 7 : 3 1 15

16

17

18

19

1 5 : 4 7 : 4 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 227 of 255
 490

the current state of Establishment Clause jurisprudence, from

the Supreme Court on down --

THE COURT: You mean Equal Protection jurisprudence;

right?

MR. CLAUS: Oh. I did. I'm sorry, Your Honor.

-- Equal Protection jurisprudence from the Supreme

Court on down -- in fact, Simpson, the Simpson case is the, I

will admit, Your Honor, jarring illustration that the answer

to the Court's question is yes. That during that limited

time, when it is the government that is asking an entity to

speak on the government's behalf, the government may choose

not only who says it, but what is said.

But that is an extreme -- that is an extreme -- that

is an in extremis conclusion that has no bearing on this case

and the Court does not need to wrestle with based upon the

established Equal Protection jurisprudence.

THE COURT: Were either Johnson or Rosenberger

legislative prayer cases?

MR. CLAUS: I do not know, Your Honor. I do not

know.

THE COURT: Okay.

MR. CLAUS: So with respect to the Equal Protection

claim, Your Honor, the Court must conclude that the

invocations sought to be given by the city council are

1 5 : 4 9 : 5 9 government speech, that because they are government speech

1 5 : 4 8 : 1 6 1

 2

 3

 4

1 5 : 4 8 : 2 5 5

 6

 7

 8

 9

1 5 : 4 8 : 4 9 10

11

12

13

14

1 5 : 4 9 : 1 2 15

16

17

18

19

1 5 : 4 9 : 3 3 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 228 of 255
 491

that the plaintiffs have no interest. That's the only

conclusion that we are asking the Court to reach, not that

the city council may choose between Catholics and Baptists,

but instead that the plaintiffs have no personal

individualized interest in government speech as a matter of

law and, therefore, their Equal Protection claim must fail.

But, also, Your Honor, because the unrefuted

testimony of Michelle Shortt, in fact elicited through her

own counsel, is that Exhibit 4 is not an invocation but is

intended instead a speech that will offend the deeply held

religious beliefs of those members of the council and members

of the community that hold deeply held religious beliefs, the

Court cannot grant the Equal Protection remedy sought.

I'd like to turn to the discrimination claim,

Your Honor, if that's all right. Unless you have any other

questions on Equal Protection.

THE COURT: No. Please go ahead.

MR. CLAUS: With respect to the discrimination

claim, Your Honor, I want to remind the Court of the

admonition it would almost certainly give a jury if a jury

were the trier of fact in this case rather than the Court.

The admonition the Court will almost certainly give is that

the jury can only rely on and consider evidence that has been

presented in the case. And more importantly, Your Honor,

1 5 : 5 1 : 3 6 that the jury should not engage in speculation or conjecture.

1 5 : 5 0 : 0 4 1

 2

 3

 4

1 5 : 5 0 : 2 0 5

 6

 7

 8

 9

1 5 : 5 0 : 4 2 10

11

12

13

14

1 5 : 5 1 : 0 6 15

16

17

18

19

1 5 : 5 1 : 1 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 229 of 255
 492

But that is precisely what the plaintiffs have asked this

Court to rely on, pure speculation.

I told you in opening statement, Your Honor, that

the plaintiffs would offer not one whit of evidence

demonstrating that Michelle Shortt's beliefs, viewpoints, or

the contents of her speech in Exhibit 4 were described or

delivered in any way to any representative of the City of

Scottsdale. And that is precisely what Michelle Shortt

admitted to.

I told Your Honor in my opening statement that the

plaintiffs would not offer the slightest jot of evidence that

Brian Biesemeyer, the chief executive of the City in charge

of its administrative decision-making, was directed by the

mayor or councilmembers to deny an invocation, was not

requested by the mayor or councilmembers to deny an

invocation, and it was not influenced in any way by the mayor

or any councilmember to deny an invocation.

That is exactly what the mayor testified to, that is

exactly what Suzanne Klapp testified to, and, most

importantly, that is what Brian Biesemeyer testified to.

On your pointed questioning, Your Honor, you asked

Mr. Biesemeyer if he was influenced in any way by the

opinions expressed by Suzanne Klapp, and he told you no.

Then I asked him an even more pointed way. I asked

1 5 : 5 3 : 1 7 him if he even cared what the opinion of Suzanne Klapp or any

1 5 : 5 1 : 4 4 1

 2

 3

 4

1 5 : 5 2 : 0 0 5

 6

 7

 8

 9

1 5 : 5 2 : 1 8 10

11

12

13

14

1 5 : 5 2 : 3 6 15

16

17

18

19

1 5 : 5 2 : 5 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 230 of 255
 493

other councilmember was, and he testified no. Of course he

testified no.

If a city manager, and this was brought out during,

interestingly, redirect examination, that the city manager is

faced with opinion after opinion after opinion after opinion

by individual councilmembers on myriad issues. And if the

city manager or acting city manager had to act in deference

to every individual opinion that was expressed to him or her,

the city manager could never fulfill the function imposed

upon the city manager and not fulfill the rights and duties

of the city manager and only the city manager under the

Scottsdale city charter.

