Fort Bend Sun Article (11/7-11/13/05)
This is the entire text from the FB Sun article which came out today at http://www.zwire.com/site/news.cfm?newsid=15530122&BRD=1574&PAG=461&dept_id=532245&rfi=6 .
Top News
Sienna resident, website operator caught in legal wrangle
By: SESHADRI KUMAR 11/07/2005
The legal wrangle between Sienna/Johnson Development, on the one side, and a Sienna Plantation resident Chris Calvin and the operator of a web log Matthew Feinberg, on the other, have raised many new questions.
The nature of comments posted on the website, some allegedly defamatory in the eye of Sienna/Johnson Develo-pment and an attempt to find out the real identity of those who posted the comments, are at the center of the dispute.
SJD, represented by Attorney John Keville, sought to get depositions from Calvin and Feinberg regarding the website.
Calvin is represented by Sugar Land Attorney Jeff Singer and Feinberg is represented by Laura Hermer, a professor at the University of Houston Law Center. The American Civil Liberties Union is footing the bill for Feinberg.
Calvin and Feinberg appealed against the court ordered depositions, but were unsuccessful. Consequently, as per the order of Associate Judge Pedro Ruiz of Fort Bend County, Feinberg and Calvin under oath answered the questions of SJD attorney John Keville on Oct. 17 and Oct. 18.
Hermer has filed an appeal in the 14th Court of Appeals, along with an emergency motion to stay the use of the deposition. Hermer wants the deposition to be sealed.
Hermer believes the protective order issued by Judge Ruiz prohibits the public release of the identity of the bloggers and that information can only be used by Sienna if they file a lawsuit.
Doug Goff, senior vice president & director of Land Development of The Johnson Development Corp. issued a statement clarifying some of the published reports on the litigation.
"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.
"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.
"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.
"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 postings 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:
"Mr. Calvin admitted under oath that he had used at least 30 different fictitious aliases on the Siennatalk and Missouri Citytalk 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.
"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.
"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.
"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.
"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.
"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."
Calvin responds:
Responding to Goff's statement, Calvin said "They obviously have left out a great deal of information in this case besides potential violation of the court order over the deposition We won't violate the court protective order, but we will respond to some of the misinterpretations of the 400-500 pages of transcripts taken."
The deposition used in this case by JDC/SJD attorney and Doug Goff's subsequent interpretation of it is based on his opinion of the findings and not a court or jury finding, Calvin said.
Goff is attempting to base his limited claims on several hundred pages of testimony certainly based on his opinion of the transcript and not fact, he said.
"This deposition was rather one-sided, expensive and brought by the SJD/JDC and does not allow other witnesses or cross-examination by the target/defendant (which is still unnamed at this juncture of pre-trial discovery)," Calvin said.
This case is a template borrowed from Strategic Lawsuit Against Public Participation( SLAPP) cases which have been used by many developers around the country to silence groups and individuals engaged in public debate (such as land use issues). The intent is to "chill" the community.
"Goff's statement has erroneous claims. First the appeals were filed by Ms. Hermer (Feinberg's attorney) and the constitutional experts, not Jeff Singer, my attorney," Calvin said.
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 Ruiz's. This is not a victory for Goff's attorney or a ruling against free speech as implied above, Calvin said.
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 .
Feinberg has since started a new blog called www.thewebbie.com where he has posted the following comments regarding the depositions and Goff's statement.
"I was deposed on the 17th but under extreme duress under a court order by Judge Ruiz. The order was give by Ruiz even though there was a pending appeal. If I did not complete the deposition me and my lawyers could have been held in contempt of court," feinberg said.
"Chris Calvin and the rest of us have a constitutional and god given right to "blog" anonymously. This has already been decided in many other states and by the Supreme Court of the USA," Feinberg said.
SDJ has yet to prove the comments are defamatory, he said.
"Goff could only show two cases of possible "alleged defamatory" statements. Mine was one of them and we already proved that it was not defamatory. The other I told who I believed made the statements and it wasn't Calvin. What else is there?" Feinberg said.
"For many years the apartments were not on the map, in the sales office or literature given to the public. There was not even a road sign until this past summer. The sign that was there said "Commercial Property". In my opinion that was deceiving the public. And I don't care that we all signed a document stating that SJD has the right to build what ever they want. We did not know or was not informed of the apartment plan. Really.. who goes to the city hall and searches through all the agreements between the city and the builder?"
