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Rosenberg "complicit" in KPFA recall delay, says Pacifica attorney
Pacifica treasurer Tracy Rosenberg is asking a judge to throw the recall out, and for Pacifica to pay her attorneys' fees, because of the delays. But Pacifica's legal counsel Andrew Gold writes in an August 27 brief to the court that Rosenberg "is complicit in the actions of the PNB that caused the delay in the selection of an election supervisor and thus the delay in the distribution of ballots. As a result, she cannot benefit from that delay."
Rosenberg filed suit last month to halt the recall vote count, charging that Pacifica had delayed the vote too long. The recall was initiated nearly a year ago when over 800 KPFA listeners signed SaveKPFA petitions demanding a recall vote on Rosenberg. Over our repeated protests, Pacifica delayed the recall election past December 31, 2011 -- which was the date called for in its own rules and bylaws.
Rosenberg is asking a judge to throw the recall out, and for Pacifica to pay her attorneys' fees, because of the delays. But Pacifica's legal counsel Andrew Gold writes in an August 27 brief to the court that Rosenberg "is complicit in the actions of the PNB that caused the delay in the selection of an election supervisor and thus the delay in the distribution of ballots. As a result, she cannot benefit from that delay."
"Plaintiff Rosenberg participated in all of the PNB meetings where the recall election was discussed," writes Gold, "and personally opposed one of the proposed election supervisors....Despite her intimate knowledge of the procedures, and her involvement in all of the decisions being made, Ms. Rosenberg never objected to the delay in appointing an election supervisor, never raised any issue concerning the record date...and never questioned the timing of the distribution of the ballots. Instead, she waited until the very end of the process to file her complaint."
The case will be heard on Monday, September 10 at 1:30 in Dept. 514 in the Hayward Hall of Justice. The public is welcome to attend, so mark your calendars!
In early August, a large number of ballots was picked up by the election supervisor from the Berkeley Post Office, and as witnesses watched, transferred under court order to safe deposit boxes at nearby banks.
Rosenberg is asking a judge to throw the recall out, and for Pacifica to pay her attorneys' fees, because of the delays. But Pacifica's legal counsel Andrew Gold writes in an August 27 brief to the court that Rosenberg "is complicit in the actions of the PNB that caused the delay in the selection of an election supervisor and thus the delay in the distribution of ballots. As a result, she cannot benefit from that delay."
"Plaintiff Rosenberg participated in all of the PNB meetings where the recall election was discussed," writes Gold, "and personally opposed one of the proposed election supervisors....Despite her intimate knowledge of the procedures, and her involvement in all of the decisions being made, Ms. Rosenberg never objected to the delay in appointing an election supervisor, never raised any issue concerning the record date...and never questioned the timing of the distribution of the ballots. Instead, she waited until the very end of the process to file her complaint."
The case will be heard on Monday, September 10 at 1:30 in Dept. 514 in the Hayward Hall of Justice. The public is welcome to attend, so mark your calendars!
In early August, a large number of ballots was picked up by the election supervisor from the Berkeley Post Office, and as witnesses watched, transferred under court order to safe deposit boxes at nearby banks.
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My guess, for what it's worth, is that the judge will disallow such polemical nonsense and rule on the law, which is wholly against Pacifica here.
http://apps.alameda.courts.ca.gov/domainweb/html/index.html
On the right side are the documents scanned in TIFF which any computer can view and print one page at a time. The link for Pacifica's opposing brief is:
http://apps.alameda.courts.ca.gov/domainweb/service?ServiceName=DomainWebService&PageName=itree&Action=27762147
After weighing all the pros and cons of the Corporations Code and Pacifica's Bylaws, Pacifica's attorney comes up with a ridiculous compromise on page 6, namely the court setting a record date, then mailing ballots to people who should have received them, having someone go through all the ballots to pull the ballots that should not have been mailed, and at some point the new ballots mailed out will be counted, and on and on. This is nonsense. IT IS CLEAR THAT THIS IS JUST A PRO FORMA OPPOSITION.
The only viable solution is to toss the recall. If the recall government operation wants to continue with this profound waste of our money, they will have to follow the State Corporations Code and the Bylaws.
A HIGH VOTER TURNOUT MEANS TRACY WON and the recall was stopped. However, that is speculative and legal action was mandatory.
The Recall Government Operation only needed 2% of the listener subscribers, or 400 people signing their contrived petition. The opposing brief states that there were 462 verified signatures. There are about 22,000 listener subscribers. The last KPFA Local Station Board election had about 6,000 voters, a bitter comment on the contempt for voting on the part of Americans generally.
The fact is this recall election is now so poisoned by doubt that it is best to toss the whole thing. The Court is always concerned about legal precedent and will probably do just that.
We can only wonder what this Recall Government Operation is so concerned about since the object of this recall was to have enough votes on the national Pacifica Board to fire Arlene Englehardt, which has been done. It is now apparent to all that this is a hate campaign against an outstanding young lady who is a treasured asset to KPFA and Pacifica, draining Pacifica of urgently needed funds so that it will go bankrupt and be sold to a reactionary outfit.
