Snyder v. Phelps et al

Filing 235

REPLY to Response to Motion re 214 MOTION to Stay re 212 MOTION to Stay filed by Fred W. Phelps, Sr, Westboro Baptist Church, Inc.. (Attachments: # 1 Phelps-Roper Opinion)(Katz, Jonathan)

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Snyder v. Phelps et al Doc. 235 IN THE UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND BALTIMORE DIVISION ALBERT SNYDER, vs. Plaintiff, Case No. 1:06-cv-1389-RDB FRED W. PHELPS, SR.; SHIRLEY L. PHELPS-ROPER; REBEKAH A. PHELPS-DAVIS; and, WESTBORO BAPTIST CHURCH, INC., Defendants. REPLY OF DEFENDANTS WESTBORO BAPTIST CHURCH, INC. & PHELPS TO PLAINTIFF'S RESPONSE TO POST-TRIAL MOTION FOR STAY Defendants Westboro Baptist Church, Inc. ("WBC") and Fred W. Phelps, Sr., by and through the undersigned counsel, hereby submit the following reply to plaintiff's response to their post-trial motion for stay. 1. In Phelps-Roper v. Nixon, ___ F.3d ___, 2007 WL 4258633 (8 th Cir., 12/6/2007) (attached hereto) is a decision just issued by the Eighth Circuit reversing a trial court's denial of a motion for preliminary injunction regarding Missouri's soldier funeral picketing law. There are several parts of this opinion that are directly applicable to this case, calling into question the outcome herein. Further, specifically with respect to the motion for stay, Phelps-Roper spoke of the four elements to consider on a request for stay (or injunction). In the context of a First Amendment case involving picketing the Court said this: Peaceful picketing is an expressive activity protected b y t e First Amendment. h Olmer v. Lincoln, 192 F.3d th 1176, 1179 (8 Cir. 1999). It is well-settled law that a "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod. v. Burns, 427 U.S. 347, 373 (1976) (plurality). If Phelps-Roper can establish a substantial likelihood of success on the merits of her First Amendment claim, she will also have established irreparable harm as the result of the deprivation. [Citations omitted.] Likewise, the determination of where the public interest lies also is dependent on the determination of the likelihood of success on the merits of the First Amendment challenge because it is always in the public interest to protect constitutional rights. [Citations omitted.] The balance of equities, too, generally favors the constitutionally-protected freedom of expression. In a First Amendment case, therefore, the likelihood of success on the merits is often the determining factor in whether a preliminary injunction should issue. ... Phelps-Roper, 2007 WL 4258633 at 2. Further, the Court noted that the Supreme Court has not addressed the question of whether the government has an interest in preserving and and protecting services, the or sanctity protecting and the dignity privacy of of memorial funeral family and friends of the deceased during a time of mourning and distress, Phelps-Roper, 2007 WL 4258633 at 3. Thus, to suggest that this is a closed question, and that it is appropriate to tag a small church, her pastor and two of her members to the tune of almost $11 million with on an unsettled of question and is due absolutely process. inconsistent notions fairness 2 Even though plaintiff has relied upon McQueary as authority for the proposition that funerals are per se private, the Court noted in Phelps-Roper that the McQueary Court assumed without finding an interest in the state in protecting funeral attendees from unwanted communications which would justify a three hundred foot limit, Phelps-Roper, 2007 WL 4258633. Setting aside the fact that defendants did not put forth an unwanted communication so obtrusive it was impractical to avoid, the McQueary Court did not hold that such could be prohibited. Court has not determined that a funeral Further, the Supreme is tantamount to a residence. There is no justification in the law for letting an $11 million verdict stand for what the Eighth Circuit has stated clearly is protected activity. The Court further said in Phelps-Roper: "Because of our holding in Olmer, we conclude Phelps-Roper has a fair chance of proving mourners any from interest unwanted the state is has in protecting by the funeral First speech outweighed Amendment right to free speech." added. Phelps-Roper also said: 2007 WL 4258633 at 4; emphasis "By analogy, Phelps-Roper presents a viable argument that those who protest or picket at or near a military funeral wish to reach an audience which can only be addressed at such occasion and to convey to and through such an audience a particular message. She has a fair chance of proving 3 section 578.501 fails to afford open, ample of and her adequate particular Thus, the alternative message." channels for the dissemination 2007 WL 4258633 at 6; emphasis added. "targeted plaintiff and his family" theory that went forward in this case that led to an unjustified and excessive verdict - treats what Phelps-Roper has called protected activity (reaching an audience with a message) as actionable in court. Finally Phelps-Roper concluded: "Because we conclude Phelps-Roper has demonstrated a fair chance of