Fredericksburg FOI Case: Transcript / Sanction Hearing
0002
1 APPEARANCES:
2 On behalf of Petitioners:
3 DAVID ZACHARY KAUFMAN, ESQ.
4 Kaufman Law Office
5 10625 Jones Street, Suite 201A
6 Fairfax, Virginia 22030
7 703-764-9080
8 MICHAEL E. BARNSBACK, ESQ.
9 DiMuro, Ginsberg and Mook, P.C.
10 908 King Street, Suite 200
11 Alexandria, Virginia 22314
12 703-684-4333
13
14 On behalf of Respondents Beck et al.,
15 HOWARD H. STAHL, ESQ.
16 JOHN F. O'CONNOR, ESQ.
17 Steptoe and Johnson
18 1330 Connecticut Avenue, N.W.
19 Washington, D.C.
20 202-429-3000
21 On behalf of Respondent Withers:
22 WILLIAM M. SOKOL, ESQ.
23 904 Princess Anne Street, Suite 101
24 Fredericksburg, Virginia 22401
25 540-899-9144
0003
1 P R O C E E D I N G S
2 JUDGE SCOTT: Good morning.
3 MR. STAHL: Good morning.
4 MR. KAUFMAN: Good morning. Your Honor, there's
5 a preliminary matter.
6 JUDGE SCOTT: One moment. One moment, Mr.
7 Kaufman, one moment.
8 (Pause.)
9 JUDGE SCOTT: Now, what's your preliminary
10 matter?
11 MR. KAUFMAN: Your Honor, at Mr. Stahl's request
12 I'm putting -- I would like to present to the Court our
13 offer of a compromise and settlement, even though we
14 believe that no sanctions are merited and that we've
15 brought these cases, these counts, in good faith. That
16 offer of compromise and settlement is that we will drop
17 our rights to appeal for the various counts, they drop
18 their rights to appeal and drop their claim for sanctions,
19 it ends the case and we all walk away.
20 JUDGE SCOTT: All right. You say you're putting
21 that on the record at Mr. Stahl's request?
22 MR. KAUFMAN: Yes, sir.
23 MR. STAHL: It was not at my request, Your
24 Honor. Mr. Sokol approached -- Mr. Kaufman approached me
25 five minutes, ten minutes before the Court convened and
0004
1 said: I'd like to speak with the Judge in chambers. I
2 said: About what topic? And he said: About a proposed
3 settlement. And I said: I have (no) interest in having any
4 off-the-record discussions with you whatever. And that
5 led to this.
6 I did not ask for this to be put on the record.
7 The first time I have heard it is right now. Nothing
8 could be more inappropriate and certainly politically
9 motivated than to make an offer of settlement on a record
10 at the beginning of a hearing on our application for
11 sanctions. I never heard it until I just heard it.
12 MR. KAUFMAN: Your Honor.
13 JUDGE SCOTT: Mr. Kaufman, if that's the case
14 let's not pursue this discussion.
15 MR. KAUFMAN: The only thing I'd add, Your
16 Honor, is that Mr. Stahl didn't want to listen to it. He
17 told me he had no interest in even listening to it.
18 JUDGE SCOTT: Well, that's his prerogative.
19 MR. KAUFMAN: Absolutely.
20 JUDGE SCOTT: That's his prerogative.
21 All right, this matter comes on for the limited
22 purpose today of discussing sanctions. Mr. Stahl, any
23 additional argument on behalf of the Respondents?
24 MR. STAHL: Argument and there very well may be
25 a need and I believe there is a need, Your Honor, to put
0005
1 on some additional evidence.
2 JUDGE SCOTT: That being the case, make your
3 argument very brief.
4 MR. STAHL: I will. Let me raise one issue with
5 the Court. At the conclusion of the hearing on Friday
6 last, Your Honor, I raised the issue with the Court to
7 ensure that we would get a copy of the Petitioners'
8 pleadings at a reasonable hour yesterday so that we would
9 see what they wanted to say and have an opportunity to
10 prepare for it.
11 Last night at 15 minutes until 7:00, we received
12 by fax, after several phone calls during the day to Mr.
