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MONDAY, SEPTEMBER 12, 2005; 1:30 P.M.
THE CLERK: Plans versus Sacramento City. It's on for a court
trial, Your Honor.
THE COURT: Appearance of counsel.
MR. KENDALL: Scott Kendall for plaintiff, Your Honor
MS. CANNON: Michelle Cannon for Twin Ridges.
MS. DENIOUS: Susan Denious on behalf of the Sacramento City Unified
MS. BUGALLA: Marshal Bugalla on behalf of Twin Ridges.
THE COURT: This matter is set for a bench trial. There are some
preliminary matters we need to deal with of some consequence.
I think I indicated that to the parties during the in limines. The
significant threshold issue is set forth in the final pretrial order.
The Court indicated the issue of whether anthroposophy is a religion for
establishment clause purposes is indeed the threshold issue.
I have reviewed the trial briefs of the parties. I have
looked at the exhibit list and the witness list, and in doing so, as I
indicated in the past, I'm going to require proffer, Mr. Kendall,
on that issue.
I'm going to be candid with you. I'm having a difficult time trying
to piece together what I perceive to be your witness list and what they
may or may not say under oath and your exhibit list. I just
can't match those documents with witnesses. I want you to help
me in that regard.
I'll ask you to come forward, and I want, essentially, a very detailed
proffer; that is, the witnesses you're going to call in order to
establish that anthroposophy is a religion for purposes of the establishment
clause. I want the names of witnesses, the basis of their testimony
and the exhibits that might be introduced for those witnesses.
I think we should start there before we go any further.
Mr. Kendall, come forward. Do you understand what I'm asking of
MR. KENDALL: I do. It's obviously an issue we've been working
on ourselves very diligently since you've made your evidentiary rulings.
That really becomes the critical issue for us as well. The key witnesses
that we would have offered with regard to the issue --
THE COURT: What you're going to offer. It's the proffer
now, not what you were going to do.
MR. KENDALL: I want to be very clear on the point I'm making.
The only witnesses that we would have been able to offer with regard to
this question of anthroposophy -- I worked on alternative ways of doing
it -- would be Betty Staley, who we think is a material, relevant, participant
witness, and Dr. Olson. You've excluded both of those on the grounds
I did not disclose them. I don't think that's the case, but that
is the Court's order. Without those witnesses, I don't believe we'll
be able to sustain our burden of proof.
THE COURT: Then you have no proffer; that's what you're telling
MR. KENDALL: That's what I'm telling you. Those witnesses
are absolutely critical, and given the Court's position with regard to
that, we had alternatives we were working with to try to put the evidence
before the Court, but I don't believe it's possible to do it and would
be wasting the Court's time to do it without those witnesses.
THE COURT: Well, this is not a new issue, obviously. This has
been hanging over your head, so to speak, for a year or two now, certainly,
since the orders on the motions in limine.
I don't believe you filed a Rule 16 motion to amend the scheduling order,
MR. KENDALL: No. But this Court was very clear in its ruling.
THE COURT: There are other things that could have been done in
terms of other witnesses if you amended the scheduling order, if you had
other witnesses you think you could call. The bottom line is:
I made that ruling because I found there was no disclosure.
That is the only basis for the ruling. That's what comes to mind
MS. DENIOUS: Your Honor, these individuals were also listed previously
as defense experts. That was the other basis.
MR. KENDALL: I was not calling them as defense experts.
I was calling them for their percipient testimony, and the plaintiff's
position was that you should not be able to hide precipient testimony,
which both of these witnesses were actively involved in creating these
schools and teaching the teachers based on the fact that the defendant
simply identified them as experts and then withdrew them as experts.
That's not a basis whatsoever --
THE COURT: Well, counsel, look. The plaintiff has its case
and defendants have their case. Normally you don't make your case
by calling defense witnesses as experts. That's what you intend to do.
You need experts. You need opinion testimony in order to make your
case, in my view; you can certainly call precipient witnesses in order
to get certain documents in and perhaps you could make your case.
I can't try your case for you, but I've been struggling myself to find
out how you can make this case, and I can't find the witnesses and match
them with any exhibits that make any sense. Obviously that's the
conclusion you've come to.
Well, defense counsel come forward, please. Plaintiff has indicated
plaintiff is unable to make a proffer to establish that anthroposophy is
a religion for establishment clause purposes. I think we've been
pretty clear in our discussions in the past; over the course of several
years this case has been before me, that is a threshold issue.
MS. CANNON: Yes, Your Honor.
