Free Speech Loses in Texas (SLAPP laws needed)--
Just in from http://www.fortbendnow.com on the SLAPP suit filed by SJD/JDC:
Spat Over Apartments Could Impact Free Speech On The Web
by Bob Dunn, Oct 24, 06:29 pm
It seemed an unlikely hinge upon which Texans’ constitutional right to anonymous free speech might swing:
How many apartment units should the developers of Sienna Plantation be allowed to build, and where should they be located?
A disagreement over the answers to that question began boiling over in public a few months ago. Missouri City Council meetings regularly featured speakers railing over the building of apartments in Missouri City and nearby communities.
Mayor Allen Owen took heat after a deal was reached to relocate a planned group of apartments, to the dissatisfaction of a group of area residents.
In July, for instance, Sienna resident Chris Calvin spoke at a council meeting and said he’d obtained Mayor Owen’s list of campaign contributions, and that more than half of them came from developers. Among the largest contributors, Calvin said, was Larry Johnson, President of Johnson Development Corp. and Sienna Plantation’s developer.
Owen took issue, telling the Fort Bend Star after the meeting that “my vote has never been for sale, nor have I catered to anybody who made contributions to me.”
Thorn in the side
A self-described thorn in the side of the Sienna Plantation’s developers, Calvin heads what he says has become a consumer watchdog group – the Committee for Responsible Development – which he said once had 37 members but whose numbers have since dwindled.
Calvin said his motivation came in part from disenfranchisement. Sienna Plantation is outside Missouri City limits, so residents have no vote in city affairs. And, he said, the only voting members of the Sienna Plantation property owners association are appointed by the developer.
“We are not trying to hurt home sales,” he said. “We just want representation in what’s going on.”
Calvin didn’t limit his discourse to council meetings. He and other area residents discussed the apartments and various Sienna Plantation issues on Internet web site forums. One of those, run by Sienna resident Matthew Feinberg, operated on the domain siennatalk.com.
Officials at Sienna/Johnson Development, L.P., which holds a trademark for “Sienna” and “Sienna Plantation,” took notice.
To Calvin, it marked an attempt by Sienna/Johnson “to shut us up.”
In a July 19 missive to the Missouri City Council, Johnson Development Corp. Senior Vice President Douglas Goff said that assertion was incorrect. “Sienna/Johnson did not ask Mr. Feinberg to shut down his discussion forum, but only to stop using the Sienna and Sienna Plantation marks,” he said.
Substantial misunderstanding
Goff sent his message to the council in response to an anonymous email, also sent to members of council and to Larry Johnson of Johnson Development. The email, signed CRD, “reflects a substantial misunderstanding of the facts and makes several erroneous statements,” Goff said.
The email in question contended that Johnson Development Co. was trying to shut down mocitytalk.com, the new web home of Feinberg’s forums, opened after Sienna/Johnson informed him of the trademark issue involving siennatalk.com.
“They are now trying to force the site administrator into turning the domain names over to them,” the email states. “This obviously is not allowing free speech or open communications between residents here in Sienna.”
But it was another anonymous communication, posted under the pseudonym NextDoor on mocitytalk.com, also on July 19, that really drew Sienna/Johnson’s attention.
“You do not have the rights to Sienna Plantation – it is the name of a place. You would be shutting down all the other small businesses that use that name not just this site,” the post said. “So what, we changed the name now get off and leave us alone. So Matt doesn’t want to hand over the domain names – pay him for them at the price he wants just like you did the mayor and council that you are addressing in your post.”
Anticipation of a lawsuit
That post became part of the court records in a case Sienna/Johnson filed 15 days later in Fort Bend County District Court, in which it sought to depose Chris Calvin and Matthew Feinberg in anticipation of a defamation and business disparagement lawsuit “in which the Petitioner may be a party.”
In its petition to take depositions from Calvin and Feinberg, Sienna/Johnson said it and its employees “have been the subjects of false and disparaging statements, including malicious accusations of criminal conduct,” made anonymously on Feinberg’s web sites.
As its sole example of such disparagement, the petition seems to refer to the July 19 post by NextDoor: “For example, recently under the name “nextdoorneighbor” a message was posted that indicated Petitioner has made “pay-offs” to the mayor of Missouri City and Missouri City council members. Petitioner is informed that deponent Chris Calvin makes posting under the screen name “nextdoorneighbor.”
The petition also said Sienna/Johnson believed Calvin repeatedly posted on Feinberg’s web sites using multiple pseudonyms “to create the impression that large numbers of residents of Sienna Plantation and Missouri City oppose further development by Petitioner, and thereby affect Petitioner’s economic interest.”
Identification of users
Among other things, the petition asked that Feinberg produce “all documents concerning the identities and IP addresses for the registered users” of Feinberg’s web sites, including “CRD,” “responsible_dvlpmnt,” “BuddyJ,” “Mike,” “JaneL,” “starbuck,” “Jim_Calhoun,” “Bill_Crane,” “twinstuff2,” “nextdoor,” “nextdoorneighbor,” “sundaysiennasurfer,” “sss,” and “donny12.”
Eventually, the notion of a Texas court helping a private business learn the identities of anonymous web forum members attracted significant legal attention, including the American Civil Liberties Union Foundation of Texas.
Feinberg’s attorneys sought to have Sienna/Johnson’s petition quashed, but their motion was denied by Fort Bend County District Court Associate Judge Pedro Ruiz.
Ruiz did, however, grant a protective order stating, among other things, that identities of users of siennatalk.com and mocitytalk.com be considered confidential and would be disclosed only to attorneys in the case “as well as secretaries, paralegals, law clerks and support staff of those attorneys” and also the parties in the case and their partners and employees.
Ruiz’s ruling set off a flurry of activity by Feinberg’s attorneys in an attempt to head off the depositions, including a Notice of Appeal and Request For Hearing and Emergency Request for Stay of Orders, brought to court Oct. 17 just before the depositions were scheduled to take place.