"In the new Covenant for Sienna Plantation there is specific language that limits fee speech and assembly in or near Sienna. This means they want to restrict free speech in or out of Sienna. Here is Proof that SJD wants to limit free speech. Check section 2 in the new Covenant, they specifically don't want owners to "assemble for the purpose of spreading propaganda". If you read more into this you are not even allowed to have web site that opposes them. They can even use personal emails against residents. It would be easy for Sienna to enforce this rule on anyone that runs a web site or opposes their views," Feinberg said.
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OP/ED--we appreciate the efforts of at least one local paper to balance the reporting. Thanks FB Sun!--CRD
posted by responsible_dvlpmnt at Tuesday, November 08, 2005
21 Comments:
It looks like ad sales pressure didn't get to them at least.
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Some related editorials from FB Sun:
Editorial/Opinions
Residents speak on Sienna apartments debate
11/07/2005
Had property buyers/home buyers been kept abreast honestly and openly of the plans for their developer, then they could have probably made more informed decisions as to whether or not to purchase property/ homes in the development of Sienna Plantation.
While I feel that on the whole, Sienna Plantation has brought many great things to our section of Fort Bend County, and most definitely Missouri City, there are many problems that have been associated with Johnson Developments business tactics. The plans in the Homefinders building have changed more times in the past half dozen years than anyone can keep up, and most definitely what is planned now was not planned back then..... I have development plans from the beginning to prove this point.
Like it or not, Missouri City approved apartments years ago, and apparently, Sienna Plantation is big enough and has deep enough pockets to be able to put them where they want them, and in the quantity that they want them.
Just like Johnson Devel-opment has been able to skirt around wetlands and hardwoods issues.
Isn't it lovely that the Pecan grove that stood on Highway 6 for as long as I can remember (these trees were mature in the late 70's) was destroyed in one day, while we were all at work? Isn't it also nice that people who purchased homes on a "nature belt" will now have the back of a retail center behind their fences?
While I am not a tree hugger, in fact, my family hunts, and fishes, I do realize we all must live somewhere, it's ridiculous that a developer can come in and put a waste water treatment plant with runway lights behind a house that has been there for 20+ years, or stop up a creek that has flown naturally for as long as anyone can remember, or clear cut hundreds of acres of old growth, hardwood trees, and destroy nesting areas and vital habitat for native species so they can build a house.
And when property owners speak up against the developer for things that haven't turned out quite the way they originally planned, they get their hand slapped like a naughty child, or threatened or even sued. What a waste of money. My nine year old behaves better than that.
and yet another-
Many residents of Sienna Plantation were informed of the possibility of an apartment complex being built inside our new home neighborhood.
Many of us signed a petition to stop such a development because we are aware of statistics that show apartments have higher crime incidence, among other things.
In fact, I personally lived in apartments for almost a decade and decided to move to Sienna Plantation to escape the situation that I experienced in those apartments. In addition to that, apartments would crowd our neighborhood and cost us $1 million to $2 million for schooling.
The situation that we are in is unbelievable. I would call it a reign of terror. Chris D. Calvin, the Sienna resident that started the petition, is now being sued by the developers Johnson Develo-pment Co. of Houston. This is, in my opinion, a classic SLAPP suit (Strategic Lawsuit Against Pub-lic Participation).
These are lawsuits in which a corporation or developer sues an organization in an attempt to scare it into dropping protests against a corporate initiative Many states have anti-SLAPP suit laws to protect citizens' right to free speech. (I'm quoting nolo.com on the definition)
I truly do believe that as American citizens we have the right to free speech and the right to sign a petition. In my opinion, it is wrong to attempt to discourage people's participation in their communities by suing them. Its just wrong. Our founding fathers created the court system to protect its citizen, not to stop people from signing a petition. I ask that you please take interest in this case because no person should be denied the right to free speech.
I believe that citizens of a free nation have the right to speak up and make petitions if they believe it's necessary, of course, within the limitations imposed by the law and morality. I appreciate you covering this story and interviewing both sides.
Other papers, however, have been misleading in the information about the case. I request that you please keep us (the readers) informed about the case.
Thanks a lot for your time and I greatly appreciate your fairness and objectivity.