prevailing on the merits of her claim, we find she will suffer irreparable injury if the preliminary injunction is not issued. The injunction will not cause substantial harm to others, and the public is served by the preservation abused its of constitutional when it the rights. concluded motion The the a district balance court of discretion toward harms weighed denying for preliminary injunction based on its erroneous determination as to Phelps-Roper being unlikely to succeed on the merits." Phelps-Roper. Note that the Phelps-Roper said this with full awareness that the pickets of military funerals are ongoing, see 2007 WL at 1 & footnote 2. Phelps-Roper strongly supports that defendants have a strong likelihood of succeeding on appeal in this case. appropriate pending appeal. Thus a stay is 4 2. Plaintiff asserts there should be no stay because no bond has been posted.1 It is important to note that defendants are not The simple reality is that they the amount of the jury verdict. refusing to post a bond. cannot secure a bond in Plaintiff suggesting or arguing defendants have more assets than they have told the Court doesn't change that fact. First, as discussed in detail below, there is just simply no basis for saying anyone is misrepresenting assets. Second, even if there was some basis to quarrel over a few dollars which there is not there is certainly no basis for suggesting that defendants have stashed away in secret places nearly $10 million, which is the gap between defendants' collective assets (including the many that are likely subject to exemption under Kansas law, see, e.g., K.S.A. 60-2301, et seq.) and the amount of the verdict. Defendants have filed post-trial motions requesting a reduction in the award, which they believe the facts and law support; thus, it is premature to talk about a bond amount until a final judgment is determined by the Court. Once the post-trial motions are ruled on, if the Court believes some protective will obey the Court's orders. measure is required, defendants 1 In making assertions about "good cause" plaintiff is referencing case law under 28 U.S.C. 1963, which is a statute that permits a prevailing plaintiff to move the Court for an order allowing registration of a foreign judgment in another federal court district. That motion is not before the Court. 5 See, e.g., Waffenschmidt v. Mackay, 763 F.2d 711, 727 (5th Cir. 1985) (after reviewing judgment debtor's assets, the Court allowed him to pledge unencumbered items as collateral for the judgment pending appeal, rather than require supersedeas bond). Further, defendants and their fellow church members have been open and notorious in their views and activities; they have been in the same place all of their lives and, for many years doing the same thing. No one is going anywhere; and no one's assets Whatever may be recoverable on a judgment are going anywhere. in this case will be the same in six months or a year as it is today. The Court clearly has discretion in this matter, as to whether to require a bond or other protective measures, and if so, the nature, amount or scope. The Court observed after the announcement of the verdict of compensatory damages that the amount of defendants' stated assets had already been surpassed; nothing has changed on that front, and that fact still remains true. Defendants believe at that point the punitive damages issue should not have been submitted to the jury, for many reasons, but including the fact that the compensatory damages award had already surpassed the assets of the defendants. Finally, defendants believe there are substantial legal questions raised on appeal in this case, which may result in reversal of the verdict that and judgment issues entirely. are so Defendants and respectfully submit these extensive 6 substantial that a stay is warranted in this case while those issues are under review. 3. Plaintiff asserts a stay should not be allowed because allegedly defendants have lied about their assets, from which plaintiff alleges defendants will transfer, hide or squander assets. a. WBC This is not so and not supported in the evidence. assets. Plaintiff says the liabilities of the corporation are false because Timothy Phelps testified the real property was paid off; WBC's discovery response indicated balance no liabilities; on and June the 29, bank 2007 account (vs. had a of $42,380.46 $13,136 indicated in the financial statement submitted at the time of trial). As for the bank statements, i. On May 30, 2007, WBC submitted a response through counsel to a request for production of documents. Item 1 asked for bank statements from January 1, 2006. statements The for response the attached from redacted 1/31/06 bank period through 4/30/07, showing that the balance month-to-month was widely varied, like this: 30-Mar 28-Apr Date 30-May 31-Jan 28-Jun 27-Feb $ 4,176.56 $ 908.89 Amount $ 2,269.34 $ 2,471.42 $ 3,769.37 $ 2,159.74 7 31-Jul 28-Aug 27-Sep 30-Oct 29-Nov 28-Dec 31-Jan 27-Feb 30-Mar 30-Apr $ $ $ $ $ $ $ $ $ $ 4,336.68 1,722.03 1,854.97 (151.57) 684.30 6,427.88 7,755.27 18,748.80 28,193.87 