Right to anonymous speech
“This matter raises an important issue of first impression to Texas jurisprudence,” Feinberg attorney Laura Hermer said in the 35-page notice. “To what extent does Texas protect its citizens’ First Amendment right to anonymous speech on the Internet…?”
As if in answer to that question, Ruiz denied Feinberg’s attorneys an extension of time to file the notice of appeal. And in an early-morning, Ruiz denied a stay of the depositions.
They took place as scheduled, and their full transcripts have not been made part of the public record, in keeping with the court’s protective order.
However, anyone who posted comments critical of Sienna Plantation on Feinberg’s web sites with the expectation of doing so anonymously has had his or her expectations dashed.
Douglas Goff and Chad Johnson of Johnson Development Corp. were present at the depositions, said Sienna/Johnson attorney John Keville, of Howrey LLP.
Among other things, the depositions clarified the issue of whether there really were a large number of people writing anonymous posts on Feinberg’s web sites about Sienna Plantation, Keville said.
“I think it’s fair to say that a lot of the identities were Mr. Calvin,” he added.
Calvin said the legal action by Sienna/Johnson is consistent with what have become known as SLAPPs – strategic lawsuits against public participation.
Keville insists otherwise.
“That’s absolutely not true,” Keville said. “Feinberg was never forced to shut down the web site. This was never about suppressing free speech.”
What to do next
However, he added, “when you cross the line into defamation, that’s another thing.”
As for the court case, Keville said he and his client are discussing what, if anything, to do next.
“We always said we never intended to file suit against Matthew Feinberg, and that still holds true,” Keville said. He would not extend that statement to Calvin.
“I know I’m the target,” Calvin said. “I think they’re trying to divert our political campaign. “We’re trying to get a candidate to run against the mayor.”
David Broiles, meanwhile, a cooperative attorney with the Texas ACLU who assisted in Feinberg’s case, said he and Feinberg’s other lawyers also are discussing what to do next. One possibility would be to seek an order that the depositions be sealed.
Gathering anonymously to talk on a web site forum “is a way of assembling” and a form of free speech protected under the Constitution, Broiles said. And if a court is being asked to compel people to divulge identities of people who have been accused of no wrong-doing, “we want to stop it.”
In Feinberg’s case, however, Broiles acknowledges that didn’t happen.
“It’s certainly a loss to this point,” he said. “We have certainly not prevailed.”
posted by responsible_dvlpmnt at Tuesday, October 25, 2005
51 Comments:
It looks like John is making some comments in this article that may breach the protective order. He fails to mention the 270 registered users of the old http://www.MissouriCityTalk.com website, most of which were not Calvin, Feinberg or anyone else. They were Sienna homeowners participating in what neighbors do--public discussion in the neighborhood.
When are you all going to file your counter-suit???
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Sounds like the kinda tort reform needed should include this type of case.
I read where Bush senior endorses anti-SLAPP statutes but apparently his son has been involved with using them during earlier elections.
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I wouldn't worry too much about it the publicity has taken its toll and I would suggest that there are no winners in this.
you can't file counter suit when there is no suit. SJD lawyers are using a loophole in the civil code that allow depos in pre-suit actions. Check the 202 section of the civil code. You don't need to sue to drag people into court.
Should they file a pre-emptive suit then? Would such a suit act as a deterent to future action by such corporate insterests and misuse of the system?
From the Hearld-Coaster (http://www.herald-coaster.com/articles/2005/10/25/news/news01.txt):
Perry signs property rights law
By B.J. Pollock Tuesday, October 25, 2005 1:00 PM CDT
Gov. Rick Perry's ceremonial signing of the eminent domain bill Monday in Waco didn't get a positive reaction from his rival for his 2006 reelection, Republican Comptroller Carole Keeton Strayhorn, or from Richmond resident and private property rights activist Jack Myska.
Strayhorn accused Perry of grandstanding and said the bill is filled with loopholes, and Myska concurred.
"I agree with her wholeheartedly," Myska said Tuesday morning, adding he has not yet read the bill thoroughly.
Perry officially signed the law into effect on Sept. 1, but the ceremonial signing was postponed due to hurricanes Rita and Katrina. He said Monday the bill will ‘‘close a door the Supreme Court jarred open.''....
How many appeals did this thing go through and have you all thought about moving it to a U.S. court?
Here's some more:
The trouble with law is lawyers.
Clarence Darrow
I don't want to know what the law is, I want to know who the judge is.
Roy Cohn
To some lawyers all facts are created equal.
Felix Frankfurter
In America, anybody can be president. That's one of the risks you take.
Adlai E. Stevenson
A few posts above. "Should they file a pre-emptive suit then? Would such a suit act as a deterent to future action by such corporate insterests and misuse of the system?"
From what I have been reading Matthew Feinberg is not a rich individual. Something about his wife being home sick or on bed rest due to a problem pregnancy. Who is going to pay the laywers to file a suit and on what basis?
It would be nice to see some real justice out of this.
What's that anyway? I like the jokes though.
Sounds like they are taking advantage of those with shallow pockets.
I found this direct link to those giving to Mayor Owen from the article above. I think it mentions the ethics complaint filed with the city over the summer:
http://www.missouricitytalk.com/modules.php?op=modload&name=News&file=article&sid=55&mode=thread&order=0&thold=0
Check this article out and ask do special interests at the state and local level have too much influence:
House to review who pays Texas lobbyists
Committees will look at use of state tax dollars to sway legislation
By JANET ELLIOTT
Copyright 2005 Houston Chronicle Austin Bureau
AUSTIN - House Speaker Tom Craddick wants two House committees to investigate the use by local governments and school boards of taxpayer money to lobby the Legislature.
Craddick blamed the education lobby for killing school finance bills that were proposed during this year's regular and two special sessions. He also criticized cities and counties for successfully fighting legislation to lower the cap on property appraisals.
The speaker last week announced the subjects that he wants House committees to study in advance of the 2007 legislative session.
He also charged the Public Education Committee with studying the controversial subject of vouchers by looking at "the impact of successful school choice programs on students, parents and teachers."
