UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

 _________________

Satanic Temple, et al., )

 )

 Plaintiffs, ) CV 18-00621-PHX-DGC

 )

 vs. ) Phoenix, Arizona

 ) January 22, 2020

City of Scottsdale, et al., ) 8:52 a.m.

 ) 

 Defendants. )

_____________________________________)

BEFORE: THE HONORABLE DAVID G. CAMPBELL, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BENCH TRIAL DAY 1

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

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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

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I N D E X 

OPENING STATEMENTS

Plaintiff Opening Statement by Mr. de Haan 10

Defense Opening Statement by Mr. Claus 12

EXAMINATION

WITNESS PAGE

WILLIAM JAMES LANE 

Direct Examination By Mr. de Haan 20

Cross-Examination By Mr. Claus 36

Redirect Examination By Mr. de Haan 50

SUZANNE KLAPP 

Direct Examination By Mr. Kezhaya 53

Cross-Examination By Ms. Zoe 68

Redirect Examination By Mr. Kezhaya 76

MICHELLE SHORTT 

Direct Examination By Mr. Kezhaya 80

Cross-Examination By Mr. Claus 177

Redirect Examination By Mr. Kezhaya 221

BRIAN BIESEMEYER 

Direct Examination By Mr. de Haan 246

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(Index of Exhibits Continued)

EXHIBITS

NUMBER DESCRIPTION PAGE

11 Copy of public statement by 28

Lane 

13 Copy of Lane campaign flyer 35

10 Article published by Suzanne 56

Klapp, March 16, 2016 

7 Email from Kuester to 104

Zarzycki, February 24, 2016 

12 Email from Kuester to 105

Zarzycki, May 23, 2016 

17 Defendant's Motion to Dismiss 108

brief in support 

14 Meeting minutes 2013-2018 117

8 Emails between Littlefield 162

and Constituent, February 11, 

12, 2016 

6 E-mail from Zarzycki to 185

Kuester, February 23, 2016 

76 TST Affiliation Agreement 194

dated 08/10/16 

82 Articles of Organization - 201

Adversarial Truth LLC filed 

04/14/17 

4 Proposed invocation The 210

Satanic Temple intended to 

use at Scottsdale's city 

council meeting 

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P R O C E E D I N G S

THE COURTROOM DEPUTY: This is case number

CV-18-621, Satanic Temple, et al., versus City of Scottsdale,

on for bench trial.

Counsel, please announce for the record.

MR. de HAAN: Stu de Haan for plaintiffs.

MR. KEZHAYA: Matt Kezhaya for plaintiffs.

MR. CLAUS: Good morning, Your Honor. Scot Claus,

Dickinson Wright. With me is Vail Cloar, Holly Zoe,

Alexandra Crandall, and our paralegal who will be helping us

with the presentation, Michelle Williamson, and our client

representative, Brian Biesemeyer, on behalf of the City of

Scottsdale.

THE COURT: All right. Good morning everybody.

Counsel, do you have matters to raise before we get

started this morning?

MR. CLAUS: We had one, Your Honor.

THE COURT: Go ahead.

MR. CLAUS: The plaintiffs have served on the mayor,

Councilwoman Klapp, Kelli Kuester, who is an administrative

employee of the City, and Brian Biesemeyer, our client

representative, subpoenas. I have asked plaintiffs' counsel

numerous times to provide to us not the order of witnesses

0 8 : 5 3 : 2 0 that they will call, Your Honor, but to let us know whom of

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these city employees and city representatives can abide

lunchtime so they don't to have waste their entire day here

since the rule is invoked. And in 27 years of doing this,

this has never been a problem for me, but for some reason it

is a problem for the plaintiffs to afford me that modicum of

courtesy.

So I'm going to ask you, Your Honor, to ask them to

do for you what they will not do for me and let you know

who -- it doesn't take a rocket scientist to know we will get

through two and probably be on the third witness by the time

lunchtime occurs. So if they know their first three

witnesses, they can let me know who can be -- who can come

after lunch.

THE COURT: Counsel.

MR. KEZHAYA: Yes, Judge. The issue we're having is

we don't know how long each of these first three witnesses

are. We have a plan, we have an idea, but we don't know if

we will definitely be done with the third witness by the time

lunch rolls around. Our concern is we get into the fourth

witness and they're nowhere to be found because they're told

to be here after lunch.

THE COURT: Tell us your plan.

MR. KEZHAYA: Pardon?

THE COURT: Tell us your plan.

0 8 : 5 4 : 3 2 MR. KEZHAYA: Our plan is to have Jim Lane go first.

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We have a number of documents and impeachment to go through,

but if he says everything that we expect him to say, he could

be as short as 15 minutes. Likewise with Klapp. Shortt is

third. Shortt will probably take on the order of an hour and

a half, we expect, inclusive of cross-examination.

THE COURT: And who is after that?

MR. KEZHAYA: After that is Biesemeyer, Your Honor.

THE COURT: Why have you been unwilling to tell that

to the defense counsel?

MR. KEZHAYA: We were concerned they would use it

against us in some way.

THE COURT: How?

MR. KEZHAYA: It would give them insight into our

trial strategy.

THE COURT: Well, I strongly disagree. I want you

to tell them the full order of witnesses you will call, and I

want the defense to do the same if you haven't already done

it. That is basic.

MR. KEZHAYA: Yes, Judge. Now or --

THE COURT: Now.

MR. KEZHAYA: After -- well, the first four is Lane,

Klapp, Shortt, and Biesemeyer.

THE COURT: And after that?

MR. KEZHAYA: After that will be Kuester or Kuester

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THE COURT: Is that all of them?

MR. KEZHAYA: That will be end of them, yes,

Your Honor.

THE COURT: Okay. You didn't provide me with a

witness list either, which was required in my order.

MR. KEZHAYA: Begging the Court's pardon, Your Honor

I didn't see that part. We had put together the exhibits but

we didn't see the witness list part.

THE COURT: You didn't mark the exhibits either, I

understand.

MR. KEZHAYA: Likewise, Judge, we've always had

stickers provided to us by court, so we didn't think we would

be applying them before the 9 o'clock start time.

THE COURT: Well, we're going to go ahead and start.

There isn't time to mark exhibits now. We'll mark as we go

this morning. But during the first break, you need to get

all of the other exhibits marked, as was indicated in the

order issued in August that you were to do that. So be sure

and get that done during the morning break.

MR. KEZHAYA: Yes, Judge.

THE COURT: Do you have other matters you want to

raise before we get started?

MR. KEZHAYA: Nothing from plaintiffs, Your Honor.

THE COURT: Anything else from the defense?

0 8 : 5 6 : 3 0 MR. CLAUS: Nothing, Your Honor, but may I have two

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minutes to tell Ms. Kuester she doesn't have to be here until

after lunch?

THE COURT: You may, and I need a minute to get

organized as well.

MR. CLAUS: Thank you, Your Honor.

THE COURT: Go ahead.

Okay. As we previously discussed, we've set aside

11 hours for the trial, 5.5 hours per side. We will start

with opening statements, and so let's go ahead and start with

any opening statement plaintiff wishes to make.

MR. de HAAN: Good morning, Your Honor.

Satanic Temple is an international religious

organization with presence in every state in America as well

as numerous foreign countries.

As this trial progresses there's two things the

plaintiffs are going to prove. One is that TST is a

religion. Of course that's going to invoke the two causes of

action, the establishment clause and Equal Protection clause,

and that The Satanic Temple and its member, Michelle Shortt,

was discriminated against on the basis of religious animus.

In order to do that, we are going to show that the

policy that was created to apply only to Ms. Shortt was

pretextual.

We're going to show there was a injury to Ms. Shortt

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First Amendment rights with the denial to give this

invocation. Additionally, we are going to show it was

actually the City of Scottsdale and its employees that caused

this injury by denying the right for the invocation to be

given, and we're going show there was redressability in that

the way this could be remedied is that there is a policy that

doesn't discriminate in that The Satanic Temple be able to

give invocations as any other religious organization.

In this there's two causes of action. First, the

establishment clause. The City cannot constitutionally have

a policy of discrimination selecting speakers based on their

religious orientation and cannot endorse one religion or

disparage another.

The other cause of action is equal protection, which

will be proven through the same body of evidence.

The City cannot treat other religions better or

worse than The Satanic Temple. They were similarly situated

to other religious groups. And the policy that was created

for this situation, it's not narrowly tailored -- narrowly

tailored to promote a compelling government state interest in

the least restrictive means possible.

What you will hear is there was religious animus

from the City's highest officials before the policy was

created, during when the policy was created, and after the

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What you're not going to hear in this trial is that

there's a compelling state interest being advanced by this

policy because there's no showing that this policy is any

kind of definition that can be upheld by the courts.

At the end of the trial we're going to ask you find

for the plaintiffs on both counts, that they cannot

constitutionally prohibit the invocation given by The Satanic

Temple. We're going to ask for appropriate costs and fees

and injunction -- injunctive relief and whatever else the

Court finds reasonable.

Thank you, Your Honor.

THE COURT: Okay. Thank you.

Opening from the defense.

MR. CLAUS: Good morning, Your Honor. Scot Claus at

Dickinson Wright on behalf of the defendants.

Michelle Shortt did not ask anyone at the City of

Scottsdale for permission to give an invocation. You will

hear names during this trial, Your Honor. You will hear the

name Kelli Kuester. She was the individual responsible for

scheduling invocations. Michelle Shortt never spoke to

Kelli Kuester. Michelle Shortt never wrote Kelli Kuester an

e-mail, Michelle Shortt never wrote Kelli Kuester a letter,

Michelle Shortt had no communications with Kelli Kuester.

You will also hear the name during this trial

0 9 : 0 2 : 4 6 Brian Biesemeyer. Mr. Biesemeyer was the acting city manager

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in February 2016 and had been acting city manager for 2015.

You will hear that as acting city manager he was

imbued by the Charter of the City of Scottsdale with the sole

power to act as the chief executive of the City in charge for

making administrative decisions. And Michelle Shortt never

said one word verbally, never said one word in writing, to

Brian Biesemeyer.

Michelle Shortt will be forced to admit that the

allegations she repeatedly made in her complaint that she

asked and that she was denied the ability to give an

invocation are wholly and completely false.

It's not just that Michelle Shortt never asked to

give an invocation, Michelle Shortt -- Michelle Shortt never

told any representative in this case, that you just heard is

about religious and viewpoint discrimination, the evidence

will show that Michelle Shortt never said one word to any

representative of the City of Scottsdale about her religious

beliefs, her viewpoints, the viewpoints of anything called

The Satanic Temple, or any religion purportedly held by any

member of The Satanic Temple.

She didn't tell Kelli Kuester. She didn't tell

Brian Biesemeyer, she didn't tell Mayor Jim Lane, she didn't

tell Councilwoman Suzanne Klapp.

In fact, the testimony and evidence in this case in

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not a single representative of any of the multiple plaintiffs

ever uttered a single word to any representative of the City

of Scottsdale regarding the purported viewpoint that the

plaintiffs hold.

I want to repeat that, Your Honor.

This is a case about viewpoint discrimination, but

all of the testimony and evidence you hear will reveal that

no representative of any plaintiff ever told a representative

of the defendant what Ms. Shortt believed; what anyone

associated with anything called The Satanic Temple believed;

what the plaintiff in this case, the United Federation of

Churches LLC, believed; what the plaintiff in this case,

Adversarial Truth LLC, believed; or what the plaintiff in

this case, The Satanic Temple, Inc., believed.

And on this point, Your Honor, a brief footnote is

required because with respect to the purported beliefs or

viewpoints of Adversarial Truth LLC or The Satanic Temple,

Inc., as a matter of physics and the calendar, the testimony

will reveal that they could not have held a viewpoint in 2016

because they did not exist in 2016.

It's not just that the evidence will demonstrate

that the plaintiffs were utterly silent in articulating their

purported viewpoints or beliefs to the City, they also did

not provide a copy of the purported proposed invocation. No

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purported proposed invocation to any representative of the

City of Scottsdale.

It's not just, Your Honor, that the plaintiffs did

not provide information or beliefs or viewpoints of any

plaintiff to any City representative. Instead, the evidence

will uniformly demonstrate that no representative of the City

of Scottsdale obtained that knowledge from any other source.

So why was this organization that called itself The

Satanic Temple scheduled for an invocation and why was that

canceled? 

Ms. Kuester and Mr. Biesemeyer will tell you.

Ms. Kuester will tell you that she was in a unique situation.

Her job, as I told you, was to schedule invocations, and the

tool that she used to schedule those invocations was a list.

It was a list of organizations that she created from

information that she inherited when she took her job.

Plaintiffs say, but she didn't investigate the

connection between the organizations on that list and the

City.

That's right. Because she will tell you she did not

do an investigation because the organizations on that list

had already demonstrated a substantial connection to the City

of Scottsdale. She will also tell you -- this is another

name you will hear, Jeremy Zarzycki. Ms. Shortt never said

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Instead, what Ms. Kuester will tell you is that somebody

named Jeremy Zarzycki asked for an invocation to be

scheduled.

She will tell you that Mr. Zarzycki's request was

the first time she had ever received an unsolicited request

from an outside organization to give an invocation.

And when she was asked, she did not inquire as to

the belief system held by the organization that Mr. Zarzycki

referenced, she did not ask about Mr. Zarzycki's belief or

his religion, she did not ask about the religion of anyone

who wished to give an invocation. She scheduled.

Mr. Biesemeyer will tell you why he got involved.

Again, Your Honor, because under the Scottsdale City

Charter, as acting city manager Mr. Biesemeyer was the chief

executive in charge of making administrative decisions on

behalf of the City of Scottsdale. He will tell you he made

the administrative decision to cancel the scheduled

invocation after utilizing the significant resources at his

disposal to do two critical things.

One, Your Honor, determine that the City had a

long-standing, not a created, practice of only allowing faith

groups with a substantial connection to the City of

Scottsdale to give invocations on behalf of the City; and,

two, that the organization calling itself The Satanic Temple

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But he didn't do an independent investigation, the

plaintiffs will say. Yes, Brian Biesemeyer, the chief

executive administrative officer for the City of Scottsdale,

the acting city manager, did not personally perform an

investigation. But he will tell you under oath from the

witness stand that that does not mean that others did not

conduct an investigation at his behest. 

They did.

And that investigation revealed the truth,

Your Honor, that the organization calling itself The Satanic

Temple had no connection to the City of Scottsdale.

Now, here's an important point, Your Honor. How do

we know that is the truth?

Because Mr. Zarzycki was told of the cancellation on

May 23, 2016, in an e-mail communication, and from May 23,

2016, until this moment in the universe, not a single

representative of the organization calling itself The Satanic

Temple, not a single representative of any of these

plaintiffs, uttered one word that said or meant, no, you're

wrong, City of Scottsdale, The Satanic Temple is a thing and

has a substantial connection to the City of Scottsdale, and

here's why.

Michelle Shortt never said that. 

Jeremy Zarzycki never said that. 

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No representative of the United Federation of

churches, LLC, ever said that.

No representative of Adversarial Truth, LLC, ever

said that.

No representative of The Satanic Temple, Inc., ever

said that. 

No one responded to the cancellation on May 23,

2016, and responded to the legitimate and actual reason for

the denial.

Now, I told you that Mr. Biesemeyer will tell you

what he did to make his decision. He will also tell you what

he didn't do.

He did not seek or receive instruction from

Mayor Jim Lane at all.

He did not seek or receive instruction or direction

from the city council as a body, nor did he seek or receive

instruction from any individual member of The Satanic Temple.

He will also tell you that although he did seek for

an investigation into the long-standing practice of the City

and whether any plaintiff organization had that substantial

connection to the City of Scottsdale, what he did not do was

learn or inquire about the beliefs of any member of the

plaintiff, their religion or their religious viewpoint,

because he didn't care, Your Honor. 

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testimony that I just described will be all you need,

Your Honor, to make your decision in this case.

But you will hear so much more. You will hear that

the plaintiffs' purported belief system bears none of the

hallmarks of a religion.

In fact, Your Honor, you will hear that the

plaintiffs' organization began as a, quote, media stunt, end

quote, and that they represent a purely secular organization

advocating purely secular philosophies that are intentionally

denigrating and offensive to and mocking of sincere religious

beliefs.

For that reason, when she testifies, Ms. Shortt will

be forced to admit that she does not -- did not desire then

and will not, if the plaintiffs are afforded a remedy, give

anything called an invocation. Instead, Your Honor,

Michelle Shortt will be forced to admit that she sought then

and she seeks relief from this Court to engage in a discourse

that would mock, belittle, and denigrate the sincere

religious beliefs of members of the council and the

Scottsdale community.

At the end of the day, and literally may be the end

of today, Your Honor, the evidence presented in this case

will demonstrate that the defendants did not discriminate

against and did not deny Equal Protection to any plaintiff.

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DIRECT EXAMINATION - WILLIAM JAMES LANE

Thank you, Your Honor.

THE COURT: All right. Thank you.

First witness from plaintiffs.

MR. de HAAN: We are invoking exclusion of

witnesses, Your Honor. I think both sides are.

THE COURT: We'll ask the witnesses to step out of

the courtroom, please, except the first witness.

MR. de HAAN: We're going to call Jim Lane first,

Your Honor.

THE COURT: All right.

WILLIAM JAMES LANE,

called as a witness herein, after having been first duly sworn 

or affirmed, was examined and testified as follows: 

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

BY MR. de HAAN: 

Q Morning, Mr. Lane.

A Good morning.

Q Could you please state your name and spell your last name.

A It is William James Lane. Last name is spelled L-A-N-E.

Q And what's your occupation?

A I'm the mayor of the City of Scottsdale.

Q And does the mayor serve on the city council as well?

A Yes, as a member of the city council.

Q And your position is an elected position; is that right?

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Q So are city council members?

A It's a separate race, but, yes.

Q Now, when someone sends an e-mail to

citycouncil@scottsdaleaz.gov, do you receive those e-mails?

A Yes, I do.

Q Now, there's also as part of the structure of the City, a

city manager; correct?

A I'm sorry?

Q There's also someone who works for the City, that position

is city manager.

A Yes.

Q Would it be fair to say they serve at the pleasure of the

council?

A Yes, that's correct.

Q And then there's a Kelli Kuester.

A Yes.

Q Are you familiar with her?

A Yes, I am.

Q What is her position?

A She's a management assistant in the mayor's office.

Q She works for the mayor's office?

A Yes.

Q Now, as far as this situation, it was -- it's her job to

actually schedule these invocations; is that correct?

0 9 : 1 9 : 0 5 MR. CLAUS: Objection, Your Honor. Foundation.

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THE COURT: Overruled.

MR. de HAAN: I'm sorry --

THE COURT: You can answer.

THE WITNESS: Thank you.

She is -- as one of her duties, yes, she does

schedule them.

BY MR. de HAAN: 

Q Okay. Now, as far as anything written or published at the

time this occurred back at the end of 2015, there was no

written policy; is that fair to say?

MR. CLAUS: Foundation, Your Honor.

THE COURT: Overruled.

MR. CLAUS: Vague, Your Honor.

THE COURT: Overruled.

THE WITNESS: Written policy, no, I don't believe

so.

BY MR. de HAAN: 

Q And there was no written prohibitions to who could give an

invocation; is that fair to say?

A That's correct.

Q Now, as far as the initial scheduling of The Satanic

Temple to do an invocation, how did you first hear about that?

A Actually first heard about it in the news as related to

another city.

0 9 : 2 0 : 1 1 Q Okay. So when the invocation got scheduled in Scottsdale,

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was it Kuester who informed you of that?

A Honestly, I do not remember it being scheduled or

otherwise.

Q Okay. Now, at some -- do you recall at some point telling

Ms. Kuester that The Satanic Temple is to be treated as any

other religion?

A I'm not sure if I quite understand. Did I understand

there was a policy to have it treated as any other religion?

Q Yes. Did you inform Ms. Kuester that this organization,

this religious organization, would be treated the same as any

other religious organization when this first occurred?

A Actually I'm not sure I made that statement, no.

Q Okay. Were you ever informed of any substantial

connection or lack thereof that The Satanic Temple had to the

City of Scottsdale?

A No.

Q But you had opinions about this invocation; is that fair

to say?

MR. CLAUS: Objection. Foundation as to time,

Your Honor.

THE COURT: Overruled.

THE WITNESS: I have opinions like anyone, yes.

BY MR. de HAAN: 

Q And at the time you had a website; is that correct? In

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A If you're talking about a campaign website, yes.

Q Okay. And you actually wrote a piece called Standing Up

to Satanists; is that fair to say?

A I think that's right. Actually, it was a piece on -- in

that campaign.

Q And that was in your campaign?

A Yeah.

Q Okay. This was a piece that was to the public?

A By virtue of the campaign that you're promoting, yes.

Q Okay.

And you said in that piece that this invocation

wasn't going to happen.

MR. CLAUS: Objection, Your Honor. Foundation as to

time.

THE COURT: Overruled.

MR. CLAUS: And, Your Honor, best evidence. He's

trying to prove the contents of a writing.

THE COURT: Overruled.

BY MR. de HAAN: 

Q Do you recall what you wrote?

A Honestly, no, I do not know exactly what was said.

Q Would it refresh your recollection --

A To the point it may have been a campaign piece that was

written by others in a sense.

0 9 : 2 2 : 5 2 Q Okay. Would it refresh your recollection to see it?

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A Yes.

Q Okay.

THE COURTROOM DEPUTY: Your Honor, this is Exhibit

Number 11.

BY MR. de HAAN: 

Q Okay. So what's being handed to you is Plaintiffs' 11. I

know that first one is pretty unreadable, but is that a copy

of that website that you recall?

A Really, from this illustration I really can't tell at

all.

Q If you look on the next page there's a transcription of

the contents. Does that -- if you'd take moment to look at

that. 

Does that fairly and accurately represent what you

had written?

MR. CLAUS: Objection, Your Honor. Mr. de Haan is

referring to the third page of Exhibit 11, which is not a

transcription of anything. We don't know who prepared it.

There's no foundation for this page of this exhibit.

THE COURT: So what's the objection?

MR. CLAUS: The objection is that it is misleading.

There's no foundation for this page of this exhibit.

THE COURT: He can ask the witness that question,

which he just did. So the objection is overruled.

0 9 : 2 4 : 3 2 Would you re-ask the question, Mr. Lane. Pardon me,

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Mr. de Haan.

BY MR. de HAAN: 

Q Giving a moment for Mr. Lane to take a look, my question

is does that fairly reflect what you had written?

A Again, to the point of the origin of writing it. But

does it indicate some of what was expressed? Certainly. I

believe it is.

Q Okay. Okay. Is your testimony that as far as you can

remember this is what you had written?

A Yeah. Now I -- yeah. In general, yes.

Q Okay.

In this you said that you've decided to send the

satanist side show elsewhere; is that right?

A I think that's what it indicates. I think that's

probably right. I don't remember exactly.

Q But you're not denying you said that?

A Yeah.

Q So you said that some things are worth fighting for, and

what you meant by that is to deny this group the ability to do

the invocation?

A Preserve the invocation.

Q And you said, "We're telling the satanists hell no."

A That's -- if that's -- sure, that's probably right.

THE COURT: Have you got a copy --

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Have you got a copy for the witness?

MR. de HAAN: If I may approach.

THE COURT: Have you got only one copy?

MR. de HAAN: I think I have one and we provided one

to the Court.

THE COURT: Yeah, I have one. You only have one

copy?

MR. de HAAN: Yes.

THE COURT: During the break or something you need

to make two copies so we don't have to keep going back and

forth to the witness.

MR. de HAAN: Understood.

May I approach, Your Honor?

THE COURT: You may.

BY MR. de HAAN: 

Q So I'll just ask the last part. You're not denying you

said "we're telling the satanists hell no."

MR. CLAUS: Objection, Your Honor. Foundation as to

time.

THE COURT: Overruled.

THE WITNESS: Repeat that question.

BY MR. de HAAN: 

Q At the end of this article you said, "Some things are

worth fighting for. We're telling the satanists hell no"?

0 9 : 2 7 : 0 0 A It's in defense of a right to have the invocation, yes.

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MR. de HAAN: Plaintiff moves to admit Plaintiffs'

11.

MR. CLAUS: Your Honor, we renew our objections. We

have no idea when this document was created; when it was

disseminated, if it was disseminated.

THE COURT: What is the basis for the objection?

MR. CLAUS: No foundation for the admission of the

exhibit, Your Honor. As to the temporal -- and because there

is no foundation as to time, then it's not relevant,

Your Honor.

THE COURT: Overruled on that basis. I'll admit

Exhibit 11.

(Exhibit 11 admitted.)

BY MR. de HAAN: 

Q This occurred contemporaneously with the invocation being

requested, is that fair to say, when you wrote this?

A Explain that -- I'm sorry, explain what you're saying.

Is it -- at the same time?

Q Yes. This piece you wrote occurred after the invocation

had been scheduled; is that fair to say?

A I would presume so, if in fact during the election cycle

the comments were made.

Q Understood.

Now, you personally didn't inquire as to substantial

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DIRECT EXAMINATION - WILLIAM JAMES LANE

didn't look into that?

A No.

Q And you didn't advise Kelli Kuester to look into that?

A No.

Q You didn't advise Brian Biesemeyer to look into that?

A No.

Q Is it fair to say at the time that you wrote this, you

didn't know the beliefs of The Satanic Temple?

A At the time this was published?

Q Correct.

A I don't know that because I don't know the time.

Q And you didn't know, for instance, the organizational

structure of The Satanic Temple, where their headquarters were

in Arizona, anything like that?

A If you're referring to the point where this -- no, I

don't know that.

Q Okay. Now, are you aware -- after this occurred, are you

aware of a public outcry that occurred about this invocation

being set?

A Honestly, I don't know on the timing of that either,

other than the fact what had happened in Phoenix, it was in

the papers and there was a bit of information as far as

that's concerned.

Q So any information you had is from the media?

0 9 : 2 9 : 4 5 A Pretty much, yes.

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Q Did you hear about all of the e-mails that got sent in to

the City of Scottsdale?

MR. CLAUS: Objection, Your Honor. Assumes --

THE WITNESS: I don't recall.

MR. CLAUS: -- facts not in evidence. 

THE COURT: Overruled.

THE WITNESS: Don't recall.

BY MR. de HAAN: 

Q You don't know?

A No.

Q But you're -- would it be fair to say you knew people were

responding to that e-mail address and you were receiving

e-mails? Do you remember that?

A Are you talking about -- which e-mail address are you

talking about? 

Q The e-mail I had originally asked you about, the

citycouncil@scottsdaleaz.gov. People were writing responses

to that e-mail regarding the invocation; is that right?

MR. CLAUS: Foundation, Your Honor.

THE COURT: Overruled.

THE WITNESS: Generally. Generally I am, but not

always.

BY MR. de HAAN: 

Q In this situation, do you recall e-mails being written to

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DIRECT EXAMINATION - WILLIAM JAMES LANE

A I honestly got to say I don't remember that one.

Q Do you remember responding to any of these e-mails?

A No, I do not.

Q Do you recall telling people that you were repulsed by

this group?

A The effort was really to retain a right to have an

invocation. And that's, yes, and my opinion may have been

certainly expressed in those terms.

Q And did you say you were repulsed by the federal

government's position on this?

A Not at all.

Q Would it refresh your recollection to see an e-mail you

wrote?

A Yeah, it probably would.

MR. de HAAN: Okay. Your Honor, may I approach to

mark this exhibit?

THE COURT: You may.

(Exhibit 18 marked for identification.)

THE COURTROOM DEPUTY: Your Honor, this is

Number 18.

MR. de HAAN: I should show it to Mr. Claus first.

I'm showing counsel what is marked for

identification purposes as 18.

MR. CLAUS: Your Honor, Exhibit 18 has never been

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DIRECT EXAMINATION - WILLIAM JAMES LANE

exhibit list.

THE COURT: Is it in the final pretrial order?

MR. CLAUS: It's not, Your Honor.

MR. de HAAN: It's not, Your Honor. This is for

impeachment only.

THE COURT: The objection is sustained.

Impeachment-only exception does not apply to a document that

has some bearing on the merits of the case. If it's only for

impeachment, that can be the only relevancy, and this

document is clearly relevant to other issues in the case. So

I'm going to sustain the objection since this document was

not included in the final pretrial order.

MR. de HAAN: Your Honor, may I use it to refresh

recollection?

THE COURT: Not if it wasn't in the final pretrial

order, no.

MR. de HAAN: Understood.

BY MR. de HAAN: 

Q Okay. Do you recall at all writing e-mail or stating to

the public that if The Satanic Temple were to sue the City of

Scottsdale over this, the City would lose the lawsuit?

MR. CLAUS: Objection, Your Honor. Best evidence.

THE COURT: Overruled.

THE WITNESS: I'm sorry, the origin of this e-mail?

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DIRECT EXAMINATION - WILLIAM JAMES LANE

BY MR. de HAAN: 

Q Do you recall saying that in an e-mail to anybody?

A No.

Q Okay. After this, do you recall Brian Biesemeyer sending

an e-mail to the city council after the denial was to be

handed down to The Satanic Temple with the wording of that

denial?

A I don't remember the wording of that denial. I do seem

to remember that we were notified.

Q So Biesemeyer notified you before Kelli Kuester sent that

e-mail, as far as you know?

A As far as I remember, yeah.

Q Okay.

Now, after this occurred, do you recall a reelection

pamphlet you were disseminating to the public?

A After --

Q After the invocation from The Satanic Temple was denied,

do you recall literature or a pamphlet for reelection that you

were disseminating to the public?

A I think part of what we were talking about before, this

item I still have here, that may have been a product of that,

I don't know.

Q Okay. Would it refresh your recollection to see it?

A If it's -- if it's not this one?

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DIRECT EXAMINATION - WILLIAM JAMES LANE

A Because this, I believe, is from the campaign, which that

sounds to me like you're talking about the same thing.

Q You don't recall a pamphlet?

A I don't remember a separate one.

Q Would it refresh your recollection to see it?

A Yes, that would be fine.

Q Okay.

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

THE COURT: You may.

THE COURTROOM DEPUTY: Your Honor, Exhibit 13.

(Exhibit 13 marked for identification.)

THE WITNESS: Yes, I recall this as a piece of

campaign literature, yes.

BY MR. de HAAN: 

Q Okay. And did you write that?

A Again, it may be a paraphrase from something I might have

felt or otherwise, but it's a campaign literature.