Thank you for posting this we don't get the Sun!
"In the new Covenant for Sienna Plantation there is specific language that limits fee speech and assembly in or near Sienna. This means they want to restrict free speech in or out of Sienna"
This covenant allows them to enforce this in contract areas and adjacent areas? What's up with this?
check this one out:
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.
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I think this is all a distraction for the local election. They must figure if they suck your groups resources into this they divert attention away from the mayoral race. They have to protect their candidate at all costs. I noticed quite a few differences also in the online version of this article and the one I read in the paper. For instance the online version quoted here leaves out the political questions they asked you people at the deposition.
Where are all the questions about council and the mayor they asked you all and their attempts to get names of all those involved with the "no more apartments" fight? Was it a space thing or intentional.--I believe those deposition questions are much more telling about what they are really after. Keep the faith and give 'em hell!!!!
Above poster asks: "This covenant allows them to enforce this in contract areas and adjacent areas?"
Yes.. If you are protesting against something, lets lay like apartments near Sienna but not on Sienna property and you are a resident of Sienna they can punish you by taking away your privileges or even fining you and eventually taking your home. Just as if you failed to pay your dues or never mowed your lawn.
We are reposting the synopsis of some of the questions that were included in the FB Sun hard-copy from the deposition but left out of the on-line version for your edification here:
-The names and locations of everyone who served on the Committee for Responsible Development?
-The names and locations of all those who signed the petition against the second group of apartments coming to Missouri City (1100+ signatures)?
-All those who supported the "No More Apts." fight in Missouri City and Sienna Plantation?
-Which city council members we had talked to about the petition and the no more apartments fight as well as those we had talked to about getting representation on our residents association board?
-What other politicians, regulatory agencies had we talked to about this at the city, county or state level of government?
-Who kicked in for the political ads against mayor Owen of Missouri City?
-Who had emailed me or talked to me on the phone about the "No More Apts." fight?
-What other neighborhood associations were involved with the public fight against apartments (names/locations)?
-Who is on the current mayoral candidate search committee?
-Who are the candidates selected by this committee so far?
-Who are they planning on running against mayor Owen?
************
Again from what we know these are tid-bits of information based approximately 400+ pages of testimony given in pre-trial deposition in October.
Stay tuned for more!
Stay in touch and keep informed!---CRD
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Catch the rags letters to the editor this week. At least she ran them, but she stuck them on page 12.--Must keep the politicos happy I guess!
You all may want to read the Baitland article in the rag Star this week. Apparently she's about to hit another grassroots organization with a SLAPP suit (Strategic law suit against public participation) for speaking up about issues regarding the district.--I believe I read a post here that SLAPPs breed SLAPPs--must be true--thanks JDC for bringing the concept to this community.
It's amazing to me what establishment types will do to hang on to power. I wonder who dropped this in her ear.--This won't help the district, and citizens are entitled to speak up on public issues as protected by the concept couched in the US constitution known as the Noerr-Pennington Immunity.
Wake up everyone and see what power backers are behind these actions locally and causing the real disruptions to appropriate involvement by voters/citizens. It looks like they were even trying to tell the papers to only report nice stories (IMO) so business can thrive.
If they want to attract roof-tops for their business interests then they better stop hitting them with SLAPP cases! These are just bullying tactics that will back-fire at the polls in '06.
Why would the developers want to know all the political questions in the post above?
ck this statement out by Owen:
"On judging a community by what’s reported in its newspapers, Owen said, “People read the local papers to get the feel of a community, which is why it is critical that they read about good things rather than negative ones."--FB Star
--I have never read such tripe in my entire life. Can you believe anyone living in this country with our youth dying in the fields of the middle east for the right for others to speak up would say put such "group think" in the press.--Mr. Owen read some Jefferson as a freshman refresher, stop sounding like a banker.
Some letters that are in the FB Star online version today:
Matthew Feinberg’s counsel responds to article
Dear Ms. Sandlin:
I am one of the cooperating counsel with the American Civil Liberties Union of Texas, representing Matthew Feinberg in In re Sienna/Johnson Development. The suit is perhaps better known as the one Sienna Johnson brought against Mr. Feinberg and Chris Calvin to find out the identities of the anonymous users of www.mocitytalk.com http://www.mocitytalk.com and www.siennatalk.com http://www.siennatalk.com. Sienna/Johnson allegedly sought those identities in anticipation of bringing a suit against one or more of the users for alleged defamation and/or business disparagement.