Craddick is a longtime supporter of a pilot program to allow families to use taxpayer-funded vouchers to attend private schools. The House killed a voucher bill earlier this year.
The Public Education and General Investigating committees will jointly conduct the review of lobbying.
Groups representing school superintendents and teachers were solidly opposed to school finance bills proposed by the House leadership. They said the legislation provided inadequate funding and intruded on local control.
Gov. Rick Perry, angry about the opposition, in August ordered school districts to disclose funds provided to any person or organization for lobbying or consulting.
Likewise, advocates for lower taxes were outraged that associations representing cities and counties paid lobbyists to fight legislation that would limit how much money local governments can raise from property taxes.
Peggy Venable, director of the 27,000-member Americans for Prosperity-Texas, welcomed the review.
"Currently, taxpayer dollars are often being used to hire lobbyists that lobby against taxpayer interests. We would like to see a prohibition against taxpayer-funded lobbying," she said.
Venable said her group conservatively estimated public entities spent $30 million on lobbyists during the past legislative session.
Rep. Ken Paxton, vice chairman of the General Investigating Committee, said he suggested the review after being "inundated by government lobbyists" during the 2005 session.
"I wondered what kind of money was being spent and what taxpayers would think about it if they had the appropriate information," said Paxton, R-McKinney. "Taxpayers may be satisfied with the level of money being used."
Donald Lee, executive director of the Texas Conference of Urban Counties, said he thinks the study could help show that the lobbying efforts benefit taxpayers. He said his association, which counts Harris County as a member, works to show the impact of legislative proposals on local governments.
"The public expects our different levels of government to talk to each other and work together," Lee said.
janet.elliott@chron.com
RESOURCES
ADDITIONAL HOUSE REVIEWS
Some other assignments:
Appropriations Committee: To study spending limits and ways to control growth in state government.
Corrections Committee: To review probation reforms including graduated sanctions and specialized courts for reducing revocations and recidivism.
Environmental Regulation Committee: To examine whether the State Implementation Fund is bringing Houston and other areas with heavy air pollution closer to federal requirements. The committee also will consider ways to streamline the process of granting pollution permits.
http://www.chron.com/cs/CDA/printstory.mpl/metropolitan/3408440
It would seem to me that from what I've read the "customer contempt" feeling so prevalent in American business is working over-time in this community. This might even be extended as the tone for our local government. The motto "just shut up and give us your money" comes to mind (taxes, fees, other) ...
i'll share more as I think these up. . . ;-)
Here's a good one!
Q. Why are scientists now using lawyers in laboratory experiments instead of rats?
A. Three reasons: 1) lawyers are more plentiful than rats; 2) there is no danger the scientists will become attached to the lawyers; and 3) there are some things rats just won't do.
(Mind you, the scientists are finding it difficult to extrapolate the results of the experiments to human beings.). . . ;-)
Don't go against the marketing/pr crowd and speak your mind is the message we're getting from this.
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ck this one out:
A doctor and a lawyer were attending a cocktail party when the doctor was approached by a man who asked advice on how to handle his ulcer. The doctor mumbled some medical advice, then turned to the lawyer and asked, "How do you handle the situation when you are asked for advice during a social function?"
"Just send an account for such advice" replied the lawyer.
On the next morning the doctor arrived at his surgery and issued the ulcer-stricken man a $50 account. That afternoon he received a $100 account from the lawyer.
Did anyone ever see the results to the swim survey on Siennanet.com they promised?
This is Doug's op/ed. piece in response to the article which appeared last week from FortBendNow.com (he's actually responding to the comments following the article):
Letters to the Editor
Sienna/Johnson: Getting At The Truth Behind Mr. Calvin
In reviewing some of the comments made in the article “Spat Over Apartments Could Impact Free Speech On The Web” that is posted on FortBendNow, Sienna/Johnson Development (“SJD”) thought it would be useful to again summarize the facts about this issue and to present the truth about what has, and has not, happened.
First, SJD did not sue anybody. The legal proceeding we instituted asked the Fort Bend County District Court to allow SJD to take two depositions, that of Mr. Chris Calvin and Mr. Matthew Feinberg. The purpose of these depositions was twofold: (1) to determine whether Mr. Calvin made defamatory statements under fictitious screen name aliases on websites administered by Mr. Feinberg, and (2) to determine if Mr. Calvin was masquerading as many different people and whether he clicked on his postings possibly hundreds or thousands of times to create the appearance of great community interest in his agenda.
Next, we want to be very clear about a few things;
1. SJD does not now, nor ever has, wanted the names of innocent users of the Siennatalk or MissouriCitytalk websites disclosed. We just wanted to get the truth behind Mr. Calvin’s fictitious aliases, and to find out if Mr. Calvin had any facts to back up his accusations.
2. SJD has never intended to limit Free Speech rights of anyone. However, the right to Free Speech does not include the right to defame others, and it does not, in our opinion, include the right to deceive the public.
3. The alleged escalation of legal costs was not caused by SJD, but by the attorneys representing Mr. Calvin and Mr. Feinberg. Mr. Feinberg was represented by the ACLU and they repeatedly filed motions against the depositions going forward in three different courts including the Texas Court of Appeals. Ultimately, all three courts have rejected the legal claims presented by Mr. Calvin, Mr. Feinberg and the ACLU. If Free Speech rights were truly an issue here, then at least one of the courts would likely have agreed with them and the ACLU. But to say in some of the comments following the story that the Free Speech rights of Sienna Plantation residents are in jeopardy is ludicrous and Mr. Calvin knows this.
When the legal dust settled, the two depositions occurred routinely and produced the following results:
1. Mr. Calvin admitted under oath that he had used at least 30 different fictitious aliases on the Siennatalk and MissouriCitytalk websites and that he had repeatedly clicked on his postings. In fact, one website “discussion” appeared to include back-and-forth postings between nineteen users of the website when, in fact, at least 15 out of the 19 message posters were actually aliases of Mr. Calvin. By doing this, Mr. Calvin gave the false impression that the views he was espousing – some of which involved unfounded accusations of wrongdoing – were shared by a large number of Sienna Plantation residents, when, in fact, most of it was coming from him. While SJD has no issue with truthful discussions and/or criticism about the company or the community, it will not stand idly by in the face of insinuations of wrongdoing, particularly when made under false aliases.