MS. DENIOUS: Yes.
THE COURT: We don't get to the other test that would determine
whether or not there is advancement or entanglement unless we have a religion.
If that is the case, and I think you would agree, Mr. Kendall, I'm going
to ask defendants to prepare conclusions of law in this matter, I guess
limited findings of fact.
Anything you would add, be it aside your views on my rulings, but I'm
talking about right now as we stand on the brink of trial that can salvage
your case under these circumstances?
MR. KENDALL: The only proffer I would be able to make is with
regard to -- we provided the Court with interrogatories that we intended
to read into evidence. One of the interrogatories by Sacramento City
Unified School District identified books that it had put forth as being
something that was available for the teachers in the public school system
on anthroposophy. One of those books is the Waldorf Teacher's Survival
We believe under the rules this would be an adoptive admission on behalf
of the school district with regard to that particular book, and that particular
book clearly identifies all sorts of religious basis for the Waldorf school
system. This is something identified by the school district as being their
book with regard to this education.
It includes statements about Lucifer and [Ahriman] and everything that
the schools do, their meditative work, is all under the guardianship of
Lucifer. It's been quoted in the summary judgment motions and we
believe that that is admissible based on the discovery responses of the
defendants and as an adoptive admission.
And as a result, that that could in and of itself push the defendants
to the position where they would need to call witnesses to rebut that.
THE COURT: I think there's more likelihood you'd get a 52(c) motion
in response to that. Your burden is a lot more extensive than that
particular exhibit; however, I'll allow the defendants to make their own
decision on that score. It seems to me there is still an issue --
there would be a 52(c) motion in response to that if I allow it, and I'll
be fairly liberal in light of these circumstances because I want to see
this matter resolved once and for all.
What is the -- that is in the interrogatory? Which number is that?
You nodded your head, counsel. I didn't mean to preempt your response.
Would that be your response, a Rule 52(c) motion, if I were to allow this
document? You'll object to it as well. I want to make this dispositive.
MS. DENIOUS: Yes.
MS. CANNON: There is an objection pending to that exhibit, but
we would, of course, move for judgment under Rule 52(c) as well.
THE COURT: What I would suggest you do -- do you have anything
further, Mr. Kendall? Plaintiff's portion of answers to interrogatory;
is that interrogatory 8 or 17?
MR. KENDALL: On the material that we prepared for you, it was
on our document, plaintiff's portions of answers to interrogatories, to
be read on page three, Waldorf Teacher's Survival Guide, E. Schwartz.
THE COURT: What line is that?
MR. KENDALL: That is line 25.
THE COURT: All right. Let me first hear -- I assuming there
will be an objection.
MR. KENDALL: No, Your Honor.
THE COURT: As I recall, this book was written by Mr. Schwartz?
MR. KENDALL: That's correct.
THE COURT: But you withdrew Mr. Schwartz as your own witness?
MR. KENDALL: That's correct, Your Honor.
THE COURT: That's the way you normally get this in. The author
is listed as a witness and you withdrew him as a witness.
MR. KENDALL: This is a document identified by the school district
by being their document that they have available to teachers --
THE COURT: There's an easier way to do this. You're making
life tough here. You want to use their witnesses. You withdrew your
witness in order to establish this particular fact. You're doing
it the hard way is all I'm saying. Whether you can overcome the objection
is your issue.
MR. KENDALL: Mr. Schwartz would be -- I understand.
THE COURT: He's not available because you withdrew him.
What is the exhibit number objection on this one for the defendants?
MR. KENDALL: Plaintiff's exhibit --
THE COURT: 89?
MS. CANNON: Yes, Plaintiff's Exhibit 89.
THE COURT: All right. I'm going to hear, first of all, the
evidentiary objection at this time to Exhibit 89, Waldorf Teacher's Survival
Guide by Eugene Schwartz.
MS. DENIOUS: Yes. We had made a relevance objection especially
if this was offered in phase one of the trial that this is really not a
phase one issue, that the way plaintiff has presented it is it would be
of interest as to what is occurring at John Morse School rather than what
is anthroposophy and is it a religion.
THE COURT: You object on relevance grounds?
MS. DENIOUS: Yes. And also because there is a threshold
level that needs to establish whatever is stated in that particular document
actually constitutes part of a creed or a dogma that is accepted by the
Anthroposophical Society. So that threshold showing would have to be made.
We also object on the basis of authentication and we object on the basis
of hearsay and we object on the basis that there's no foundational showing
of personal knowledge or a basis for an opinion as to whether this is admissible,
useful lay opinion or whether there's any foundation to assume that Mr.