It is unfortunate that Ms. Fulenwider did not seek to interview either me or Mr. Feinberg’s other counsel before submitting her article.
Although I do not represent Mr. Calvin, we could have provided her with the following information: First, the law of the United States is crystal clear that the users of an Internet discussion board, including Mr. Feinberg’s website, have a right under the First Amendment to make anonymous posts, as long as they do not break the law in doing so. Regardless of what Mr. Calvin or any other website user writes - whether brilliant, boring, or ridiculous - he has the right to do so anonymously, as long as he doesn’t violate the law.
Sienna/Johnson’s lawyer, John Keville, said in Ms. Fulenwider’s article that he wants Mr. Calvin to stop making anonymous posts. In order to make that happen, however, Mr. Keville would either need to get Mr. Calvin voluntarily to agree to the prohibition, or Mr. Keville would need to convince the U.S. Supreme Court to change the well-settled law of the United States concerning anonymous speech. As things currently stand, if Sienna/Johnson doesn’t like people making anonymous criticisms of what it does, that’s Sienna/Johnson’s problem, and not anyone else’s.
As a second issue, it appears that neither Mr. Calvin nor Mr. Feinberg wrote the one and only post that Sienna/Johnson alluded to in its petition as allegedly constituting defamation or business disparagement.
Additionally, neither knows with any certainty who in fact wrote it. Sienna/Johnson evidently deposed the wrong individuals, if it in fact was interested only in finding out the identity of that one poster. However, Sienna/Johnson was not interested in finding out just that one poster’s identity. It was interested in finding out the identities of many different users of the site.
Some readers may wonder why an average person might resort to anonymity to make criticisms of powerful and wealthy people or businesses.
Mr. Calvin says that he’s spent over $20,000 in attorney’s fees involving this case. If Mr. Feinberg didn’t have pro bono help, his fees would have far exceeded this amount, to date. It should therefore be evident what a law-abiding individual such as Mr. Feinberg should fear from large businesses and powerful individuals if he dares to exercise his Constitutional right as an American on American soil simply to sponsor discussion that sometimes becomes critical of a powerful entity in a public forum and make himself identifiable in doing so.
Although we tried to stop Mr. Feinberg’s deposition from taking place, we were unsuccessful. No court of appeal has yet considered the matter based on the First Amendment issues involved. The case is presently before the 14th Court of Appeals in Houston.
Sincerely, Laura Hermer, J.D., L.L.M.
University of Houston Law Center
-----------------------------------------------
Reader responds to Fulenwider’s Nov. 2 Article, “Sienna blogger admits to using many aliases”
Dear Editor,
Your Wednesday, Nov. 2 front page article on the Sienna blogger litigation was a disgraceful excuse for “journalism”. The reader would assume from the uncritical parroting of “Keville” (who was never identified in the article as the Sienna/Johnson Development lawyer he is) that Barbara Fulenwider was Keville’s nom de plume.
This is not to fault Mr. Keville, who is merely doing his job in putting forth the best case he can for his Sienna/Johnson Development client. But that is not the role of a journalist, who should be skeptically examining the “facts” put forth by plaintiff’s lawyer instead of uncritically repeating them without any effort whatsoever to balance the article with the other side’s points.
If the defendant’s lawyer “didn’t return calls”, then go to other sources as any enterprising reporter would do. For example, it is a matter of public record (but apparently unknown to your reporter) that Mr. Keville did not just seek depositions as your article states, he also sought - but was denied by the Court - the legally more important right to compel production from both defendants of a wide range of documents which would have enabled him to go on a “fishing expedition” looking for something to sue on.
I am not and never will be a Sienna Plantation resident, so what is my interest in all this? I am concerned because Sienna/Johnson Development honchos are among the largest campaign contributors to Missouri City’s “Mayor-for-Life” Allen Owen (a fact that Mr. Calvin unearthed, as reported elsewhere). Now, no one’s saying that there was any illegal quid pro quo for the Mayor’s campaign funding, but it’s interesting to note that under this Mayor’s reign a fire station within Quail Valley was “re-located” to Sienna and, after allowing Missouri City’s only hospital to vacate its strategic (for Missouri City) location, - surprise - a replacement hospital is now to be built at Sienna.