2. Mr. Calvin has admitted under oath that he does not have now, nor has he ever had, any evidence of wrongful conduct on the part of SJD, its partners, Johnson Development or any of its employees.
3. Mr. Calvin has admitted under oath that he has no evidence that SJD, its partners, Johnson Development or any of its employees (a) made anything other than lawful and proper campaign contributions to any official of Missouri City or (b) that SJD received any favors from any Missouri City official in return for campaign contributions.
4. Mr. Calvin admitted under oath that he signed a Notice to Lot Buyers several months prior to the purchase of his lot in The Woods and that he was aware that SJD had the right to build multifamily housing (apartments) and commercial/retail development in Sienna Plantation. He further admitted that he had ample opportunity to investigate these issues before the construction of his home if they were of such a concern to him.
5. Mr. Calvin admitted under oath that he was notified of the existence of a homeowners association in Sienna and that he had ample time to investigate the manner in which it is operated and specifically, the fact that members of the Board of Directors are appointed by the Declarant (SJD) until such time as a majority of homes in the community have been sold.
In light of the information provided in the two depositions, SJD is now deciding whether to sue Mr. Calvin for damages and reiterates that we do not intend to sue Mr. Feinberg. SJD encourages residents of Sienna Plantation and other area citizens to contact us directly if you have any further questions. We will be happy to explain the truth about what has transpired and are always available to discuss issues of concern about the community. We just prefer to do it with real people, not an Internet imposter who twists the facts to suit his hidden agenda.
W. Douglas Goff
Senior Vice President & Director of Land Development
The Johnson Development Corp.
Houston
---I have one question for him--Which century does he take his management style from?
Anyone wishing to watch or listen to the community response to the JDC/SJD apartment issue can get the streaming video at several different meetings. Try these for starters and listen to the community reaction to this proposal at these packed house sessions (scroll to 8a on both):
http://www.ci.mocity.tx.us/streamfiles/2005_video/050221/050221.htm
http://www.ci.mocity.tx.us/streamfiles/2005_video/050207/050207.htm
If Mr. Goff really never wanted to limit free speach then why did he drag Mr. Feinberg in to the courts if they never intended on suing him? I think Mr. Goff and SJD needs to help heal the damage they have done to the community. I suggest that they invite Mr. Feinberg to reopen his site and allow everyone else (the couple hundred other registered users) to freely communicate without fear of being sued for "disagreeing" with the builder.
There goes Mr. Goff spinning the truth again! He claims to had no reason to bring Matthew Feinberg into the courts. They obviously wanted to cause a chilling of speech in the community.
The ACLU must have had a good reason to get involved. Anonymous free speech is a right we have afforded to us by the US constitution!. Mr. Goff may not believe in these rights but many others do.
I think Goff owes Matthew Feinberg an apology for dragging his family into the courts.
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Hello,
Naturally the developer has some "special" privilege to share information from the court protected depositions? We won't violate the court protective order but we will respond to some of the misinterpretations of the 400-500 pages of transcript taken.
Some clarification first:
-The deposition used in this case by JDC/SJD attorney John Keville and Doug's subsequent interpretation of it is based on his opinion of the findings and not a courts or juries. He is attempting to base his limited claims on several hundred pages of testimony--which may be inaccurate and certainly based on his OPINION of the transcript--NOT fact. Remember this deposition was rather one-sided, expensive and brought by the SJD/JDC crowd and does not allow other witnesses or cross-examination by the target/defendant (which is still unnamed at this juncture of PRE-TRIAL discovery). Dr. Calvin was named as a witness on this documentation (which seems, IMO, to conflict with statements in Doug's editorial too).
-This case is a template borrowed from SLAPP cases which have been used by many developers around the country to silence groups (punish them) and individuals engaged in public debate (such as land use issues). See the research on this previously posted here.--The most common claim by developers in these cases is DEFAMATION/DISPARAGEMENT.--The intent is to "CHILL" the community (silence them).--It's a high stakes game but the developers in these cases, that aren't settled early, usually lose (as high as 80%).--Many states and the U.S. courts have anti-SLAPP statutes, however TX does not (defeated 4 times by the developer PAC lobby in Austin). The purpose for the corporation filing the SLAPP is to inflict maximum financial harm on the target (which IMHO appears to have already happened in this case $20-25K in two months).
- The following claim by Doug (as a representative of SJD/JDC) is another example of misinformation on the part of the Goff editorial:
"3. The alleged escalation of legal costs was not caused by SJD, but by the attorneys representing Mr. Calvin and Mr. Feinberg. Mr. Feinberg was represented by the ACLU and they repeatedly filed motions against the depositions going forward in three different courts including the Texas Court of Appeals. Ultimately, all three courts have rejected the legal claims presented by Mr. Calvin, Mr. Feinberg and the ACLU. If Free Speech rights were truly an issue here, then at least one of the courts would likely have agreed with them and the ACLU. But to say in some of the comments following the story that the Free Speech rights of Sienna Plantation residents are in jeopardy is ludicrous and Mr. Calvin knows this."
The statement above from the OPINION piece offered by Doug states several erroneous claims. First the appeals were filed by Ms. Hermer (Feinberg's attorney) and the constitutional experts, not Jeff Singer, Dr. Calvin's attorney.--error1
Error2--IMO the final court appeal ruled that since the depositions had already taken place that the arguments were moot (Ruiz did not allow an extension for the last appeal to be effective). So the case was sent back to the court of origin (Ruiz's ct.). This is not a victory for Doug's attorney or a ruling against free speech as implied above. The judge (from the same state district as the other appeals--and ct of origin) simply stated the depositions had passed.