Schwartz is an expert witness for any reason.
We also object on the basic level of personal knowledge. I believe
I mentioned that before under Rule 602. Also because this particular document
as submitted violates the Doctrine of Completeness because it isn't complete.
It is only an excerpt.
THE COURT: You say it's not complete?
MS. DENIOUS: The Doctrine of Completeness. It's only a fragment
of a document rather than the complete thing.
THE COURT: You have a real smorgasbord of objections. Most sound
good to me, but what is your response?
MR. KENDALL: With regard to the completeness, it is the complete
document including all the copy rights. I believe it's an adoptive
admission under Federal Rule 801(d)2(B), and the basis for that, this is
-- it's not hearsay at all. It's an admission because it's been identified
by the school district as being one of the documents they maintain for
THE COURT: Without foundation what is it an admission of?
MR. KENDALL: It's an admission of what they present themselves
by their conduct to the teachers as to what Waldorf education is and what
it's all about. What this document indicates is it's completely filled
with nothing but religious material, things like Lucifer and [Ahriman]
and all sorts of conduct that is given to the public school teachers by
the school district for the purpose --
THE COURT: Go back. Foundation. That's what I'm interested
in. How do you establish this? You said a lot of things.
MR. KENDALL: It's based on their responses to discovery that creates
the foundation for it. That makes this an adoptive admission.
They identified these as books, documents that they have for the benefit
of their public school teachers so their public school teachers understand
what Waldorf education is.
THE COURT: Does this establish anthroposophy as a religion?
MR. KENDALL: I believe it does, Your Honor.
THE COURT: Is anthroposophy discussed in detail?
MR. KENDALL: In detail. The whole book is basically that.
MS. CANNON: We would disagree with that. That's not what
the book is about.
THE COURT: You finish up, and let's take these issues. So
your position is that this does address phase one of the trial that anthroposophy
is a religion under the establishment clause?
MR. KENDALL: Absolutely. And to elaborate further, Malnak
THE COURT: Malnak is not the law of this case. Malnak -- you keep
going over matters that I've ruled on. The Malnak case has nothing to do
with this case. Isn't that what the Court ruled on? I've ruled
that that case has to do with a specific issue that is not in this case.
Haven't I said that?
MR. KENDALL: I'm not aware of the Court saying that.
THE COURT: I made it pretty clear. I'm not going to go over
plowed ground. But the bottom line is, I said the facts in Malnak
were not similar to this case. I made that very clear in the written
order. I'll make it clear now if I haven't made it clear before,
but I said you've cited Malnak and I've said Malnak doesn't apply.
Don't cite me Malnak.
Do you want to read the order, take the time?
MR. KENDALL: No, Your Honor.
THE COURT: Are you denying I didn't say that in my order?
Do you recall that?
MR. KENDALL: No, I don't, Your Honor.
THE COURT: Go ahead.
MR. KENDALL: With regard --
THE COURT: This is not about Malnak.
MR. KENDALL: This also goes to the very issues. When the
issue was briefed with regard to expert witnesses several years ago by
the defendants, it was the defendant's position, which we agree with now,
that this ultimately is not an issue for expert opinion.
What the Court must do in order to determine the issue of whether something
is a religion, the Court has to look beyond expert opinion and has to look
to the actual evidence, the underlying evidence and make the call.
We agree with that position, which is why we decided to go with Betty
Staley and Dr. Olson, and allow them to produce precipient witness versus
simply calling an expert that was going to have an opinion which doesn't
necessarily accomplish what Alvarez requires.
THE COURT: Let me hear from the defendants.
MS. DENIOUS: Your Honor, first of all, the characterization of
the interrogatory was not correct in the sense that there was no global
admission that this particular exhibit constitutes a definitive statement
of anthroposophy and that we were advancing it by possibly having it on
our shelf in a library at some undescribed point in time. There's no foundational
showing the book is still there. There is no foundational showing that
anybody was required to read it or it was used at the school.
All of those things would be a phrase two issue rather than a phase
one issue with respect to this case.
Then the other foundational issues of whether Mr. Schwartz was even
a person qualified to issue opinions as to what anthroposophy is is completely
missing and whether the comments made by Mr. Schwartz in this document
have anything to do with any ideas that the Anthroposophical Society as
distinguished from Rudolph Steiner or some of his other people who he had
in other areas of endeavor as distinguished from the Anthroposophical Society.
