CAUSE NO. DC-09-12981-C MICHAEL WEINSTEIN and, § IN THE ... · cause no. dc-09-12981-c michael...

Klingenschmitt’s Motion to Dismiss, or Alternatively a Motion for Summary Judgment – of 21

CAUSE NO. DC-09-12981-C

MICHAEL WEINSTEIN and, § IN THE DISTRICT COURT BONNIE L. WEINSTEIN § Plaintiffs § § vs. § 68TH-C JUDICIAL DISTRICT § ELMER AMMERMAN, § THE CHAPLAINCY OF FULL GOSPEL § CHURCHES, and § GORDON KLINGENSCHMITT, § DALLAS COUNTY, TEXAS Defendants. §

DEFENDANT GORDON KLINGENSCHMITT’S MOTION TO DISMISS, OR ALTERNATIVELY A MOTION FOR SUMMARY JUDGMENT

Gordon Klingenschmitt (“Klingenschmitt”) files this motion to dismiss, or alternatively a

motion for summary judgment. He has been sued, along with the late Elmer Harmon

Ammerman (“Ammerman”) and the Chaplaincy of Full Gospel Churches (“CFGC”) (“CFGC

parties,” collectively), by Plaintiffs Michael L. Weinstein and Bonnie L. Weinstein,

(“Weinsteins”), for publishing two prayers on his personal ministry website, which the

Weinsteins claim were (1) retaliatory, (2) conspiratorial, and (3) threatening. The Weinsteins

sought relief for (1) alleged violations of Texas Penal Code sections 22.01 and 22.07, (2)

intentional infliction of emotional distress, (3) conspiracy, and (4) injunctive relief.

Klingenschmitt files this motion to dismiss because the court lacks subject matter

jurisdiction to evaluate the prayers; and in the alternative requests summary judgment as (1) the

threat cause of action doesn’t exist in Texas law, (2) discovery facts negated the Weinsteins’

claims, and (3) the First Amendment protects Klingenschmitt’s speech. Lastly, Klingenschmitt

asks for sanctions against the Weinsteins for filing a frivolous pleading.


Issues

(1) Does a civil court have subject-matter jurisdiction to evaluate the content of a prayer when United States Supreme Court and Texas Supreme Court precedent consider prayer a protected religious activity under the Free-Exercise and Establishment Clauses of the United States and Texas Constitutions?

(2) When the summary judgment facts conclusively negate the Weinsteins’ emotional

distress, retaliation, and conspiracy, is Klingenschmitt entitled to summary judgment as a matter of law?

(3) When the speech in question falls under First Amendment protection and does not

rise to the level of a real or imminent threat, is Klingenschmitt entitled to summary judgment as a matter of law?

Undisputed Facts

Fact 1: Defendant Gordon Klingenschmitt is an ordained clergyman and former Navy

chaplain. He changed his endorsement to CFGC just before his honorable discharge

and separation from the Navy in March 2007. See Klingenschmitt v. Winter, No. 06-

cv-1832, 2007 U.S. App. LEXIS 2339 (D.D.C. Sept. 21, 2007) (challenging his

separation because the Navy refused to recognize his change of endorsement from the

Evangelical Episcopal Church to CFGC in September 2006). Klingenschmitt began a

personal, private, civilian ministry, the “Pray in Jesus Name Project” in 1999, many

years prior to his separation from the Navy, Gordon James Klingenschmitt Affidavit

(“GJK Aff.”) (Exhibit 1), ¶ 39, which has a website of the same name, Deposition of

Gordon Klingenschmitt (“G.K. Dep.”) (Extracts at Exhibit 2) at [55:9-11].

Fact 2: Defendant Elmer Harmon (Jim) Ammerman, now deceased, was a retired Army

chaplain who founded CFGC as a Texas Corporation to endorse clergy from

nondenominational, charismatic Christian churches for the military chaplaincies.

Texas State Corporation Certificate, Exhibit 3. The Armed Forces Chaplains Board

recognized CFGC as a DOD approved endorsing agency in July 1984. Petition, ¶ 15.


Fact 3: CFGC serves an endorsing agency for chaplains in the military context. The

Department of Defense (“DOD”) requires each military chaplain maintain an

endorsement from an approved endorsing agency to serve in the military as a

chaplain and defines “endorsement” in DOD Instruction 1304.28, “Guidance for the

Appointment of Chaplains for the Military Departments”, ¶ E.2.1.7 (Exhibit 4):

Endorsement-“The internal process that Religious Organizations use when designating

RMPs [Religious Ministry Professionals] to represent their Religious Organizations to

the Military Departments and confirm the ability of their RMPs to conduct religious

observances or ceremonies in a military context.” (emphasis added).