Q Okay. And you endorsed that?

A It's viewed by me before it goes out, yes.

Q Okay. Understood.

And you have -- and in that you have a number of

checkmarks of accomplishments; is that correct?

A Yes, that's correct.

Q And one of the accomplishments that you have listed is

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A That's what it indicates, yes.

MR. de HAAN: Your Honor, plaintiff moves to admit

Plaintiffs' 13.

MR. CLAUS: Still foundation as to time, Your Honor.

Other than that --

THE COURT: I'm sorry, I couldn't hear you.

MR. CLAUS: Foundation as to time. We still have no

timing as to this document.

THE COURT: Objection is overruled. Exhibit 13 is

admitted.

(Exhibit 13 admitted.)

BY MR. de HAAN: 

Q So you take agency of those accomplishments; is that fair

to say?

A It's not untypical, obviously, from all of the things

that the City does, yes, under my leadership as mayor. Yes.

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

Your Honor.

THE COURT: You may.

MR. de HAAN: No further questions, Your Honor.

THE COURT: All right.

Cross-examination.

MR. CLAUS: Just a moment, Your Honor. Thank you.

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

BY MR. CLAUS: 

Q Good morning, Mr. Mayor.

A Good morning.

Q You're familiar with the charter form of the government of

the City of Scottsdale?

A I most certainly am.

Q Does the Scottsdale city charter articulate the powers and

duties of the mayor?

A Absolutely it does.

Q Are the powers and duties of the mayor governed by the

Scottsdale city charter?

A Yes.

Q The Scottsdale city council, is that a body politic?

A Yes.

Q Are you familiar with Arizona's open meeting law?

A Yes.

Q Does the deliberation of a resolution, ordinance, or

motion by the Scottsdale city council, does that have to be

done by the council in a duly agendized, open and noticed

meeting?

A Most assuredly.

Q Let's go through the three ways that the City can act

through its council pursuant to the charter and the open

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Can the Scottsdale city council deliberate or pass an

ordinance outside of a duly agendized, noticed meeting?

A No.

Q Can the City of Scottsdale city council deliberate or pass

a motion outside of a duly agendized, noticed open meeting?

A No.

Q Can the Scottsdale city council ever deliberate or pass a

resolution to deny anyone the ability to give an invocation

outside of a duly agendized, noticed open meeting?

A No.

Q Did the City of Scottsdale ever pass a resolution to deny

anyone representing the plaintiff the right to give an

invocation?

A No.

Q Did the City of Scottsdale ever deliberate a motion,

resolution, or ordinance to deny anyone representing the

plaintiff the right to give an invocation?

A No.

Q Does the charter of the Scottsdale city government allow

the mayor of the City of Scottsdale the power to do anything

regarding the City of Scottsdale unilaterally?

A No.

Q Does Article 2, Section 6 of the Scottsdale city charter

state that the mayor of the City of Scottsdale shall have no

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A Yes.

Q Do you know, as the mayor of Scottsdale -- for how long,

sir?

A In my 12th year.

Q Do you know, sir, as having been the mayor for nearly 12

years, who is the chief executive officer and responsible for

administrative decisions on behalf of the City of Scottsdale?

A City manager.

Q And in February -- you were not provided any dates during

your examination by the plaintiff.

In February 2016, was Brian Biesemeyer the city

manager of the City of Scottsdale?

A To the best of my recollection, yes.

Q Outside of a duly agendized, open meeting of the

Scottsdale city council, do you have the power to direct the

city manager to do anything with respect to his administrative

functions?

A Not unilaterally, no.

Q Did the city council of the City of Scottsdale -- strike

that.

Is it the city council, sitting as a body, that has

the power to direct the manager to perform certain

administrative functions of the City of Scottsdale?

A Yes.

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CROSS-EXAMINATION - WILLIAM JAMES LANE

power to direct the city manager to perform administrative

functions?

A Yes. It has another term as a council manager form of

government, as well as charter form of government.

Q And with respect to any organization calling itself The

Satanic Temple or any representative of the plaintiff in this

case, did the council, sitting as a body, direct

Brian Biesemeyer to do anything with respect to the decision

to deny some organization called The Satanic Temple the

ability to give an invocation?

A No.

Q I asked you how long you've been mayor. Were you a city

councilmember before you were mayor?

A Yes.

Q How long were you a city councilmember?

A Four years. One term.

Q Since first becoming a city councilmember, has the city

council routinely sought invocations to be given by faith

groups on behalf of the City of Scottsdale?

A Yes.

Q And have you learned as a result of your tenure as

councilmember and mayor that the practice of the City inviting

religious organizations with a substantial connection to the

City of Scottsdale to give invocations on its behalf a

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CROSS-EXAMINATION - WILLIAM JAMES LANE

A Yes.

Q As a former councilmember and now mayor, do you know why

the Scottsdale city council invites organizations to have

representatives give invocations on its behalf for each city

council meeting?

A I'm sorry, the question is why?

Q Yeah. Do you know why the council makes those invitations

to have an invocation given by a group on its behalf before

city council meetings?

A Generally to invoke a power to look after the City and

councilmembers and the mayor, and that generally is somewhat

of a unifying element of a good start to a meeting.

Q A good start to a meeting.

Does the city council invite organizations to give an

invocation on its behalf to provide solemnity for the meeting

and guidance to the councilmembers?

A Yes.

Q And has it been your practice and your experience that

that long tradition of the City of Scottsdale to invite faith

groups to give an invocation on the council's behalf before

the invocation, does that have a unifying force, in your

experience?

A I would say absolutely it has.

Q Do you know the difference between an invocation and a

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CROSS-EXAMINATION - WILLIAM JAMES LANE

A Yes, I would say so.

MR. de HAAN: Relevance, Your Honor.

THE COURT: Stand up when you object and speak into

the mic so we can all hear you, please.

MR. de HAAN: I object to that question as to

relevance.

THE COURT: Hold on just a minute.

Overruled.

BY MR. CLAUS: 

Q As long as you have been a councilmember or mayor, has the

council ever asked any organization to give a speech before a

council meeting that was a political speech rather than an

invocation?

A No. And to the point that political speeches to an issue

that may be something that the City deals with is forbidden

to use city taxpayer moneys to advance a political effort

within the City. So, no, it's certainly not designated in

that area. But we do have a public comments area where

people can, within the jurisdiction of the City, can speak to

us.

Q Since you've been councilmember and mayor, has the city

council ever invited anyone to give an invocation that sought

to denigrate the sincere religious beliefs of members of the

Scottsdale community or members of the Scottsdale city

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CROSS-EXAMINATION - WILLIAM JAMES LANE

MR. de HAAN: Objection. Foundation. There's no

evidence of that.

THE COURT: Overruled.

THE WITNESS: No.

BY MR. CLAUS: 

Q Since you've been councilmember and mayor, has the City of

Scottsdale ever invited an organization to give an invocation

on its behalf that proselytized to the members of the

Scottsdale community or to council members?

A No.

Q Since you've been a city councilmember and mayor, has the

City of Scottsdale ever invited an organization or a

representative for an organization to give an invocation on

its behalf that was purposefully offensive to and mocking of

sincere religious beliefs of members of the Scottsdale

community or members of the city council?

A Absolutely not.

Q In your experience, would something that called itself an

invocation that was denigrating, mocking, proselytizing, and

offensive serve the purpose for which the city council sought

organizations to give invocations on behalf of the City of

Scottsdale before council meetings?

A I'm sorry, the lead on that was?

Q Sure. Would something that called itself an invocation

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CROSS-EXAMINATION - WILLIAM JAMES LANE

religious beliefs, mocking of religious beliefs, and

proselytized, would that serve the purpose for which the city

council, as long as you've been a member, had asked

organizations to give invocations on its behalf to lend

solemnity and give guidance before council meetings?

A Obviously we would not -- had we had that situation, yes.

And would we consider that an invocation, absolutely not. I

hope I'm answering that correctly. But it's certainly not

something we would not only foster, but we would -- we

haven't really experienced that kind of thing ever. I'm not

sure what we might do to correct it if in fact it were to

happen. But nevertheless, that hasn't been an issue for us.

Q Well, that's a good segue, Mr. Mayor. I want to ask you,

has the Scottsdale city council ever refused anyone the

ability to give an invocation based upon the beliefs or

religious viewpoints of the person seeking to give the org- --

the invocation or the organization that that person was

affiliated with?

A Not to my knowledge ever.

Q Do you know Brian Biesemeyer?

A Absolutely, yes.

Q I'm going to ask you straight up, Mr. Mayor, did you ever

direct Brian Biesemeyer to deny anyone representing the

plaintiff the ability to give an invocation before a City of

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Case 2:18-cv-00621-DGC Document 116 Filed 04/24/20 Page 42 of 262
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CROSS-EXAMINATION - WILLIAM JAMES LANE

A No.

Q Did you ever ask Brian Biesemeyer to deny anyone the

ability to give an invocation before a Scottsdale city council

meeting?

A No.

Q Same types of questions with respect to Kelli Kuester.

Did you ever direct Ms. Kuester to deny anyone representing

the plaintiff the ability to give an invocation before a

Scottsdale city council meeting?

A No.

Q Did you ever ask Ms. Kuester to deny anyone representing

the plaintiff the ability to give an invocation before a city

council meeting?

A No.

Q We talked about the city charter. Outside of a duly

agendized city council meeting, do you even have the ability

to direct anyone to make a decision to deny someone the

ability to give an invocation on behalf of the City of

Scottsdale?

A No.

Q Mayor is an elected position, you testified to, and you

campaigned for mayor in 2016?

A Yes.

Q The election was in November 2016?

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Case 2:18-cv-00621-DGC Document 116 Filed 04/24/20 Page 43 of 262
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CROSS-EXAMINATION - WILLIAM JAMES LANE

Q You were shown two exhibits. I want to -- does the

witness have a copy of Exhibit 11 still?

A I've got one of them. Yes.

Q Exhibit 11 and Exhibit 13.

A I've got a readable transcript on 11 and a readable copy

of a flyer on the other.

Q I want to make sure that I and the Court understands. The

third page of Exhibit 11, you did not type and you did not ask

anyone to type the third page of Exhibit 11 --

A No.

Q -- is that correct?

A I did not.

Q Do you know for a fact that the third page of Exhibit 11

actually reflects what is written anywhere in the first two

pages of Exhibit 11?

A I -- I can't tell that.

Q Is there any date that you see on Exhibit 11?

A Not on either the unreadable or the transcript.

Q Using -- is it accurate to say that you did not deliver

any campaign material to either Brian Biesemeyer or

Kelli Kuester?

A That's pretty -- yeah. That would not be -- not only it

wouldn't be appropriate, it wouldn't be something I would

have in the program.

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Case 2:18-cv-00621-DGC Document 116 Filed 04/24/20 Page 44 of 262
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CROSS-EXAMINATION - WILLIAM JAMES LANE

material --

A No.

Q -- to Kelli Kuester or Brian Biesemeyer?

A No.

Q And, sir, you were asked about -- somewhat asked about the

timing of Exhibit 11. Do you actually know if Exhibit 11 was

produced, the first two pages of Exhibit 11, the third page

was never distributed to the public, to the best of your

knowledge; correct?

A Oh, absolutely, yes.

Q Okay. So I'm going to ask you about the first two pages

of Exhibit 11.

The first two pages of Exhibit 11. Is there any way

for you to tell from Exhibit 11 that the first two pages were

prepared or distributed to the public at any time prior to

May 23, 2016?

A There's no way for me to tell on this. Nor can I even

sort of see where it's coming from.

Q You don't know -- is it accurate to say you don't know if

the first two pages of Exhibit 11 come from any website that

you operated or maintained?

A I don't -- yes. I don't -- pardon me. I don't know

that.

Q With respect to the first two pages of Exhibit 11, is it

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Case 2:18-cv-00621-DGC Document 116 Filed 04/24/20 Page 45 of 262
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CROSS-EXAMINATION - WILLIAM JAMES LANE

Exhibit 11 were prepared or distributed to the public at any

time prior to May 23, 2016?

A I have no way of knowing that.

Q Now let's talk about Exhibit 13.

Exhibit 13 looks like it's a photograph of a flyer.

Does it look like that to you?

A Yes.

Q When you campaigned for mayor in 2016, did you have a

challenger?

A Yes.

Q Did you use campaign material as part of your campaign for

reelection?

A Yes.

Q Now, the campaign material -- if Exhibit 11 is campaign

material and Exhibit 13, which you testified is campaign

material, if campaign material was used by you, sir, was it

utilized by you as mayor or was it utilized by you as a

candidate for mayor?

A As a candidate.

Q And as a candidate for mayor, did your campaign material

have any ability to influence the decision-making of the chief

executive administrative officer of the City of Scottsdale?

MR. de HAAN: Objection. Speculation.

THE COURT: Overruled.

0 9 : 5 6 : 3 2 THE WITNESS: No.

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Case 2:18-cv-00621-DGC Document 116 Filed 04/24/20 Page 46 of 262
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CROSS-EXAMINATION - WILLIAM JAMES LANE

BY MR. de HAAN: 

Q The campaign material that you've identified as Exhibit 13

and that may comprise Exhibit 11, is that campaign material an

official communication from the office of the mayor?

A Absolutely not.

Q Not to use this word in a pejorative way, sir, but when

you are campaigning for mayor, you are a politician?

A I think that's pretty clear.

Q Did you ever communicate with a woman named

Michelle Shortt?

A No.

Q Did she ever communicate with you, to the best of your

knowledge?

A Unless she didn't identify herself.

Q Did you ever communicate with an individual named

Jeremy Zarzycki?

A No.

Q To the best of your knowledge, have you ever communicated

anything to any representative of the plaintiff?

A Again, to the best of my knowledge, no.

Q Did you ever ask anyone what viewpoint or religious belief

any representative of the plaintiff held at any time, sir?

A No.

Q Did any representative of the plaintiff unilaterally tell

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Case 2:18-cv-00621-DGC Document 116 Filed 04/24/20 Page 47 of 262
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CROSS-EXAMINATION - WILLIAM JAMES LANE

A None. No.

Q Did anyone deliver to you --

A Now, I'm sorry, only what I might read in the press.

Q Did anyone deliver to you any proposed invocation that was

sought to be given by any representative of the plaintiff at

any time prior to May 23, 2016?

A I'm sorry, could you repeat that again.

Q Sure. Did anyone deliver to you any proposed invocation

that was purportedly sought to be given by a representative of

the plaintiff at any time prior to May 23, 2016?

A No.

Q How about today, up till today? Has anyone ever delivered

to you the proposed invocation that the plaintiffs say they

sought to give?

A No.

Q Have you ever, as mayor, either sought or asked anyone to

condition the ability of anyone to give an invocation based

upon the content of that invocation?

A No.

Q And have you ever conditioned an invocation or asked

anyone to condition an invocation based upon the belief system

or viewpoints of the proposed representative giving the

invocation?

A No.

0 9 : 5 9 : 3 9 Q And you didn't do that in this case, did you, sir?

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REDIRECT EXAMINATION - WILLIAM JAMES LANE

A No.

MR. CLAUS: That's all I have, Your Honor. Thank

you.

THE COURT: Any redirect?

MR. de HAAN: Briefly, 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 Now, even if you don't make rules from outside of the

deliberations of the city council, as an elected official you

certainly present intent and things you wish to accomplish as

mayor; is that fair to say?

A That's true.

Q That website, when you were running for mayor would be an

example of that; is that fair to say?

A Well, one is accomplishments and certainly we look

forward as well, yes.

Q As far as the accomplishments, I believe you testified

that it was the City as a whole under your direction; is that

fair to say?

A Well, under my direction with the full council, yes.

Q So you work in tandem --

A But the full council does hire all of our executive team.

So we operate together with the managers and our charter

officers.

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Case 2:18-cv-00621-DGC Document 116 Filed 04/24/20 Page 49 of 262
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REDIRECT EXAMINATION - WILLIAM JAMES LANE

city manager?

A What's that?

Q You work together with him to accomplish --

A Not individually, no. As a unit, yes. As a political

body, I should say.

Q That's why Mr. Biesemeyer asked the council's approval

when he was going to deny the invocation?

A That's right.

MR. CLAUS: That assumes facts not in evidence,

Your Honor.

THE COURT: Overruled.

BY MR. de HAAN: 

Q It's not the practice of the City, as far as you know, to

ask what the invocations are going to contain; is that fair to

say?

A We haven't ever had that occasion, no. Have never done

that. We are obviously looking for an invocation.

Q That's the only --

A Yeah.

Q Okay.

There was no -- as I believe you said, I'll ask more

specifically, there was no prohibition of somebody calling in

to ask to give an invocation; correct?

A No.

1 0 : 0 1 : 4 7 Q So an all-comer system, essentially? 

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REDIRECT EXAMINATION - WILLIAM JAMES LANE

A Pretty much. We are looking for folks who represent the

community and, frankly, that are -- if it's a membership

organization, that they have a following within Scottsdale.

But that's not really ever been asked because it's not really

been an issue.

Q So there's no real metric, a number of people you

expect --

A No. No.

Q So all you knew about this particular group was their

name, The Satanic Temple, and what you saw in the media?

A Yes.

MR. de HAAN: I have nothing further, Your Honor.

THE COURT: All right. Thank you, sir. You can

step down.

MR. CLAUS: Your Honor, may I have three minutes to

thank the mayor --

THE COURT: I'm sorry?

MR. CLAUS: May I have three minutes, two minutes to

tell the mayor he's no longer needed and to thank him.

THE COURT: You can have one minute.

MR. CLAUS: Thank you, Your Honor, I'll take one

minute.

THE COURT: Plaintiffs' next witness.

MR. KEZHAYA: Now, Your Honor, or should we wait?

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DIRECT EXAMINATION - SUZANNE KLAPP

them in here.

MR. KEZHAYA: Klapp, Your Honor, Suzanne Klapp.

MR. CLAUS: And, Your Honor, just so you're aware,

Ms. Zoe is going to be taking Ms. Klapp, so when you hear her

voice, that's why.

THE COURT: All right. Thank you.

THE COURTROOM DEPUTY: State your name for the

record and please spell your first and last name.

THE WITNESS: Suzanne Klapp. S-U-Z-A-N-N-E,

K-L-A-P-P.

SUZANNE KLAPP,

called as a witness herein, after having been first duly sworn 

or affirmed, was examined and testified as follows: 

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

BY MR. KEZHAYA: 

Q Good morning, Ms. Klapp.

A Good morning.

Q What is your current occupation?

A I'm a councilwoman in the City of Scottsdale.

Q And being a councilwoman, what does that entail?

A It deals with the issues that come to the council that

are policy related, primarily. We are policy makers, much

like a board of directors for a corporation.

Q Is this a full-time position?

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DIRECT EXAMINATION - SUZANNE KLAPP

Q Is it a compensated position?

A Yes.

Q How much are you paid?

A $18,000.

Q On a weekly basis, about how much time does it take out of

your week?

A 25 hours.

Q Is this a publicly elected position?

A Yes.

Q When you get -- when someone sends an e-mail to the email

address citycouncil@Scottsdaleaz.gov, do you receive these

e-mails?

A I should.

Q You should as a general matter? Under what circumstances

would you not receive them?

A I don't know. But if it's sent to the entire council, I

should receive a copy.

Q Is it fair to say, then, the city council is shared by all

the city councilmembers.

A Say that again, I didn't hear you quite well.

Q Is it fair to say this email address is shared by all of

the city councilmembers?

A Yes.

Q I want to turn your attention to early 2016. Do you

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DIRECT EXAMINATION - SUZANNE KLAPP

A Yeah, it was election year.

Q It being election year, does that impact your statements

to the public?

A No.

Q Does -- are you running for mayor right now?

A No.

Q Are you intending to run for the mayor position?

A Probably.

Q Probably.

Turning your attention to early 2016, do you remember

a group called The Satanic Temple attempting to give an

invocation before the city council?

A Yes, I remember.

Q Did you have any feelings about that?

A I have published an article that said I wasn't really

wanting to listen to them, but that's my feeling. My

opinion.

Q You indicated you published an article.

MR. KEZHAYA: May I approach, Your Honor?

THE COURT: To get -- is it already marked?

MR. KEZHAYA: Yes, Your Honor.

THE COURT: Yes, you may.

BY MR. KEZHAYA: 

Q I'm going to hand you a document --

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DIRECT EXAMINATION - SUZANNE KLAPP

then go back to the mic, otherwise folks can't hear you.

THE COURTROOM DEPUTY: Counsel, what number is that?

MR. KEZHAYA: This is 10.

BY MR. KEZHAYA: 

Q Would you take a moment to review that article.

A Okay. I've read it.

Q Is that a true and accurate copy of your article?

A I believe it to be.

Q Is that a yes?

A It's a copy, so I don't know if it's correct or not, but

it appears to be.

Q You wrote the article; correct?

A Yes, I wrote it.

Q Is there anything on that paper that misstates what you

wrote?

A Not that I can see by my first reading.

MR. KEZHAYA: Move to introduce Plaintiffs' 10,

Your Honor.

MS. ZOE: Your Honor, I object. Foundation.

THE COURT: Overruled. Exhibit 10 is admitted.

(Exhibit 10 admitted.)

BY MR. KEZHAYA: 

Q You indicated -- first of all, when was this article

written?

1 0 : 0 9 : 1 8 A It says here March 16th.

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Q That's what it says, but do you remember when you wrote

it?

A Probably a few days before.

Q Orienting ourselves in time, do you remember when the

initial request was made by TST?

A No, I don't.

Q Okay. Establishing the background here, the initial

request was initially granted; is that right?

A I really don't know. I was not involved in the request.

Q Okay. Did you hear from anyone that it was granted?

A I heard discussions about the group was asking to come,

but I don't remember the details of it.

Q Okay. Who were having those discussions?

A Councilmembers.

Q Were they having these discussions on the agenda, on some

duly agendized meeting?

A No. This was a conversation with another councilmember

or two somewhere outside of the council meeting.

Q Were they -- were they giving any indication of how they

felt about this invocation?

A No. I don't recall. I just remember it was mentioned.

I don't remember any opinions taken or given.

Q Did they indicate anything about the newsworthiness?

MS. ZOE: Objection. Hearsay, Your Honor.

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BY MR. KEZHAYA: 

Q I'd like you to read the article word for word.

A In its entirety?

Q In its entirety.

THE COURT: Into the record?

MS. ZOE: Objection, Your Honor.

MR. KEZHAYA: Yes, Your Honor.

THE COURT: We don't need to do that; it's in

evidence.

THE WITNESS: Okay.

BY MR. KEZHAYA: 

Q Turn your attention to the first paragraph. "Is it fair

to say that enough is enough when a satanist group not even

based in Scottsdale wants to disrupt our meetings by giving an

invocation to the entire council meeting audience." 

Is that in the first paragraph?

A Almost. It's the first line.

Q You also indicate on the third paragraph that it's "time

to make it clear that a rule must be established about who can

come in" -- or "who can come and what kind of message is

expected."

Is that fair to say?

A That's what it says.

Q Did that accurately characterize your impressions of this

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A It is my opinion, yes.

Q It's your current opinion, too, then?

A Yes.

Q I want to turn your attention to the last sentence of this

paragraph. "There is no current rule related to the

invocation."

Is that right?

A That's what it says, yes.

Q At the time around March of 2016, was there in fact any

rule surrounding who can give an invocation?

MS. ZOE: Objection, Your Honor. Foundation.

THE COURT: Overruled.

THE WITNESS: I was not involved in discussions

about invocations so I don't really know what the rules were.

BY MR. KEZHAYA: 

Q But you said right here there's no correct rule.

A None that I knew of.

Q So is it your testimony today that there was or that there

was not --

A This is just my opinion. I don't know if there was a

rule.

Q You don't know as you sit today?

A I was not involved in any discussions about the

invocations, so I don't know what the rule is.

1 0 : 1 2 : 4 9 Q Ma'am, once again I'm asking you, as you sit today, was

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there a rule at the time in question? Yes or no?

A At the time that's what I thought. That's my opinion,

yes.

Q Turn your attention to the second-to-last paragraph. The

first sentence reads, "I do not welcome a satanist group."

Is that an accurate reading of the article?

A It says "I do not welcome a satanist group."

Q Is that a yes?

A Yes.

Q Do you still feel that way as we sit today?

A Yes.

Q Why is that?

A My opinion was here is that if I don't welcome them, I

don't want to listen to them. And that's what I said in the

next line.

Q My question to you is does it relate to their beliefs?

A It relates to the messages I want to hear.

Q Is that a yes or no, whether it relates to their beliefs?

A It relates to my opinion of what I want to hear.

Q Do you expect they're going to give you a statement that

you do not want to hear?

A Yes.

MS. ZOE: Objection.

THE COURT: Overruled.

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BY MR. KEZHAYA: 

Q Do you have any idea what that statement would be?

A Only from what I have read in the news media about the

organization.

Q What is your understanding of what they would say?

A I don't know what their message would be, but to me a

satanist group is one that is going to be talking about

Satan, so the message would be about Satan.

Q When we talk about Satan, are we talking about the

Christian figure of the devil?

A To me, yes, as a Christian, yes.

Q Would you find that deeply offensive?

A I don't know if I would call it offensive, I just don't

want to hear it.

Q Why not?

A I can choose to hear what I want to hear. That's why. I

just choose not to listen.

Q And we take no position on whether you should be forced to

listen to it. My question to you, though, is why don't you

want to listen to it?

A Because if somebody is presenting a message about Satan,

I don't want to hear it. How can I be clearer?

Q Does it relate to your religious beliefs?

A Yes.

1 0 : 1 5 : 1 2 Q Do you believe that whatever the message plaintiffs would

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give would run contrary to your religious beliefs?

A Yes.

Q At some point there was a scheduling conflict; is that

right?

A That, I don't know.

MS. ZOE: Foundation.

THE COURT: She said she didn't know.

BY MR. KEZHAYA: 

Q Do you know whether TST at some point was scheduled a

second time?

A I don't know.

Q Have you ever had any contact with Brian Biesemeyer about

this matter?

A Not that I recall.

Q Do you know if Brian Biesemeyer ever contacted you?

A I do not recall having a conversation or him contacting

me.

Q If Brian told you that the two of you -- if Brian had

previously testified that the two of you had a phone

conversation, would he be lying?

A I just don't recall.

Q Is that a yes or no?

A I can't call someone a liar --

MS. ZOE: Objection --

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THE COURT: Hold on just a minute. 

What's the objection?

MS. ZOE: He's attempting to impeach her with a

collateral source.

THE COURT: I'm going to overrule the objection, but

don't interrupt the witness, please, Mr. Kezhaya. 

She can answer the question.

MR. KEZHAYA: Yes, Your Honor.

BY MR. KEZHAYA: 

Q As you sit here today, do you remember whether you

expressed concern to Brian Biesemeyer about the invocation?

A I do not recall any conversation where I expressed a

concern.

Q Did you receive notice prior to -- actually, let's

establish the background.

Strike that, Your Honor.

At some point the plaintiffs were denied the

invocation; is that fair to say?

A I believe so. I think I read it in the newspaper.

Q Was that the first time you heard of it?

A That it was denied?

Q Yes.

A I don't remember. There again, I don't remember the

sequence of events that took place. I recall that the

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denied, how it was denied. Much of what I picked up about

this was just in conversations.

Q Earlier you testified that the city council is the board

of directors for the City of Scottsdale; is that right?

A Yes. Yes.

Q Would the city council be the one to create a policy

determining who and who cannot give invocations?

A They never have. Not since I've been on the council.

That's an administrative decision; we're a legislative body.

Q Is it -- are you familiar with the charter for the City?

A Yes.

MR. KEZHAYA: May I approach?

THE COURT: Yes. What do you need?

MR. KEZHAYA: We have two copies of the documents

for my own reference. One is the city charter the other

defense discovery response.

THE COURT: Are they up here somewhere?

MR. KEZHAYA: Right up here.

THE COURT: Yes, you can get those.

BY MR. KEZHAYA: 

Q Is it fair to say the City has powers, as a general rule?

A Yes.

Q Is it fair to say the powers are generally vested with the

city council?

1 0 : 1 8 : 5 4 A Certain powers, yes.

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Q As a general matter, all powers are vested with the

council; is that right?

A As a general matter.

Q As a general matter. Yes?

A Yes.

Q Do you know of any section in the charter that removes the

power of determining who cannot -- or who can and cannot give

invocations from the city council?

A I have no recollection of anything in the charter that

refers to invocations.

Q So we would be falling into the general rule, then; is

that fair to say?

A Everything that happens within the City is not in the

charter. There's a lot of administrative decisions not in

the charter. So I don't know what your question is.

Q Is there a section of the charter that removes all

administrative powers from the city council?

A I don't think it removes it, but it designates that the

city manager's the person who is directly responsible for

administrative matters. We are responsible for policy

matters, legislative matters, those sorts of things.

Q Does the city manager answer to the city council?

A Yes, he does.

Q Can the city council fire the city manager?

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Q Does the city council set the manager's salary?

A Yes.

Q Is it fair to say the city manager serves at the pleasure

of the city council?

A Seven members, yes. He has seven bosses.

Q If a plurality of the city council makes public

statements, is there any law that you're familiar with that

prohibits the city manager from seeing them?

A From seeing -- from doing what? Say the last part of

that.

Q From seeing the public statements.

A No.

MS. ZOE: Objection --

THE WITNESS: I don't know if I understand your

question. Can you restate it?

BY MR. KEZHAYA: 

Q Sure. Is there any law that you're familiar with that

would prohibit the city manager from seeing your article?

A Oh, is that what you're talking about? I'm sorry.

Misunderstood. No, that would not have prohibited him from

seeing it.

Q Did the city manager ever tell you that he is

intentionally avoiding any public statements from any city

council?

1 0 : 2 1 : 2 3 MS. ZOE: Objection. Hearsay.

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THE COURT: What's your response on hearsay?

THE WITNESS: I don't --

THE COURT: Hold on just a minute, please.

MR. KEZHAYA: Your Honor, hearsay has an exception

for a declarant witness who is available for testimony.

Brian Biesemeyer is an identified witness. He can testify to

that.

THE COURT: What's that exception? I'm not aware of

any such exception.

MR. KEZHAYA: If the Court will permit me a

moment -- 

THE COURT: Sure. 

MR. KEZHAYA: It's under Rule 801. I believe sub 3.

