Filed 24-CI-00022 03/14/2024 Teresa Callahan, Lewis Circuit Clerk

NOT ORIGINAL
DOCUMENT
03/15/2024 06:31:20
AM COMMONWEALTH OF KENTUCKY
LEWIS CIRCUIT COURT
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24-CI-00022
Electronically Filed
ERIC C. DETERS PETITIONER
v.
THOMAS H. MASSIE, et. al. RESPONDENTS
REPLY IN SUPPORT OF MOTION OF THOMAS H. MASSIE TO SUMMARILY
ADJUDICATE HIS BONA FIDES PURSUANT TO KRS 118.176
Respondent, Thomas H. Massie (hereinafter “Congressman Massie”), provides this Reply

in support of his Motion, in light of Eric Deters’ Response to the Motion for Summary

Adjudication, which was filed March 5, 2024 (and, to the extent relevant, to Mr. Deters’ other

filings that are relevant to the merits – namely Deters’ March 11, 2024 “update” and his

“Response” to the affidavits filed March 12, 2024).

A. Factual background

Somewhat surprisingly, there is one area of agreement between the parties. Deters

admits there are no material facts in dispute and he admits that the law is not in dispute. See Eric

Deters’ Status Report, at p.3 (“They declared in their filings: ‘There are no facts in dispute, and

the law is clear on this matter.’ That is true. But to my advantage.”); Response to Summary

Judgment at 1 (that the facts are “not disputed”) and at 6 (“[t]he law is settled. The facts are

settled.”).

Where Deters is wrong is in his misunderstanding of the legal significance of the material

facts. Deters claims (contrary to law) that because Theodore Roberts was temporarily staying at

another address the night before and the day of his signing of Congressman Massie’s petition,
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that the petition is invalid. Well, Deters is wrong, and more on that will be said below.

Deters does not dispute, and cannot dispute, the factual averments contained in Mr.

Roberts’ affidavit: namely that (i) the address Mr. Roberts was registered to vote at was 8062

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Filed 24-CI-00022 03/14/2024 Teresa Callahan, Lewis Circuit Clerk
 Filed 24-CI-00022 03/14/2024 Teresa Callahan, Lewis Circuit Clerk

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03/15/2024 06:31:20
AM East Bend Rd., Burlington, KY 41005 (“East Bend Address”); (ii) since 2020 Mr. Roberts has
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only voted using the East Bend Address; (iii) since 2020 Mr. Roberts’ vehicle registration has

only been at the East Bend Address; (iv) since 2020 Mr. Roberts’ concealed carry license has

only been at the East Bend Address; (v) since August, 2020, Mr. Roberts has had no intention of

establishing any permanent or legal residence anywhere other than the East Bend Address; (vi)

from the date of the fire, until the home’s re-construction was completed, Mr. Roberts’ went

back home to the East Bend Address almost every day, save when he was temporarily out of

town and, when there, he checked mail, fed the animals, and wanted to ensure the continued

security of the personal property, and, during reconstruction, wanted to check on progress.

(Affidavit Roberts).

There is also no dispute that the home at the East Bend Address burned down on May 2,

2023. (Affidavit Roberts). Nor is there is a dispute that Roberts immediately made social media

posts following the fire, indicating that he would rebuild the home and remain. Id. Nor is there a

dispute about the fact that Roberts and his grandparents immediately made an insurance claim,

and immediately took steps to rebuild the home. Id.

Nor is there any dispute but that, after the fire, Roberts (i) continued to receive and check

mail at the East Bend Address; (ii) continued to be registered to vote at (and voted from) the

East Bend Address; (iii) continued to keep his address, for purposes of vehicle registration, as the

East Bend Address; (iv) continued to maintain his address, for purposes of his driver’s license, as

the East Bend Address; (v) continued to keep and maintain his animals in the garage and barn at

the East Bend Address, that consisted of two cats, two horses, three chickens, and three birds;
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and (vi) continued to keep that personal property not lost in the fire in the garage at the East

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 Filed 24-CI-00022 03/14/2024 Teresa Callahan, Lewis Circuit Clerk

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AM Bend Address, to include photographs, horse tools and materials, family heirlooms, and
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memorabilia. (Affidavit Roberts at ¶ 11).