Fact 4: Klingenschmitt posted two prayers mentioning Plaintiff Michael Weinstein in the

“Prayers at Issue” as set out above, Exhibits 5 and 6, on his personal, private “Pray in

Jesus Name Project” website (servers located in Pennsylvania, G.K. Dep. [94:17-20]),

prompted by Mr. Weinstein’s two prior complaints, one to the Chief of Naval

Operations concerning Klingenschmitt (about posting a picture of him in uniform on

active duty) and the other to the Secretary of Army concerning Maj. Gen. Douglas

Carver, respectively. Only his April 25, 2009 prayer published on or about April 28,

2009 used the term “imprecatory”, See Exhibits 5 & 6. Klingenschmitt posted his

prayers as part of a devotional plan; he posted his prayer for May 20, 2009

(Wednesday, # 4) (Exhibit 6) on May 17, 2009. GJK Aff. ¶ 6.

Fact 5: Klingenschmitt’s prayer for April 25, 2009, stated:

Let us pray. Almighty God, today we pray imprecatory prayers from Psalm 109 against the enemies of religious liberty, including Barry Lynn and Mikey Weinstein, who issued press releases this week attacking me personally. God, do not remain silent, for wicked men surround us and tell lies about us. We bless them, but they curse us. Therefore find them guilty, not me. Let their days be few, and replace them


with Godly people. Plunder their fields and seize their assets. Cut off their descendants, and remember their sins, in Jesus’ name. Amen. Petition ¶ 24 and Exhibit 5 (April 25, 2009 prayer).

Fact 6: On May 17, 2009, Klingenschmitt posted the following prayer on his website for May

20, 2009:

Let us pray. Almighty God, today we pray your blessing upon the Chief of Army Chaplains, Major General Douglas Carver, who called for a day of prayer and fasting for our troops, then got falsely accused of violating the U.S. Constitution by the anti-Christian activist Mikey Weinstein, simply because he invited chaplains of all diverse faiths to fast and pray for our soldiers safety and health. God we proclaim Deuteronomy 23, that you will bless those who honor and obey your laws, and curse those who dishonor you, in Jesus name, Amen. Petition ¶ 24 and Exhibit 6 (May 20, 2009 prayer).

Fact 7: Plaintiffs acknowledge “imprecatory or ‘curse’ prayers in mainstream Christianity and

Judaism are prayers for the Lord to protect the weak and faithful from the strong and

wicked. While they may be infrequently used in mainstream Christianity ... they are

recognized as part of Judeo-Christian tradition.” Petition, ¶ 26.

Fact 8: Plaintiffs claim the alleged “fatwahs”, which they characterized as coded calls to

violence, were (a) made to retaliate against Plaintiffs after they “first question[ed] and

later challenge[d] the right of CFGC to be an official ‘endorser’ of chaplains”, id. ¶¶

21, 22 (“Soon after MRFF began to complain about some of the actions of the

Defendants”); Michael L. Weinstein Deposition (“M.W. Dep.” [86:12-20]) (Exh. 7);

and (b) the result of Klingenschmitt’s and Ammerman’s conspiracy to silence

Plaintiffs for questioning the CFGC Parties’ endorser status, Petition ¶ 25, see also ¶¶

29-31; Plaintiffs’ 2/16/2010 Response to [Defendants’] Motion to Dismiss, p. 4, ¶ D

(Exhibit 8) (“Mikey Weinstein was challenging Ammerman’s status as an endorsing


agency. *** Klingenschmitt jumped to Ammerman’s defense and issued a fatwah

against Mikey”).

Fact 9: The Weinsteins have pleaded to the Court: “The specific acts alleged [forming the

object of the conspiracy] are the fatwahs issued by Klingenschmitt against Mr.

Weinstein and his family. The conspiracy was initiated sometime before April 25,

2009.” Response to Motion to Dismiss, p. 3, ¶ B, Exhibit 8, (emphasis added).

Fact 10: Plaintiffs state they must rely on their expert to decipher and explain to the Court the

challenged prayers’ hidden “coded suggestions of criminal violence and appeals to

Klingenschmitt’s followers to threaten acts of violence”, Petition ¶¶ 26 (“hidden”), 27

(need expert).

Fact 11: When asked to explain the “code,” Mr. Weinstein deferred to his expert. M.W. Dep.

[130:24-25] (“We don’t read the same code. The code means something to

fundamentalist Christians that it wouldn’t mean to somebody who is not a

fundamentalist Christian”); [131:2-4] (“So we had said, what are they meaning when

they say this and this is what we were told”); [132:17-21] (“had to seek interpretation

from others”). When Defendants asked, “Is there some book” that explains the code,

he said, “There may be but I’m not aware of it.” Id. at [132:15-17]. Mrs. Weinstein,

when asked the same question, Bonnie L. Weinstein Deposition (“B.W. Dep.” [30:23-

25]), gave the same answer, [31:3-4] (“So, you know, I don't know”).