The available declarant witness. It's actually a carve-out

from the definition of exception -- of hearsay.

THE COURT: I'm not familiar with any such exception

just because an individual is available to testify that their

out-of-court statements are not hearsay.

Do you have any other response to the hearsay

objection?

MR. KEZHAYA: No further responses, Your Honor.

THE COURT: Objection is sustained.

BY MR. KEZHAYA: 

Q Is there any governmental policy prohibiting -- not

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Scottsdale, preventing city employees from viewing public

statements?

A No.

Q Did Brian Biesemeyer provide you the contents of the

message that would deny The Satanic Temple's invocation?

A I don't recall seeing anything like that, no.

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

No further questions, Your Honor.

THE COURT: All right. Cross-examination.

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

BY MS. ZOE: 

Q Thank you for being here today, Councilmember Klapp. When

were you first elected to the Scottsdale city council?

A Elected in 2008, took office in January 2009.

Q So that means you've been on the council for about 11

years?

A Almost 12 years.

Q In the 12 years you've served on the council, have the

regular session city council meetings typically opened with an

invocation?

A Yes.

Q From your perspective, is that invocation offered on

behalf of the City?

A Yes.

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invocation?

A My personal belief, the invocation, the way it's

structured, it is on behalf of the City. Those who speak

typically wish us well and hope that we don't get in any

fights during the meeting, that sort of thing. It's kind of

an uplifting message for the council.

Q Sure. So it helps focus the council on doing good work

for the community?

A Yes.

Q And do you think that -- that an invocation that

disparages others' beliefs would be consistent with that

purpose?

A No.

Q I'd like to talk a little bit about some of the

invocations you've heard over the last 11 years. First, let

me ask you this: Have you ever been involved in scheduling

the invocations for the --

A No.

Q And in the 11 years you've been listening to invocations

and attending council meetings, have you ever heard an

invocation delivered by a group from Tucson?

A I don't think so.

Q Prescott?

A No.

1 0 : 2 5 : 1 4 Q Payson?

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A No.

Q Are they, in your experience, typically groups that have

some kind of connection to the City?

A Yes.

Q You testified a few minutes ago that you're familiar with

the city charter; correct?

A Um-hmm. Yes.

Q Does the city charter divide the responsibilities between

the city council and the city manager?

A Yes.

Q What types of responsibilities are designated to the city

manager?

A Well, he's responsible for running the -- he's the

operations person. He runs the operations of the City.

Most, but not all, of the departments in the City report to

him. The charter has other officers as well as the city

manager, so he is, in my mind, mainly the operational officer

of the City.

Q Does the city charter permit you as a councilmember to

take action unilaterally?

A No.

Q Does the charter permit you to take action individually?

A No.

Q Is it fair to say that the only way that you are able to

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body of seven?

A Yes.

Q Are you familiar with Arizona's open meetings law?

A Yes.

Q Does Arizona's open meeting law permit you to take action

individually?

A No.

Q You were asked some questions about Exhibit 10. Do you

still have Exhibit 10 in front of you?

A Yes.

Q Do you see at the top of Exhibit 10 it looks like there is

a URL there? Do you see that? Starts

HTTP://www.Scottsdale --

A Oh, yes, I see it.

Q Can you see after ScottsdaleIndependent.com it says

"Opinions"?

A Yes.

Q Why do you think it says "Opinions" right there?

A Because that's exactly what it is. I sent my opinion to

the Independent.

Q So --

A And they publish them as opinions.

Q Is it the opinion of the entire city council?

A No.

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entire city council?

A No.

Q Did any other councilmembers ask you to write an article

on their on behalf?

A No.

Q So would you characterize this as a personal opinion?

A Yes.

Q So you're an elected official. Does that mean you are not

allowed to have personal opinions?

A Yes, I'm allowed to have personal opinions.

Q Are you allowed to express those personal opinions?

A Yes.

Q Through things like writing opinion pieces for the

Scottsdale Independent?

A Yes.

Q So if you would look at the second-to-last paragraph.

Begins "I do not welcome the satanist group."

A Yes.

Q Read it to yourself for a minute and let me know when

you're through.

A Okay.

Q That sentence that begins "if they do come" -- strike

that.

What did you -- what did you say in your opinion

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A I would leave until the message was over.

Q So when you wrote that, did you think that it was still

possible that they might come to deliver the invocation?

A I thought it was possible. That's why I said "if they

come."

Q Would you have written that if you knew that they were not

coming?

A Probably not because it wouldn't have been necessary.

Q Would you have written that if you knew you did something

to cause them not to come?

A No.

Q You were asked -- strike that.

Do you know how you became aware of Mr. Zarzycki's

request to give an invocation to the City of Scottsdale

meeting?

A I really don't remember. It's been, what, almost three

years -- four years ago. I don't recall the progression of

events and how the requests were made. I just know that

there was a request. 

Q Um-hmm. Do you -- you don't remember, you don't recall a

conversation with Brian Biesemeyer regarding --

A No, I'm sorry, I don't remember. But you have to

remember there's a city manager and I talk to him about a lot

of things. And that was four years ago. And we've also had,

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didn't even remember Brian Biesemeyer was the manager during

this time until I was reminded during this case.

THE COURT: Ms. Zoe, we're going to take a break at

this time. We'll take a break for 15 minutes, then resume.

Thank you.

(Recess taken from 10:32 to 10:44.)

THE COURT: You may continue, Ms. Zoe. 

Please be seated.

MS. ZOE: Thank you, Your Honor.

BY MS. ZOE: 

Q Just before the break, Councilwoman Klapp, we were

discussing how long it's been since 2016 when Mr. Zarzycki

made the invocation request.

In 2016, did you know there was going to be a lawsuit

filed some day about the invocation request?

A No.

Q In 2017, did you know that there was going to be a lawsuit

filed?

A No.

Q In 2016, did any of the plaintiffs ever contact you to

discuss the invocation request?

A No.

Q In 2017, did --

A No.

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Have you had any reason at all between 2016 and now

to have to think critically about the conversations you might

have had with Mr. Biesemeyer?

A Yes, I've thought about them, but I don't remember much

about them. Yes.

Q Has either Mr. de Haan or Mr. Kezhaya asked to take your

deposition in this case?

A No.

Q I'm almost done. I have a few final questions for you.

In 2016 -- strike that. 

Do you remember anyone ever showing you the content

of the proposed invocation that was -- that plaintiffs wanted

to deliver?

A No.

Q Do you remember -- do you remember anyone ever describing

for you the beliefs or the viewpoints that plaintiffs purport

to espouse?

A Someone personally describing to me, is that what you're

saying?

Q Do you remember anyone at all describing --

A No.

Q -- for you plaintiffs' --

A No.

Q Did you direct Mr. Biesemeyer to deny plaintiffs' request

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A No.

Q Did you ask Mr. Biesemeyer to deny the request by

Mr. Zarzycki that plaintiffs deliver --

A No, I would not have done that.

MS. ZOE: I have nothing further, Your Honor.

THE COURT: Any redirect?

MR. KEZHAYA: Yes, Your Honor.

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

BY MR. KEZHAYA: 

Q You believed that The Satanic Temple's invocation would

disparage someone's beliefs; is that right?

A Yes, I did believe that.

Q But you didn't know what the content of the invocation

was, did you?

A I never know the content of an invocation.

Q Okay.

You also testified to an open meeting law; is that

right?

A Yes.

Q An open meeting law prohibits discussions about

essentially anything of council importance; is that right?

A You could discuss council items among yourselves as long

as you don't violate the open meeting law, which is no more

than three councilmembers can speak among themselves. If

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to be an open meeting.

Q Okay. How many councilmembers are there again?

A Seven.

Q Earlier when you were testifying about you heard

discussions of councilmembers, how many were discussing?

MS. ZOE: Objection, Your Honor. This exceeds the

scope of my cross-examination.

THE COURT: I think that's right. Was this covered

in cross-examination?

MR. KEZHAYA: Your Honor, the open meeting

minutes -- open meetings law was discussed at some length.

She testified earlier she could not have any discussions, but

prior to that, my direct, she testified that discussions were

had.

THE COURT: Just a minute.

The objection's overruled.

BY MR. KEZHAYA: 

Q How many people were discussing?

A It would have been no more than two others because I

don't break the open meeting law. So I don't talk with three

other councilmembers about anything.

Q Were you talking with these no more than three other

councilmembers?

A Where?

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A Say that again.

Q Were you talking with the no more than three other

councilmembers?

A No more than two other.

Q Pardon me. No more than two other.

A I believe someone mentioned to me that there was some

kind of a request, it could have been just one person. I

don't remember who it was. But I did not have a meeting

among four people about this issue.

Q Do you remember when this was?

A Somewhere around the time I probably wrote this article,

but I don't know when.

Q Did you say anything to this councilperson or group of

councilpeople?

A I don't remember saying much of anything other than I

hadn't heard about it until it was mentioned.

Q Do your opinions -- do your opinions affect your council

determinations in any way?

A This wasn't a council determination, but on other council

issues that actually come before us that we vote on, I vote

according to a lot of information, not just opinion.

Q Okay. But your opinion, does it influence your decision?

A It can.

Q You've been a councilmember since 2008 at least; is that

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A January 2009.

Q Okay. But importantly, since 2013 you have been a

councilmember.

A Yes.

Q At the conclusion of each meeting, are meeting minutes

prepared?

A Yes.

Q Are meeting minutes voted upon?

A At the next meeting, yes. Or some subsequent meeting,

yes.

Q If they're reduced to a final meeting minutes, then

affixed with the seal of the City, are they deemed meeting

minutes, public records?

A If we vote on them and approve them, yes.

MS. ZOE: Objection, Your Honor. This exceeds the

scope of my cross-examination.

THE COURT: Where are you going with this?

MR. KEZHAYA: Earlier she testified that nobody had

ever come in from Mesa, Arizona. We actually have --

MS. ZOE: Objection --

THE COURT: Excuse me.

She said Tucson, Arizona.

THE WITNESS: I was not asked about Mesa.

THE COURT: Hold on. Hold on.

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Mesa.

MR. KEZHAYA: Yes, Your Honor. We'll withdraw that

question, then.

If I may have a moment, Your Honor.

THE COURT: You may.

MR. KEZHAYA: No further questions, Your Honor.

THE COURT: Okay. Thank you. 

You can step down, ma'am.

THE WITNESS: Thank you.

MR. CLAUS: Can I have the one minute again,

Your Honor?

THE COURT: You can do it while we're calling the

next witness, that's fine.

Next witness.

MR. KEZHAYA: Shortt, Your Honor.

THE COURT: Michelle Shortt?

MR. KEZHAYA: Yes.

THE COURT: All right.

THE COURTROOM DEPUTY: State your name for the

record and spell your first and last name.

THE WITNESS: Michelle Shortt. M-I-C-H-E-L-L-E,

S-H-O-R-T-T.

THE COURTROOM DEPUTY: Great. Have a seat right up

here.

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DIRECT EXAMINATION - MICHELLE SHORTT

MICHELLE SHORTT,

called as a witness herein, after having been first duly sworn 

or affirmed, was examined and testified as follows: 

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

BY MR. KEZHAYA: 

Q Please state your name for the record.

A Michelle Shortt.

Q And Michelle, how old are you now?

A 32.

Q And have you identified as a satanist for at least since

2016?

A Yes.

Q When did you first start identifying as a satanist?

A In 2001.

Q How old were you then?

A I was 14.

Q Do you consider satanism to be your religious beliefs?

A Yes.

Q Does satanism take the place that God would in some other

people's beliefs.

A Yes.

Q I notice that you have some pendants across your neck.

Let's start with the lowest-hanging one. What is that?

A This is the Satanic Temple pendant with a Baphomet logo

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Q Does TST stand for The Satanic Temple?

A Yes.

Q And you indicated that it's our Baphomet logo. When you

say "our," are you referring to The Satanic Temple?

A Yes.

Q Does The Satanic Temple have the exclusive use of

Baphomet?

A Of this logo and the Baphomet monument.

Q Okay. But in terms of Baphomet as a concept, what is

Baphomet?

A Baphomet is a symbol that represents the dueling of

opposites. So he has characteristics of man and beast. He

has one hand above and pointing up and one hand pointing down

as above, so below. And the original drawing has breasts and

also a phallus -- a phallic symbol. So it's always trying to

reconcile opposing viewpoints in this one icon.

Q How far back does Baphomet go as a concept?

A It was rumored the Knights Templar had worshiped Baphomet

or some form of Baphomet. So since then. Since the Crusades

it's been known.

Q Were the Knights Templar persecuted for the rumors

surrounding their beliefs in Baphomet?

MR. CLAUS: Objection, Your Honor. Foundation.

Relevance. Calls for undisclosed opinions.

1 0 : 5 5 : 4 6 THE COURT: Overruled.

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THE WITNESS: Yes, they were.

BY MR. KEZHAYA: 

Q As a satanist, do you identify with the persecuted?

A Yes.

Q As a satanist, are you in fact persecuted?

A Yes.

Q Does the Baphomet symbol have religious significance to

you?

A Yes.

Q Is that religious significance sincerely held?

A Yes.

Q You have other symbols across your neck. Tell us about

the next lowest-hanging one.

A Next lowest-hanging one is Pan. He's kind of my personal

Satan. Many people have their own personal type of Satan and

the one I gravitate to is the mythological creature of the

fawn, Pan. He's whimsical. He lives in the forest. It's

kind of -- it relates to what I hold dear.

Q Do you identify Pan as a symbol of religious significance

to you?

A Yes. Not necessarily religious. I mean he's just

another interpretation, I suppose, of what my religion

encompasses.

Q How about the next highest one up.

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Q Okay. First of all, please describe for us what is a

fairy to you?

A Another -- a fairy is another mythological creature that

is usually petite in size with wings.

Q You emphasize they're mythological. Do fairies hold

religious significance to you?

A No.

Q How about the last closest one?

A The last one is another Baphomet pendant.

Q Okay.

You also have tattoos; is that right?

A Yes.

Q You have a number of tattoos.

A Yes.

Q As a general matter, do they hold religious significance

to you?

A Only two.

Q Which are the two?

A They're located behind my ears. I have the sigil of

Lucifer on my left ear and the sulfur cross on my right ear,

which is another satanic symbol.

Q Are both satanic symbols?

A Yes.

Q And they both have religious significance to you?

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Q Was there ever a Satanic Temple of Tucson?

A No.

Q Is there now a Satanic Temple of Arizona?

A Yes.

Q How did Satanic Temple of Arizona come to be?

A The Arizona chapter came to be in 2016 after me and my

co-chap- -- who ended up becoming my co-chapter head,

Stu de Haan, we were given the opportunity to have a chapter

after we had successfully handled the media during the

Phoenix invocation incident. And after handling that

successfully, we were offered chapter status by the

cofounder, Lucien Greaves.

Q Let's establish some background about the Phoenix

incident.

Did you make some kind of a request to Phoenix, or

did anyone on your behalf make a request to Phoenix, for you

to give an invocation before their city council?

A Yes.

Q You described it as an incident. What happened?

A We were -- we asked to give an invocation in Phoenix

which then caused their Phoenix city council to hold

emergency meetings trying to find ways to block us.

They ended with, I believe, having the rules changed

so that chaplains from the fire department and police

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meetings.

Q Did you take the understanding that they were precluding

you because of your religious beliefs?

MR. CLAUS: Objection, Your Honor. Foundation.

Calls for speculation.

THE COURT: Overruled. Called for her

understanding.

THE WITNESS: Yes.

BY MR. KEZHAYA: 

Q Relative to the Scottsdale request, when did the Phoenix

request happen?

A Shortly before. Like maybe a month or two prior.

Q Did you make any other requests for other city councils?

A After Scottsdale?

Q Generally.

A Yes.

Q About how many did you make?

A Sahuarita was definitely one of them.

Q So no less than three?

A Um-hmm.

Q Can you recall more offhand?

A No.

Q How did you come to determine which cities TST would make

this request of?

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DIRECT EXAMINATION - MICHELLE SHORTT

regards to who could give invocations and we couldn't find

anything, so we just picked locations that were near us,

Sahuarita, Phoenix, Scottsdale.

Q Okay. Did The Satanic Temple of Arizona exist in an

informal manner prior to your request to Scottsdale?

A The chapter?

Q Just -- not necessarily as an official chapter, but just

as a group of people.

A Yes.

Q Were you all satanists?

A Yes.

Q Did you all identify with The Satanic Temple's brand of

satanism?

A Yes.

Q Were they from around the state?

A Yes.

Q Did you have anyone from Scottsdale?

A Yes.

Q Why did you choose The Satanic Temple of Arizona instead

of Satanic Temple of Tucson?

A We had members throughout the state. We didn't want to

have splintered groups. We all kind of wanted to work

together and be able to unify the state. And considering

that there's only really two major cities in Arizona --

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DIRECT EXAMINATION - MICHELLE SHORTT

able to have an entire state chapter.

Q Okay. Is there a social stigma attached to being a

self-identified satanist?

A Yes.

Q As a group, do you guys have regular activities?

A Yes.

Q Do you have meetings?

A Yes.

Q Do you do highway cleanups?

A Yes.

Q Do you do charity drives?

A Yes.

Q What kinds of charity drives do you do?

A At the time? Mostly now we just do Menstruatin' with

Satan, which is a campaign that aims to collect menstrual

products for those who are most unfortunate.

Q Do you have any other charity drives?

A No.

Q Okay. Do you have regular meetings of any sort? Groups

of people gathering?

A Yes.

Q What kinds of meetings do you have?

A We have hiking excursions. We have arts and crafts

nights. We have book clubs. We have regular old meetings

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Q Do the nature of these meetings fit with your

understanding of fellowship?

A Yes.

Q Do the nature of these meetings revolve around a shared

concept of satanism?

A Yes.

Q Does satanism have teachings?

A Yes. We have a philosophy.

Q Tell us your understanding of the philosophy of satanism

to you.

A Okay. Well, satanism to me, Satan in particular, he

encompasses all of the values that I personally hold dear.

Such as justice, the pursuit of knowledge, bodily autonomy,

the striving for personal sovereignty. And within that,

within my belief in satanism, are also the seven tenets of

The Satanic Temple to which -- alone, like, they're general

overviews of ideas or nothing specific or dogmatic. It's

just the values we hold dear such as justice, compassion, the

pursuit of knowledge, and to inspire nobility in thought and

action.

Q Okay. With your regular gatherings, do you ever have

religious ceremonies?

A Yes, we do.

Q What kinds of religious ceremonies do you provide for your

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DIRECT EXAMINATION - MICHELLE SHORTT

A Religious ceremonies take form in -- usually in a ritual

type of setting. We symbolically, you know, sometimes have a

script, a dialogue, some sort of action to commemorate an

event, a special occasion, something like that. Or even to,

you know, help ourselves to be able to overcome things in our

lives.

Q Do these ceremonies have religious significance to you

personally?

A Yes.

Q Do these bring you joy --

A Yes.

Q Was this invocation process an effort to spread the word

about your existence?

A Yes.

Q And not just you being Michelle Shortt, but the Satanic

Temple of Arizona.

A That's correct. We wanted to show the world we can be in

the public sphere as anyone else.

Q You have holidays?

A Yes.

Q What are some holidays you observe?

A We like to celebrate Hexennacht, or also known as

Walpurgisnacht. We like to celebrate our own birthdays. To

us, that is the highest of all holidays. We also like to

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DIRECT EXAMINATION - MICHELLE SHORTT

have additional traditions. I personally like Devil's Night

on October 30th.

Q Is satanism a particularly dogmatic religion?

A No.

Q Is it pretty individualistic?

A Yes.

Q Is there a lot of room for individuals to determine what

satanism means to them?

A Yes.

Q Does that make it not a religion to you?

A No.

Q If someone differs from your understanding of satanism,

does that make them less of a satanist?

A No.

Q Want to turn your attention to Scottsdale specifically.

What was your purpose in seeking this invocation?

A To be able to establish TST, The Satanic Temple, as a

presence within the community. And to, you know, participate

in what is supposed to be my right as a citizen within the

community.

Q Was it ever your intention for Scottsdale to shut down

their invocation process?

A No, it wasn't. I had the days planned. I had expected

to be there.

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Who did the reaching out to you?

A For Scottsdale?

Q Specifically for the purpose of --

A Giving an invocation?

Q -- invocations, yes.

A That was Lucien Greaves, our cofounder.

Q And just for sake of clarity, Lucien Greaves is the

cofounder of The Satanic Temple; is that right?

A Yes.

Q Why you?

A Why me?

Q Why did he reach out to you?

MR. CLAUS: Objection, Your Honor. Calls for

speculation. Calls for hearsay.

THE COURT: I think you need to rephrase the

question.

BY MR. KEZHAYA: 

Q What is your understanding for why you personally were

reached out to for the purpose of setting out these

invocations?

MR. CLAUS: Same objection, Your Honor.

THE COURT: Overruled.

MR. CLAUS: Calls for hearsay.

THE COURT: Overruled.

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looking for Arizona residents to do an invocation in Phoenix,

it was how me and Stu de Haan met and I had already had

previous interaction with Lucien Greaves. We had been

introduced through another member. And since Stu had lawyer

expertise, he thought we would be a good pair to be able to

lead this action.

BY MR. KEZHAYA: 

Q And when you say he would be good to lead the action, was

it ever your understanding that he would be the one giving the

invocation?

A No. I would give the invocation.

Q How do you mean lead, then?

A Like us to lead. Like, to be able to take on this

endeavor.

Q At some point someone made contact with the City of

Scottsdale in terms of setting up a request; is that right?

A Yes.

MR. CLAUS: Your Honor, foundation. Calls for

hearsay. Speculation.

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q Do you know who made that request?

A One of our councilmembers at the time. His name is

Jeremy Zarzycki.

1 1 : 1 0 : 4 1 Q Okay. And were you on the phone calls.

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A No.

Q Do you know what happened after those phone calls? Just

the very next step.

A No.

Q Were you scheduled for the purpose of setting up an

invocation at any point?

A Yes.

Q Is it your understanding that you were scheduled because

of that phone call?

A Yes.

Q Okay.

Do you know if any qualifying questions were asked of

The Satanic Temple's substantial connection to Scottsdale?

A They were not.

Q Do you know if any qualifying questions were asked about

the nature of your religious beliefs?

MR. CLAUS: Objection, Your Honor. Foundation.

Calls for hearsay. Speculation.

THE COURT: I think you need to lay foundation for

this.

MR. KEZHAYA: Yes, Judge.

BY MR. KEZHAYA: 

Q Do you remember when the initial invocation was to take

place?

1 1 : 1 1 : 4 3 A Sometime prior to the second date, which was in June.

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Q Was there a need to reschedule that first date?

A Yes.

Q What was the need to reschedule?

A I was out of town at the time. I was doing work in

Texas.

Q And at some point there was a second scheduling; is that

right?

A Yes.

Q Do you know, do you have personal knowledge of any public

outcry that took place because of your granted first request?

A Yes.

Q In fact, you did a public records request at the end of

all of this; is that right?

A Yes.

Q And pursuant to that public records request, you were

provided a series of documents from the City; is that also

right?

A Yes.

Q And the City stated that those are in fact true and

accurate copies of public records; is that right?

A Yes.

Q And they said the same thing during this litigation, too;

is that right?

A Um-hmm. Yes.

1 1 : 1 2 : 5 2 Q Did you review those documents?

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A I did.

Q Did you also hear news articles or news stories about the

nature of your request?

A Yes.

Q Was this a fairly widely published event?

MR. CLAUS: Objection, Your Honor. Leading.

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q Was there a public outcry --

A Yes.

Q -- your first request? 

I'm going to show you a series of documents. 

MR. KEZHAYA: Your Honor, beginning with

Exhibit Number 5.

May I approach, Your Honor?

THE COURT: You may.

THE COURTROOM DEPUTY: Counsel, may I look at it

really quick. Thank you.

BY MR. KEZHAYA: 

Q Do you recognize this document?

A Yes, I do.

Q Was this document provided to you in that packet of public

records responses?

A Yes, it was.

1 1 : 1 4 : 1 6 Q Is that a true and accurate copy of a document that was

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provided to you?

A Yes, it is.

Q Without telling us what this document says, tell us

generally what kind of document this is.

A It is an e-mail correspondence by David Smith, one of the

councilmembers, and he states that he --

MR. CLAUS: Objection --

BY MR. KEZHAYA: 

Q Don't tell us what it says.

A Oh.

Q Did I understand you correctly, you said it's from

David Smith and it's an e-mail?

A Um-hmm.

MR. KEZHAYA: Move to introduce Exhibit 5,

Your Honor.

MR. CLAUS: Objection, Your Honor. Hearsay.

Foundation. Mr. Smith has not been identified as a witness.

The document itself, if you look at Exhibit 5,

Your Honor, is also misleading. It's been redacted, I don't

know by whom, to eliminate material from the exhibit.

Primarily it is hearsay with no foundation.

THE COURT: What's your response on hearsay?

MR. KEZHAYA: I'll start with the hearsay,

Your Honor.

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course and scope of their agency is a statement by party

opponent and it's not hearsay. I'd cite the Court to

Rule 801, I believe it's (d)(3). It might be (d)(4). Sorry.

801(d)(2) sub (D).

MR. CLAUS: But that is why there's no foundation.

There is no foundation that this e-mail exchange is within

the course and scope of anybody's employment or agency on

behalf of the City. There is no email address in the e-mail.

There is no foundation laid to establish that 802(d)(2)(D)

applies in this case, Your Honor. They have not taken the

deposition of Mr. Smith. They have not taken the deposition

of the recipient. There is no indication that this is a

statement within an agency relationship so that it falls

within 802(d)(2)(D). It is rank hearsay offered to prove the

truth of the matter asserted therein.

THE COURT: What is -- what is the basis for the

redaction? Or who did the redacting?

MR. KEZHAYA: Your Honor, Stu de Haan did the

redaction for purposes of privacy. It was his understanding

it was an obligation on his part to redact e-mail addresses

because it identifies who it came from.

THE COURT: Do you have the unredacted document?

MR. KEZHAYA: Not a copy of it, Your Honor.

However, we did attach an unredacted copy in responses to our

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THE COURT: But you don't have an unredacted copy in

the courtroom at this time?

MR. KEZHAYA: We do not have a paper copy,

Your Honor. However, I could show Ms. Shortt a .pdf copy on

my tablet.

THE COURT: Well, we're talking about exhibits that

are going to come in. Obviously a .pdf copy cannot come in.

What is the evidence that this e-mail -- there's actually two

of them, it looks like -- these e-mails were written by

Mr. Smith in the scope of his role as an agent of the City of

Scottsdale?

MR. KEZHAYA: Your Honor, the contents of the

message is clear that it's a constituent communicating to a

representative their displeasure with The Satanic Temple's

invocation.

Previously it's been disclosed that all

councilmembers had access to a single email address, and

Ms. Shortt just indicated that, both, number one, they were

produced through public records responses and, number two,

the -- Mr. Smith was a councilmember.

There is an adequate showing, which is a very

minimal threshold, that it's an authentic document that is a

public record. Whether David Smith was acting within the

course and scope of his agency I believe is going to the

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communicating with a representative through their public

e-mails.

THE COURT: Well, my concern is I can't tell from

looking at this document whether Mr. Smith was writing from a

Scottsdale e-mail address or whether this was his personal

communication with this individual who hasn't been

identified. Because of that, I can't tell if it was done in

his official capacity as an agent of the City.

MR. KEZHAYA: Yes, Your Honor.

If we are able to produce the unredacted copy,

perhaps after the lunch break, would this be a matter that

gets re-taken up?

THE COURT: Well, I'll be happy to look at it then.

It seems to me at this point, looking just at this document,

which is all I have in front of me, I can't tell if it falls

within 801(d)(2)(D) because I can't confirm it was by

Mr. Smith in the course of his role as an agent for the City.

MR. KEZHAYA: Yes, Your Honor.

If I could supplement my response to the hearsay

objection. At the bottom right is an identification of Bates

stamping. We do having something that could refresh the

witness's recollection on documents that came from the Bates

stamping.

THE COURT: How does that help us determine the role

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MR. KEZHAYA: The discovery responses specifically

identify they're public records. And --

THE COURT: From the defendant?

MR. KEZHAYA: From the City, yes.

THE COURT: Were these identified by the City as

public records, Mr. Claus?

MR. CLAUS: I do not know, Your Honor, if they were

identified as public records. I know that they were produced

as part of discovery. Or these actually were not produced as

part of discovery, they were produced -- they were produced

as part of discovery in this case. But that does not mean --

THE COURT: So they were produced?

MR. CLAUS: They were produced as part of discovery

in the case.

THE COURT: All right, Mr. --

MR. CLAUS: If I may, Your Honor. The discovery

request did not ask for e-mails sent in official capacity.

It simply said e-mails sent by anybody.

THE COURT: Do you have the discovery response that

identifies them?

MR. KEZHAYA: Yes, Your Honor.

THE COURT: What does it say about the documents?

MR. KEZHAYA: This is in response to the Court's

mandatory initial discovery requests.

1 1 : 2 0 : 4 7 Response to item number 3 -- may I summarize,

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Your Honor, or do you want me to read it verbatim?

THE COURT: Why don't you just bring it forward.

Let's mark it as an exhibit so it's in the record, and I'll

look at it.

MR. KEZHAYA: Yes.

THE COURTROOM DEPUTY: Your Honor, this will be

Exhibit 19.

(Exhibit 19 marked for identification.)

MR. KEZHAYA: I believe it's pages 6 to 7,

Your Honor, in response to item number 3.

THE COURT: Well, what it says is that these are

documents that are relevant to the case, and then the actual

statement says "in response to public records request." Is

that what you're referring to?

MR. KEZHAYA: Yes, Your Honor. The City can't

possibly be holding Mr. Smith's personal e-mail account.

They would only producing these in pursuit of a public

records request. That was my --

THE COURT: Do you have evidence of that fact?

MR. KEZHAYA: She testified earlier she made a

public records request.

THE COURT: I understand she made a public records

request. Did you collect any evidence in discovery as to how

the City collects or maintains e-mails? Or what city

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MR. KEZHAYA: We have testimony earlier, Your Honor,

from that particular e-mail.

THE COURT: I understand that, but that's not on

this document. That's not on Exhibit 5.

MR. KEZHAYA: We have no testimony of a records

custodian of the City that identifies which exact documents

are collected and maintained in the course and scope of

records maintenance.