There is also no dispute that Roberts temporarily slept at his mother’s house at 13391

U.S. Highway 42, Walton Kentucky, from May 2, 2023 through June 18, 2023. (Affidavit

Roberts at ¶ 28). And there is nothing disputing Roberts’ testimony that he had no intention to

make his mother’s address his permanent address, and he did not have mail forwarded there, did

not change his voter registration or vehicle registration, and merely temporarily slept there while

arranging the reconstruction of his home at the East Bend Address. Id.

There is also no dispute that, from June 18, 2023 through January 10, 2024, Roberts

temporarily slept at 3059 Torrid Street, in Burlington, Kentucky (also in the Fourth

Congressional District and 66th Kentucky House District). (Affidavit Roberts at ¶ 29). This

temporary living situation was set up and paid for by Allstate, and its agent, CRS, during

reconstruction. Id. There is equally no dispute that Roberts had no intention to make the Torrid

Street address his permanent address, and he did not have mail forwarded there, did not change

his voter registration or vehicle registration, and merely temporarily stayed there during the

pendency of reconstruction of the home at the East Bend Address. Id.

Roberts testified that on January 11, 2024, which was as soon as he legally could do so,

he and his grandparents moved back into their residence at the East Bend Address. (Affidavit

Roberts at ¶ 27). Roberts’ testimony, and supporting materials, establish that he has been a

registered Republican in Kentucky’s Fourth Congressional District (and Kentucky House District

66) since 2017. (Affidavit Roberts at ¶¶ 2, 6).

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From an evidentiary standpoint, Deters offers the affidavit of Rob Dixon, who confirms

that Roberts’ residence of record remains the East Bend Address. (Affidavit Dixon at ¶2).

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 Filed 24-CI-00022 03/14/2024 Teresa Callahan, Lewis Circuit Clerk

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03/15/2024 06:31:20
AM Dixon provides certain hearsay as well, about what Mrs. Jenkins supposedly told him on January
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2, 2024. (Affidavit Dixon at ¶¶ 3-5). Deters likewise offers the combined affidavit of Rutter,

Spindley, and Holbrook, wherein they state they tried to serve Roberts with a (invalid) subpoena,

and a (unidentified) neighbor supposedly stated to them that Roberts did not live at the East Bend

Address, and Roberts’ grandparents told them that he was out of town. (Affidavit Rutter,

Spindley, Holbrook).

In contrast to his judicial admission that the facts are not in dispute, Deters suggests that

“Rob Dixon’s affidavit is proof” that somehow there is a discrepancy. (Response at 6). But

Dixon’s affidavit indicate that he took steps on January 2, 2024, to ascertain Roberts’

whereabouts, and had a conversation with his grandmother – which actually is in harmony with

Mr. Roberts testimony that he was temporarily staying elsewhere.

Ultimately, the problem with the Rutter, Spindley and Holbrook affidavits is that none of

them testify that they actually have “personal knowledge” regarding the statements they make in

their affidavits. Ky. R. Evid. 602.

More significantly, and this applies to the affidavits of Dixon, Rutter, Spindley and

Holbrook, anything a non-party told them is inadmissible hearsay under Ky. R. Evid. 802. And

there is no foundation laid in anything in their affidavits to establish any exception. An affidavit

containing inadmissible hearsay statements is insufficient and cannot be considered on a motion

for summary judgment. CR 56.05; KRE 802; KRE 602; Cadleway Props., Inc., v. Bayview Loan

Serv., LLC, 338 S.W.3d 280, 289 (Ky. App. 2010). We thus object to this hearsay evidence

under Ky. R. Evid. 802 (and 602). And, in any event, none of the proffered testimony alters the
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substance of Mr. Roberts’ affidavit, that his legal residence was the East Bend Address, and he

never took steps to change that.

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AM B. Law and Argument
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1. Deters does not dispute that Congressman Massie met all of the statutory
requirements to have his name placed on the petition; rather, he seeks to impose an
extra-statutory requirement, arguing that the form from the Secretary of State actually
requires the listing of a temporary address, rather than permanent legal residential
address

Fatal to his claim, Mr. Deters admits that Mr. Roberts “resides in the District.”