Fact 12: When asked to identify which part of Deuteronomy 23 (Exhibit 10) cited in

Klingenschmitt’s May 20, 2009, prayer he considered a threat, Mr. Weinstein pointed

to verse 3, “No Ammonite or Moabite, or any of his descendants may enter the

assembly of the Lord, even down to the tenth generation,” and asserted that


Klingenschmitt wanted to wipe out his descendants to the tenth generation. M.W.

Dep. at [130:2-5] (this must be where “it talks about the tenth generation”); [133:5-7];

[202:19-20].

Fact 13: Plaintiffs responded "Not applicable" in their Disclosures under Texas Rule of Civil

Procedure 192.4(I), "All medical records and bills that are reasonably related to the

injuries or damages asserted." Exhibit 11. Therefore, no medical expenses are

attributable to Mr. and Mrs. Weinsteins’ alleged severe emotional distress.

Fact 14: Plaintiffs admit they had no knowledge of CFGC before Klingenschmitt posted a

disclaimer about his Navy uniform and how CFGC endorsed him for chaplaincy, on

his website with his April 25, 2009, imprecatory prayer. Plaintiffs only discovered

CFGC was Klingenschmitt’s endorser because of the uniform disclaimer that was

posted with the prayer, responding to their CNO letter of 4/16/09. See Admission

Nos. 3-4 (Exhibit 12), agreeing Chris Rodda’s May 20, 2009, article (Exhibit 13)

truthfully described how Klingenschmitt’s April 25, 2009, disclaimer accompanying

his prayer led Plaintiffs and MRFF to discover CFGC and Ammerman; M.W. Dep.

[87:18-88:13].

Fact 15: Mr. Weinstein and MRFF wrote their letter to DOD challenging Ammerman and

CFGC’s status as an endorser June 24, 2009, two months after Klingenschmitt’s April

24, 2009, prayer citing Psalm 109 (Exhibit 14).

Fact 16: Telephone records corroborate that Klingenschmitt and Ammerman had no

communication between February 17, 2009, at CFGC’s annual conference, and May

21, 2009, when Klingenschmitt called Ammerman to alert him to Rodda’s 5/20/09


article, Ammerman Aff. ¶¶ 13, 14 (Exhibit 15); GJK Aff. ¶ 7- 8. Klingenschmitt

never addressed the issue with CFGC staff. GJK Aff. ¶ 7.

Fact 17: The Weinsteins claim that threats and hate mail have increased exponentially since the

prayers, and describe such threatening acts of violence in detail (“shots being fired at

their home, fires being set on their lawn, dead animals being left on their porch, etc.”).

4th Am. Pet. ¶¶ 23, 27, 28.

Fact 18: The Petition identifies NO acts of physical violence resulting from the imprecatory

prayers, Plaintiffs do not allege a nexus between the defendants and any specific act of

violence, Admission No.15, and Plaintiffs have admitted in depositions that no such

acts occurred from the time of the first imprecatory prayer through September 23,

2009, when they filed suit, Admission No. 16, (Exhibit 12). The Plaintiffs further

admitted all alleged acts of vandalism cited in their Petitions have occurred at the

hands of other unidentified people 2005, B.W. Dep.[56:25-57:16] (referring to acts of

vandalism following first suit against Air Force in 2005); [57:17-59:1] (referring to

acts of vandalism following second and third suit against DOD in 2008), all

occurring before Klingenschmitt’s first prayer on April 25, 2009. M.W. Dep.

[111:8-11]. Mr. Weinstein admitted plaintiffs had “no direct evidence” the defendants

were related to any of those prior acts of vandalism. Id. [113:11].

Fact 19: On or shortly before June 23, 2009, Religion News Service (“RNS”) reporter Tiffany

Stanley, interviewed Michael Weinstein. RNS quoted him as saying “A little prayer,

[Weinstein] said, doesn’t bother him.” Tiffany Stanley, “Does God answer prayers to

do someone ill?”, RNS, June 23, 2009 (Exhibit 16).

Summary of the Argument


The Weinsteins’ argument against Klingenschmitt fails both jurisdictionally and on the

merits. This Court lacks subject-matter jurisdiction because the Free Exercise and Establishment

Clauses bar courts from interpreting a prayer in the manner requested by the Weinsteins. Simply

put, courts are not constitutionally-qualified to do what the Weinsteins ask, to chose between two

competing interpretations of an innately religious spiritual exercise: prayer. The United States

and Texas Supreme Courts have wholly rejected similar requests to judicially intrude upon

religious practices time and again. As a result, the Court should dismiss this case for lack of

subject-matter jurisdiction.