THE COURT: All right. I'm not going to admit

Exhibit 5 at this time. If you want to present an unredacted

version, I'm happy to look at it and see if I think that

affects its admissibility.

MR. KEZHAYA: Yes, Your Honor.

MR. CLAUS: Your Honor, just a housekeeping matter.

May I ask, is Exhibit 19 now in evidence?

THE COURT: No. It wasn't admitted, it was just

part of the dialogue we just had.

MR. CLAUS: Thank you, I just wanted to make sure.

Thank you.

BY MR. KEZHAYA: 

Q At some point you rescheduled; is that right?

A Yes.

Q When were you rescheduled to?

A July? I think I misspoke when I said June earlier.

1 1 : 2 4 : 0 0 Q Okay. So be it June or July, at some point you were

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notified that you would not be permitted to give this

invocation; is that right?

A Yes.

Q Hand you a document that has been previously marked as

Exhibit 7.

MR. KEZHAYA: May I approach, Your Honor?

THE COURT: You may.

BY MR. KEZHAYA: 

Q Do you recognize this document?

A Yes.

Q Without telling us what the document says, tell us

generally what kind of a document is it.

A It's an e-mail confirming our scheduled date.

Q And is it an e-mail from someone with an @scottsdaleaz.gov

address?

A Yes.

Q Okay. 

MR. KEZHAYA: Move to introduce Exhibit 7,

Your Honor.

MR. CLAUS: I believe it's been stipulated into

evidence, Your Honor.

THE COURT: Is there any objection?

MR. CLAUS: There is no objection. We had

stipulated --

1 1 : 2 5 : 2 4 THE COURT: All right. It's admitted.

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(Exhibit 7 admitted.)

BY MR. KEZHAYA: 

Q And is that the e-mail that indicates when your next

rescheduling would be?

A Pardon?

Q Is that the e-mail that identifies this is when your next

invocation would be?

A Yes.

Q And what was the date for that?

A Either July 5th or 6th. I think we settled on the 6th.

Q Okay.

I'm going to show you another document, Exhibit 12.

MR. KEZHAYA: May I approach?

THE COURT: You may.

MR. KEZHAYA: Your Honor, 12 has also been

stipulated to.

THE COURT: Are you moving it into evidence?

MR. KEZHAYA: Yes, Your Honor.

THE COURT: Any objection?

MR. CLAUS: None, Your Honor.

THE COURT: 12 is admitted.

(Exhibit 12 admitted.)

BY MR. KEZHAYA: 

Q That e-mail declines your invocation; is that right?

1 1 : 2 6 : 3 8 A Yes.

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Q What was the reason given for why you were being declined?

A There wasn't any.

Q There was no reason at all?

A Oh. That they're not going to deviate from their

long-standing practice.

Q I notice you laughed while saying that. Why do you find

that funny?

A Because they had not asked us any questions to establish

whether or not we had substantial ties, as they claimed that

we lacked.

Q Did you volunteer any information about your substantial

ties?

A Had they asked, I would have gladly given it.

Q Had they asked, would you have volunteered identifying

information about the Scottsdale resident who is a satanist?

A He would have taken up the mantel had I been denied.

Q Was it your understanding that there was no such policy

requiring a substantial connection to the Scottsdale community

when you made this request?

A Yes.

Q And did they ever give you any indication that you were

mistaken and in fact prior to this e-mail, at least, there was

some kind of a policy?

A No.

1 1 : 2 8 : 0 6 Q When this was e-mail written?

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A May 23rd, 2016.

Q And this is actually of importance to the case. At what

time was this e-mail written?

A 3:29 p.m.

Q Does this e-mail make any effort to identify what a

substantial connection to Scottsdale community means?

A No.

Q Have you been participating in this litigation as an

active participant?

A I don't understand the question.

Q Have you received documents that have been filed in this

litigation?

A Yes.

Q Have you reviewed those documents?

A Yes.

Q I'm going; to draw your attention to Exhibit 7.

MR. KEZHAYA: May I approach, Your Honor?

THE COURT: You may.

MR. KEZHAYA: 17. This is Number 17.

BY MR. KEZHAYA: 

Q Do you recognize this document?

A Yes.

Q Was this a document that was filed by the City?

A Yes.

1 1 : 2 9 : 5 0 Q What is the title of this document?

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A I don't know.

Q You may find it on the first page. Should be in bold.

A It says Scottsdale City Attorney's Office, United States

District Court, District of Arizona, Defendant's Motion to

Dismiss.

Q Okay.

Do I understand you correctly that it is the brief in

support of defendant's motion to dismiss?

A Yes.

MR. KEZHAYA: Move to introduce Exhibit 17,

Your Honor.

MR. CLAUS: Your Honor, it's hearsay. It is legal

arguments of counsel which are not as a matter of law

evidence.

There's no foundation for the introduction of

Exhibit 17 as an exhibit. There are no identified statements

by any defendant in -- any factual statements by any

defendant in Exhibit 17.

And to the extent that it has any probative value

whatsoever, that probative value is outweighed by the clear

fact that it is argumentative, and the motion to dismiss does

not make a fact of consequence in this matter more or less

likely, so it is also irrelevant.

THE COURT: Objection is overruled. Exhibit 17 is

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(Exhibit 17 admitted.)

BY MR. KEZHAYA: 

Q I want you to turn to page 11 of this exhibit.

Page 9 through 10 sheds some light on what, at least

as of June of 2018, the City considered to be a substantial

connection; is that fair to say?

A Yes.

Q Could you please read the full sentence spanning from 9

through 11.

MR. CLAUS: Objection, Your Honor. Document speaks

for itself.

THE COURT: Overruled.

THE WITNESS: "Here plaintiffs do not and cannot

allege that they are similarly situated to the leaders of

local Scottsdale-based faith groups who have given

invocations in front of the city council as permitted by the

City's policy."

BY MR. KEZHAYA: 

Q That statement indicates the City's position is you have

to be Scottsdale-based to have a substantial connection?

MR. CLAUS: Objection. Leading.

BY MR. KEZHAYA: 

Q Is that fair to say?

THE COURT: Sustained. Leading.

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BY MR. KEZHAYA: 

Q How would you describe that? How would you characterize

the statement?

MR. CLAUS: Irrelevant. Her characterization is

irrelevant, Your Honor.

THE COURT: Overruled.

THE WITNESS: My understanding is that those who ask

to give invocations, that their faith-based groups must be

based in Scottsdale.

BY MR. KEZHAYA: 

Q This usage of the word "based," do you infer from that a

requirement of a physical location?

MR. CLAUS: Objection, Your Honor. Relevance. Her

inference and foundation.

THE COURT: Sustained.

BY MR. KEZHAYA: 

Q You personally are familiar with that -- first of all, you

weren't in the room when Mayor Lane testified, did you?

A No.

Q Are you aware of a campaign flyer from Mayor Lane?

A Yes.

MR. KEZHAYA: Your Honor, can we have Exhibit 13.

BY MR. KEZHAYA: 

Q Exhibit 13 indicates that he stopped -- sorry. Actually,

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Court.

A Stopped so-called, quote, unquote, satanists from mocking

City Hall traditions with a, quote, unquote, prayer.

Q Was it ever your intention to mock Scottsdale City Hall

traditions?

A No.

Q Do you find it offensive to your religious beliefs --

A Yes.

Q -- that they would describe your prayer as invo- -- or as

a mockery?

A Yes.

Q Do you find it sensitive -- do you find it offensive that

he puts quotes around "satanists" and "prayer"?

A Yes.

Q Do you find that belittles your religious beliefs?

A Yes.

Q Does that make you feel like you are less than --

A Yes.

Q -- in the eyes of the city government?

A Yes.

Q Do you believe this flyer would make other satanists feel

like they're less than?

MR. CLAUS: Objection, Your Honor. Foundation.

Calls for speculation.

1 1 : 3 5 : 0 3 THE COURT: Overruled.

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THE WITNESS: Yes.

BY MR. KEZHAYA: 

Q Were you also personally familiar with Suzanne Klapp's

public statement?

A Yes.

Q Do you remember it well enough that you don't need to see

it?

A I remember it.

Q The part where she says "I do not welcome a satanist

group," does that offend your religious sentiments?

A Yes.

Q Does that make you feel you are less than in the eyes of

city government?

A Yes.

Q Do you think that would make a Scottsdale satanist feel

like they're less than to the city government?

MR. CLAUS: Foundation. Calls for speculation.

THE COURT: Overruled.

THE WITNESS: Yes.

BY MR. KEZHAYA: 

Q In any of these materials, is the word "Tucson" ever

mentioned?

A No.

Q Did your understanding of Klapp's statement relate to your

1 1 : 3 6 : 0 1 physical location or did it relate to your religious beliefs?

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A It related to my beliefs as a satanist.

Q Earlier we talked about the City appearing to take the

position that you have to be Scottsdale-based. Do you

remember that?

A Yes.

Q Have you gone through meeting minutes of the City of

Scottsdale?

A Yes.

Q I'm going to show you a document that's been previously

identified as Exhibit 14.

MR. KEZHAYA: May I approach, Your Honor?

THE COURT: You may.

BY MR. KEZHAYA: 

Q Without telling us what each of these pages of this

document says, could you tell us generally what are they?

A They're the meeting minutes of Scottsdale city council

spanning -- spanning from 2013 to 2018.

Q Do these meeting minutes bear the seal of the city

council?

A Yes.

MR. KEZHAYA: Introduce Exhibit 15, Your Honor.

Pardon me. 14, Your Honor.

MR. CLAUS: Objection, Your Honor, for manifold

reasons. First, the witness is incorrect. As the Court can

1 1 : 3 7 : 5 8 see from the top, I'll just use page 1 of Exhibit 14 as an

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example. It is not meeting minutes, it says "summarized

minutes." If the Court looks at the note at the bottom of

page 1, bottom of page 3, bottom of page 5, every one of

these documents has the same note that these are not -- that

these summarized minutes of the city council meeting are not

verbatim transcripts.

Secondly, Your Honor --

THE COURT: Well, let me interrupt you. Why does

that make this inadmissible? Summaries are admissible.

MR. CLAUS: Summaries are admissible if the

documents themselves are made available --

THE COURT: Well, let me restate that. This isn't a

summary under 1006. This is a document that purports to

summarize city council meetings. There's nothing about that

that makes it inadmissible.

MR. CLAUS: Except for the fact it's not,

Your Honor. If you look at the second page of Exhibit 14,

you see how it says page 2 of 12? And then if you look at

the next page, pages 3 through 12 are missing.

That same -- so when the testimony was that the

witness's understanding -- page 4, for instance, has one

page. Page 5 has one page. Page 6 has one page. These are

not either the summarized minutes or the minutes of the City

of Scottsdale. These are selections that the plaintiff

1 1 : 3 9 : 2 5 picked and choosed -- chose, rather. There's no foundation

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from any witness as to how they were picked, how they were

chosen, why they were chosen, how they were selected.

There's no foundation.

THE COURT: I understand that point. What were your

other objections?

MR. CLAUS: To the extent that they -- that it is

offered as a monolithic exhibit, Your Honor, it is confusing.

To the extent it refers to statements, then those statements

are hearsay.

THE COURT: What statements are you referring to?

MR. CLAUS: Any statements contained in the -- I can

just pick one from the first page. I don't know if it's

being offered to prove the truth of this, but "In inaugural

remarks Mayor Lane thanked his wife Joanne, his family

members, and Scottsdale citizens for their support." There

are statements referred to throughout these picked and chosen

excerpts from summarized city council minutes.

But that's the point, Your Honor. Because it's

being offered as a monolithic exhibit, there is no

opportunity for me to object to discrete statements within

each of the chosen excerpts as hearsay.

THE COURT: All right.

Your response?

MR. KEZHAYA: Your Honor. None of those statements

1 1 : 4 0 : 5 0 are being used to prove the truth of the matter asserted.

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The only portion of these exhibits that we care about are the

actually stipulated to part which says these are who, where

they came from, and when they gave invocations.

THE COURT: What do you mean stipulated part?

MR. KEZHAYA: Your Honor, there was a stipulation in

the pretrial order that these meetings minutes accurately

reflect the invokers on various dates all reflected on these

documents.

THE COURT: Is that correct?

MR. CLAUS: The -- the pretrial order stated that

the defendants agree that the identity of the invokers is

accurately reflected in Exhibit 14, but maintained all of the

objections that I just stated.

THE COURT: Do you have any objection to this

exhibit being admitted solely for that purpose?

MR. CLAUS: To the extent it is misleading and

incomplete, yes, Your Honor, we do.

THE COURT: No. Solely for the purpose of showing

who gave invocations on particular dates. Do you object to

it being admitted for that purpose, to which I think you just

said you stipulated.

MR. CLAUS: We do not object to that other than the

objection that we preserved in the joint pretrial order that

the dates are so attenuated in time as to be not relevant

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postdates any request that is at issue in this case.

THE COURT: All right. I'm going to overrule the

objection as to dates. I'm going to permit -- pardon me,

admit Exhibit 14 solely for the purpose of identifying who

gave invocations on particular dates. And I won't consider

it for any other purpose and I won't consider any other

contents of Exhibit 14.

MR. KEZHAYA: Your Honor, there is one other matter.

It's not just the name of the individual who gave the

invocation, but who they gave it on behalf of. The last

part --

THE COURT: By name I meant who they are and who

they're affiliated with, as it states. It's admitted for

that purpose only.

MR. KEZHAYA: Okay. 

(Exhibit 14 admitted.)

BY MR. KEZHAYA: 

Q Did you go through this document in some detail?

A Yes.

Q Did you find a number of instances where people came in

from outside city limits of Scottsdale? 

A We did. We found 93 instances.

Q Okay. In addition to the meeting minutes, did you rely on

some handwritten city notes for who gave invocations and when?

1 1 : 4 3 : 1 3 A Yes.

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Q I'm going to draw your attention to Exhibit 15.

MR. KEZHAYA: May I approach, Your Honor?

THE COURT: You may.

BY MR. KEZHAYA: 

Q Have you reviewed Exhibit 15?

A Yes.

Q Do you recognize that document?

A Yes.

Q Is that something that you received from the City about

this litigation?

A Yes.

Q That was something that was attached to their motion for

summary judgment.

A Yes.

MR. KEZHAYA: Move to introduce Exhibit 15,

Your Honor.

MR. CLAUS: Your Honor, it is hearsay. There has

been no foundation laid as to who prepared these handwritten

pages going back from 2018 to 2018, and the attenuation in

time makes certain portions of Exhibit 15 irrelevant.

THE COURT: Was this attached to your motion for

summary judgment?

MR. CLAUS: I do not know, Your Honor.

THE COURT: Well, somebody at your table must know.

1 1 : 4 4 : 3 8 MR. CLAUS: I'm sorry?

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THE COURT: Somebody at your table must know. I was

going to ask -- oh, wait a minute, you weren't counsel at the

time, were you?

MR. CLAUS: We were not, Your Honor, so it will just

take a second to check and see.

THE COURT: I think I'll accept counsel's avowal

that it was.

If it was, my question is why is this not an

adoptive admission within Rule 801?

MR. CLAUS: If you recall, Your Honor, there was a

conference -- this I do know about even though I wasn't

counsel at the time. There was a conference about not having

statements of fact. It was attached -- if it was attached,

it was attached just as an exhibit without any foundation

laid by any declarant in a declaration or affidavit.

THE COURT: My question is, if the City of

Scottsdale asserted this in its motion for summary judgment

as a document reflecting who gave invocations on what dates,

why isn't that act an adoptive admission?

MR. CLAUS: I don't know that is what was -- that's

the thing, Your Honor, I don't -- the avowal wasn't what

the -- that -- what Your Honor just stated what was stated in

the motion for summary judgment. Your Honor, the avowal by

counsel --

1 1 : 4 5 : 3 9 THE COURT: Let's do this, just to save some time.

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Why don't you both look at it over the lunch hour. When we

come back at 1 o'clock, what I'll be interested in is exactly

how it was used in the motion for summary judgment.

Do you have arguments other than adoptive admission?

MR. KEZHAYA: No, Your Honor. Our position is once

they submitted it, attached to their motion, it says

"respectfully submitted by the City" this is now a statement

by opposing party, unless they're going to tell us they were

lying to the Court --

THE COURT: Well, I think it's -- it wasn't made by

the lawyers who submitted it, so it would be an adoptive

admission. So look at it over the lunch hour and then let's

talk at 1 o'clock about how it was used in the motion for

summary judgment.

So let's go on without discussing this until we get

to that point.

MR. KEZHAYA: Yes, Your Honor.

The part that may impact the next part is we have a

demonstrative exhibit summarizing these two in addition to

some testimony.

THE COURT: Why don't we cover -- I assume you've

got more than ten minutes left with Ms. Shortt?

MR. KEZHAYA: I believe we can cover the testimony

part without addressing anything else, Your Honor, with

1 1 : 4 6 : 3 8 respect to this Exhibit 15.

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THE COURT: All right. Okay.

BY MR. KEZHAYA: 

Q Michelle, did you go through a series of city notes from

the City?

A Yes.

Q Did you go through those meetings minutes?

A Yes.

Q Did you use those two to prepare a list --

I need Exhibit 6. 

Did you use those two to prepare a list of people who

came in from outside Scottsdale city limits?

A Yes.

Q Neither those city notes nor the meeting minutes gave you

addresses; right?

A They didn't.

Q How did you come to find whether something was in or

outside of the city limits of Scottsdale?

A I Google mapped it.

Q Is Google mapping something you would use in your regular

lay course of business?

A Yes.

Q Do you find it to be a reliable source of information for

where organizations are physically located?

A Yes.

1 1 : 4 8 : 0 4 MR. KEZHAYA: May I approach, Your Honor?

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THE COURT: You may.

BY MR. KEZHAYA: 

Q I'm going to show you Exhibit 16.

I'll caution you, don't look at anything before the

year 2013, please.

A Come again?

Q Nothing before 2013, don't look at it.

Did you find an instance on February 26th, 2013, a

Pastor Curt whose last name I can't pronounce, unfortunately,

from Paradise Christian Church --

A Yes.

Q -- in the meeting minutes?

A Yes.

Q Did you Google Paradise Christian Church?

A I did.

Q Did that address reflect a Phoenix address?

A Yes.

Q Is the City of Phoenix the same thing as the City of

Scottsdale?

A No.

Q Would something with a Phoenix address necessarily be

outside of the city limits of Scottsdale?

A Yes.

Q Turning your attention to March 2013. Barry Kenyon

1 1 : 4 9 : 2 9 purportedly came from Church of Jesus Christ of Latter Day

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Saints in the meeting minutes; is that right?

A Yes.

Q Did you find a Scottsdale address for any Church of Jesus

Christ Latter Day Saints?

A No.

Q In May of 2013 you found Pastor Cone of One Life Christian

Church in the meeting minutes. Do you remember that? 

A Yes. 

Q Did that reflect a Mesa, Arizona, address?

A Yes.

Q Is Mesa inside city limits of Scottsdale?

A No.

Q On May of 2013, May 14 specifically, did you find an

instance again of Pinnacle Church from Pastor Caschler, I

believe? Gaschler.

A Yes.

Q And I may have misspoken earlier. That was Paradise

Church I was thinking earlier. This is Pinnacle. 

Was Pinnacle located in Tempe, Arizona?

MR. CLAUS: Objection, Your Honor. Foundation.

Misleading. If I may voir dire the witness on this?

THE COURT: You certainly can cross-examination --

cross-examine her. What is the foundation objection?

MR. CLAUS: She's reading from a summary that is

1 1 : 5 0 : 4 1 patently misleading. She's taking -- Pinnacle Church,

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Your Honor, I will avow, was located at 2400 North Hayden

Road in Scottsdale, Arizona, as of May 2013. Every time

Pinnacle Church gave an invocation it was located in

Scottsdale, Arizona. She is taking information she gleaned

from Google in 2019 or 2020 and applying it in a misleading

way to Exhibit 16.

THE COURT: I think that is absolutely fair

cross-examination and argument. But I'm going to overrule

the objection. She can testify that that's what she

concluded. You can point out what's wrong with it on

cross-examination.

MR. KEZHAYA: May I continue, Your Honor?

THE COURT: Yes.

BY MR. KEZHAYA: 

Q In October of 2013, did Dr. David Johnson give an

invocation according to meetings minutes?

A Yes.

Q Did he also come out of Phoenix, Arizona?

A Yes.

Q And in December of 2013, did a Pastor Cone come from One

Life Christian Church?

A Yes.

Q And was that, according to your Google research, in Mesa,

Arizona?

1 1 : 5 1 : 5 2 A Yes.

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Q On March of 2014, someone from East Valley Mayors Prayer

Breakfast Committee gave an invocation?

A Yes.

Q Could you find an address for that?

A No.

Q In June of 2014, a Pastor Hartke came from Trinity

Christian Fellowship Church, according to the meeting minutes;

is that right?

A Yes.

Q He came from Chandler, Arizona; right?

A Yes.

Q In August of 2014, Debbie DiCarlo came from Catholic

Charities out of Phoenix, Arizona; is that right?

A Yes.

Q On August 7, 2014, a Father Reese came from Brophy

Preparatory Academy in Phoenix; is that right?

A Yes.

Q On October 21, 2014, a Pastor Anderson came from Living

Word Bible Church out of Mesa, Arizona; is that right?

A Yes.

Q On February 3rd, Chaplain Ben Skelton came from Pinnacle

Church address at Tempe, Arizona; is that right?

A Yes.

MR. CLAUS: Objection, Your Honor. There is no

1 1 : 5 3 : 1 4 foundation that this address existed in 2014 for this

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organization. There is no foundation any of these addresses

existed for these organizations on the date the invocations

were given.

MR. KEZHAYA: Your Honor, may I respond to that?

THE COURT: Yes, you may.

MR. KEZHAYA: The meeting minutes we've stipulated

are the names, origins, and dates and where they came from.

THE COURT: I think his point is she didn't do the

research until years later as to where they were located,

with a Google search tool years later.

Right?

MR. CLAUS: Yes, Your Honor.

THE COURT: I understand the point. I think it's

fair argument in cross-examination, but I don't think it

makes the testimony inadmissible. So I'm going to overrule

the objection.

BY MR. KEZHAYA: 

Q On February 17th, 2015, Dr. David Joynt came from Valley

Presbyterian Church in Paradise Valley, Arizona; right?

A Yes.

MR. CLAUS: I'm going to object again on another

basis. Exhibit 16 was never disclosed to us during this case

and this information was not disclosed to us during this

case.

1 1 : 5 4 : 2 5 THE COURT: Is that correct?

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MR. KEZHAYA: Your Honor, we provided it to him in

the exhibit, the binder, on December 16th. However, it's a

summary of the prior exhibits, other than the Google, which

she could testify to just as easily without the document.

THE COURT: Is it identified in the final pretrial

order? 

MR. KEZHAYA: Yes, Your Honor. 

MR. CLAUS: It is identified in the final pretrial

order but never disclosed as part of the disclosure

obligations of plaintiffs in this case. None of the

information that the witness is testifying to was disclosed

as part of this --

THE COURT: Is that objection preserved in the final

pretrial order?

MR. CLAUS: It is, Your Honor.

THE COURT: Would you show me, please.

MR. CLAUS: Yes, I will, Your Honor.

It is Exhibit A -- sorry. It is Exhibit A to the

joint pretrial order. Page 6. Should be self-explanatory

from there, Your Honor. This is Exhibit 16.

THE COURT: Okay. Let me read that.

Mr. Kezhaya, what is your response to the objection

that the information contained in Exhibit 16 was never

disclosed during the course of discovery?

1 1 : 5 6 : 0 3 MR. KEZHAYA: Your Honor, this document did not

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DIRECT EXAMINATION - MICHELLE SHORTT

exist until after the pretrial -- after the first discovery

deadline. It didn't actually exist until December 16. We

produced it as quickly as we could, it being the same day.

Actually, it may not have been exactly December 16, it may

have been a couple days before. But it was produced as

quickly as we had finished it. A partial copy of this same

exhibit is actually attached to our complaint, which is,

similarly, we had produced it while we were drafting the

complaint.

THE COURT: All right. I'm going to think about

that objection during the lunch break. Let's go ahead for

another two minutes.

MR. KEZHAYA: Yes, Your Honor.

BY MR. KEZHAYA: 

Q Michelle, is it fair to say that about half of the

instances that someone came in to Scottsdale and gave an

invocation, they came in from outside of the city limits of

Scottsdale?

MR. CLAUS: Objection. Foundation. Disclosure.

THE COURT: Overruled.

THE WITNESS: Yes.

BY MR. KEZHAYA: 

Q You testified early earlier you found a total of 93

instances of people coming in from outside the city limits of

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A Yes.

Q Did the vast majority of these non-Scottsdale invokers

come in from the Phoenix metro area?

A Many of them did, yes.

Q Do you have a number of members in the Phoenix metro area?

A Yes.

MR. CLAUS: Foundation as to time, Your Honor.

BY MR. KEZHAYA: 

Q At the time in question --

THE COURT: Overruled --

BY MR. KEZHAYA: 

Q At the time in question, did you have a number of Phoenix

metro area --

THE COURT: What is the time in question?

MR. KEZHAYA: Thank you, Your Honor.

BY MR. KEZHAYA: 

Q Around February of 2016, did you have a number of Phoenix

metro area satanists?

A Yes.

Q Anywhere in Ms. Kuester's e-mail denying the invocation

did it indicate anything about the Phoenix metro area?

A No.

MR. KEZHAYA: Your Honor, I know this is

time-consuming, but under Rule 1006 we have to establish the

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testimony. So this may take a little longer than we would

otherwise hope it would.

THE COURT: What are you proposing to do?

MR. KEZHAYA: Nothing, Your Honor. I'm just giving

the Court a heads-up that this may take a little longer than

we were otherwise expecting. 

THE COURT: What may? I'm not understanding what

you're saying.

MR. KEZHAYA: The fact of establishing each of these

instances. So my point is it's going to extend through the

lunch hour -- after the lunch hour, that is.

THE COURT: Well, you can use your time as you

choose, but the clock is still running.

We are at the noon hour. So we will break. We will

resume at 1 o'clock and be in adjournment until then. Thank

you.

(Recess taken from 11:59 to 1:00.)

THE COURT: Counsel, you had a matter you wanted to

raise?

MR. CLAUS: Yes, Your Honor. I wanted to renew and

amplify our objection both to Exhibit 16 but also to this

witness is testifying about Exhibit 16.

As you likely perceived during the examination,

there was a level of frustration and being caught unawares,

1 3 : 0 0 : 2 3 and if you recall how this morning started. Ms. Shortt was

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not disclosed, and if you look -- you have the pretrial order

in front of you, Your Honor, on page 20, going to page 21,

Ms. Shortt was not disclosed or identified as a witness who

would testify at the trial of this matter as to the

preparation of any summary, that she engaged in the

preparation of any summary, that she did any post invocation

Google searches, that she created Exhibit 16, or even knew

about Exhibit 16.

THE COURT: Let me interrupt you for a minute,

Mr. Claus. Here's an issue I'm wrestling with, which

concerns Exhibit 16, concerns this argument, concerns the

summary of the minutes that was admitted into evidence that I

think is Exhibit 14.

The City has readily admitted throughout this

litigation that organizations from outside of Scottsdale were

allowed to give invocations. We had a discussion about that

at the summary judgment argument and counsel for the City of

Scottsdale said that she absolutely agreed that organizations

from outside the City could give invocations if they had some

substantial connections to the City. And the specific

organization we talked about at the summary judgment hearing

was Brophy Prep, which is miles from the City of Scottsdale.

I assume the City isn't changing its position for

purposes of this trial and asserting that every organization

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And if it's not, I'm having trouble understanding why we're

having this big fight over the fact that the minutes list

organizations outside of the City of Scottsdale in the

Phoenix metropolitan area when that's really not been a

matter in dispute. And that's really all the evidence has

shown thus far that's been objected to.

Would you address that?

MR. CLAUS: Yes, I will, Your Honor.

First, the minutes do not reflect that any

organization is located outside of the City of Scottsdale.

And the minutes do not reflect the physical address of the

City of Scottsdale. The plaintiffs are trying to -- the

plaintiffs have characterized 93 organizations outside of the

City of Scottsdale as having given an invocation or being

invited to give an invocation.

That is not something the City of Scottsdale argued,

that is not something the City of Scottsdale stipulated to,

and that is the point, Your Honor. That is patently

misleading and it is not information gleaned from the

minutes. It is not information gleaned from the information

we stipulated to. And it is not information that was

disclosed as something that was going to be testified to by

any witness in this matter.

And I'll tell you why it prejudices --

1 3 : 0 3 : 3 2 THE COURT: Please. I mean, why are you concerned

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about it if you've agreed all along organizations from

outside of Scottsdale can say invocations?

MR. CLAUS: Because if the plaintiffs would have

taken the position and disclosed some witness would testify

that that witness determined that 93 organizations outside of

the City of Scottsdale had been invited to give an invocation

while fact discovery was still alive, then we would have been

given the opportunity to take a third-party deposition, for

instance, of Pastor Robert Gaschler, who gave multiple

invocations on behalf of Pinnacle Church that was located in

the City of Scottsdale.

We could have taken a third-party deposition of

Barry Kenyon, who is both a resident of Scottsdale and could

have established the fallacy that the fact that no temple is

located in the City of Scottsdale does not mean the LDS

Church does not have meeting houses and chapels in the City

of Scottsdale.

And here's the other thing, Your Honor. If they

would have said we're going to have a witness testify that

something called the Interfaith Council of Arizona was

invited to give invocations, then we could have done

discovery and we could have taken the deposition to say that

that is false and misleading because the Interfaith Council

of Arizona was never invited to do anything. That is

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Interfaith Council of Arizona, which is located or was

located in Scottsdale, it doesn't exist anymore, was invited

to give invocations.

Here's the point, Your Honor. This isn't -- I

have -- if you remember this morning, this morning started

with me telling the Court we weren't being given information

that we should have as a courtesy. When we were delivered

Exhibit 16, we asked and wondered where did this come from?

How is this created? The answer from Mr. Kezhaya on the

telephone was this is something we created. Not something

Ms. Shortt created. Not something a witness created.

We had no advanced warning until Ms. Shortt started

testifying about it that a witness had prepared or was going

to testify about Exhibit 16.

There has been no disclosure in the MIDP response,

there's been no disclosure in the joint pretrial statement,

and we're being prejudiced because it of.

