Leichty v. Bethel Coll.
| Decision Date | 04 February 2022 |
| Docket Number | 19-1064-JWB |
| Parties | BRUCE LEICHTY, Plaintiff, v. BETHEL COLLEGE, Defendant. |
| Court | U.S. District Court — District of Kansas |
This matter is before the court on Bethel College's (“Bethel's”) motion for summary judgment (Doc. 148), Plaintiff's motion to strike (Doc. 160), and Bethel's motion to strike (Doc. 163). For the reasons stated herein, the parties' motions to strike are DENIED and Bethel's motion for summary judgment is GRANTED.
Plaintiff objects to consideration of several exhibits cited by Bethel in its summary judgment motion. Plaintiff first objects to five deposition transcripts - Exhibits A, G, H, L, and N[1]- as being unauthenticated and constituting inadmissible hearsay “on their face.” (Doc. 160 at 1-2.) Plaintiff further argues Exhibits G, H, and L are hearsay because they are depositions of Bethel's employees and “Defendant has not explained why [this] evidence could not have been presented by affidavit or declaration.” (Id. at 2.)
The court rejects these objections. Authentication means the proponent “must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a).
Bethel provides court reporter certificates to establish that the cited depositions are, as they purport to be, the transcribed testimony of the named witnesses. As for Plaintiff's hearsay objections, a general assertion that entire deposition transcripts are inadmissible hearsay is not sufficient to show that any particular testimony is inadmissible. Moreover, insofar as Plaintiff objects because testimony could have been presented by affidavit, there is no rule requiring the presentation of testimony in affidavit form rather than by deposition for purposes of summary judgment. Rule 56 specifically contemplates that parties can establish facts by “citing to particular parts of materials in the record, including depositions ...” See Fed.R.Civ.P. 56(c)(1).
Plaintiff's additional objections are also unavailing. Plaintiff objects that evidence about his prior actions at Mennonite Church USA conventions are “either not relevant or more prejudicial than probative under Rule 401 and 403, and excludable under Rules 404-406..” (Doc. 160 at 2.) He similarly contends evidence of a brochure he attempted to have published before the conference - something Bethel officials were aware of - is irrelevant, more prejudicial than probative, inadmissible hearsay, and lacking foundation. (Id.) Those objections are overruled, as the brochure was sent by Plaintiff, and such evidence is relevant to show Bethel's knowledge and whether it had grounds to exclude Plaintiff from its conference based on his attempts to promote a viewpoint with which Bethel disagreed. Moreover, it is obvious that Bethel is not citing the brochure produced by Plaintiff in order to prove the truth of the matters asserted in it. Plaintiff's objections and motion to strike these materials are denied.
Bethel moves to strike Plaintiff's 33-page declaration (Doc. 157-1), which is attached to Plaintiff's summary judgment response, arguing it improperly attempts to circumvent the court's page limitations. Whatever Plaintiff's purpose in submitting the declaration, the court agrees that it contains extensive and improper argument as well as assertions not shown to be based on Plaintiff's personal knowledge. Nevertheless, the court declines to strike the declaration, as much of it is appropriately considered on summary judgment. Rather than attempt to sift through and excise the improper portions, the court simply includes in the statement of uncontroverted facts only those factual matters that are properly supported and material for purposes of summary judgment.[2] Bethel's motion to strike is accordingly denied.
Based on the materials submitted, the court finds the following facts to be uncontroverted for purposes of summary judgment. This statement does not include facts asserted by either party that are not properly supported by the materials cited or that are not shown to be based on personal knowledge of the witness.