But what about the e-mails, they say. The 15,207

e-mails.

Well, you asked Mr. Biesemeyer about those e-mails.

And what he told you was he did not see any of them. He

didn't respond to any of them. There's no testimony in this

case that anyone described the content of any of those 15,207

e-mails to Brian Biesemeyer. There is no evidence in this

case that Brian Biesemeyer was influenced to the slightest

degree by the number of or content in those e-mails.

Instead, Mr. Biesemeyer testified exactly the opposite.

THE COURT: Before you move on, let me ask you a

question, not about the last point you made, but the one you

1 5 : 5 5 : 0 6 made just before that.

1 5 : 5 3 : 2 1 1

 2

 3

 4

1 5 : 5 3 : 3 6 5

 6

 7

 8

 9

1 5 : 5 4 : 0 4 10

11

12

13

14

1 5 : 5 4 : 1 9 15

16

17

18

19

1 5 : 5 4 : 4 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 231 of 255
 494

MR. CLAUS: Yes.

THE COURT: You've elicited a lot of testimony in

this case that none of the plaintiffs ever communicated to

Scottsdale what their religious beliefs were.

I'm not sure I understand the relevancy of that for

this reason. Let's assume hypothetically that the City of

Scottsdale, or Mr. Biesemeyer for that matter, sees The

Satanic Temple on the invocation list and says, I'm not going

to have anybody affiliated with Satan saying an invocation in

the City of Scottsdale. Tell them no.

Wouldn't that be discrimination re the Town of

Greece, assuming the religion element is required, without

them having to know anything about their specific beliefs or

the precise prayer that they would offer?

MR. CLAUS: Well, no, Your Honor. No, Your Honor.

There can't be viewpoint discrimination without a

viewpoint. But more critically, Your Honor --

THE COURT: Doesn't the name of this organization

communicate a viewpoint?

MR. CLAUS: It does not, Your Honor.

THE COURT: Satanic Temple clearly shows they are

affiliated with, that they are focused on, that they are

representing Satan in some way. If that was the basis for

the City saying no, that would constitute religious

1 5 : 5 6 : 3 3 discrimination whether or not they knew the seven tenets,

1 5 : 5 5 : 0 8 1

 2

 3

 4

1 5 : 5 5 : 2 4 5

 6

 7

 8

 9

1 5 : 5 5 : 4 5 10

11

12

13

14

1 5 : 5 6 : 0 3 15

16

17

18

19

1 5 : 5 6 : 1 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 232 of 255
 495

wouldn't it?

MR. CLAUS: But there is no evidence that that was

the basis for the City saying no.

THE COURT: I understand that. I understand your

argument that Mr. Biesemeyer didn't do it for that reason.

What I'm not understanding is what appeared to be

argument you were setting up, which is unless they told him

exactly what they believed or told the City exactly what they

were going to pray, this couldn't be religious

discrimination, and I don't see that argument.

MR. CLAUS: This is an invocation, that denial that

we are talking about, Your Honor. So it is within a certain

realm of Establishment Clause jurisprudence. They -- if you

look at Town of Greece, what Town of Greece stands for, the

proposition is that the City cannot deny a religious

organization from giving an invocation based upon the

viewpoint to be communicated during the invocation.

THE COURT: So you're saying they have to know the

religious beliefs and the nature of the invocation before

they can run afoul of Town of Greece?

MR. CLAUS: It's not the invocation. They need --

I'm sorry, it's not the religious beliefs. They need to at

least know the viewpoint to be shared in the invocation

before they can discriminate --

1 5 : 5 7 : 4 9 THE COURT: That means your position would be that

1 5 : 5 6 : 3 5 1

 2

 3

 4

1 5 : 5 6 : 4 1 5

 6

 7

 8

 9

1 5 : 5 6 : 5 8 10

11

12

13

14

1 5 : 5 7 : 1 8 15

16

17

18

19

1 5 : 5 7 : 3 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 233 of 255
 496

if the City of Scottsdale said, we're not going to let

anybody with the name Muslim in the title pray because we

don't like Muslims, that wouldn't be religious

discrimination, assuming they didn't know specific beliefs;

right?

MR. CLAUS: No, Your Honor. That's not right.

Because you -- your hypothetical just established not only a

fact that is different from the previous hypothetical, but a

fact that doesn't exist in this case, that -- the -- there

is -- first of all, if an organization with the name Muslim

in it was denied because the City doesn't like Muslims,

Muslims are a recognized religious people by over 1.2 billion

people in the world. There is no religion of Satan. So

if -- if -- let me -- let me answer your question with a

different hypothetical which also isn't in evidence in this

case.

