Takeback 2 --- Freeland vs. Bradley
et
al. litigation update
(note: if you are unfamiliar
with the events leading up to this litigation, you are encouraged to
visit our home
page to learn the particulars)
On 7 March 2007,
having exhausted all internal avenues to find redress in this matter,
KPFT LSB member Ken Freeland, the latest person to be banned from KPFT
by general manager Duane Bradley, filed a petition with the 280th
District (State) Court of Harris County Texas. The petition seeks
:
1) A temporary restraining order against
the banning of LSB member Plaintiff Freeland from KPFT property by
general manager Duane Bradley
2) A temporary and permanent injunction
against such banning of Plaintiff Freeland from KPFT property
3) Unspecified damages from KPFT general
manager Duane Bradley, KPFT local elections supervisor Tucker Bradley,
and Pacifica national elections supervisor Lester Radke for conspiring
to defame Plaintiff Freeland by their shared false allegation that he
assaulted Tucker Bradley, in an unsuccessful effort to prevent his
reelection to the KPFT LSB, and in a successful effort to prevent his
reelection to the National Board of the Pacifica
Foundation, not to mention the continuing ban of Freeland from the
premises of KPFT on the basis of this false allegation, which has never
been subject to any due process or credible investigation.
The final draft of this petition may be read here.
The court did not grant the request for temporary restraining
order, but set a hearing for 30
March 2007 at which cause must be shown why the requested
injunctive relieve should not be granted plaintiff Freeland
(i.e., of the ban).
Prior to this 30 March hearing date two other Houston peace
activists who
had voted for Ken Freeland in the LSB election joined the lawsuit as
"intervenors," arguing that their rights as Foundation members were
infringed by the arbitrary banning of Ken Freeland from the
station, since he could not fully represent them without access to the
station, where, among other things, KPFT LSB committee meetings are
often held. These two activists are Robert Graham and Bob
Carter. You can read a draft of
Robert Graham's petition in intervention here (Bob Carter's is
identical).
KPFT LSB member Mike Martin decided to legally represent the
defendants in this case. This presents a number of legal problems
(conflicts of interest) given his need to represent the listeners
of KPFT, while going to trial in opposition to the expressed interests
of several of them. Ken Freeland sent an OPEN LETTER TO THE
NATIONAL BOARD expressing his concern about this clear conflict of
interest, but typically it did not receive an answer. You can
view this OPEN LETTER TO THE PNB by clicking
here.
Prior to the 30 March hearing,
attorney Mike Martin issued his response to the Plaintiff's
Petition. This consisted for the most part of a number of
groundless motions to dismiss the case. Each and every one of
these was overruled by the Judge, Tony Lindsay, without any need of
argument by Plaintiff. In addition, Mike Martin threw in
for good measure a "plea in abatement, " in which this LSB member,
under the supervision of Pacifica Legal Counsel Dan Siegel, attempted
to force Plaintiff to have to sue the Pacifica Foundation in order to
pursue his case. The Plaintiff had carefully avoided naming the
Foundation as a party to this suit, as he is a fiduciary agent of the
Foundation, and did not wish to expose it to financial harm, believing
that the malicious actions of the defendants was not undertaken with
any regard for the Foundation and its purposes. You can
view the document containing Defendants" intitial response and all
these overruled motions, but
you will need to advance the .pdf reader to page 30 to read the
relevant text.
Click here.
The Show Cause hearing on 30 March proceeded apace, but
was not concluded. The Judge issued a postponement till 5 April the following week for
its conclusion. Ken Freeland published a summary report of the
hearing to various Pacifica listserves that is reproduced here.
On the eve of the hearing continuation date, 3 April, Mike Martin, Counsel
for the Defendants, removed the case to Federal Court. His
arguments can be found on pp. 1-5 of the Notice
of Removal. Essentially, Martin argues that since Plaintiff
alleges his constitutional rights have been infringed by defendants,
the matter is a "federal question" that must be decided in a
Federal court, in addition to a number of side issues.
Before Plaintiff could consult legally and prepare a response to
the question of removal, Mr. Martin introduced to the Federal court the
exact same motions for dismissal that had already been overruled by the
lower court.. You can view these here.
After legal consultation and consulation with the Intervenors,
Plaintiff Freeland sent to the Federal court a request for remand,
which means a request that the case be returned to the lower court for
adjudication. Esssentilally, he argued that the question of
violation of his constitutional liberties as a result of his arbitrary
ban from KPFT was tangential rather then essential to the case, and
that the State Court was competent to determine whether the actual
charges of defamation and conspiracy were valid. You may view this motion here.
The U.S. Disctrict Court Judge has scheduled a pretrial conference
for 23 April 2007 during which the question of the proper
jurisdiction for this case is expected to be settled.
On 23 April 2007 the pretrial conference was held
by Judge Lynn Hughes. Present were Plaintiff Ken Freeland,
Intervenors Robert Graham and Bob Carter, Defense Attorney Mike
Martin and attorney Muffie Moroney, supporting the
Defense. This conference consisted largely of
questions asked by the Judge to the parties, mostly to
Plaintiff. It emerged in the course of this conference that
Plaintiff's motions for remand and for a temprorary restraining order
against his banning from the station were overruled. The Judge
seemed convinced that there were indeed federal questions at stake that
were pertinent to the case. The Judge pressed the Intervenors to
state whether or not they were "litigants." Unclear on the concept, the
Intervenors deferred answering. Judge Hughes then set 27 April 2007 as the deadline for Defense
Attorney Mike Martin to reintroduce
his motion for dismissal, and 4 May 2007 as the deadline for
Plaintiff to respond to the motion.
On 27 April 2007
Defense Attorney Mike Martin submitted his motion for dismissal
(Motion for Judgment as a Matter of Law). You may view this motion here.
On 4 May 2007, Plaintiff Ken Freeland submitted his Response to
Defendants' Motion for Judgment as a Matter of Law. You may view a draft of this response here.
Also on this date, Intervenors Robert Graham
and Bob Carter issued statements to the court
reconfirming their status as Intervenors. You may read drafts
of their statements by clicking on their names above.
In related developments, on 17 April 2007 the KPFT LSB
Management Selection and Review Committee approved by majority vote a
motion to go into executive session made by Richard Uzzell, with no
specific purpose for the session being part of the motion. They
emerged from this executive session with the following resolution,
passed by majority vote:
I move to restrict all parties
involved in the Freeland lawsuit
against management from MSRC meetings at least until the suit is
settled. To be specific, litigants Ken Freeland and Robert Graham,
as well as Mike Martin who serves as counsel to management, should be
prohibited attendance and participation in MSRC meetings. Parties
of this lawsuit should not be allowed to make oversight judgments
regarding management performance nor should they have access to
sensitive information regarding management's performance.
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