Sunday, February 21, 2010

"Old Versus New Majority" Lawsuit In Jordan Neighborhood Is Nearing Its End, Old Majority Doesn't Even Show Up At Their Own Legal Funeral...

Photo and blog post by John Hoff

Some days ago I attended a hearing in the court of Judge Porter about the "Old versus New Majority" lawsuit in the Jordan Neighborhood, which has dragged on since about the end of January, 2009, when members of the "Old Majority" JACC faction were ousted from the neighborhood association, leading to a golden era of competent leadership under Kip Browne's "New Majority" faction.

This conflict has been extensively documented here on Johnny Northside Dot Com and--like I told Remaro Smith's attorney, while we were just chatting away like old friends--can be found by going to the search function of this blog and plugging in terms like "Old Majority" or the names of some of the players, like Ben Myers. (Though, for the record, Ben is a player for now, but who knows if the Minnesota Board of Lawyers Professional Responsibility will take his player card? I'm just saying)

Outside of some relatively minor coverage in other media, this blog is the only entity which has reported on this longstanding tempest in a neighborhood teapot, which has involved fisticuffs after a board election, the not-so-mysterious disappearance of office equipment and records, attempts to cut off utilities in the dead of winter out of pure spite, solid allegations of financial mismanagement, a now-defunct defamation lawsuit, attempts to procure a temporary restraining order, (TRO) and some really colorful court episodes, including the ejection of "Pete The Pedophile" from one hearing. This incident is mentioned in Pete's recent 96-page lawsuit slash manifesto of gibberish.

Now, we are actually in the "New New Majority Era," with yet another neighborhood election behind us and...

...very little indication the "Old Majority" faction will try to gain political power by participating in the democratic process. Kip Browne is no longer Chair, but Vice Chair of the Jordan Neighborhood. The issues of January 2009, while still capable of getting people upset, are increasingly less relevant day-by-day. JACC seems to accept the notion of never getting back their records and office equipment, but their neighborhood is being improved and revitalized under the steady guidance of current leadership.

And yet the lawsuit filed near the beginning of 2009 drags on. And so it was Kip Browne, pictured above, had to put aside other important personal and neighborhood matters to go, once again, to the courtroom of Judge Porter.

For reasons too tedious to mention, this blog post will not name the Plaintiff Attorney or the former Executive Director of JACC, instead using the designations "Alpha" for the plaintiff attorney and "Delta" for the former JACC Executive Director. (The Greek letter "Beta" was already used up by the assistant to the plaintiff attorney, who I had dubbed "The Beltless Beta Male." So Alpha and Delta it is)

One thirty. The hearing was supposed to be at one-thirty, but at the appointed time still no sign of Alpha, the plaintiff attorney, late but hardly fashionable. Word had come shortly before court that a sheriff's deputy--forced to serve legal paper by Pete the Pedophile, acting pro se--had walked up to the house of Kip Browne to dump a 96-page manifesto of gibberish on Browne's wife. I was also named as a party to the lawsuit--named four different ways, actually--but had somehow managed to miss getting served. Days later and I still haven't been served. I do indeed lead a charmed life.

Alpha finally arrived, wearing a robin's egg blue sweater.

"So you're now representing JACC?" she asked David Schooler. Schooler said he was, and Alpha answered, "It was a long time coming." Also seated at the defense table was Jim Moore, (no relation to somebody else with the same surname) assistant city attorney on behalf of city defendants. Moore didn't say much of anything during the hearing, except to introduce himself.

JNS blog asks: How much is the city forced to spend in tax dollars on this ridiculous litigation? It's like having a hole in a fence where you know the cows will go through and leave cow pies all over your lawn. Why doesn't somebody fix the big hole in the fence instead of spending year upon year trying to herd loose cows while stepping in dung?

Attorney David Schooler--who gets paid more in an hour to lawyer than I get paid all day to drive a truck--rose to speak in the special secret lawyer language, but some of it sort of made sense, and I took notes as best I could. Schooler said the fact "Alpha" had filed an amended complaint changes very little. It is largely the same case. He emphasized under the rules what is on the trial record becomes the record and Schooler argued "we are post trial." Schooler said summary judgment would focus on whether there are any outstanding fact issues. The burden of proof shifts to the plaintiff.

"This case, from the outset, is a political dispute," said Schooler, pointing out political disputes are the kind of thing courts try to avoid. Schooler's said his position was "it doesn't belong in the court."

