TST’s choices of lawyers helps explain why
We’ve written before about The Satanic Temple’s history of embarrassing legal failures and egregious self-inflicted errors as litigants.
While it has seemed like this would never catch up to TST in the media because “Satanists are bad, actually” is about as “dog bites man” as a news story pitch gets, the courts function a bit differently, and the frequent misbehavior of the Temple’s attorneys may explain why TST can’t win for losing.
Let’s have a look at some of their attorneys.
(Note: We’re not going to include one-off local attorneys due to how little they matter or the former Arizona chapterhead/Tucson DWI/DUI attorney Stu de Haan here because the latter is mostly just a sad story and he’s a non-entity outside of the Scottsdale invocation case that he was eventually replaced on, anyway.)
Marc J. Randazza
Many people are aware that the final straw in the 2018 Great Schism of The Satanic Temple was TST utilizing Alex Jones’ favorite lawyer Marc Randazza.
Most people don’t realize that TST kept using Randazza.
Including to do various trademark paperwork as needed:
Including to threaten to sue Mississippi for changing its flag in 2020:
And including to join the Temple’s legal team for its lawsuit against Boston over invocations in 2021 and into 2022.
But also, The Satanic Temple’s owners chose—with no apparent input from its donors or local members—to spend TST’s limited resources filing an amicus brief for Randazza’s client, the ultra-conservative Catholic hate group Church Militant.
From the HuffPo link that lead this section, in denying Randazza the right to appear pro hac vice —basically out-of-state but allowed for these purposes—to represent Alex Jones, the Connecticut judge reiterated, “Permission to appear pro hac vice is a privilege, not a right.”
(Yes, this will come up again.)
The Satanic Temple’s co-owner Doug Misicko has, as “Lucien Greaves”, publicly responded to criticism of Randazza in a couple of different ways. Usually, it has been that TST isn’t picky about its legal representation, and if someone is willing to take their case on be that Randazza, Alan Dershowitz, or whomever, they’ll take it.
The latest (May 2022) excuse seems to be that that Randazza’s defense of child pornography may be beyond the pale so that is a red line that Nazis are not, but Misicko didn’t know about it then.
Effectively: “I didn’t know our lawyer advocated for child pornography, but I did know he advocated for neo-Nazis, and I didn’t think going out of our way to associate with him might reflect badly on us. No, I don’t have any examples of his representation resulting in tangible gains in the courts for vulnerable people.”
The Satanic Temple, everyone.
W. James MacNaughton
Mr. William James MacNaughton is, at first blush, a much more serious and reliable lawyer for The Satanic Temple to employ than Randazza.
TST co-owner Cevin Soling used him for years before the existence of the Temple, after all, and according to court testimony of the other owner Doug Misicko, all of the corporate structures of TST were envisioned and fashioned by MacNaughton.
But in terms of outward-facing work, the Temple has mostly used MacNaughton not for business-law cases but for abortion litigation, and not in MacNaughton’s home jurisdiction of New Jersey or in New York but in Missouri, Indiana, and Idaho.
Lawsuits in each of the latter two states are ongoing, but TST lost all three of MacNaughton’s Missouri abortion cases, including one federal case (“Mary Doe II”) for failure to establish standing before filing it, one of the most basic responsibilities of serious litigation.
Seven months after the Temple filed its suit, Cole County Circuit Court Judge Jon Beetem agreed with the state’s motion to dismiss, writing that Doe had “fail[ed] to allege facts which if true, state a claim for relief under the RFRA.”
The Temple vowed to file an amended lawsuit in state court. It already had a second lawsuit underway in federal court, again with Mary Doe at its center: It alleged that Missouri’s laws unconstitutionally privileged Christian beliefs about life and abortion over those of Satanists like Doe.
The federal case was filed a month after Doe’s abortion. Crucially, that meant the plaintiff was no longer pregnant. MacNaughton had to prove Doe nevertheless had standing, and so he argued that she had in fact suffered “stigmatic injury” when she was presented with the religious-based “opportunities” at the Planned Parenthood clinic.
