Page 26

1 manner -- set salaries and dictate the manner and method of

2 work. So as to these individuals, there's a total absence of

3 that. They are not be employers under the Act.

4 The second, Your Honor, with respect to those

5 defendants and to the defendants Palm Lane, Mountain Park,

6 Bob Wills, Betty Wills, and Sam Gerhardt, the other

7 defendants, the reality is that the evidence in this case so

8 far demonstrates as a matter of law that the activities that

9 the plaintiff complains of are activities which are part of

10 the integrated process or the integrated system into which

11 his parents voluntarily and as we know in fact sent him

12 voluntarily as the alternative to him going to juvenile

13 detention center, which is what we know in fact although not

14 in the evidence.

15 This court said in its memorandum opinion that the

16 issue was whether or not the plaintiff was engaged in school

17 in which the work was part of the school or on the other hand

18 whether the plaintiff was engaged in work which was in

19 furtherance of, quote, business enterprises.

20 It is clear and there's no evidence to the contrary

21 that this individual is not an employee in the sense of the

22 Fair Labor Standards Act. An employee under the Fair Labor

23 Standards Act is a person whose economic livelihood depends

24 upon the economic viability of the, quote, employer's, closed

25 quote, business. Which is to say you have to depend -- your

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1 livelihood, your economic livelihood depends on the work

2 given to you by this corporation that's known as your

3 employer.

4 That work has to further a business enterprise. It

5 either has to produce goods in commerce or be involved in

6 something that produces goods in commerce or is involved in

7 communication in commerce. And this boy was sent

8 involuntarily to a school which includes three or four hours

9 of work or sports every afternoon as a part of its regimen, a

10 strict regimen, integrated regimen. And 100 percent of the

11 evidence is then that he is not dependent economically on the

12 success or failure of Palm Lane, he is not an employee within

13 the meaning of the Act. Neither are the defendants employers

14 within the meaning of the Act as they relate to -- as they

15 relate to Jordan Blair.

16 They are employers as to other staff members, both

17 in and out staff, but they are not employers of the students

18 because the students' work is a part of the training that

19 they are getting as troubled youth as a part of their effort

20 to restore these children, young people to a meaningful life.

21 There are other sufficient reasons to sustain the

22 motion for directed verdict on the Fair Labor Standards Act.

23 I mean, they have a burden of proving a work week, week by

24 week basis, the exact number of hours. That's part of the

25 plaintiff's burden of proof. They haven't even tried to do

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1 that. They admitted that they can't. So, I mean, they don't

2 qualify that way.

3 They haven't established that anything Jordan Blair

4 did had an impact on interstate commerce. The opening

5 criteria for application is that the labor had a significant

6 impact. This is just like the cases that Your Honor cited in

7 his memoranda where people go to school, they are at that

8 school. It's like the College of the Ozarks. I mean, it's

9 just exactly what's over here at Point Ozark. Part of the

10 plan, part of your education is to work. And why do you

11 work? You work to learn discipline. You work to learn --

12 you work to learn discipline. You work to learn

13 self-respect. And you get vocational skills. The key in

14 this case in terms of that may be what Jordan Blair says,

15 that he wants to be paid for learning how to weld and how to

16 use a belt sander.

17 Judge, every public school in the United States is

18 required to teach that to boys or that kind of thing to boys

19 in shop. I mean, you don't get paid for learning vocational

20 skills.

21 This is simply not a Fair Labor Standards Act case.

22 We don't have an employer and we don't have any employee.

23 And the defendants are all entitled to a directed verdict,

24 most particularly or most clearly the individuals as to whom

25 there is absolutely no testimony. Thank you.

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1 THE COURT: Mr. Stilley, I am inclined to agree with

2 all of what Mr. Oliver has said. Now, you ready to change my

3 mind?

4 MR. STILLEY: Yes, Judge, I'm ready to change your

5 mind.

6 THE COURT: Okay. Go for it, change my mind.

7 MR. STILLEY: Okay. Let's start with the first one.

8 The testimony shows that everyone, part of their duties was

9 to force everyone else to comply.

10 THE COURT: Say that again.

11 MR. STILLEY: Part of their duties was everyone had

12 the duty to force everyone else to comply. If anyone was to

13 cause any trouble for any staff member, they had to basically

14 attack that person.

15 THE COURT: Well, you know, see, that's kind of

16 stretching making somebody say they are a security guard.

