KingCast v. McKenna 11 June 2015 Annotated Free Press First Amendment Transcript

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CHRISTINE L. QUINN, RPROFFICIAL COURT REPORTER

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR KENT COUNTY

* * * * * * * * * * * * * * *

CHRISTOPHER KING, J.D. d/b/a ) KINGCAST/MORTGAGE MOVIES, ) ) Plaintiff, ) ) v. ) C.A. No. K15C-03-028 RBY ) BETTY LOU McKENNA, HOLLY ) MALONE and JOHN W. PARADEE, ) ESQUIRE, ) ) Defendants. ) * * * * * * * * * * * * * * *

TRANSCRIPT OF

CIVIL MOTIONS

Thursday, June 11, 2015 Kent County Courthouse

Dover, Delaware 19901

BEFORE:

THE HONORABLE ANDREA M. FREUD, Commissioner.

* * * * *

APPEARANCES:

CHRISTOPHER KING, Pro Se Plaintiff

JOSEPH S. SHANNON, Esquire, appearing on behalf of Defendants Betty Lou McKenna and Holly Malone

PETER C. McGIVNEY, Esquire, appearing on behalf of Defendant John W. Paradee, Esquire

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MacBookNote:

See Mortgage Movies Journal for the DE AG Advisory Opinion that banning cameras is extremely risky as the law is evolving in a more permissive direction.

Not with Cultural Hegemonist Robert B. Young as Judge.

See also Pomykacz v. Village of West Wildwood See also Tisdale v. Gravitt

MacBookSo help me God Ive already won this case by showing what jerks they are, but I am in it to win it with a Decision and we will go to SCOTUS.

There are virtually no journos with my background as an escrow attorney, First Amendment Trial atty and daily news reporter who do what I do. This is why Judge Young is downplaying all of that and trying to keep someone like me silenced. I will not stand for it.

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June 11, 2015 Courtroom No. 5 2:00 p.m.

* * * * *

THE COURT: Okay. The remaining motions all

have to do with the same case. That would be King

versus McKenna, et al. I think after my review of

the three motions that are on that it makes sense to

address the motion for the stay of the proceedings

first.

MR. SHANNON: Your Honor, Scott Shannon on

behalf --

THE COURT: Stay of discovery, I guess.

MR. SHANNON: Mr. King was here. He stepped

out of the courtroom.

THE COURT: We need to wait for him to get

back.

MR. SHANNON: I'm sorry?

THE COURT: I said we need to wait for him

to get back.

We will find out where he is.

MR. KING: Good afternoon, Your Honor.

THE COURT: Mr. King, I wasn't aware that

you weren't in the courtroom when I made my initial

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remarks; so I will repeat them.

I have reviewed the three motions that are

pending in this matter, and it appears to me that it

would make the most sense to start with the motion --

I guess it would be the joint protective order. Is

it also a motion to stay the discovery? Is that

primarily what that is?

MR. SHANNON: That is the relief that we are

ultimately seeking. It's two parts which would go

hand-in-hand. The one being an order that the

discovery sought not be had, and as part of that,

that this litigation be stayed pending Judge Young's

consideration and disposition of the pending

dispositive motions.

THE COURT: Well, my review of everything

leads me to conclude that we should address that

motion first.

MR. KING: If I may, Your Honor, as a

preliminary matter of housekeeping, I had filed a

notice of media coverage, and in that notice, I cited

to the second revision of Administrative Directive

No. 155. That was updated several times and most

recently on the 29th day of November, 2005.

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MacBookFirst of all, why not start with my Motion to Compel, as it narrows the issue? Stay tuned

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THE COURT: Mr. King, also as a preliminary

matter, I understand that you filed a notice of that,

but unfortunately, there is no motion that was

attached to it. So I was completely unaware that

that was an issue until I was walking out the door to

go to lunch today. So it's not something that has

been brought to my attention.

I can tell you that I have been doing this

for over 20 years, and to my knowledge, the Court has

never once, at any point in time, allowed any

recording of any procedure in the court. I also know

that by the directives of the court for the Superior

Court policies that there are no video recording

equipment allowed in the courtroom.

So at this point in time, I'm not going to

allow any recordings because, based upon my

experience, that is not allowed. In the limited time

I had to look it up, I do know that the Superior

Court rules forbid videotaping, television

broadcasting in criminal matters. Also, it's been

the practice in our court to not allow it in civil

matters as well.

So at this point since I have not had any

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MacBookThat is not true.Google Rule 155

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time to do any further research on that, based upon

that, I'm going to deny that request.

MR. KING: If I may just briefly to note my

objection for the record, Your Honor. It states, "At

the request of the Bar" --

THE COURT REPORTER: I'm sorry. Could you

slow down?

