Memorandum in Support of Summary Judgment

Paul F. Eckstein (#001822)
Daniel C. Barr (#010149)
Ann Hobart (#019129)
Brown & Bain, P.A.
2901 North Central Avenue
Post Office Box 400
Phoenix, Arizona 85001-0400
(602) 351-8000

Attorneys for Defendant

Arizona superior Court

Maricopa County

The defamation claim against Ross, a nationally recognized consultant on cults, concerns his comments that were part of an August 30, 1995 broadcast story on KNXV-TV focusing on the Church of Immortal Consciousness ("COIC" or "Church"). [SOF ¶ 1] The COIC is a religious group that lives collectively in Mesa and Tonto Village, Arizona. [SOF ¶ 2] It is devoted to the teaching of Pahlvon Duran, who is claimed to be a 14th-century British medical doctor who is channeled into the present by Trina Kamp. [SOF ¶ 3] Kamp, a self-declared trance medium, founded the COIC in 1983 with her husband, Steven Michael Kamp. [SOF ¶¶ 2-3] This suit also concerns several additional comments Ross made during a November 14, 1995 lecture on cult activity in Arizona that he delivered at Arizona State University ("ASU") and in a November 30, 1995 Phoenix New Times article devoted to Ross and his activities. [SOF ¶¶ 15-16, 19-20]

The KNXV broadcast, on which Ross briefly appeared, addressed allegations of cult-like activities that had emerged against the COIC during review of an application to the Arizona Department of Education Charter School Program for state funding for the COIC-affiliated Shelby School. [SOF ¶ 7] After he reviewed documentation regarding the COIC produced in the course of the state's review, Ross observed that the COIC was "a cult group . . . a destructive cult group." [SOF ¶¶ 5-6, 8-13]

The documentation produced to KNXV by the Department of Education was also the basis for Ross' comments at the ASU lecture and in the New Times article of which plaintiffs complain. That is, (1) the COIC had harassed Ross; (2) COIC members had bought up "quite a few lots" in Tonto Village and hired armed guards, although the other residents of Tonto Village were "by [Ross'] guesstimate . . . basically retirees--not very threatening"; (3) a former member claimed to have lost $70,000 to the COIC [SOF ¶ 18]; and (4) with regard to the number of law suits filed by the COIC, "[t]he Church of Immortal Consciousness [was] starting to look like a little Church of Scientology." [SOF ¶ 20]

This Court previously has ruled that because COIC members applied for state charter funds to support the COIC-affiliated Shelby School, whether the COIC is a "destructive cult" is an issue of public concern. [Minute Entry Regarding Defendants Scripps Howard's and Tony Kovaleski's Motion for Summary Judgment ("ME") at 14-15 (Barr Aff., Ex. U)] The Arizona Court of Appeals similarly has found COIC members' charter application "an area of significant public interest," coming as it does from parties who "appear to have been unpopular to some in the community because of their beliefs and practices." Shelby School v. Arizona State Bd. of Educ., 271 Ariz. Adv. Rep. 13, 15 (Ct. App. 1998). As such, this Court already has ruled that plaintiffs have the burden of proving that Ross' allegedly defamatory characterization of the COIC is false according to the "several objective criteria for determining whether a group is a cult and/or a dangerous cult" listed on the "Rick Ross Website." [ME at 15 (Barr. Aff., Ex. U)]

1. PLAINTIFFS CANNOT MEET THEIR BURDEN OF PROVING THAT ROSS' COMMENTS ABOUT THE COIC ARE FALSE.

1. Plaintiffs Cannot Disprove That the COIC Possesses the Attributes of a "Destructive Cult."

Plaintiffs have the burden of disproving Ross' statement that the COIC is a "destructive cult" as Ross has defined that term on his Webite. [ME at 15 (Barr Aff., Ex. U)] As plaintiffs allege, Ross also defined "destructive cult" at his ASU lecture, identifying a number of criteria by which such a group may be recognized. [SOF ¶ 17] Based on the testimony of former and present Church members, plaintiffs cannot establish that they are not a "destructive cult" as defined by Mr. Ross.