“Those injuries did not go away after she had her abortion,” MacNaughton explains now, though he also concedes that the scenario weakened his legal arsenal.
“That was a different argument than the liberty rights and privacy rights that underlie Roe v. Wade,” he explains, “since those rights disappear once you have the abortion.”
Riverfront Times, “The Satanic Temple Sought to Upend Missouri Abortion Law. Their Plans Went to Hell” by Danny Wicentowski (May 8, 2019)
Despite no mainstream news coverage bothering to note this so far, it seems important that in neither of the active abortion cases that MacNaughton is responsible for (The Satanic Temple v. Little and The Satanic Temple v. Holcolmb) is there an actual pregnant person seeking an abortion to establish standing for the lawsuit.
Jumping back to 2015, the state-level case (“Mary Doe I”) that failed at lower levels but persisted up to the Missouri state Supreme Court — where it also unanimously failed — was in some ways an even worse example of The Satanic Temple’s litigation priorities and competency.
A Riverfront Times article written as a post-mortem in 2019 covers the debacle in detail.
Doe claims that she emailed Greaves and MacNaughton that summer to notify them she wanted out of the case. The email triggered a phone call from a furious Greaves.
“Lucien just completely lost his temper,” Doe recalls. “He was just screaming, he was talking fast, I couldn’t get a word in edgewise. After he hung up, I tried to call him back a couple times, but it didn’t work. So I just blocked his number.”
Even though Doe had already given a deposition for the Temple’s lawsuit in Cole County, the shouting match with Greaves had pushed her to the edge. It was MacNaughton’s turn to plead for peace. He deployed what she now describes as “a major guilt trip,” begging her not to damage his reputation by leaving the high-profile case.
MacNaughton disputes Doe’s version of that conversation; he is adamant that she never made a formal demand to leave the case in 2016. (In general, attorneys are ethically bound to follow client’s instructions for representation. A lawyer refusing a client’s request to leave a case could risk disbarment.)
“That she was being coerced or bulldozed, that absolutely wasn’t the case,” MacNaughton says now. “My view was that I have a client, I’m representing her interests in the lawsuit, and it would make it easier for me to do that job if she didn’t squabble.”
MacNaughton’s solution was an unusual one. In a letter sent to Doe dated July 5, 2016, MacNaughton proposed what amounted to gag order of his own client, with financial repercussions if she tried to meddle in the case.
As long as MacNaughton remained her attorney, the agreement stipulated that Doe “have no intentional contact with any member of the Satanic Temple” — which would include Nikki Moungo — and that MacNaughton retain “sole authority to make or authorize publicity” for the case.
There was another provision. If Doe tried to fire MacNaughton on her own, for any reason but “incompetence,” the agreement made her liable for a $1,500 termination fee.
The agreement/gag letter sent by MacNaughton represented the last piece of direct communication between Doe and the Temple for nearly two years. After that, Doe says, “I got updates on the case through Google alerts.”
Riverfront Times, “The Satanic Temple Sought to Upend Missouri Abortion Law. Their Plans Went to Hell” by Danny Wicentowski (May 8, 2019)
Starting in 2018, another Missouri abortion case (“Judy Doe”) failed at every stage of litigation and appeal in federal court, including whether it would even be heard by the Supreme Court, but maybe TST learned their lesson on gag orders because nothing was heard from “Judy” throughout this process; more on that process here.
And it should not be a surprise that MacNaughton had to ask for special consideration when appearing pro hac vice in a state like Indiana because he is currently being sanctioned for his behavior pursuing a former client — even after multiple judges had admonished him for doing so.
Sometimes, once a party produces certain information, nothing can unring that bell. But we did not say a party is always free to violate an order repeatedly, incur a sanction, appeal the sanction, and collaterally attack the underlying violated order in the appeal of the sanction. The instant appeals do not involve a situation like Marrese in which the party has no recourse but to violate an order. MacNaughton could have complied with the Holderman Order simply by staying out of Casco Bay’s way. If compliance caused a justiciable problem, he could have abided by the order, waited for a final judgment in the Sunnyside Action, and then appealed that along with the Holderman Order. But MacNaughton did not do that. Instead, he willfully and repeatedly violated the Holderman Order.