MR. KING: It states, "At the request of the

Bar Bench Media Conference, the Supreme Court

extended the experimental period to permit the

electronic news media to cover cases that might arise

in an extended experimental period."

THE COURT: Mr. King, my understanding of

that rule -- and as I said, I have not done extensive

research on it -- but my understanding of that rule

is that applied only to Supreme Court oral arguments,

which is the only thing in the State where they're

currently allowed to have video recordings of it.

They do post that. As far as I know -- and I have

never been told otherwise by anyone -- there is no

recording in Superior Court or in any other court.

MR. KING: Point of fact, Your Honor, if I

may beg to differ. I read the first version of 155,

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MacBookShe cuts me off..

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and it specifically referenced --

THE COURT: Mr. King, I've made my ruling.

MR. KING: I understand. Please note my

objection for the record, Your Honor.

THE COURT: Thank you.

MR. KING: I will certify with the Supreme

Court.


You may proceed with your motion.

MR. SHANNON: May it please the Court, on

behalf of defendants, Beverly McKenna and Holly

Malone, my name is Scott Shannon.

In the presentation of defendants joint

motion for protective order -- although, I would ask

Mr. McGivney, who is here representing defendant,

John Paradee, an opportunity to speak to the extent

that he may wish to emphasize certain points on

behalf of his client that I may not touch on

adequately on behalf of Ms. McKenna or Ms. Malone.

In putting together the outline for my

argument today, Your Honor -- and I appreciate you

giving us the opportunity to go first. But my

argument actually addresses both the motion for

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MacBookBoom!Before I can even read itinto the Record.

MacBookIt fucking clearly saysTrial Courts.

MacBookIn a few weeks I am suing for DeclaratoryJudgment on this.What jerks.

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protective order and motions to compel, if Your Honor

will entertain the argument that way, since to a

certain extent they are hand and glove. It was,

after all, Mr. King's advising us of his intention to

file the motions to compel that prompted us to file

the motion for protective order, if that's fair

enough.

THE COURT: Well, if -- depending upon how

we rule on a stay of discovery, if a stay of

discovery is granted, then I don't believe we need to

address anything else, and we can leave that to

another time until after any ruling on Judge Young's

order would come into place. I have not -- it's

going to depend on how I rule on that, but depending

on how that goes, I don't think there is a need to

get to the merits of the other arguments today.

MR. SHANNON: I will try to separate the

sugar from the salt then, as I present.

THE COURT: Do as best you can.

MR. SHANNON: Without repeating the

arguments that are made in our motion itself, which

points out that we have meritorious early dispositive

motions that are pending, that are based upon well

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established Supreme Court case law and Third Circuit

case law that defines the scope of the First

Amendment privilege that Mr. King seeks to enforce,

that those cases, in fact, are not even disputed or

challenged by the plaintiff because they cannot be.

The scope of the First Amendment Right that

he seeks to enforce does not include all demand

access by any citizen to the bureaucratic functions

of government. The requirement is that the

information be made public to the extent that it is

the function of government -- in this case Recorder

of Deeds -- that those deeds, which are on record,

the public have access to them.

Mr. King appeared at the Kent County

Administrative Complex. He asked for access to the

nonpublic office space for the purpose of filming.

That was denied. He was given access to the public

space and to the public database through the computer

terminals that are made available for that purpose at

the Kent County offices. That's not disputed. It's

also not disputed that Mr. King, in fact, retrieved

documents from that database and that he has

published those on his website. Those are included

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MacBookI wasnt only coming to access records. I was coming to ask a question of a senior staffer and there is a narrowly-tailored requirement here before they can shut my cameras down.

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in the motion.

So for the purposes of determining the

extent and scope of the right Mr. King seeks to

enforce, that issue is squarely in front of the judge

on dispositive motions. The final briefing of which

my answer and opposition to Mr. King's cross-motion

for partial summary judgment is due tomorrow.

Now in the meantime, Mr. King is persistent

in pursuing discovery. We have responded to three

complete rounds of discovery for Mr. King. The first

set of interrogatories, request for documents,

request for admissions, a revised first set and a

second set.

If I may for Mr. Paradee, Mr. Paradee has

responded fully to the revised first set and to the

second set.

In addition, there were affidavits from each

of the named defendants that were attached to the

dispositive motions that addressed the specific

claims going to the First Amendment Right, First

Amendment Right that Mr. King seeks to enforce.

When there are meritorious case dispositive

motions that are pending, as a matter of judicial

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MacBookYou are goddamn right I am persistent in obtaining Discovery because Judge Robert B. Young and Commissioner Freud allowed them to get away without answering the simple question of what their authority was to stop me, and what the goddamn policy is. This will haunt them on Appeal.