37,527.70 Please see Post Trial Motions Exhibit 1 of Phelps-Davis and Phelps-Roper. $37,527.70. Then in October 2007, expressly contrary to what plaintiff asserts, updated Exhibit include defendants financial 2 of updated their Please and discovery see Post responses Trial These with The range in the balance extends from $-151.57 to records. Motions records Phelps-Davis Phelps-Roper.2 updated redacted bank statements for the period from 2 The letter from the undersigned counsel bears a date of April 30, 2007. This is a typographical error. The letter refers to updated redacted bank records (thus it had to have been sent after the original records response of May 30, 2007); and the records enclosed cover a period past April 30, 2007. Further, the letter refers to filming of the scene when plaintiff's counsel was present, which the record in this case reflects refers to video footage taken by Kramer & Associates on June 18, 2007. So the letter had to have been sent after June 18, 2007. Further, as noted in the body of this reply, plaintiff attached a copy of a redacted bank statement dated 6/29/07. Clearly this had to have been provided after May 30, 2007, showing again that updated discovery responses were made. 8 5/31/07 through 9/27/07. these updated redacted Clearly plaintiff's counsel received records, because they attached the 6/29/07 redacted bank statement to their response, and referred to that date in their response. So it is simply inaccurate for plaintiff to state that WBC did not provide updated bank records during discovery.3 The updated redacted bank records show the following balances from May through September of 2007: Date 31-May 29-Jun 31-Jul 31-Aug 27-Sep Amount $ 34,692.41 $ 42,380.46 $ 11,057.59 $ 6,186.74 $ 815.87 Again, these records show a wide variance in the monthly balance, from $815.87 to $42,380.46. It is grossly misleading 3 It is noteworthy that on 9/12/07, the Court held a telephone discovery hearing in this case, and during that hearing plaintiff moved to compel production of unredacted bank records. The fact that there had been such a delay by counsel in making the motion which pertained to the May 30, 2007, discovery responses caused the Court to deny the motion. Nothing prevented plaintiff's counsel from taking further depositions, asking more questions of the individual defendants during their depositions, or issuing records subpoenas if they felt they were entitled to more details about the financial condition of any of these parties. They knew they were making a punitive damages claim from the outset. They asked very few questions of any of the parties, and sought very few records, including not following up on Timothy Phelps' deposition after he identified the church treasurer and responded to preliminary questions about financial issues. 9 for plaintiff to present one month's balance out of 21 months provided and use that gesture to suggest falsehood by defendants. A balance at the time of trial of $13,136 is not at all out of line (and in fact in 16 out of the 21 months covered by the statements produced, the balance was less than this amount). The balance being at the lower end at the time of trial should not be surprising; considering it was coming at a time when the church's expenses were being tapped to defend this case in a protracted trial with numerous people housed and staying out-of-state, and lots of other expenses. As to the liabilities of the church, ii. In the original response by WBC, when plaintiff asked for documents showing liabilities over $500, as the response at Post Trial Motions Exhibit 1 of Phelps-Davis and Phelps-Roper reflects, there were none. The updated response at Post Trial Motions Exhibit 2 of Phelps-Davis and Phelps-Roper shows a note balance of $71,696.24 as of 9/28/07. Given the expenses of this case, an increase in the debt of the church should not come as any surprise to plaintiff. After all, costing defendants lots of money to pressure them to shut up was the precise goal of plaintiff. By the time the financial statements were required at trial, the debt was at 10 $105,984. one scrap That is the sworn testimony; there is not of evidence that it is false; it is completely consistent with the patterns shown in the records, and the realities that face the church. iii. Further, what Timothy Phelps said in his deposition was this: "Q. Is there a mortgage on that property A. I don't believe so, but I [that WBC sits on]? know that they recently did some renovations and there may have been a loan. But I think it's paid (Response Phelps off now, so I think it's owned outright." Appendix, Exhibit C, p. 29 of Timothy deposition.) So it is no surprise that the church A simple drive by the gets loans for renovations. church over the summer months would have seen the replacement of the roof, which was 25-years-old and beginning vandalized to leak; the replacement extensive of an oftwork fence; and some cement that needed replacing. Maintaining the property and making capital and improvements it is not the waste; value it of is the responsible property. maintains Defendant