Seventh Circuit Judges opinion, July 31, 2019
To be clear, this is not just us picking on MacNaughton out of a sense of grudge; indeed, having to explain this affects MacNaughton’s ability to represent The Satanic Temple in other parts of the country. Again, from that Indiana abortion lawsuit.
The only disciplinary action I have been subject to in my forty-five (45) years of practicing law is a currently pending complaint before the New Jersey District XB Ethics Committee by a former client for an alleged violation of RPC 1.9(a). I contest the allegations and a hearing is currently scheduled for January 2023.
W. James MacNaughton, Sep. 23, 2022
W. James MacNaughton, for all of his failures, may be the most serious, least ethically compromised lawyer in TST’s stable.
What does that tell you?
Matthew Kezhaya
Whoo! OK, let’s figure out where we can start.
In short, in February 2021, The Satanic Temple filed a federal lawsuit in Texas against state agencies (and Planned Parenthood) on behalf of member “Ann Doe” alleging that her religious liberty had been violated by the restrictions Texas imposed on pregnant people seeking abortions.
Then in September 2021, the “bounty bill” allowing private citizens to target abortion seekers and providers with financially ruinous litigation went into effect, bringing The Satanic Temple a new wave of credulous media coverage as a “novel” strategy to challenge the laws.
Then the lawsuit was put on hold in December 2021, pending the Supreme Court’s ruling on Dobbs v. Jackson, which ultimately would overturn abortion rights in June 2022.
But when the case resumed, TST engaged in a series of baffling and sloppy court filings, notably including a “play in five acts” consisting of a series of Venn Diagrams, rather than filing an actual amended complaint.
This odd behavior apparently led to the federal district judge in this lawsuit, Charles R. Eskridge III, looking into other complaints against Kezhaya in other courts across the country.
What Eskridge found was that Kezhaya had been sanctioned by judges in Belle Plaine, Minn., and in Boston, also while representing The Satanic Temple. This was relevant to the “Ann Doe” case because Kezhaya was appearing pro hac vice, or as a guest in a state he was not licensed to litigate in. This guest privilege is typically not granted to attorneys with a pattern of misbehavior elsewhere.
Since initially being able to claim he faced no sanctions elsewhere, Kezhaya had found himself sanctioned in Minnesota and forced to pay about $17,000 in compensation after he re-filed a second lawsuit about a dispute over public monuments with the city of Belle Plaine—while the first one was still ongoing in federal district court but giving rulings Kezhaya didn’t agree with.
This, combined with an established pattern of missing deadlines and committing other sundry breaches of professional lawyering, earned Kezhaya an official rebuke by the judge, and he was made to pay back the city for the costs of dealing with a second frivolous suit before the first one had finished; Kezhaya is currently appealing.
SUMMARY OF LEGAL ARGUMENT
Appellant violated Rule 11(b) by filing Satanic Temple II. Under binding precedent, no reasonable and competent attorney would have believed in the merit of filing a second action seeking to relitigate the same claims against the same defendant after denial of leave to amend on the merits instead of challenging that denial. By filing Satanic Temple II, Appellant multiplied the proceedings and wasted judicial and party resources.
The Satanic Temple loves to claim that it’s not their fault they keep losing all of these court cases. The judiciary is just biased and packed with right-wingers sympathetic to theocracy.
Well, Judge Wilhelmina Wright is a Black woman and Obama appointee.
The other sanction came out of Boston, where the Salem-based Satanic Temple’s inability to get an invitation to give an invocation at the Boston city council led to TST suing the city. Except TST kept targeting one city councilor in particular, Michelle Wu, to try to force her to come to Salem to give a deposition. On Election Day. While she was the front-runner candidate for mayor.