17 You know, that's kind of stretching it. You said he worked

18 as a security guard, and the testimony came out that's

19 because he had to tell on everybody if they tried to leave

20 the premises, they had to restrain them or if they were

21 breaking the rules tell.

22 MR. STILLEY: Well, he also had to do physical

23 things. He also had to physically restrain or catch --

24 THE COURT: He said restrain. He basically had to

25 restrain anyone that was leaving the premises or I guess he

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1 implied there that if there was an altercation with staff

2 people or someone else of authority, and he had to report any

3 violation of rules. Okay. That made him a security guard as

4 far as you're concerned?

5 MR. STILLEY: That makes him a security guard.

6 Ms. Wills herself testified nobody runs away.

7 THE COURT: Well, he got away.

8 MR. STILLEY: From Lowe's.

9 THE COURT: You have anything else to say about that

10 issue?

11 MR. STILLEY: Yes. Well, now, let's not forget

12 there's two sides to this. I think we just need the jury

13 take and let the jury sort it out.

14 THE COURT: It's basically a legal issue for me,

15 really. It's a legal issue.

16 MR. STILLEY: On what amounts to compensable work?

17 THE COURT: Whether or not someone is an employer or

18 an employee under the Fair Labor Standards Act, that's my

19 call. Now, I maybe would perhaps allow the jury to deal with

20 some things. But right now I don't see that you've made

21 anything, made a case enough for me to submit to the jury.

22 And I want you to tell me what have you shown for me to

23 submit anything to the jury at all?

24 MR. STILLEY: Well, we've shown that they are a

25 school or at least purport to be a school. And the law and

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1 Fair Labor Standards Act there is a specific section that

2 says that a school is a covered entity. They have to pay.

3 As I told you earlier, it is a belt and suspenders approach.

4 That is the only reason that --

5 THE COURT: It is a belt -- tell me that, it is a

6 beltless suspender?

7 MR. STILLEY: Belt and suspenders approach. In

8 other words, I'm taking two routes to make sure that one

9 succeeds. I'm showing the interstate commerce only as

10 redundant to the fact that this is a school. This is a

11 school, and the schools are required to pay.

12 THE COURT: Well, I'm not disputing or I don't have

13 a problem, I don't think anyone has a problem that the school

14 is an employer in general. But is it an employer relative to

15 Mr. Blair, and is he an employee? I'm saying specifically

16 him.

17 MR. STILLEY: Right. And we all can see that there

18 is enough evidence that a reasonable jury could find that

19 Mr. Blair was compelled, compelled to do things like digging

20 ponds, painting fences and various other jobs like that

21 outside of chores. I would just very respectfully --

22 THE COURT: That's part of this whole thing about

23 this compelled stuff. His parents sent him there. It was an

24 alternative to where else he was going to go. And he was

25 going to be compelled if he went someplace else. So, I mean,

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1 I see this as part of the training and education curriculum

2 of this type of institution.

3 MR. STILLEY: Judge, if that is the case then a

4 person could take an individual in and just simply put him to

5 work because that helps that child learn.

6 THE COURT: We're not looking at that kind -- we're

7 looking at this case here, not some hypothetical case. We're

8 looking at this one.

9 MR. STILLEY: We are looking at this case right

10 here. But we are looking at a case of a kid who was required

11 to do work on the premises and to do work off the premises.

12 And you -- the Fair Labor Standards Act rules and regulations

13 say that you can't even force somebody to attend a meeting

14 without paying them for it. The defendants have advocated

15 the claim that he was kept there pursuant to court order.

16 They can't do that. Ms. Wills herself admitted why do we

17 send him to Florida, because he was going to be able to walk

18 out of there in a week. We know his birthday and we know

19 when he left, it was exactly a week.

20 THE COURT: We have not -- you know, you want to

21 refresh my recollection as to what the court order from

22 Arkansas said in terms of this being an alternative to him

23 being incarcerated by the state?

24 MR. STILLEY: Your Honor, here's -- my position on

25 that is, my position is that the defendants claimed ignorance

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1 of it, though they didn't have ignorance, it was fact.

2 THE COURT: You're talking about the fact that he

3 went to Florida. Was there a term? I don't know what term

4 he might have gotten otherwise or what the judge indicated in

5 terms of this being an alternative to him being incarcerated.

6 MR. STILLEY: Here's what the court order said, and

7 we do have a copy of the court order if you want to see it.