(Response at 2). In fact, Mr. Roberts’ affidavit conclusively establishes that he is a voter from

the “same party from the district or jurisdiction from which the candidate seeks nomination,” that

he signed it within the window provided by KRS 118.125, and the declaration met the oath

requirements of KRS 118.125. (Affidavit Roberts at ¶¶ 2, 6). And, Deters admits, at p. 6, this

flaw in his argument because he admits that “Roberts could have simply put down his

[temporary] residence on December 18, 2023 … no issues.” (Response, filed 3/4/24 at 6). In

other words, whether temporary or permanent residence address, Mr. Roberts’ address in either

scenario is within the district.

Significantly, KRS 118.125 governs the requirements to be placed on a primary ballot.

Even Deters admits this. Yet, none of those requirements extend to a witness needing to list a

temporary residence address. Plainly, KRS 118.125(1) requires that Congressman Massie file a

“a notification and declaration.” He did so. Similarly, KRS 118.125(2) requires that

Congressman Massie sign the notification and declaration, and have it signed by “not less than

two (2) registered voters of the same party from the district or jurisdiction from which the

candidate seeks nomination.” Again, Congressman Massie unquestionably did so, as did two

witnesses who were unquestionably registered voters of the same party from the district or
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jurisdiction from which the candidate seeks nomination.

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 Filed 24-CI-00022 03/14/2024 Teresa Callahan, Lewis Circuit Clerk

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03/15/2024 06:31:20
AM Because Congressman Massie’s petition complies with all requirements of KRS 118.125,
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including the requirement that a signer such as Mr. Roberts lives in the district, it is valid.

Mr. Deters cites to Barnard v. Stone, 933 S.W.2d 394 (Ky. 1996), for the proposition that

election statutes are, generally speaking, strictly construed. (Response at 7). But that is not

always the case, and Courts often perform an analysis of whether a particular requirement is

mandatory, versus merely directory. Stoecklin v. Fennell, 526 S.W.3d 104, 106 (Ky. App. 2017).

In Stoecklin, the Court differentiated immaterial matters of procedure, versus statutory mandates.

The Court observed, for instance, that a petition must have the correct number of signers. Id.,

citing Barnard v. Stone, 933 S.W.2d 394, 396, 43 12 Ky. L. Summary 4 (Ky. 1996); Morris v.

Jefferson Cty. Clerk, 729 S.W.2d 444, 445-46 (Ky. 1987); Thomas v. Lyons, 586 S.W.2d 711,

716 (Ky. 1979). "The reasoning behind such a mandatory provision is to ensure that the voters

who sign a petition are eligible to vote for that candidate." Hoffman v. Waterman, 141 S.W.3d

16, 18 (Ky.App. 2004).

However, Stoecklin also observed that “[i]n contrast, most other requirements of what

voters must do when signing petitions have been ruled to be directory and substantial compliance

is sufficient where it can be otherwise established that the petitioners were qualified to vote for

the candidate.” Id. And, citing Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884 (1936), the

Stoecklin Court determined that if an address were not listed, or were not accurate, “that

omission of this requirement from nominating petitions would not void an election: if the petition

discloses the petitioners to be residents of the unit of government involved and to have the right

to vote in the election to be held, it will be deemed prima facia sufficient.” Id. (emphasis
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added). “This is particularly so if the clerk charged with the duty of accepting or passing upon

the same is satisfied.” Id.

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03/15/2024 06:31:20
AM The Court in Skaggs “then went on to determine that while it was mandatory that the
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petitioners for the local option election petition be qualified as voters in the involved territory,

the provisions that petitioners ‘shall state his post office address and the correct date upon which

same was signed’ were directory, and simply required to enable the identifying of the petitioners,

rather than necessary for the petition to satisfy the statute.” Id. Thus, even the early signing of a

petition by qualified voters is not sufficient to invalidate a petition. “The fact that the petition

was signed early was insignificant given that the nominating petition was signed by eligible

registered voters, submitted timely, otherwise followed all statutory requirements and was not

noted to have any error by the county clerk.” Stoecklin, 526 S.W.3d 104, 108.

