Reply in Support of Summary Judgement
Paul F. Eckstein (#001822)
Daniel C. Barr (#010149)
Ann Hobart (#019129)
Brown & Bain, P.A.
Post Office Box 400
Phoenix, Arizona 85001-0400
(602) 351-8000
(602) 351-8000
Arizona superior Court
Maricopa County
Preliminary Statement
Four years ago, in a previous defamation action brought by the Church of Immortal Consciousness ("COIC") concerning allegations of cult-like practices, Coconino County
Superior Court Judge M. Michael Fluornoyruled that plaintiffs were "public figures." [Plaintiffs' Response to Motion of Scripps Howard Broadcasting Co. and Tony Kovaleski for Summary Judgment ("Pl. Res. to KNXV") at 19 n.7] Over the past four years, the COIC's reputation as a cult has been fortified, and plaintiffs continue to be at the center of a public controversy concerning application for state charter funds for the Church-affiliated Shelby School, which this Court has held makes plaintiffs' reputation as a cult "a matter of public concern." [Minute Entry Regarding Defendants Scripps Howard's and Tony Kovaleski's Motion for Summary Judgment ("ME") at 14 (Affidavit of Daniel C. Barr in Support of Rick Ross' Motion for Summary Judgment ("Barr Aff"), Ex. U)]
The COIC's response does not meet the tough standards of proof and the evidentiary burdens necessary to survive summary judgment. It fails to present any evidence either to controvert in any material way Ross' Statement of Undisputed Facts or affirmatively to establish that any of Ross' challenged statements were made with actual malice. Plaintiffs' response instead is based on factual and legal conclusions that are either irrelevant, inadmissible or unsupported by the record.
Argument
- FOR PLAINTIFFS' ACTION TO SURVIVE, THERE MUST BE SIGNIFICANTLY PROBATIVE EVIDENCE THAT ROSS' STATEMENTS ABOUT THE COIC WERE FALSE AND THAT HE MADE THEM WITH ACTUAL MALICE.
- Plaintiffs Have the Burden of Proving the Falsity of Ross' Characterization of the COIC as a "Destructive Cult."
In denying that Ross' comment that the COIC was a "destructive cult" related to an issue of public concern, plaintiffs disregard a crucial paragraph of this Court's Minute Entry on Defendants Toni Kovaleski's and Scripps Howard's previous Motion for Summary Judgment:
Because the granting of charter status carries with it the outlay of taxpayer money, this issue is a matter of public concern . . . .
Where damages are sought for speech relating to a public concern, the Plaintiff is required to prove falsity. Turner v. Devlin, 174 Ariz. 201 (1993). It follows that the alleged defamatory statement must be provable as false before there can be liability. Id. at 206 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). As to Defendants' argument that the statement that the Church of Immortal Consciousness (Church) is a "dangerous cult" is not provable as false, information contained in the "Rick Ross Website" lists several objective criteria for determining whether a group is a cult and/or a dangerous cult. Thus, the statement that the Church is a dangerous cult is provable as false.
[ME at 14-15 (Barr Aff., Ex. U)] By this language, the Court ruled that Ross' characterization of the COIC as a "destructive cult" related to a matter of public concern--obtaining funding for the COIC-affiliated Shelby School--and placed the burden of proving the falsity of that statement squarely on the plaintiffs. The Court also specified that to meet their burden of proving Ross' statement false, plaintiffs must show that the COIC does not manifest Ross' criteria of a dangerous or destructive cult.
In light of this Courts previous ruling, plaintiffs' argument that whether the COIC is a "destructive cult" is an improper concern as a "matter of law" for either the public or the Arizona State School Board is misplaced. [Plaintiffs' Response to Defendant Rick Ross' Motion for Summary Judgment ("Pl. Res. to Ross") at 7, 22] Though, as the Court of Appeals has ruled, "religion or public hostility" are improper grounds for the Board to deny the Shelby School charter funding, Shelby School v. Arizona State Bd. of Educ., 192 Ariz. 156, 163, 962 P.2d 230, 237 (Ct. App. 1998), Ross' characterization of the COIC as a destructive cult does not reference the Church's religious beliefs, nor is it based on hostility toward the COIC. Ross' use of the term "destructive cult" instead references the actions of the COIC's leadership and is based, as this Court has ruled, on certain criteria, among them financial exploitation of, and lack of financial accountability to, COIC members. The appellate decision in Shelby School does not imply that the Board may not base its decision to grant or deny charter funding, which the Board must be confident will be administered responsibly, on such factual considerations. Nor does it imply that questionable financial practices on the part of COIC leaders is not a matter of public concern in the context of the COIC's application for state funds.
