JUDGE DENIES REQUEST FOR PRELIMINARY INJUNCTIONS IN LAB LAWSUIT

JUDGE DENIES REQUEST FOR PRELIMINARY INJUNCTIONS IN LAB LAWSUIT

by Carol Spooner

(893 Words)

Judge James A Richman denied the LAB plaintiffs' request for preliminary injunctions at a hearing on June 23rd, stating that the plaintiffs had not passed the two-pronged test required for him to grant the injunctions: (1) a showing of the likelihood that they would ultimately win at trial, and (2) a showing that there would be great or irreparable harm if the injunctions were not granted.

However, Judge Richman's ruling was based only on the evidence presented to him at the hearing. There is crucial evidence supporting the LAB case in the Minutes of Pacifica Board meetings that was not presented to Judge Richman, but should be presented at the trial.

The LABs had requested that, until the trial of their case: (1) Pacifica be prohibited from seating any "at large" directors that had been elected without a 2/3rds majority vote by secret ballot, as required prior to the bylaws amendments, (2) Pacifica be prohibited from increasing the number of "at large" directors to more than half the number of LAB-elected directors, i.e., that no more than 5 "at large" directors be seated, and (3) Pacifica be required to seat Jay Imani who has been elected by the KPFA LAB in accordance with the pre-amendment bylaws to represent KPFA on the Pacifica Board.

From 1984 until the 1997 amendments, the Pacifica bylaws provided for election of directors as follows:

ARTICLE THREE, Section 2 ELECTION OF DIRECTORS: In order to be elected, a member must receive the nomination and vote of a majority of the station board which s/he represents, unless such member is classified as an "at large" member, in which event s/he must be elected by a 2/3 vote of the Board of Directors of the Foundation, voting by secret ballot, subject to approval of FCC council or FCC.

An additional sentence was added to this section in 1991, which reads: "Each station board shall nominate at least one person of color as a permanent representative to the National Board."

The outcome of LAB suit turns on whether or not, under these bylaws provisions, they had the right to "elect" or to "nominate" directors. If they had the right to "elect" then Pacifica is prohibited by California corporations law from eliminating that right without a vote of approval by the LABs. If they had the right only to "nominate" then there is nothing in the law prohibiting Pacifica from eliminating that right. Also, if the LABs had the right to "elect" directors, then California corporations law prohibits Pacifica from increasing the total number of "at large" directors without a vote of approval by the LABs.

The LAB plaintiffs presented a written declaration by Peter Franck, who was a director and the President of Pacifica in 1984 at the time the relevant section of the bylaws was enacted, and who, in fact, wrote that section of the bylaws regarding election of directors. According to Mr. Franck's declaration, the intent of the board when they adopted that language was that the LABs (then called station boards) were to elect the directors, and that the only further confirmation required was that they did not violate any FCC regulations regarding conflicts of interest.

On the other hand, Pacifica presented written declarations from various people who recall that over the years the National Board "always" elected the directors and the LABs only submitted nominations. The Judge appeared to give great weight to the Declaration of Jack O'Dell, who was Chair of the Pacifica Board for many years. According to O'Dell's declaration, the board "always elected" the LAB "nominees" by voting on a "Motion to Seat" them. Oddly, Dan Siegel, the LAB attorney, did not argue that a "Motion to Seat" is not an "election." He appeared to concede this point by saying that this "election" was only perfunctory and was always unanimous.

After the hearing one observer commented that the Minutes of the board meetings -- going back as far as 1988 -- do not record any "election" by the board of any LAB-elected director, ever. The Minutes do record votes on "motions to seat" on some occasions and not on others when LAB-elected directors joined the board. In contrast, the Minutes do record "elections" when "at large" directors were elected. When the case gets to trial, perhaps Mr. Siegel will be able to get the Minutes into evidence, make the point that they are the official record of the formal acts of the corporation, and make the point to the trial judge that a "Motion to Seat" is not an "election."

As to the second requirement for granting the injunction, a showing of "great or irreparable harm," the Judge was not convinced that packing the board with eight new "at large" directors while a decision on the election rights of the LABs is pending before the court would do any harm.

After the hearing, Mr. Siegel said the loss was "not surprising" because the "hurdle for getting a preliminary injunction is very high." Siegel said that the attempt had been helpful to their case by "flushing out" Pacifica's arguments and learning what kind of evidence they had. He said this would help them better prepare for trial, and that he would move the case to a speedy trial before the end of the year.