Report on Court hearing re: bylaws
9-12-03 Court documents index
From: Michael Lubin [KPFA area]
Judge today said he would take Carol Spooner's motions under submission. He will rule early next week.
Other attorneys present were Tim Fox, for Leslie Cagan, Tomas Moran, and Pete Bramson, signatories to the settlement agreement in favor of the motion; Dan Siegel, for the Adelson plaintiffs in favor of the motion; and Margalo Ashley-Farrand for Ray LaForest opposing the motion.
There were five people on the court phone but only Ray Laforest and Acie Byrd's names were mentioned, so 3 were on the phone line without us knowing who they were.
Judge announced at the beginning that he had not read the opposing papers because Margalo had only delivered them a few minutes before the hearing. What had happened is that she filed them by fax with the clerks office late yesterday afternoon (after the noon deadline) and had not sent a copy directly to the court. When she got to court she found out the clerk's office had not sent the papers to the court by 9:00 today. She had the court attendant copy all her papers. The court announced that it was over 100 pages. So at the end of every thing Margalo asked the judge to take the case under submission so that he could read her papers. To maintain the appearance of fairness he pretty much had to say yes. The alternative was to say blow it out you ear because you filed them too late, or to grill her on whether there was anything in the papers that she had not mentioned (which would have meant a minute review in court anyway).
Tim Fox did the same thing as Margalo with filing by fax but didn't bring copies for the judge so it sounded like the judge had seen none of his papers either. Judge announced that several people had sent faxes or emails including Luis Garcia and Sara Garcia, Patty Hefley, Andy Norris, Teresa Allen, and a joint letter from Robinson, Lee, Bryant, Barnstone, Zakiya, and maybe one or two more.
The papers in opposition to the motion, both Ray's declaration and Margalo's argument, say that Carol had won the previous court order on July 8 by misrepresenting to the court the vote of 7(B)-2(A)-1(C)-3(none) on the bylaws. Ray LaForest signed a declaration under penalty of perjury that the multiple choice vote "resulted in three (3) votes for the bylaws draft known as Draft A, seven (7) votes for the bylaws draft known as Draft B, one (1) vote for the bylaws draft known as Draft (c), and three (3) votes for None. (See Exhibit 1 attached hereto.)" Exhibit 1 was a 42 pages long partial transcript of the iPNB phone meeting. By saying, "See exhibit 1," without stating a page number where to find the info, the declaration attempts to hide the ball. Carol pointed the judge to page two, though she didn't read it out loud where it says: "LESLIE: A? and myself, Leslie is B. Okay, so I have here is 2 As, 1,2,3,4,5,6,7-Bs; 1-C, and 3-none." Thus Leslie Radford's own transcript thus shows Ray's declaration was perjured.
Margalo attempted to argue that the KPFA and KPFT LAB votes should be taken again because they were taken at regular meetings and not special meetings as ordered in the July 14 order. Judge didn't seem to think this was worth much. He said "So they were regular meetings?"
Judge did say at one point that the July 14 order had the July 23 deadline to vote and Carol and Tim Fox argued that the "deadline" was a date to meet and vote by, set to force the vote in time to get elections underway. They pointed out the paragraph 3 of the order said the bylaws would be approved pursuant to the settlement agreement without mentioning a date.
Judge indicated a concern for "finality" and Margalo tried to turn that into an argument that they thought the July 23 date was a date of finality on considering Draft B. Judge asked what could prevent other LABs from changing their votes and Carol, Fox, and Siegel all agreed that once the bylaws are adopted they could not be repealed by a change of vote, only by amendment. Siegel was very forceful in his oral argument on this point. He said it is time to get on with the elections. He said that there could be amendments to the bylaws later. Unlike previously, Siegel took a strongly pro-passage of bylaws position.
Fox argued by analogy that LAB ratification was like filling up a carnival balloon -- you could take out the gas up till a certain point, but when it reached that point, the balloon burst, and that was that. He argued that when KPFK, the third LAB, approved bylaws on August 23rd, the balloon burst for Pacifica.
In response to one of Margalo's comments the judge said "Democracy is not always neat and tidy." She was arguing that Wanzala and Cagan had misrepresented their opinions as facts when lobbying Thom Irwin who changed his vote. The Judge said that sometimes in democracy every vote counts.
Judge again stated that he has to make a decision based on equity and what is best for Pacifica. He stated (as he had in the July 8th hearing) that he understands that diversity is an important issue, and not only at Pacifica. Margalo argued that if affirmative action for diversity were not in the bylaws that Pacifica could be sued for racial discrimination. Judge responded to this argument saying the specter of litigation is lurking, but it is clear that if the objecting parties got what they wanted put into the bylaws that there was known legal arguments to be made for litigation against those provisions as well.
Decision will boil down to whether the July 14 order did or did not make a drop-dead deadline on voting or whether it was okay for the KPFK LAB to vote again after the Chicago meeting. Margalo probably didn't help her case by admitting that Thom Irwin said he would revote after the Chicago meeting. This gives the judge a perfect reason to accept Irwin's changed vote based on changed circumstances.
Another bad move on Margalo's part was that she said there were other issues that "many" objecting people wanted to raise, loosely called the "democracy" concerns: greater membership control, more transparency on boards, and a membership convention. She presented them as if there was no controversy about whether they should be put into the bylaws. But these proposals just add to the unresolved issues that could bog down the negotiations, which Margalo said were supposed to be resolved in 30 days.
She also said the membership would have to elect delegates to go to a convention to amend the bylaws. Siegel responded by saying that a membership convention is an item that could be dealt with by a member petition to amend the bylaws, if the existing iPNB resolution for a membership convention is not honored by the next board.
At the beginning of the hearing the judge mentioned that the underlying litigation might have to be brought up again if there is no resolution and Carol, Siegel, and Fox said that there would be resolution for moving forward if the court found the vote was good and the bylaws are adopted.
During the hearing there were noises, voices, and laughs in the background of the phone callers, much like what occurs on iPNB phone meetings. It was obviously annoying to the judge, who looked like he wished the hearing hadn't been held so early in the morning.
Today in court in Oakland (I was there), Judge Sabraw held a hearing to decide whether bylaws have already been passed. However, Margalo Ashley-Ferrand, lawyer for Ray Laforest, didn't get her 100-page document submitted until 5:00 p.m. yesterday (five hours after the deadline). Due to a snafu, Judge Sabraw didn't receive the document until five minutes before the hearing. To be fair, he decided to put off his ruling until he could get a chance to read it. His decision will be announced early next week.
--Michael (Lubin - KPFA area)
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