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economy, in order to avoid the parties incurring

unnecessary expense and to discovery matters that

would be rendered moot, depending upon the outcome of

the decision, it is appropriate -- and the Court may

in its discretion order -- that the litigation be

stayed, that no further discovery be had in order to

save those costs. That's the situation in which we

find ourselves, Your Honor, procedurally.

Substantively -- and this goes to the

discovery that is sought for which a protective order

is sought, and this may be where there is some

overlap with the motions to compel. It goes to the

nature of the discovery that is sought.

Mr. King in his answer and opposition to our

motion for protective order describes himself as

being a member of the fourth estate, the media.

Accepting that is true, the media have no greater

rights under the First Amendment than a public

citizen, than anybody. There is no distinction that

is made between the rights available to a member of

the media and a member of the general public. But it

would be the role of the fourth estate to seek out,

collect, and disseminate information. The role of

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the Court is to define the scope of the right.

Mr. King seeks to confound the two, and the

proof of that is in the discovery that he seeks. As

an example, he asks why Ms. McKenna did not return a

phone call he placed to her home phone. How -- how a

response to that interrogatory would, in any manner,

define the scope of the First Amendment Right is not

explained.

He asks who pays Mr. Paradee's fees. That's

been addressed in the dispositive motions that he is

not paid by public funds. He is not paid by public

funds. He is not subject to the First Amendment.

Mr. King seeks the case captions for civil

actions against any defendant since 1994. Well,

again, the issue here is the First Amendment Right he

seeks to assert. It's not to get to the information

that Mr. King as media, as fourth estate, would be

seeking to obtain assuming the right existed.

And this, Your Honor, is where we believe

that the protective order is necessary. Because,

again, the question before the Court is not what

allegations or what Ms. McKenna might have said about

the conduct of a campaign, election campaign. The

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MacBookShes never at work. I am allowed to call her ass at home to inquire about public matters.This is simple shit, folks.

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issue before the Court -- and the only issue on which

Mr. King appears in his complaint -- is his assertion

of a First Amendment Right of on-demand access to the

bureaucratic function of government.

The Third Circuit Court of Appeals, United

States Supreme Court have repeatedly said that the

First Amendment does not compel government to provide

any information. That the First Amendment is not a

Freedom of Information Act. That there are only two

circumstances in which the First Amendment compels

access, criminal trials and legislative functions.

Imagine the chaos if any citizen at any time

could walk into any public office, executive

function, because where would it end, the governor,

the president, and say, "I'm a taxpayer. This is a

public building. I want to know what you're doing.

I'm going to film you doing your work." Now that's

the scope of the right that is asserted. If the

litigation is to be kept within that scope, that's

the discovery that should be permitted.

The Court should not be subverted for the

purposes of the fourth estate of which Mr. King

claims to be a member of to allow him to get to the

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MacBookText

MacBookYou cannot delimit First Amendment Rights by a parade of horribles. This is bullshit.

MacBookGoogle Pomykacz v. Village of W. Wildwood, BOOM

MacBookGoogle Tisdale v. Gravitt, 2014, Boom!

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information he was seeking in the exercise of his

First Amendment Right. Particularly, when and if,

the outcome of the case dispositive motions is that

the Court determines as a matter of law that, in

fact, the scope of the First Amendment Right Mr. King

seeks to assert is not as expansive as he interprets

it.

So for these reasons, Your Honor, because

there is a meritorious case dispositive motion

pending, because the information sought is in no

manner germane to the information -- excuse me -- the

claim that has been made, we ask that the protective

order be entered, the request of the discovery not be

had, and litigation be stayed pending case

dispositive motions.

Thank you.

Do you have anything to add?

MR. McGIVNEY: Just briefly, Your Honor.

Peter McGivney on behalf of defendant, John

Paradee.

Just to piggyback sort of off of what

Mr. Shannon was just saying, we believe that we

presented a meritorious defense in our motion to

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dismiss motion for judgment on the pleadings. It's

our position that John Paradee is not a state actor

and, therefore, is a private citizen. He could not

deprive anyone, let alone the plaintiff, of any

constitutional rights.

The plaintiff's complaint can be broken down

into three claims. The plaintiff wanted access to

the Recorder of Deeds, ability to operate cameras

there, and to compel answers directed at public

officials. The discovery that he has filed to date

it will not determine whether or not he's suffered a

harm, which he claims in the complaint. It's our

position that this motion for protective order motion

for stay is proper under Rule 26(c). At this point

in litigation, it would be placing an undue burden

and significant expense and costs on the defendants

to engage in this type of discovery, especially given

the fact that all the plaintiff's claims are subject

to a motion to dismiss.