-As anyone knows who follows SLAPP cases keeping the deposition fishing expedition from happening is crucial to keeping these cases from getting dragged into, what experts call, "fact quagmire" (arguing over each statement made and its intent). According to the research when depositions have been allowed the financial damage to the target/targets and the length of these trials extends quite a bit. In most states with anti-SLAPP statutes these cases are thrown out before deposition (which institutes the primary financial harm/punishment in pretrail).
If these facts above are misleading then how many of the other ones in the editorial are too. --More fact quagmire probably. . . . ;)
--CRD
**If you'd like our opinion on this or other area concerns then please e-mail us at responsible_dvlpmnt@yahoo.com and we encourage you to speak out on issues that concern you!
An airliner was having engine trouble, and the pilot instructed the cabin crew to have the passengers take their seats and get prepared for an emergency landing.
A few minutes later, the pilot asked the flight attendants if everyone was buckled in and ready.
"All set back here, Captain," came the reply, "except one lawyer who is still going around passing out business cards."
Ck this article out. Isn't the EDC here the crowd that pushes so hard and supports so many of our developer's politicians and interests?
Voters should reject attempt to abolish EDC
By Michael Morris
The Facts
Published October 27, 2005
Supporters of a ballot initiative to dissolve the Freeport Economic Development Corp. say the measure is not about what the corporation has done in the past, but what it might do in the future. Yet it is for that very reason — the future viability of the Freeport economy — that the city’s voters should vote “no” on the referendum and keep the corporation in existence.
The drive to dissolve the EDC was borne of the ongoing dispute between Wright Gore III and Western Seafood and the city over plans to develop a marina on the Freeport waterfront, and its $6 million loan to the project’s developer being funneled through the EDC. The plans include not just boat slips, but an adjoining development that would include retail shops and restaurants. The city hopes the project spurs other developments, such as hotels, that would revitalize the city’s economy.
Holding up the plans, however, are 300-plus feet of Western seafood property the city says it needs to fully implement the project. The company sued the city to keep it from taking the land by eminent domain, and the lawsuit remains in the appeals process despite a U.S. Supreme Court ruling this year that clears the way for Freeport to buy the property against the company’s will.
After the high court’s ruling, Gore and the group he organized, Citizens for Freeport, launched a petition drive to put the fate of the Economic Development Corp. before voters. The successful effort resulted in the ballot referendum voters will decide in the Nov. 8 election.
The problem with the drive and resulting election is that dissolving the corporation will not stop the marina plans. The marina will go forward regardless of the outcome of the vote. Voting to dissolve the EDC now also will not end its existence until at least 2018, when its financial obligations are paid off.
It also will have no effect on whether the city uses eminent domain to seize private property since it is City Council which has that authority, not the EDC.
All of which begs the question — what is to be gained by the end of the economic development corporation? From what we can tell, nothing. But there is much to be lost.
The corporation operates on about $450,000 a year collected by tacking an additional half-cent to the city’s sales tax rate, money specifically geared toward development projects. The added sales-tax collection was made possible when city voters approved creating the Economic Development Corp. in 2001. Without the EDC, the city cannot legally collect that extra half-cent.
That means projects such as the River Place community center about to open on the Old Brazos River might not have happened, since money from the EDC went toward that project. It means EDC-backed efforts to improve the city’s entranceway and appearance likely would end. Business recruitment efforts specifically tailored to the city would disappear as well, efforts which in the recent past have helped the city land retailers such as a new CVS pharmacy.
Advocates of getting rid of the EDC aren’t telling voters any of that, relying instead on disinformation to frighten residents into voting for something that would be extremely damaging to the city’s economic future. Gore and his backers might have legitimate complaints with the city over its marina plans, but their aim is off if they believe eliminating the EDC is the way to address them.
They, and every other city resident who opposes the marina, instead should vote “no” on the EDC referendum and then say the same thing when the project’s supporters on City Council come up for re-election. It is with that body their problems rest, as well as the ability to change them.
The continued existence of the Freeport Economic Development Corp. is a vital and necessary tool if Freeport hopes to have a viable future.
This editorial was written by Michael Morris, assistant managing editor of The Facts.
---
EARLY VOTING
EDC ELECTION
8 a.m.-5 p.m. weekdays at Freeport City Hall, 200 W. Second St.
COUNTYWIDE ISSUES
8 a.m.-5 p.m. weekdays through Nov. 2; 10 a.m.-3 p.m. Saturday; 7 a.m.- 7 p.m. Nov. 3-4.
Angleton: Brazoria County Courthouse West Annex, 451 N. Velasco, Room 144
Alvin: Alvin Library, 105 S. Gordon
Brazoria: Precinct 4 County Barn, 1001 Market St.
Clute: Centerpoint Energy Building, 202 Highway 332 W.
Manvel: Justice of the Peace Precinct 2, Place 1 courtroom, 30351 Highway 6
Pearland: Justice of the Peace Precinct 3, Place 2 courtroom, 3801 E. Pear
I wonder if Goff and his associates ever considered simply asking Dr. Calvin if he was the real "InterNet Imposter" making all those posts? Would it have really taken a court order to get that information or was there a mysterious ulterior motive--such as descrediting the "No More Apts" petition drive and saving their mayor???. . . :)
How can you punish someone publically unless you attempt to humiliate them and what better way than with a $20,000+ dollar pretrial experience like this.--Nothing like American justice..huh!
This is a bit off topic but here is a bizarre release from http://abclocal.go.com/ktrk/story?section=bizarre&id=3582441:
Dumb crooks wear name tags to rob bank where they're known
(10/28/05 - VAIL, CO) - Once upon a time, two guys from Down Under came to the swanky ski town of Vail, Colo. They soon fell in love with the town's rich lifestyle and decided they wanted to live the good life too. The quickest way to get rich? Rob the local bank, of course.
So that's what Luke Carroll, 19, and Anthony Prince, 20, did -- they robbed the WestStar bank in Vail last March. Unfortunately for them, they wore their workplace name tags and didn't even try to disguise their thick accents. Oh, and it was their own bank!
