Wednesday, April 9, 2014

A day in court... NOT


"Here's what I understood.  The TRO was denied for for today.  A preliminary injunction hearing date was set for May 6.  Intermediate dates are as follows:  April 15 is the deadline for everyone to be served.  Summons for service won't be electronic, per Margy's lawyers request, but everything else between the parties can be done by e-mail.  April 23 is the deadline for opposition papers to be filed.  April 30 is the deadline for our reply.  

The judge said that had there not been a procedural issue, plus some content issue, her inclination would have been to grant the injunction.  However, she strongly cautioned that anything she did today would not be on the merits of the final case.  

The procedural issue was related to the fact that the side asking for the TRO filed against the directors as individuals in their capacity as directors.  We needed to ask for the TRO against just individuals, not in their capacity as directors. As directors they have immunity from the TRO unless some other procedural step is taken.

The judge left it open to return to court before May 6 if an emergency action needs to be taken by the court". 


  1. The danse macabre continues...

    ~ 'indigo'

  2. According to Ms Rosenberg's report, the judge said the plaintiff's case addressed the wrong status of the defendants? That's an elementary legal error; plaintiffs might consider firing their lawyers.

    Surprisingly Ms Rosenberg was silent on the content of the "content issue". That's presumably a weak part of the plaintiff's argument; hopefully we can learn more about this.

    Finally, a temporary injunction doesn't count as an "emergency"? Perhaps it's simply urgent. No doubt everyone finds this reassuring.

    Anyone know any other reports?

    1. I’m in essential agreement with your points here.

      Failing to file against the defendants as individuals rather than in their capacity as directors would seem, I agree, not to speak at all well for plaintiffs’ counsel. It would seem, from the summary we’ve been given, to have very likely cost them the TRO.

      The ‘textual’ issue, if the summary we’ve been provided is accurate, would seem either to have been minor, or to have been precluded as to possible consideration given the failure of form – whatever it is, or isn’t, I agree that it’s unclear, and thus unclear as to its possible significance or lack thereof.

      Courts will of course generally rule on the narrowest grounds available. Given the error of form with respect to failing to name defendants as individuals, I’d imagine that precluded any consideration with respect to whether or not it was an ‘emergency’.

      In any event, we’re clearly dealing with amateurs here.

      Amateurs are hard to predict – though I suppose one can have a high level of confidence they’ll very nearly always make the wrong move.

      They’re infinitely creative, though, in finding a near-infinite number of false moves.

      Which will it be next…?

      ~ ‘indigopirate’

  3. I am glad. This is good. Now is the chance and the window of opportunity for Margy and the other national Board Members to follow suit, lawyer up, reach into the depths of their professional support networks, and fire a counter salvo of litigation. General Quarters! Fire when ready! Take no prisoners!

    1. Quite the little legal strategist, aren’t we?

      Firstly, note that early in the course of this particular contretemps Ms Wilkinson was offered the option of formally requesting police intervention. She chose not to pursue that option.

      Is it likely that that was an act of kindness on her part or a tacit indication of the tenuousness of her position in that to do so would open her and her supporters to challenge as to the legitimacy of her election, that challenge to be determined not on discussion boards but by the courts.

      She took a pass.

      Your suggestion, to ‘…follow suit, lawyer up, reach into the depths of their professional networks, and fire a counter salvo of litigation’ is a variant of the Custer’s Last Charge strategy – Attack! Attack! Attack!

      The denial of the TRO does indeed provide Ms Wilkinson’s faction with an opportunity, potentially a golden one, if they can marshall the facts. In replying to the plaintiffs in this action they can make their case that they are in fact the legitimate authority on the board. If they can win that argument, they will have won the game.

      The question is as to whether or not they can win that argument on the facts, not on strong feelings or rhetoric.

      I don’t know if you listened to the in-person meeting, but if you did you may care to recall that it was far from clear what the result of the vote was, and if proper procedure was followed.

      It will be impossible for them to argue that it was a straightforward unambiguous vote.

      The question then will become whether or not they can make a convincing argument that on the preponderance of facts in evidence the vote was valid and determinative.

      If they fail in that attempt, it will be game over for them.

      If they succeed in that attempt they will next have to address the quesiton raised by the plaintiffs in which the plaintiffs allege that the vote to dismiss Ms Reese was not valid because the bylaws were violated, and no proper (and required) notice was given of the forthcoming agenda and vote.

      If they succeed in that matter, they will then have before them the question of Ms Reese’s contract and its terms and the stated requirement for severance – that, however, will be a separate suit or series of suits.

      So… they have quite a few hurdles to clear. Only if they can clear these hurdles as defendants may it make sense to attempt to take further action against Ms Reese and her supporters on the board.