Finally, Your Honor, it's our position that

granting the motion for protective order motion to

stay, the plaintiff will not suffer any prejudice if

this motion is granted. If our motions to dismiss

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MacBookI did suffer prejudice because we dont even know what the policy is.

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are denied, then the case can move forward with

discovery. If they are granted, then the case is

over.

That's all I have. Thank you, Your Honor.

THE COURT: Mr. King.

MR. KING: May it please the Court. I would

like to first address several blatant misstatements

that were made by counsel.

Now, obviously, there is a little bit of

sugar with the salt here because we have to go into

the merits first off before we can address. They

cited the merits in their filings; so I am going to

address the merits as well in this instance. They

didn't cite to any cases just now. Okay. What they

cited to were the Woods case and the Cinelli case.

The Cinelli case --

THE COURT REPORTER: I'm sorry. What case?

MR. KING: Cinelli, C-I-N-E-L-L-I. The case

that they cited to in Pennsylvania -- and they like

to go to Pennsylvania for their law. Well, while

we're there, let's stop and remember that Nancy

Becker just successfully sued MERS in Pennsylvania

over faulty and fraudulent documents in her registry.

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MacBookFaulty documents are obviously a matter of substantial public concern.

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That problem exists in all 50 states.

I shoot video across the country about these

matters in courtrooms across the country on a routine

basis. I was a title insurance producer, escrow

attorney. I have worked in major media for years. I

now run my own operation.

There is a distinction between media and the

general public in many instances, particularly in

this case, where there is a Delaware Free Press

statute which did not roll off the lips of either of

my brothers just now. That is a claim as well as the

First Amendment claim that we are reviewing before

the Court, and that's a crucial distinction.

My brothers have attempted to say that I

want some type of any-time access to these people.

That's not what is being sought. What was being

sought at bottom, Your Honor, we can walk up and down

the ladder and scratch it all we want to, but the

bottom line is all I was seeking is: May a reporter

ask a high ranking public official a couple of

questions about her campaign and about false

statements she may have made in her campaign, as well

as a question or two about fraudulent documents that

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MacBookJudge Robert B. Young issued his opinion without citing to any of my professional background or even the name of my goddamn website, i.e. Mortgage Movies. He is a cultural hegemonist.

MacBookThis right here is simple: Obviously a reporter or a citizen has a right to ask a question with a pen and a pad;therefore s/he has a right to do so with an unobtrsucive camera as well.

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may exist in her office.

Now, I'm not allowed to sit there all day,

but do I get a first blush? Do I get an opportunity

to ask that question? Of course, I do. And

furthermore -- and I have two witnesses in this

courtroom today. One of whom is La Mar Gunn who was

with me on the day in question. I didn't seek access

to any private area. I was in the public foyer the

whole time.

And the reason I called Betty Lou McKenna at

her home is because I know she's never at the office.

But when I called her at her home, I called her about

a matter which is clearly a matter of public concern

whether or not she made false statements, campaign

statements, about that man, La Mar Gunn.

Now, the defendants would like to drive a

wedge between -- let's put it another way. The

defendants are trying to obfuscate the issue by

stating that, you know, they've stated in their

pleadings I'm trying to advance a claim on behalf of

La Mar Gunn or something like that. None of that is

what is happening here. I am seeking discovery to

determine why they did what they did.

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MacBookJudge Young tried to imply that I was trying to film in back areas and private offices.I made no such representations.

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The cases they cited to -- let's delve into

that because it's crucial to your understanding of

this case -- the Woods case. There was a gentleman

who was there on behalf of a developer. He was going

to run video. The governing body -- it was a zoning

hearing or something like that -- specifically passed

a resolution stating no cameras, okay, for one

meeting. He was denied at that meeting. There was a

policy. Okay. The policy was repealed and found

unconstitutional because the public has a right to

video these meetings. Okay.

But in that case, they cited to Cinelli in

Rhode Island, where I used to live. In Cinelli, a

school teacher was running video in the building

about issues of public concern. The last time I

checked the mortgage crises is an issue of public

concern. I think all of us in this room know that.

So how is it --

And, Your Honor, we've come along way since

we studied communications in the '80s. The new

paradigm is reasonable access. And that's where all

these cases wind up, reasonable access. That's all I

was seeking. I didn't want to go into the turns and

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MacBookEven in Woods they abolished the policy banning cameras so he had a statutory right.My Amended Complaint goes there.

MacBookJudge Young said that case pivoted on whether she was a public employee, which is bullshit because the case held that she much as any reporter would have to follow the same procedures as the general public for access during her non-working hours. That is the key to this case.

MacBook Her Honor and I both have Communication Degrees. The difference is, she uses hers to oppress.