13 Kaufman's office, the barebones pleading itself.
14 JUDGE SCOTT: Without exhibits?
15 MR. STAHL: Not a single one.
16 JUDGE SCOTT: No, I know, because I received the
17 same thing probably a few minutes before you.
18 MR. STAHL: None of them. And when we got here
19 this morning at about a quarter of 9:00, five minutes
20 before this statement that you just heard about, Mr.
21 Kaufman handed me the stack of exhibits that's three or
22 four inches tall. In those exhibits we noticed, had a
23 moment or two to review, there are two affidavits,
24 Bolinger and Spears. The one by Bolinger's not even
25 notarized.
0006
1 Those clearly have no place in this proceeding.
2 They're untested by cross-examination. They're the
3 rankest of hearsay, produced today. The one from Spears
4 is actually notarized last Saturday, so what could
5 conceivably be the explanation for not having faxed us
6 that on Sunday or yesterday?
7 This is all a game and charade. We should have
8 had this. I asked Mr. Kaufman this morning, I said: Why
9 did you not all me or Mr. O'Connor last evening? We would
10 have driven over to pick up the pleadings, the exhibits.
11 No response.
12 It violated Your Honor's order. It handicaps us
13 enormously. It tries to put in before Your Honor the
14 rankest, grossest hearsay that certainly has no place in
15 this proceeding. If they wish to call witnesses and the
16 Court permits, so be it. But we've been dramatically
17 handicapped, as in everything else in this case.
18 JUDGE SCOTT: Mr. Kaufman, do want a
19 continuance? I'm sorry. Mr. Stahl, do you want a
20 continuance?
21 MR. STAHL: No. No, I don't want a continuance.
22 But I want certainly to strike those affidavits, Your
23 Honor. I mean, they're affidavits. Everything in this
24 case thus far as either been tested by cross-examination
25 before Your Honor or been in depositions where both
0007
1 parties have been present and there's been an opportunity
2 to cross-examine.
3 In light of where we are and in light of this
4 application or opposition they filed 16, 15 pages of which
5 have got nothing to do with sanctions, I believe we do
6 need to call some additional witnesses, Your Honor.
7 MR. SOKOL: If Your Honor please, I'd like to
8 reserve the right for argument following testimonial
9 presentation.
10 JUDGE SCOTT: All right, Mr. Sokol, you'll be
11 given that opportunity for closing argument when we reach
12 that stage.
13 MR. SOKOL: Thank you, Your Honor.
14 JUDGE SCOTT: Let me say this to both of you.
15 The Court will entertain additional testimony, but this
16 hearing need not last more than two hours.
17 The Court received the same fax that you did,
18 Mr. Stahl. The fortunate part about it, at least as far
19 as this case is concerned, is that court lasted last night
20 until quarter to 8:00. So when I went downstairs, there
21 was this document. I won't describe it as to length. The
22 Court reviewed it last night, having received it whenever
23 it came in, but not being aware of it until about quarter
24 to 8:00.
25 No exhibits were attached, you're absolutely
0008
1 right. The exhibits were seen by this Court for the first
2 time this morning at approximately 8:15, approximately,
3 approximately.
4 The Court frankly sees no need for any
5 additional evidence or testimony other than a presentation
6 by the Respondents as to actual dollars. And obviously,
7 Mr. Kaufman, we have considered your argument or will have
8 considered your argument in your motion, and if you wish
9 to put in some brief testimony, and I mean brief, as to
10 certain aspects of things that you have alleged which
11 establish a reasonable basis for your including various
12 counts in your original bill of complaint, that would be
13 fine.
14 But anything else I can't imagine would be
15 either appropriate or germane to this proceeding, and
16 that's how I intend to proceed.
17 Are we ready?
18 MR. STAHL: We're ready, Your Honor.
19 JUDGE SCOTT: Now, opening statement. Given the
20 fact you want to call witnesses, please make it brief.
21 OPENING STATEMENT ON BEHALF OF RESPONDENTS
22 BECK ET AL.
23 MR. STAHL: All right. Your Honor, the first
24 witness we'd want to call and the reason for it is Mr.