Since Sienna will not even be part of Missouri City for a number of years - if ever - one wonders what the benefits for all this are to the tax-paying citizenry of Missouri City whom Mayor Owen is supposedly serving? We certainly know what the benefits are to Sienna/Johnson Development.
Now, let’s cut to what really lies behind this deposition which, despite what the article says, undoubtedly is the initial “discovery” phase of a lawsuit for libel. Your article quotes Sienna/Johnson Development at length as to how defendant Calvin “used at least 30 fictitious aliases on the … websites”, resulting in the vast majority of postings on the websites being Calvin’s, enhanced by his repeated clicking on his own postings to inflate the number of his supposed readers. Conveniently omitted from your article is the fact that, while deceptive on Mr. Calvin’s part, none of these juvenile antics are really illegal.
In fact, lawyer Keville is really saying that no one was reading Calvin’s postings anyway, which is why Calvin attempted to inflate the numbers of both the participants and his readers. But if there really weren’t any readers anyway, then where was the harm to Sienna/Johnson Development in these obscure postings? Certainly this legal proceeding initiated by Sienna/Johnson Development has publicized their “big bully” image far beyond what the websites would have done by themselves (my letter is evidence of that, since I neither read nor participate in blogs).
The real purpose of this legal proceeding initiated by Sienna/Johnson Development is revealed by lawyer Keville’s statement quoted in the article – to “see if we can resolve something with him without a lawsuit”. In other words, either this gadfly agrees to shut up or he will be spent into financial oblivion defending an endless stream of lawsuits from a corporation with unlimited funds, who by doing so is sending a chilling message to other would-be critics of Sienna/Johnson Development, confident that their ally Mayor Owen would never take a stance against a major campaign contributor.
Neil Beck
Quail Valley resident
Controversy continues
Dear Editor,
Hello, I am Gerry Hookstra.
1. I am a SHE and NOT a he.
2. The 95%+ residents opposed to the apartments comes from the 1,100+ signatures obtained, and the 5% comes from those in favor of. Those figures do not come from the entire 5,300+ residents in Sienna, as we did not survey/sample every resident.
3. “No more than 150 to 250 residents would support...”
4. Mayor Owens’ rebuttal states a compromise was struck to reduce the number of apartment units from 1,523 to 900.
However, that reduction was only in the PD8 region. The city council and the mayor have left in place the approval for the remaining (up to 2,700+ units) within various areas of the development. Thank you for your time.
Gerry L. Hookstra.
Article one-sided, claims Sienna resident
Dear Editor;
I am both dismayed and disappointed at the one-sided nature of your July 6, 2005 front page article titled "Tree Huggers vs. Developer in Mo. City". To use the pejorative term "tree hugger", coined by the mayor, to describe residents who happen to disagree with the mayor and developers shows an incredible lack of objectivity. If the writer had actually contacted any of the residents the mayor is referring to, she might have found that the majority of the residents of Sienna do not oppose all commercial development.
The reality is that the majority of residents oppose the placement of hundreds of apartments at the entrance to their subdivisions, and not all commercial development. The approval of these apartments gives lie to the statements made by the mayor and city government that it’s all about lowering the tax rate for the residents of Missouri City.
The thousands of residents brought into the apartments will generate a demand on city and county services far in excess of any property taxes raised by the apartments. These apartments would never have been built in Missouri City proper because the voters would rise up in protest. Instead the mayor and certain members of city council have decided that the interests of the developer outweigh the interests of the non-voting residents of Sienna (as we are in the ETJ of Missouri City not Missouri City itself).
Rather than taking all statements made by the mayor and city at face value, I would suggest more investigation into all sides of the story. Please, in the future display articles exhibiting this lack of balance and objectivity as editorials as opposed to news articles.
Roy Die
Sienna Resident
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Fulenwider’s article is biased
according to homeowner
Dear Editor,
I am dismayed at the article by Barbara Fulenwider, Tree huggers Vs Developers. How can she be so obtuse, and how can you print such a biased story? We in Sienna know the mayor is in the developer's back pocket. You too? Open your eyes and look at the entire picture.