- Plaintiffs Are Limited Purpose Public Figures Who Must Show that Ross Acted with Actual Malice.
Plaintiffs' Response ignores that under Arizona law, plaintiffs may be classified as limited purpose public figures for two independent reasons: (1) "their 'purposeful activity' in 'thrusting' themselves into matters of public controversy"; or (2) "their close involvement with the resolution of matters of public concern." Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 483, 724 P.2d 562, 569 (1986) (citations omitted). [See Pl. Res. to Ross at 20]. Plaintiffs qualify as public figures under both of these tests and therefore have the burden of proving by clear and convincing evidence that Ross made his comments about the COIC with actual malice. Dombey, 150 Ariz. at 485, 724 P.2d at 571.
This Court already has established a predicate element of Dombey's second test for determining that plaintiffs are public figures by finding the COIC-affiliated Shelby School's application for charter funds a matter of public concern. That plaintiffs individually and collectively are also "close[ly] involve[d] with the resolution" of the Shelby School's application for state funding cannot be denied with candor. Plaintiffs conclusory assertion that the COIC and Shelby School were "legally separated" [Pl. Res. to Ross at 21] does not withstand the following facts: (1) Steven Kamp recently has served, at his request, as president of the Shelby School. [Statement of Facts in Support of Rick Ross' Motion for Summary Judgment ("SOF") ¶ 25]; (2) The designated applicant for charter funds and two of the three board members of the Shelby School at the time of the application were COIC members. [Statement of Facts in Response to Defendants' Motions for Summary Judgment ("Pl. SOF") ¶¶ 24-25]; and (3) Steven Rensch, a Church member and a son-in-law of Steven and Trina Kamp, has been counsel to Shelby School in its action challenging the Board's denial of charter funding. See Shelby School, 192 Ariz. 156, 962 P.2d 230.
Moreover, by ruling that Ross' characterization of the COIC as a destructive cult is related to a matter of public concern--Shelby School's application for taxpayer dollars--this Court has foreclosed plaintiffs' arguments that Ross' comments concerning the COIC "on Channel 15 and at ASU had nothing whatsoever to do with the Shelby School's charter application" and that their substance was not a proper subject for the public's or State School Board's attention. [Pl. Res. to Ross at 22; ME at 15 (Barr Aff., Ex. U)]
As for Dombey's first test of limited public figure status, plaintiffs deny that they have purposefully thrust themselves into a public controversy by separating their application for charter school status from the Miller lawsuit and by portraying the media coverage of the latter as nothing more than the COIC's attempt to defend itself in the press from "the vile accusations" at issue there. [Pl. Res. to Ross at 22] However, the central issue in both the Miller lawsuit and the Shelby School's application was the public controversy about whether the COIC is a cult. [Pl. SOF ¶¶ 39-40] Whether Steven Kamp initiated Trina Kamp's trance of Dr. Duran on KMOG radio after the COIC dismissed its suit against the Millers or merely "agreed" to it, as he did to the trance for The Arizona Republic, is irrelevant. Plaintiffs concede that they actively participated in these media events in "an effort to quell the negative effect of the rumors at issue in the Miller suit." [Pl. Res. to Ross at 23] Moreover, because the final months of the Miller action coincided with the Shelby School's application for charter status, plaintiffs thrust themselves anew into an ongoing public controversy of which they were at the center: whether a group suspected of being a destructive cult should obtain state funding to operate a school open to all Arizona children.
- PLAINTIFFS HAVE NOT ADDUCED SIGNIFICANTLY PROBATIVE EVIDENCE THAT ROSS' COMMENTS ABOUT THE COIC ARE FALSE.