"That's what started our investigation," said FBI Special Agent Craig Bykrit. "The tellers recognized their heights and their accents. Both of them usually came in together to do their banking." Carroll is Australian and Prince is a New Zealander with permanent Australian residency.
Flush with $129,500 from the heist, Carroll and Prince headed to a local jewelry store.
"They did a little bit of shopping, picked out a few things," said Ryan Milbern of the Vail Police Department. "The young lady told them what the total would be for the items, at that point they brought out $5 bills to pay for a large, large purchase."
Trying to pay for over $10,000 worth of merchandise with a huge pile of small bills tipped off the store clerk, Milbern said.
If that wasn't dumb enough, the robbers decided they wanted to travel light during the getaway. So, they dumped some of the cash in a trash can at the Denver International Airport. But not, of course, before they took some souvenir photos of their haul.
"We discovered those pictures on a camera that was in their luggage that they gave us consent to search," Bykrit said.
"Dumb and Dumber" have since pleaded guilty. . . . ---go to the address above for the rest of the story.
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I wonder what Goff is talking about "hidden agenda"? Isn't the anti-apartment fight and the attempt to replace his mayor a public fight? How is this hidden?
Check out this distinguished group from the Republican National Assemby of Fort Bend County:
RNHA Fort Bend Co. Benefactors 2004: (as of 04/28/2004 )
Rick P. Forlano,
Linda Hancock, www.FriendsOfKenDexter.com
John F. Healey, Fort Bend District Attorney www.JohnHealeyDA.com
***Bob Hebert, Fort Bend County Judge***
Pat Hebert,
Joe Jaramillo,
Martina Munoz
Andy Meyers, Fort Bend County Commissioner, Precinct 3
Troy Nehls, www.VoteNehls.com
Ron Pope, Judge
Terese Raia,
***Pedro Ruiz, Judge***
***Eric Thode, Fort Bend Republican Chairman***
David C. Vasquez,
David G. Wallace, Sugar Land Mayor www.ci.sugar-land.tx.us/
--Isn't that the judge in the 240th district court that oversees this case Ruiz)? And isn't Bob Hebert the chief county judge over this county? Doesn't Goff, VP of JDC, give to his campaign and mayor Owens? Does this have an impact on justice when JDC has so much invested in this area?--stay tuned for more and ask yourself whose hidden agenda?
-Ok, whose hidden agenda? And where does the EDC (economic development council) come into play and why are we suporting such an organization through our tax dollars here at the county and city levels? Don't they have an agenda too? Whose hidden agenda?--is this just buisness as usual in FB county?
A very successful lawyer parked his brand-new Lexus in front of his office, ready to show it off to his colleagues. As he got out, a truck passed too close and completely tore off the door on the driver's side. The lawyer immediately grabbed his cell phone, dialed 911, and within minutes a policeman pulled up. Before the officer had a chance to ask any questions, the lawyer started screaming hysterically. His Lexus, which he had just picked up the day before, was now completely ruined and would never be the same, no matter what the body shop did to it.
When the lawyer finally wound down from his ranting and raving, the officer shook his head in disgust and disbelief. "I can't believe how materialistic you lawyers are," he said. "You are so focused on your possessions that you don't notice anything else."
"How can you say such a thing?" asked the lawyer.
The cop replied, "Don't you know that your left arm is missing from the elbow down? It must have been torn off when the truck hit you."
"My God!" screamed the lawyer. "Where's my Rolex?"
Don't you all wonder whose money they are using to move this case forward? Is it the resident's association funds, the developers funds, private funds or someone elses? I would sure hate to see them using homeowners money to persecute fellow homeowners!
SJD is using their profits to fund this joke. They could not use the SPRAI fund for this.
Hey.. looks like Matthew Feinberg setup is own personal blog. http://www.thwebbie.com/
Welcome Matt. I went and checked out the site. It looks great! Who is "Internet Imposter"? Cool name!
Here is a great SLAPP article--
Overview>
By Lori Potter
Attorney, Kelly, Haglund, Garnsey & Kahn
Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined. — Judge J. Nicholas Colabella (1992)
Strong statement or overstatement? Judge Colabella was referring to the threat posed by Strategic Lawsuits Against Public Participation, or "SLAPPs." SLAPPs are lawsuits filed in response to or retaliation for citizen communications with government entities and employees.
Citizens have been sued for testifying before their city councils and county commissions, about building permit and zoning change applications, for expressing concerns to school board members, and for reporting violations of environmental laws to regulatory agencies, to give just three of thousands of examples. In short, these citizens were sued for doing exactly what the Constitution allows and encourages them to do, which accounts for Colabella’s strong words in Gordon v. Marrone, a 1992 New York case.
The particular provision of the First Amendment that is threatened by SLAPPs is the petition clause ("Congress shall make no law " abridging the " right of the people " to petition the Government for a redress of grievances"). George Pring and Penelope Canan, the authors of the leading work on the topic, SLAPPs: Getting Sued for Speaking Out (and the coiners of the acronym), have dubbed the petition clause "the unknown soldier of the Bill of Rights."
While the petition clause may be less renowned than the First Amendment’s guarantees of free speech, press and religion, the right it protects is every bit as basic to our form of government.
In a representative democracy, public participation is the cornerstone of the system; it is a bedrock principle that connects government to the governed. It legitimizes the system and helps to make government accountable. On a day-to-day basis we rarely think about it in the exalted terms of its intellectual, legal or policy underpinnings, which go back to Aristotle and the Magna Carta, among other sources. We simply take for granted what is both obvious and invisible: Public participation in government is a creed by which the nation lives. Public participation — i.e., petitioning — ranges from the sublime to the messy, but it is authorized and encouraged by procedures and forms at every level of every branch of our government. That is why being sued for engaging in petitioning activities not only strikes one as incongruous but indeed is antithetical to our form of constitutional democracy.