We look forward to a long list of anti-recall candidates in this year's Local Station Board elections to fill all 14 open seats. YOU CAN STILL BE A CANDIDATE as the deadline has been extended to September 13. See
http://www.kpfa.org/kpfa-lsb-election-process-begins
We want all recall provisions in the Bylaws repealed as we already have almost annual expensive Local Station Board elections and never need any expensive recall.
We know for sure that the Recall Government Operation is such by reading Daniel Borgstrom's excellent August 27 expose of when the police were called to attack Occupy Oakland at:
http://danielborgstrom.blogspot.com/
We also know it by the fact that their leading light is former KPFA programmer and former editor of the CIA's Paris Review, Larry Bensky. For more, see:
1. His attacks to callers on air:
http://www.indybay.org/newsitems/2010/09/25/18659813.php
2. Supporters of Pat Scott Gang and union busters American Consulting:
http://www.indybay.org/newsitems/2010/09/21/18659436.php
3. More horrors of supporting Concerned Listeners gang:
http://www.indybay.org/newsitems/2009/10/22/18626386.php
http://www.indybay.org/newsitems/2008/01/15/18472757.php
http://www.indybay.org/newsitems/2006/10/29/18324348.php
4. His opposition to Peace & Freedom and Green Parties:
http://www.indybay.org/newsitems/2008/04/27/18495315.php
5. His use of name lists in violation of Pacifica election rules:
http://www.indybay.org/newsitems/2007/11/21/18462672.php
6. His opposition to the 9/11 Truth Movement
http://www.indybay.org/newsitems/2007/11/10/18459899.php
http://www.indybay.org/newsitems/2006/09/15/18311830.php
7. His anti-labor outlook on labor programming:
http://www.indybay.org/newsitems/2006/04/14/18154241.php
8. His contempt for free speech:
http://www.indybay.org/newsitems/2004/11/13/17051361.php
9. His attack on William Blum's book exposing the CIA and a reminder that Bensky was editor of the CIA front, the Paris Review, at
http://www.indybay.org/newsitems/2005/06/27/17498851.php
10. His ridicule of the fact of history that Nazis influenced the anti-Communist witchhunts of the 1940s-1950s as of course they were first and foremost anti-communist:
http://www.indybay.org/newsitems/2004/04/05/16762211.php
This, Tracy Rosenberg states, "would be unwieldy and would wreak havoc on the democratic process under which this recall election should have been conducted..."
She lists four reasons why the recall proponents must start from scratch if they remain bent on conducting a recall election:
1. Doubt about Pacifica's ability to perform all the maneuvers enabling it to run the recall election correctly;
2. Issues have changed since the petition signatures were first gathered ten months ago, and those listener members who already have voted may now wish to change their votes but would be prevented from doing so;
3. The cost of the recall election -- upwards of $22,000 -- and the need for judicial intervention might be issues for voters to consider; and
4. New issues which face the new voters could not have been considered by those who already have voted.
Tracy Rosenberg also advises the court that Pacifica's ludicrous statements that she was "complicit" in the delay in getting the recall election underway is not supported by any evidence, and she urges the court to ignore and strike attorney Gold's statements, as they have no factual basis.
The hearing date has been changed to September 11, 2012, at 2:30 p.m. in Department 514 of the Hayward Superior Court.
- Mitchel
Case # RG12641585
"Order to Show Cause re Preliminary Injunction - Granted
This Tentative Ruling is issued by Judge George C. Hernandez, Jr.
On the motion of Plaintiffs Tracy Rosenberg and Caroline Stephens ("Plaintiffs") for a preliminary injunction, the court orders as follows: Plaintiffs' motion to enjoin further conduct of the recall election and prevent the collection and counting of ballots is GRANTED.
In deciding whether to issue a preliminary injunction, the Court weighs two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits; and (2) the relative interim harm to the parties from issuance or non-issuance of the injunction. The court's determination is guided by a mix of the potential merit and interim harm factors. (Butt v. State of California (1992) 4 Cal.4th 668, 677-78.)
Based on a consideration of the above factors and all the material before it on the present motion, the Court finds a sufficient showing for issuing a preliminary injunction to prevent Defendants from using the ballot results to remove Plaintiff Rosenberg as a delegate from the local station board. The court finds that Plaintiffs are likely to prevail on the merits of their claims.
The parties do not dispute that California Corporations Code section 5611 and the Pacifica Foundation bylaws require written ballots to be disseminated within 60 days of the established record date. Defendants admit that the record date was set as November 1, 2011 and the ballots were first mailed on June 28, 2012. Because it appears Defendants did not comply with the requirements of the statute and Pacifica Foundation's bylaws, the election is likely void.
The court also finds that the potential harm to Plaintiffs is significant if Plaintiff Rosenberg is removed from office based on election procedures that failed to comply with statutory requirements and Pacifica Foundation's bylaws.
The court finds that a bond is not required because the court has decided the merits of the Plaintiffs' claim and the injunction is thus not "preliminary." (See, e.g., Shahen v. Superior Court (1941) 46 Cal.App.2d 187, 189 (bond could not be ordered on a permanent injunction issued after a trial on the merits).)