25 Kaufman. As you'll recall, in our motion for sanctions
0009
1 that we provided Your Honor a week ago we included in that
2 20-odd pages of deposition transcripts that unambiguously
3 establish that the Petitioners in this case had no
4 knowledge, first, second, third-hand, at all as to any
5 allegations that were made with respect to the three
6 counts that we're speaking of today, 15, 16, and 18.
7 They had no idea of where any of the rumors came
8 from about Maury School. They were totally
9 unknowledgeable on the Fortune comment and the alleged
10 meeting thereafter. On the homeless shelter, no knowledge
11 at all.
12 It was said at the argument last Friday by Mr.
13 Kaufman that he had conducted the investigation concerning
14 these facts and in the pleading that he filed last night
15 he said that it wasn't surprising that Shelton, Jenkins,
16 and Timpone knew nothing about any underlying facts that
17 would demonstrate the due diligence, the requisite
18 inquiry, that Rule 8.01-271.1 requires, because he had
19 done the investigation.
20 We would like to call Mr. Kaufman to explain to
21 this Court what investigation he did, when he did that
22 investigation. We sent him a letter on Saturday morning
23 saying, in light of your comments to the Court, we would
24 like you to produce to us any notes or memoranda that you
25 made or kept of any investigation you did pre-filing that
0010
1 related to compliance with this rule, along with any of
2 your time records to show that in fact interviews or
3 meetings or the like were in fact conducted to garner that
4 information.
5 So the first witness we'd like to call with that
6 reason would be Mr. Kaufman.
7 JUDGE SCOTT: Mr. Kaufman?
8 OPENING STATEMENT ON BEHALF OF PETITIONERS
9 MR. KAUFMAN: Your Honor, this petition for
10 sanctions deals with -- excuse me. The motion for
11 sanctions deals with Petitioners, not with counsel.
12 Furthermore, in the brief here I set out quite clearly
13 what we did with the emails and the other material here.
14 Everything there is contained there.
15 Finally, I never got this letter that they say
16 they sent me on Saturday. It hasn't come yet. They
17 didn't fax it to me that I'm aware of, and I would have
18 seen the fax. So I have absolutely no idea until he just
19 said that, this letter, never seen it, don't have any
20 knowledge of it. That's all I know.
21 But in terms of what counsel did to investigate,
22 that's set forth in the brief. This other material is
23 attempting to invade attorney work product and other
24 client confidential matters here. I don't understand why
25 they are doing it and I don't think it's in any way
0011
1 appropriate.
2 JUDGE SCOTT: Would you like to make any further
3 comment as to the issue of sanctions, irrespective of
4 whether you're called as a witness or not?
5 MR. KAUFMAN: I have quite a bit to say to the
6 Court about sanctions, but I had planned that for my
7 closing.
8 JUDGE SCOTT: Okay, that's fine.
9 The motion to all Mr. Kaufman as a witness is
10 denied. Who else would you like to call, or would you
11 like to make an opening statement?
12 MR. STAHL: I would like to make an opening
13 statement then, Your Honor, with respect to the first part
14 of the rule, if I might. 8.01-271.1 says that in the
15 filing of a complaint and the signing of a petition the
16 signature of the attorney or party constitutes a
17 certificate by him that, three things, Your Honor: one,
18 he has read the pleading, motion, or other paper; two, to
19 the best of his knowledge, information, and belief, formed
20 after reasonable inquiry, it is well-grounded in fact and
21 is warranted. I'll leave the rest out.
22 And the "and" is the third part, which I'll get
23 to in a moment, "is not interposed for any improper
24 purpose, such as to harass or to cause unnecessary delay
25 or needless increase in the cost of litigation."
0012
1 As to point 2, which is the point that I wanted
2 to call Mr. Kaufman on, what was to the best of his
3 knowledge, information, and belief, formed after
4 reasonable inquiry, that indicated to him that the
5 petition was well-grounded? The evidence, Your Honor, now
6 is irrefuted by the Petitioners that nothing was done by
7 the Petitioners to comply with part 2 of 8.01-271.1.