The phenomenon of suing an individual who communicates with or tries to influence the government is common. Pring and Canan’s national study in the early 1990s found thousands of examples of SLAPPs. Their study also found countless additional examples of threats of lawsuits that had the same desired effect: causing citizens to rethink and retreat from their public participation for fear of costly and time-consuming litigation.
SLAPP complaints do not arrive bearing claims labeled as "SLAPPs." Typically, a "SLAPPer" brings causes of action for defamation, conspiracy, abuse of process, interference with contract, and other common-law claims. As Pring and Canan point out, the first — and sometimes highest — hurdle for an attorney defending against a SLAPP for the first time is recognizing that what may appear to be a garden-variety tort claim is not, and that such a claim may be effectively prevented from becoming a lawsuit if it targets speech to any branch of government.
Petition-clause immunity as a defense against SLAPPs
When SLAPPs are defended against on the basis of the petition clause of the First Amendment, nearly all such litigation is dismissed, or summary judgment is entered for the defendant, as Pring and Canan note. Consequently, most of the reported case law is favorable to SLAPP defendants. This lopsided win-loss record has done nothing to discourage the filing of SLAPPs, however. Pring and Canan concluded that SLAPPers do not sue to achieve a litigation outcome; rather, they file to silence their opposition. Generally, the mere filing of the suit — or just the threat of suit — accomplishes that purpose.
The U.S. Supreme Court and the lower federal courts (and many state courts) have found that the petition clause provides an immunity to citizens who speak out to influence the government. This immunity is sometimes known as Noerr-Pennington immunity, because it has its roots in a line of antitrust cases that hold that efforts to influence public officials through lobbying, publicity, and other contact are protected by the petition clause (and are not a violation of antitrust law) even when the petitioning activity is undertaken for a disfavored motive, such as eliminating competition. (See United Mine Workers v. Pennington, 1965; Eastern Railroad Presidents Conference v. Noerr Motor Freight, 1961.)
Later Supreme Court decisions also make clear that "Noerr-Pennington immunity" is synonymous with First Amendment immunity and applies to petitioning and to claims outside the antitrust context. For example, in NAACP v. Claiborne Hardware (1982), the Court overturned judgments in favor of merchants whose businesses had been economically harmed by a boycott. The NAACP organized a boycott and picketing to support its petition to the local government for passage of anti-discrimination laws to advance racial equality and integration. The Court relied on the Noerr-Pennington line of cases and held that all of the NAACP’s conduct was immunized by the First Amendment, notwithstanding the incidental economic impact on merchants. Accordingly, the Court overturned the holdings of the state courts of Mississippi and accorded immunity to the NAACP against state-law claims.
Two more-recent Supreme Court decisions in antitrust litigation, Professional Real Estate Investors v. Columbia Pictures, (1993) and Columbia v. Omni Outdoor Advertising (1991), applied petition-clause analysis and clarified the burden faced by a plaintiff challenging petitioning activity. When it appears that a plaintiff’s claims are lodged in response to a defendant’s legitimate use of government processes, a court must apply heightened scrutiny to those claims and dismiss them unless they can clear a high barrier.
Under the test first articulated in Omni, a defendant is entitled to immunity unless a plaintiff can demonstrate that defendant’s petitioning was "a sham." This requires the plaintiff to prove that a defendant used government processes as a "weapon." This inquiry looks not at the defendant’s intent or purpose, but at whether the defendant’s efforts were not genuinely aimed at procuring favorable government action at all. So long as the defendant acts to obtain a government outcome — a decision, action, or refusal to act — the defendant’s petitioning is not a sham and enjoys immunity under the petition clause. A winning petition — e.g., a successful lawsuit, or a request to an administrative agency that is acted upon favorably — by definition is not "a sham." At the motion-to-dismiss or summary-judgment stage, then, the standard is an objective one that looks to the outcome of the process defendant engaged in, not a subjective one that looks to defendant’s intent. This result is consistent with the petition-clause goal of encouraging and protecting speech directed to the government.
Professional Real Estate Investors presented the question of petition-clause immunity as applied to counterclaims in litigation and set forth a two-part definition of "sham." The first prong requires a plaintiff to show that a citizen’s communications with government agencies were "objectively baseless." The second prong, which a court need not even consider if a plaintiff cannot satisfy the first, is the test articulated in Omni: whether the defendant’s communications were not genuinely aimed at procuring favorable government action. The SLAPPer bears the burden of proof on both prongs and must meet that burden at the motion-to-dismiss or summary-judgment stage of the case.
Many state courts have fashioned similar tests under the petition clauses of their state constitutions, or have applied First Amendment petition-clause immunity to claims arising in state courts. (See, e.g., Protect Our Mountain Environment, Inc. v. District Court, a 1984 Colorado case. The “sham” burden of proof has been codified in some states’ anti-SLAPP statutes. (See a list of states with laws protecting SLAPP victims.)
Disposing of cases on the basis of petition-clause immunity
The policy underlying First Amendment immunity requires prompt dismissal of claims invalidated by petition-clause immunity, sparing the courts and litigants the costs and time otherwise expended on litigation targeted at protected petitioning activities. Although experience shows that nearly all claims targeting petitioning are eventually dismissed, the mere filing of the action causes a citizen to pay a high price in time, money and peace of mind for having exercised the constitutional right to petition the government.
In the Omni case, the Supreme Court indicated that in order to achieve the goal of minimizing intrusion on the First Amendment, lawsuits that attack constitutionally protected petitioning activities must be dismissed by the court on motion, not heard by a jury at trial, except in those rare instances when a plaintiff can prove the defendant’s petitioning comes within the "sham" exception to immunity. First Amendment petitioning activity is chilled by allowing a plaintiff to conduct discovery, go to trial, and otherwise exhaust the time and resources of a defendant on claims that cannot cross the immunity threshold.