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details of the office; just to ask a couple of

questions. And then -- and I stated in my affidavit

very clearly that I was going to ask a couple of

questions about false statements that were made about

Mr. Gunn, and that's why I called on the phone to

give them a courtesy to ask in the first place and

then I was going to video Mr. Gunn at a machine

pulling up a fraudulent document.

This is video footage that is done

everywhere across the country on a routine basis. I

was denied that opportunity. Point blank. I was

denied any opportunity whatsoever, and that is, as

you know, Your Honor, you studied communications.

It's overbroad. It's not nearly tailored to reach

any compelling governmental interest.

In Holly Malone's affidavit, she said that

her interest was to try to maintain the order of the

office. I have better things to do than to disrupt

the order of the office, so does every journalist.

We are there to ask a couple of questions and move on

our way, but I wasn't allowed to do that. They said

it was overbroad and not nearly tailored to reach any

compelling governmental interest.

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MacBookThis is how I wanted to project my news story and unless I am disturbing the functions of the office they simply cannot stop me, period.

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They can't tell me how I'm supposed to run

my media. If I want to show a picture of a static

picture of a document pulled up from the machine, I

can do that. But I can also show Mr. Gunn pulling

that document up himself for greater visual impact.

I'm well within my right to do that. This is simple.

Furthermore, Your Honor, let's get into the

specifics of what I asked for that they ignored.

Before I do that, I want to bring up the

Kelly Ayotte case they've cited to in a public

private distinction as to what I would like to do.

If you look, there are actual pictures and videos in

the pleadings, Your Honor, relative to the Kelly

Ayotte matter in which the Court ruled that was a

private event where I was trying to run video. Okay.

I had interviewed Joe Arpaio and Kelly Ayotte

declined. They said that was a private event. It

was at a hotel, okay. Since that time -- and by the

way, at that time, Your Honor, Kelly Ayotte was not

an elected official. She was in between being a

attorney general and a U.S. Senator, okay.

In this instance, the defendants are both

publicly employed individuals 24/7, okay. And since

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MacBookBoom!!!

MacBookThey have since dropped the Ayotte argument, LOL..

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the time that Ms. Ayotte has become elected, every

single time I go to her office -- and this is in the

pleadings -- they answer my question. Be it on

school grounds -- I have proof in the file that I

have gone to her office in Washington, D.C. I have

gone to her office in New Hampshire. I'm allowed to

walk in and ask a question. Now if I remain there

all day and disrupt the office, of course, you can

throw me out. That's common sense, too.

That's why all my pleadings are entitled in

honor of Thomas Paine. It's common sense. What kind

of society do we want to live in -- and I want to

finish the quote that the counsel pulled up about

unlimited access. You know, if you finish that

quote, it goes on to say that when the government is

hiding something in secrecy that makes things much

more suspect. And the reason why I'm wanting to find

out about what they said about La Mar Gunn is because

that informs why they denied me access. It's simple.

Now, what did I ask for that they didn't

mention just now. I asked them -- and I quote --

because knowing what the policy is is important,

right?

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MacBookIts all about common sense folks.

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"State what authority that any defendant has

had, at any point in time up to the 27th of November,

that indicates that video was verboten in the 555 Bay

Road building on or about November 25th, the only

day, date, and time that plaintiff was there."

You know what their response to that was?

"Objection. This interrogatory is incomprehensible

and incapable of response."

I just asked what the policy is. I think

I'm entitled to know that. All the other cases said

so. But you know what? We don't have a policy here.

What we have is an ad hoc policy

administered by Ms. Malone who, during all of this,

made two phone calls. To whom were those calls made?

I believe I am entitled to a deposition to find out

about that.

And I have also put in the record, Your

Honor, just the other day when I responded in

replying to defendant Paradee's motion regarding the

compel, their memorandum and opposition to motion to

compel, I noted cases all throughout the country that

courts are reluctant to grant protective orders to

public defendants, you know, including Mayor

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MacBookObfuscatory bullshit response.The Court let them get away with it.

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Giuliani, okay, because they're less argument.

There's a little bit of embarrassment. That doesn't

hold weight.

As to whether or not they have dispositive

motions filed, I dismissed the emotional distress

claims. I have dispositive motions filed too, and

mine are stronger based on their own case law when it

comes out. There is only one case that restricts the

ability of a journalist or a citizen to run video and

that was at a prison. We are not at a prison. We

are in a public building. I didn't walk off the

public path in that building. I am not disruptive.

So the other questions were -- I ask why

defendant McKenna did not respond to my phone calls.

That's important because what's going on the

allegation that they're engaged in content based

discrimination, viewpoint based discrimination.

The First Amendment lies in the nuances,

Your Honor. That's why I almost never lose these

cases. As a matter of fact, the Ayotte case is the

only one I lost. The First Amendment is my life. I

know it well. This is my ground.