THE COURT: Tell me what the prejudice is. Is it

the number 93 you're concerned about?

MR. CLAUS: It is not just the number 93,

Your Honor. It is misleading. The way they're attempting to

use Exhibit 16 is misleading and we've been deprived the

opportunity because it was never disclosed to us that this

would be testified about by a witness --

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MR. CLAUS: -- to list a witness who could then

rebut that.

THE COURT: I understand that. But you're not

disputing the fact that multiple religious organizations who

do not have a physical presence in Scottsdale were allowed to

give invocations, are you?

MR. CLAUS: If multiple is more than one,

Your Honor, then no. But if multiple is more than ten,

Your Honor, then the evidence does not reflect that. And,

more importantly, it is misleading to allow a witness who has

not been disclosed to testify about the matter to testify to

a number that is misleading.

THE COURT: Well, that objection about nondisclosure

wasn't made until about nine minutes to noon.

MR. CLAUS: It was lodged in our -- it was lodged --

THE COURT: When she started talking about it, you

didn't make that objection; that came later. I think that's

a legitimate objection and I want to talk about that, but I

wanted to understand first where you see the prejudice

because my understanding is you don't dispute that at least

some organizations from outside Scottsdale gave invocations.

MR. CLAUS: We do not dispute that some

organizations that did not have a mailing address or physical

address inside of the City of Scottsdale gave an invocation

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THE COURT: All right.

Let me ask a question of you, Mr. Kezhaya. I said

when I heard about the nondisclosure objection that I wanted

to think about it during the lunch hour. The MIDP required

to you disclose all facts material to this case and then to

supplement it regularly. That would include facts such as

the location of organizations that gave invocations at the

City. Clearly relevant information.

A disclosure in December of 2019, which would have

been eight or nine months after close of discovery in the

case clearly wouldn't be timely disclosure, in my judgment.

Is there some basis upon which you think that that disclosure

was not required by the Mandatory Initial Discovery Pilot?

MR. KEZHAYA: Your Honor, we felt like our hands

were bound. The discovery time had passed. At the time we

did the first run of discovery with the predecessor opposing

counsel we had a very narrow understanding of what the issues

were. Whether TST is a religion was not on the table. A

number of issues were not on the table.

THE COURT: Well, but the issue of what the policy

of the City was with respect to who could give invocations

was clearly on the table.

MR. KEZHAYA: Yes, Judge. And we believed that it

was pretty clear that a number of people were coming in from

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that we had to provide that to the other side that we knew

that these addresses were what they were.

THE COURT: Why? Why didn't you think you needed to

disclose facts that you had in your possession about the

location of these organizations when it's clearly relevant

and the MIDP calls for the disclosure of relevant

information?

MR. KEZHAYA: Well, Your Honor, it goes to

timeliness. We didn't actually possess the facts -- insofar

as we had access to Google perhaps we possessed the facts,

but we didn't actually use Google to find these facts

partially with the first amendment complaint. If I remember

correctly, that was back in August or so. That was being

created contemporaneously as we were drafting the complaint.

So as soon as we identified this is something that we believe

is something to be useful, we attached it as an exhibit.

It's a filed exhibit.

THE COURT: Do you -- I'm sorry, go ahead. Were you

going to finish the sentence?

MR. KEZHAYA: And then we supplemented that. We

basically finished the job in December, approximately two or

three days before the discovery disclosure. So as to

timeliness --

THE COURT: Well, don't you agree that the nature of

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they've said the policy was is that there had to be a

substantial connection. Who gave these invocations was a

relevant fact. You certainly knew during the course of

discovery in this case that where entities were located who

gave the invocation was a relevant fact in this case. You

could have collected the information then and disclosed it if

you intended to use it in the case. That's the whole purpose

of the MIDP disclosure.

Is there any reason you didn't or couldn't have done

that during the discovery period?

MR. KEZHAYA: Well, the key reason, Your Honor, is

we didn't actually get these meeting minutes and city notes,

which presumably they come in later on today, until the

motion for summary judgment.

We have a disk which provided us approximately

15,207 e-mails, and then -- all the same ones that were

testified to in I believe it is Kuester's deposition. But

then in addition to that there's about 300 or so that

required additional review.

THE COURT: So you're saying that the meeting

minutes, some of which are in Exhibit 14, were not disclosed

until the summary judgment motion?

MR. KEZHAYA: They were attached to the summary

judgment -- that's when we first found it. That's my

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Stu, is that correct?

THE COURT: Well, Exhibit 14 covers 7,258 pages.

They're not all in Exhibit 14 but the Bates numbers do. You

are not saying all those were attached to the summary

judgment motion?

MR. KEZHAYA: I have -- I have not had access to

whatever these Bates numbers were, Your Honor.

THE COURT: It's on Exhibit 14. It's on your

exhibit.

MR. KEZHAYA: Yes, Your Honor. So those Exhibit

Number 14, if I remember correctly, Exhibit 5 to the chief

motion for summary judgment, I saw those Bates stamps. I

asked Stu, there must be something you were provided. But

he, as I recall, didn't have it. 

Right?

THE COURT: Hold on just a minute.

When -- what is the chief motion for summary

judgment you're talking about?

MR. KEZHAYA: The first summary judgment motion,

Your Honor. So the City filed a summary judgment --

THE COURT: The City's, you're talking about?

MR. KEZHAYA: Sorry?

THE COURT: You're talking about the City's motion.

I didn't know what the chief motion was.

1 3 : 1 2 : 2 4 MR. KEZHAYA: Sorry, Your Honor. Yes. The City's

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motion for summary judgment as opposed to our cross summary

judgment motion.

THE COURT: Okay. So you're saying, I think, the

documents in Exhibit 14 were not disclosed to plaintiffs

until the summary judgment motion was filed by the City; is

that right?

MR. KEZHAYA: Sorry, Your Honor, I have trouble

hearing you.

THE COURT: You are saying that the documents

contained in Exhibit 14 were not disclosed to plaintiffs

until the City's motion for summary judgment.

MR. KEZHAYA: That's certainly when I first received

it, Your Honor.

THE COURT: Mr. de Haan, is that when they were

first disclosed to plaintiffs?

MR. de HAAN: I'm trying to recall when exactly that

particular -- the meeting minutes were disclosed. The way we

saw the exhibit in question was a demonstrative of the

information that was already provided through the meeting

minutes. So I would say it falls under --

What was it, 1006?

MR. KEZHAYA: 1006.

MR. de HAAN: 1006. As that the information that's

pertinent is here are the names of the churches and

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THE COURT: I understand that point. I'm trying to

figure out if it's right that you didn't get them until they

filed their summary judgment motion.

MR. de HAAN: Off the top of my head, I don't

recall, Your Honor.

THE COURT: Okay. How about from defense counsel.

MR. CLAUS: Yes. May I approach, Your Honor? 

THE COURT: Yes. What do you have? Show it to

counsel, please.

MR. CLAUS: Absolutely.

It is the defendant's first supplemental --

THE COURT: We need you at a mic. Say that again.

MR. CLAUS: Sorry, Your Honor.

It is the defendant's first supplemental disclosure

Statement served under the General Order 17-08, dated

January 24, 2019. 

May I approach, Your Honor?

THE COURT: Yes.

MR. CLAUS: Page 6, item 3 identifies the meeting

minutes from 2013 until I believe 2018, which are exactly the

meeting minutes from which Exhibit 14 was culled.

THE COURT: All right. I see that.

MR. CLAUS: Thank you.

THE COURT: So you then go on to say these documents

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identified them but you didn't produce them with it. When

were they actually produced?

MR. CLAUS: They were actually produced prior to

that, Your Honor, to the representative of the plaintiffs

when -- in the original MIDP when the documents that were

disclosed pursuant to the, I believe it's the Anderson, and I

don't remember the name of the other gentleman who did a

public records request, did a public records request. All of

those documents were provided to opposing counsel and that

predated January. That's why they're not reproduced, just to

save how ever many trees you save when you don't reproduce

15,000 pages of documents.

THE COURT: All right. 

Counsel for plaintiffs, the disclosure statement

dated January 24th, 2019, identifies the Bates numbers that

are included in Exhibit 14.

MR. KEZHAYA: That explains my source of confusion,

Your Honor. I have one with a certificate of service dated

July of 2018.

THE COURT: What I have in front of me is dated

January 24th of 2019, with a certificate of service to

Mr. de Haan dated January 24th, 2019.

MR. KEZHAYA: We are not looking at the same

document, Your Honor.

1 3 : 1 6 : 0 5 THE COURT: Well, let's have you look at this.

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Christine, would you hand this to him, please.

Mr. de Haan and Mr. Kezhaya, look at that, if you

would. It looks as though these documents were clearly

identified for you in January of 2019.

MR. CLAUS: Your Honor, I just misspoke and I want

to correct the record.

THE COURT: Wait while they look at it.

Now you've looked at it. I want you to correct the

record and I want to hear their thoughts.

MR. CLAUS: Thank you, Your Honor, and I apologize

for misspeaking.

The documents that are not reproduced in the MIDP

supplement were produced as part of defendant's response to

plaintiff's first discovery requests, which were served on

January 16, 2019, and I can deliver this document to you for

you to look, Your Honor.

THE COURT: Show it to them first.

MR. CLAUS: Sure.

THE COURT: Show it to them again. They need a

chance to look it over.

MR. KEZHAYA: The response objects to the request,

Your Honor. I'm a bit confused about that.

THE COURT: Point out where it is.

MR. CLAUS: Sure.

1 3 : 1 7 : 3 2 MR. KEZHAYA: This is still not the same thing as

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that.

THE COURT: No. They're different. He's saying

that one produced the documents on January 16th and one was

the MIDP disclosure on January 24th.

MR. KEZHAYA: Your Honor, I'm looking at a document.

Page 10 is dated January 24, 2019.

MR. CLAUS: That is the --

THE COURT: That's the date I just mentioned.

MR. KEZHAYA: Yes. But, Your Honor, the confusion

I'm having here is this page 10 that I've just been handed --

THE COURT: Those are different documents.

MR. KEZHAYA: I see. Thank you, Your Honor.

MR. de HAAN: Supplemental.

THE COURT: All right. Let me see the discovery

response, please.

MR. CLAUS: Yes, Your Honor. May I approach?

THE COURT: Yes.

Which page?

MR. CLAUS: It is the flagged page, Your Honor. It

is the last page of text. I believe it is the last sentence

of the last page of text. It's bolded.

THE COURT: Okay. Thank you.

This document dated January 16th, 2019, says the

documents with the Bates numbers that are covered by trial

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MR. KEZHAYA: Your Honor, I have in my hand the only

disk I've ever been provided of discovery. Whether Stu got

this discovery and has misplaced it, I don't know, but this

is the only disk I've ever gotten. All other documents I've

received were attached to summary judgment motions from the

City.

THE COURT: I don't know anything about the disk

you've held up.

MR. KEZHAYA: This is a disk labeled Exhibits to

City of Scottsdale's Responses to Mandatory Initial Discovery

Requests.

THE COURT: Well, what I have in front of me,

Mr. Kezhaya, are two documents dated January of 2019 citing

the very Bates numbers that are in trial Exhibit 14, one of

which says they're being produced, showing service on

Mr. de Haan, and I'm having difficulty concluding that the

documents weren't produced then.

MR. KEZHAYA: Your Honor -- Your Honor, I think the

operative point that we care about is people came in from

outside the City of Scottsdale. If the City is stipulating

people came in from outside the City of Scottsdale, we're --

we really don't need Exhibit 16 because all of the testimony

that's already been given addresses the point adequately.

There's only one other issue other than being

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first learned in the motion to dismiss, the standing motion

to dismiss, that is, which is the invocation to be given was

nonreligious in nature and the City of Scottsdale required

that it be religious in nature. Some of the instances that

we're going to cover are nonreligious invocations.

THE COURT: Well, we'll cover that ground when we

get to it.

MR. KEZHAYA: Yes, Your Honor.

THE COURT: Here's my conclusion with respect to

Exhibit 16 and the testimony related to Exhibit 16, which was

the series of questions asked Ms. Shortt about what

organizations and where they were located.

The documents upon which the research she described

was based were disclosed to plaintiffs' counsel in January of

2019. I think the Rule 34 responses that have been shown to

me today and the MIDP supplemental response clearly establish

that plaintiffs' counsel received them in January of 2019.

I therefore conclude, as I indicated earlier, that

facts plaintiffs could have collected related to where those

organizations were located were clearly at issue during the

discovery period, were clearly relevant during the discovery

period. Plaintiffs knew it was an issue in the case. They

should have been disclosed during the MIDP discovery period.

They weren't. Apparently they weren't even generated until

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That disclosure came after the close of discovery,

after summary judgment had been resolved, when the final

pretrial order was being prepared. Clearly beyond the period

of time when defendants could have done any discovery related

to those location allegations.

And therefore I'm not going to admit Exhibit 16.

I'm not going to admit the testimony that Ms. Shortt gave.

That is, the back-and-forth for ten or 12 locations, because

that was all based on the same information that should have

been disclosed.

But I'm also proceeding with the understanding in

this case that organizations from outside of the City of

Scottsdale gave invocations and the City's contention is that

that was okay because they had some connection to the City of

Scottsdale.

That's my ruling with respect to Exhibit 16 and the

testimony that Ms. Shortt gave about specific dates and

organizations beginning in 2013, and I think you made it to

about 2015. I think that's inadmissible because those

clearly were facts that should have been developed and

disclosed during discovery.

That doesn't foreclose plaintiffs from making the

argument that the City allowed organizations from outside

Scottsdale to give invocations. That clearly happened. I

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from what's in Exhibit 14. But Exhibit 16 will not be

admitted for that purpose.

All right.

So let's carry on with -- did you have a question?

MR. KEZHAYA: Yes, Your Honor. We had begun

discussing Exhibit 15, which is the city notes. They are

handwritten notes of substantially the same things as the

meeting minutes, but we never actually made a determination

whether it would be admissible.

THE COURT: That's right.

The question we had there was whether it was an

adoptive admission, how it was used by the City --

MR. KEZHAYA: Yes, Your Honor. And in our --

THE COURT: -- in its summary judgment brief.

MR. KEZHAYA: I do want to correct the record on one

point, Your Honor. I misspoke earlier. It was not the

summary judgment brief, but the reply brief, the City's reply

brief. I'll point the Court to Document 35-2 at page --

well, at page 2.

Paragraph 2 of the City's response to plaintiffs'

statement of material facts, I'll read at the important part,

"In the event the Court finds that its ruling depends on the

different types of faiths the City has invited to give a

legislative prayer, the City responds that the faith leaders

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as stated on Docs 32-5, 32-6 through 32-14, and attached as

Exhibit 2."

The Exhibit 2 was ordered in reverse chronology.

Meaning, if I remember correctly, most recent to least

recent. Exhibit -- I believe we're on 5, whatever it is that

we're trying to admit, is just the reverse of that. We

changed it so that it is in proper chronological order.

Otherwise, it's the same thing. 

THE COURT: Well, what you just read me didn't

mention 32-3, did it?

MR. KEZHAYA: Well, it's attached as Exhibit 2,

which is my understanding what 32-3 was.

THE COURT: Oh, I thought you were reading from the

actual statement from the City.

MR. KEZHAYA: This is -- yes, Your Honor. So I'm

looking at 35-3. Those are the city notes. 35-2 is the

statement of material facts, which in paragraph 2 states 35-3

is accurate. 

THE COURT: All right, I've got 35-2. Which

paragraph? 

MR. KEZHAYA: Page 1, paragraph 2, Your Honor. The

second sentence. 

THE COURT: Okay. Just a minute.

All right. I've looked at this. Here's the

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is on the docket at Docket 35-2. It is the City's response

to plaintiffs' statement of material facts and it says in

paragraph 2, "the City responds that the faith leaders that

have given invocations are as stated in" a couple of

documents "and attached Exhibit 2."

Attached Exhibit 2, which is at Docket 35-3, are the

same documents that are contained in Exhibit 15.

So it appears to me as though the City said in its

response that the faith leaders who have given invocations

are as reflected in what is now Trial Exhibit 15.

That looks to me like an adoptive admission.

MR. CLAUS: Except, Your Honor, that Exhibit 15 has

35-3, not 35-2.

THE COURT: 35-3 is Exhibit 2 that the statement I

just read refers to.

MR. CLAUS: We haven't been given a copy of the

reply. We're trying to find it in our pleadings.

THE COURT: Just come look at these two things.

MR. CLAUS: Thank you. May I, Your Honor? May I

approach?

THE COURT: Yeah.

One is Exhibit 2, the other -- and paragraph 2

refers to Exhibit 2.

MR. CLAUS: Thank you.

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Is it the plaintiffs' position and is it your belief

that when paragraph 2 of doc 35-2 refers to attached

Exhibit 2, it is in fact referring to Exhibit -- I see. You

just handed me. I'm sorry. I apologize.

THE COURT: It's the next entry in the docket.

Christine just printed --

MR. CLAUS: Yes, Your Honor, I see. I apologize.

THE COURT: So the objection was hearsay to

Exhibit 15. And Rule 801(d)(2)(B) creates a hearsay

exception for a statement that is offered against an opposing

party and is one the party manifested that it adopted or

believed to be true.

That seems to me Scottsdale clearly indicated it

believed it to be true when it said the people who gave the

invocations are as listed in Exhibit 2.

Do you see where that's incorrect?

MR. CLAUS: I do not, Your Honor.

THE COURT: All right. So I'm going to overrule the

hearsay objection to Exhibit 15 and admit Exhibit 15 in

evidence.

I think that now covers the matters we had before

lunch.

MR. KEZHAYA: Your Honor, there was one other matter

prelunch, which was the e-mail identified as Exhibit 8. We

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my hard drive. The original actually is also redacted. So

we cannot print another one of those. We have another

substan- -- I say e-mail. The e-mail address is redacted in

the produced copy.

Additionally we have another e-mail that we will get

into that we did get another copy printed of, one for the

Court, four total, which has the e-mail not redacted. So I

anticipate we're going to run into the same issue with

substantially identical e-mails from Ms. Littlefield, which

the Court may recognize from the complaint and the summary

judgment briefing.

THE COURT: I don't. But so you have nothing more

to add on the exhibit we were discussing before lunch by

David Smith; right?

MR. KEZHAYA: We do have one line of questioning.

It will probably be one or two questions to the effect of is

the face of this e-mail pretty clearly sent to the mayor and

city council. The subject line states to the mayor and city

council.

THE COURT: Which is the exhibit number for that?

MR. KEZHAYA: As I recall, Your Honor -- is that 6

or 8? Is it 5?

It's 5, Your Honor.

THE COURT: Okay. I've looked at Exhibit 6 again

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read all of Exhibit -- I'm sorry, Exhibit 5, not Exhibit 6.

Here's the question for defense counsel: The objection was

hearsay that I didn't rule on because I wanted to see the

"To" line.

In terms of authenticating this and what it actually

is, it seems to me that Rule 901(b)(4) applies. The contents

and distinctive characteristics of this document suggests

that it was an e-mail addressed to the mayor and the city

councilmembers. Councilmember David Smith responded, it

appears, on March 22nd and again on May 23rd. When he

responded on May 23rd, it looks to me as though he quoted

almost verbatim the language that was included in the e-mail

that went to plaintiffs telling them why it was they weren't

going to be allowed to say the invocation.

So it seems to me that the distinctive

characteristics of Exhibit 5 under Rule 901(b)(4) are

sufficient to support a finding that this was in fact a

communication Mr. Smith made in his role as a councilmember

to an inquiry directed to the City of Scottsdale. And if

that's true, it seems to me it wouldn't be hearsay if it was

a statement by an agent of the City acting within authority.

Your response?

MR. CLAUS: May I respond, Your Honor? Thank you.

The first response is to the determination that this

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"Re" line. We do not know who used that "Re" line and we

certainly do not know, because no witness has testified, that

whatever e-mail is referred to, that is also a problem,

because we do not have the e-mail that has the subject line

"Urgent message for Mayor Jim Lane."

We do not have Ms. Sweats' e-mail. We do not know

if that e-mail was delivered to the mayor. We do not know if

that e-mail was delivered to the council.

That is issue number one, Your Honor.

With respect to hearsay and the determination that

this is a member that is intended to bind the council, the

only testimony you have heard today --

THE COURT: It's not that it's intended to bind the

council.

MR. CLAUS: Or intended to bind the City.

THE COURT: Doesn't have to be intended to bind

anybody for purposes of rule 801(d).

MR. CLAUS: It has to be on behalf of the City

because the City is the only defendant in the case.

THE COURT: It has to be within the scope of

Mr. Smith's duties as a city councilmember.

MR. CLAUS: And Mr. Smith does not fulfill those

duties unilaterally, Your Honor, according to the open

meeting law, and according to the charter, and according to

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And we do not know, Your Honor, if this e-mail was

sent to Mr. Smith's personal e-mail address. Mr. Biesemeyer

can testify that council's private e-mails are maintained on

the City's server and would have been produced --

THE COURT: Did you say are or are not?

MR. CLAUS: Are. And would have been produced in

response to a public records request.

And under Bennett versus Yoshina, the fact that an

individual councilmember sends an e-mail or a communication

cannot make it a communication on behalf of the defendant

governmental entity unless there is an indication either

within the communication or through competent testimony that

it was intended to be.

Again, Your Honor, we have another problem. The

witnesses -- the plaintiffs could have identified Mr. Smith

as a witness. The plaintiffs could have examined Mr. Smith

as a witness. And we might not have this problem and we

might have the answer.

THE COURT: What is that case you just cited?

MR. CLAUS: Bennett versus Yoshina. I will get the

citation for you.

It is 55 -- I'm sorry. 98 F. Supp. 2d 1139. And

the pin cite is to 1154. And it -- this Bennett versus

Yoshina is regarding a state employee, I'll just read --

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read the case. I'm going to continue to take Exhibit 5 under

submission and decide its admissibility.

Final comment?

MR. KEZHAYA: Yes, Your Honor. Could we get that

cite again so I can also review it for purposes of argument.

MR. CLAUS: Sure. It's 98 F. Supp. 2d. 1139. Pin

cite is to 1154.

MR. KEZHAYA: You said 1154?

MR. CLAUS: 1154.

MR. KEZHAYA: And it being F.Supp., it sounds like

it is either --

THE COURT: It's a district court case.

MR. CLAUS: I have copies for counsel.

THE COURT: Okay. Let's get back to evidence,

counsel. I'm going to divide the last 40 minutes equally

between the parties in terms of the time we consumed in the

trial.

And I want to move on with the testimony. I will

take Exhibit 5 under advisement and look at the Bennett case

and other authority and decide whether or not that's

admissible.

Let's go ahead and get Ms. Shortt back in and

continue.

MR. CLAUS: I know I'm trying your patience,

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stand, may I please use the restroom?

THE COURT: Yes.

MR. CLAUS: Thank you, Your Honor.

THE COURT: We can go ahead and get Ms. Shortt back

in here.

MR. KEZHAYA: Yes, Your Honor. It sounds like Stu

is going to grab her, Your Honor.

There was the other matter of the nonreligious

invocations. I'm unclear on when the Court struck the

testimony related to 16, whether we could get into the

nonreligious part --

THE COURT: I said we would cross that bridge when

we got to it.

MR. KEZHAYA: Thank you, Your Honor. 

THE COURT: I don't know what it is or how -- what

the foundation is. I'll just have to rule after you lay that

foundation.

MR. KEZHAYA: Yes, Judge.

THE COURT: Okay.

MR. KEZHAYA: Your Honor, I have left our stapled

copy of unredacted Number 8 up here and it appears to have

gone missing. Does the Court have it, by chance?

THE COURT: Well, I've got a copy of unredacted 8.

We haven't talked about anything while you've been

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Is that the one you lost?

MR. KEZHAYA: Let me see.

Yes, Your Honor.

THE COURT: Okay. Let's go ahead and continue with

the testimony.

MR. KEZHAYA: Okay.

BY MR. KEZHAYA: 

Q Ms. Shortt, you indicated that you did a public records

request at some point. Do you remember that?

A Yes.

Q When did you do this public records request?

A I do not recall.

Q Was it after the denial?

A Yes.

Q Okay. In that public records request, did you receive a

number of e-mails?

A Yes.

Q Was one of those e-mails identified as from Kathy

Littlefield?

A Yes.

Q Okay. I'm going to show you a document we've previously

identified as Exhibit 8.

MR. KEZHAYA: May I approach, Your Honor?

THE COURT: Yes, you may.

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THE COURT: So which Exhibit 8 are we presenting the

witness?

MR. KEZHAYA: This is the produced Exhibit 8 that

was provided on December 16th, Your Honor. I anticipate

we're going to get into the same issue as with Mr. Smith, but

I figure I need to lay out the foundation. Otherwise, we can

just cut straight to the chase.

THE COURT: It's not this unredacted version?

MR. KEZHAYA: It is not the unredacted version yet.

It depends what comes of defense counsel's --

THE COURT: Well, do defense counsel have an

objection to replacing redacted Exhibit 8 with unredacted

Exhibit 8?

MR. CLAUS: We don't have an objection to the

replacement of the redacted version with the nonredacted

version.

THE COURT: Okay. So let's just mark the unredacted

version as 8 and use that.

MR. KEZHAYA: Yes, Your Honor.

MR. CLAUS: Oh, Your Honor. I apologize. I didn't

realize the actual content of Exhibit 8 had been redacted. I

thought there is a second page of what -- the replacement

Exhibit 8 that actually contains text of an e-mail from

someone named Ellen Laybourne, whom I do not know --

1 3 : 4 3 : 5 7 THE COURT: Well, on the original Exhibit 8, the

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e-mail address is redacted on the first page.

MR. CLAUS: It's not the e-mail address, Your Honor.

It is the -- the original Exhibit 8 contains one page. The

replacement Exhibit 8 contains two pages.

THE COURT: Look at the first page of the original

Exhibit 8. Right after the name Kathy Littlefield.

MR. CLAUS: Yes.

THE COURT: The e-mail address is redacted.

MR. CLAUS: Yes.

THE COURT: And the version they're substituting in,

the City of Scottsdale e-mail address is included.

MR. CLAUS: But they're also trying to substitute

additional textual information that was not included in the

original Exhibit 8 and that has not been disclosed until this

moment in the universe.

THE COURT: Do you care about the second page?

MR. KEZHAYA: I do not, Your Honor. I'm only

interested in Kathy Littlefield --

THE COURT: Okay. So we're going to take off the

second page. And the Exhibit 8 we will use is the version

that has the e-mail address not redacted.

MR. CLAUS: Thank you, Your Honor.

THE COURT: Okay.

MR. KEZHAYA: Other that now removed page 2 from

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unredacted Exhibit 8.

THE COURT: All right. Is there any objection to

Exhibit 8 as just described?

MR. CLAUS: Yes, Your Honor. There is still a

foundation objection. There is still a hearsay objection.

The statements of Ellen Laybourne, which are the top e-mail

and the bottom e-mail, are out-of-court statements by a

declarant. Ms. Laybourne has not been disclosed as a

witness. She's not been --

THE COURT: Well, it's a hearsay objection. What is

your response on hearsay from Ms. Laybourne?

MR. KEZHAYA: Your Honor, the Court's prior rulings

on David Smith's e-mail are going to be the same here. It's

an agency relationship. She is Councilwoman Littlefield, she

is sending the e-mail KLittlefield@Scottsdaleaz.gov.

THE COURT: Just a minute, I'm sorry. I thought he

was objecting to the statements from Ms. Laybourne --

MR. KEZHAYA: Oh. I have no objection to removing

those, Your Honor.

THE COURT: Those won't be considered. What you

want to get in is what Ms. Littlefield said in the -- sort of

middle e-mail of the exhibit; is that right?

MR. KEZHAYA: Yes, Your Honor. That's all that we

care about.

1 3 : 4 6 : 0 8 THE COURT: Is there an objection to that?

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MR. CLAUS: There is an objection, Your Honor.

There's no foundation for that e-mail. That e-mail is still

hearsay because -- for the same reasons that the e-mail from

an individual councilmember, David Smith, are hearsay, this

e-mail from an individual councilmember, Kathy Littlefield,

to someone named Ellen Laybourne is hearsay. There is

nothing in the e-mail -- in fact -- in fact, Your Honor, if

you look --

THE COURT: We don't need to argue this at length.

I just need to understand the objection. It's hearsay --

MR. CLAUS: Hearsay.

THE COURT: -- to the statement from

Ms. Littlefield?

MR. CLAUS: Yes. And the penultimate paragraph

demonstrates that it is a personal, not an agency

communication.

THE COURT: Your response?

MR. KEZHAYA: It is signed Councilwoman Kathy

Littlefield and is sent from @Scottsdaleaz.gov, Your Honor.

I can't see any way for the City to make an argument that it

is not from a councilwoman in the course and scope of her

agency or relationship as councilwoman.

THE COURT: All right. I am going to overrule the

objection and I'm going to admit Exhibit 8, but the only

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goes from Ms. Littlefield to Ellen Laybourne. My conclusion

is that it is admissible under Rule 801(b).

(Exhibit 8 admitted.)

BY MR. KEZHAYA: 

Q Michelle, do you have a copy of 8 in front of you?

A Yes.

Q I want you to read the second sentence of the first

paragraph.

A The first or second e-mail?

Q Well, after "thank you for your e-mail." It says "first"

and then there's a sentence. The second sentence after

"first."

A "First, council hasn't had a say on this issue one way or

the other. This is a decision made by the mayor's office. I

found out about it from my e-mails after our last council

meeting."

Q Have you been through our responses to discovery that we

received from the City?

A I don't understand the question.

Q Have you been through the e-mails that the City provided

us?

A Yes.

Q Did you see anything in there from e-mails to

Kathy Littlefield first noting about these e-mails?

1 3 : 4 8 : 4 4 MR. CLAUS: Objection, Your Honor. Best evidence.

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He's trying to prove the contents.

THE COURT: Overruled.

MR. CLAUS: And hearsay.

THE COURT: Overruled.

THE WITNESS: No.

BY MR. KEZHAYA: 

Q Okay. The second paragraph indicates that the City

considered the legality of prohibiting The Satanic Temple,

doesn't it?

MR. CLAUS: Leading, Your Honor.

THE COURT: Sustained.

BY MR. KEZHAYA: 

Q Does the second paragraph -- actually, please read the

second paragraph in full for benefit of the Court.