Alternatively, the Court should grant summary judgment against all of the Weinsteins’

claims. First, Texas civil courts have never granted a civil claim based upon Sections 22.01 and

22.06 of the Texas Penal Code. Second, the Weinsteins have presented no evidence in support

of any part of their claims of emotional distress, retaliation or conspiracy. On the contrary,

throughout their arguments to this Court the Weinsteins have knowingly presented false

pleadings that contradicted facts revealed in discovery. Third, the First Amendment requires a

threat to be understandable by the ordinary person as a clear provocation or call to act resulting

in imminent danger. In addition, the Weinsteins’ pleadings and deposition testimony prove their

lawsuit is clearly sanctionable under Texas law. Thus, the Court should grant summary

judgment in favor of Klingenschmitt as a matter of law and sanction the Weinsteins for filing a

frivolous lawsuit with deceptive claims they knew to be false.

The claims will be refuted in the following order: lack of subject matter jurisdiction, lack

of a cause of action, proven lack of evidence and fraudulent claims through discovery, and long-

standing constitutional protection for Klingenschmitt’s speech.

MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION


A civil court does not have subject-matter jurisdiction to evaluate the intent or content of a prayer under the Free Exercise and Establishment Clauses; therefore, this Court should

dismiss the Weinsteins’ claims. The Texas and U.S. Constitutions plainly bar Plaintiffs’ claims for lack of subject-matter

jurisdiction, which can’t be waived and is always before the court. Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). “Lack of jurisdiction may be raised . . . when

religious-liberty grounds form the basis for the jurisdictional challenge.” Westbrook v. Penley,

231 S.W.3d 389, 394 (Tex. 2007) (citing Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996)

and other precedent). The subject matter, a prayer, makes this motion to dismiss appropriate.

When “the pleadings affirmatively demonstrate an incurable jurisdictional defect, then the

[motion addressing the lack of subject-matter jurisdiction] must be granted.” Id. at 395 (citing

Tilton, op cit.). Such is the case here, because the U.S. and Texas Constitutions deny this Court

subject-matter jurisdiction, and any judgment against Klingenschmitt would be void. Browning

v. Plack, 698 S.W.2d 362, 363 (Tex. 1985).

Plaintiffs’ Petition asks the Court to take sides in a religious dispute, specifically whether:

(1) two prayers Plaintiffs admit “are recognized as part of the Judeo-Christian tradition”,

(Petition ¶, 26), are classified as Christian prayers or Muslim “fatwahs”, id. at ¶¶ 24, 26, 27; or

(2) the prayers in question were addressed to God or alleged “coded” instructions to unnamed,

unidentified “followers” to commit acts of violence, which have not occurred.

The First Amendment bars courts from exercising jurisdiction over religious questions,

including the meaning and content of religious words, prayers, and practices. Fowler v. State of

R.I., 345 U.S. 67, 69-70 (1953) (rejecting the state’s efforts to regulate the religious speech of a

Jehovah’s Witness minister, finding that “[i]t is no business of courts to say that what is a

religious practice or activity for one group is not religion under the protection of the First


Amendment.”); see also Cantwell v. Connecticut, 310 U.S. 296, 310-11 (1940) (stating that the

intangible harms caused by the exercise of Cantwell's religious belief he must proselytize were

insufficient to justify the imposition of civil or criminal liability since the state failed to

demonstrate there was “clear and present menace to public peace and order”).

Texas precedent follows this foundational constitutional rule concerning religious

questions. “Most courts agree that the general prohibition on the adjudication of religious

questions, once triggered, precludes further adjudication of the issues in question.” Penley, 231

S.W.3d at 394 n.3 (citation omitted). That prohibition extends broadly, and encompasses:

• religious words; see HEB Ministries Inc., v. Texas Higher Educ. Coord. Bd., 235

S.W.3d 627, 657 (Tex. 2007) (stating that Texas could not restrict the use of the term

“seminary”);

• religious practices, Tilton, 925 S.W.2d at 682 (“Adjudication of the claims for

intentional infliction of emotional distress would necessarily require inquiry into the

truth or falsity of religious beliefs that is forbidden by the Constitution”);

• practices related to religious doctrine and belief, Pleasant Glade Assembly of God v.

Shubert, 264 S.W.3d 1, 12-13 (2008) (denying courts the jurisdiction to hear claims

of physical or emotional injury from the “laying on of hands”); see also In re Godwin,

293 S.W.3d 742, 748-49 (Tex. App.—San Antonio 2009, pet. denied) (stating court

lacked jurisdiction over former member’s claims of defamation and intentional

infliction of emotional distress because pastor “marked” plaintiff for causing division

and strife); and

• internal affairs of religious organizations. Penley, 231 S.W.3d at 401-03; Hill v.