If Brian Biesemeyer had been told this organization

wants to give an invocation because they want to espouse the

doctrine of satanism, and he said and made the determination

and there was evidence in the case, oh, well, I don't like

satanism, I'm not going to allow that invocation to be given,

then -- then there may be a colorable claim. But simply

because the word Satan is in the Temple of Satan, that --

THE COURT: You're suggesting that a reasonable

1 5 : 5 9 : 2 4 person can't infer from Satanic Temple that they believe in

1 5 : 5 7 : 5 0 1

 2

 3

 4

1 5 : 5 8 : 0 3 5

 6

 7

 8

 9

1 5 : 5 8 : 1 9 10

11

12

13

14

1 5 : 5 8 : 5 0 15

16

17

18

19

1 5 : 5 9 : 0 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 234 of 255
 497

satanism; right?

MR. CLAUS: No, Your Honor. What I'm arguing to you

is that there is no evidence in this case and it is pure

conjecture that because the word Satan is in the Temple of

Satan, that that is a basis upon which a denial of the

invocation was made.

THE COURT: Well, I understand your argument about

the basis for the denial. And I've heard what you said on

that argument. So let me not interfere further. You can go

on with your argument.

MR. CLAUS: Thank you, Your Honor.

Mr. Biesemeyer did testify that he did not read and

he did not know about the e-mails that were sent. And I told

you Mr. Biesemeyer would say that, and that is what he

testified to without variation.

I told Your Honor that Brian Biesemeyer, in my

opening statement, would explain to you the investigation

that he had performed on his behalf as to the existence of

the long-standing practice of the City of Scottsdale to only

invite faith organizations with a substantial connection to

the City of Scottsdale to perform an invocation.

And, too, whether the organization calling itself

The Satanic Temple through February or May 2016 had any such

connections, and that is exactly the testimony that

1 6 : 0 0 : 5 7 Mr. Biesemeyer delivered.

1 5 : 5 9 : 2 9 1

 2

 3

 4

1 5 : 5 9 : 4 1 5

 6

 7

 8

 9

1 5 : 5 9 : 5 7 10

11

12

13

14

1 6 : 0 0 : 1 9 15

16

17

18

19

1 6 : 0 0 : 3 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 235 of 255
 498

And, no, Your Honor, as Mr. Biesemeyer explained,

substantial connection did not mean that the organization had

to have a physical plant within the specific geographic

limits of the City of Scottsdale.

Instead, contrary to what you were told by the

plaintiffs, Mr. Biesemeyer testified precisely what was meant

by substantial connection. It meant that the organizations

served a significant portion of the Scottsdale community or

had a number of members within the Scottsdale community. It

is a low bar, Your Honor. And it is a bar importantly that

the plaintiffs never tried to meet.

Ms. Shortt was asked about appeal processes.

They knew they could make a request to give an

invocation because they made a request to give an invocation.

For two years they said nothing, Your Honor. For

two years they said nothing because it is true, this is a

media stunt. This is a stunt that has nothing to do with

deeply held religious beliefs. It is a stunt that, if it was

sincere at all, if there was any sincerity behind the

plaintiffs' motivations or if there was any sincerity at all

behind what Ms. Shortt said she wanted to give as an

invocation, a reasonable juror and a reasonable judge should

conclude that on May 24, 2016, if there was a substantial

connection between her organization and the City of

1 6 : 0 2 : 4 0 Scottsdale, she would have written an e-mail and said, oh,

1 6 : 0 0 : 5 9 1

 2

 3

 4

1 6 : 0 1 : 1 1 5

 6

 7

 8

 9

1 6 : 0 1 : 2 9 10

11

12

13

14

1 6 : 0 1 : 5 3 15

16

17

18

19

1 6 : 0 2 : 2 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 236 of 255
 499

you misunderstand, we have the following members in

Scottsdale.

And if that had been the case, if The Satanic

Temple, the organization calling itself The Satanic Temple,

if Ms. Shortt had said to anyone at the City of Scottsdale,

oh, no, you're wrong, we do have a substantial connection to

the City of Scottsdale, and demonstrated that substantial

connection, Mr. Biesemeyer told you what his decision would

be. It would be completely different than the decision he

made.

So how could, if Mr. Biesemeyer would make -- and

that -- that testimony, Your Honor, was not only unrefuted,

it was unchallenged. And the reason it was unchallenged is

because that question stems from something that was asked

during his deposition by opposing counsel.

So why -- how could -- how could the plaintiffs

plausibly suggest that Mr. Biesemeyer, the decision-maker,

held a religious animus toward the group on which Ms. Shortt

claims she wanted to give a speech when, if she would have

demonstrated the one element he said was missing, he would

have made a different decision?

They cannot plausibly suggest that because they

never challenged it.

They never said to Mr. Biesemeyer, you know, we do

1 6 : 0 4 : 0 9 have a substantial connection and here's why.

1 6 : 0 2 : 4 5 1

 2

 3

 4

1 6 : 0 2 : 5 8 5

 6

 7

 8

 9

1 6 : 0 3 : 1 6 10

11

12

13

14

1 6 : 0 3 : 3 3 15

16

17

18

19

1 6 : 0 3 : 5 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 237 of 255
 500

They never said to Ms. Kuester, you know, we do have

a substantial connection and here's why.