To survive summary judgment, plaintiffs now must point to "specific facts showing that there is a genuine issue for trial" concerning whether the COIC does not possess the characteristics that Rick Ross attributes to destructive cults. Ariz. R. Civ. P. 56(e); see Orme Sch. v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citation omitted); accord Heuisler v. Phoenix Newspapers, Inc., 168 Ariz. 278, 282, 812 P.2d 1096 1100 (Ct. App. 1991) (motion for summary judgment in a libel case should be granted where facts offered to defeat motion "have so little probative value, given the quantum of evidence required" that a reasonable jury could not return a verdict in favor of the nonmoving party).
Plaintiffs cannot point to "significantly probative" evidence that Ross' characterization of the COIC as a "destructive cult" is false. Their response relies instead on the following categories of assertions, none of which can be considered in ruling on Ross' motion: (1) unspecified objections to Ross' statement of facts (Palila v. Hawaii Dep't of Land & Natural Resources, 639 F.2d 495, 497 (9th Cir. 1981) (Non-moving party "cannot withstand a motion for summary judgment by simply asserting that the facts are disputed.")); (2) irrelevant assertions of fact unsupported by the record; and (3) legally and factually conclusory assertions from their own self-serving affidavits (Florez v. Sargeant, 185 Ariz. 521, 526, 917 P.2d 250, 255 (1996) ("[A]ffidavits that only set forth ultimate facts or conclusions of law can neither support nor defeat a motion for summary judgment.")).
Moreover, plaintiffs have not come forward with "significantly probative" evidence that Ross' comments about the COIC at his ASU lecture or in the November 30, 1995 New Times article were false. [Pl. Res. to Ross at 17-19] Indeed, they do not even establish, through specific reference to the lecture transcript and application of case law, that the majority of those statements should be treated as objective facts that concern the plaintiffs--threshold matters in any defamation inquiry. Turner v. Devlin, 174 Ariz. 201, 207, 848 P.2d 286, 292 (1993) ("To be actionable [allegedly defamatory] words must be capable of being reasonably interpreted as stating actual facts about [the plaintiff].").
- Unspecified Objections to Ross' Statement of Facts Are Not Significantly Probative.
Plaintiffs dispute, without explanation, much of the sworn testimony that Ross has adduced to prove that the COIC possesses the qualities of a destructive cult. They generally dispute Steven Kamp's deposition testimony in 10 instances. [See Plaintiffs' Response to Statement of Undisputed Facts in Support of Rick Ross' Motion for Summary Judgment ("Pl. Res. to Ross SOF") ¶¶ 22-24, 26, 28, 31, 42-43, 47-48, 50] They similarly dispute the deposition testimony of former COIC members in 18 instances. [See id. ¶¶ 27, 30, 39-41, 44, 51-55, 57-61, 64-65, 67, 73]. Plaintiffs dispute the deposition testimony of Steven Rensch on one occasion. [See id. ¶ 46] And they even dispute, for unstated reasons, the deposition questions of their attorney Chuck Walker. [See id. ¶ 29]
- Unsupported and Irrelevant Statements Are Not Significantly Probative.
Page limits do not permit an exhaustive catalogue of all the unsubstantiated or irrelevant assertions in plaintiffs 31 page response. The following, however, are illustrative of plaintiffs' tendency to make claims that either are unsupported by, or simply do not reference, their statement of facts.
Plaintiffs assert that Rick Ross "places the Church in the same category as the Waco Branch Davidians, the Heaven's Gate, and Jonestown." [Pl. Res. to Ross at 1 (citing Pl. SOF ¶¶ 97, 103)] Paragraph 97 of plaintiffs' statement of facts, however, references widely separate pages (10 to 33-34) from the transcript of Steven Rensch's telephone conversation with Rick Ross in which Ross first declines to come to Tonto Village to interview COIC members and latter says that he interviewed perhaps 12 people at the Branch Davidian compound in Waco, Texas. [Pl. SOF ¶ 97] Ross does not mention Heaven's Gate or Jonestown in either passage, nor do plaintiffs even assert that he does at paragraph 103 of their statement of facts. [Id. ¶ 103]
The following assertions appear without any reference whatever to the plaintiffs' statement of facts in violation of Uniform Rule of Practice IV(f): (1) "Current members of the Church will also testify that the Kamps are, and have always been, highly accountable to them." [Pl. Res. to Ross at 9]; (2) "In fact, the level of accountability in the Church is far greater than that in most organizations, consistent with the Church's teachings that open communication is creative." [Id. at 10]; and (3) "The truth is that Churchmembers watch television, read books and newspapers, involve themselves at every level of community activity, and make friends from every walk of life." [Id. at 16]
- Conclusory Affidavit Testimony is Not Significantly Probative.