Westboro has been in the same place for over 50 years; improvements have been made on the property periodically to maintain it properly; there is not a hint of any fact to suggest 11 that the property is about to be sold, wasted, transferred or otherwise disposed of or misused. Defendants believe the Court erred in allowing this case to go to trial, and will assert that position in every place lawfully allowed. Defendants are not going anywhere; and there is absolutely zero risk to the assets of the corporation, unless you count plaintiff's design to bankrupt the church and its members. b. Assets of defendant by Phelps-Davis. is not This assertion by of the falsehood evidence. Phelps-Davis supported i. First is the claim that Phelps-Davis misrepresented the value of her homestead. Defendant Phelps-Davis is raising four children in a home that is valued at a modest $146,600. The deed is in Phelps-Davis' name. stated this in her deposition. She plainly Plaintiff's counsel did not ask her if she owned the home, as they now assert. deposition, property was (Response, p. 4: "However, in her the Phelps-Davis owned "Q. Is A. by the acknowledged her deed Q. and in that her you alone." and your A. Deposition: husbands [sic] name? No. Whose name? Mine." See Response Appendix, Exhibit G, p. 165 of Rebekah Phelps-Davis Deposition.) 12 Whose name is on the deed, and what ownership there may be under all the applicable property laws are two entirely different things. Phelps-Davis properly said in her financial statement, that her husband has a right to claim a half interest in the homestead, see K.S.A. 602301, K.S.A. and 60-2302. Whether Phelps-Davis is correct on this view or not, a) does not make her a liar, and b) doesn't matter anyway because the full value of the property was included in the figure in the financial statement and given to the jury. (Compare at Response Appendix, Exhibit G, the figure of $146,600 for the real estate in Phelps-Davis' financial disclosure, to Exhibit H, the figure of $146,600 by the Shawnee County Appraiser.) If anything, the figure given to the jury was too high, because this is the family homestead, a fact which no one disputes. One of the things plaintiff made an issue of during this case about defendants was that they all lived close together; that is a well-established fact, and there is simply nothing suggesting that Phelps-Davis is about to change that arrangement by transferring or 13 otherwise property. Without is lying disposing of her family's homestead evidence, plaintiff claims Phelps-Davis because her personal checking account balance at the time of her financial statement at the time of trial was $306. The only fact offered is that Phelps-Davis will not yield to the effort by plaintiff to make her be silent about what she believes. low If anything, that fact substantiates a account what is balance. going on There here. is no She checking about mystery testified to her beliefs and manner of life in detail, including that she spends her resources on traveling to picket. time Court, account balances Further, again, at the were in came all requested the at midst the by of end the a of the Phelps-Davis trial was protracted protracted that litigation, halfway across country from her home. that she has a low It should be no surprise balance in her checking account. There is no evidence she lied, because she didn't. c. Possible homestead claim on some portion of the church property. Plaintiff suggests that defendants have 14 demonstrated an intent to "transfer, hide and squander assets" because they whether Pastor noted there may be a question of Phelps and/or his wife have a homestead This is not claim in some part of the church property. evidence of any intent to do anything, but instead is a simple statement of reality. Pastor Phelps and his wife have lived in the parish at the church for over 50 years; it is their home; they have invested equity in the living quarters. Given the state of the law, it should not come as a surprise to anyone to hear that they or either of them (one of whom is not a party in this action) -- may have a right to claim a homestead interest. 60-2301; K.S.A. 60-2302; Kan. Const. Art. See K.S.A. 15, 9; Redmond v. Kester, 284 Kan. 209, 216, 218, 159 P.3d 1004, 1009, 1010 (2007) ("Following the precedent established since the inception of the Kansas Constitution, we hold that debtors may claim the homestead exemption based on any interest in real estate, whether legal or equitable, as long as of the or debtors intent to have not abandoned real their occupation occupy the estate." "Defining the term `owner' in K.S.A. 60-2301 broadly to include occupants of real estate who hold any type of interest, including an equitable interest, is consistent 15 with the public policy of protecting Kansas citizens from the hardships associated with losing the family home.") Whether it ever comes to this question or not; and whether these defendants are correct in their understanding of the law on this matter or not; none of this is a reflection of any intent to change anything about