Instead, they waited the two years for their

limitations period to almost run and filed a lawsuit.

I told Your Honor that the factual truth of

Mr. Biesemeyer's expressed rationale would be revealed by the

evidence, and it was.

Ms. Shortt admitted she's not a member of the

Scottsdale community and has never been a member of the

Scottsdale community. Ms. Shortt could not identify anyone

who was a member of the Scottsdale community when she sought

to give the invocation.

She admitted that she did not respond to the e-mail

delivered to her which is -- I'm sorry, that Ms. Shortt did

not respond to the e-mail that was delivered to Mr. Zarzycki

on May 23, 2016, Exhibit 12. She didn't direct anyone,

including Mr. Zarzycki, to tell any representative of the

City, as the purported chapter head of the Arizona chapter of

The Satanic Temple, that any -- that the plaintiff

organization had a substantial connection to the City of

Scottsdale.

Your Honor, I don't believe it is appropriate now,

given your rulings, to refer to Exhibit 5 or Exhibit 8, so

I'm going to ask for guidance from the Court on that. The

1 6 : 0 5 : 5 5 plaintiffs rested while Exhibits 8 and Exhibit 5 had not yet

1 6 : 0 4 : 1 1 1

 2

 3

 4

1 6 : 0 4 : 3 0 5

 6

 7

 8

 9

1 6 : 0 4 : 4 6 10

11

12

13

14

1 6 : 0 5 : 0 6 15

16

17

18

19

1 6 : 0 5 : 3 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 238 of 255
 501

been admitted.

THE COURT: That's still true.

MR. CLAUS: Thank you.

THE COURT: I haven't decided that.

But I will tell you I didn't find the Hernandez case

helpful that you gave me the cite on. I did read it and I

didn't think it was on point, but I still need to wrestle

with that issue.

MR. CLAUS: In any event, Your Honor, what the

plaintiffs have not shown the Court is any e-mail or any

communication by any councilmember that expressed anything

other than those councilmembers' personal beliefs as

contraposed to their beliefs as a council or on behalf of the

council.

Most critically, Your Honor, not only did the

plaintiffs fail to demonstrate, but Mr. Biesemeyer directly

refuted that he did not know of and had never seen

Mayor Lane's campaign literature, Suzanne Klapp's editorial

piece, or any other e-mail or communication in which

councilmembers expressed personal views and personal

viewpoints, and he was not influenced by any such

communications.

THE COURT: I'm going to ask you, if you would, to

wrap up in about seven minutes so that I can give plaintiffs

1 6 : 0 7 : 2 7 an opportunity for reply.

1 6 : 0 6 : 0 2 1

 2

 3

 4

1 6 : 0 6 : 0 8 5

 6

 7

 8

 9

1 6 : 0 6 : 2 2 10

11

12

13

14

1 6 : 0 6 : 4 5 15

16

17

18

19

1 6 : 0 7 : 1 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 239 of 255
 502

MR. CLAUS: I will, Your Honor.

On that point, Your Honor, Mayor Lane testified that

his campaign literature was not written or published by him

as a mayor or on behalf of the City, but was published on

behalf of himself as a candidate.

So what evidence has the plaintiff presented to meet

their burden of proof? And the answer is none.

Instead, they asked the Court to engage in a

practice that the Court would admonish a jury not to, engage

in speculation and conjecture not supported by the evidence.

And, in fact, is undermined by the only evidence actually

admitted in this matter, Your Honor.

But this is an exercise that the Court would not

condone if the jury were trying the case and it's not an

exercise that the Court should engage in now.

Instead, the Court should determine, based upon the

only evidence before it, that Mr. Biesemeyer and only

Mr. Biesemeyer made the decision to deny the organization

calling itself The Satanic Temple the ability to give an

invocation for the reason that they were told. That

organization lacked any substantial connection to the City of

Scottsdale. And that was the long-standing practice of the

City of Scottsdale.

The plaintiffs can point to no evidence admitted in

1 6 : 0 9 : 0 0 this matter that would rationally or reasonably lead to any

1 6 : 0 7 : 2 9 1

 2

 3

 4

1 6 : 0 7 : 4 5 5

 6

 7

 8

 9

1 6 : 0 8 : 0 4 10

11

12

13

14

1 6 : 0 8 : 2 2 15

16

17

18

19

1 6 : 0 8 : 4 1 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 240 of 255
 503

other conclusion. And for this reason, Your Honor,

plaintiffs' discrimination claim fails and the Court should

enter judgment in defendant's favor on all of plaintiffs'

discrimination claims.

I do want to address just two more things briefly,

Your Honor. And that has to do with the representation that

was made to you regarding school prayer cases.

School prayer cases engage in a completely different

analysis of -- than Establishment Clause cases like this one,

because school children, according to the courts, constitute

a captive audience.

And the cite is Freedom from Religion Foundation

versus Chino Valley Unified School District, 396 F.3d 1132.

And that is a 2018 Ninth Circuit opinion.