TST co-owner Doug Misicko (a.k.a. “Lucien Greaves”) claimed in the media that this was an accident, but Kezhaya admitted in a response to the court that he viewed litigation as a zero-sum contest and was actively trying to inconvenience Wu to benefit his clients.
I feel no remorse for the action I took. As an attorney, it is my sworn duty to do anything short of breaking the law to see to it that my client’s goals are recognized. This business of litigation is zero-sum. Everything I do which can benefit my client will cause an equal and opposite effect on the other side. I serve my purpose with all the zealous advocacy which my oath commands. And I expect nothing less from my adversaries.
Matt Kezhaya, Oct. 29, 2021
The judge in that case did not agree.
Independent of a potential deponent’s profession or media exposure, it is in exceptionally bad faith to intentionally notice a deposition for a date and time when a party knows the deponent will be unavailable or greatly inconvenienced. In his explanatory letter to the Court, Plaintiff’s counsel states that he, as an attorney, has “a sworn duty to do anything short of breaking the law to see to it that my client’s goals are recognized.” [Dkt. 38 at 2]. Yet this is not the case. Rules such as the Massachusetts Rules of Professional Conduct (and other states’ equivalents), various ethics rules and guidelines, and the Rules of Civil Procedure govern attorney and litigant conduct in all sorts of ways that reach beyond conduct that is simply illegal—and they do so precisely to prevent the type of abuse of process Plaintiff’s counsel has employed here.
Judge Angel Kelley, April 6, 2022
So Biden-appointee Judge Angel Kelley, a Black and Asian American woman, sanctioned Kezhaya more than $8,000 to pay back the city of Boston’s lawyers for wasting their time and resources.
She was generous enough to not grant the city’s request for further sanctions when Kezhaya said he wouldn’t talk to one of Boston’s (female) lawyers on the phone but later admitted he wasn’t reading all of his emails, either.
Kezhaya has called both women “biased.”
In the case of Kelley, both Kezhaya and Misicko have publicly called her incompetent and corrupt; in Kezhaya’s case, his emails and filings referring to her as such are now in the court record. In a podcast interview with professional TST sycophant Stephen B. Long, Misicko even admitted they tried and failed to get the Justice Department to remove Kelley from the case.
Doug Misicko: All right, you know, now now we’ve had this deposition with the representative Boston told us again and again, that there were relevant questions that only she could answer, to which the judge came back and, you know, again, threatened sanctions and said that we just could not impose Michelle Wu that we hadn’t established that we had any need to do so. And that, you know, we could always try to Motion to reconsider the protective order against her, which we had learned just in the last ruling was moot to begin with, because it was only for November 2, in saying that, you know, we just couldn’t we couldn’t do this. And, essentially, that the there’s this judge has no, no willingness to allow this case to move forward.
Sacred Tension podcast with Stephen B. Long, Sep. 30, 2022
Stephen Bradford Long: And is that where it ended?
Doug Misicko: No, we actually filed with the Department of Justice to get the judge recused, and the Department of Justice responded, before they could have possibly done any investigation, with just a form letter saying that they weren’t going to investigate this. Right. Okay. So I really feel like we need to fight this battle in the public eye as much as we can. And, you know, we’ve tried with with the “pray for pay”. But on a press release, I reached out to some journalists, I tried to get people to write about it, that they wouldn’t, you know. And now, we’re putting together videos from the depositions and trying to just outline for people how insane this is. I mean, the, the judge has already said so many insane things about this, about her understanding of what an Establishment Clause claim even means, you know, the judge has already stated that she feels that the policy itself, the unwritten policy that we can’t really have any evidence of, because we can’t get anybody to talk about it.
This leaves out other misbehavior and embarrassments by Kezhaya inside and out of court proceedings. The Scottsdale invocation appeal presentation where the Ninth Circuit panel had to remind him what he was allowed to argue; the Arkansas filings where he lied about whether TST had an organizational chart, how many ongoing lawsuits TST had, or what incorporated entity was involved in the case; the lawsuit against the four of us where Kezhaya went on Reddit for an “Ask Me Anything” to admit that he had to come up with a not-impossible reason to keep the SLAPP suit in federal court and hoped the effect was to drain us of every penny.