Obviously Ms. Fulenwider uses a narrow scope in her reporting. Please be aware that oversimplification of the issues can sway community opinion. Politicians depend on this. I am sure the developers at Sienna Plantation appreciate your help.
The homeowners in this area have been lied to about the scope of the apartment project, and the developer tries to keep inforamation under weaps. There is a reason for this. If the continued expansion of the apartment project were a REAL asset to the community, the developer would willingly share info with us.
Sienna has already gotten approval for a limited amount of apartments. The community feels this is more than adequate. I believe the developer is merely interested in THEIR short term gains.
Barbara Beckett
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Sienna homeowners felt they were lied to
Dear Editor:
After reading your article about us "tree huggers" I really felt the need to respond. My husband and I lived in apartments most of our lives while saving up for our dream home. We dealt with the drugs, crime, noise, overcrowding, vandalism, and lack of space, because we knew that one day we would be able to have that wonderful "dream come true" home. When we finally had the money, we researched a lot. We finally chose Missouri City because they had Sienna Plantation and also had a Mayor that had a reputation of not allowing apartments to be built. We had lived that life and worked hard to get away from it. Look at Missouri City and tell me how many apartment complexes you see.
Before we built our home in Sienna, we asked specifically if apartments would be built anywhere near us and the answer was a swift and confident NO. We were told that there would be an assisted living center built, but that was the only facility of that type going in. So we built. Now we are having the very thing we moved here to get away from shoved in our faces. I am not against commercial development, in fact I am thrilled to have some businesses coming out this way. However, I am against being misled and down right lied to. I am against the fact that the people making these decisions for those of us living in Sienna do not even live out here nor do they have our best interests at heart. They are dealing with their bottom line, which would have been fine had they been up front with it. To have so many people build homes and start lives based on a lie is wrong, no matter how much money you can make doing it.
Apartments out here are not in our best interest. Unlike single family homes, apartment dwellers, via the apartment owners, pay 4 to 5 times less in property taxes thus creating stress and over crowding on school systems, roadways and other community services. This is not the case with commercial/retail and single family homes. Those apartments will also bring more crime our way. I am paying a fortune in taxes to live out here and opposing apartment communities being built in Sienna Plantation does not make me a "tree hugger," it makes me a concerned resident. I understand that your paper is probably controlled by some of the very people forcing these apartments on us, and this letter will never be seen. But I want you to know that you should check those facts before writing your articles, and maybe even (gasp) interview the people on the other side of the issue. I also want the elected officials that are voting for this apartment development to realize that we have good memories, and will not forget which way they voted come election time.
Sincerely,
Sunni Sargent
Dear Sargents,
As a matter of fact, the writer of that article is a "tree hugger" herself and tried, I think, to write the story fairly.
As far as the owner of this newspaper (me) is concerned, she is somewhat of a "tree hugger" herself and at least feels guilty about the trees destroyed as a result of printing this newspaper.
The problem, as I see it, is that developers sell the land to many builders and the builder (who probably was the liar, or at least an employee of the builder was) can do anything he wants with the land as long as he obeys the zoning and building codes. Additionally, the builder who sold your house can’t dictate what another builder closeby may do.
The saving grace is that Missouri City zoning ordinance calls for so few apartments per acre that any apartments built will have to be high dollar and thus will have little impact on the infrastructure.
What one has to stay alert about is any attempt on the part of a builder or developer to increase the number of apartments per acre.
Missouri City has had apartments on its books for 25 years. Every time some politician wants to "showboat," he gets on some narrow soapbox and preaches "no apartments." I think the Fair Housing Board would descend on Mo City like white on rice if that were attempted.
Mo City has a good ordinance. The ordinance makes sure only quality apartments are built.
BKC
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Tree huggers???? More like concerned citizens…
Dear Editor,
I read with much interest, AND disgust, Barbara Fulenwider’s article in last week’s Fort Bend Star. I didn’t realize that as a near-lifelong resident of Missouri City, that not wanting to have an apartment complex, or perhaps a Taco Bell, or, better yet, a four lane boulevard built behind my house makes me a "tree hugger"…but, hey I am sure I have been called worse.