THE COURT: It's not 2018 if it's 396 F.3d, I don't

think.

MR. CLAUS: Is it -- is that 8 or 3?

I may be misreading.

We're double-checking on that, Your Honor.

THE COURT: Okay.

MR. CLAUS: The last thing has to do with a question

that you asked counsel, how do I determine what a religion

is? And the defendants have provided to you exactly the

question as to how you determine not only what a religion is,

1 6 : 1 0 : 3 8 but also if any of the plaintiffs satisfy the definition of a

1 6 : 0 9 : 0 3 1

 2

 3

 4

1 6 : 0 9 : 1 6 5

 6

 7

 8

 9

1 6 : 0 9 : 3 8 10

11

12

13

14

1 6 : 1 0 : 0 0 15

16

17

18

19

1 6 : 1 0 : 2 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 241 of 255
 504

religion.

Whether a belief system is a religion -- 

It is 896 F.3d 1132. I apologize, Your Honor.

Whether a belief system is a religion is controlled

by the factors set forth in Alvarado versus City of San Jose.

And an explanation of -- an explication of those factors is

most aptly articulated in Plans, Inc. versus Sacramento City

Unified School District, which is 752 F. Supp. 2d 1136, which

was affirmed by the Ninth Circuit at 476 Federal Appendix

684.

The plaintiffs bore the burden of proving that each

plaintiff, each plaintiff, represented a system of belief and

worship of a superhuman controlling power involving a code of

ethics and philosophy requiring obedience thereto.

I'm just going to interject here, Your Honor,

Ms. Shortt testified that the seven tenets specifically

eschew obedience because they exhort agnosticism in all

things and no obedience to arbitrary authority.

Second, the plaintiffs had to prove that each of the

plaintiffs sought to address fundamental and ultimate

questions having to do with, quote, deep and imponderable

matters, end quote, and, again, Ms. Shortt's testimony

reveals that is the exact opposite. She testified that her

seven tenets mean that her organization do not question and

1 6 : 1 2 : 4 0 do not analyze deep and imponderable matters.

1 6 : 1 0 : 4 5 1

 2

 3

 4

1 6 : 1 1 : 0 1 5

 6

 7

 8

 9

1 6 : 1 1 : 2 4 10

11

12

13

14

1 6 : 1 1 : 4 9 15

16

17

18

19

1 6 : 1 2 : 1 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 242 of 255
 505

Next, Your Honor, second to last, each of the

plaintiffs had to demonstrate that each plaintiff maintained

a belief system that was, quote, comprehensive in nature, end

quote.

And what did Ms. Shortt tell you? Every time she

was asked, even when she was led by her own lawyer, that

these are not comprehensive in nature, that each individual

decides how each individual applies any one or more of these

tenets in their own lives.

Finally, Your Honor, the plaintiff bore the burden

of proving -- each plaintiff bore the burden of proving that

they possessed formal and external signs of a religion, such

as formal services. Ms. Shortt admitted those did not exist.

Ceremonial functions. Ms. Shortt admitted those did

not exist.

The existence of a clergy, I've heard innumerable

times today that it's in the process, but we're in trial now

and those don't exist as of today and they didn't exist in

May of 2016.

Structure and organization. Your Honor, it's

impossible to even keep track who the plaintiffs are talking

about. Some monolithic TST is a nothing. There is no

structure and organization. It is purely ad hoc, and that

has been the testimony.

1 6 : 1 4 : 0 8 Efforts at propagation, observance of holidays, and

1 6 : 1 2 : 4 4 1

 2

 3

 4

1 6 : 1 2 : 5 5 5

 6

 7

 8

 9

1 6 : 1 3 : 1 1 10

11

12

13

14

1 6 : 1 3 : 3 6 15

16

17

18

19

1 6 : 1 3 : 5 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 243 of 255
 506

other similar manifestations associated with traditional

religions. I'll end on this, Your Honor.

An organization that was founded that had as its

only and first ritual something that was intended to be

mocking and offensive to a pastor of a Baptist church, even

if they do not agree at all with the beliefs of that pastor,

is not an organization that has the manifestations of

organizations associated with traditional religions.

Your Honor, they have not met their burden of

proving that they are a religion for Establishment Clause

purposes.

They have not met their burden of proving that the

invocation is not government speech or that they have an

individualized interest in an invocation.

They have not proven that the invocation or the

speech that is Exhibits 4 sought to be given by Ms. Shortt

was anything other than a screed designed to insult and

offend. 

And, Your Honor, they have not presented one iota of

evidence, of actual evidence, demonstrating a discriminatory

animus or a manifestation of a discriminatory animus on

behalf of the only decision-maker in this case,

Brian Biesemeyer.

Thank you.

1 6 : 1 5 : 3 4 THE COURT: All right. Thank you.

1 6 : 1 4 : 1 0 1

 2

 3

 4

1 6 : 1 4 : 2 7 5

 6

 7

 8

 9

1 6 : 1 4 : 5 2 10

11

12

13

14

1 6 : 1 5 : 0 6 15

16

17

18

19

1 6 : 1 5 : 2 0 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 244 of 255
 507

Mr. Kezhaya.