Courts also have achieved the goal of early review and dismissal by enforcing strict pleading standards as a result of the assertion of immunity as a ground for dismissal. (Pleading standards are the legal requirements for pleading a cause of action in court.) Where a claim touches upon the right to petition, many courts will apply a heightened pleading standard (see, e.g., Oregon Natural Resources Council v. Mohla, a 1991 case from the 9th Circuit). These courts concur with the conclusion Pring and Canan made after their study: There is a danger that the mere filing of the action will chill the exercise of First Amendment rights, and this demands more specific allegations than would otherwise be required. Specifically, a plaintiff cannot overcome the target’s First Amendment immunity if it fails to allege that defendant communicated with government for a reason other than to support petitioning activity. In other words, some courts have held that to survive a motion to dismiss a plaintiff must allege that defendant engaged in tortious activity for some purpose other than to influence a governmental agency or process. The certification requirements of Rule 11 of the Federal Rules of Civil Procedure and its state counterparts would apply to such allegations.
Found this on FortBendNow as a response to Goff's editorial. We'll call it...lets just say--> CRD: Getting At The Truth Behind Doug Goff (for lack of a better title)
3 Resp. Dvlpmnt. - Oct 30, 04:31 pm Hello,
Naturally the developer has some “special” privilege to share information from the court protected depositions? We won’t violate the court protective order but we will respond to some of the misinterpretations of the 400-500 pages of transcript taken.
Some clarification first:
The deposition used in this case by JDC/SJD attorney John Keville and Doug’s subsequent interpretation of it is based on his opinion of the findings and not a courts or juries. He is attempting to base his limited claims on several hundred pages of testimony…which may be inaccurate and certainly based on his OPINION of the transcript..NOT fact. Remember this deposition was rather one-sided, expensive and brought by the SJD/JDC crowd and does not allow other witnesses or cross-examination by the target/defendant (which is still unnamed at this juncture of PRE-TRIAL discovery). Dr. Calvin was named as a witness on this documentation (which seems, IMO, to conflict with statements in Doug’s editorial too).
*This case is a template borrowed from SLAPP cases which have been used by many developers around the country to silence groups (punish them) and individuals engaged in public debate (such as land use issues). See the research on this previously posted on SLAPP cases.—The most common claim by developers in these cases is DEFAMATION/DISPARAGEMENT. The intent is to “CHILL” the community (silence them). It’s a high stakes game but the developers in these cases, that aren’t settled early, usually lose (as high as 80%). Many states and the U.S. courts have anti-SLAPP statutes, however TX does not (defeated 4 times by the developer PAC lobby in Austin). The purpose for the corporation filing the SLAPP is to inflict maximum financial harm on the target (which IMHO appears to have already happened in this case $20-25K in two months).
– The following claim by Doug (as a representative of SJD/JDC) is another example of misinformation on the part of the Goff editorial:
“3. The alleged escalation of legal costs was not caused by SJD, but by the attorneys representing Mr. Calvin and Mr. Feinberg. Mr. Feinberg was represented by the ACLU and they repeatedly filed motions against the depositions going forward in three different courts including the Texas Court of Appeals. Ultimately, all three courts have rejected the legal claims presented by Mr. Calvin, Mr. Feinberg and the ACLU. If Free Speech rights were truly an issue here, then at least one of the courts would likely have agreed with them and the ACLU. But to say in some of the comments following the story that the Free Speech rights of Sienna Plantation residents are in jeopardy is ludicrous and Mr. Calvin knows this.”
The statement above from the OPINION piece offered by Doug states several erroneous claims. First the appeals were filed by Ms. Hermer (Feinberg’s attorney) and the constitutional experts, not Jeff Singer, Dr. Calvin’s attorney.—error1
Error2…IMO the final court appeal ruled that since the depositions had already taken place that the arguments were moot (Ruiz did not allow an extension for the last appeal to be effective). So the case was sent back to the court of origin (Ruiz’s ct.). This is not a victory for Doug’s attorney or a ruling against free speech as implied above. The judge (from the same state district as the other appeals…and ct of origin) simply stated the depositions had passed.
*As anyone knows who follows SLAPP cases keeping the deposition fishing expedition from happening is crucial to keeping these cases from getting dragged into, what experts call, “fact quagmire” (arguing over each statement made and its intent). According to the research when depositions have been allowed the financial damage to the target/targets and the length of these trials extends quite a bit. In most states with anti-SLAPP statutes these cases are thrown out before deposition (which institutes the primary financial harm/punishment in pretrail).
If these facts above are misleading then how many of the other ones in the editorial are too. *More fact quagmire probably. . . . ;)
**If you’d like another opinion on this or other area concerns then please e-mail us at responsible_dvlpmnt@yahoo.com and we encourage you to speak out on issues that impact you!
I just heard today from a good source inside the mgmt group here in Sienna that the SJD crowd will be applying the new covenant to the use of e-mail dissemination of information to selectively remove a volunteer from one of the resident committees. Sounds like they are trying to apply these covenants to the cyber-world. Some questions I would have for them would include--do they have the right to limit what goes out (or even sanction because of it) over the net when they do not own the servers or e-mail the message it's traveling on?
Maybe someone should take out an ad on this one or contact those constitutional attorneys (or the press). I bet they are still hovering around the case.
The moment they try to enforce their new covenant they will be violating peoples rights.. what a shock... I am thinking of handing pamphlets out during the next election. Let them try and enforce them..
Whats wrong with these people at SJD!?? They are living in another world in another time. Their behavior is simply barbaric.
The more that get involved the better. Organization and press are the best tools to counter SLAPPs from what I'm reading.
I heard from a good source that the ACLU has filed another appeal on behalf of Matthew Feinberg. Way to go!!! Give them hell!
This is great news. Keep us posted!
Any updates on this thread?
Just wanted to let everyone know we were able to get through to Professor Pring, one of the definitive text authors/researchers, national experts on SLAPP cases from Colorado. He was able to give us some advice on our case and helped us to understand the proper strategies needed to be implemented here. It didn't seem, after the conversation, that there was any doubt that this is in fact a SLAPP case and that the disparagement claim being played out in the press is the "camouflage" case.
Pring is well published nationally and internationally on this topic and has testified on numerous cases, many at the state and national supreme court level.--Just thought you all should know.
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