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January 25, 2005

Slapped Down

Good news! The City lost its case against Jeff Nixon and the SaveTCBuilding group for legal expenses the City incurred in fighting Jeff Nixon's lawsuit. The City asked for $41,000.00+ ($36,000+ in legal fees on the part of the City Attorney).

As the judge in the case said, Jeff Nixon's lawsuit was not frivolous; he had legitimate concerns about whether the City Charter required a vote of the public to demolish the building. No doubt! The Court of Appeals thought Nixon's case worthy of a hearing twice (and in one instance halted the demolition of the brick power plant building temporarily), and the Supreme Court once.

No, this was frivolous and indeed personal on the part of the City, and some City Commissioners. If there were a waste of taxpayer money, the waste was in vigorously pursuing a citizen in what can only be considered the first SLAPP (Strategic Lawsuit Against Public Participation) in Traverse City.

If the City had agreed last summer to allow a vote of the public on the demolition of the brick building, the building would have been demolished (and so the City would have gotten what it wanted), and the City would have saved $31,000.00+ of the total spent on a vendetta.

Still, the SLAPPing goes on in communities around us. Anti-SLAPP laws are in effect in 22 states, Anti-SLAPP Bills are pending in 8 states (including Michigan), and advocated in one state.

What are SLAPPs?
SLAPPs -- Strategic Lawsuits Against Public Participation -- are civil complaints or counterclaims (against either an individual or an organization) in which the alleged injury was the result of petitioning or free speech activities protected by the First Amendment of the U.S. Constitution. SLAPPs are often brought by corporations, real estate developers, or government officials and entities against individuals who oppose them on public issues. Typically, SLAPPs are based on ordinary civil tort claims such as defamation, conspiracy, and interference with prospective economic advantage.

While most SLAPPs are legally meritless, they effectively achieve their principal purpose: to chill public debate on specific issues. Defending a SLAPP requires substantial money, time, and legal resources and thus diverts the defendant's attention away from the public issue. Equally important, however, a SLAPP also sends a message to others: you, too, can be sued if you speak up.

Every year thousands of people are hit with SLAPPs for such activities as writing a letter to a newspaper, reporting misconduct by public officals, speaking at public meetings, filing complaints with officials over violations of labor laws or health and safety laws, "whistleblowing" in corporations, or organizing tenants.

credit: California Anti-SLAPP Project

Good news in this case, but until the Anti-SLAPP bill is re-introduced in the State Legislature and is enacted, local officials could pull this stunt again.

Posted by Gadflygirl at 07:14 PM | Comments (0)

January 08, 2005

ACLU ... Where Art Thou?

I emailed Senator Liz Brater's (District 18) office the night of the City Commission meeting of 1/3/05 during which a city commissioner was barred from her elected duties by our City Attorney (and supported by four other commissioners). I asked the status of Sen. Brater's Bill 1195. The following is taken from Sen. Liz Brater's website:

"I recently introduced legislation to protect citizens exercising their constitutional right of free of speech from Strategic Lawsuits Against Public Participation (SLAPP.) Developers, gravel pit owners, and even public employees have filed libel and slander suits against citizens who express their views in public settings to protect natural resources, protest public decisions, or serve as whistleblowers on illegal activities. These lawsuits have an intimidating effect on citizen efforts to express their views. Our democratic system relies on the ability of citizens to express their views freely in a public forum.

When developers and others threaten citizens with lawsuits, citizens often lack the resources to defend themselves in the legal system. Therefore, this legislation provides for dismissal of such cases, prescribes fines for those initiating such cases, and allows for recovery of attorney fees. Also, it conveys immunity from civil lawsuits to citizens communicating with governmental units or public officials regarding public policy. This bill was referred to the Senate Judiciary committee and is awaiting action."

Much to my surprise (responses are slow in coming, if at all, in Traverse City) I received a phone call the very next day from one of her aides and was told this bill will be re-introduced within the next two weeks. Sen. Brater's office is also interested in getting the ACLU involved.

The SLAPP actions are taking place all over the U.S. (except for 22 states where it is illegal and 9 states pending) and it would seem in Northern Michigan in particular. The Tondu lawsuit for $810 million against Manistee is the most obscene in terms of dollar amount … but in actuality, the most obscene is what is happening in Traverse City against a lone activist citizen, who supports this community in every way (and believes he is supporting this community in his activism). Obscene because this is a case where the city is going after someone for expenses in answering his lawsuit, and casting a wide net, under the guise of discovery, in pursuing him. This means others, who have no stake in this action, are being subtly and not so subtly threatened, subpoenaed and having to hire attorneys themselves.

ACLU … if ever there were a cause for your involvement, this is it. What is taking so long? Do you have to be invited? Hired? What?

Posted by Gadflygirl at 12:29 PM | Comments (0)

Oh, really?

The banning of Commissioner Anne Melichar from the closed session of the City Commission last Monday (1/3/05) was "no surprise" to the other commissioners after all, according to the 1/8/05 Record Eagle. No kidding.

Anyone observing the meeting could tell this was a staged event on the part of the City Attorney, with the purpose of humiliating an elected official. Punishing, in fact.

My own belief is that the City Attorney had a practice session in front of a mirror prior to the meeting. His comments were scripted, and the comments of the other commissioners were well thought out prior to the meeting (didn't we have a case a few years ago where commissioners called other commissioners to discuss their vote prior to a meeting?).

I have been watching City Commission meetings since the early 90s. I cannot recall one time when the City Commission voted to go into closed session, and actually went into closed session before the end of the meeting. In this instance, the cameras continued to film an empty chamber with the exception of Anne Melichar sitting at her place. No surprise indeed.

And then, after the meeting (on Wednesday, in fact), the City Attorney, who had obviously been questioned about a legal precedent, cited a New Jersey case involving a school board member who was a plaintiff in an action against a school board. Well, if this isn't a reach. To my knowledge, Ms. Melichar is not a member of the organization which has a lawsuit against the city, nor is she a plaintiff in that case.

Ms. Melichar has been an advocate of saving the brick building portion of the power plant … just as other commissioners have been advocates for many other issues throughout the years. Most recently, two cases come to mind: the lawsuit filed against BATA and the City by two commercial property owners in town, and a lawsuit filed by a neighborhood for surprising them one morning with a power pole installed on a prominent corner in that historic district.

Unfortunately, if you are an elected public official, your advocacy can only be for issues on the "winning side."

Posted by Gadflygirl at 09:19 AM | Comments (0)

January 03, 2005

The SLAPPing Continues

Well, here we go. Anne Melichar was nastily and with brute force eliminated from the closed session discussion of the settlement strategy in the lawsuit Jeff Nixon filed against the City. Why? Because supposedly she is a member of the SaveTCbuilding group.

There is no membership. Although she contributed some money and time to this effort, it would be the same as another commissioner becoming involved in another neighborhood issue and perhaps, believing in its cause, reporting on the issue at a subsequent meeting.

So, in effect, the people who elected Anne Melichar to office were not represented tonight. It is shameful, but more, scary. If you have a legitimate concern in Traverse City, but if it goes against the majority of the commission, you can be in legal trouble.

By the way, the fact that one commissioner voted for Anne's participation in the closed session … this commissioner is quite regularly against anything which Anne views favorably. So could it be this vote was pre-arranged so it doesn't look as if she were being ganged up on?

Posted by Gadflygirl at 09:21 PM | Comments (0)