1. Pyramid structure of authority wherein leaders are unaccountable to group members

Plaintiffs Steven and Trina Kamp are the founders and leaders of the COIC. [SOF ¶ 4] Trina Kamp is the sole trance medium for Dr. Duran, the principal source of the Church's spiritual teaching. [SOF ¶ 3] Steven Kamp is the self-avowed author of its practice of collective living. [SOF ¶¶ 2, 22] Steven and Trina Kamp are responsible for publicizing the Church and the collective to potential new members. [ SOF ¶ 23] Steven Kamp admitted that he and his wife were likely central if not solely responsible for every major decision regarding COIC affairs about which he was asked at his deposition. [SOF ¶ 25]

Former Church members and Steven Kamp have testified to the pyramid structure of authority that existed when the group was located principally in Mesa (from roughly 1981 through 1988). [SOF ¶¶ 21, 24-30] At that time, members lived in separate houses, in each of which finances were handled collectively by house leaders like Mark Butterfield. [SOF ¶ 26] Dr. Duran or Trina Kamp determined where members would live and where they would be relocated if problems emerged [SOF ¶ 24], but Trina and Steven Kamp also delegated responsibility for inculcating Church teachings to certain house members. [SOF ¶ 28-29] Other Church members believed that these teachers occupied elevated positions in the Church hierarchy, that is, privileged positions with respect to Dr. Duran and Trina Kamp. [SOF ¶ 30] House leaders were ultimately accountable to Steven Kamp, who could at his discretion reallocate funds from house to house and make demands from the house leaders for funds for expenditures for the group or for personal purchases. [SOF ¶ 27]

The Kamps' lack of accountability is demonstrated most clearly by the way they handled the group's finances. Steven Kamp admitted that the COIC's collective finances became centralized under his control during and for some time after the group's move to Tonto Village. [SOF ¶ 31] He could unilaterally decide where and how money should be spent, as when he admittedly diverted some portion of members' contribution to the collective as tithes to the COIC. [SOF ¶ 32] As Steven Kamp also admitted, Trina Kamp spends such tithing funds at her discretion. [SOF ¶ 33] When Steven Kamp nominally gave up control, he ceded it to members of the Kamps' immediate family, first to their son-in-law, Steven Rensch, and then to their adopted son, William Kamp. [SOF ¶ 31] The record reveals no oversight of the Kamps' financial activities by other COIC members. [SOF 36]

2. Fostering an "us-versus-them" mentality

In November 1993, the COIC and the Kamps sued fellow Tonto Village residents David and Connie Miller for defamation, alleging the Millers had spread false rumors that the Church engaged in cult-like activities. [SOF ¶ 74] Lasting nearly two years, this suit both reflected and exacerbated the issues dividing COIC members from other residents of Tonto Village and is thus probative of the COIC's "us-versus-them" mentality. The COIC's motion for change of venue reflects its mistrust of the entire Tonto Village community. [SOF ¶ 75] The Church litigated vigorously, issuing deposition subpoenas to many village residents to inquire into the rumors allegedly being spread about the COIC. [SOF ¶ 76] The Millers' attorney criticized this practice as an abuse of discovery. [SOF ¶ 76] A group of citizens also wrote to the COIC attorneys protesting their litigation tactics and requesting that the parties resolve their differences out of court. [SOF ¶ 77] Alleging physical assaults of Church members by Tonto Village residents, the COIC hired a security service to post armed guards around their community after it voluntarily dismissed its lawsuit. [SOF ¶ 80] Thus, Ross' statement at his ASU lecture that the COIC had hired armed guards is true and not actionable. Read v. Phoenix Newspapers, Inc, 169 Ariz. 353, 355, 819 P.2d 939, 941 (1991) ("Substantial truth is an absolute defense to a defamation action in Arizona"). COIC member and attorney Steven Rensch conceded that the armed guards still remained at Tonto Village when he called Rick Ross following the KNXV broadcast by insisting that the Church needed to protect itself from hostile outsiders. [SOF ¶ 14]

3. Psychological, emotional, physical or financial exploitation

Among the documents that Ross reviewed before appearing on the KNXV broadcast was the affidavit of former COIC member David Morin. This document testifies forcefully to Morin's sense of having been psychologically, emotionally and financially exploited by the Kamps. Morin described being exhorted to choose between his wife (who resisted financially merging with the collective) and the Church and being manipulated into disclosing his financial holdings, including his retirement funds. [SOF ¶ 37] The affidavit also documented that Morin paid nearly $70,000 to members of the Kamp family, though he lived with the collective for only four months, and that he had to borrow money to travel back home when he and his wife decided to leave. [SOF ¶ 38]