Mr. Deters citation in his “update” filed March 11, 2024, that cited to Morris v. Jefferson

County Clerk, 729 S.W.2d 444 (1987), involved a situation where one of the two signers was not

a “registered voter[] of the same party from the district or jurisdiction from which the candidate

seeks nomination,” as provided in KRS 118.125(2), but instead involved a signer who was not

registered to vote at all. The Kentucky Supreme Court observed that KRS 118.125(2) “requires

the affidavit of two reputable electors who are members of the party to which the candidate

belongs.” Morris, 729 S.W.2d 444, 445. The Kentucky Supreme Court explained that “[w]e

interpret this to mean that at the time the affidavit is signed and the nomination papers filed, the

affiant must be a voter registered to vote as a member of the party to which the candidate

belongs.” Id. And the Court observed that voter registration can be checked in the office of the

Clerk, and thus there is no excuse for not complying with the requirement that one of the

witnesses be a registered voter in the district from which the candidate seeks election. Id. The
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Kentucky Supreme Court thus concluded, in Morris, that “[t]he statute, with regard to the

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AM supporting affidavits of electors, is plain. It requires two affiants, and it is easy to comply with.”
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Id.

Morris, as it turns out, actually supports Congressman Massie in this instance. That is

because Deters does not dispute, and cannot dispute, that Roberts’ is registered to vote at 8062

East Bend Road, Burlington, Kentucky, as a Republican, and was so registered at all times

relevant thereto. (Affidavit Roberts at ¶ 6, Exhibit 2). In fact, Mr. Roberts provided, at Exhibit 2

of his affidavit, his voter registration information that unambiguously established that Mr.

Roberts was registered as a Republican, and was eligible to vote for Congressman Massie – and

that this had been his registration since at least December 29, 2020 (with the last updated field).

Id. Unquestionably, Mr. Roberts, as an affiant, was “a voter registered to vote as a member of

the party to which the candidate belongs.” Morris, 729 S.W.2d 444, 445.

Consequently, even if Deters is correct that the address Mr. Roberts listed on the form

was somehow an invalid residence address (and he is not correct about that as a factual matter),

there simply is no requirement in KRS 118.125 for a witness to list his or her address. To the

contrary, there merely is a general requirement that the form from the State Board of Elections

be utilized. KRS 118.125(2).

Again, because Deters does not contest that Mr. Roberts resided in the Congressional

District and was a registered Republican voter, any discrepancies with the residence address he

provided is merely directory under Skaggs and Stoecklin, and is not a basis to invalidate the

petition.

2. Nothing Deters has filed or argued changes the fact that the petition was valid
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because the form does not ask for temporary addresses; instead the form asks for
“residential address” which is the legal residence, or domicile

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03/15/2024 06:31:20
AM Deters begins by pointing out that the form proffered by the Kentucky Secretary of State
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asks for “residential address,” and then he argues (without any support) that this actually means

current temporary address, instead of legal residence and domicile. (Response at 1). He goes

further, and suggests that where someone “resides” is different than their legal permanent

residential address, or domicile. Id.

Mr. Deters doubles down with his nonsense, when he uses, as support, a google search.

(Update to the Court, filed 3/11/24, at p.2).

Several problems persist with Deters’ argument. First, KRS 116.035(1) is clear that a

voter’s “residence” is determined by looking at legal domicile – that is “the place where his or

her habitation is, and to which, when absent, he or she has the intention of returning.”

(emphasis added). Moreover, KRS 116.035(2) provides that “A voter shall not lose his or her

residence by absence for temporary purposes merely; nor shall he or she obtain a residence by

being in a county or precinct for such temporary purposes, without the intention of making that

county or precinct his or her home.” And KRS 116.035(3) provides that “A voter shall lose his

or her residence by removal to another state or county with intention to make his or her

permanent residence there, or by removal to and residence in another state, with intention to

reside there an indefinite time, or by voting there, even though he or she may have had the

intention to return to this state at some future period.”

All of that is in accord with Kentucky case law that establishes that the residential

address is the legal permanent address, or domicile. “A person may have more than one place of

residence at any given time and maintain a permanent place of residence even though he or she
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may live elsewhere temporarily.” Perry v. Motorists Mut. Ins. Co., 860 S.W.2d 762, 764 (Ky.