      Your suggestion of multiple lawsuits as ‘counterattacks’ is very Pacifica, and will simply accelerate the disintegration and bankruptcy which are already moving along very nicely on their own without such help.

      How did that whole Charge! Take No Prisoners! apprach work for Custer and his kind, again?

      I thought it only worked in Hollywood or for motivating fools to be cannon fodder, but, hey, what do I know?

      I’m a simple…

      ~ ‘indigopirate’

  4. (Three points, but due to character length posted as two comments.)

    1) You write,
    "I don’t know if you listened to the in-person meeting, but if you did you may care to recall that it was far from clear what the result of the vote was, and if proper procedure was followed.
    "It will be impossible for them to argue that it was a straightforward unambiguous vote."

    You refer to a publicly available audio recording, but neither that nor a transcript was presented by the pro-Reeseist plaintiff to the court. On Monday I noted what their complaint said - & didn't say - on the matter:

    "2) Ms Wilkinson became chair of the National Board on 8 February after the vote was tied 11-11, but the complaint doesn't explain how the tie was broken in her favour. What it does say is that the proper tie-break, either tossing a coin or drawing lots, was never used ([complaint paragraph] #11). (Surprisingly the complaint is silent on how she won after the tied vote.)"

    I subsequently read the bylaws, & it explicitly mentions tossing a coin but not drawing lots: "[. . .] the winner will be selected by lot (flipping a coin or other agreed upon method of chance.)".

  5. 2) You also say,
    "the plaintiffs allege that the vote to dismiss Ms Reese was not valid because the bylaws were violated, and no proper (and required) notice was given of the forthcoming agenda and vote."

    Monday I quoted from the complaint:
    "7) 'On or about March 13, 2014 at an improperly noticed meeting of the Board, Defendant Fuentes, moved to terminate Ms Reese's employment with PFR, effective immediately and without notice' (#35)."

    Surprisingly "improperly noticed meeting" was simply asserted: no attempt was made by the plaintiffs to help the judge agree with them by citing the relevant passage(s) of bylaw. Also no evidence was presented of the notice that was given.

    Concerning notice, the final paragraph of the relevant bylaw (Article Six, Section 4) undoes almost all that proceeds it by identifying the permissions that . . . make notice unnecessary:

    "Notice of a meeting hereunder will be deemed waived by a Director who affirmatively agrees to attend a meeting or to waive this advance notice requirement, signs a waiver of notice or a written consent to hold the meeting, or who attends the meeting without protesting prior to the meeting or upon commencement of the meeting to the lack of notice to that Director."

    As most readers surely know, there are each year four of what are called regular meetings, & all others are called special meetings. The latter require seven days notice. The notice "shall specify the purpose of the meeting. No additional business not stated in the notice shall be conducted at a special meeting."

    Importantly neither the purpose nor the agenda of the 13 March meeting is either asserted or evidenced in the three plaintiff statements (the complaint, & the separate statements by Summer Reese & Carolyn Birden).

    However, as I said Monday, "25) In response Mr Uzzell got the agenda of the 13 March National Board meeting to include an item to identify who had changed Ms Reese's job title ([Ms Birden's statement, point] #32)". Mr Uzzell is a supporter of Ms Reese. To speculate, unwittingly, was having this on the agenda the way Jose Fuentes was able to move his motion to terminate Ms Reese?

    3) My detailed comment Monday should have also noted that none of the three plaintiff statements mentioned the matter of Tony Norman's election to the National Board: there was no challenge to his election. Importantly there was no claim that in virtue of this the Board was improperly constituted when it voted to (i) elect Margy Wilkinson as chair, or (ii) elect Mr Norman as vice-chair, or (iii) fire Ms Reese.

    This contradicts the repeated claims heard in the Board audio recordings, perhaps made by some of the plaintiffs themselves (this can be checked), that Mr Norman was ineligible to be elected at the time as he held public office (non-civil service employment), forbidden by bylaw Article Five, Section 1B. (On the public office detail, the section is concerned with eligibility "[. . .] for election to the position of Director", not eligibility to run in such an election: to make a political point, say, one can run, even 'win', but never be allowed to join the Board.)

    1. To justify a temporary restraining order it’s only necessary to satisfy the court that there is sufficient reason to believe a temporary restraining order is necessary – not to fully argue the case.

      You might note that the judge explicitly stated that her basis for denial was the failure of the plaintiffs to seek action against the named defendants as individuals rather than as members of the board, and that she chose to clearly suggest that had plaintiffs done so she would have likely granted the temporary restraining order. This would seem to suggest that in her judgement sufficient argument and evidence had been presented for purpose of a temporary restraining order.