Other former COIC members have similar accounts of exploitation. Sarah Light was pressured to sell her belongings in a garage sale and to sign her car over to the collective. [SOF ¶ 39] After roughly eight months with the COIC, Ms. Light had to borrow money in order to leave the COIC with her son. [SOF ¶ 39] Mark Butterfield claimed to have owned profitable rental property before joining the Church, which he sold to contribute to the collective. [SOF ¶ 40] He also claimed to have loaned Steven and Trina Kamp the down payment for their house in Mesa. [SOF ¶ 41] Steven and Trina Kamp, who claimed the down payment was a gift, still own that house, as well as a lot in Tonto Village that the Butterfields helped them to buy. [SOF ¶ 42-43] By contrast, Mark Butterfield claimed to have been unable to make payments on a house in Mesa that he tried to buy while a member of the Church. [SOF ¶ 44] On the basis of inequalities like this, Mark Butterfield described the COIC as a cult, which he defined as a group that exists for the benefit of its leaders and at the expense of its followers. [SOF ¶ 45]

4. Undermining relationships among biological family members

Steven Rensch has testified that what outsiders find hardest to accept about the Church is the belief that in some instances, a child must leave its biological family to join a spiritual family. [SOF ¶ 46] This practice appears quite common in the collective and substantiates the conclusion that the Church undermines biological family relationships. Trina and Steven Kamp have four children who are not their biological children. [SOF ¶ 47] William and Jonah came to the COIC with their biological mother but opted to remain as children of the Kamps when she left with their three biological sisters. [SOF ¶ 48] Steven Rensch and his wife Marlow (Kamp) also have an adopted son, Zeberiah, who is not the biological son of either parent. This child was the subject of one of the documents that Rick Ross reviewed before appearing on the KNXV broadcast, a letter in which Rensch warned Zeb's biological father to stay away from his son. [SOF ¶ 49] Steven Kamp also testified to "discouraging" contact between some children adopted into Church families and their biological families. [SOF ¶ 50] Moreover, Sarah Light testified that Steven Kamp attempted to undermine her relationship with her biological son by saying to him, in her presence: "[Y]ou and I both know that your mom is nuts, big time." [SOF ¶ 51]

5. Deceptive techniques of recruitment

Steven Kamp admits that he marketed the COIC through relationship seminars conducted around the country with Trina Kamp. [SOF ¶ 23] David Morin, Mark Butterfield and Sarah Light all testified to joining the Church after attending one of these seminars. [SOF ¶ 52] Each testified to being in some respect deceived by the impression of the COIC that these seminars conveyed. David Morin wrote that he and his wife paid the Kamps a $12,000 fee for a "Six Month Program" before coming to live with them in Mesa, understanding that this would pay for spiritual instruction as well as their room and board. [SOF ¶ 53] Soon after arriving, Morin was pressured to pay additional sums. [SOF ¶ 54] By the time he left, only four months later, he had paid nearly $70,000 to the Kamps. [SOF ¶ 55] Mark Butterfield testified that the Kamps implied that if the Butterfields came to live with them in Mesa, the Kamps would teach them how to become seminar leaders themselves. [SOF ¶ 56] This never occurred. [SOF ¶ 57] Mark Butterfield also testified to being disillusioned when Trina Kamp apparently betrayed key tenets of the Church; for example, he heard Trina Kamp acknowledge on several occasions that she chose the name "Dr. Duran" for the spirit that she trances, although according to Church teaching he had a corporeal existence in the 14th century. [SOF ¶ 58] Sarah Light alleged that she was seduced by being identified as a member of the Kamps' spiritual family [SOF ¶ 59] but was quickly disillusioned by the Kamps remoteness [SOF ¶ 60], her lack of access to Dr. Duran [SOF ¶ 61], and her subordination to other members of the Church. [SOF ¶ 62]