Sargent, 615 S.W.2d 300, 301 (Tex. App.—Dallas 1981, no pet.) (Citing First


Amendment prohibitions of civil courts “interfering in ... administrative affairs of a

church”); see also Lee v. Weisman, 505 U.S. 577, 599 (1992) (Blackmun, J.,

concurring) (“Nearly half a century of review and refinement of Establishment Clause

jurisprudence has distilled one clear understanding: Government may neither promote

nor affiliate itself with any religious doctrine or organization, nor may it obtrude itself

in the internal affairs of any religious institution.”); Paul v. Watchtower Bible and

Tract Soc. of New York, Inc., 819 F.2d 875, 883 (9th Cir. 1987), cert denied, 484 U.S.

926 (1987) (“A religious organization has a defense of constitutional privilege to

claims that it has caused intangible harms-in most, if not all, circumstances”);

• rejection of experts to help courts decide religious issues because it would

impermissibly entangle courts in religion. E.E.O.C. v. Catholic Univ. of Am., 83 F.3d

455, 465-66 (D.C. Cir. 1996) (“[N]o expert testimony could effectively filter out the

religious elements from the secular ones sufficiently to avoid unwholesome and

impermissible entanglement with religious concerns.”); Penley, 231 S.W.3d at 401-03

(see esp. id. at 401 (quoting the D.C. Circuit’s EEOC language)).

It is well-settled across the breadth of cases regarding religious subject-matter jurisdiction

that courts do not have the ability to parse prayers, determine competing interpretations, nor

render judgment over innately religious subjects such as prayers. Klingenschmitt asks the Court

to uphold this solid body of precedent and dismiss the Weinsteins’ claims as protected under the

Free Exercise and Establishment Clauses of the United States and Texas Constitutions.

MOTION FOR SUMMARY JUDGMENT

Summary judgment standard


Summary judgment allows for termination of a case when the claim is patently

unmeritorious or where there is no dispute to any material fact and the movant is entitled to

judgment as a matter of law. See Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952); Turner

v. Church of Jesus Christ of Latter-Day Saints, 18 S.W. 3d 877, 885-86 (Tex. App.—Dallas

2000, pet. denied). While the Weinsteins are indulged reasonable inferences, 20801, Inc. v.

Parker, 249 S.W.3d 392, 399 (Tex. 2008), simply negating one element of a cause of action

entitles Klingenschmitt to summary judgment on undisputed facts. Furthermore, when a claim is

not recognized under Texas law, summary judgment is required. City of Houston v. Clear Creek

Basin Auth., 539 S.W.2d 671 (Tex. 1979).

No civil claim exists under Sections 22.01 or 22.07 of the Texas Penal Code

No Texas court has ever interpreted Sections 22.07 or 22.07 of the Texas Penal Code to

create a civil cause of action. The Weinsteins ask this Court to create new liability out of whole

cloth, contrary to express precedent by the Supreme Court of Texas. “It is well-established that

the mere fact that the Legislature adopts a criminal statute does not mean this court must accept

it as a standard for civil liability.” Perry v. S.N., (973 S.W.2d 301, 304 (Tex. 1998). The

responsibility to obey the Texas Penal Code “is not equivalent to a duty in tort.” Id.

Thus, the first of the Weinsteins’ claims, as a matter of law, has no merit and summary

judgment should be granted in favor of Klingenschmitt.

Discovery expressly negates the Weinsteins’ claims of emotional distress, retaliation, and conspiracy

1. The Weinsteins admitted during discovery they have no emotional distress damages

and have suffered no retaliatory acts, in contradiction of their pleadings.


In Paragraphs 27 and 28 of their Petition, the Weinsteins expressly stated that “threats

and hate mail” have “increased exponentially” after Klingenschmitt prayed his prayers. Petition,

¶¶ 22, 28. They claim “severe emotional distress” from the prayers. Petition, ¶ 30.

In sharp contradiction to their pleadings, the Weinsteins admit no personal physical

attacks, injuries, or property vandalism occurred after the challenged prayers, Fact 18, and have

presented no medical records or other evidence showing their “emotional distress was severe”

and directly attributable to the falsely alleged offending prayers. Fact 13. See Turner v. Church

of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 901 (Tex. App.—Dallas 2000, pet. denied)

(granting summary judgment when IIED claimants presented no evidence). Mr. Weinstein’s

admitted lack of medical expenses related to his alleged emotional stress is consistent with his

public admission to the media “[a] little prayer ... doesn’t bother him.” See Fact 19. Mrs.