"(Delta) and (Ben) Myers weren't good at their job, and the community voted them out," Schooler said. "The only coup d'etat was the board voting." And yet, Schooler said, (Delta) and Myers moved office equipment and wrote checks." Schooler asserted the lawsuit was filed for purpose of intimidation, as leverage for reinstatement. The one applicable legal doctrine here is certainly "mootness." It is moot because it is now a different board.

Furthermore, Schooler said, none of the plaintiffs are interested in JACC board involvement at this point, "except one time to (show up and) complain."

Schooler agreed the claim of Delta was legally different, maybe even not as moot, but still a legal slam dunk because of Delta's outrageous actions--punching the Vice Chair of the board in the face--something which was prohibited under the employment contract, a document which Schooler found dubious and which turned up very late in the proceedings, but even so, punching a board member in the face didn't exactly fall under what was expected in the purported employment contract.

Schooler said the issues here were all about control of the board. He pointed out only 4 board members were sued, but "it takes 8 to do anything." Not a sufficient number were named in the suit, Schooler said. Oh, then there were some matters of ILLEGALITY and FRAUD to consider.

"We seek dismissal for the individuals and for JACC," Schooler said. He discussed "fiduciary duty," saying a violation of such fiduciary duty is defined in this context as actions which are "so far removed" from the interest of the organization. Something like that--along those lines--would be the only kind of evidence of a breach in fiduciary duty. Schooler said of the plaintiffs "their admissions doom that at every turn."

With regard to former JACC Executive Director "Delta," Schooler said "legally, his claim can't succeed" and pointed to the "eleventh hour circumstances regarding the production of the contract." Even the former JACC Chair E.B. Brown didn't know about the contract.

"(Delta's) conduct, in and of itself, was cause for termination," Schooler said. Except he actually said the name of the Executive Director in question. There's more I could say, but I won't.

Schooler brought up the "Rule 11 request," which involves a rule pertaining to frivolous, baseless lawsuits. Schooler said a "safe harbor" letter had been served, but claims had not been withdrawn.

Then, to my amazement, Schooler began buttering up the plaintiff lawyer, calling her a "skilled attorney" and complimenting the alma mater which had spewed her forth into our world, blechhhhhhhhhhhhh!

"THAT SAID," Schooler said. "Being an aggressive advocate is not enough." Schooler alluded to the fatal weaknesses of the case which had been filed, but said in spite of that he was making no request to sanction the plaintiff attorney. But somebody, Schooler said, needs to be held accountable for the lawsuit. Who did Schooler blame? Delta and Ben Myers. They are the ones who should be sanctioned, he said. 

Of course, sitting there and observing, I found Schooler too clever by half. He may not be asking directly for sanctions against Alpha but, hey, the Rule 11 letter has been served. If the judge decided to sanction Alpha, would Schooler stand there and weep, crying, "Oh, no, not my friend the plaintiff attorney!" I doubt it. I really doubt it. At the end of the day, Schooler may have to hang out in the same courthouse as the plaintiff attorney, and it may be convenient and polite to avoid asking directly for sanctions against the plaintiff attorney...

But the judge who has endured this nonsense for month after month may have different ideas.

Schooler was finished. The judge asked the the other defense attorney if he had anything to add. Judge Porter didn't ask any questions of Schooler. It was kind of like, well, fine. There was no examination, no grilling to savory perfection like a steak served to Jim Wentzell, no questioning. Schooler's assertions appeared to stand at face value. Now it was "Alpha" the plaintiff attorney's turn.

Alpha stood to speak, saying she was here today for a motion on summary judgement. She said it "seems inappropriate to hear they're moving to dismiss JACC." She asserted there was "confusion in the defense camp."

(JNS editorial comment: confusion there may be over this worthless lawsuit, but whose FAULT is it?)

Alpha pointed out E.B. Brown had no personal knowledge of the Delta employment contract "because she was not on the board at the time of the contract."

(JNS editorial comment: geez, this almost sounds like an admission E.B. Brown wasn't a terribly informed member of the board, despite being the chair. I mean, wouldn't a chair make it her business to scrutinize the employment contract of the Executive Director? I'd think so)

Moving quickly to the topic of the Rule 11 letter, Alpha said "a warning letter is not a motion for Rule 11."

Now breaking in to ask questions--something he had NOT done while Schooler was speaking--Judge Porter asked, "What is left to try?" Alpha tried to point to some disputed facts. Porter said there was "a dispute about disputed facts."