MR. CLAUS: Document speaks for itself, Your Honor.

THE COURT: Overruled.

THE WITNESS: "Finally, I suppose we could do" --

THE COURT: That's the third paragraph.

BY MR. KEZHAYA: 

Q The one that starts "Second," Michelle.

A Oh. I'm sorry.

"Second, after checking on the legality issue,

according to Supreme Court's decision our choice is to allow

it or discontinue all religious prayers at the beginning of

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want the satanists and I think this is taking equality too

far. However, we are all sworn to uphold the law and cannot

disobey it just because we find it undesirable and stupid."

Q What was the date of this e-mail?

A It was February 11, 2016, at 6:41 p.m.

Q Okay. Right before the signature there's one sentence

that starts "personally." Could you please read that for

benefit of the Court.

A "Personally, I do not relinquish my religious freedom of

prayer, so it is not an acceptable solution."

Q And is the acceptable solution that she's referring to of

just shutting down all invocations? 

MR. CLAUS: Objection. Leading. 

THE COURT: Sustained.

BY MR. KEZHAYA: 

Q Please read the paragraph starting "Finally," Ms. Shortt.

A "Finally, I suppose we could do as Phoenix has done and

not have any prayers. Our only other legal option. However,

I believe that result is exactly what the satanists want, for

us to be forced to deny prayers at the start of our meetings

and not to be able to publicly ask for God's blessing and

guidance. This is why they are going through so many

dif-" -- "this is why they are going to so many different

Arizona cities."

1 3 : 5 1 : 0 4 Q Is that true? Is that why you were going to these

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different Arizona cities?

A No. 

Q You reviewed Exhibit 15, the city notes, did you?

A Yes.

Q And in reviewing the city notes, did you find instances of

moments of silence?

A Yes.

Q I'm going to direct your attention to the year 2015.

On October 6, the notes indicate there was a moment

of silence for Oregon shootings?

A Yes.

THE COURT: Where is that, Counsel?

MR. CLAUS: I have in my notes, 32-5, at 5. City

notes 2015, Your Honor. 10/6.

THE COURT: Okay.

BY MR. KEZHAYA: 

Q Are you familiar with the Phoenix Indian Center?

A Yes.

Q On your review of the minutes, did the Phoenix Indian

Center give an invocation in November of 2016?

A Yes.

Q Is the Phoenix Indian Center a religious organization?

MR. CLAUS: Objection, Your Honor. Foundation.

THE COURT: Sustained.

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BY MR. KEZHAYA: 

Q Do you have personal knowledge of what the Phoenix Indian

Center is?

A They are an outreach --

Q Yes or no?

A Yes.

Q What is your understanding of the Phoenix Indian Center's

organizational purpose?

MR. CLAUS: Objection. Relevance as to her

understanding. And foundation.

THE COURT: Was that two objections?

MR. CLAUS: Yes, Your Honor. Relevance as to her

understanding --

THE COURT: Relevance and foundation.

MR. CLAUS: And foundation.

THE COURT: Overruled on relevance. 

But I do think you need to lay a foundation for how

she knows this before you ask you her.

MR. CLAUS: Yes, Your Honor.

BY MR. CLAUS: 

Q How are you familiar with the Phoenix Indian Center?

A It was one of the addresses that I Googled.

Q Okay. Had you known about it prior to you going through

these exhibits and Googling addresses?

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Q In the course of you Googling these addresses, did you

investigate into the religious nature of some of the

organizations?

MR. CLAUS: Objection, Your Honor. Foundation.

Disclosure.

THE COURT: Sustained -- well, sustained on

disclosure. Same ruling as before.

MR. KEZHAYA: Your Honor, as to disclosure, we

didn't know that -- whether TST was a religion was going to

be an issue until the 12(b)(1) motion. Our understanding of

the 12(b)(1) motion was going to be the organizational

entities didn't exist at the time.

If the Court may recall the teleconference that

we --

THE COURT: I remember. I remember the

teleconference.

MR. KEZHAYA: That was the characterization. We

didn't even know to provide whether these other organizations

were religious because it wasn't an issue.

THE COURT: So the purpose for this evidence is to

suggest that nonreligious organizations gave invocations?

MR. KEZHAYA: Yes, Your Honor. That's this entire

line of questioning.

THE COURT: Mr. Claus, you agree, I think, that you

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it came to the motion to dismiss.

MR. CLAUS: We did raise it in the motion to

dismiss, Your Honor, which was in the summer, and it --

THE COURT: No, the motion to dismiss wasn't filed

until the fall, well after the summary judgment moving.

MR. CLAUS: But the request to file the motion to

dismiss where all of these issues were discussed was raised

in the --

THE COURT: The telephone conference originally was

about capacity to sue and standing. When you filed the

motion, you expanded it to include whether or not the

plaintiffs were a religion.

MR. CLAUS: And that would have been the time, if

the plaintiffs had factual evidence, to disclose. And if

they had factual evidence to present at trial, that would

have been the time to send me an e-mail, to call me on the

phone, to do something that notified me that a witness was

going to testify about the issues that this witness is trying

to testify to, not the day of trial.

THE COURT: I'm incorrect. The motion to dismiss

was filed in June, not in the fall.

No, I'm sorry. That's the original motion to

dismiss.

Would you look at the docket, please, and see when

1 3 : 5 5 : 3 4 it was filed, Christine. This is the one filed, I think, in

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the fall of 2019.

While she's doing that, what is your response,

Mr. Kezhaya, that once that issue was on the table, you had

an obligation under the MIDP to make disclosures of

information you intend to assert at trial?

MR. KEZHAYA: Your Honor, before I answer, for the

benefit of the Court, it was filed on October 4. I don't

have the docket number it's somewhere between 62 and 64. I

imagine 63.

THE COURT: Okay. 

MR. KEZHAYA: As for why we didn't produce this, the

discovery was done. We had the first discovery deadline

where it was our understanding that the issues for trial was,

okay, well, what is the substantial connection policy? Was

it really about substantial connection? What is the

definition of it? And was it applied to anyone else? That

was the first wave of discovery expectations.

The second wave of discovery expectations, which

concluded prior to them filing their motion to dismiss was,

to our understanding at least, did any of these

organizational entities exist? Do they have associational

standing? And does Ms. Shortt have a redressable injury that

was caused by the defendants?

Our understanding of all of this was character --

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discovery by the pleadings that it did file. Nowhere

anywhere did anyone say TST is not a religion, so we didn't

even know to provide it, and it was our understanding that we

couldn't provide it because it's barred.

So if we had provided this information, the nature

of the objection would probably be, well, they provided it

too late. We still couldn't do additional discovery. We

couldn't look into whether this Phoenix Indian Center is

religious --

THE COURT: Let's kind of shorten up our arguments.

I understand the basic argument, and I mean on both sides,

because I don't want to consume the whole day arguing about

evidence issues.

Just a brief response, Mr. Claus.

MR. CLAUS: Yes, Your Honor.

Our position in the motion to dismiss is not whether

other organizations are religious or whether other

organizations, or any organizations needed to be religious to

give invocations.

Our argument in the motion to dismiss and our

argument today is that the organization that is the plaintiff

is not a religion and thus is not entitled to an

Establishment Clause protection. That is an element that has

existed since the plaintiffs filed the case.

1 3 : 5 7 : 5 6 And, again, briefly, Your Honor, this is not in the

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joint pretrial statement either.

The way lawyers are supposed to work is that --

THE COURT: I know how lawyers are supposed to work.

Let's really zero in on the argument you want me to rule on.

MR. CLAUS: Yes, Your Honor.

So, Your Honor, the information was never disclosed.

It was not part of the joint pretrial statement. Under MIDP

general order 17-08, paragraph 8, the parties have a duty to

seasonably supplement when they come in the possession of

evidence, whether or not the discovery deadline is over.

Because the whole goal is to --

THE COURT: I know the goal. Thank you.

MR. CLAUS: Thank you. 

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

The arguments based on Barker and Fields about whether or not

this was a religion were first raised in October of 2019,

after both discovery periods had been undertaken. The fact

plaintiffs had to respond and address that argument all arose

after October of 2019. Therefore, I think there's a

reasonable excuse for the evidence being identified later in

the case. So I'm going to allow the testimony about the

Indian Center. I've forgotten the name.

MR. KEZHAYA: Phoenix Indian Center, Your Honor.

THE COURT: Go ahead.

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BY MR. KEZHAYA: 

Q Did you Google Phoenix Indian Center?

A Yes, I did.

Q What is your understanding of the nature of Phoenix Indian

Center as an organization? 

MR. CLAUS: Foundation and disclosure, Your Honor.

THE COURT: Overruled.

THE WITNESS: They are an outreach group to the

Native American community and are nonreligious in nature.

BY MR. KEZHAYA: 

Q Okay. I want to turn your attention to the city notes

year 2017, which I believe is the third page. 

Actually, they're in reverse chronology, so it might

be the third-to-last page, but 2017.

Specifically on May 23rd, 2017, was there a moment of

silence for Manchester bombing?

A Yes. On May 23rd.

Q Okay. Is Oregon in Scottsdale?

A No.

Q Is Manchester in Scottsdale?

A No.

Q Is Oregon in the State of Arizona?

A No.

THE COURT: Let's keep moving. I know where Oregon

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BY MR. KEZHAYA: 

Q I want to turn your attention to -- well, I have it in

here as 32-4, the Arizona Community Action --

THE COURT: Pardon me. Where is the reference to

the Phoenix Indian Center?

MR. KEZHAYA: I have it listed as 32-10 at page 8,

Your Honor.

THE COURT: 32-10.

MR. KEZHAYA: 32-10 at page 8, is what my reference

is.

THE COURT: There is no 32-10 in Exhibit 15.

MR. KEZHAYA: Hmm. Okay. I believe it's

Exhibit 14. The date is November 14th, 2016.

THE COURT: 32-10 at what page?

MR. KEZHAYA: I have as 8.

MR. CLAUS: Excuse me, Your Honor, could we just --

THE COURT: I see it.

MR. CLAUS: I -- I can't find it, so if we can just

get a Bates stamp number, it would be helpful.

THE COURT: It is 4899.

MR. CLAUS: Thank you so much, Your Honor.

THE COURT: Okay. Proceed, please.

MR. KEZHAYA: Thank you, Your Honor.

BY MR. KEZHAYA: 

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occasion to Google them throughout this litigation?

A Yes.

Q What was your understanding --

THE COURT: Which exhibit are we in now?

MR. KEZHAYA: Oh, I'm sorry, Your Honor.

I have this as 32-4, page 2. Should be 14,

Your Honor.

THE COURT: I don't see a 32-4 in Exhibit 14.

MR. KEZHAYA: Pardon me, Your Honor. I believe it's

the city notes, then.

THE COURT: So in Exhibit 15?

MR. KEZHAYA: Yes, sir.

THE COURT: I don't see a 32-4 there either. It

goes directly from 35-3 to 32-5.

MR. KEZHAYA: Yes, Your Honor. We'll withdraw the

question as to Arizona Community Action Association.

BY MR. KEZHAYA: 

Q Are you familiar with the concept of a moment of silence?

A Yes.

Q Which deity is invoked by a moment of silence?

MR. CLAUS: Objection, Your Honor. Foundation.

THE COURT: Sustained.

BY MR. KEZHAYA: 

Q If any?

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is, Counsel. 

MR. KEZHAYA: Yes.

THE COURT: I understand you feel the need to cover

the bases on the evidence, but I don't think we need to get

evidence in on the obvious things.

MR. KEZHAYA: Okay.

BY MR. KEZHAYA: 

Q Do you remember the day that you were denied the

invocation?

A No.

Q Do you remember the day that you learned of it?

A I don't understand the question.

Q How did the denial affect you?

A It was extremely demoralizing.

Q Why is that?

A It made me feel like I wasn't valid. Like I wasn't a

citizen or a member of the community. It was humiliating.

Demoralizing. And it just punched me in the gut.

MR. KEZHAYA: Pass the witness, Your Honor.

THE COURT: Cross-examination.

MR. CLAUS: May I gather the exhibits that I'm going

to ask the witness about?

THE COURT: I can't hear you, Counsel.

MR. CLAUS: May I gather the exhibits that I'm going

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trial?

THE COURT: Yeah. Yeah.

MR. CLAUS: Thank you.

THE COURTROOM DEPUTY: Counsel, are you using

technology to show the exhibits or did you want me to pull

them?

MR. CLAUS: We're going to grab them from the

folder, belt and suspender, just in case technology doesn't

work.

MR. KEZHAYA: Your Honor, may I approach the

lectern? I appear to have forgotten my water up there.

THE COURT: Sure.

MR. KEZHAYA: Additionally, we also have our exhibit

list.

THE COURT: I'm sorry, what was that?

MR. KEZHAYA: The exhibit list from this morning,

Your Honor. We had completed it, but it's been up here this

whole time. I apologize.

May I approach?

THE COURT: Yes, you may.

MR. CLAUS: May I approach, Your Honor?

THE COURT: Yes.

THE COURTROOM DEPUTY: Counsel, so you know, I don't

have an Exhibit 4 yet.

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gone there yet.

THE COURTROOM DEPUTY: So if you're looking for 4, I

don't have one. He was going to use 4.

MR. KEZHAYA: Do you need Exhibit 4?

MR. CLAUS: I do.

THE COURT: Let's go on. When you get to Exhibit 4,

we'll deal with it.

MR. CLAUS: Thank you.

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

BY MR. CLAUS: 

Q Ms. Shortt, good afternoon. My name is Scot Claus. I

represent the defendant City of Scottsdale.

You ended your testimony talking about how you felt

like you weren't a member of the community. Do you recall

that?

A Yes.

Q You don't live in Scottsdale; correct?

A No.

Q You've never lived in Scottsdale; correct?

A No.

Q That is not correct or that is correct?

A Oh. That is correct, yes.

Q You are not a member of the Scottsdale community; correct?

A No.

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You never spoke a single word to someone named Kelli Kuester;

correct?

A No.

Q That is correct?

A Yes, that is correct.

Q You didn't speak to her on the phone; correct?

A I did not speak to her on the phone.

Q Did you not speak to her in person; true?

A True.

Q You did not write her an e-mail; correct?

A Correct.

Q You did not send her a letter; correct?

A Correct.

Q The gentleman named Brian Biesemeyer, you never spoke with

Mr. Biesemeyer; correct?

A No.

Q By phone you never talked to him?

A No.

Q You keep saying no. I'm going are to rephrase my question

to help you out.

Is it true that you --

MR. KEZHAYA: Objection, Your Honor. There are

rules of decorum for a reason. Additionally, this is the

same question in four, five iterations. It's objectionable

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THE COURT: Overruled.

We do only need to ask the question once.

MR. CLAUS: I'm sorry?

THE COURT: We only need to ask the question once.

MR. CLAUS: Sure.

BY MR. CLAUS: 

Q Is it true that you never contacted Brian Biesemeyer by

e-mail or telephone?

A That is true.

Q Is it true that you never had a face-to-face verbal

conversation with Brian Biesemeyer?

A That is true.

Q You alleged in your complaint that you contacted the City

of Scottsdale to give an invocation. Do you recall alleging

that?

A I do not recall.

Q You alleged in paragraph 26 of your first amended

complaint that you contacted the City of Scottsdale to give an

invocation. Do you recall that?

A I do not recall.

Q The fact of the matter is, is that you never contacted any

representative of the City of Scottsdale and asked to give an

invocation; is that true?

A I did not.

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Mayor Lane?

A That is true.

Q Is it true that you never had a verbal conversation with

Mayor Lane?

A That is true.

Q Is it true that you never had a written or verbal

conversation with any member of the city council?

A That is true.

Q Is it accurate to say that you did not tell any

representative of the City of Scottsdale at any time prior to

May 23, 2016, what your religious beliefs were?

A Could you please rephrase the question.

Q Sure. Is it true to say that prior to May 23, 2016, you,

Michelle Shortt, never told a single representative of the

City of Scottsdale what your religious beliefs were?

A I don't understand the question.

Q You --

A And the reason for doing so is because we were very

transparent as to who we were as an organization.

Q No, ma'am. I'm asking you to tell me if it's true or if

it's false that prior to May 23, 2016, you, Michelle Shortt,

never told a representative of the City of Scottsdale what

your religious beliefs were; correct?

A Correct.

1 4 : 1 3 : 0 1 Q You, Michelle Shortt, never delivered a copy of any

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proposed invocation to any representative of the City of

Scottsdale; correct?

A Correct.

Q And you, Michelle Shortt, never described the contents of

any proposed invocation to any representative of the City of

Scottsdale; that's also correct, isn't it?

A Yes.

Q You, Michelle Shortt, never told a representative of the

City of Scottsdale what your viewpoints were on any matter;

correct?

A No. No, it's -- I mean, yes, it's correct.

Q And you, Michelle Shortt, never explained to any

representative of the City of Scottsdale the viewpoints that

you wished to deliver during an invocation; correct?

A Correct.

Q Is it accurate to say that up until this moment in the

universe, you have never had any communication of any kind

with any representative of the City of Scottsdale?

A That's correct.

Q You did not listen to or participate in any phone calls,

according to your under oath testimony on direct, in any phone

calls between Jeremy Zarzycki and Kelli Kuester; correct?

A That's correct.

Q You have seen e-mails in this case?

1 4 : 1 5 : 0 4 You've seen e-mails?

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A E-mails from who?

Q You've seen e-mails between Mr. Zarzycki and

representatives of the City of Scottsdale?

A Yes.

Q You, Michelle Shortt, never told a representative of the

City of Scottsdale that your religious belief was satanism;

correct?

A No, I did not speak to anybody.

Q You never told the City of Scottsdale that the religious

belief of any representative of the plaintiff was satanism;

correct?

A Could you rephrase the question.

Q Well, you never wrote an e-mail to anyone at the City of

Scottsdale saying, "I wish to promote a belief in satanism,"

or words to that effect; true?

A No, we did not say that.

Q You did not call someone on the phone -- you used the

pronoun "we." I'm talking about you right now. You never

called a representative of the City of Scottsdale on the

telephone and said to a representative of the City of

Scottsdale, at any point in the time in the universe, that I,

Michelle Shortt, want to give an invocation and talk about

satanism; is that correct?

A That's correct, I never did that.

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your first amended complaint, your common enterprise and

objective was not satanism, it was pluralism; correct?

A Correct.

Q You formed that group in January 2016; true?

A Correct.

Q And just to be clear, Ms. Shortt, no person representing

the City of Scottsdale ever told you in person, on the phone,

or in writing, that you could not give an invocation; correct?

A Could you please rephrase the question.

Q No representative of the City of Scottsdale ever told you

in person that you couldn't given an invocation; true?

A That's true.

Q No person representing the City of Scottsdale ever told

you on the phone that you couldn't give an invocation;

correct?

A That's true.

Q And no one representing the City of Scottsdale told you,

Michelle Shortt, in writing that you could not give an

invocation; correct?

A I don't understand the question in regards to it being

that I was told that I wasn't allowed to give the invocation

on a certain day.

Q No, ma'am. My question is: You've alleged in this case

you wanted to give an invocation before a City of Scottsdale

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A Yes.

Q And you've alleged in this case that you were denied that

opportunity; correct?

A Yes.

Q You, you, Michelle Shortt, were never told in writing that

you could not give an invocation. That is a fact that is

true; correct?

A That is correct.

Q Do you have Exhibit 6 in front of you?

MR. CLAUS: Is that one of the ones I asked? I

can't remember.

THE COURTROOM DEPUTY: Should be up there.

BY MR. CLAUS: 

Q You have folders in front of you, exhibits that have been

marked for identification or that are in evidence. My notes

suggest that Exhibit 6 is in evidence. Do you have that in

front of you?

THE COURTROOM DEPUTY: I don't have 6, actually.

MR. KEZHAYA: For the benefit of the Court, 6 has

not been admitted but we have no objection --

THE COURT: 6 is not admitted.

MR. CLAUS: I don't know if the witness has it in

front of her.

THE COURTROOM DEPUTY: I don't have it; I haven't

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MR. KEZHAYA: I have it.

MR. CLAUS: May I approach, Your Honor?

THE COURT: Yes.

MR. CLAUS: Do you have a copy, Your Honor?

THE COURT: Yes.

MR. CLAUS: Thank you.

BY MR. CLAUS: 

Q Ma'am, I've handed you what's been marked for

identification purposes as Exhibit 6, and the defendants

stipulated to its admission. 

MR. CLAUS: So we move for admission of Exhibit 6,

Your Honor?

MR. KEZHAYA: We have no objection to admission of

6, Your Honor.

THE COURT: Admitted.

(Exhibit 6 admitted.)

BY MR. CLAUS: 

Q Please take a moment to read Exhibit 6 and let me know

when you're done.

A I'm done.

Q Okay. You were not a recipient of Exhibit 6; correct?

A Correct.

Q You are not addressed in Exhibit 6; correct?

A Correct.

1 4 : 2 0 : 2 8 Q You, Michelle Shortt, are not mentioned in Exhibit 6;

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CROSS-EXAMINATION - MICHELLE SHORTT

correct?

A Correct.

Q When Jeremy Zarzycki communicated to someone named Kelli,

Jeremy Zarzycki did not mention you at all; correct?

A Correct.

Q Exhibit 6 does not mention the religious beliefs of you or

any person affiliated with the plaintiffs; correct?

A Correct.

Q Exhibit 6 does not identify the viewpoints held by you or

any representative of any plaintiff; correct?

A Correct.

Q Exhibit 6 does not describe in any manner the viewpoints

or beliefs you wished to espouse during an invocation because

it doesn't mention you at all; correct?

A Correct.

Q Have you seen an e-mail in this case that mentions you at

all with respect to a desire to give an invocation before a

City of Scottsdale council meeting?

A I do not recall.

Q Have you looked -- Exhibit 7, do you have Exhibit 7?

MR. CLAUS: We have stipulated to the admission of

Exhibit 7 in evidence, Your Honor.

THE COURT: Are you moving it in?

MR. CLAUS: Yes, we are moving it in, unless it

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THE COURTROOM DEPUTY: It's already in.

THE COURT: It's already admitted.

MR. CLAUS: Thank you.

BY MR. CLAUS: 

Q Showing you, ma'am, Exhibit 7 in evidence. Do you see

Exhibit 7 as an e-mail?

A Yes.

Q Dated February 24, 2016?

A Yes.

Q You are not an addressee on that e-mail; correct?

A Correct.

Q You were not sent the e-mail that is contained in

Exhibit 7; correct?

A Correct.

Q Exhibit 7 does not mention you at all, does it?

A It does not.

Q Exhibit 7 does not mention the viewpoints of any plaintiff

organization; correct?

A Correct.

Q Exhibit 7 does not mention the religious beliefs of any

plaintiff organization; correct?

A Correct.

Q I believe you have Exhibit 12 in front of you in the

folder.

1 4 : 2 2 : 5 6 I believe, Your Honor, Exhibit 12 is in evidence.

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CROSS-EXAMINATION - MICHELLE SHORTT

THE COURT: It is.

BY MR. CLAUS: 

Q Exhibit 12 is an e-mail dated May 23, 2016. Do you see

that?

A Yes.

Q You are not an addressee on Exhibit 12, are you?

A No.

Q You not an intended recipient of Exhibit 12, are you?

A No.

Q You, Michelle Shortt, are not mentioned anywhere in

Exhibit 12, are you?

A I am not.

Q Your beliefs are not mentioned; correct?

A That is correct.

Q Your viewpoint is not mentioned; correct?

A That is correct.

Q The religious beliefs that you hold are not mentioned;

true?

A That is true.

Q The religious beliefs that you might have espoused during

an invocation are not mentioned; correct?

A That is correct.

Q The viewpoints and beliefs that you hold and might espouse

during an invocation are not expressed anywhere in

1 4 : 2 3 : 5 0 Exhibits 12; correct?

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CROSS-EXAMINATION - MICHELLE SHORTT

A That is correct.

Q Have you seen an e-mail addressed by any plaintiff to the

City of Scottsdale that explains to them the viewpoints that

Michelle Shortt intended to share with the audience during a

City of Scottsdale council meeting invocation?

A I do not.

Q You do not?

A Or have not.

Q Have you seen an e-mail?

A No.

Q No representative of the City of Scottsdale has told you

personally that Michelle Shortt cannot give an invocation

based on any belief she holds that she believes is religious;

correct?

A Could you please rephrase the question.

THE COURT: I think we've covered that ground,

Counsel. She said nobody from Scottsdale ever communicated

with her.

BY MR. CLAUS: 

Q Nobody from Scottsdale ever communicated to any

representative of the plaintiff that you could not give an

invocation based upon the religious beliefs held by any

representative of the plaintiff; true?

A Could you please repeat the question?

1 4 : 2 5 : 1 7 Q Sure. No representative of the City of Scottsdale ever

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CROSS-EXAMINATION - MICHELLE SHORTT

told a representative of the plaintiff that you could not give

an invocation based upon the religious beliefs or viewpoint of

any representative of the plaintiff; correct?

A That is correct.

Q Do you still have Exhibit 12 in front of you?

A Yes.

Q Exhibit 12 is the e-mail dated May 23, 2016, informing

Jeremy Zarzycki that the City would not deviate from its

long-standing practice of having the invocation given by a

representative from an institution that has a substantial

connection to the Scottsdale community; correct?

A That is what the e-mail says.

Q At no time after May 23, 2016, at 3:29 p.m., did you

communicate with any representative of the City of Scottsdale

to tell them words that meant, no, you're wrong, we do have a

substantial connection to the City of Scottsdale; true?

A No.

Q That's not true?

A Could you please rephrase the question. Sorry.

Q Sure. After May 23, 2016, at 3:29 p.m., you never uttered

a single word to a Scottsdale representative in which you

attempted to demonstrate that the City was wrong about the

connection between or lack of connection between your group

and the City of Scottsdale; isn't that accurate?

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Q And as what you described as co-chapter head of the

Arizona chapter of The Satanic Temple, you did not direct

anyone to deliver a verbal or written communication to the

City of Scottsdale at any time after May 23, 2016, to tell the

City of Scottsdale that the Arizona chapter of The Satanic

Temple did, in fact, have a connection to the City of

Scottsdale; is that also true?

A Yes.

Q And after May 23, 2016, as a plaintiff in this case and as

a representative of a plaintiff in this case, you do not know

of a single communication from any representative of any

plaintiff to any representative of the City of Scottsdale

after May 23, 2016, that attempts to explain a connection

between any plaintiff and the City of Scottsdale; is that also

true?

A I do not know of any such connection.

Q Let's talk about timing. Do you have Exhibit 76 in front

of you?

MR. KEZHAYA: Your Honor, before we proceed, may I

see an example of Exhibit 76.

THE COURT: Have you provided them copies of your

exhibits?

MR. CLAUS: Yes, Your Honor. We provided them

multiple --

1 4 : 2 9 : 2 3 THE COURT: Are they tabbed? 

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CROSS-EXAMINATION - MICHELLE SHORTT

MR. CLAUS: They are tabbed, Your Honor.

MR. KEZHAYA: The difficulty, Your Honor, is what we

received in December of 2019 were not labeled 1 through 50 in

sequence. It's actually labeled one in sequence. So we

don't know which one 76 is based on what we have.

THE COURT: So you haven't provided a tabbed set?

MR. CLAUS: We have provided -- that is just simply

a misstatement, Your Honor. We have provided a tabbed set.

THE COURT: When did you give it to them?

MR. CLAUS: We provided it to them in December of

2016. And in the communication that included the tabbed set,

we even gave them a concordance. When we had our meeting

with Stu de Haan, we didn't know which number we would start

with. We gave them a concordance that said --

THE COURT: How can they tell which is Exhibit 76?

MR. CLAUS: Because we gave them the tabs that have

Exhibit 76.

MR. KEZHAYA: Your Honor, we're not leveling any

accusations. All I'm asking for is which one is 76 relative

to what was formerly labeled 1 through 58.

MR. CLAUS: I'll just show them.

MR. KEZHAYA: That's all we're asking.

THE COURT: Show them.

MR. CLAUS: Your Honor, if I may I take just one

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CROSS-EXAMINATION - MICHELLE SHORTT

exhibits.

THE COURT: They can get it over there. You keep

going with your questions, stay on track.

BY MR. CLAUS: 

Q Do you have Exhibit 76 in front of you, ma'am?

A Yes.

Q Exhibit 76 is a document that you didn't produce until the

deposition that took place at the end of September 2019 in

this case; correct?

A Yes.

Q You didn't produce it as part of the response to the

mandatory initial disclosure statement; correct?

A Correct.

Q You didn't disclose it in response to the City's discovery

requests; correct?

A Correct.

Q You showed up with it for the first time during your

deposition; correct?

A Yes.

Q And Exhibit 76 is the affiliation agreement signed by you

on the last page and Mr. de Haan, dated August 10, 2016;

correct?

A Yes.

Q And on the first page, if you look at the first page,

1 4 : 3 1 : 3 2 please, ma'am, of Exhibit 76, Exhibit 76 demonstrates that the

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parties are something called the United Federation of Churches

LLC DBA The Satanic Temple, and you, Michelle Shortt,

handwritten, parentheses, chapter head; correct?

A Yes.

Q Dated as of August 10, 2016; correct?

A Yes.

Q The only affiliation agreement that you've produced in

this case is the affiliation agreement that is marked for

identification as Exhibit 76; correct?

A Yes.

MR. CLAUS: We move for admission of Exhibit 76

Your Honor.

MR. KEZHAYA: No objection, Your Honor. We actually

stipulated.

THE COURT: Admitted.

(Exhibit 76 admitted.)

MR. CLAUS: Thank you.

BY MR. CLAUS: 

Q When Mr. Zarzycki made his request to Kelli Kuester in

February 2016, Exhibit 76 didn't exist; correct?

A Yes.

Q When Mr. Zarzycki asked the City of Scottsdale to cancel

the invocation and reschedule it, Exhibit 76 didn't exist;

correct?

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Q On May 23, 2016, when Jeremy Zarzycki was informed of the

City's long-standing practice to only allow organizations with

a substantial connection to the City of Scottsdale to give an

invocation, Exhibit 76 did not exist?

A That is correct.

Q Exhibit 76 creates the affiliation between the United

Federation of Churches LLC and you, Michelle Shortt, as

chapter head; correct?

A No.

Q You just testified you know of no affiliation agreement

and you have produced no affiliation agreement in this case

other than Exhibit 76; correct?