      Plaintiffs, in seeking a temporary restraining order, only attempt to suggest the outlines of their positions, not to fully present argument and evidence.

      What you’ve done is to race ahead to attempt to rebut arguments and evidence not yet offered.

      Which is a fairly straightforward exercise.

      ~ ‘indigopirate’

    2. It's not the case that "[w]hat you’ve done is to race ahead to attempt to rebut arguments and evidence not yet offered": if you re-read what I wrote there's no presumption on my part, rebutting neither arguments nor evidence. I simply stated facts, be they presences or absences.

    3. Either you’re being ironic and/or disingenuous, or our interpretations of your presentation of ‘facts’ is at variance.

      There is, as I presume you’re aware, no such thing as a context-free ‘fact’.

      Arguments, whether in formal or informal debate or discussion, or in court, often take the form of ‘simple’ statements of ‘fact’.

      To my eye, your statements of ‘fact’ take the form of an argument or attempted rebuttal. All seem to contradict the statements they address.

      As such they are in my judgement attempts to rebut arguments and evidence not yet offered.

      Would you argue that they’re simply a random presentation of interesting ‘facts’ of the ‘today the sky is clear’ form?

      I’ll leave the question of whether or not your presentation of ‘facts’ was context-free to the reader.

      ~ ‘indigopirate’

  6. A claim made by the "unidentified eyewitness" of the post was contradicted yesterday (Wednesday) by supporters of the National Board majority.

    Anonymous eyewitness: "The judge said that had there not been a procedural issue, plus some content issue, her inclination would have been to grant the injunction."

    Anonymous editor of 'Save KPFA': "They had so badly mangled the procedural part of filing the lawsuit, that Judge Ioana Petrou didn’t even get into the merits of their argument."

    Guess in terms of the search for truth this is literally a case of 'you had to be there'.

    Nothing else of note in the post. But immediately below it, posted Monday, is a pic of Our Bernie, the Kiwi who's the new Executive Director, who needs to somehow battle his way through to his desk. However he doesn't look like he was an All Black in his youth:

    Summer has this adaptation of Brit culture at the besieged national office: (as used by Chris, 27 March)

    Does Bernie have his own adaptation to gee himself up first thing in the morning?

    Finally, yesterday's Pacifica Evening News (a co-production of KPFA, KPFK, & KFCF-Fresno) did not mention the court case. Which is surprising, not least as "[t]his hour-long broadcast seeks to bring unreported and under-reported stories of interest to Californians". So much for informing the listeners, so much for transparency. More like Soviet Evening News or the Egyptian variant. Pacifica = Pacific Ostriches. Crisis? What crisis?

  7. Indigo,

    You are wrong about Custer in more ways than one. Reese has 9 people in her camp, Margie has 12. That is why Reese is jumping out of her skin like a snake to disqualify one member of the board on a technicality and floated the petition to recall Fuentes, but it is still 10 against Reese's 9. Such Machiavellian behavior, did somebody say she a devout religious believer? Hell has a very special facility for religious hypocrites.

    Take the little Court filing and pull out all the names of the defendants and plaintiffs in this case. Google them up and down to see who they are. There are more lawyers, real community organizers and influential media people among the Margie's faction, than among the Reese gang. If they pooled their expertise and their resources together, they can destroy Reese and her followers, since they are already more radicalized and marginalized as activists.

    Problem that they have is that Margie Wilkinson and her supporters have underestimated Reese, and they have a certain left-wing bias, that has historically undermined Pacifica. Notice, how historically the local Pacifica station personnel would act out, shout out, throw a few tantrums, excuse me, local listeners demonstration, and the Pacifica National Board backed off? That's part of the problem. Do you recall former black panthers acting as security at BAI? That was wrong. They should have asserted their privilege as the ultimate owners of the station to have these former panthers searched for weapons, arrested, where complaints can be filed, and removed fro the building. The same reason that Pacifica did not act to remove the community security without license from their facility may be the same one, where Margie is reluctant to get police involved. Call it Progressive Bias.

    BTW, Summer Reese is still a probationary employee, all the National Board has to do, is give her a negative performance evaluation, and kick her out as unsuitable, which I hope they do, with their simple majority vote. Nicht wahr, Indigo?

    1. I disagree with you on most points, Brooser, and as there’s no judge or voting audience I have no intention of moving to full debate mode. As one very nearly never convinces anyone that they’ve lost an argument or a debate, what would be the point?

      It would be moot beyond moot.

      You’re more committed to your position than I am, in that you clearly loathe and despise Reese.

      As for the why of that, that’s your issue.