MR. KEZHAYA: Thank you, Your Honor. May it please

the Court.

There's an issue that is recurring in our

jurisprudence under the Establishment Clause, which is to

what extent does the government properly get to inquire into

religious beliefs.

Town of Greece had this to say: The request to

promote a, quote, diversity of religious views, end quote,

would require the town, quote, to make wholly inappropriate

judgments about the number of religions it should sponsor and

the relative frequency with which it should sponsor each.

Omitting citation.

A form of government entanglement with religion that

is far more troublesome than the current approach.

It's what Town of Greece has to say. That's 572,

Your Honor, U.S. at 586.

I cited in our cross-motion for summary judgment

Larson versus Valente. It had this to say: The clearest

command of the Establishment Clause is that one religious

denomination cannot be officially preferred over another.

You asked Mr. Claus if he -- if he agreed with the

premise that if a government permitted all Baptists but not

Catholics -- and I may have them reversed, I apologize --

1 6 : 1 7 : 1 7 would that be permissible? The answer is clearly no under

1 6 : 1 5 : 3 4 1

 2

 3

 4

1 6 : 1 6 : 0 5 5

 6

 7

 8

 9

1 6 : 1 6 : 2 1 10

11

12

13

14

1 6 : 1 6 : 4 0 15

16

17

18

19

1 6 : 1 6 : 5 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 245 of 255
 508

Larson versus Valente.

With respect to the Equal Protection analysis, I

think the answer is also clearly no. Equal Protection very

clearly says you cannot treat one group of similarly situated

people differently than another.

That's what happened here. Everyone else got one

benefit. You call up, you get your schedule, come on in.

Only TST was subjected to this additional scrutiny of, well,

what is your substantial connection.

There is a point that Mr. Claus keeps harping on

that I take issue with. He keeps misquoting Ms. Shortt. She

did not say it was a speech. She clarified it was religious

speech. I think that's critical.

This point that he repeatedly raises with respect to

although it wasn't an invocation because it wasn't literally

invoking a deity is disposed of also by Town of Greece

wherein the court notes nonbelievers were permitted to

participate in the invocation.

I think that disposes of that line of argument.

He keeps citing this Fields and Simpson case. First

of all, I believe it was Simpson versus Board of

Chesterfield, it's a 2005 case out of the Fourth Circuit. I

believe that case is abrogated by Town of Greece. There are

two important holdings that run afoul of Town of Greece.

1 6 : 1 8 : 4 2 Number one, a county government can look into the

1 6 : 1 7 : 2 1 1

 2

 3

 4

1 6 : 1 7 : 3 2 5

 6

 7

 8

 9

1 6 : 1 7 : 5 0 10

11

12

13

14

1 6 : 1 8 : 0 7 15

16

17

18

19

1 6 : 1 8 : 2 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 246 of 255
 509

contents of the invocation to determine whether or not it is

permissible. Town of Greece says you cannot discriminate.

In this Board of Chesterfield case, they discriminated

against a Wiccan. They said you have to be monotheistic, you

cannot be polytheistic. I think that runs very clearly

contrary to the Town of Greece.

The other one is that the county government can

require that the invocation be nonsectarian, meaning don't

say Jesus. That is also -- actually the language I cited

earlier by Town of Greece very specifically removed by Town

of Greece. Congress says you cannot control what someone is

going to say. Wholly inappropriate because it's entanglement

with religion.

Mr. Claus also gave the jury instructions. One

other jury instruction that we might give is that credibility

is solely within the province of the fact finder. So while

it may be true that Mr. Biesemeyer said he didn't see those

articles and if he had seen them it wouldn't have affected

his opinion, that is a subject of the Court's opinion. I

think that if he did know about four of seven of his bosses

making very clear statements that they did not want this

Satanic Temple, I think that would absolutely bear on his

determination.

There's another point that Mr. Claus keeps raising

1 6 : 2 0 : 1 5 which is, well, if the city council would have been offended,

1 6 : 1 8 : 4 6 1

 2

 3

 4

1 6 : 1 9 : 0 0 5

 6

 7

 8

 9

1 6 : 1 9 : 1 9 10

11

12

13

14

1 6 : 1 9 : 4 2 15

16

17

18

19

1 6 : 1 9 : 5 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 247 of 255
 510

they get to exclude it. Once again this runs afoul of Town

of Greece. The city council cannot inquire into permissible

and nonpermissible religious prayers. You either let them

all in or you let none of them in, but you can't pick and

choose which ones are okay.

I also pointed out Fields. Your Honor, Fields is, I

believe, a Third Circuit case, perhaps a Fourth Circuit case.

It is not SCOTUS and it's not the Ninth Circuit. This Court

is not bound by it. The only question is if the Court is

persuaded by it, and I haven't heard anything persuasive

about this case. It seems to suggest that a government can

take some religions, but not others. You must have a belief

in a literal religious deity, which is to say spiritual

deity, or you don't get to have an invocation. I think that

runs afoul of very much jurisprudence on the issue of the

Establishment Clause.