Plaintiffs base the following assertions on the February 5, 1999 affidavit of plaintiff Steven Kamp. The list is far from inclusive. (1) "[A]ll [COIC financial] decisions were open to anyone who wanted to know about them, and financial issues were regularly discussed in formal or informal meetings of Churchmembers." [Id. at 10]; (2) "The relationship between the Plaintiffs and most of the residents of Tonto Village has always been good." [Id.]; and (3) "The Church filed the Miller lawsuit because of rumors circulated by those defendants that Churchmembers sold babies, drank blood, sacrificed animals and worshipped the devil." [Id.]
- PLAINTIFFS HAVE NOT ADDUCED ANY EVIDENCE, MUCH LESS CLEAR AND CONVINCING EVIDENCE, THAT ROSS' COMMENTS ABOUT THE COIC WERE MADE WITH ACTUAL MALICE.
As public figures, plaintiffs have the burden of proving that Ross made his comments about the COIC with actual malice. Dombey, 150 Ariz. at 485, 724 P.2d at 571. To survive summary judgment, plaintiffs must come forward with clear and convincing evidence that Ross knew his comments were false, or that he made them with conscious disregard of their falsity. Id. at 487, 724 P.2d at 573 (citing St. Amant v. Thompson, 390 U.S. 727, 731-32 (1968) ("There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.")).
Plaintiffs' response wholly mistakes what is required to establish actual malice. They claim that Ross has adduced only one piece of evidence--his own affidavit--for his claim that he believes what he said about the COIC as though, were this true, it would be a dispositive flaw in his motion. [Pl. Res. to Ross at 24] But Ross does not have the burden of proving his belief. Plaintiffs have the burden of proving Ross' subjective doubts. Ross' affidavit would only be inadequate to support his motion if, as in Currier v. Western Newspapers, Inc., 175 Ariz. 290, 855 P.2d 1351 (1993), plaintiffs had come forward with circumstantial evidence that Ross had reason to doubt what he said, and Ross had attempted to controvert this evidence through his affidavit.
Here, plaintiffs have come forward with no evidence of actual malice. Instead, they have made irrelevant and often inadmissible assertions about Ross' background and competency [Pl. Res. to Ross at 1-2, 29-31] and have piled up pages of outtakes from KNXV's interview with Ross that demonstrate nothing but his belief that the COIC is in fact a destructive cult. [Id. at 25-28] Plaintiffs' contention that Steven Rensch's telephone call to Ross following the KNXV broadcast put Ross on "notice" that his statements about the COIC were false is also without merit. [Id. at 4] Plaintiffs cannot point to a moment in that conversation when Ross revealed the slightest doubt about his conclusions concerning the COIC. On the contrary, Steven Rensch's vituperative harassment further confirmed Ross' opinion that the COIC leadership, with whom Ross understood Rensch to be closely aligned, was manipulative and psychologically abusive. [See generally Transcript of Telephone Conversation Between Steven Rensch and Rick Ross (Ross Aff., Ex. 8)]
Conclusion
This Court should grant summary judgment for Ross and dismiss plaintiffs' claim with prejudice. Ross should also be awarded reasonable attorneys' fees and costs.
Dated: July 8, 2000.
Brown & Bain, P.A.
By
Daniel C. Barr
Ann Hobart
Post Office Box 400
Phoenix, Arizona 85001-0400
Attorneys for Defendant
Copy of the foregoing hand-delivered
on July 8, 2000, to:
Honorable Jeffrey S. Cates
Maricopa County Superior Court Judge
125 West Washington
Suite 101
Phoenix, Arizona 85003
Michael Harper
Walker & Harper LLP
17100 E. Shea Boulevard, Suite 250
Fountain Hills, Arizona 85268
David J. Bodney
Sandra K. Sanders
Steptoe & Johnson LLP
40 North Central Avenue, 24th Fl.
Phoenix, Arizona 85004
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