THE COURT: The interrogatory asked: What books do you have
in your possession that relate to Waldorf teaching methods? That's
the question. There's a whole page of various titles and includes
this document or -- I assume it's a book -- am I correct about that?
MR. KENDALL: Yes.
THE COURT: -- written by Eugene Schwartz.
MR. KENDALL: Correct.
THE COURT: So it's his views that we're relying on here.
Eugene Schwartz was your witness at one time. For whatever reason,
you decided not to call Eugene Schwartz. This is hearsay upon hearsay.
The only admission here is they happened to have this book. This
is so far fetched, I don't know why we're spending so much time, but I
wanted to give you every opportunity.
But I've heard enough to say that it would be ludicrous to say this
in any fashion establishes that anthroposophy is a religion on the possession
of a book without any further foundational support for the admission of
the book, plus the fact it contains the writings of a person not called
as a witness. I don't know how this would ever get into court on
this issue of magnitude and importance.
Is this your only evidence, counsel?
MR. KENDALL: Yes, it is Your Honor.
THE COURT: I'm going to -- this is a motion to exclude that evidence
under the various grounds?
MS. DENIOUS: Yes, Your Honor.
MS. CANNON: Yes, Your Honor.
THE COURT: I want that put in writing as well as any objections
you have to the book itself. All I have is a bare title. There's
not much you can do except relate to hearsay relevance and such.
MS. CANNON: Our objection is in writing and our objections are
THE COURT: I'll give you an opportunity to do something again.
We'll try to address this trial, this one single issue, evidentiary issue
now, that has been the argument based on the admission of this answer to
I want you to refashion your objection in detail and include that --
you're going to file a Rule 52(c). I want your objection laid out
in detail. And then even if the book were to be admitted, I presume
that you would still be filing the 52(c), and I want you to lay that out
in terms of finding facts and conclusions of law as well.
Basically, that's your -- you rest after this proposed exhibit?
MR. KENDALL: Yes, Your Honor.
THE COURT: Obviously, I'm going to grant the appropriate Rule
52(c) motion once it's presented to me. I want this done in writing.
How much time do you need to present this Rule 52(c) motion?
MS. CANNON: We basically have it prepared. We could get
it to you sooner than that.
THE COURT: Could you present it to me before the end of this week?
MS. CANNON: Yes.
THE COURT: How much time do you need to respond, Mr. Kendall?
MR. KENDALL: One week would be fine.
THE COURT: Fine. Opposition filed in one week. I would
like included in that motion your proposed findings and conclusion of law.
MS. DENIOUS: Yes, Your Honor.
THE COURT: We have objection to the evidence, motion to exclude
evidence, we have a Rule 52(c) motion and a proposed findings and conclusions
You can also object to any finding and conclusions as well as a Rule
52 motion, Mr. Kendall. This will be a written order. You need
time to reply. I'll give you four days to reply.
Let's have the dates on those, Ms. Price.
THE CLERK: 9-16; response 9-23.
THE COURT: And then the reply?
THE CLERK: Four days, did you say?
THE COURT: Yes.
THE CLERK: Do you want court days or calendar days?
THE COURT: Court days.
THE CLERK: The 29th.
THE COURT: The 29th of September. Do you have any other comments
you wish to make?
MR. KENDALL: No, Your Honor.
THE COURT: Very well. That's the Court's order.
MS. DENIOUS: Thank you, Your Honor.
MS. CANNON: Thank you.
THE CLERK: Court is adjourned.
(Whereupon, proceedings concluded at
I certify that the foregoing is a correct transcript from the record
of proceedings in the above-entitled matter.
MICHELLE L. BABBITT, CSR 6357
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE FRANK C. DAMRELL, JR., JUDGE
) No. CIV. S-98-0266
SACRAMENTO CITY UNIFIED SCHOOL )
DISTRICT, et al., DOES 1-100,
TUESDAY, SEPTEMBER 13, 2005
by: MICHELLE L. BABBITT, CSR #6357
For the Plaintiff:
SCOTT M. KENDALL
Attorney at Law
9401 E. Stockton Blvd. Suite 210
Elk Grove, California 95624-1768
For the Defendant Twin Ridges:
GIRAD & VINSON
1006 Fourth Street, 8th Floor
Sacramento, California 95814-3326
BY: MICHELLE L. CANNON
MARSHA VOLK BUGALLA
Attorneys at Law
For the Defendant Sacramento City Unified School:
KRONICK, MOSKOVITS, TIEDEMANN & GIRAD
400 Capital Mall, 27th Floor
Sacramento, California 95814-4416
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