6. Isolation from the world/dominating individual members' time

Ross has noted that not all cult groups live in compounds and that there are "less obvious" ways of isolating members." [Website at 2 (Barr Aff., Ex. V)] In Ross' view, the COIC exemplifies a number of those methods. Members live collectively, sharing living facilities, in close proximity to each other. Many are also employed in businesses founded by COIC members. As such, their time is wholly dominated by Church-related activities. [SOF ¶ 63] Sarah Light corroborated Ross' impressions. She described a structure of life within the COIC that discouraged activities, like reading and journal keeping, that were pursued for personal gratification rather than for the good of the group. [SOF ¶ 64] She complained that she could not choose her own food or sleep on her own schedule [SOF ¶ 65], that she could not retain any of her wages for personal expenditures [Id.] and that she was not permitted to use her own car to take her son sight seeing. [Id.]

7. Undue influence, brainwashing or mind control

Sarah Light further testified that the Church controlled her thoughts through these living arrangements:

I know that I was in an environment of a lot of control and manipulation, that I was only supposed to think certain ways, that because my food and sleep and schedule were being controlled, that I was not able to have my own individuality.

[SOF ¶ 66] Witnesses also testified to more direct forms of mind control. Paulette Butterfield acknowledged that as a Church teacher she was responsible for conducting "processes" in which she and other members of the group would confront individuals over their personal failings. [SOF ¶ 67] Steven Kamp, who acknowledged being part of processes that lasted 14 hours [SOF ¶ 69], described them as a way of breaking down personal barriers to intimacy. [SOF ¶ 68] Paulette Butterfield described them as a form of "mental torture." [SOF ¶ 70]. An example of these processes can be found in David Morin's affidavit. Morin has testified to an incident in which Steven Kamp, having encouraged Morin to "open up" to him about his past relationships with women, confronted Morin's new wife with Morin's confession that he had sometimes resented women for using him financially, and challenged her to give her money to the Church if she loved her husband, because that is what Morin wanted. [SOF ¶ 71] Shortly after this incident, the Morins paid the Kamps over $50,000. [SOF ¶ 72]

Sarah Light testified that Steven Kamp once pressured her to confess whether she believed the COIC was a cult by telling her the story of a woman who appeared to be a happy member of the Church but who left the collective through deceit to return to her parents and enter a cult deprogramming program. Because at the time she wanted to please Steven Kamp, Light answered that the COIC was a family, not a cult. [SOF ¶ 73] In fact, this incident indicates just the opposite.

According to Ross' eight criteria, the COIC is a "destructive cult." Plaintiffs cannot meet their burden of proving otherwise.

2. Ross' Other Comments About the COIC Are Either True or Do Not Imply Assertions of Objective Facts and Thus Cannot Be Defamatory.

The threshold question in a defamation action is whether a reasonable fact finder could conclude that the allegedly defamatory statement implies an assertion of objective fact. Turner v. Devlin, 174 Ariz. 201, 207, 848 P.2d 285, 292 (1993) ("To be actionable [allegedly defamatory] words must be capable of being reasonably interpreted as stating actual facts about [the plaintiff]."). Statements of "pure opinion" that do not imply facts capable of being proved or disproved are not actionable. Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 n.2 (9^th Cir. 1990), cert. denied, 499 U.S. 961 (1991). Similarly, statements that merely characterize objective facts are not actionable. Turner, 174 Ariz. at 207, 848 P.2d at 292 (statements reflecting the defendant's "personal impression" of the plaintiff's conduct not actionable). Epithets, fiery rhetoric or hyperbole do not constitute defamation. E.g., Greenbelt Coop. Publ'g Ass'n, Inc. v. Bresler, 398 U.S. 6, 14 (1970) (using the term "blackmail" to describe the plaintiff's unreasonable negotiating position not actionable); Turner, 174 Ariz. at 207-08, 848 P.2d at 292-93 (likening policeman's interview to criminal interrogation that "border[ed] on police brutality" not actionable).

The majority of Ross' remarks cannot reasonably be interpreted as stating actual facts about the plaintiffs. As such, they are not actionable.

1. Ross had "been harassed by 'The Church of Immortal Consciousness.'"

Ross' observation at the ASU lecture that the COIC had harassed him [SOF ¶ 18] was based on a telephone call from COIC lawyer Stephen Rensch threatening retaliation if Ross did not change his views about the Church and, as such, is not actionable. [SOF ¶ 14] Ross' personal impression about Rensch's threat, "Rick, what goes around, comes around" [id.], is not a statement of fact.