I am not sure how Mayor Owen says he "understands" our plight as concerened citizens of Missouri City. I have been to many city council meetings where residents have packed council chambers pleading and in some cases, even begging, to have tighter constraints on development, especially in and around Sienna Plantation. The mayor, and vast majority of council, save Councilmen Wyatt and Kolaja have ignored our wants and needs while rolling out the red carpets to the plans of large scale developers. Like it or not, apartments were "quietly snuck through the back door" and none of us were the wiser until it was too late to do anything about it. Sienna Plantation married apartments, or condos or whatever they want to call it to the hospital, so the city’s hands were tied on that one.
I live on the outskirts of Sienna, and have seen my quiet, 20 home neighborhood encroached upon on basically all four corners. Did I ask for a HCC to my south? Did I ask for a waste water treatment station to my west? Did I ask for hundreds of homes across the creek from me? Did I ask for the Toll Road to go adjacent to my neighbors down the road who have been there just as long as we have? Did I ask for McKeever road, that was once a dirt road, to now become a major thoroughfare with thousands and thousands of vehicles speeding up and down it every day? NO!!!!
Our mayor says "he favors preserving as much green space as possible"….not quite sure where that one came from…..so far, have only seen a few acres here and there, nothing larger than 5 or 10 acre parcels out of 20,000+ acres left unassaulted. The pecan orchard that once grew along Highway 6 was mowed down in a matter of hours…what happened there???? Or the magnificent old growth pecans, oaks and ashes that have been ripped up, to be replaced by fairways and crepe myrtles? Wetlands are protected by a "loophole"….replace half of what you take, somewhere else…is pretty much what it turns out to be.
I really enjoyed the part of your article where Mayor Owen urges homeowners to "visit city hall to find out what is zoned where" Give me a break! That is a great concept, but, when you have developers like Sienna Johnson who have changed their planning maps more often than I change the sheets on the bed, makes it a little difficult to keep track of what is going on, unless of course, you want to visit council chambers on a weekly basis. I personally have multiple "site plan maps" from Sienna Johnson, and guess what????? They are ALL different……want a taste of it for yourself? Go down to the offices and see what’s happening on their "big map."
If being a concerned citizen, and wanting to preserve the "buffer zone" around my home that has existed against the "outside world" for twenty years or so, not to mention being someone who enjoys the outdoors, and finds great pleasure in sharing the peaches off my trees, and the vegetables in my gardens with the dwindling population of deer, woodpeckers, squirrels, and assorted other wildlife (you know it wasn’t named Quail Valley all those years ago for nothing folks) makes me a tree hugger….well, then I say, goodnight to you, as I walk out my front door to hug my nearly 80 foot tall native pecan growing in front of my garage, as well as the multiple ashleaf maples, water oaks, palmettos, American elms and assorted other trees and plants behind my house that just might one day give up their long growing roots to a McDonalds.
Tara Jurica
http://www.arcolafeed.com
Actually we would like to respond to Mr. Beck's excellent article with regard to the comment/rationale he placed as our reasoning for adjusting the daily counts and posting using multiple logins.
The purpose was simple. The developer's and his attorneys were monitoring the site so the intent was to protect the 270 residents using the site for information exchange and to keep JDC/SJD from knowing how much or how little the traffic was going through the site. This kept them focussed on the website and helped prevent them from stopping the petition going through our neighborhoods (merely distraction).
Hopefull this clarifies the tactics used when the developer kept us out of the residents newsletter and off the residents website which we all pay for back here in Sienna (3$ million a year to support).---CRD
Change of pace:
What and who am I?
A snake and a rabbit were racing along a pair of intersecting forest pathways one day, when they collided at the intersection. They immediately began to argue with one another as to who was at fault for the mishap.
When the snake remarked that he had been blind since birth, and thus should be given additional leeway, the rabbit said that he, too, had been blind since birth. The two animals then forgot about the collision and began commiserating concerning the problems of being blind.
The snake said that his greatest regret was the loss of his identity. He had never been able to see his reflection in the water, and for that reason did not know exactly what he looked like, or even what he was. The rabbit declared that he had the same problem. Seeing a way that they could help each other, the rabbit proposed that one feel the other from head to toe, and then try to describe what the other animal was.
The snake agreed, and started by winding himself around the rabbit. After a few moments, he announced, "You've got very soft, fuzzy fur, long ears, big rear feet, and a little fuzzy ball for a tail. I think that you must be a bunny rabbit!"