At this point, a very interesting discussion came up about what, exactly, is a trial. To individuals who were in the court room for 9 days, watching testimony and cross examination, it sure looked like a trial. But, listening to Alpha, it seemed to be her position a trial had not yet taken place.

Judge Porter said, "I have the evidence...whatever it is" about the Delta contract.

Alpha said she apologized for the "confusing way I came into this." Judge Porter asked, "What do you want me to do about the (Delta) contract?" Except he actually said the name of the Executive Director in question. And then Judge Porter said more: for what should the defendants be punished?

"Insider trading or fees or what?" asked Porter.

Alpha conceded Porter had asked a legitimate question. She thought the board members should "have to make payments on the checks." Turning to Kip Browne, I whispered, "What checks does she mean? Would that be the checks for paying rent and the light bill?" Kip said he didn't know.

Alpha pointed out she was no longer asking to have the Myers board reinstated and had "stopped short of asking for a dissolution." Porter said, "They had the opportunity to seek re-election. It may not have been the most productive..."

Porter's voice trailed off, leaving us to think about how "productive" it would have been for Myers to actually run again for the board instead of filing a lawsuit. Alpha said she wanted some kind of "consequences" for the "usurping." She complained there had been "attempts to turn this on its head" and make it look like the plaintiffs are in the wrong. The wounded tone of her voice seemed to suggest defendants are not playing fair when they defend themselves or, worse yet, by their actions reveal to the plaintiff attorney that she wasn't representing the kind of people she initially THOUGHT she was representing.

Now Alpha said she wanted "modest consequences," something that might be "training, in effect," and reimbursement for checks issued. (For paying the light bill, I presume, though it's not clear) There was talk about how a plan for transition had not been followed after the board election.

Porter broke in to ask, "Isn't keeping the past chair as vice chair the transition plan?" Alpha said it's the only one in the bylaws, and she said what matters is "institutional knowledge." One can't help but wonder where paying the light bill fits in with this institutional knowledge. She complained about the accountant being fired by the new board.

"Did the accountant know about the (Delta) contract?" Porter asked. The judge inquired where, specifically, the notion of plaintiff damages should be directed. Then Judge Porter allowed defense attorney Schooler to speak more, once again without grilling or interruption.

Schooler pointed out the undisputed evidence was "the finances were in disarray. The checkbook was gone. There was an emergency meeting. (Ben) Myers said he did not have it (the checkbook) but he was USING it." Once the new board "got their hands on the finances they did all they could to keep the ship from sinking and keep the lights on."

Now, Schooler said, "speaking on behalf of Kip Browne," the new board is "spending money better, funding first time home buyers instead of (blowing all the money on) admin expenses." The facts here, Schooler said, don't justify a trial. In regard to Delta's employment contract, he said "(Delta's) admissions and the language of the contract doom (Delta)."

In regard to Rule 11 sanctions, Schooler said (and it was enticing to hear) "Vexatious, bad faith litigation may require a separate motion besides Rule 11."

Exhaling, Judge Porter said he'd have an answer in a couple weeks. And then something odd happened, and it may require a separate blog post. There was a tangential post-hearing discussion about technological improvements to the court room. In fact, this discussion went on for about 20 minutes as all in the court room remained in "all rise" mode for the judge, and the discussion was actually quite informative, with spontaneous contributions from individuals present in the court room such as the ubiquitous "Ollie the Norwegian" who hangs out all day in the law library and knows everything going on in the court room. 

And so the hearing--as interesting as the end may have been--went on a bit longer. It was just another day of (suspected) vexatious bad faith litigation for the much-put-upon neighborhood association board of Jordan, with hardly anybody in the gallery--nobody at all on the plaintiff side except their attorney--myself, Kip and a second year law student on the defendant side.

Thus the New versus Old Majority lawsuit crept toward conclusion, with the Old Majority not even bothering to show up at their own legal funeral, and the plaintiff attorney there like a sad lone pall bearer dressed in robin's egg blue.


Pond-dragon said...

Just to let guys like you and Kip know, yes there are neighbors out here that do appreciate the time effort and professional resources that you gents put into this.

Johnny Northside! said...

The reason Jill Clark was not named in this coverage involved the lawsuit she filed against me on behalf of Jerry Moore, now resolved in my favor.

By the way the Beltless Beta Male was none other than Thomas Evenstad, the notorious Chat Line Rapist.