1993), citing Hite's Admr. v. Hite's Admr, 265 Ky. 786, 97 S.W.2d 811 (1936).

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03/15/2024 06:31:20
AM The Kentucky Supreme Court’s decision in Mobley v. Armstrong, 978 S.W.2d 307, 310-
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311 (1998) makes plain that Deters’ argument seeking to equate “residential address” with where

someone stays temporarily has no basis in the law. There, the Court explained that “we must

evaluate both actions and intent when determining residency because neither is exclusively

controlling.” Id. (emphasis added), citing Semple v. Commonwealth, Ky., 181 Ky. 675, 205 S.W.

789, 791 (1918).

The Mobley Court did not draw the distinction that Deters attempts to draw here –

namely that “domicile,” or “permanent legal residence,” means something different than

“residence.” Residence, residential address, and residency are the same exact thing: permanent

legal residence. And, as it turns out, that term has been defined as such in KRS 116.035. The

Commonwealth’s highest Court in Mobley has determined as much, and that Court would never

have used the term “determining residency” to mean legal domicile if they did not mean the

same thing.

In Mobley, the Court found that the candidate did not establish his residency in Jefferson

County, because: “(1) appellant did not change his voter's registration back to Jefferson County

[from Trimble County] until July 23, 1997 [for a 1998 election with a two year residency

requirement]; (2) appellant's driver's license is still issued from Trimble County; (3) one of

appellant's automobile's is titled in Trimble County; (4) appellant's tax records indicate his home

address is in Trimble County; (5) appellant made his permanent home in Trimble County, only

sleeping in Jefferson County occasionally and then in a hotel or at his place of business; and (6)

appellant kept all of his personalty which was not directly related to his profession in Trimble,
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not Jefferson County.” Id. at 311.

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03/15/2024 06:31:20
AM In contrast, here: (1) Mr. Roberts’ voter registration has always been maintained in
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Kentucky at 8062 East Bend Rd., Burlington, KY 41005 and he voted from that address, (2) Mr.

Roberts’ driver’s license has always been maintained at 8062 East Bend Rd., Burlington, KY

41005, (3) his automobile has always been registered at 8062 East Bend Rd., Burlington, KY

41005, and (4) his personal property, to include his animals, has always been maintained at 8062

East Bend Rd., Burlington, KY 41005. Under Mobley, the analysis is clear: Roberts’ legal

residence for the past three years is at 8062 East Bend Rd., Burlington, KY 41005.

“[A] change in legal residence or domicile requires a physical act coupled with the intent

to abandon the domicile previously established.” Hunter v. Mena, 302 S.W.3d 93, 96 (Ky. App.

2010).

An older case, Semple v. Commonwealth, 181 Ky. 675, 680-681 (1918), had several other

observations relevant here:

All authorities agree that one may not have a legal residence in two or more jurisdictions
at the same time, although he may have a number of actual places of residence coexisting
in different localities. There is also another well founded rule that when one acquires a
domicile it cannot be changed without the acquisition of another domicile, which, as
seen, must be done by acts, conduct and intention.

Mere change of residence is not of itself proof of a change of domicile unless

accompanied by an intention, express or implied, to abandon the old domicile and acquire
a new one. Within the principle of law declared in the decisions, a person may reside for
pleasure or health in one place without forfeiting or surrendering his domicile or legal
residence in another, if he so intends. It is not residence alone, but it is the intention of the
person, expressed or implied from the facts in the evidence, conjoined with residence,
that determines domicile. Every person sui juris and capable of controlling his personal
movements may change his domicile at pleasure, but a change of domicile involves
intention as a dominant factor. Id. (emphasis added). RPL : 000011 of 000016

Other cases are in accord: Baker v. Baker, Eccles & Co., 162 Ky. 683 (1915) (court

concluding residency established by someone voting in a particular location); Graves' Adm'r v.

Georgetown, 154 Ky. 207 (1913) (where someone votes is substantial evidence of residency);

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AM Wheeler v. Burgess, 263 Ky. 693 (1936) (notwithstanding a move to France and remaining there
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for six years, keeping property in Kentucky and an intention to return kept the domicile -- or

legal residence -- in Kentucky); Dickey v. Bagby, 574 S.W.2d 922, 923 (1978) (notwithstanding

multiple moves around the United States in connection with federal employment, person

remained Kentucky resident, concluding that a person "may have many residences but in the

absence of showing an intention of abandoning his Kentucky citizenship, his state of origin, he

will be deemed a Kentucky citizen for the purpose of qualifying for office in that state").