current assets and property. Rather, it is to point out to the Court that if plaintiff is allowed to execute on the judgment in this case, before the issues are reviewed on appeal particularly given that there is not another case we can find published anywhere of this kind, and given the indisputable fact that there are weighty First Amendment issues raised by this case it may result in property being conveyed to someone who may ultimately not be able to keep the property, and/or there may be unnecessary spin-off litigation. Litigating these homestead questions prematurely does not seem wise. Other allegations. In a flurry of words, plaintiff tries to suggest other alleged falsehoods that have nothing to do with financial statements or assets. These suggestions are unfounded and unfortunately distracting. In this regard, for instance, not applicable to the issue at hand is the plaintiff's complaint on p.4 of its Opposition that defendant Fred Phelps claimed he "never 16 thought children would be at Matt Snyder's funeral." Phelps Undersigned counsel recalls that Defendant Fred actually conveyed that whether or not children would be present was unimportant to his decision to picket. 4. As to the four factors to consider when a stay is requested, in addition to the decision of the Eighth Circuit of December 6, 2007, in Phelps-Roper v. Nixon, as discussed in paragraph 1 above, a. The post-trial motions reflect significant issues, both as to the First Amendment rulings, the Court taking personal jurisdiction, and the punitive damages award. case that defendants nature and size of the There are no cases like this have found in published jurisprudence. The Court broke new ground, to say the very least, in how broad it set the time, place and manner limits. the message, Setting aside visceral disagreement with it must be recognized that there are substantial appellate issues in this case b. Will defendants suffer irreparable injury if the requested stay is denied? rulings punitive about the First award If the Court is wrong in its Amendment, is or the massive damages unjustified, pressuring defendants and other church members to stop engaging in First Amendment activity, 17 and seizing their assets, clearly would cause irreparable harm. require further discussion. The That should not Court has Supreme recognized the chilling effects of litigation aimed at stopping protected activity. See Nike, Inc. v. Kasky, 539 U.S. 654, 663, 123 S.Ct. 2554, 2558-2559, 156 L.Ed.2d 580 (2003); Cloer v. Gynecology Clinic, Inc., 528 U.S. 1099, 120 S.Ct. 862, 145 L.Ed.2d 708 (2000), Scalia and Thomas, JJ dissenting. activity injury. In Elrod v. Burns, 427 U.S. 347, 373-374, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976), the Court said: The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). FN29 Since such injury was both threatened and occurring at the time of respondents' motion and since respondents sufficiently demonstrated a probability of success on the merits, the Court of Appeals might properly have held that the District Court abused its discretion in denying preliminary injunctive relief. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 83 S.Ct. 631, 637, 9 L.Ed.2d 584 (1963). FN29. The timeliness of political speech is particularly important. See Carroll v. Princess Anne, 393 U.S. 175, 182, 89 S.Ct. 347, 352, 21 L.Ed.2d 325 (1968); Wood v. Georgia, 370 U.S. 375, 391-392, 82 S.Ct. 1364, 1373-1374, 8 L.Ed.2d 569 (1962). "(T)he purpose of the First Amendment includes the need . . . `to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public or A chill on or loss of First Amendment even temporary, is irreparable freedoms, 18 measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them,' " Id., at 392, 82 S.Ct., at 1374 (quoting 2 T. Cooley, Constitutional Limitations 885 (8th ed. 1927)). (Emphasis added.) See also Rossignol v. Voorhaar, 316 F.2d 516, 522 (4th Cir. 2003). c. Will there be injury to another party that denying the stay can address? Plaintiff suggests that he will incur further emotional or psychological injury if the stay is granted. First, the Court set a time period for words or actions by defendants for which plaintiff can recover. On October 15, 2007, the Court set this time period at several weeks after the funeral, to the date Phelps-Roper wrote her epic. While defendants believe that time is entirely too broad (and have preserved and raised that issue), nevertheless the time has been set, and we are well past it. Second, in the case plaintiff relies on, Sisters of Mercy Health Sys. V. Kula, 2006 WL 1090090 (W.D. Okl. 2006) psychiatrist which involved allegations abused the that a sexually plaintiff, not allegations of harm caused by words -- the plaintiff testified to the fact that the pendency of the lawsuit was causing her emotional In injury, as did here her mental health provider. sharp contrast, plaintiff 19 testified in his deposition "Q. that the lawsuit did not cause him stress. But, hasn't this lawsuit added to A. your stress or troubles, relating to Matt's death? Not the lawsuit in itself. The