The rabbit was much relieved to find his identity, and proceeded to return the favor to the snake. After feeling about the snake's body for a few minutes, he asserted, "Well, you're scaly, you're slimy, you've got beady little eyes, you squirm and slither all the time, and you've got a forked tongue. I think you're a lawyer!"
The Sun updated the online version to match the hard-copy (http://www.zwire.com/site/news.cfm?newsid=15530122&BRD=1574&PAG=461&dept_id=532245&rfi=6). Here it is unedited:
Calvin responds (to Goff)
Responding to Goff's statement, Calvin said "They obviously have left out a great deal of information in this case besides potential violation of the court order over the deposition.
Calvin said JDC/SJD, through John Keville, their attorney wanted to know some of the following information through the deposition:
The names and locations of everyone who served on the Committee for Resp-onsible Development (37 homeowners and families).
The names and locations of all those who signed the petition against the second group of apartments coming to Missouri City (1100+ signatures).
All those who supported the "No More Apartments" fight in Sienna Plantation and Missouri City.
Which Missouri City council members we had talked to about the petition and the no more apartments fight as well as those we had talked to about getting representation on our residents association board?
What other politicians, regulatory agencies had we talked to about this at the city, county or state level of government?
Who kicked in for the political ads against mayor Owen of Missouri City?
Who had emailed or talked to me on the phone about the "No More Apts" fight in Missouri City?
What other neighborhood associations were involved with he public fight against apartments (names/locations)?
Who is on the current mayoral candidate search committee?
Who are the current candidates on this committee?
Who are they planning on running against Mayor Owen?
The deposition used in this case by JDC/SJD attorney and Doug Goff's subsequent interpretation of it is based on his opinion of the findings and not a court or jury finding, Calvin said.
Goff is attempting to base his limited claims on several hundred pages of testimony certainly based on his opinion of the transcript and not fact, he said.
This deposition was rather one-sided, expensive and brought by the SJD/JDC and does not allow other witnesses or cross-examination by the target/defendant which is still unnamed at this juncture of pre-trial discovery, Calvin said.
This case is a template borrowed from Strategic Lawsuit Against Public Participation (SLAPP) cases which have been used by many developers around the country to silence groups and individuals engaged in public debate (such as land use issues). The intent is to chill the community.
The final court appeal ruled that since the depositions had already taken place and the arguments were moot. Ruiz did not allow an extension for the last appeal to be effective. So the case was sent back to Ruiz's. This is not a victory for Goff's attorney or a ruling against free speech as implied above, Calvin said.
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), he said.
Lisa Graybill, legal director for the ACLU of Texas, says the demand for the identity of users of a website endangers the freedom of expression and ACLU is committed to the cause of protecting the privacy rights of individuals.
The Sienna litigation is part of SLAPP, which is cropping up nationwide, Graybill says.
Feinberg has since started a new blog called www.thewebbie.com where he has posted the following comments regarding the depositions and Goff's statement. "I was deposed on the 17th but under extreme duress under a court order by Judge Ruiz. The order was give by Ruiz even though there was a pending appeal. If I did not complete the deposition me and my lawyers could have been held in contempt of court," Feinberg said.
"Chris Calvin and the rest of us have a constitutional and God-given right to "blog" anonymously. This has already been decided in many other states and by the Supreme Court of the USA," Feinberg said.
SDJ has yet to prove the comments are defamatory, he said. Goff could only show two cases of possible "alleged defamatory" statements. Mine was one of them and we already proved that it was not defamatory. The other I told who I believed made the statements and it wasn't Calvin. What else is there?" Feinberg said.
"For many years the apartments were not on the map, in the sales office or literature given to the public. There was not even a road sign until this past summer. The sign that was there said "Commercial Property". In my opinion that was deceiving the public. And I don't care that we all signed a document stating that SJD has the right to build what ever they want. We did not know or was not informed of the apartment plan. Really ... who goes to the city hall and searches through all the agreements between the city and the builder."
In the new covenant for Sienna Plantation there is specific language that limits free speech and assembly in or near Sienna. Check section 2 in the new covenant, they specifically don't want owners to assemble for the purpose of spreading propaganda.
If you read more into this you are not even allowed to have a web site that opposes them. They can even use personal emails against residents. It would be easy for Sienna to enforce this rule on anyone that runs a web site or opposes their views, Feinberg said.
--Thanks for the correction FB Sun!
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