I think that this case, Your Honor, is most easily

disposed of by Rubin. If it were me, this is how I would

rule. Rubin says you need to have neutrality-enforcing

safeguards. There's no appeals process. There is no written

policy. There is no definition for what substantial

connection is. There being no neutrality-enforcing

safeguards, Rubin gives the Court an easy shortcut.

Does the Court have any questions of me?

1 6 : 2 1 : 4 4 THE COURT: Yeah. What's the citation for Rubin?

1 6 : 2 0 : 1 8 1

 2

 3

 4

1 6 : 2 0 : 3 2 5

 6

 7

 8

 9

1 6 : 2 0 : 5 2 10

11

12

13

14

1 6 : 2 1 : 1 6 15

16

17

18

19

1 6 : 2 1 : 2 8 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 248 of 255
 511

MR. KEZHAYA: Yes, Your Honor, let me find that real

quick.

Does the Court recall Rubin -- 

THE COURT: Did you cite it in your proposed

findings and conclusions?

MR. KEZHAYA: I don't believe that I did, but we

cited it at length in our cross-motion for summary judgment.

Rubin versus City of Lancaster, 710 Federal 3d 1087.

It's a Ninth Circuit case out of 2013.

To refresh the Court's recollection, the City of

Lancaster had an invocation policy. It was written. I don't

remember all the rest of the neutrality-enforcing safeguards,

but they described it as, if I remember correctly,

practically all of them.

So I think that is the easiest way to win in this

case, Your Honor.

Other than the citation question, does the Court

have any questions of me?

THE COURT: Well, I want to ask a question about

what you just said about Ruben, which I don't remember. I'll

have to read it again.

MR. KEZHAYA: Yes, sir.

THE COURT: Are you saying that if I find as a

matter of credibility that I believe Mr. Biesemeyer said no

1 6 : 2 2 : 5 9 to The Satanic Temple because it did not have a substantial

1 6 : 2 1 : 5 5 1

 2

 3

 4

1 6 : 2 1 : 5 7 5

 6

 7

 8

 9

1 6 : 2 2 : 1 3 10

11

12

13

14

1 6 : 2 2 : 3 1 15

16

17

18

19

1 6 : 2 2 : 4 4 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 249 of 255
 512

connection, I should find an Establishment Clause violation

because the City didn't have enough procedural safeguards?

MR. KEZHAYA: Yes, Your Honor. That's what Rubin

is. The only problem with Rubin is that it says that that

City did have enough safeguards such that there was no

Establishment Clause violation. I think the opposite is true

here.

THE COURT: Is that a legislative prayer case?

MR. KEZHAYA: Yes, Your Honor. It's a legislative

invocation. It was city council. They have invocations.

Again, I don't recall all of the safeguards but it was --

THE COURT: Was it challenged by somebody who wanted

to abolish --

MR. KEZHAYA: Yes.

THE COURT: -- the invocations?

MR. KEZHAYA: Yes, Your Honor.

THE COURT: So it wasn't a religious discrimination

case?

MR. KEZHAYA: It -- it was to that person,

Your Honor. It was a religious discrimination case insofar

as the City was entangling itself with religion by permitting

these religions to have prayer.

THE COURT: Did the plaintiff in Rubin seek to say

an invocation?

1 6 : 2 4 : 0 4 MR. KEZHAYA: That, I don't recall, Your Honor. I

1 6 : 2 3 : 0 2 1

 2

 3

 4

1 6 : 2 3 : 1 6 5

 6

 7

 8

 9

1 6 : 2 3 : 2 9 10

11

12

13

14

1 6 : 2 3 : 3 9 15

16

17

18

19

1 6 : 2 3 : 4 7 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 250 of 255
 513

don't believe there's any Ninth Circuit case where someone

was precluded. Precluding someone from a legislative

invocation is something that was apparently very rare in the

law. The Town of Greece case repeatedly notes that nobody

had ever been declined.

Rubin actually, as we're talking about it, also

notes repeatedly nobody had ever been declined.

I'm very hard-pressed to think of any cases, even

district court. There was the Broward County case out of

Florida, which I believe we may have cited in our motion in

limine response.

THE COURT: Yeah, I agree there's very few

discrimination cases. But the problem I'm having with what I

think is your argument is, it's one thing for a plaintiff to

challenge a city's or a city council's invocation policy

because it doesn't have enough protections to ensure

compliance with the Establishment Clause. It's a different

thing to come in and say, I was discriminated against. I was

turned away because of my religious beliefs. Which is what

you are saying.

MR. KEZHAYA: Yes, Your Honor.