Weinstein’s admission that her own name is not mentioned in any prayer or anywhere on

Klingenschmitt’s web-site betrays her own claim of any harm whatsoever. See Exh. 9. Any

demand for damages has been made with complete and utter knowledge that no acts of violence

have happened nor have any physical, mental, or emotional damages occurred as a result of the

prayers. In fact, the Weinsteins’ claims have been made with the express knowledge that any

vandalism or threats occurred in 2005-2008, many months and even years before the prayers

were posted in 2009, and therefore could not have been caused by the defendant’s prayers. See

B.W. Dep. [56:25-57:16] (referring to acts of vandalism in 2005), [57:17-59:1] (referring to acts

of vandalism in 2008, all occurring before Klingenschmitt’s first prayer on April 25, 2009);

M.W. Dep. [111:8-11]. Mr. Weinstein admitted plaintiffs had “no direct evidence” the

defendants were related to any of those prior acts of vandalism, id. [113:11], making their claims

with this Court fraudulent as more fully expressed infra.


2. The Weinsteins’ retaliation claim fails as a matter of law because they cannot show a proximate causal sequence between the prayers and the alleged retaliation.

It remains a fundamental matter of logic that a retaliatory act cannot precede the act that

is the cause of retaliation. This is the problem with the Weinstein’s claim of retaliation. They

claim that they (1) challenged CFGC’s endorser status with the DOD, that (2) Ammerman and

Klingenschmitt conspired to retaliate against them for doing so, and as a result (3) the April 25,

2009, and May 20, 2009, prayers are coded messages calling for retaliation. In shorthand, their

claim sequence is (1) challenge, (2) conspiracy, and (3) retaliation. A claim consistent with the

Plaintiffs’ allegations must prove the Plaintiffs’ questioned CFGC’s endorser status before the

prayers were issued in order for the prayers to be considered retaliatory acts.

Yet again, in what are habitually false pleadings, the Weinsteins’ own admissions and

depositions show that the challenge to CFGC’s endorser status happened after the prayers were

posted. Discovery shows (bolded to show the illogical prayer/retaliation sequence):

(1) 4/16/09: Mr. Weinstein sent letter to CNO accusing Klingenschmitt of improperly wearing

a uniform (Facts 4, 14; Plaintiffs Admission No. 2); (2) 4/28/09: Klingenschmitt posted his April imprecatory prayer (Fact 5), which enabled

Plaintiffs to learn about Ammerman and CFGC (Fact 15, Exh. 13); (3) 5/17/09: Klingenschmitt posted his second prayer (for 5/20/09) defending Gen. Carver

without knowing about Plaintiffs’ proposed future challenge to CFGC’s endorser status (GJK Aff. ¶ 6);

(4) 5/20/09: Plaintiffs posted their account of how they discovered Ammerman and CFGC as a

result of Klingenschmitt’s disclaimer on his first prayer (Fact 15, Exh. 11) and (5) 6/24/09: Plaintiffs sent a letter to DOD challenging the CFGC Parties’ endorser status

(Fact 14, Exh. 15). Simply put, the Weinsteins have a time-space problem. Events (2) and (3) cannot have

occurred in retaliation for a future event (5) as the Weinsteins falsely claim in ¶ 21. They can’t


make any kind of claim for conspiracy or retaliation based on events that had not yet happened.

The Weinsteins cannot provide any evidence for their claims because none exists. It’s a matter

of grade-school level logic, a hurdle the Weinsteins can’t overcome.

3. The Weinsteins’ conspiracy claim is meritless as a matter of law.

To succeed on a civil conspiracy claim, a party must offer proof of the following elements: (1) two or more persons, (2) an object to be accomplished, (3) a meeting of the minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages as the proximate result.

Preston Gate, LP v. Bukaty, 248 S.W.3d 892, 898 (Tex.App.--Dallas 2008); Massey v. Armco

Steel Co., 652 S.W.2d 932, 934 (Tex. 1983) (defining the five criteria for civil conspiracy). The

Weinsteins cannot meet these criteria. The undisputed facts based on telephone records (GJK

Aff. ¶ 13) show there was no communication between Klingenschmitt and Ammerman or CFGC

regarding the Weinsteins before the prayers, and there was no communication between

defendants about the Weinsteins challenge to CFGC’s endorser status because that challenge

took place a month after the prayers were completed. The conspiracy claim fails to offer any

facts to prove elements (1), (2), (3), (4), or (5).

This Court should grant summary judgment for Klingenschmitt on the Weinsteins’ claims

because the Weinsteins knowingly filed a meritless, fraudulent pleading without the slightest bit

of evidence to back up the claims, as borne out through discovery.

The Free Speech Clause expressly protects Klingenschmitt’s speech The Weinsteins would have this Court issue what the Supreme Court of the United States

considers a “heckler’s veto,” or, in other words, simply silence that speech, though

constitutionally-protected, because they disagree with it and find it offensive. See Good News

Club v. Milford Cent. Sch. Dist., 533 U.S. 98, 119 (2001). That is not and has never been the

constitutional standard, as “[t]he First Amendment knows no heckler’s veto[.]” Robb v.