people have. Q. Hasn't the lawsuit been a component of it? component of it. problem. ..." A. Maybe a small But mostly the whackos, the cult is the (Please see Post Trial Motions Exhibit 3 of Phelps-Davis and Phelps-Roper, p. 122 of Albert Snyder's deposition.) defendants are (The fact and that a plaintiff is not believes legally whackos cult cognizable injury touching upon the decision whether to grant a stay.) Further, Dr. Mann, plaintiff's medical doctor, testified that in filing the lawsuit plaintiff has actually been able to better deal with the grieving that was allegedly interrupted by defendants. "So the process of filing a lawsuit is actually helping him to cope with this aspect of the interrupted grieving." (Please see Post Trial Motions Exhibit 3, of Phelps-Davis and Phelps-Roper, pp. 116-117 of Scott Russell Mann, M.D. deposition.) d. Will the public interest be served by granting the stay? As previously is noted in defendants' than a motion, the if this public activity protected, fortiori interest is served by the stay. Plaintiff argues that 20 Maryland has a strong interest in protecting grieving families. interests distance. According to the Maryland legislature, the of Maryland are protected by a 150-foot That interest has already been protected to the degree the Maryland legislature deems it necessary. Over-protecting the grieving process, at the expense of public words in a public place on a public topic is not in the state's or would citizens' have interest. such Otherwise the and the legislature placed limits, Supreme Court would have defined public rights-of-way as something other than traditional public fora. What has not been balanced in this case is the right of defendants to speak. The on public speech is not served on by overbroad with restrictions content. based disagreement 5. Regarding K.S.A. 60-3004(a), in Estate of Rains, 249 Kan. 178, 184-185, 815 P.2d 61, 65-66 (1991), the Kansas Supreme Court said: In the Kansas Uniform Enforcement of Foreign Judgments Act (UEFJA), K.S.A. 60-3001 et seq., the enforceability of a judgment is affected by an appeal of the foreign judgment. K.S.A. 60-3001 defines foreign judgments as "any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state." Therefore, the judgment obtained by FDIC is enforceable under the UEFJA. The UEFJA provides: 21 "If the judgment debtor shows the district court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered." K.S.A. 60-3004(a). (Emphasis supplied.) K.S.A. 60-3004(a) permits the filing of foreign judgments which have been appealed or are subject to appeal, but stays enforcement thereof until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated. K.S.A. 60-3004(a) does not require that the foreign judgment be a "final judgment" but stays enforcement until, in effect, it becomes final. Obviously, attempts to enforce a foreign judgment which is subject to modification would be a waste of everyone's time. (Emboldened and underlined emphasis supplied; italicized emphasis in original.) This case appears to say exactly what defendants said in their motion, to wit, under the Kansas statute, a foreign judgment is not enforced until the appeal is final or the stay of execution expires or is vacated. In conclusion, defendants submit there is no evidence of any falsehood about the assets of any of the defendants; nor have any assets been misused or misrepresented. Requiring the posting of a bond the size of the verdict in this case would simply be an impossible requirement. motions Further, defendants have filed post-trial requesting that the Court reduce the award size, which they 22 believe is not supported by the evidence; thus, it is premature to talk about the size of a bond until a final figure is determined by the Court. Given the significant legal issues raised by this case, and that many (if not most) of the assets appear to be impacted by homestead issues, and other exemptions under Kansas law all of which would have to be addressed if the judgment was subject to execution; and given the Kansas statute about foreign judgments; defendants believe a stay in this case is proper. If the verdict is upheld, it will be for alleged harm that has already occurred, none that will occur hereinafter as to this plaintiff. does not have standing else, to so force that defendants is not Plaintiff to stop picketing anywhere issue properly before this Court. WHEREFORE, for the foregoing reasons, Defendants move the court to grant their post-trial motions. 23 Respectfully submitted, ___/s/__________ Jonathan L. Katz D.Md. Bar No. 07007 1400 Spring St., Suite 410 Silver Spring, MD 20910 (301) 495-4300 Fax: (301) 495-8815 CERTIFICATE OF SERVICE I certify that a copy of the foregoing document was served by the CM/ECF filing system on December 18, 2007, to: Sean E. Summers, Esq. Craig Tod Trebilcock, Esq. Becky Phelps-Davis (by mail only) 1216 Cambridge Topeka, KS 66604 Shirley Phelps-Roper (by mail only) 3640 Churchill Road Topeka, KS 66604 ____/s/_____________________________ Jonathan L. Katz 24

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