Myers cites affadavits in motion hearing

I hope the judge is a smart man.  I wish he had been given more information.

On Monday, April 13, there was a motion hearing in the lawsuit of Ben Myers vs. Dennis Wagner, Megan Goodmundson and Anne McCandless.  Mr. Myers represented himself while Ferdinand Peters and Benjamin Loetscher represented the defendants.  David Schooler, who is representing JACC in the other lawsuit Mr. Myers has filed against the new JACC board and the city, was also present.

There was some discussion about whether or not this lawsuit should be viewed in terms of the anti-SLAPP law.  Minnesota has an anti-SLAPP law to protect people against SLAPPers.  Here’s a brief explanation from another blog:

…, anti-SLAPP statutes are laws designed to prevent plaintiffs from using the threat of costly litigation to chill the free speech rights of people seeking to participate in the public debate over important issues.

SLAPP suits — Strategic Litigation Against Public Participation — are typically claims for defamation, intentional infliction of emotional distress, invasion of privacy, or tortious interference with contract filed against a party who has criticized or spoken out against the plaintiff in some public context.  ….  By filing suit, no matter how weak its claim might actually be, a plaintiff forces the citizen to spend money responding to the claim and, in the process, to think twice about speaking out publicly again.

While Mr. Myers claims in his lawsuit that defamation of his personal and professional reputation is the reason, he initially tried to get the JACC board to agree to file a lawsuit against these individuals.

Mr. Wagner is being sued because he filed grievances against the JACC board for actions that were in violation of JACC’s bylaws, the city’s Citizen Participation Agreement and other legal documents.  Mr. Wagner’s right to submit grievances is protected under the JACC bylaws and the city’s Citizen Participation Agreement (which the neighborhood must follow if it receives Community Block Development Grants (CDBG)–and it does).  Ms. Goodmundson is being sued because she filed a complaint with the Board of Professional Responsibility (the state Bar’s ethics organization) that Mr. Myers was misusing his standing as a lawyer to influence JACC board decisions and actions.  Attorneys are prohibited by law from suing people who file ethics complaints against them.  Ms. McCandless is being sued because, Mr. Myers claims, she says things that make people hate him.  The people I’ve talked to assure me that nobody has to do that–Mr. Myers does a great job all by himself (eliminating community meetings, adjourning board meetings when residents bring up important questions in the five minutes they are given to speak, refusing to follow decisions by the state Attorney General’s office in terms of making financial records available to residents and board members, etc.).

The original judge in the case (Howard?) wanted to view this case as possible defamation (still to be proved) of a limited public figure.  Mr. Myers claims that he isn’t a public figure despite the fact that he was elected to his position and has certainly spoken to the press and others as JACC’s chair and official representative.  Judge Howard was reluctant to try the case as an anti-SLAPP case because the anti-SLAPP law is relatively new and without many precedents.  When Judge Howard recused himself, Judge Porter took over the case and now must make the decisions.

The difference between public figure and anti-SLAPP is enormous for the defendants.  If tried under the public figure part of the law, there is simply a decision as to whether Mr. Myers allegations are true and whether or not he gets the damages he seeks ($50,000 in damages and $50,000 for emotional distress).  Under the anti-SLAPP law, however, the defendants legal expenses must be paid by Mr. Myers.  And Mr. Myers has already cost the defendants between $8-10,000 in legal fees (or more!). He has delayed the proceedings, asked for many things that keep the lawyers busy yet are not necessarily relevant to the case.  His intent certainly appears to have been the suppression of public participation by those who disagreed with him.