In response, Deters cites the Bates case in Oldham County and a law review article that

cites to it. (Response at 5). But, the Bates case cited to Mobley, 978 S.W.2d 307, 310-311. And

in both Mobley and Bates, the facts concerned someone who had left their prior legal residence

in the county, and never adequately established a new legal residence where they said they did.

Those facts are fundamentally different than this matter, where someone had their home

burn down, took steps to rebuild it, and maintained all legal documents (drivers license, car

insurance, mail, and other matters) at their permanent legal residence because they never had any

intention to change it. In Thompson v. Emmert, 242 Ky. 415, 46 S.W.2d 502 (Ky. 1932), the

Court determined that “[i]f an absence depends upon the completion of some temporary task, or

upon the discharge of some duty of a temporary nature, the time fixed for a return to the domicile

is sufficiently definite.” 242 Ky. 415 at 417, 46 S.W.2d at 503. “John Thompson and wife had

lived in the Rush Point district, but had moved away to make a crop on a rented farm, intending

to return to their home when the crop was gathered.” Id. “During the temporary absence, the

house where they formerly lived was destroyed by fire.” Id. “The testimony tends to show that
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the place where the house burnt is their permanent home, and that it is their present purpose to

rebuild the house and move into it.” 242 Ky. 415 at 418, 46 S.W.2d at 503. The Court was

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AM clear that temporary dislocation due to a fire was not sufficient to deprive the person of legal
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residence.

Similarly, in Everman v. Thomas, 303 Ky. 156, 171-172, 197 S.W.2d 58, 67 (Ky. App.

1946), Kentucky’s highest court reversed a circuit court that disqualified a candidate whose

home had burned. That is because of testimony from the candidate that “he had always had the

intent and purpose of keeping his original voting place and of rebuilding his home when

conditions permitted.” Id. And, again, Kentucky’s highest Court ruled that temporary loss of the

home, and dislocation elsewhere, did not change “legal residence” based on that testimony. Id.

Everman also noted that “[t]he word ‘reside’ as used in Section 145 of the Constitution,

and “residence” as used in KRS 117.020, have always been construed to be equivalent to ‘legal

domicile’ as distinguished from the place of actual abode.” 303 Ky. 156 at 168-169, 197 S.W.2d

58, 66. “Residence for the purpose of voting means a place of fixed domicile, and carries with it

the element of permanence; there must be the act of abiding, coupled with the intention of

remaining and making the place one's home to the exclusion of other places.” Id. “If, however,

he shall have definitely and intentionally anchored himself to a given place by actually living

there and having a bona fide purpose of returning and residing there permanently when his

travels shall have ended or his temporary habitation abandoned, and if he has some substantial

claim to the permanent place claimed, as, for example, his old home, and if throughout the period

which followed the formation of such purpose he does nothing inconsistent therewith, he will

have established a permanent legal residence.” Id.

Mr. Deters attempts to conflate some temporary location where one temporarily sleeps
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with permanent legal residence for purposes of filling out legal paperwork with the state. Such a

conflation is baseless.

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AM 3. Discovery is not permitted in summary proceedings in Kentucky and Deters has
failed to demonstrate any error in adjudicating this matter at this time where he
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admits there are no facts are in dispute

Finally, Deters complains that we have not readily acceded to his improper (fishing

expedition) requests for discovery. For numerous reasons, Deters’ requests are improper. As an

initial matter, such requests are impermissible in these proceedings. KRS 118.176(1) provides

that this matter is determined through “summary proceedings,” “consisting of a motion before

the Circuit Court of the judicial circuit in which the candidate whose bona fides is questioned

resides.” KRS 118.176(1) also provides that this matter be tried “summarily and without delay.”

