LEGAL UPDATES By Carol Spooner
THE LAB MEMBERS' LAWSUIT
Twenty-one Local Advisory Board (LAB) members from four (WBAI, KPFA, KPFK, and WPFW) of Pacifica's five radio stations filed suit against Pacifica in July 1999, claiming illegal changes in by-laws. The effect of those changes was to grant the Pacifica Board of Directors the exclusive right to select its own membership. Prior to the changes, a majority of Pacifica's directors were elected by Pacifica station LABs. The suit alleges that the changes were illegal because, under California law governing nonprofit corporations, voting rights in a nonprofit corporation cannot be revoked without the consent of those entitled to vote . The suit also alleges unfair business practices by Pacifica, as well as failure to respect its own by-laws in the conduct and selection of its executive committee.
On December 20th, Alameda County Superior Court Judge James A. Richman sustained Pacifica's demurrer (motion to dismiss the complaint), but gave the LAB members the opportunity to file an amended complaint. According to Dan Siegel, attorney for the LAB members, the ruling means the judge believes that there are defects in the complaint, but that the defects can be cured. The central point of contention at this hearing was whether the LAB members have legal standing to bring the case as "members" of the corporation. Judge Richman indicated that he did not have a problem with the plaintiffs' legal standing, although he did not make a final ruling on this issue. This point is critical because, if the judge determines that the LAB members do not have standing to sue, then he must dismiss their entire case. Judge Richman indicated that the complaint should be amended to be more specific, particularly regarding the issues of: (1) the legal liability nonprofit corporate directors for "unfair business practices", and (2) the claim of misleading fundraising appeals.
Attorney Siegel asks supporters to send him examples of misleading fundraising letters from Pacifica. These should be no more than three years old and should talk about how funds will be used to carry out Pacifica's historic mission. "The point is that we need to prove that Pacifica raised money by making such promises and actually used the funds for different reasons, such as the changes at the Houston station, security guards and public relations fluff at Berkeley," says Siegel. Fax fundraising letters to Siegel & Yee at (510) 444-6698.
Contributions to the LAB legal fund can be made to: "Siegel & Yee Trust Account" (write "Pacifica suit" in memo area of check), 499- 14th Street, Oakland, CA 94612
THE LISTENERS' LAWSUIT
On November 19th twelve listeners, representing listener-sponsors from all five Pacifica stations and more than 2,800 listeners who have signed supporting declarations so far, filed an application for standing to sue Pacifica Foundation with California Attorney General Bill Lockyear. Lockyear has the duty to oversee California nonprofit corporations and charitable trusts such as Pacifica, and the power to grant the listeners legal standing to represent the public interest in court. Pacifica filed opposition papers on December 27th, and the listeners' rebuttal is due January 17th. Lockyear's decision is expected in mid-to-late February.
Daniel Robert Bartley, the listeners' attorney, specializes in public interest law and "whistle blower" suits. According to Bartley, the listeners' claims include: (1) breach of a charitable trust by Pacifica's Board of Directors over the past decade by diverting Pacifica from its founding purposes of independence and vigorous free speech; (2) gross abuse of their authority and discretion and usurpation of office by the Pacifica board; and (3) failure by Pacifica to meet legal standards for fair, reasonable and consistent democratic processes for nomination and election of both of LAB members and directors. The listeners suit seeks court orders requiring bylaws amendments to provide listener-sponsors with "membership" status and voting rights, and requiring the current Board of Directors to resign upon democratic election of new directors, as well as an accounting of Pacifica funds over the past five years.
Bartley expects the listeners and the LAB lawsuits to be "consolidated" by the court, once they get past their initial hurdles, with overlapping issues decided together. He says KPFA listeners can help now by writing respectful letters to the Attorney General urging him to grant the listeners standing to sue. Letters should emphasize the listeners' "special interest" in KPFA and reliance on KPFA for news and information not heard elsewhere in broadcast media, and that listeners' contributions over the past 50 years built KPFA and Pacifica.
Write to: Bill Lockyear, State Attorney General P.O. Box 944255 Sacramento, CA 94244-2550Reference: "People ex rel Spooner vs. Pacifica Foundation" at the top of your letter, and send a copy to the Committee to Remove the Pacifica Board. For more information contact the Committee: email: wildrose@pon.net; phone: (707) 526-2867, webpage: http://home.pon.net/wildrose/remove.htm.
Contributions to the listeners' legal fund can be made to: "Committee to Remove the Pacifica Board," 1136 Wild Rose Drive, Santa Rosa, CA 95401.
TRIAL OF KAHLIL JACOBS-FANTAUZZI
At a hearing on December 16th to determine whether KPFA local advisory board member, Kahlil Jacobs-Fantauzzi, must stand trial for the felony offense of resisting arrest during KPFA protests last July, Judge Greenberg said he would make a decision within a week. As we go to press we don't yet know the decision.
Berkeley City Councilman, Kriss Worthington, testified at the hearing that he had a conversation about Kahlil's case with someone in the DA's office. Worthington's impression from this conversation was that the decision to prosecute Kahlil was influenced by the following facts: (1) the arresting officer is president of the Police Union, (2) Kahlil had previously engaged in protests with the Ethnic Studies Department at UC Berkeley, and (3) Kahlil had been asked three times by the arresting officer to stand aside. The first two reasons are not legally justifiable and amount to selective prosecution. Worthington said he found the last reason strange in light of the fact that a few demonstrators who used obscenities and physical force against the police have, nonetheless, had all charges against them dropped.
Kahlil's attorney, John Ceely [sic - corrected in issue-3 to Richard Kresh], pointed to police reports of two other arrestees in particular. According to the police records, one protestor committed assault on an officer and another committed multiple battery. Charges were dropped against these men -- both of them white. Kahlil, on the other hand, used no obscenity or physical contact. For the much less serious offense of ignoring an officer's order to stand aside in his role as mediator between the Camp KPFA community and the police, Kahlil, a person of color, faces felony charges and the potential end to his career as a teacher. If the charges are not dismissed, the trial will be held in mid-to-late January. Kahlil is the only person among the 101 arrested last summer with charges still pending against him.
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