8 He said he was sent to Baptist Boys Academy in Missouri to

9 complete inpatient residential treatment. Well, let's stop

10 and think about that. Baptist Boys Academy in Missouri is

11 not Palm Lane. There is no inpatient residential treatment.

12 They themselves in their own book, the testimony from the

13 stand says --

14 THE COURT: Maybe that was a mistake with the court

15 system. But that's kind of indefinite. And how long was he

16 at Mountain Park anyway?

17 MR. STILLEY: He was there from the 24th of October

18 to --

19 THE COURT: How long? Give me a time. 30 days?

20 MR. STILLEY: Three weeks.

21 THE COURT: That's not very long in terms of even

22 what the court order said. How did you describe it,

23 inpatient --

24 MR. STILLEY: Residential treatment.

25 THE COURT: Residential treatment.

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1 MR. STILLEY: Correct. It doesn't say that he has

2 to --

3 THE COURT: Every time I send somebody down to

4 Springfield in a criminal case, that takes at least 90 days

5 to get a study. Please.

6 MR. STILLEY: Here's what --

7 THE COURT: I'm saying that you know the three weeks

8 in terms of the court order, that just doesn't wash in terms

9 of the court order, okay. So we're not there. You're

10 talking about them sending him down to Florida because of the

11 age. He's got the competing situation with the parents

12 having enrolled him there.

13 MR. STILLEY: Well, let me make sure the record is

14 very clear on that, the parents did not enroll him in Palm

15 Lane. He was taken to Palm Lane. Allegedly on an oral

16 statement from the parents he was taken to Palm Lane. There

17 were no documents and the court did not order him.

18 THE COURT: The witness indicated that. But now

19 he's somewhat backing off of that in terms of his deposition

20 because of a subsequent deposition he claims of his father.

21 But the testimony that he gave was that his father agreed for

22 him to be there, that was the testimony.

23 MR. STILLEY: Well, the question was about Mountain

24 Park.

25 THE COURT: There is no testimony to the contrary.

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1 MR. STILLEY: The question was Mountain Park. Did

2 your father want you to be sent to Mountain Park?

3 THE COURT: Well, we don't have any testimony to the

4 contrary relative to Palm Lane.

5 MR. STILLEY: Well, I mean, they are -- if they want

6 to put on in defense, fine, let them put it on in the

7 defense.

8 THE COURT: I'm tired of beating around the bush

9 with you. What else do you have relative to this that

10 defendants are employers and that he was -- that Mr. Blair is

11 an employee?

12 MR. STILLEY: Okay. Let me just hit the highlights

13 here. The defendants themselves including Ms. Wills did not

14 believe that they had a right to detain him because Ms. Wills

15 herself said we sent him to Florida.

16 THE COURT: Are you talking about false imprisonment

17 or are you talking about employee/employer relationship?

18 MR. STILLEY: I'm trying to talk about wages, but we

19 got a problem here when I try to explain the work, you say,

20 well, he was supposed to work. And then I say, well, he was

21 held there without legal authority and without anything in

22 writing from his parents. And then we say is that a false

23 imprisonment claim? No, it's not a false imprisonment claim,

24 that's something that's already -- we've already been down

25 that road and we've already lost that claim. That claim is

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1 out.

2 But what I'm establishing, that he was in Palm Lane

3 for a number of months and forced to work with no legal

4 authority whatever. And under state law you can't just take

5 somebody's kid just because they allegedly orally tell you to

6 take that kid, and you just have --

7 THE COURT: That doesn't seem to go to the issue of

8 employer/employee relationship. And you know from the

9 letters that you have here in evidence from him to his

10 parents, it didn't seem like -- that there was any protest

11 other than on his part in the letters talking about I'm going

12 to be a good person, I changed and this stuff. There's no

13 indication that his parents were opposed to this. And so,

14 you know, that is part of that false imprisonment claim.

15 We're trying to get to employee/employer relationship.

16 MR. STILLEY: His letters were read. He could be

17 punished.

18 THE COURT: Well, please. Employer/employee

19 relationship. Forget the letters.

20 MR. STILLEY: Okay. When we get to the employer/

21 employee relationship question, what we've got, and all we

22 have to show is that he worked for this person, even if --

23 THE COURT: The question is really was it part of

24 the educational curriculum or was it, you know, was it a work

25 situation as opposed to a curriculum student situation?

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1 MR. STILLEY: Well, we've got enough facts that it's

2 a submissible case to the jury that you could just say direct

3 a verdict to the jury. See, he had to put on work clothes

4 totally different from the uniform that he had for his

5 indoctrination meetings and his so-called classes.