2. "[T]he other residents of Tonto Village by [Ross'] guesstimate are basically retirees--not very threatening."

Ross' "guesstimate" that the residents of Tonto Village other than COIC members were "basically retirees--not very threatening" [SOF at ¶ 18] was also his impression, based on Ross' years of residency in Arizona. Moreover, even if Ross' "guesstimate" was a statement of fact, it was not about the plaintiffs and therefore not actionable. [ME at 15 (quoting Brady v. Ottaway Newspapers, Inc., 445 N.Y.S.2d 786 (1981) ("The 'of and concerning' element in defamation actions requires that the allegedly defamatory comment refer to the plaintiff.")) (Barr Aff., Ex. U)] Finally, it is not defamatory to plaintiffs to claim they live next to retirees.

3. The COIC has "bought up quite a few lots" in Tonto Village.

Plaintiffs admit that COIC members have purchased as many as 20 lots in Tonto Village. [SOF ¶ 34-35] Whether COIC members have therefore "bought up quite a few lots" cannot be ascertained by objective criteria. [SOF ¶18] If it could be, and the statement were somehow concluded to be false, it would still not be actionable, because it is not defamatory to say plaintiffs bought property.

4. The COIC was "starting to look like a little Church of Scientology."

Ross' comment in the New Times that the COIC was "starting to look like a little Church of Scientology" [SOF ¶18] because of its litigiousness reflected a personal impression based on having just been sued by the COIC and on Ross' knowledge of the Miller lawsuit. [SOF ¶¶ 6-8] Alternatively, if the comparison to the Church of Scientology could be considered derogatory to the COIC, it is more in the manner of an epithet, hyperbole or fiery rhetoric than a statement of fact.

5. A former COIC member claimed to have lost $70,000 to the Church.

Ross' reference at the ASU lecture to David Morin's claim that he lost $70,000 to the COIC is a statement of fact verified by Morin's Affidavit, which Ross reviewed before making his comments on the KNXV broadcast. [SOF ¶¶ 6-8]

6. The COIC has "hired armed guards with guns to defend themselves against conspiracies and threats."

The only remaining allegedly defamatory remark made by Ross--that the COIC hired armed guards [SOF ¶ 18]--is true [see supra in Section. I.A.2] and certainly cannot be demonstrated by the COIC to be false.

2. ROSS' COMMENTS ABOUT THE COIC WERE NOT MADE WITH ACTUAL MALICE
1. Plaintiffs are limited purpose public figures.

The Court may classify plaintiffs as public figures for three independent reasons: (1) their position; (2) "their 'purposeful activity' in 'thrusting' themselves into matters of public controversy"; or (3) "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). Before the KNXV broadcast, plaintiffs had purposefully thrust themselves into a matter of public controversy by pursuing state charter funding for the Shelby School while suing their Tonto Village neighbors David and Connie Miller for allegedly accusing the COIC of cult-like activities. [SOF ¶¶ 74, 78] Consequently, plaintiffs became closely involved with the resolution of an issue of public concern, that is, whether a group suspected of being a cult should obtain state tax dollars to support a school that, by plaintiffs' own admission, the group wished to open to Arizona children outside the COIC. [SOF ¶ 79]

Not only did Church members invite public scrutiny by applying for a state funded charter, its leader, Steven Kamp, purposefully attracted media attention to the controversy over cult allegations against the COIC before the KNXV broadcast and Ross' commentary. He arranged for Trina Kamp to trance Dr. Duran on a Payson-based radio talk show broadcast in early August 1995 [SOF ¶ 82] and again for a newspaper reporter, whose article concerning the Miller lawsuit appeared on the front page of the Arizona Republic on July 27, 1995. [SOF ¶ 83]

Thus, plaintiffs are limited purpose public figures. To prevail in this suit, they must prove by clear and convincing evidence that Ross made his comments regarding the COIC believing they were false.

2. Plaintiffs cannot meet their burden of proving that Ross made his comments about the COIC with actual malice.

Copy of the foregoing hand-delivered