As litigants in a federal lawsuit over a Ten Commandments monument placed on the grounds of the Arkansas state Capitol continue to spar over legal issues surrounding the case, U.S. District Judge Kristine G. Baker made it clear Friday that she is ready to move the case to a resolution.
Baker told attorneys during a status conference Friday that she will schedule a status conference every 30 days and set dates for all parties to file a joint status report or individual status reports.
"The purpose of the status report will be to apprise the court of issues that you wish to raise with me," Baker said. "It will also serve the purpose of informing all other counsel of the issues you wish to raise so there are no surprises."
Baker said the case has been plagued by last-minute filings, additions to discovery requests, and other legal maneuvers. From this point, she said, she expects all parties with a legal interest in the case to meet deadlines set by the court and to iron out issues at the monthly status conferences.
"Everybody's going to be at the party," Baker said. "We're going to roll with this every 30 days, we're going to take care of business, and we're going to get this case ready for trial."
The lawsuit, Cave et al v. John Thurston, originally filed against then-Secretary of State Mark Martin, was filed May 23, 2018. On June 25, 2018, it was merged with a similar lawsuit, Orsi et al v. Martin, which was filed the same day. Both lawsuits contend that the monument is a violation of the First Amendment by establishing governmental preference of one religion above all others.
The first monument was installed at the Capitol on June 27, 2017, but was toppled within 24 hours by a man who rammed it with his vehicle and was later found mentally unfit to proceed to trial. A replacement monument, surrounded by 3-foot-tall concrete posts, was installed April 26, 2018.
The monument has been a lightning rod for controversy since passage of the Ten Commandments Monument Display Act by the General Assembly in 2015, which authorized construction of the monument on Capitol grounds.
Baker said all relevant issues to be dealt with must be brought up in time for all parties to be informed and present to address those issues. She specifically forbade more last minute filings.
"I am not interested in this litigation in piecemeal discovery arguments anymore," Baker said. "If somebody needs to be at the table, they need to be at the table. If someone has an argument to make, they need to make it. We're not going back around and getting two, three, and four bites of the apple that should be resolved and settled."
A major sticking point was raised by Paul Byrd, who represents Sen. Jason Rapert, R-Conway, in his individual capacity in the case. Rapert sponsored the legislation to approve the monument and raised private funds through his American History and Heritage Foundation to pay for it and has tried to block the release of a video of his deposition in the case.
Baker said if Rapert, who did not attend Friday's hearing, wishes to claim deliberative process privilege in the matter of the video deposition he would need to raise the issue with the court.
"If he wants to raise that issue with me to protect disclosure of any document that's going to be asked for in discovery, he's going to have to brief it," she said. "I'm not interested in trampling on any ability of Sen. Rapert to raise an issue with the court that is a legitimate issue. I want the other side to have an opportunity to respond to it, but what I don't want is for 60 days down the road ... someone to come in here and say, 'We're going to raise this issue for the first time ever.' ... I'm not interested in that."
Rapert has tried to block release of the video on the grounds that his detractors could manipulate portions of it to subject him to ridicule or for other purposes. Byrd said in the past images and video clips of Rapert had been manipulated and distorted.
Gerry Shulze, attorney for co-plaintiff Anne Orsi, argued that, as a public figure, Rapert's image has been widely disseminated in public.
"Sen. Rapert is running for lieutenant governor of this state," he said. "There are hours and hours of video that he has put on the internet himself of him talking, singing, playing the fiddle -- he's good, by the way -- but he has never articulated a single, reasonable, good faith reason that this deposition ought to be treated any differently than any other deposition we have ever had."
Matt Kezhaya, attorney for the Satanic Temple, an intervenor in the lawsuit, accused Rapert of trying to control the narrative.
"There's absolutely no concern that anything in this video is going to cause him any harm," he said.
Byrd said such concern exists, saying that the Satanic Temple has circulated a manipulated photo of Rapert that purports to show the senator with fangs, and blood on his face, eating a baby. He said another photo purports to show Lucien Greaves, leader of the Satanic Temple, standing with Rapert with the two of them holding a Satanic flag and making hand signals to one another.
"The video will be ... distorted in ways that's not what its purpose is for," Byrd said. "We have no objection to a legitimate use of this video for this case, but we don't want it to become more of the type of communications we see around this litigation."
Baker asked whether Rapert had commented about this case, tweeted about the case and posted about the case.
"I'm sure he has," Byrd said.
"Is he a friend of the First Amendment?" Baker asked. "More speech, not less?"
"But he has not distorted any images," Byrd replied.
"In his view," Baker replied. "Somehow that depends on the eye of the beholder, doesn't it?"
Byrd said he has no objection to the text of Rapert's deposition being released.
"I have no objection to the video being used in the course of this trial," he said. "I don't know how to address the fact that either side has said or done things about this case, but I do think distorting the video image is not conducive to what this court needs to get done in this case."
Baker said she would take the matter under advisement. She asked that all parties moving forward be present for hearings or provide adequate time to file motions for leave. She also advised attorneys that she will likely extend document discovery only to the end of the year.
"This is an old case," she said. "These issues have been hanging out there. ... Let's push it through, get it done, finalize what needs to be finalized."