A That is correct, but --

Q You understood when you signed Exhibit 76 that it was

intended to be a contract; correct?

A Yes.

Q A contract between you and a party called United

Federation of Churches LLC; correct?

A Yes.

Q And you understood when you signed Exhibit 76 that

Exhibit 76 was the document that would create the Arizona

chapter of The Satanic Temple as an affiliate of the United

Federation of Churches LLC; correct?

A No. Because there was another affiliation agreement that

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MR. CLAUS: Objection, Your Honor. Move to strike.

Nonresponsive. It's not been disclosed.

THE COURT: Overruled. Overruled.

BY MR. CLAUS: 

Q You never disclosed any affiliation agreement other than

Exhibit 76; correct?

A That is correct.

Q You testified that when Mr. Zarzycki contacted Scottsdale,

you were still in the process of trying to establish the

Arizona chapter of The Satanic Temple; correct?

A That is correct.

Q Trying to establish; correct?

A In the process of forming.

Q Let's talk about the affiliate referred to in Exhibit 76.

The affiliate referred to in Exhibit 76 is the Arizona chapter

of The Satanic Temple; correct?

A Yes.

Q And you testified under penalty of perjury that you do not

know of any agreement signed by an authorized representative

of the United Federation of Churches LLC that confers

affiliation on The Satanic Temple Arizona chapter; true?

A I did not understand the question.

Q You do not know of any agreement signed by a

representative of United Federation of Churches LLC, the typed

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on The Satanic Temple Arizona chapter; correct?

A Correct.

Q After August 2016, an entity called Adversarial Truth LLC

was formed to operate something it called the Arizona chapter

of The Satanic Temple; correct?

A Correct.

Q Satanism has existed much longer than The Satanic Temple;

correct, Ms. Shortt?

A Yes.

Q You started your direct testimony talking about pendants

you wear. You never discussed and never asked anyone to

discuss your Baphomet pendant or what they mean to you with

any representative of the City of Scottsdale; correct?

A That is correct.

MR. KEZHAYA: Your Honor, we object under Rule 403.

This is duplicative of the earlier testimony of she didn't

tell anyone at the City of Scottsdale the nature of her

religious beliefs.

THE COURT: Overruled.

BY MR. CLAUS: 

Q You did not ask anyone to explain to the City of

Scottsdale at any time the meaning you imbued to the Lucifer

or sulfur cross pendants or -- strike that -- tattoos that you

have; correct?

1 4 : 3 7 : 3 9 A That is correct.

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Q You never asked anyone to deliver to the City of

Scottsdale any information related to the, quote, seven tenets

of The Satanic Temple, end quote; correct?

A That is correct.

Q You never delivered anything regarding the seven tenets to

the City of Scottsdale; correct?

A That is correct.

Q The seven tenets. The seven tenets is something that was

created by The Satanic Temple, not satanism; correct?

A Yes.

Q And you know who Anton LaVey is; correct?

A Yes.

Q Anton LeVay is someone who promoted satanism more than 50

years ago; correct?

A Yes. 

Q He wrote something called The Satanic Bible for satanists;

true?

A Yes.

Q You practiced LaVeyan satanism for some time; correct?

A Yes.

Q And the fundamental belief of LaVeyan satanism is that

practitioners can use something called magick, spelled with a

C-K at the end, to invoke supernatural or otherworldly powers;

correct?

1 4 : 3 8 : 5 9 A That is what it says.

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Q To effect change in the world; correct?

A That is what it says.

Q And that belief system promoted by satanism is

antithetical to the tenets publicized by the group calling

itself The Satanic Temple; correct?

A That is correct.

Q You are no longer the chapter head of anything called The

Satanic Temple; correct?

A Correct.

Q You are no longer the chapter head of the Arizona chapter

of The Satanic Temple; true?

A That is correct.

Q Adversarial Truth LLC was not formed until after the

e-mail communications between Mr. Zarzycki and Ms. Kuester;

correct?

A Correct.

Q And Adversarial Truth LLC was the entity organized to

operate the Arizona chapter of The Satanic Temple; correct?

A Yes.

Q The Adversarial Truth LLC, the entity organized to operate

the Arizona chapter of The Satanic Temple, was not organized

as an entity until April 14, 2017; is that true?

A Yes.

Q Do you have Exhibit 82 in front of you, ma'am?

1 4 : 4 0 : 4 6 Just tell me when you get it in front of you, ma'am.

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You have it?

A Yes.

Q Exhibit 82 is the articles of organization filed by the

entity called Adversarial Truth LLC; correct?

A Yes.

Q Reflecting a Corporation Commission filing stamp of

April 14, 2017; correct?

A Yes.

Q Signed on the second page by the organizer, Stuart Patrick

de Haan, on April 10, 2017; correct?

A Yes.

Q Mr. de Haan is the lawyer who represents you in this case?

A Yes.

Q And if you look at page 3, ma'am, of Exhibit 82, you are

identified as the only member of Adversarial Truth LLC;

correct?

A Yes.

MR. CLAUS: We move for admission of Exhibit 82,

Your Honor.

MR. KEZHAYA: Your Honor, we object because all

these go to the issue of standing, which the Court has

already addressed and denied in the 12(b)(1) motion.

THE COURT: So it is a relevancy objection?

MR. KEZHAYA: Yes, Your Honor.

1 4 : 4 1 : 5 9 THE COURT: Overruled. Exhibit 82 is admitted.

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(Exhibit 82 admitted.)

BY MR. CLAUS: 

Q You have heard satanism described as a, quote,

sociopolitical counter method, end quote; correct?

A Yes.

Q And you know that there is a difference between a

sociopolitical counter method and a religion; correct?

A Yes.

Q You've seen the documentary Hail Satan; correct?

A Yes.

Q You and Mr. de Haan were in and made statements in Hail

Satan; correct?

A Yes.

Q And there were no statements made by you or Mr. de Haan in

Hail Satan that were, to your knowledge, false or misleading;

correct?

A Correct.

Q When you saw the documentary Hail Satan, did you see

Stu de Haan refer to satanism as a, quote, sociopolitical

counter method, end quote?

MR. KEZHAYA: Objection, Your Honor. Calls for

hearsay.

THE COURT: Sustained.

MR. CLAUS: It's a statement by party opponent,

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THE COURT: He's not a party.

BY MR. CLAUS: 

Q Mr. de Haan -- if you have Exhibit 82, ma'am. Exhibit 82

are the articles of organization. Exhibit 82 identifies as

the statutory agent, Stuart Patrick de Haan, on page 1,

correct, for Adversarial Truth, LLC; correct?

A Yes.

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

will resume at 3 o'clock.

MR. CLAUS: Thank you, Your Honor.

(Recess taken from 2:44 to 3:00.)

THE COURT: Thank you. Please be seated.

You may continue, Mr. Claus.

MR. CLAUS: Thank you, Your Honor.

BY MR. CLAUS: 

Q Ms. Shortt, when we took a break I was having you look at

Exhibit 82. Could you please get that in front of you. 

Exhibit 82, the articles of organization, identify

one agent for the plaintiff in this matter, Adversarial Truth

LLC, and that is Stuart Patrick de Haan?

A Yes.

Q And that gentleman sitting at counsel table is Stuart

Patrick de Haan; correct?

A Yes.

1 5 : 0 0 : 4 6 Q And if you'd get, please -- do you have in front of you

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Exhibit 76, which is the affiliation agreement? 

On the last page of Exhibit 76, one of the

signatories of the affiliate, a plaintiff in this case, is

Stu de Haan. Do you see that?

A Yes.

Q So I'll ask you again, ma'am: You heard Stu de Haan refer

to satanism as a sociopolitical counter method; correct?

A No.

Q You testified that you had heard satanism described as a

sociopolitical counter method just moments ago; correct?

A Sociopolitical countermyth. You're misquoting.

Q No, ma'am. I asked you: "You have heard satanism

described as a sociopolitical counter method; correct?" 

And you answered you had.

A I misheard you. It's countermyth.

Q Ma'am, you gave two depositions in this case, one as a

deponent for the organization called Adversarial Truth LLC;

correct?

A Yes.

Q I have put your deposition transcript in front of and you

I've provided a copy to the Judge. It is the deposition that

has the green cover. If you turn, please, to page 31.

THE COURT: Have you got a copy for plaintiffs'

counsel?

1 5 : 0 2 : 3 0 MR. KEZHAYA: No, Your Honor, we don't have a copy. 

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But more to the point, this wasn't provided as a

deposition that would be used in the pretrial order. It also

appears to bear on the merits.

THE COURT: That's only for depositions that are

going to be presented as evidence, not for impeachment

purposes.

MR. KEZHAYA: Yes, Your Honor. As to the latter

point, though, that this appears to bear on the evidence that

this was not produced in the -- as an exhibit.

THE COURT: Well, I don't think deposition

transcripts need to be. Under the Federal Rules of Civil

Procedure, they can be used for any purpose at trial with

respect to a party, and Ms. Shortt is a party.

MR. KEZHAYA: Yes, Judge.

BY MR. CLAUS: 

Q Page 31, ma'am.

A Yes.

Q Line 2, I asked you the question: "Have you ever heard

satanism referred to as a sociopolitical counter method?"

And you gave the answer: "I've heard people calling

it that, yes. Not that I agree with it."

Did I read my question and your answer correctly.

A Yes.

Q In fact, I asked you specifically if you believe as the

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between a religion and a sociopolitical counter method;

correct?

A Could you repeat the question?

Q I asked you as designee of Adversarial Truth LLC if you

knew as the designee that there was a -- believed as the

designee that there was a difference between a religion and a

sociopolitical counter method; correct?

A There is a difference.

Q So when you testified under penalty of perjury during your

deposition that you had heard of satanism referred to as a

sociopolitical counter method, to whom were you referring to

if not Mr. de Haan?

MR. KEZHAYA: Objection. Calls for hearsay.

THE WITNESS: I --

THE COURT: Hold on.

Is this being offered for the truth of the matter

asserted that it is a counter method?

MR. CLAUS: No, it is not, Your Honor. It is being

offered to demonstrate that she heard that and disagreed with

it.

THE COURT: Why is that relevant if it's not to show

that it's a counter method, that's different from a religion?

Isn't that the point you're trying to make?

MR. CLAUS: Well, because the persons that I believe

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method are persons who are representatives of the plaintiff

in this case, and that certainly makes a fact of consequence.

THE COURT: Who are those people?

MR. CLAUS: I'm eliciting that testimony --

THE COURT: There's a hearsay objection. You want

to get into evidence that somebody said this. It's an

out-of-court declaration. It sounds to me like you're

offering it for the truth of the matter asserted. So are

these other persons parties?

MR. CLAUS: I'll ask it a different way, Your Honor.

THE COURT: Okay.

BY MR. CLAUS: 

Q When you testified that you heard satanism referred to as

a sociopolitical counter method, were you referring to a

representative of one of the plaintiffs?

A I had heard sociopolitical countermyth. That's what the

captions on the movie say.

Q And so --

MR. KEZHAYA: Objection, Your Honor. As a general

matter, we object to the use of the Hail Satan documentary

for evidentiary purposes. None of the filmmakers are --

THE COURT: He hasn't offered it in evidence. She

mentioned it. So I'm going to overrule that objection.

BY MR. CLAUS: 

1 5 : 0 6 : 1 5 Q When you gave your deposition in September of 2019, you

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believed that you had heard sociopolitical counter method

because you hadn't seen the closed-captioning either; correct?

MR. KEZHAYA: Objection, Your Honor. This is

clearly implicating hearsay. The closed-captioning is

referring to the closed-captioning of the film Hail Satan.

MR. CLAUS: She just testified --

THE COURT: Well, but I don't think it's being

offered for the truth of the matter asserted. It's as to

where she heard it. Inconsistent -- or he asserts

inconsistent with what she said in her deposition. So it's

overruled.

THE WITNESS: What was the question?

BY MR. CLAUS: 

Q When you testified in September of 2019 that you had heard

satanism referred to as a sociopolitical counter method, you

had not watched Hail Satan with the closed-captioning either,

had you?

A No, I do. I watch movies with captions.

Q Ma'am, the answer to my question is when you gave your

deposition testimony in September of 2019, where you testified

under oath that you had heard satanism referred to as a

sociopolitical counter method, the movie that you hadn't

watched with closed-captioning was Hail Satan; correct?

A I don't recall.

1 5 : 0 7 : 4 6 Q Between February 6, 2016, and July 6, 2016, one did not

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need to be a satanist to become a member of the Arizona

chapter of The Satanic Temple; correct?

A That is correct.

Q And when this lawsuit was filed in 2018, one did not need

to be a practicing satanist to become a member of the Arizona

chapter of The Satanic Temple; correct?

A That is correct.

Q And when you gave your deposition testimony as the

representative of two of the plaintiffs in this case, in

September of 2019, one did not need to be a satanist to be a

member of the Arizona chapter of The Satanic Temple; correct?

A That is not correct.

Q You testified that you were changing that, not that you

had changed it; correct?

A We had -- we were in the process of not accepting

non-satanists.

Q In the process of. You had not finalized that process as

of the time you gave your under oath deposition testimony in

this case; correct?

A That is correct.

Q You do not believe that there is an actual Satan; correct?

A Correct.

Q You never told a representative of the City of Scottsdale

that you do not believe there is an actual Satan; correct?

1 5 : 0 9 : 1 7 A Correct.

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Q Or an actual God; correct?

A Correct.

Q You are an atheist, ma'am; correct?

A Yes.

Q And as the spokesperson for the plaintiffs in this matter,

you know that an organization calling itself The Satanic

Temple promotes a belief system that is atheistic; correct?

A Yes.

Q You do not believe in a divine being at all; correct?

A I do not.

Q And the speech that you say you planned to give was not an

invocation on behalf of the City of Scottsdale, was it?

A Could you rephrase the question.

Q Sure. The speech that you say you planned to give in 2016

was not an invocation that you planned to give on behalf of

the City of Scottsdale council; correct?

A That is correct.

Q You wanted to give a speech on behalf of something you

call satanism; correct?

A Yes.

Q The speech you wanted to give is the same -- strike that.

The speech you want to give if you prevail in this

matter is not one that invokes any divine being to guide the

decision-making process of the members of the Scottsdale city

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A That is correct. No divine being is called.

Q The speech you want to give if you prevail in this

matter -- would you please get out Exhibit 4. You should have

a folder in front of you.

Exhibit 4 has been marked for identification.

Exhibit 4 has been described as the transcribed prayer that

you wish to give before a Scottsdale city council meeting; is

that accurate?

A Yes.

Q And is that the prayer you want -- is that the speech you

want to give if you prevail in this matter?

A Yes.

MR. CLAUS: We move for admission of Exhibit 4,

Your Honor.

MR. KEZHAYA: Your Honor, it's our exhibit, I don't

think we would object.

THE COURT: Admitted.

(Exhibit 4 admitted.)

BY MR. CLAUS: 

Q The speech you want to give if you prevail in this matter

does not invoke any higher power to guide the city council;

correct?

A That is correct.

Q Because you specifically intend to exhort, quote,

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A Yes.

Q Do you know what agnosticism means?

A Yes.

Q Do you know what agnostic means?

A Yes.

Q Turn please, to a folder in front of you, Exhibit 106.

MR. KEZHAYA: Your Honor, we object to reading from

page 106. This was provided after December 16.

THE COURT: I don't know what it is yet. 106 of

what?

MR. KEZHAYA: Exhibit 106 is Black's Law Dictionary,

the definition of agnostic.

THE COURT: Is that in the final pretrial order?

MR. CLAUS: Yes, Your Honor.

MR. KEZHAYA: We noted the objection in the pretrial

order as well, Your Honor. We first received it, if I

remember correctly, somewhere between December 30 and

January 3.

THE COURT: Why doesn't that fall to the objection

you've been making as to documents that weren't disclosed

before December?

MR. CLAUS: Your Honor, we'll withdraw it.

THE COURT: All right.

BY MR. CLAUS: 

1 5 : 1 3 : 1 3 Q Do you believe that agnostic means someone who believes

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that knowledge about ultimate things such as the origin of the

universe or the existence of a deity is not possible?

A That is true.

Q And therefore, when you exhorted -- strike that.

The speech you wish to give that exhorts agnosticism

in all things specifically will tell the audience that

knowledge about ultimate things such as the origin of the --

MR. KEZHAYA: Objection. We're reading from an

exhibit that has been excluded.

MR. CLAUS: No, we're not.

THE COURT: Start the question again, please.

MR. CLAUS: Yes.

BY MR. CLAUS: 

Q When you -- if you prevail in this matter, the speech you

want to give specifically will exhort the city council and

those attending the meeting of the city council that knowledge

about ultimate things such as the origin of the universe or

existence of a deity is not possible; correct?

A That is correct.

Q And, in fact, that deep and imponderable matters, such as

the origin of the universe, are unknowable; correct?

A That is correct.

Q And that is why you wish to tell the council, if you

prevail in this matter, that only matters that are, quote,

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true?

A Could you repeat the question?

Q Sure. Take a look at Exhibit 4, which has now been

admitted into evidence.

Because you wished to deliver a message to the city

council that deep and imponderable matters are unknowable, you

wished to deliver a speech that told the council that only

matters that are, quote, demonstrably true, end quote, are

capable of solving problems; correct?

A Correct.

Q You testified on direct about the seven tenets.

Is one of those tenets, ma'am, that you have a right

to offend?

A That is not the full context of the tenet.

Q Ma'am, that's not my question. Is one of the tenets that

you say is a tenet of one of the plaintiff organizations that

you have a right to offend?

A Yes.

Q And you know, should you prevail in this matter, that

giving a speech before a city council meeting of the City of

Scottsdale that calls the deeply held religious beliefs of the

council and the Scottsdale community a, quote, delusion of

old, end quote, is intended by you to be offensive; correct?

A No.

1 5 : 1 7 : 0 5 Q You do intend, should you prevail in this matter, to tell

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members of the Scottsdale city council and those in attendance

that their deeply held religious beliefs are what you call,

quote, delusion of old -- reading from Exhibit 4 -- end quote;

correct?

A Could you rephrase the question.

Q Sure. Should you prevail in this matter, you intend to

give a speech before the Scottsdale city council and to those

members of the Scottsdale community in attendance that refers

to their deeply held religious beliefs, as I'm quoting from

you, ma'am, in Exhibit 4, a, quote, delusion of old, end

quote; correct.

A No.

Q No?

A Not in the sense to offend.

Q That wasn't my question, ma'am. That wasn't my question.

Please listen to my question. I'll ask it one more time.

If you prevail in this matter, you intend to give a

speech before a Scottsdale city council meeting that refers to

the deeply held religious beliefs of those who hear your

speech as a, quote, delusion of old; correct?

A Yes.

Q And if a member of the Scottsdale community or the members

of the Scottsdale city council are offended by that reference,

your seven tenets say it's your right to offend; correct?

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Q In fact, the speech you want to give refers to predominant

religious beliefs of those in the Scottsdale community and on

the council as, quote, arcane doctrines born of fearful minds

in darkened times, end quote; correct?

MR. KEZHAYA: Objection, Your Honor. We have no

demographics information of records to indicate what the

balance of the City of Scottsdale's religious beliefs are.

THE COURT: Overruled.

THE WITNESS: That was my question.

No.

BY MR. CLAUS: 

Q Ma'am, you meant to give a speech before a Scottsdale city

council meeting that refers specifically to, quote, arcane

doctrines born of fearful minds in darkened times, end quote;

correct?

A Yes.

Q And what you mean by that is the prevailing religious

belief that does believe in spiritual guidance and a higher

power; correct?

A Could you rephrase the question.

Q No, ma'am. When you said -- strike that.

When you wrote and what you mean to say before a

Scottsdale city council meeting, if you should prevail, when

you tell the audience about, quote, arcane doctrines born of

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to a religious belief that believes in an actual God and

actual spiritual guidance; correct?

A Yes.

Q And if members of the city council and members of the

Scottsdale community are offended by your reference to their

authentic and sincere deeply held religious belief in a God

and spiritual guidance, so be it, because you have a right to

offend, according to your tenets; correct?

A Yes.

Q This belief system that you never told a representative of

the City of Scottsdale about does not purport to believe in

any deity; correct?

A Correct.

Q Does not have an official literary source of a doctrine;

correct?

A Correct.

Q Does not have an ordination program for pastors or

ministers; correct?

A Correct.

Q Does not hold mass or services; correct?

A Incorrect.

Q It did not hold mass or services at any time in 2016;

correct?

A Are we referencing Adversarial Truth LLC, The Satanic

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Q The Satanic Temple Arizona chapter did not hold a single

mass or service in 2016; correct?

A We had a ritual in 2016.

Q That is not my question.

A So it's incorrect.

Q I'm asking you to get the deposition transcript that has

the green cover. It is a transcript of the designee of

Adversarial Truth LLC.

You were the designee of Adversarial Truth LLC;

correct?

A Correct.

Q Turning your attention, ma'am, to page 59.

At line 22, keeping in mind I asked you this question

on September 26, 2019.

"Question: Does the Arizona chapter of The Satanic

Temple hold mass or services?"

Did I read my question correctly?

A You did not.

Q I did not read my question correctly?

A You did not -- you read your question correctly.

Q What was your one word under penalty of perjury answer?

A I said "No."

Q Then I asked you the question: "Did the Arizona chapter

of The Satanic Temple hold mass or services in February 8th --

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Did I read that question correctly?

A What line was this?

Q Starting at line 25, ma'am, on page 59. I asked you the

question: "Did the Arizona chapter of The Satanic Temple hold

mass or services in February 8th -- strike that, as of

February 8th, 2016?"

Did I read my question correctly?

A Yes.

Q And what was your one word under penalty of perjury answer

to that question?

A "No."

Q And then I asked you, ma'am: "Did the Arizona chapter of

The Satanic Temple hold mass or services as of July 6, 2016?"

Did I read that question correctly at lines 4 and 5

of page 60?

A Yes.

Q And what was your one word under penalty of perjury answer

to that question?

A "No."

Q The Satanic Temple does not espouse a belief that one must

be obedient to any God or higher power; correct?

A That is correct.

Q In fact, The Satanic Temple uses Satan as a metaphor to

symbolize the idea of rebelliousness to obedience; correct?

1 5 : 2 6 : 4 1 A Yes.

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Q The Satanic Temple espouses purely secular beliefs;

correct?

A No. Or wait. Could you repeat the question?

Q Sure. The Satanic Temple espouses secular beliefs;

correct?

I'll ask a question. Do you know what the word

secular means?

A I might -- could use a refresher. It's with government?

Q No, ma'am.

The Satanic Temple espouses beliefs that do not

believe in the divinity of anyone or anything; correct?

A That is incorrect. We refer as a nontheistic

organization.

Q Yes. An atheistic organization that does not believe

there is a God, does not believe there is a Satan; correct?

A Correct. However, atheistic and nontheistic are not the

same thing.

Q Ma'am, on the website of The Satanic Temple Arizona

chapter, you have described The Satanic Temple as an atheistic

organization; correct?

A Nontheistic, atheistic. Yeah.

Q The Arizona chapter of The Satanic Temple can admit any

members it wishes without any obedience to The Satanic Temple

in Massachusetts; correct?

1 5 : 2 8 : 4 1 A Could you repeat the question -- 

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Q Sure.

A -- or rephrase the question.

Q The Arizona chapter of The Satanic Temple can admit any

members it wishes without obedience to or following the orders

of anything called The Satanic Temple in Massachusetts;

correct?

A Correct.

Q There is no canonical source for the beliefs of The

Satanic Temple; correct?

A Correct.

Q You have no prayer books; correct?

A Correct.

Q No liturgical texts; correct?

A Correct.

Q Because you have no liturgy; correct?

A Liturgy?

Q Liturgy; correct?

A Could you define liturgy?

Q Prescribed prayer.

A Correct.

MR. CLAUS: May I have a moment, Your Honor?

THE COURT: Yes.

MR. CLAUS: I just want housekeeping, Your Honor.

We did admit Exhibit 4; is that correct?

1 5 : 3 0 : 3 7 THE COURT: Yes.

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MR. CLAUS: Thank you, Your Honor.

That's all I have.

If I could have a second to gather my --

THE COURT: While you're doing that, let me ask you

a question, Ms. Shortt.

Exhibit 4, which is the speech you were going to

give. I think the question was is that what you would intend

to give if you were allowed to do so. Is that what you

intended to give back in 2016 when you applied to do so?

THE WITNESS: Yes, sir.

THE COURT: Okay. Thank you.

THE WITNESS: Your Honor.

THE COURT: Any redirect?

MR. KEZHAYA: Yes, Your Honor.

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

BY MR. KEZHAYA: 

Q Do satanists, at least under The Satanic Temple, use

monikers from time to time?

A Excuse --

MR. CLAUS: I missed the question.

THE COURT: Re-ask it, please.

BY MR. KEZHAYA: 

Q Do satanists use pen names from time to time?

A Yes.

1 5 : 3 2 : 0 9 Q Are they sometimes called demonikers?

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A Yes.

Q Are you familiar with a person named Sheba?

A Yes.

Q Is Sheba her real name?

A No.

Q Has Sheba put out a ritual book of some sort?

A She has. She has some writings in regards to ritual.

Q Is that considered canon among TST?

MR. CLAUS: Disclosure, Your Honor, never. And

hearsay.

THE COURT: Overruled.

THE WITNESS: I wouldn't necessarily call it canon.

Our members are welcome to use whatever rituals or prayers

that they find useful for their lives. As to it being

canonized, I couldn't tell whether or not that is true or

not.

BY MR. KEZHAYA: 

Q What is your understanding of the concept of canon,

religious canon?

A Something that is accepted as true. I don't know how to

define canon, I'm sorry.

Q Would it be a fair characterization that it is mandatory,

in your mind?

A Yeah. That's a good word.

1 5 : 3 3 : 2 4 Q Earlier when you testified that there are no canon ritual

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books, is that because you don't believe that TST has

mandatory doctrine?

MR. CLAUS: Objection. Leading.

THE COURT: Sustained.

BY MR. KEZHAYA: 

Q Earlier when you testified that there were no canon books,

was the word canon influential in your answer?

A What was influential in my answer was written by members.

Like, does your organization have these writings or -- from

clergy or liturgy, which we don't. But as in regards to

canonized literature, not written by TST, we consider

Paradise Lost to be canon reading.

Q Okay. Are there other texts that TST would consider

canon?

MR. CLAUS: Foundation, Your Honor.

THE COURT: Overruled.

THE WITNESS: Anything from the Miltonic era. We

have writers such as Percy Shelley, Lord Byron, Anatole

France. These are all under what we like to call the

literary milieu of satanism in the romantic period.

BY MR. KEZHAYA: 

Q What is it about this particular period that makes it

canon?

A It was during the enlightenment era when, you know, fresh

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weren't necessarily following the status quo and were

persecuted for it.

Q And earlier you testified about persecution being a fairly

core belief of TST; is that right? Or perhaps standing up for

the persecution?

MR. CLAUS: Objection. Leading.

THE COURT: Sustained.

BY MR. KEZHAYA: 

Q You testified at some length that you personally never had

contact with members of the City. Do you remember that?

A Yes.

Q Has anyone at the City ever personally reached out to you?

A No.

Q To have any communication attempt whatsoever?

A No.

Q And importantly, nobody ever inquired of you what your

invocation would say?

A That is correct.

Q Did anyone ever inquire what your religious beliefs were?

A No.

Q Did anyone ever ask you about pendants or tattoos?

A No.

Q Did anyone ask you anything of tenets of any sort, from

the City?

1 5 : 3 6 : 2 6 A No.

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Q Was Jeremy Zarzycki vested with agency from The Satanic

Temple of Arizona?

MR. CLAUS: Objection, Your Honor. Leading. Also

outside the scope.

THE COURT: Overruled.

THE WITNESS: Jeremy, at the time he was kind of

like our secretary, he would take care of e-mails,

correspondence, anything in regards to invocations that we

were requesting.

BY MR. KEZHAYA: 

Q Was there ever any question among anyone in Arizona of the

Arizona satanic community of at least TST, who would be giving

the invocation?

A No.

MR. CLAUS: Objection, Your Honor. Speculation.

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q Was it always to be you?

A Yes.

Q Were you the one who would do the July 6 invocation?

A Yes.

Q When the July 6 invocation was revoked, was that your

invocation that was revoked?

A Yes.

1 5 : 3 7 : 3 3 Q Do you consider Exhibit 4 to be an invocation or a speech?

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MR. CLAUS: Objection, Your Honor. Relevance.

THE COURT: Overruled.

THE WITNESS: Do I personally consider it to be an

invocation or a speech? Speech.

MR. KEZHAYA: 

Q Do you consider it to be a religious speech?

A Yes.

Q Does this speech sound from your religious beliefs?

A Yes.

Q Is a person's right to religious freedom a core belief of

TST?

A Yes.

Q As a result, does pluralism sound from a core belief of

individualism of TST?

MR. CLAUS: Leading, Your Honor.

THE COURT: Overruled.

THE WITNESS: Yes.

BY MR. KEZHAYA: 

Q Are you a spokesperson for TST?

A Currently? No. Or oh, yes, in this regard only.

Q Okay. Are you vested with authority, at least as far as

this litigation goes, to speak on behalf of TST?

A Yes.

Q When you -- well, when an invocation was made of Phoenix,

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A Yes -- what?

Q Were you personally identified as the person who would

give the invocation to the City and council of Phoenix?

MR. CLAUS: Objection, Your Honor. Vague.

THE COURT: Overruled.

THE WITNESS: Yes.

BY MR. KEZHAYA: 

Q Did you receive any threats because of that request?

A Yes.

Q Did you receive death threats?

A Yes.

Q Did you receive rape threats?

A Yes.

Q Because of your experience receiving threats, did that

color your decision to have someone else reach out on your

behalf to Scottsdale?

MR. CLAUS: Objection. Leading.

THE COURT: Sustained.

THE WITNESS: Yes. I --

THE COURT: Hold on. I sustained that objection.

THE WITNESS: Oh, I'm sorry.

BY MR. KEZHAYA: 

Q Were you concerned about your safety, your personal

safety? Would you have been had you been identified by name

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MR. CLAUS: Speculation.

THE COURT: Overruled.

THE WITNESS: Yes.

BY MR. KEZHAYA: 

Q You were asked a series of questions about the affiliation

agreement. Do you remember those?