Hungerbeeler, 370 F.3d 735, 743 (8th Cir. 2004) [citation omitted], cert denied sub nom, Rohn v.

Robb, 543 U.S. 1054 (2005).

“History unmistakably informs us that the principal victim of this type of censorship is

the unpopular minority—be it religious, racial, political, or some other.” NAACP Legal Def. &

Educ. Fund v. Devine, 727 F.2d 1247, 1262 (D.C. Cir. 1984); see McGaffey, The Heckler's Veto:

A Reexamination, 57 MARQ. L. REV. 39, 39 (1973). The Supreme Court of the United States

recently reaffirmed this principle in Snyder v. Phelps, ___ U.S. ___, 131 S.Ct. 1207, 1219

(2011), the famous military veteran funeral protest lawsuit. In a case of intense public debate,

the Court wrote, “the point of all speech protection . . . is to shield just those choices of content

that in someone's eyes are misguided, or even hurtful.” Id. (citing Hurley v. Irish-American Gay,

Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995)).

A case expressly on point with the alleged “threat” nature of Klingenschmitt’s prayers is

NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). In Claiborne, civil rights activist Charles

Evers gave a speech at a Port Gibson, Mississippi, rally advocating, et al., boycotting certain

businesses in the area. Id. at 889. Some violence had taken place in the weeks and months

afterwards. Id. at 928. The Plaintiffs in Claiborne advanced liability under three different

theories. First, Evers was allegedly liable for authorizing, directing, or ratifying tortious activity;

second, his speech was likely to incite lawlessness that happened within a reasonable period of

time; and third, he gave out specific instructions to carry out violent acts or threats. Id. at 927.

The Court rejected liability on all three grounds, id. at 929, despite Evers making

references to violence, calling on the community to impose discipline on violators of the boycott,

expressing calls for social ostracism, the possibility of “broken necks,” and the inability of


violators to have the Sheriff at night for protection from other “implied” forms of enforcement,

even unlawful forms. Id. at 927.

It must be pointed out that in the instant case no damages were proven or admitted, Facts

13, 18, whereas in Claiborne, acts of violence had actually occurred. Id. at 928-29. Here, the

facts sit well within the protections of Claiborne, and thus far from any liability.

First, regarding theories of liability, the Court found no liability of Evers for “authorizing,

directing, or ratifying tortious activity” as no facts supported any finding of such violence

connected with his speech. Id. at 929. Here, the Weinsteins have also expressly denied any

violence resulting from the prayers, merely suggesting that they will use an expert to prove their

claim that these are “coded” speeches urging action by unnamed followers rather than prayers.

Petition, ¶ 27; Fact 10.

Second, the speech in Claiborne failed to be actionable under the First Amendment’s

“threat” standard as it was not “inherently likely to produce a violent reaction” when “addressed

to the ordinary citizen,” id. at 927-28, a bright-line rule recited in Cohen v. California, 403 U.S.

15, 20 (1971), Brandenburg v. Ohio, 395 U.S. 444 (1969), originating decades earlier in Chaplin

sky v. New Hampshire, 315 U.S. 568, 572 (1942).

To qualify as a legal threat, the language must be understood by the ordinary person not

necessarily a party—as a serious expression of intent to harm or assault. Manemann v. State,

878 S.W.2d 334, 337 (Tex. App.—Austin 1994, pet. denied); see also Porter v. Ascension Parish

Sch. Bd., 393 F.3d 608, 616 (5th Cir. 2004), cert denied, 544 U.S. 1062 (2005). Weinsteins’

judicial admission they require an expert to decode Klingenschmitt's prayers, Fact 10, is an

admission "an objectively reasonable person would [not] interpret the speech as a serious


expression of an intent to cause a present or future harm." Porter, 393 F.3d at 616 (internal

quotation marks omitted); see also Manemann, 878 S.W.2d at 337.

Third, in Claiborne there was never proof that Evers directed any persons to carry out

violent acts or threats. 458 U.S. at 928. Again, this case aligns with Claiborne. The Weinsteins

have admitted that (a) they have no proof that any acts have ever been connected to

Klingenschmitt, or (b) any acts happened subsequent to the prayers in Spring 2009 (Facts 13 and

18). They have also failed to identify any specific person Klingenschmitt allegedly directed to

carry out acts of violence.

This Court should find that the First Amendment protections to speech, however

distasteful to the listener, fundamentally protects the prayers of Klingenschmitt and he is entitled

to summary judgment on the merits of this claim.