And so I am entitled to know why they didn't

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return the call because it might inform as to whether

or not they have a viewpoint based discrimination

against me; as opposed to say had my cousin, Mike

Wilbon, he's a big columnist for ESPN.

Okay. If Mike walks in there and he says,

"Hey, I want to do a story about this gentleman here.

He is a famous basketball player and he used to work

here. Can I roll some footage of him next to a

machine?" Do we honestly think that the defendants

are going to say no? Of course, they're not.

Because it's a puff piece. But you can't make

distinctions based on what you like and what you

don't like when you are a public official. You give

that up by being a public official.

So I am not here to keep them at their

office all day. I just want to ask a couple of

questions.

Now, the only couple of issues specifically

that I asked for, that I didn't get, include the case

captions for civil cases. Okay. That's a common

litigation question, Your Honor. You know, it's not

the point of the court or the defense to truncate my

discovery at this point. If I look back into those

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MacBookThis is viewpoint and content-based discrimination

MacBookAgain: Just trying to ask a couple of goddamn questions here.

25


cases and I find patterns that the defendants are

engaged in, then that might be helpful. But that's

for later. That's subject to motion in limine, not

to truncate my entire discovery path.


MR. KING: Yes.

THE COURT: I, too, like common sense, and

I, too, like to go to the simple.

MR. KING: Yes.

THE COURT: Particularly this, because my

job is to handle routine nondispositive civil

motions, not the merits of a case. So that's why I

started out with this motion for protective order.

When I was looking at this, it seemed to me

that the simple thing is should we -- based upon

these motions to dismiss that are filed that seem to

have -- been claimed to have merit and the fact that

this case does seem to be -- there is a lot of

different issues in it that properly should be

decided on the motions that are pending before Judge

Young. What is the harm to you for granting the stay

at this point of discovery, pending the outcome of

Judge Young's ruling, at which time if he denies

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their motion or grants yours, then we can go forward

with discovery at that point in time?

MR. KING: Your Honor, the cases they cited

to, the Woods case and the Cinelli case that screams

from that all turn on policy. Okay. And so the way

they answered that question --

Do I need to read it back, Your Honor? I

asked them, "What authority they have to deny my

access." They couldn't answer it. That is crucial

to know. If they want to bring up cases that address

policy, then you live by the sword and you die by the

sword. But you can't have it both ways. That's

simple. That's common sense. I need to know what

their policy is. I need to be able to sit down at

deposition and ask them why did you stop me from

doing that.

THE COURT: Maybe I'm not making myself as

clear as I hoped too. My question is: At this point

if I grant a stay in the discovery until Judge Young

has ruled on his pending motions and don't address

the merits of your motion to compel or their specific

motions for a protective order today, just stay the

discovery so that there is no more discovery until

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MacBookPolicy policy policy..But Im not entitled to know..

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after Judge Young has made his ruling, what is the

harm?

MR. KING: The harm is that I don't know

what the policy is, Your Honor. They want to cite to

cases that reference policy. I can't strengthen my

argument because I don't know what their policy is.

Your Honor, if I may --

THE COURT: Is the briefing getting ready to

be complete?

MR. KING: Yes, it is. So -- but before

it's complete and over my objection, you know, I

filed myself a motion to strike their filing because

I'm not done with discovery. One of the ways that

you prove a First Amendment case, Your Honor, is to

show a policy and a deviation from the policy. In

this instance, I don't have that. I have been

massively handicapped. I'm entitled to have that.

That's a simple question. State what authority you

had for doing what you did, and they turn around and

say they can't answer that. That's ludicrous.


Any response?

MR. SHANNON: If I may, Your Honor.

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MacBook

MacBook

MacBook

MacBook

MacBook

28


Again I ask the Court's indulgence to give

Mr. McGivney the opportunity to respond on behalf of

his client to the extent I do not adequately address

or respond to the arguments made by Mr. King.

The policy argument is a red herring.

Either the First Amendment mandates the access

Mr. King seeks or it does not. The existence or not

of a policy, nor even the terms of that policy, will

not create a First Amendment Right where none exists

and will not enlarge one assuming that one exists.

The policy is something entirely different. The

threshold question here is whether or not that right

exists in the first place.

If I may, to address the two cases

referenced by Mr. King. The Whiteland Woods versus

the Township of West Whiteland was heard by the Third

Circuit Court of Appeals. Mr. King refers to the

policy of the Township Planning Commission that

prohibited video. Well, the reason that policy of

the Planning Commission was repealed was because the

policy conflicted with Pennsylvania's statutory

sunshine laws that mandated municipalities conduct

open meetings and allow access. It was an issue of

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state statute.