      To me, these are very nearly all incompetent fools, and, therefore, while Reese’s moves, as competent, are impressive amidst this sorry lot of ‘activists’, I’m not anyone’s advocate or cheerleader – clearly the firm representing Reese and the minority faction appears to be less than impressive, and that fact reflects poorly on Reese and the minority faction.

      As for the ridiculous spectacle of ‘Former Black Panthers’ as a ‘threat’, anyone might have chosen to dial up the police, and they would have been arrested on weapons charges, or at the least assault, or brandishing – not a complicated problem.

      The Panthers were always chicken-shit thugs, trading in what was famously referred to as Mau-Mauing the Flak Catchers.

      Who on earth would find them threatening?

      Other than white ‘progressives’, ‘leftists’, and ‘liberals’?

      The statement that Ms Reese is still a probationary employee is an empty and quite a ridiculous public relations point. If it’s fact, why not stroll by a court and make the necessary arrangements to have her bodily removed forthwith?

      If you prefer to come to Custer’s defense, feel free – I’ll watch, with a bag of popcorn, a box of skittles, and a tasty soft drink :)

      ~ ‘indigo’

  8. The former Black Panthers are a cultural and a political icon to most BAI and Pacifica listeners, the way Wesley Cook aka Abu Jamal is. To touch them would have been a major provocative action and a statement. The political significance of this seems over your head and hence you paint everyone involved with a broad brush without fully comprehending the situation. Regarding Son of the Morning Star, he was very much a product of his time, and his death is less a result of incompetence and more like a firefighter falling through the floor of a burning building - an unfortunate turn of events in the course of one's hazardous duties.

    1. I said that the Black Panthers were chicken-shit thugs – they were. The fact that ‘leftist/progressives’ of the WBAI/Pacifica-sort saw them and see them still as iconic warrior-talismans of ‘the struggle’ is not news to me. It is, however, sadly and all-too-typically reflective of their political fecklessness, naiveté, and incompetence – as is, of course, the state of their institution and its never-ending failures.

      There *is* no political significance to this. Only within the cracked teacup which is Pacifica and WBAI are such things imagined to be of any significance.

      The squabbling and the internecine warfare of failed political would-be world-shakers.

      Impotent pipe-dreams of ‘struggle’ and ’revolution’ of the sort the world would mock were the world to deign to notice.

      It is, granted, ‘painting with a broad brush’, but the fact is, that though the details are complex, Custer fucked up. In battle, if you fuck up, the chances are that you may die.


      WBAI and Pacifica have been fucking up, majorly, since half-past forever-and-a-day.

      If you wish to quarrel as to the details of that death-spiral, feel free :)

      ~ ‘indigopirate’

      ps: My grandfather was a battalion chief in the FDNY. I can assure you that his attitude and that of every other member of the FDNY I know of, was that if someone fell through the floor of a burning building, then someone fucked up – some people take life-and-death responsibilities fairly seriously, you see. An 'unfortunate turn of events' my ass. For any officer, anyone responsible for the lives of others, there is no such thing as an 'unfortunate turn of events'. Ever. Try to be clear on that.

    2. You say that there is no such things as an "unfortunate turn of events"? Really? Your gramps was a battalion chief at FDNY, and I started my military career as a combat engineer, and I have yet to retire, btw. You can have zero tolerance for casualties, and that is as it should be, but the more you minimize the battlefield risk, the more combat death becomes an unfortunate sequence of events that lead to tragedy and death, and as the subsequent inquests reveal equipment failures, errors in judgment and training deficits, the character of these battlefield deaths takes on the form of complex high stakes accidents like airline crashes and nuclear reactor failures.

      Having said that, Custer's defeat had less to do with his own errors in judgment and more with being at the wrong place at the wrong time, when the events turned against him and his men. This is akin to special forces trainers being jumped and skinned alive by the indigenous people that they have been training for months, when their tribal chief switches allegiance. Not much you can do in a situation like that. An unfortunate turn of events, as when smoke jumpers die when the wind changes direction.

      With regards to BAI/Pacifica, an event becomes significant when someone feels that it is, and then it becomes a reality. You tendency to simplify and make dismissive generalizations almost guarantees you riding off into sunset somewhere, somehow, just like Custer did.

    3. The AWG, amongst others, hasn’t paid me for my *lack* of judgement.

      ‘Unfortunate turn of events?’

      Heaven help anyone under your command.

      ~ ‘indigo’

    4. Yup, Heaven must be helping them, I got an unprecedented record of keeping them out of trouble.
      I don't know if your judgment is worth anything, based on your brilliant analysis shown here.

    5. I’m sure you’re absolutely right, Brooser :)

      ~ ‘indigopirate’

  9. Here is another take on the events of April 9th: