Days of Our Lies 1
The Opening Statements
Before
Superior Court of the State of California
2nd
June 2000
The Honorable Ina Levin Gyemant
Department 502
Project Inform, Petitioner, No. 301940
vs.
Todd Swindell, David Pasquarelli, Michael Bellefountaine, Ronnie Burk and
Andrea Lindsay, Defendants.
•
Reporter's transcript
Ronald J. Sinclair, CSR #1170
Appearances:
For the Petitioner:
Kathleen Fisher & Amy B. Lovell
Morrison & Foerster Attorneys at Law
425 Market Street San Francisco, CA 94105
For Respondents:
Michael Lee & Solomon Wollock
Minami, Lew & Tamaki Attorneys at Law
360 Post Street, 8th Floor San Francisco, CA 94118
THE COURT: Good morning ladies and gentlemen.
This is the matter of Project Inform versus Michael Bellefountaine, et al,
case number 311958.
MS. FISHER: Kathleen J. Fisher representing Project Inform.
MS. LOVELL: Amy B. Lovell representing Project Inform.
MR. WOLLOCK: Solomon Wollock representing defendants.
MR. LEE: Michael Lee representing the five defendants.
Your honor, we have had a conversation in chambers about scheduling and
some of the issues that are going to be involved and at this point we determined
what we will do is do opening statements this morning and then continue
the matter to Monday at nine o'clock. I think there was a consensus that
it was not necessary for all witnesses who are subpoenaed who are here to
stay unless they want to but I don't need to order those subpoenaed back.
THE COURT: So if there's anybody here who has been subpoenaed who
is going to leave, if you just let me know your name so I will order you
back. Otherwise you would be staying here in the courtroom this morning.
BRENDA LEIN: Brenda Lein.
MARTIN DELANEY: Martin Delaney.
THE COURT: You will be ordered back at
nine o'clock on Monday morning.
MS. FISHER: Brenda Lein and Martin Delaney. Freddie Oaks, an employee of
Project Inform. Judy Leahy from Project Inform.
THE COURT: All right nine o'clock Monday morning in this department. Anyone
else?
MR. LEE: It just occurred to me I also subpoenaed some records from Ms.
Lein for this morning. Can I be furnished with those records before they
leave the courtroom?
MS. LOVELL: I have them by me.
THE COURT: The moving party would ordinarily start with an opening payment.
I think we are going to do something a little unusual. Mr. Lee is going
start.
MS. FISHER: Yes. Also, I thought we might put on the record Mr. Lee's stipulation
with your honor. Counsel will accept service of the TRO for defendants Bellefountaine
and Burk is extended from May 31st with which was Judge Chiantelli's order
up until today.
THE COURT: Yes, through today.
MR. LEE: That is our stipulation your honor.
THE COURT: All right, thank you.
MR. LEE: Thank you your honor.
May it please the court, plaintiffs are attempting by these proceedings,
these five proceedings, to misuse the statute, the code of civil procedure
section 527.8 that was specifically meant to prevent work place violence,
to provide a tool to stem what seemed like a rash of these violent work
place episodes.
The statute was never meant to be used by competing advocacy groups who
are competing to get out their messages which, in some respects, seem definitely
opposing.
In fact, the statute specifically provides that it is not to be construed
to permit a court to issue an injunctory inhibiting subpoena for activities
that are constitutionally protected.
Nevertheless, plaintiff is asking the court to construe the statute so that
it will operate to prevent speech and other activities by defendants which
are in fact constitutionally protected.
In addition, plaintiffs are attempting to misuse
the statute CCP 527.8 in that the actions of the defendants are accused
of did not happen at the work place. The actions allegedly happened at an
Embarcadero hotel. They allegedly happened at a parade in the Castro district.
They allegedly happened in Vancouver, Canada. They allegedly happened at
a religious center. They did not happen at Project Inform.
Under plaintiff's version of a work place, an international conference in
Vancouver, Canada, is a Project Inform work place and under the defendant's
two stay away orders it would have them stay away a hundred yards from that
conference or, using that same kind of logic or rationale, a BART train
or a bus or an airplane would be a work place subject to the stay away order.
Also CCP 527.8 is limited to work place violence,
not harassment. Harassment is specifically dealt with in a prior section
of the code of civil procedure 527.6 and plaintiff is specifically not proceeding
under that section but under the section that requires a showing of violence.
Or deals with violence. In practically all the litany of accusations by
plaintiff against defendants concerning Project Inform's do not constitute
unlawful violence or a credible threat of violence which are defined under
CCP 527.8.
Instead, the accusations against the defendants concerning Project Inform
have to do with speech and conduct which while unpopular and repugnant to
some or even to many, and offensive to some and maybe even many, are nevertheless
protected by our constitution. Based upon this disagreeable behavior, plaintiff
is seeking to secure a widely overly broad, vague and severe injunction
that will keep the defendants from where they live, where they work, where
they sleep, where they eat, where they shop, where they play, where they
pray and particularly where they advocate.
The stay away order, for example, would prevent
plaintiffs from attending such world class forums as the recent address
of President Mbeki of the Republic of South Africa at the Fairmont held
on May 24th, 2000 which in fact three of the defendants peaceably attended
along with other members of ACT UP San Francisco and along with employees
of Project Inform.
It would also prevent defendant
Michael Bellefountaine from worshiping at his synagogue. But most importantly,
it would prevent the defendants from effectively communicating their deeply
held position on human health issues of local, national and international
significance; positions which are now achieving international acceptance.
Despite plaintiffs attempts to portray defendant's positions on HIV and
AIDS as the acts of dangerous unbalanced lunatics, no less a personage than
President Mbeki has expressed strong support for an open robust debate on
HIV and AIDS, matters of utmost importance to humanity.
And although they're heretics, the defendants
know what they are talking about. For example, David Pasquarelli and Ronnie
Burk are living testaments to the wisdom and sincerity of their beliefs.
Both have tested for HIV antibodies for many years. Six years, in fact.
But true to their beliefs neither has dosed their bodies with antiretroviral
drugs such as AZT and ddI and both remain healthy and alive.
Today ACT UP San Francisco, is an active group
engaged a wide range of advocacy which they do through weekly meetings,
through distribution of literature and leaflets, through maintenance of
a website, through letters to the newspapers and periodicals, through participation
in public forums and community events, through regular contributions to
a monthly magazine and through meetings with public officials such a Mayor
Brown and Supervisors Ammiano, Leno and Katz.
In the early 1990s the defendants attempted to work
with so-called mainstream organizations like Project Inform concerning HIV
and AIDS but defendants were systematically excluded, vilified, and marginalized
by those organizations, including Project Inform. The defendants tried to
abide by the parliamentary rules but because of their contrary positions
on HIV and AIDS, the defendants are consistently denied a place at the table
so that they're views can compete freely in the market place of ideas.
The defendants had not sought to impose
their views or to stifle the messages of anyone else's organization like
Project Inform. They simply seek to balance the public presentation and
provide information. Provide information upon which people can make informed
decisions about their health and their medical care. The defendants occasionally
resort to shock and public displays and theatrics to publicize their position
and I submit the court is aware somewhat of some of those activities. But
at the same time, such displays are time-honored traditions in our country.
For example, no doubt many at the time considered the Boston tea party to
be an outrageous act of defiance but it was a symbolic act -- that was the
important thing about that. However, violence is not a tactic of the defendant's.
Disruption is sometimes a tactic of the defendants and while annoying and
while burdensome it should not be automatically equated with violence.
And again CCP 527.8 is about violence.
It is not about harassment and not about disruption. Defendants do believe
in defending themselves, but defending themselves means just that. They
will not be aggressors but will only act to prevent injuries to themselves
and to retreat from the attack as soon as they can. CCP 527.8, in fact,
specifically examines lawful acts of self-defense where it is defense from
others, from the demonstration of unlawful violence.
Now, plaintiff here is choosing to take kind of
a kitchen sink approach. Throw all of this stuff in whether it relates to
violence or credible acts of violence or threats of violence. I am sorry
they are bringing up every negative episode they can think of whether it
involves Project Inform or not, or whether it happened five or even seven
years ago. They are even, for example, attributing some graffiti that appears
on their office, which I know they cannot prove and which the defendants
were not involved with, to justify this injunction against the defendants
or as a part of the background for this requested prohibitory injunction.
Defendants respectfully submit because of 527.8
the only evidence that is relevant in this case is the defendant's speech
and conduct which constitutes either one of two things:
First, an act of unlawful violence by one or more of the defendants
against one or more of the twenty-three named employees of Project Inform
-- there is a list of those twenty-three employees.
Or to a credible threat of violence by one or more of the defendants
against one or more of the twenty-three named employees of Project Inform.
And I would not belabor the issue, your honor.
The term credible threat of violence is also a defined term under 527.8
and it goes either in the category of
a knowing willful statement that would place a reasonable person
in fear for his or her safety or for the safety or his or her immediate
family and self. No legitimate purpose or course of conduct that
would place a reasonable person in fear for his or her safety or for the
safety or his or her immediate family and serves no legitimate purpose.
Then, in turn, the course of conduct is defined
in 527.8 and the first part of it defines it as a pattern of conflict which
composes a series of acts over a period of time, however short, evidencing
a continuity of purpose including -- and then here some examples of what
constitutes a course of conduct which generally relates to that:
Following or stalking or anything that happens
in the work place and I would not read the rest of that, your honor. So
it is not relevant what defendants may have done to persons other than the
23 named employees of Project Inform. And the court should not consider
hearsay evidence and declarations which are not based upon the personal
knowledge of the declarant and as I indicated acts which took place 4 or
5 years ago or even 7 years ago are not relevant now.
There is no case law on 527.8 because it is a relatively new statute and
really designed in response to this seeming recent or more recent phenomena
of work place violence but there is the of Prescription Health versus Marin
which is cited in all of the parties papers, 199 CA 72; CAL.APP. 4th 325,
in RE Scripps. That case held CCP 527.8 is not a remedy for a single past
incident and that CCP 527.8 should not be used as punishment for past acts.
Consequently, just by way of example
CCP 527.8 should not be applied to someone like Andrea Lindsay who only
started to live in San Francisco in July of 1999 and had no involvement
with Project Inform until on the occasion of the forum which occurred at
the Baha'i Center on April 17th of this year, or for that matter to Todd
Swindell who prior to April 17th of this year was not involved in any incident
concerning Project Inform that arguably involved unlawful violence, and
I could go through the other defendants, similarly, but I will reserve that
for the mention of evidence.
The subscription case also held that even though it is not specifically
stated in the statute in CCP 527.8, like all injunctions, in order to obtain
an injunction under CCP 527.8 a plaintiff must establish by clear and convincing
evidence that injury or irreparable harm will result to an employee if a
prohibitory injunction is not issued due to the reasonable probability that
unlawful violence will occur in the future. So that is a specific element
that must be proved under the statute.
Yet the evidence will be that the 23 named employees of Project Inform have
not been specifically targeted for an ongoing course of conduct. In fact,
the evidence will be that the five defendants don't even know who most of
these 23 employees are, have no information about their private and personal
lives including where they live, whether they are married or have domestic
partners; whether they have children and if so where these children go to
school or child care.
Now, plaintiffs in their papers seem to indicate
that because they obtained a TRO(temporary restraining order) and TROs were
issued, that somehow gives them a leg up in a prohibitory injunction, but
your honor the TROs were essentially issued ex parte. We were not given
papers until the morning of the application. We had no real opp ortunity
to rebut the TRO and they were based upon hearsay declarations that are
subject to numerous evidentiary objections. In fact a TRO was not issued
with respect to defendant Bellefountaine, initially, because there was an
insufficient showing and the plaintiff later went in to obtain a reply for
a TRO against defendant Bellefountaine and didn't even give us notice of
that application. When I later asked counsel why that was, she indicated
"well, the law clerk said notice wasn't required," even though she knew
I represented defendant Bellefountaine.
So that TRO was issued without any knowledge
or appearance by me at all. In addition to that, where the standard for
issuing a TRO requires reasonable probability -- I don't remember the exact
wording -- the prohibitory injunction under 527.8 specifically requires
proof by clear and convincing evidence of unlawful violence or credible
acts of violence, credible threats of violence which, I am sorry, is a far
cry from the standards for a TRO. 527.8 requires a hearing be held upon
the petition for injunction at which the judge shall systematically receive
any testimony that is relevant and may make an independent inquiry.
Now, the defendants respectfully submit
that CCP 527.8 requires an individualized showing by each of the named 23
employees of Project Inform against each of the defendants such that each
of these twenty-three named employees must show by clear and convincing
evidence that each employee suffered unlawful violence or a credible threat
of violence from each defendant at their work place. And that greater or
irreparable harm would result to each employee if injunctions were not issued
with the reasonable probability that each defendant will commit unlawful
violence on that employee in the future.
I think that's what the statute sets out
even though CCP 527.8 allows an employer to bring the petition for injunctions
on behalf of employees it reads in its language: any employer whose employee
-- not employees, but employee -- has suffered unlawful violence or credible
threats of violence from any individual that can be reasonable concluded
to have been carried out or have been carried out at a work place may seek
a temporary restraining order and injunction on behalf of the employee.
That is the specific wording of the statute -- the employee -- for prohibiting
further violence or threat of violence by that individual gives specific
particularized requirements.
The defendants are concerned about, of course,
the prohibitory -- I am stuck on that word all of the time -- the prohibitory
injunction. But the part of that that I am particularly concerned with are
the stay away orders. The orders require defendants to stay a hundred yards
from people they don't even know, from members of the immediate names they
don't even know exist, from residences they have no idea were they are located,
from schools that may exist but they have no idea where they are, from places
of child care and so forth and from this movable work place that can be
set up, particularly in this age of technology, practically anywhere.
That type of stay-away provision really puts defendants under an unfair
risk and under an unfair jeopardy. Most importantly, defendants are community
activists. They are activists. That is what they do. The stay-away order
would effectively prevent them from doing their life's work, communicating
their message which they're willing to put their lives on the line for.
So the defendants, particularly in view of the requested stay-away orders,
are literally fighting for what makes life worth living for them.
Now Mr. Wollock is much more of an authority
on the constitutional problems and I would ask the court to take a look
at the papers that he drafted with regard to the constitutional arguments.
All he would like to say about it at this time is that the stay-away orders,
as set up in the statute, should not be based upon harassment or disruption.
The stay-away orders should be based upon fear of unlawful violence or credible
threats of violence. Stay-away orders may work and serve some purpose in
the situation of controlling say a violent domestic abuser or an irate ex-worker
or co-worker. We know those situations that happen in those cases and, yes,
stay-away orders are appropriate. But they don't work in a situation of
competing advocacy groups who live, work, sleep, play, advocate in essentially
the same limited locale, San Francisco, where it is even more limited to
the Castro district area of San Francisco where they literally trip over
each other all of the time.
Now, part of what is described in the papers,
and I would just mention, is that there was a prior injunction against Mr.
Bellefountaine by another organization. Plaintiffs tried to use that as
evidence for the need for injunctions here against a totally different organization
and we think that is improper. But one thing, the one lesson from that prior
injunction, is that injunctions in a situation of competing advocacy groups,
again, is not a domestic abuser situation or a worker situation but a competing
advocacy group situation can be easily, and was in fact, misused by forcing
people to get out of restaurant establishments. But more importantly denying
them the opportunity to participate in educational forums in which they
believed people should be getting a more balanced presentation.
Finally, I wanted to mention what was mentioned already in the papers --
that ACT UP San Francisco has been active in the legal dispensing of medical
marijuana under Proposition 215. But, again, that should have nothing to
do with the prohibitory injunctions which are being requested here. My client
and I thank you for hearing this matter your honor.
Coming soon....
Episode #2
featuring the muddled debut of
Project Deform's stout lead attorney Kathleen Fisher
and her skinny sidekick, the lovely Amy Lovell.
Truly the Laurel & Hardy of Morrison & Foerster!