Actually, the real kicker of that Reddit AMA was that it was primarily to complain about how wrong the Belle Plaine judge was and how poorly she understood the law; the jabs at us were largely an afterthought.
All of that is to say: yes, it’s fair to ask whether “The Satanic Temple” ever was going to get a fair shake in the Southern District of Texas with a Federalist Society-approved, Trump appointee like Eskridge.
“It’s a legal system, not a justice system.” Even if the Temple drew a good judge and argued a perfect abortion rights case, the famously reactionary Fifth Circuit Court of Appeals was always going to be ready to work backwards from the conclusion “fuck reproductive autonomy” that is at the heart of the right-wing legal project.
But TST knew that long before it decided to bring suit, all the while making wildly implausible claims about its chances of success, ostensibly in the hope of overshadowing others who might have a more coherent and credible legal challenge with which to defend abortion access.
It’s possible for two things to be true at the same time.
Yes, TST was always going to face an uphill battle in a stacked court like the federal judiciary in Texas.
But as judges in other jurisdictions show, The Satanic Temple and specifically their usual lead counsel Matt Kezhaya are very bad at court cases.
Update 1/13/2023:
We finally published this article, then wouldn’t you know it, the very same week, Kezhaya managed to get another demerit added to his record.
ORDER
Attorney Matt Kezhaya was ordered to show cause why his admission to practice pro hac vice before this Court shouldn’t be revoked. Dkt 59. His response and further reply have been reviewed. Dkts 60 & 64.
Attorney Kezhaya serves as lead counsel for Plaintiffs The Satanic Temple Inc and Ann Doe in this action. He is licensed to practice law in Arkansas and Minnesota. His application to proceed here pro hac vice was approved on February 11, 2021. Dkt 11. He has since that time been sanctioned by two other federal courts for serious litigation misconduct taken on behalf of The Satanic Temple. See Satanic Temple Inc v City of Belle Plaine, 2022 WL 1639514 (D Minn) (imposing sanctions for filing frivolous lawsuit); Satanic Temple Inc v City of Boston, 2022 WL 1028925, *6 (D Mass) (imposing sanctions for abusive subpoena practice).
This Court is similarly concerned about Attorney Kezhaya’s ability to practice in federal court in a professional and reasonable manner. For example, when initiating this action, he filed a motion for a temporary restraining order on February 5, 2021, with respect to an abortion scheduled the next day for Ann Doe—when his filings made clear that he could and should have sought such relief much earlier, if it was sincerely sought. See Dkts 2 (motion for TRO) & 9 (order denying relief). Following decision in Dobbs v Jackson Women’s Health, 142 S Ct 2228 (2022), he was granted leave to amend his complaint. Dkt 38. The amended complaint he filed is, charitably stated, cryptic. Dkt 39. He then filed a second motion for TRO containing negligible legal analysis, with six pages of the main analysis dedicated to presentation of what’s purported to be a five-act play. See Dkt 40 (motion). That motion itself was filed in a manner and on a schedule at odds with a briefing schedule on which Attorney Kezhaya had been consulted and to which he had agreed. See Dkt 42 (order). Worse still, he followed that motion up with an intemperate letter demanding instanter ruling, while threatening to seek mandamus relief from the Fifth Circuit. See Dkt 41. And most recently, as to a pending motion to dismiss, his response included a photograph apparently intended to shock the reader. See Dkt 52 at 6; see also Federal Rule of Evidence 403.
“Courts enjoy broad discretion to determine who may practice before them and to regulate the conduct of those who do.” United States v Nolen, 472 F3d 362, 371 (5th Cir 2006). Even so, the Fifth Circuit has recognized limits to this discretion where a district court is considering denying or revoking pro hac vice admission, with discretion being less limited in cases of revocation than of denial. See In re Evans, 524 F2d 1004, 1007–08 (5th Cir 1975); United States v Dintz, 538 F2d 1214, 1223–24 (5th Cir 1976); Nolen, 472 F3d at 374–75.
The brief history above makes it appear quite doubtful that Attorney Kezhaya is capable of conforming his conduct to acceptable practice in federal court. His explanations as to the two sanctions entered against him also fail to convince that they weren’t justified. See Dkt 60 at 3–12.
But he has adequately explained that the sanctions don’t (at least at this juncture) warrant revocation of his admission pro hac vice. As such, he may continue as counsel in this litigation.
Attorney Kezhaya is ADMONISHED that his conduct will be scrutinized for propriety, and that frivolous and/or malicious filings will be stricken or summarily denied.
He is further ADMONISHED to conform his conduct and practice to the Federal Rules of Civil Procedure (including Rule 11), the Local Rules of the Southern District of Texas, this Court’s individual procedures (including Attachment 2, with respect to guidelines for professional conduct), and all pertinent ethical rules.
The request for reassignment of this matter to another Judge of this District is DENIED. See Dkt 60 at 14. This Court’s views are informed solely by the conduct of the parties and counsel to this litigation and derive from no other source. Inquiry into why it is that Attorney Kezhaya has recently been sanctioned by two other federal courts with respect to his representation of one of the parties here is hardly surprising.
Discovery in this matter remains STAYED pending ruling on the motion to dismiss by Defendants Texas Health and Human Services Commission and Cecile Young. See Dkt 38.
SO ORDERED. Signed on January 12, 2023, at Houston, Texas.
Hon. Charles Eskridge United States District Judge
Incredible.
List of Satanic Temple legal cases
The Satanic Temple Inc. court cases
- Satanic Temple, Inc v. Jessica Snow
- The Satanic Temple v. Little
- The Satanic Temple v. Holcolmb
- Satanic Temple v. TX Hlth and Human Svc
- Matthew Kezhaya v. City of Belle Plaine
- The Satanic Temple, Inc. v. Lamar Media Corporation
- The Satanic Temple, Inc. v. Newsweek Magazine LLC
- The Satanic Temple, Inc., et al v. Young et al (“Ann Doe II”)
- The Satanic Temple, Inc. et al v. Hellerstedt et al (“Ann Doe I”)
- Satanic Temple, Inc v. Belle Plaine, City of (“Satanic Temple II”)
- The Satanic Temple, Inc. v. City of Boston
- The Satanic Temple, Inc. v. Lamar Advertising of Louisiana, LLC
- The Satanic Temple, Inc., et al v. City of Scottsdale
- Satanic Temple, The v. Belle Plaine, City of (“Satanic Temple I”)
United Federation of Churches LLC court cases
- United Federation of Churches LLC v. Johnson et al
- United Federation of Churches LLC v. Netflix, Inc. et al
- Cave et al v. Thurston
- Doe v. Greitens et al (“Judy Doe”)
- Satanic Temple et al v. Scottsdale, City of et al
- The Satanic Temple et al v. Jeremiah Jay Nixon et al. (“Mary Doe II”)
- Mary Doe v. Jeremiah J Nixon et al (“Mary Doe I”)
Cases by others involving TST
- Mayle v. Chicago Park District (“Emotional Support Hog”)
- Mayle v. The State of Illinois (“Bigamy II”)
- Mayle v. The Congress of the United States of America (“In God We Trust”)
- Mayle v. Orr, et al (“Bigamy I”)
- Hunt v. Kenai Peninsula Borough
- Hunt, Lance vs. Kenai Peninsula Borough AP
- Kondrat’yev et al v. City of Pensacola et al
- Freedom from Religion Foundation, Inc. et al v. Franklin County, Indiana
One reply on “The Satanic Temple is very bad at court cases”
[…] treatment, but no mention is made, and certainly no attention is given to the organisation’s laundry list of failures. You’ll certainly read nothing about how Jex Blackmore was pushed away from The […]