The Court should sanction the Weinsteins’ under TRCP Rule 13 and TCPRC Section 10.

As shown supra, the Weinsteins not only have a timing problem, but regrettably the

Weinsteins have an integrity problem. The evidence unequivocally shows the Weinsteins didn’t

care about raising fraudulent claims when they filed suit, and after over 2 years of litigation and

four amended petitions have not changed and cannot change their pleadings or discovery

admissions to rectify their sanctionable conduct. The Weinsteins had no basis in law for the

threat claims under the Penal code. The Weinsteins had no damages for emotional distress, had

no damages to their house or property connected to Klingenschmitt, and alleged a conspiracy

that would require a violation of time-space to validate its illogical factual sequence. Moreover,

the U.S. and Texas Constitutions fully bar the claims under well-established, long-standing First

Amendment precedent, which Mr. Weinstein admitted he read. M.W. Dep. 28:10-29:19

(acknowledging he read First Amendment precedent including Penley prior to filing suit).


Without a valid claim, the Weinsteins had no injury, and therefore knew the moment they

filed suit that the claim was meritless. Texas Ass'n of Business v. Texas Air Control Bd., 852

S.W.2d 440, 444 (Tex. 1993) (access to the courts requires a cognizable injury). This is a sound

basis for sanctions. Blackburne & Brown Mortg. Fund I v. Atmos Energy Corp., No. 2-06-393-

CV, 2007 Tex. App. LEXIS 9071 (Tex. App.—Fort Worth Nov. 16, 2007) (imposing sanctions

because Plaintiffs had no proof for any of the claims in the lawsuit).

The Weinsteins have wasted this Honorable Court’s time and resources as well as

Klingenschmitt’s time and resources. This Court should sanction the Weinsteins under both

Rule 13 of the Texas Rules of Civil Procedure (the claims have “no basis in law or fact and are

not warranted by good faith argument for the extension, modification, or reversal of existing

law”) and under Texas Civil Practices and Remedies Code 10.001 (“not warranted by existing

law or by a non-frivolous argument for the extension, modification, or reversal of existing law or

the establishment of new law”).

Conclusion and Prayer

Klingenschmitt prays this Court find that his religious speech is protected under the Free

Exercise and Establishment Clauses of the United States and Texas Constitutions and thus

dismiss the claims against him for lack of subject matter jurisdiction.

Alternatively, Klingenschmitt prays this Court enter Summary Judgment in his favor on

the merits of the claims.

In either situation, Klingenschmitt requests sanctions under Rule 13 of the Texas Rules of

Civil Procedure and Texas Civil Practices and Remedies Code 10.001 for the Weinsteins having

filed a pleading that was patently untrue, fraudulent with respect to the alleged circumstances as

proven during discovery, and not warranted under clear First Amendment case law.


Respectfully submitted,

CASEY LAW OFFICE, P.C. By _________________________ Stephen Casey Texas Bar No. 24065015

600 Round Rock West Drive

Ste. 602 Round Rock, Texas 78681 Telephone: 512-257-1324 Fax: 512-853-4098 Attorney for Gordon Klingenschmitt

CERTIFICATE OF SERVICE

I hereby certify that Klingenschmitt’s Motion to Dismiss, or Alternatively a Motion for Summary Judgment was served upon counsel in this matter by electronic service and/or certified mail, return receipt requested, on this day, the 26th of December, 2011. By _________________________

Stephen Casey

Randal Mathis J. Shelby Sharpe Mark Donheiser 6100 Western Place, Ste 1000 2001 Ross Avenue, Ste 2575 Fort Worth, Texas 76107 Dallas, Texas 75201 Arthur A. Schulcz Douglas R. McKusick, Staff Attorney 2521 Drexel Street 1440 Sachem Place Vienna, Virginia 22180 Charlottesville, VA 22901 Joshua W. Carden 545 East John Carpenter Freeway, Ste. 300 Irving, Texas 75602


EXHBIT LIST

Exhibit No.

Description FACT

1 G K Klingenschmitt Affidavit 1

2 G K Klingenschmitt Deposition 1

3 CFGC State Incorporation Documents 2

4 DOD Instruction 1304.28 3

5 4/25/09 Prayer 4, 5

6 5/20/09 Prayer 4, 5

7 Michael Weinstein Deposition 8

8 Plaintiffs’ Response to Defendants’ Motion to Dismiss

8, 9

9 Bonnie Weinstein Deposition 11

10 Deuteronomy 23 12

11 Plaintiffs’ Rule 192.4 Disclosures 13

12 Plaintiffs’ Admissions 14, 18

13 Chris Rodda’s Article 14

14 MRFF/Weinstein Letter to DOD re CFGC 15

15 Ammerman Affidavit 16

16 Religious News Services Article 19

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