6 THE COURT: Let's face it, this is an alternative

7 school.

8 MR. STILLEY: Well, then we're assuming this is a

9 bad kid that actually needed to be there.

10 THE COURT: Assuming?

11 MR. STILLEY: That's what we're doing.

12 THE COURT: You're the one that had him talk about

13 being brought there in handcuffs. You thought that that

14 would show that somebody else was bad. That was telling

15 something on him.

16 MR. STILLEY: Well, I didn't know that was going to

17 happen.

18 THE COURT: Right. Right. You should have taken

19 control.

20 MR. STILLEY: I can't reach out and grab him, you

21 have it do extemporaneously.

22 THE COURT: He said certain people kept him -- what

23 kind of distance was it?

24 MR. STILLEY: Slapping distance, that's the facts.

25 That is the facts. And that's what I've been trying to

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1 present. This whole case is the facts.

2 THE COURT: Oh, really?

3 MR. STILLEY: Yes.

4 THE COURT: Oh, okay.

5 MR. STILLEY: Just the facts. But we have to create

6 a picture enough so that the jury has enough information to

7 make a fair decision.

8 THE COURT: I'm well aware of the picture you were

9 trying to paint.

10 MR. STILLEY: Well, it was not me that created the

11 picture. It was somebody else who created a picture and I'm

12 just trying to make an accurate painting.

13 THE COURT: Well, sometimes they asked was it the

14 chicken first or was it the egg first. They didn't take him

15 to the juvenile court, did they?

16 MR. STILLEY: Well, wait a minute, let me -- since

17 we're going to go there, I think that they did. We don't

18 have testimony from any witness here because -- and I'm

19 satisfied you kept that if I say anything about it, but it's

20 my understanding from information and belief that they told

21 Mr. Blair that that was a good way to get him to the place.

22 And the exhibit --

23 THE COURT: But the judge made that decision, that's

24 what you're telling me.

25 MR. STILLEY: Well, the judge made that decision.

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1 THE COURT: So that's -- you know, that's there.

2 MR. STILLEY: Well, let me explain why that's not

3 there. He was not allowed --

4 THE COURT: Well, forget all that. You just go off

5 on these tangents because you're still on this false

6 imprisonment, this is a bad thing to do. The whole religious

7 thing, that's a bad situation and so forth. They got some

8 other version of the bible. I mean, please. Let's get to

9 the employer/employee relationship, okay.

10 MR. STILLEY: Certainly, Judge. And in order to

11 do -- let's just assume that he was -- there was no order

12 whatsoever. Can we do that?

13 THE COURT: Assume there was no order? No. It's

14 not -- I don't even know it's relevant. So that's what I'm

15 saying, we start talking about these things and it is not

16 really relevant. Talk about the employer/employee

17 relationship.

18 MR. STILLEY: Okay. Here's what --

19 THE COURT: Now, I give you this, now there is some

20 approximation of some hours, but it seems very, very

21 uncertain about. But there was some approximation, and, you

22 know, so there is something there in terms of hours that

23 Mr. Blair claims, 15 to 20 something hours he said. What did

24 he say, 15 to 27 hours a week. I mean, there is no actual

25 records. I mean, I understand in such a situation perhaps

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1 there would not be records kept. But he had that. He had

2 some hours that he claims that he was working. But the

3 question becomes is this part of the curriculum or is this,

4 you know, a real employment job situation as opposed to

5 student activity, part of the curriculum.

6 MR. STILLEY: The jury would have to decide the

7 hours on that. But before we get too far afield here on the

8 lack of records, we know why there's no records, and that is

9 because the defendants said to not keep records, and we check

10 your stuff and if we find you're keeping any notes, journals

11 or anything like that, we stop it. He couldn't keep it and

12 they wouldn't --

13 THE COURT: Fine. I'm giving you a concession

14 there. You're just beating something that's not about

15 anything. So let's move to the other aspect of it. I'm not

16 concerned and I don't have a big problem with the hours,

17 keeping of hours.

18 MR. STILLEY: Based on my research of the law on

19 Fair Labor Standards --

20 THE COURT: How would you distinguish what Mr. Blair

21 says he did from student activities of a curriculum of an

22 alternative religious institution? That's where we have to

23 go. That's the key. Right there, that's it.

24 MR. STILLEY: Okay. Let me distinguish this.

25 There's a lot of things you can do to distinguish this. But