That is not summary judgment – but rather “summary proceedings,” a term of art well known in

Kentucky law. Kentucky precedent is clear that discovery is not permissible in summary

proceedings, which consist of eviction proceedings, small claims matters, and election challenges

under KRS 118.176. Shinkle v. Turner, 496 S.W.3d 418, 421 (Ky. 2016); Baker v. Ryan, 967

S.W.2d 591, 592, 44 11 Ky. L. Summary 13 (Ky. App. 1997) (Holding that summary

proceedings under a statute “set up an exclusive procedure, complete unto itself, which implicitly

rules out discovery.”).

Deters suggests that “summarily” does not mean “immediately” (Response, filed 3/4/24,

at 4). To make that argument, he ignores another part of KRS 118.176(1): “The motion shall be

tried summarily and without delay.”

Deters apparently believes, yet again, that “no Rules of Professional Responsibility, no

statute, no case law bind him.” Deters v. Ky. Bar Ass'n, 627 S.W.3d 917, 928 (Ky. 2021).

Deters equally fails to demonstrate any potential or actual fact disputes. To the contrary,
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he has admitted that there are no factual disputes. See Eric Deters’ Status Report, at p.3 (“They

declared in their filings: ‘There are no facts in dispute, and the law is clear on this matter.’ That

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AM is true. But to my advantage.”); Response to Summary Judgment at 1 (that the facts are “not
90725
disputed”) and at 6 (“[t]he law is settled. The facts are settled.”).

Deters also suggests that he somehow issued valid subpoenas and deposition notices that

were ignored. As the Court knows, that is not true. See, also, Thomas Massie’s Motion for

Protective Order and Reply filed in support thereof. C.R. 30.01 is plain that “[l]eave of court,

granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition

prior to the expiration of 30 days after service of the summons upon any defendant …” Deters

never sought such leave of court. And Deters, as a non-attorney, cannot unilaterally issue

subpoenas that are not signed by the Circuit Clerk. C.R. 45.01; United States v. Elsass, 2012

U.S. Dist. LEXIS 56637 (SDOH 2012) (“the subpoenas are facially invalid for a number of

reasons. First, under Rule 45, only the clerk or an attorney may issue a subpoena. Fed. R. Civ. P.

45(a)(3). Here, defendant Elsass, who is not a licensed attorney, signed both subpoenas.”); See

United States v. Meredith, No. 99-3079, 1999 U.S. App. LEXIS 12046, at *4 (10th Cir. June 11,

1999) ("A pro se litigant who is not a licensed attorney with the appropriate court has no power

to issue subpoenas. Accordingly, the subpoenas completed by Meredith were invalid."); Draper

v. United States Postal Serv., 2018 U.S. Dist. LEXIS 101968 (VAWD 2018) (“The subpoena in

question was signed only by the pro se plaintiff. Because Draper is not an attorney authorized to

practice in the Western District of Virginia, the subpoena is invalid.”). Deters could apparently

not be bothered to seek or obtain a valid subpoena from the Circuit Clerk.

Finally, Deters seeks a hearing. As it turns out, this Court has scheduled a hearing, on

March 15, 2024, at 1:00 p.m. In fact, this Court informed Deters that it would take up all
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pending motions then.

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AM CONCLUSION
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Respondent, Thomas Massie, asks that the Court adjudicate that he is a bona fide

candidate.

Respectfully submitted,

/s/Christopher Wiest____________ /s/Thomas B. Bruns_________________

Christopher Wiest (KBA 90725) Thomas B. Bruns (KY 84985)
Chris Wiest, Atty at Law, PLLC Bruns Connell Vollmar & Armstrong
50 E. Rivercenter Blvd, Ste. 1280 4555 Lake Forrest Drive, Suite 330
Covington, KY 41017 Cincinnati, Ohio 45242
513/257-1895 (c) Tel.: 513/312-9890
chris@cwiestlaw.com tbruns@bcvalaw.com
Attorneys for Respondent, Thomas Massie
CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing upon the Petitioner, and upon the other named

Defendants, by ordinary mail, this 14 day of March, 2024, and upon Hon. Brian McCloud, 101

Harrison Street, Greenup County Courthouse Annex, Greenup, Kentucky 41144. I have also

served a courtesy email copy this same date to Petitioner and other Defendants for whom I have

email.

/s/Christopher Wiest____________

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