THE COURT: And if the answer is no, you weren't

turned away because of your religious beliefs, if I decide

that Mr. Biesemeyer's testimony is credible, I don't see how

1 6 : 2 5 : 2 0 a discrimination case becomes a discrimination because there

1 6 : 2 4 : 0 5 1

 2

 3

 4

1 6 : 2 4 : 1 8 5

 6

 7

 8

 9

1 6 : 2 4 : 3 5 10

11

12

13

14

1 6 : 2 4 : 4 6 15

16

17

18

19

1 6 : 2 5 : 0 9 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 251 of 255
 514

weren't sufficient safeguards to survive a challenge that

would seek to abolish the practice altogether.

MR. KEZHAYA: I would have to go further into

reading about Ruben to respond to the question, Your Honor.

I don't recall whether the prayer for relief there was

abolish it entirely or I want in too.

THE COURT: All right. 

MR. KEZHAYA: I think that -- I think that does turn

it.

THE COURT: I will read Ruben carefully.

MR. KEZHAYA: Yes, Your Honor.

THE COURT: Did you have other points you wanted to

make?

MR. KEZHAYA: I had no other points, Your Honor.

THE COURT: Okay. I do have -- I have a question.

You had Ms. Shortt make reference to something that I think

she described as an Indian outreach center.

MR. KEZHAYA: Yes, Your Honor.

THE COURT: In Exhibit 15. And I looked through

Exhibit 15 and I couldn't find it. Could you -- well, do you

believe it's in Exhibit 15 and, if so, could you show me

where.

MR. KEZHAYA: If the Court permits me a second, I

could find it, I believe.

1 6 : 2 6 : 2 6 THE COURT: That's fine.

1 6 : 2 5 : 2 5 1

 2

 3

 4

1 6 : 2 5 : 4 1 5

 6

 7

 8

 9

1 6 : 2 5 : 4 7 10

11

12

13

14

1 6 : 2 5 : 5 6 15

16

17

18

19

1 6 : 2 6 : 1 5 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 252 of 255
 515

MR. KEZHAYA: In producing what was excluded as

Exhibit 16, the Court may remember it's a 11-page exhibit of

various Google addresses for people who came in from outside

the town, one of which was Phoenix Indian Center.

So one of the exhibits that we relied upon but

neglected to include in the pretrial order was a list of

individuals that we actually believed was the list that

Ms. Kuester was talking about. It was attached to the City's

summary judgment.

Does the Court remember what I'm talking about?

THE COURT: Well, yeah, but that's not in evidence.

What I have in evidence is Exhibit 15. And when I looked

through it, I couldn't see a reference to an Indian outreach

center.

MR. KEZHAYA: I have the date of 11/14/2016, 32-10

of -- 

THE COURT: What was that date again?

MR. KEZHAYA: 11/14/2016, Your Honor.

THE COURT: There's something called Phoenix Indigo

Center.

MR. KEZHAYA: Indigo?

THE COURT: On Exhibit 15.

MR. KEZHAYA: I believe that may be a typo,

Your Honor.

1 6 : 2 7 : 3 4 THE COURT: Well -- 

1 6 : 2 6 : 2 8 1

 2

 3

 4

1 6 : 2 6 : 4 3 5

 6

 7

 8

 9

1 6 : 2 6 : 5 8 10

11

12

13

14

1 6 : 2 7 : 0 8 15

16

17

18

19

1 6 : 2 7 : 2 6 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 253 of 255
 516

MR. KEZHAYA: Unless --

THE COURT: I just didn't -- 

MR. KEZHAYA: -- someone -- 

THE COURT: I just didn't know where it was in the

exhibit. That was -- you've answered my question.

MR. KEZHAYA: Yes, Your Honor. Unless, of course,

the City's position is that a dyer of denim is a religious

organization.

THE COURT: The last thing, I just want to make a

point on the record, there were numerous exhibits from the

defense side on the best evidence rule. I overruled them all

because of Rule 1004(d). Just so that's on the record.

All right. Thank you for your arguments and your

presentations. I will take this under advisement and I will

get you a decision as soon as I can. Thank you all.

MR. CLAUS: Thank you, Your Honor. 

MR. KEZHAYA: Your Honor, I have a housekeeping

matter. Does the Court want to us come back tomorrow or are

we adjourned?

THE COURT: No need to come back tomorrow.

MR. KEZHAYA: Thank you, Your Honor.

(End of transcript.)

* * * * *

1 6 : 2 7 : 3 4 1

 2

 3

 4

1 6 : 2 7 : 3 7 5

 6

 7

 8

 9

1 6 : 2 7 : 5 0 10

11

12

13

14

1 6 : 2 8 : 0 6 15

16

17

18

19

1 6 : 2 8 : 2 2 20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 254 of 255
 517

C E R T I F I C A T E

I, PATRICIA LYONS, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages

constitute a full, true, and accurate transcript of all of

that portion of the proceedings contained herein, had in the

above-entitled cause on the date specified therein, and that

said transcript was prepared under my direction and control,

and to the best of my ability.

DATED at Phoenix, Arizona, this 24th day of April,

2020.

 s/ Patricia Lyons, RMR, CRR

Official Court Reporter 

 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 2:18-cv-00621-DGC Document 117 Filed 04/24/20 Page 255 of 255