A Yes.

Q I believe one of the questions that you were asked is if

that's the only affiliation agreement that ever existed. Is

that accurate?

A It is not the only affiliation agreement that has

existed.

Q What other affiliation agreements ever existed?

MR. CLAUS: Objection, Your Honor. No disclosure,

Best evidence. Hearsay.

THE COURT: Overruled.

THE WITNESS: There was an earlier copy that we had

signed closer to the beginning of the year. I think it was

sometime in February. We could not procure a copy of that

for -- as an exhibit.

BY MR. KEZHAYA: 

Q Did you look for it?

A We tried looking for it.

Q You just couldn't find it?

1 5 : 4 1 : 1 1 A No.

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Q Is that why you never provided it to the City?

A That is correct.

Q Is that the only reason why you never provided it to the

City?

A Correct.

Q Have you at any time -- well, during the course of 2016

and beyond, have you ever been threatened with litigation for

appropriation of The Satanic Temple's intellectual property?

A No.

Q Has anyone ever taken issue with you saying, "I am acting

on behalf of The Satanic Temple"?

A No.

Q Have you discussed your requested invocation with Doug

Misicko since 2016?

A Yes.

Q Did he ever tell you that you acted outside your agency

authority in any way?

MR. CLAUS: Objection. Hearsay.

THE COURT: Sustained.

BY MR. KEZHAYA: 

Q Okay. Earlier you testified to the fact that the Arizona

chapter can admit members of TST Arizona even if they don't

consider themselves to be a satanist; is that right?

A Yes.

1 5 : 4 2 : 3 5 Q Do chapter heads have to be self-described satanists?

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A They do.

Q Is that a necessary condition of you becoming a chapter

head?

A Yes.

Q Did you take that seriously?

A Absolutely.

Q Is that as true then as it is now? 

A It is.

Q You were asked questions about LaVeyan satanism earlier.

Do you remember those?

A I do.

Q Specifically you were asked about the belief in magick; is

that right?

A Correct.

Q Does LaVeyan satanism, as a core doctrine, involve the

literal belief or the literal worship of a deity named Satan?

A No.

Q Is LaVeyan satanism a nontheistic religion as well?

A They are.

Q What does agnosticism mean to you in context of this

invocation?

A Agnosticism means that we truly cannot know or assert to

the belief whether there is or isn't a God. To claim that

you are absolutely certain, in my point of view, is a little

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life as an atheist. So that's how I see the difference in

agnosticism, and atheism is the belief that, sure, you cannot

know fully. Therefore that is agnosticism. But to live your

life according as if there is no God or devil, that's

atheism. 

Q Among the seven fundamental tenets of The Satanic Temple,

one of them are adherence to the scientific method; is that

right?

A That is correct.

Q What does that mean to you?

A It means that our beliefs can adapt and change over time.

If there's new science that proves something that we didn't

know before, we can mold and adapt our beliefs. And nothing

is really set in stone. There's no dogma involved. So we

just want to be accurate according to the most current

scientific findings.

Q Can that be extended into a general doctrine of

open-mindedness?

A Could you rephrase the question.

Q With respect to opinions, is open-mindedness an expansion

of the doctrine of scientific rationalism as espoused by the

seven fundamental tenets?

A Yes.

Q Insofar as dogma, as is conceived by many other religions,

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method tenet?

A Correct.

Q You earlier testified with some hesitation about the right

to offend. Do you remember that?

A Yes.

Q You indicated that there was more to the right to offend

than was being elicited from you. What more is there?

A The full tenet states we have the right to offend, to

willfully encroach upon another's liberty is to encroach upon

our own. However, after plenty of discussion within our

community, it doesn't just mean, you know, go offend

everybody without suffering consequences of your actions.

Q Is there discourse among The Satanic Temple's membership

what the seven fundamental tenets mean and how they should

apply?

A Oh, absolutely. They're pretty open-ended and they can

be applicable to numerous people in different situations, and

it is how they choose to apply the seven tenets that it truly

makes their satanism individual. Individualistic.

Q You were asked about -- sorry.

You were asked at some length about the text on

Exhibit 4. Do you remember those questions?

A Yes.

Q Did you actually write the text of Exhibit 4?

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Q Who did?

A Lucien Greaves.

Q Where did you get that text?

A I found it on the internet. It was posted by Lucien

or -- it was like in a news article, and I got if from there.

Q Do you adopt the language of Exhibit 4 as your -- as a

true expression of your religious beliefs?

A Yes.

Q Is that solely because Lucien said it?

A No.

Q Are you familiar with the Catholic concept of mass?

A Yes.

Q When you were asked questions about mass and services, did

the use of the word mass affect your answer?

A It did.

Q When you were asked about mass and services, did you

consider them in tandem?

A I considered them separate.

Q Okay. With respect to mass, do any members of The Satanic

Temple, to your knowledge, engage in Catholic mass?

A No.

Q Is it a true statement, then, that The Satanic Temple of

Arizona does not engage in mass?

A That is correct.

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services when asked about mass and services?

A Under -- as -- when he mentioned services, I considered

that such as our ritual events when we have rituals for our

members. That is religious in nature. So that's what I had

considered as a service.

Q Okay. Were you lying in your deposition when you said we

don't to do mass and services?

A I guess I hadn't recalled the ritual. I was pretty

nervous at the time.

Q Are you nervous now?

A Absolutely.

Q Any inconsistencies in your statement, is it your

intention to deceive the Court in any way? 

A No.

Q You were asked questions about a clergy program. Do you

remember those questions?

A Yes.

Q Is it true that as of right now in this moment, there is

no clergy program?

A That is correct.

Q Is that clergy program in the works?

A Yes.

Q What rituals were performed by The Satanic Temple of

Arizona in 2016?

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THE COURT: Overruled. 

THE WITNESS: For the entirety of 2016?

BY MR. KEZHAYA: 

Q To the best of your knowl- -- well, let's start with the

beginning of -- how many rituals were performed in 2016, to

the best of your knowledge?

A Two.

Q Do you recall when they were?

A The first one was our summer camping trip and the second

one was our November Bisbee ritual.

Q Do you recall the specific month of the summer trip?

A June.

Q June? This would have been before the July 6 invocation,

then?

A Yes.

Q What did you do in this summer ritual?

A We performed a destruction ritual.

Q Please describe for the Court what a destruction ritual

entails.

A A destruction ritual entails the participants to bring

forth an item that is a heavy burden on them. It could be

like a gift from an ex. It could be something that -- a gift

that gives them pain. Just something that they've been

holding onto for emotional reasons but aren't necessarily

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emotion that they have attached to this item, the ritual, the

point of the ritual is to destroy it, and along with

destroying this item, you are destroying whatever power or

hold that this item had over you. And you can in its

destruction become liberated.

Q Is this a group matter?

A Yes.

Q Does this destruction ritual involve explaining to the

group this is what this item means to me?

A They don't need to explain what the item means to them.

That's personal.

Q Do some choose to?

A Some can. Yeah. It's their choice, though.

Q Did you? Participate in this destruction ritual?

A I did.

Q Did you describe what the item was and what it meant to

you?

A I had no items to destroy. I was dancing and speaking

and playing with the tambourine.

Q I gather, then, that there was music involved as well.

A Like drumming. Like hitting stuff. Yeah.

Q Describe for the Court your emotional experience when

engaging in this destruction ritual?

MR. CLAUS: Relevance, Your Honor. Outside the

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THE COURT: Overruled.

THE WITNESS: It was cathartic. Despite not having

an item to personally destroy, the energy within the group

was amazing. Like, it was without words. People were

crying, people were hugging each other. Like, it was very

beautiful to watch.

BY MR. KEZHAYA: 

Q You talked about another ritual in 2016. What was that?

A That was our initial -- no, wait. That was our first

ritual. That was our Bisbee ritual. That was the unbaptism.

Q Sorry, how do you spell the ritual itself?

A U-N-B-A --

Q Oh, sorry. I don't mean to interrupt. But I believe you

said it was a busy or a --

A Oh. Bisbee. It's the City in which we held the event.

Q Where was this relative to Scottsdale?

A This is three hours south of Scottsdale. Three and a

half hours south.

Q Is this in a remote area or a fairly populated area?

A It's remote. Bisbee's a tourist town in the mountains.

Q And the first ritual, where did that take place?

A The camping trip?

Q I suppose. The destruction ritual.

A That was in Happy Jack, Arizona.

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A Two hours northeast, I think.

Q Let's turn back to the -- is it Bisbee?

A Yes.

Q The unbaptism ritual. Please describe for the Court what

the unbaptism ritual is? 

A An unbaptism ritual entails those who participate to shed

themselves of any hold that was placed upon them. Usually

it's against their will, you know, we're baptized as

children, so we didn't quite have a choice in that matter.

So now as adults we choose to be unbaptized and not have

anybody but ourselves take on our sins and be able to take

ownership of our accomplishments. So by being unbaptized you

assert that you don't need a savior, you are your own savior.

Q Would you describe that as religious in nature?

A Yes.

Q Did you participate in this ritual?

A Yes.

Q How did this ritual make you feel?

A Made me feel good.

Q I'm going to turn your attention back to Exhibit 4. I

notice some of these terms are -- some of these words are

capitalized. Let's start with Luciferian as an adjective for

impulse. What does that mean, a Luciferian impulse? To you.

A To me? It means to be the adversary. To not have any

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curiosity.

Q Is that impacted at all by the tree of knowledge or is the

tree of knowledge part separate from Luciferian?

A It's part of it. You know, it's -- Lucifer is

considered, you know, to be the light bringer. He who wanted

to give knowledge to the world and, you know, the tree of

knowledge kind of symbolizes that as, you know, he is said to

have shown Eve the tree of knowledge and guided her to it and

wanted her to eat from it so she herself could also imbue the

knowledge.

Q You also indicated you would exhort to the city council

that they "demand that individuals be just for their concrete

actions and not their fealty to arbitrary social norms and

illusory categorizations."

What does that mean to you?

A Well, it means that you're not going to give preferential

treatment to those who don't believe -- who -- it means that

you will not give preferential treatment to those who abide

by the social norms. That those who are different are held

in an equal space and judged equally through their actions

and not because of their beliefs.

Q Is it just beliefs or is it adhesion to social norms as a

general matter?

A It includes that as well, yes. 

1 5 : 5 8 : 3 1 Q You also exhort the council to "stand firm against any and

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all arbitrary authority that threatens the personal

sovereignty of" capitalized "ONE or" capitalized "ALL."

Let's take "one" and "all" first. Why are those two

words capitalized?

A I don't know. But I could assume that --

Q Well, I wouldn't ask you to assume. Do they mean anything

particular as capitalized or not, to you?

A Well, yes, when they're capitalized it shows emphasis

that we -- one is -- I don't know, it just puts emphasis on

it. I can't really explain. One is still as important as

all. Like, they're still equal. The beliefs of one are

still equal to that of the all. I'm not sure if I'm

explaining that right.

Q Okay. Let's take the sentence as a whole. As a whole,

what does this sentence mean to you?

A The sentence means to me that we should not --

Okay. So the sentence means that we should take care

in not making rules to prefer another -- to prefer one group

over another. If one person, even one person is discriminated

against, that is an injustice as it would be if many people

were discriminated against.

Q Is the pursuit of justice a core belief of The Satanic

Temple?

A Absolutely.

1 6 : 0 0 : 5 1 Q Let's take the next sentence in mind. "That which will

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not bend must break and that which can be destroyed by truth

should never be spared its demise."

What does that sentence mean to you?

A It means that if suitable compromise can't be reached,

then something is going to have to give. And I think that's

what it means by "must break." We need to be able to adapt

so that all groups, all people, can coexist together and be

respected in their beliefs. And those that go against such a

thing, those that choose to, you know, be discriminatory on

the basis of, I suppose, ignorance, that that's not good.

Q You conclude with "Hail Satan." Is that a phrase that

satanists use from time to time?

A Yes.

Q Is it charged with religious meaning to satanists?

A Yes.

Q Is it charged with religious meaning to you?

A Yes.

Q On balance, what is your intended message with this

invocation?

A My intended message by giving this invocation?

Q What is the intended message that you want the city

council to take away having heard this invocation? Assuming

we're prevailing and we get to give it.

A That we as satanists may not believe the same things as

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productive members of society and participate in invocations

as anybody else could.

Q Is it your intent to offend them through expression of

your beliefs?

A No.

Q Are you concerned if they are offended by your expression

of beliefs?

A No.

Q After the May 23rd cancellation e-mail, did the City ever

indicate any appeals process?

A No.

Q So when Scot asks you or indicates and elicits information

from you that you did not provide that information, why is it

that you did not provide that information?

A After --

Q After the May 23rd revocation.

A Because they didn't ask me. We didn't know it was a

requisite to provide this information.

Q To date, do you have a firm understanding of what the City

means when they say substantial connection?

A No.

Q Would you say The Satanic Temple of Arizona has a

substantial connection to Scottsdale as of today?

A Yes.

1 6 : 0 4 : 1 2 MR. CLAUS: Objection. Foundation. Relevance as of

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today.

THE COURT: Overruled.

BY MR. KEZHAYA: 

Q Let's start with your understanding of substantial

connection. When you say, "I believe we have a substantial

connection," what is your understanding?

A That members of the Arizona chapter live in Scottsdale.

Q Do you know how many as of today?

MR. CLAUS: Objection. Relevance as of today.

Foundation.

THE COURT: Overruled.

THE WITNESS: I could not tell you exactly, but we

do have members that live in Scottsdale.

BY MR. KEZHAYA: 

Q Is there a difficulty with collecting demographics data

with satanists?

A It is. We don't ask, really, where they live unless they

become official members. And if -- even if that, they also

use pseudonyms. So anonymity is important.

Q Why is anonymity important to the satanic community?

MR. CLAUS: Objection, Your Honor. Foundation.

Calls for hearsay. Outside the scope of cross.

THE COURT: Overruled.

THE WITNESS: Why satanists choose anonymity?

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potentially be fired. If they're parents, they could have

their parenting skills called into question. There's a lot

of reasons why people choose to keep their affiliation with

the Satanic Temple and their religious beliefs of being a

satanist a secret. It is usually not received well.

BY MR. KEZHAYA: 

Q Received well by who?

A Society.

MR. KEZHAYA: If I may be permitted a moment,

Your Honor.

THE COURT: You may.

MR. CLAUS: May I ask you now, Your Honor, if I can

scoot while we're changing a witness to go to the restroom?

THE COURT: He's not done yet. Hold on.

MR. KEZHAYA: I have one more line of questioning,

Your Honor.

BY MR. KEZHAYA: 

Q Does The Satanic Temple engage in efforts to spread the

message about its existence and the nature of its beliefs?

MR. CLAUS: Leading. Exceeds the scope.

THE COURT: Overruled.

THE WITNESS: Could you rephrase the question.

BY MR. KEZHAYA: 

Q Does The Satanic Temple spread the message that it exists?

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Q Does it spread the message of what its beliefs are?

A Yes.

Q How does it do that?

A Through our actions. And the media covers our actions

pretty heavily as well.

Q Are you aware when you take certain actions that the media

will probably take interest in those actions?

MR. CLAUS: Objection, Your Honor. Foundation.

Calls for speculation.

THE COURT: Overruled.

THE WITNESS: Yes.

BY MR. KEZHAYA: 

Q Were you aware specifically when you were inquiring into

Scottsdale that it would probably garner media attention?

A Yes.

MR. CLAUS: Same.

THE COURT: Overruled.

THE WITNESS: Yes.

BY MR. KEZHAYA: 

Q Did that dissuade you from looking into Scottsdale?

A No.

Q Did it encourage to you look to Scottsdale?

A No.

Q Did it have any effect on you going to Scottsdale as

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A No.

MR. KEZHAYA: No further questions, Your Honor.

THE COURT: All right. You can step down, ma'am.

You can run. We'll get the other witness on.

MR. KEZHAYA: Your Honor, we call Brian Biesemeyer.

THE COURT: Let's get you sworn in and then we'll

wait till Mr. Claus comes back in before we begin the

questioning.

THE COURTROOM DEPUTY: Raise your right hand.

State your name and spell your first and last name.

THE WITNESS: Brian Biesemeyer. It's B-R-I-A-N and

B-I-E-S-E-M-E-Y-E-R.

THE COURT: Okay. We can proceed with the

questioning.

MR. CLAUS: Thank you, Your Honor.

BRIAN BIESEMEYER,

called as a witness herein, after having been first duly sworn 

or affirmed, was examined and testified as follows: 

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

BY MR. de HAAN: 

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

record.

A Sure. It's Brian Kevin Biesemeyer.

Q And during the end of 2015, beginning of 2016, what was

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A Acting city manager for the City of Scottsdale.

Q And was that -- was that a temporary situation or is

that -- was that your role since then?

A No, it was -- as the name says, it was acting until a

permanent city manager would be hired.

Q And as the acting city manager did you answer to the city

council for decisions?

A I was -- ultimately the city council appointed me and

ultimately the city council could release me.

Q Okay. So but when you made any policy decisions, did you

seek guidance from the city council in general?

MR. CLAUS: Objection, Your Honor. Foundation.

THE COURT: Overruled.

THE WITNESS: Most policy decisions, no. And

generally you get this -- the policy decisions would be

handed down through agendized decision-making of the council.

BY MR. de HAAN: 

Q So when you were to make a decision, it was something that

was handed down from the city council; is that -- 

A Well, policy decisions would come down directly from

council decisions and then be passed down as policy.

Q Okay. And then would you ratify it? Or how -- what

was --

A Mine was to administer that policy of the council's

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Q So city council -- just to make sure I understand. City

council would make a policy and you would institute it,

essentially?

A That's correct.

Q Now, before this incident, were you involved in invocation

selection process?

A I was not.

Q And you weren't the one that scheduled the invocations; is

that right?

A That's correct.

Q Was that the job of Kelli Kuester?

A Yes.

Q And she worked for the mayor's office; is that right?

A That is correct.

Q And the mayor's office is separate from the city manager's

office?

A It is.

Q Now, at this time, at the end of 2015, beginning of

2016 -- when I say "this time" that's what I'm referring to in

general -- you weren't aware of any standing policy of how the

invocations were selected; is that right?

A We didn't have a standing policy, that's correct.

Q So when The Satanic Temple first made the request, how did

you hear about it?

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DIRECT EXAMINATION - BRIAN BIESEMEYER

office or the mayor's office, that it had been scheduled and

then subsequently that there was a scheduling issue.

Q Okay. So she told you which group was making the

invocation?

A She did.

Q Does she normally tell you which groups are giving

invocations?

A Not normally, only because I believe of the number of

e-mails and other -- just the general traffic into our office

with phone calls and e-mails of this particular invocation.

Q Okay. So just to get the timeline, this invocation was

scheduled and then there was a lot of public or community

response to this?

A Well -- and I apologize, I don't remember all the

timelines in that arena because there was also the uproar

with the City of Phoenix and that invocation, and then

Scottsdale. So I don't have that down exact, but -- so I

guess could you repeat your question?

Q Okay. I understood.

And you might not know this, I'm not sure, but so the

first understanding you had was that the invocation for The

Satanic Temple had been scheduled; is that right?

A Yes.

Q Was the next thing you heard that they were rescheduling

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DIRECT EXAMINATION - BRIAN BIESEMEYER

you recall?

A No, I can't recall. It was all pretty much the same time

frame in my memory.

Q Okay. So this all happening contemporaneously?

A Yes.

Q All right. Were you aware that the invocation was then

rescheduled to a later date?

A I was told we were looking for a later date.

Q Okay. For The Satanic Temple?

A Yes.

Q All right. Was that the last you heard or was it

confirmed to you that it was rescheduled?

A No, it was not confirmed to me that it was rescheduled.

Q Okay. So because there was no policy in existence, there

was never any appeals process if someone were to be denied;

right?

MR. CLAUS: Objection, Your Honor. Misstates

testimony. Foundation.

THE COURT: Overruled.

THE WITNESS: Without a formal policy, there's no

formal appeals process.

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Q And after the new policy was made, there was no appeals

process; is that fair to say?

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DIRECT EXAMINATION - BRIAN BIESEMEYER

practice and looked at that practice and then implemented

what had been our practice.

Q Okay. All right. But -- well, let's talk about that,

then.

As far as substantial community ties, which is what

was cited to The Satanic Temple as far as their denial, let's

start there. That was the cited reason for their denial;

correct?

MR. CLAUS: Objection, Your Honor. Misstates

evidence.

THE COURT: Overruled.

THE WITNESS: I'm sorry, say the question --

BY MR. de HAAN: 

Q Okay. So the cited reason to the Satanic Temple why they

were unscheduled is because of a lack of substantial community

ties. That was the cited reason; correct?

MR. CLAUS: Objection, Your Honor. May I have a

continuing objection to every time he says substantial

community ties, there's a standing objection because that is

misleading and misstating.

THE COURT: Overruled.

THE WITNESS: Substantial connection to the City of

Scottsdale.

BY MR. de HAAN: 

1 6 : 1 7 : 5 2 Q Right. Okay. But was there a verification process or

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criteria or anything like that for what that meant?

A We didn't -- I did not do any verification process of

that.

Q And that's for The Satanic Temple, or other groups as

well?

A For any of those groups we -- I should correct myself.

During the time between it was originally scheduled and then

there was a conflict, we had the opportunity to look back at

our past practices. Given those past practices, we made the

decision that there was not the substantial connection with

The Satanic Temple in Scottsdale.

Q Okay. But you didn't try to look into that? You

didn't --

A I had -- personally, I did not. I had others.

Q Okay. And when you say that, are you referring to

Kelli Kuester?

A No.

Q So who did you get that information from?

A From the city attorney's office.

Q Okay. So whose knowledge was it based on in general of

this long-standing practice?

A It was based on research done by the city attorney's

office.

Q Okay. And this is only after this -- this only occurred

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A It was done only after the rescheduling conflict.

Q Okay. And still there was no fixed criteria about what

that means, the substantial connection?

A We didn't say X number of people or exact locations in

that, no.

Q Okay. So at the time, as far as you know, all the

invokers were physically within Scottsdale; is that right?

A The ones that I had seen, I believe were. But I went

through the research. We'd seen that others were not located

in Scottsdale. And again, of the -- in my deposition I went

to the Brophy example, where there was a priest from Brophy

who gave the invocation. But there is a substantial number

of folks in Scottsdale that have kids attend Brophy High

School.

Q Okay. So I -- and I do recall we talked about that

before.

Also, that -- as far as your understanding, that was

the only one you could cite; is that right?

A That was the only one recited to me after the research.

Q Okay. So these were cited to you. This wasn't your own

independent research?

A Yes.

Q So if I tell you a list of churches or religious

organizations, you couldn't tell me where they were located or

1 6 : 2 1 : 1 8 not? Whether they're within or withoutside -- or outside of

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DIRECT EXAMINATION - BRIAN BIESEMEYER

Scottsdale, I mean?

A Perhaps some. Perhaps. I don't have knowledge of all of

the churches in Scottsdale or the vicinity.

Q Of the ones outside of it, only Brophy is the one that you

could say had any substantial connection?

A It was the only one given to me as an example.

Q Pinnacle Church in Tempe wasn't cited as an example?

MR. CLAUS: Objection, Your Honor. Misstates.

THE COURT: Overruled.

THE WITNESS: No.

BY MR. de HAAN: 

Q Okay. Ascension Lutheran Church, do you know where that

is?

A No.

Q And you wouldn't be able to say what their substantial

community ties are or connection to Scottsdale?

A I'd have to have more data about that, those individual

cases.

Q Or Pinnacle Church, where that's located?

A Again, I'd have to have more information.

Q All right. So I guess it's fair to say you don't have

independent knowledge of locations or independent substantial

community ties of any of these churches individually?

A I was not given those examples, no.

1 6 : 2 2 : 2 8 Q Okay. So at the time The Satanic Temple made the request,

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DIRECT EXAMINATION - BRIAN BIESEMEYER

you weren't familiar with them; is that fair to say?

A That's correct.

Q You didn't know where their headquarters were?

A I had been informed that their headquarters was in

Tucson. There's also information in the papers that implied

they were from Tucson as well.

Q Is that from the media?

A Yes, from the media in general.

Q Okay. Was that information from the mayor's office?

A I believe Kelli Kuester said that they were also from

Tucson.

Q And as far as you know, has any other group ever been

denied participation in the invocation?

A I know of no others.

Q So at some point -- so you're aware of the e-mails that

came flooding in from one church?

A I'm aware there were a number of e-mails. What church

they came from, I don't know.

Q Okay. So we're talking 15,000 e-mails?

A It was in the tens of thousands.

Q It actually shut down the servers at one point; is that

right?

A That's what Ms. Kuester said.

Q Okay. And it was after that that the denial of the

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DIRECT EXAMINATION - BRIAN BIESEMEYER

A It was after that that we did the research on our past

practices.

Q Okay. Now, as far as any discussions with any city

councilmembers, you said you had one conversation with

Councilman Klapp; is that right?

A That's correct.

Q Do you recall the contents of that conversation?

A For the record, I have many conversations with

Councilman Klapp. But for this specific topic at hand, yes,

I did have one conversation with her; correct. And it was in

the context of a number of different items that she wanted to

talk about.

Q She expressed her concern about this?

A She did.

Q Okay. And you had stated before that you didn't remember

the details.

A I did not. Only that she was concerned about allowing

The Satanic Temple to give an invocation.

Q Now, you actually -- were you the one that put together

the contents of the e-mail that was ultimately sent to the

representatives of The Satanic Temple?

A I gave that content to Ms. Kuester.

Q Okay. And did you also clear that with city council

before it was sent out?

1 6 : 2 5 : 2 9 A I didn't clear it. I mean, I don't know the timing. I

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DIRECT EXAMINATION - BRIAN BIESEMEYER

sent them a notification that I was going to do this action.

I don't know if I sent it before Kelli notified The Satanic

Temple or not. It was close to the same day, as I recall.

Q But that's -- is that something that would be normal for

you to do is clear this type of e-mail that you were going to

send? Was it normally you would clear that with city council?

A It wasn't a clearance, it was a notification. I

typically notify them on significant issues -- if we take

action on a significant issue that impacts the City as a

whole, I would notify them.

Q Okay. So you were in communication with them through this

process?

THE COURT: Who is them?

MR. de HAAN: Sorry. The city councilmembers or the

mayor's office.

THE WITNESS: I had the single conversation we

discussed.

BY MR. de HAAN: 

Q So that was the only cited reason -- the reason cited, the

substantial community ties, was the only reason cited to the

representative of The Satanic Temple; is that right?

MR. CLAUS: Objection, Your Honor. Misstates.

THE COURT: Overruled.

THE WITNESS: It's cited in the e-mail that we're

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DIRECT EXAMINATION - BRIAN BIESEMEYER

Q Okay.

MR. de HAAN: May I have a moment, Your Honor?

BY MR. de HAAN: 

Q You had mentioned that there was some investigation from

the city attorney's office?

A That's correct.

Q Do you know who did that?

A I do not.

Q You don't remember or they didn't tell you?

A They did not -- the city attorney, Bruce Washburn, did

not tell me.

Q And apparently there was no documents generated about

this?

A I didn't see any documents.

Q And when Ms. Klapp, or Councilman Klapp, mentioned her

concerns, you don't recall the nature of these concerns?

A No.

Q And as far as the word substantial, it's just a number of

people? Proximity to Scottsdale? Or a number of brick and

mortar buildings? Were there any criteria at all?

A It was generally assumed the criteria was it was in

general proximity to the City and there were a number of

people, more than one or two, within the City that were

involved with that institution.

1 6 : 2 8 : 2 8 Q Okay. As far as the Brophy example that you've cited, did

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DIRECT EXAMINATION - BRIAN BIESEMEYER

someone give that information to you or is that something you

knew offhand?

A No. It was provided to me through the research.

Q Okay. And that, again, was through the city attorney's

office?

A City attorneys's office.

Q And you couldn't say who did that? 

A I do not know. 

Q Okay.

MR. de HAAN: No further questions, Your Honor.

THE COURT: All right. We will take up

cross-examination tomorrow morning. We will break.

You can step down, sir.

THE WITNESS: Sure.

THE COURT: If you give me just a minute, I'll tell

you how much time each side has used.

All right, counsel, as of the end of today

plaintiffs have used three hours and 40 minutes. Defendants

have used one hour and 54 minutes.

Let's plan to be here tomorrow morning at 8:45.

What is your best guess, I recognize it's only a

guess, as to how long this is going to go tomorrow given the

witnesses that are left?

MR. KEZHAYA: Your Honor, from here we have Kuester.

1 6 : 3 1 : 0 0 I can't tell how to pronounce her name, but she should take

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Case 2:18-cv-00621-DGC Document 116 Filed 04/24/20 Page 259 of 262
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DIRECT EXAMINATION - BRIAN BIESEMEYER

about as long as the other city employees. Then we have Doug

Misicko, who should take about as long as Michelle Shortt.

THE COURT: Well, Ms. Shortt took almost two and a

half hours.

MR. KEZHAYA: Correction, Your Honor, Doug should

take much less than that. He's just here to cover the

religious nature of TST.

THE COURT: All right. 

And then how about the from the City?

MR. CLAUS: Your Honor, keeping in mind your

admonition that you're not holding us to it necessarily, I

think I have perhaps 20 minutes for Mr. Biesemeyer. I have a

similar amount of time. So however much time they take with

direct examination of Mr. Misicko, I intend to use on cross.

And if we are in a position where we need to put on a case,

Your Honor, we will be calling -- oh, I'm sorry, and

Ms. Kuester will take however long they take with her on

direct.

If we have to put on a case, Your Honor, we will

only be calling Ms. Kuester and Mr. Biesemeyer, unless

something extraordinary happens between now and when

plaintiffs rest. And that will take no more than an hour

cumulatively.

THE COURT: Okay. All right. We will see you

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Case 2:18-cv-00621-DGC Document 116 Filed 04/24/20 Page 260 of 262
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Sorry, counsel, I made a mistake. I'm double

checking my math.

Defendants have actually used two hours and 14 minutes,

not one hour and 54 minutes.

Okay. Thanks.

MR. KEZHAYA: Plaintiff was still correct?

THE COURT: Yeah, yours was still correct. I just

left 20 minutes off of theirs.

(End of transcript.)

* * * * *

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Case 2:18-cv-00621-DGC Document 116 Filed 04/24/20 Page 261 of 262
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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 

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