Incidentally in 1991, while this case was

pending, that state statute was repealed and has not

been replaced. When the matter went up to the Third

Circuit Court of Appeals, the Third Circuit looked at

it and said, "This was a violation of state statutory

law, but it did not rise to the level of a

constitutional violation, because a state statute

does not confer a federal constitutional right." So

if a state statute does not confer a federal

constitutional right, it's kind of difficult to

conceive of how a policy of the Kent County Delaware

government could confer constitutional right, but

that's the argument Mr. King is making.

The second case to which he cited is

Cirelli. It's not Cinelli. It's Cirelli,

C-I-R-E-L-L-I. It's actually not referred to by

Mr. King in the motions on the discovery motions

here, but he does bring it up in his -- at the

dispositive level, but I will just touch on it

briefly, if I may.

Cirelli was cited to in Whiteland Woods. In

that case a -- it was either a school employee or

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MacBookWell Federal Courts in NJ and GA disagree. Pomykacz and Tisdale, supra.And my Amended Complaint adds Common Law and Statutory.

30


teacher, I believe it was, was -- believed that the

conditions of the school was such that the health of

the children was being affected, and she showed up

with a video camera to videotape conditions in the

school during the school day. The school

administrators told her that she could not do that.

So she brought the suit asserting First

Amendment Right. And the Court said -- in denying

her claim, the Court said that there is an interest

in the government in preventing the disruption of

government functions, and they are not required --

I'm paraphrasing now -- to give on-demand access.

That's as far as Cirelli went.

How Mr. King is reading it for just the

opposite proposition that the result of Cirelli was

that this teacher could walk into the school any time

she wanted to and film, it's not there in the case,

Your Honor. It's simply not there in the case.

That Mr. King has repeatedly asserted that

he is entitled to ask these questions of Ms. McKenna,

of Ms. Malone, that he is entitled to sit them down

and take their deposition, that he's entitled to find

out why Ms. McKenna did not call him back, he claims

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MacBookBullshit. Read the case. She won on First Amendment grounds.

MacBookNo, but she was allowed to film at any time the public was entitled to be there, dammit.

31


to have that entitlement under the First Amendment of

the Constitution. The purpose of this litigation is

not for Mr. King to get that information. The

purpose of this litigation is to determine whether or

not, as a matter of law, the First Amendment entitles

him to get that information. It's a clear

distinction.

For that reason, Your Honor, we do ask that

the motion for protective order be granted, that

discovery not be had, and litigation be stayed.

I don't know if Mr. McGivney has anything to

add.

Thank you, Your Honor.

MR. McGIVNEY: Your Honor, again, I will try

to be brief.

It's our position that the matter before the

Court here today is the discovery issues with the

case. The First Amendment and Delaware Freedom of

the Press issues those are under consideration by

Judge Young. The briefing for those issues closes

tomorrow with Mr. Shannon filing his answering brief

and responding to the plaintiff's motion for partial

summary judgment.

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MacBookI am still entitled to ask her why she didnt answer my question and whether she had any support for her false campaign allegations against La Mar Gunn.She does not have to answer that either but I am entitled to ask her, at her office, with a pend and a pad and/or a camera. So simple.

32


THE COURT: I have a question. Has the

briefing been completed on the motion to dismiss?

MR. McGIVNEY: It has, Your Honor.

What we have so far in this case, Your

Honor, as far as discovery goes and the need to stay

the case and to enter a protective order, the

plaintiff initiated this litigation by filing six

discovery requests to my client and to Mr. Shannon's

clients. Between the dates of May 19th and May 20th,

the plaintiff filed eight separate applications for

relief with the Court.

On May 21st, Judge Young entered an order

stating that he would not consider any more of the

plaintiff's Thomas Paine motions to uphold our

dispositive motions in abeyance.

Since that date, the plaintiff has filed ten

more applications for relief. That's as of June 4th.

The lack of restraint with the filings and the

discovery requests and the motion practice, it makes

it very clear why this protective order and the

motion to stay should be granted.

Again, I bring the Court's attention to the

fact that the plaintiff will not be prejudiced if the

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case is stayed. If the motions to dismiss are

denied, then the case can move forward. As of right

now, the Court needs to maintain control of the

docket while the motions to dismiss are being

considered.

That's all I have. Thank you, Your Honor.


MR. KING: I'll be brief, Your Honor.


MR. KING: In the first instance with

respect to defendant Paradee, we all know that

private persons can be found in conspiracy to violate

civil rights laws. That's 1985. It happens all the

time. Okay.

But let's get back to the issues of the two

cases again, because they want to stay in the merits

when they want to stay in the merits and get off when

they want to. But it's very important. The merits

are very important.