To back up his case, Mr. Myers mentioned two affadavits on Monday.  One from Jerry Moore stating that JACC is not a government organization within the meaning of the anti-SLAPP law.  Minnesota’s law is much more narrowly defined than the anti-SLAPP laws in other states.  In Minnesota, the defendants must be seeking some kind of government action/approval and the plaintiff (Mr. Myers) must be trying to block public participation in that effort.  While JACC is a non-profit, the bulk of its revenue is from government sources.  Further, the city government is required to get input from JACC before it makes many decisions that affect the neighborhood, such as zoning changes, housing issues (new homes, major redevelopment, etc).  JACC determines, within certain guidelines, how its government money (NRP funds) are spent.  It certainly seems that JACC is an agent of the government when it comes to neighborhood business.  Mr. Wagner’s grievances were filed first with JACC and then with the city when JACC took no action.  This is in accordance with the city rules and contracts with JACC.  Ms. McCandless’s efforts have been to force the organization to open its books in accordance with JACC’s bylaws and state law.  She and others also fought hard for two years to get the JACC board to release NRP funds that were already approved for the 26th Avenue Greenway study.  She sought favorable government action (NRP funding and forcing JACC to open its books).  Ms. Goodmundson has similarly sought JACC’s action and openness in regard to its contracts with the government.  All three defendants have been acting within their rights as citizens.  An affadavit from Jerry Moore stating that JACC is not a government body doesn’t seem very good evidence to me.  Mr. Moore is not a legal expert (Mr. Myers is, after all, Mr. Moore’s attorney in a number of cases Mr. Moore is involved in).  And can an attorney really supply an affadavit from one of his clients and use it as a neutral piece of evidence?

The second affadavit that Mr. Myers brought up is that of Lynda Baker, owner of Bean Scene II and manager of the original Bean Scene (now closed).  Ms. Baker states that at one time, she considered obtaining legal advice for her business and, because of Ms. McCandless’s words, decided not to hire Mr. Myers.  This is amazing.  Ms. Baker does not state in her affadavit that she served on the board with Mr. Myers, nor that she voted for him as board chair twice and, just weeks before she left the board, voted for him as vice chair.  Does this sound like the action of someone who doesn’t trust Mr. Myers?  Further diluting the value of the Baker affadavit is the fact that the Bean Scene received many payments from JACC.  In fact, Ms. Baker was encouraged to run for the board by Ms. McCandless when the board was considering punitive action against Deb Wager, then board treasurer.  Ms. Wagner had sought advice from the NRP about the proposed salary for Jerry Moore because NRP would be reimbursing JACC for that salary and the hourly rate proposed for Mr. Moore was significantly higher than former directors had been paid.  At the time, Ms. Baker said she would support Ms. Wagner, who was a frequent customer at the Bean Scene.  Ms. Baker was elected to the board.  Two months later, the board formed an ethics committee that voted to suspend Ms. Wagner from the board for 90 days.  Ms. Baker voted in favor of the suspension.  And four days after that, the Bean Scene received a check from JACC for $1,000!  Officially, the check was to support the Bean Scene’s “Breakfast with Santa” activity, but JACC had never contributed more than $200 in the past to that annual event.  Coincidence?  Perhaps, but over the course of Ms. Baker’s two years on the board, the Bean Scene received $5,000 or more from JACC for providing food for JACC events.  The 2008 annual meeting was the last event of this type, where residents were served taco filling on corn chips with a little lettuce, chopped tomatoes, sour cream and bottled water.  The Bean Scene was paid nearly $900 for that, and they ran out of food long before all 90 attendees were served.

So those are Mr. Myers’ two affadavits offered as proof that (1) JACC is not a government entity or agent, and (2) Ms. McCandless caused Ms. Baker not to hire Mr. Myers as an attorney for her business.

As an aside: In one JACC board meeting I attended, the city’s auditor was presenting his findings about JACC’s books (they weren’t good).  I was sitting just two seats away from Ms. McCandless and she leaned across the person sitting between us and whispered to me, “Are you going to ask him about….?”  Mr. Myers publicly accused Ms. McCandless of calling him “an ass” and publicly told her that if she ever said something like that again, he would have her removed by the police.  And Mr. Myers is suing Ms. McCandless for defamation?!!


One Response

  1. Nice recap

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