In 2017, Mennonite Church USA (“MCUSA”) held a national conference. One of the topics at the conference related to the Palestinian/Israeli conflict. Plaintiff attended and opposed a delegate resolution whose general tone, according to Plaintiff, was “that we need to repent for being anti-Semitic as a Mennonite Church.” (Doc. 149-2 at 3.) Plaintiff did not believe there was any significant history of anti-Semitism in the American Mennonite Church. He took literature with him to hand out at the conference about “the influence of Israel in America” because he was convinced that “Mennonites, like many others, are insufficiently aware of the very powerful Israeli lobby and how it functions in the corridors of power in DC and, more generally, how that lobby and associated persons effect U.S. economics, media, et cetera .” (Id.) At a conference workshop, Plaintiff stood up and announced he was willing to give free copies of a book on Israel's influence in America to anyone who was interested. Plaintiff had already been told by conference officials he should not be distributing a statement summarizing his opposition to the resolution on conference grounds, but he did not equate that prohibition with what he was doing at the workshop. Someone took exception and called the police. Plaintiff was threatened with arrest by conference officials if he did not stop distributing the book. Plaintiff pointed out he was a delegate and said he was entitled to be there, but a conference official said, “we're going to order you to leave the convention, and if you come back, you'll be arrested for trespass.” (Id. at 4.) Plaintiff was allowed to remain after he agreed to refrain from distributing the books on convention grounds.
Bethel College scheduled a conference titled “Mennonites and the Holocaust” for March 16-17, 2018. The conference aimed “to document, publicize, and analyze Mennonite attitudes, environments, and interactions with others in Europe during the 1930s and 1940s that shaped their responses to and engagement with Nazi ideology and the events of the Holocaust.” (Doc. 149 at 2.) Plaintiff timely pre-registered for the conference by submitting the information requested of him and paying a $100 registration fee.
Plaintiff planned to moderate an event he organized at a nearby community room in North Newton on the evening of March 16, 2018. The main speakers were to be two individuals, both Jewish, whom Plaintiff knew to be extremely pro-Palestine regarding the Palestine/Israeli conflict. Plaintiff's concern, which he believed these two individuals shared, was that “the Holocaust was being exploited in modern day America as a carte blanche, if you will, for all sorts of conduct by - whether it be Israel or Zionists or other elite Judaics [--] that they would trot out the anti-Semitism/Holocaust card whenever it was convenient.” (Id. at 11.)
Prior to the Bethel conference, Plaintiff contacted Paul Schrag, the editor and publisher of Mennonite World Review, an independent journalistic ministry in Kansas, and requested that he publish Plaintiff's classified advertisement about his event at the community room in the March 12, 2018 edition of Mennonite World Review. Schrag rejected the ad. Plaintiff then sent Schrag a pamphlet explaining “Holocaust revisionism” in an effort to change his mind, but Schrag still refused to publish the ad. Schrag then emailed the organizers of the Bethel conference - John Sharp (Hesston College employee), John Thiesen (Bethel College employee), and Mark Jantzen (Bethel College employee) - informing them of Plaintiff's plan to hold an event and attaching the pamphlet.
Bethel officials discussed what to do if Plaintiff passed out literature at the conference. Lori Livengood, Bethel's Vice-President of Marketing and Communications, emailed Jantzen on March 13, 2018, conveying that the North Newton Police Department (“North Newton PD”) informed her Plaintiff had reserved the community room and wondered if Jantzen would be okay “with [Plaintiff] handing out materials at the conference as their research has shown him to be a provocateur.” (Doc. 149-7 at 1-2.) The PD “offered their assistance [if] you need to have him removed.” (Id. at 2.) Jantzen replied that “[w]e know about his reputation and attitudes, ” and said Plaintiff did not have permission to hand out material on campus “and if there is a safe and legal way to prevent that we would want to pursue it.” (Id. at 1.) Jantzen indicated he did not expect protesters at the convention, noting reports that Plaintiff's style was that “he says his piece and then lets it go, ” which “[w]e could live with ...” (Id.) Jantzen indicated he wasn't sure what to do and solicited advice. Livengood replied that North Newton PD said “we can tell him he does not have permission and if he persists in handing out materials then we can ask him to leave, ” and if “he chooses not to leave, then we can call them at 911.” (Id.) She added that “their research also indicates that he is typically non-violent but has had to be removed from other events.” (Doc. 149-6 at 4.) In further emails, Jantzen indicated Livengood should ask North Newton PD to come to the conference opening session if they were willing to do so, preferably in plain clothes with no weapons. (Id. at 3.) He also conveyed “our current thinking” about asking that Plaintiff be removed if he is passing out literature at the registration or disrupting the proceedings. (Id. at 2.) After further discussions, Livengood...
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