The Woods case, okay, it didn't rise to a

level of constitutional depravation because there was

a policy, even if it was for that one meeting. If

you read the Woods case carefully, that's why. All

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MacBookBut Judge Young said just the opposite but we all know he is wrong.

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right.

Furthermore, Woods was not a reporter.

There was no allegation that he was a reporter

exercising the First Amendment Right of a reporter to

gather and to disseminate news. That is a

distinction of crucial importance. He was working

for the developer. He was just a guy there at the --

dealing with the Sunshine Act. Okay.

Now -- and again speaking of statutory to

statutory, remember they still have never addressed

the Delaware Free Press issue. They don't want to

talk about that. But it's there for a reason. The

Legislature didn't just create that out of thin air.

It's there. And they have no response to that.

Now, Cinelli or Cirelli, that case, Your

Honor, I know if you read the pleadings I am not

arguing unfettered access. And Cirelli does not

argue for it either. The gravamen is whether or not

it's reasonable. Okay.

And by all intents and purposes, by

everything we have in the record, my request was

reasonable. I wasn't unruly. I walked in. You

know, when can a reporter ask a public official a

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MacBookSame as the First Amendment. But as I say the Amended Complaint adds Common Law and Statutory Claims.

35


question at her office in the middle of the day? If

I don't have that right, we are all doomed.

Now let's talk about the multitude of

pleadings that they are getting at. One of the

reasons, Your Honor, I had to file more discovery

requests is because they engaged in gamesmanship. I

misspelled -- or I misidentified the building in the

first round, and they turned around and said, "Oh, we

don't know what you're talking about." So, of

course, I had to file an amended revised set of first

discovery requests. You know, they could have just

said, "Okay. We believe you're referring to this

building, Mr. King, you know, watch your typos."

But, no, they played the game. That's what increased

some of this litigation from the get-go.

Then when His Honor said -- oh, there were

more applications for relief that I filed. Well, you

know what those are? Those are pictures that a

citizen sent me from Lancaster County where cameras

are allowed. So we have an equal protection argument

pending as well. So, yes, I absolutely filed another

request for relief seeking to amend my complaint to

include equal protection argument. I can get it down

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MacBookOutright gamesmanship all along.

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the street, but I can't get it here. That's not even

a rational basis, Your Honor, for a flatout denial

that I received here.

And I have to know what the policy is. If

there is one thing that this Court has to grant me

right now is the right to ask them, "What is your

knowledge of the policy." That's all.


I have reviewed all the documents that were

filed on these motions and considered the arguments

today. As I said earlier, I do like to keep things

simple. It seems to me that there are a number of

issues in play at this particular juncture in this

case. There has been a lot of discovery. There's

been a lot of motion practice. And there are pending

motions to dismiss that have been briefed, and

therefore, there is nothing that would be -- no

discovery that could be added to that particular

motion, those particular motions at this point in

time.

So it appears to me that the most sensible

thing to do would be to stay the discovery pending

the outcome of the motion to dismiss at this point in

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MacBook

MacBook

MacBook

MacBook

MacBookAnd you can go to Hell, Mr. KingI am protecting my people on the Plantation.

37


time. And if that motion is denied, obviously

discovery could proceed forward. And at that time,

we would have to determine whether or not the

questions that have been asked in either side are

relevant or calculated to disclose relevant

information at trial under those standards.

So for today's purposes, I will grant

defendants' motion to stay discovery. As far as the

protective order and the merits of that and the

merits of Mr. King's motion to compel, I'm not making

a ruling on either of those today. I'm just going to

stay any discovery until the resolution of the

dispositive motion on the motion to dismiss pending

before Judge Young. If we need to address those at a

future date, we can do so then.

Thank you.

MR. KING: Thank you, Your Honor.

MR. SHANNON: Thank you, Your Honor.

THE COURT: The Court is in recess.

(Whereupon, the proceedings in the above-

entitled matter were concluded.)

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C E R T I F I C A T E

I, CHRISTINE L. QUINN, an Official Court

Reporter of the Superior Court of the State of Delaware,

do hereby certify the above and foregoing pages, 3

through 37, to be a true and accurate transcript

of the proceedings therein indicated on Thursday,

June 11, 2015, as was stenographically reported by me

and reduced to computer-aided transcript under my

direct supervision, as the same remains of record in

the office of the prothonotary in the Kent County

Courthouse, Dover, Delaware.

This certification shall be considered null and void if

this transcript is disassembled in any manner by any

party without authorization of the signatory below.

/s/ Christine L. Quinn CHRISTINE L. QUINN

July 9, 2015_____________ Date

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KingCast v. McKenna 11 June 2015 Annotated Free Press First Amendment Transcript

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