8 Shelton, Timpone, and Jenkins said they had no
9 idea where these three allegations came from. In Shelton
10 and Jenkins' case, they were totally clueless. When we
11 asked Shelton, for example, about the Fred Bus trip, he
12 said: "I don't know where we got that line." When we
13 asked him about Maury School, how did you know that a
14 meeting took place, he said: "I just read between the
15 lines."
16 And Maury School, Your Honor, is a particularly
17 egregious count to have been made because, if you'll
18 recall, originally Your Honor was going to grant the
19 demurrer, sustain the demurrer with respect to count 15,
20 the email count, but you allowed them to replead. And
21 they did replead, and they didn't replead on an email
22 count. They repled and said: And the meeting in fact
23 took place involving all of these Respondents.
24 No investigation, no analysis, no nothing. They
25 read between the lines. The Fred Bus trip, a malicious
0013
1 figment of their imagination. The Fortune episode and the
2 alleged meeting thereafter, which never of course
3 happened, a total figment of their imagination. They've
4 offered no evidence in their deposition and have offered
5 no evidence here to justify any basis for believing that
6 any such meeting happened.
7 Instead, what they try and sneak in, which we
8 only saw moments ago and I'm not even sure if Your Honor's
9 yet seen them at all, are two alleged affidavits, one of
10 which is not even notarized, that say that someone
11 inferred that a meeting might have taken place, which of
12 course never did.
13 So as to the Petitioners, we know they had no
14 evidence. They clearly have violated the rule. So who
15 else are we left with to see, was there compliance with
16 this rule? Only Mr. Kaufman, and in Mr. Kaufman's brief
17 on behalf of these Petitioners at footnote 2 on page 4, he
18 says:
19 "Respondents make much ado in their motion for
20 sanctions about Petitioners' inability to recall facts
21 during their depositions. But had Respondents asked the
22 Petitioners, which they did not, about their preparation
23 for the depositions, Respondents might have learned that
24 before their individual depositions Petitioners did no
25 review of any documents, no review of any pleadings, and
0014
1 had no preparation by their attorney. Petitioners asked
2 their attorney to investigate and he did so."
3 "It is therefore" -- I'm skipping the cite, Your
4 Honor. "It is therefore unsurprising that on many
5 occasions Petitioners would have been unable to recall the
6 facts necessary to formulate answers to the detailed
7 questions put to them by Respondents during their
8 deposition."
9 So he admits they didn't know anything; he knew
10 it. Well, he's just refused to testify. He's just
11 refused to tell Your Honor of what he did in order to
12 comply with the rule I earlier referenced.
13 The only evidence before Your Honor at this
14 point, in light of that declination -- as a matter of
15 fact, there is no evidence to show they did anything to
16 comply with this rule. So on this standard alone, the
17 Respondents are absolutely entitled to their, at a
18 minimum, attorney's fees and costs incurred in defending
19 against these scurrilous, baseless, unsubstantiated and
20 uninvestigated allegations.
21 I should say at this point perhaps, Your Honor,
22 we have not prepared a fee application in the sense of
23 detailing and breaking out the dollars that would be
24 required to substantiate the amount of time we spent in
25 dealing with these counts. But obviously, to the extent
0015
1 the Court awards sanctions and those sanctions would be
2 attorney's fees and costs, we would present that for Your
3 Honor's consideration with any comment the Petitioners
4 might want to make as well.
5 MR. SOKOL: If Your Honor please, perhaps this
6 would be an appropriate time for me to present the motion
7 for sanctions on behalf of Mr. Withers.
8 JUDGE SCOTT: All right, Mr. Sokol.
9 MR. SOKOL: With the Court's permission.
10 MR. STAHL: May I just say one thing before Mr.
11 Sokol begins, Your Honor?
12 JUDGE SCOTT: One moment, Mr. Sokol.
13 MR. STAHL: And I just didn't want to leave this
14 dangling. There is yet the third part of the rule, Your
15 Honor, that I read to you, about the "and", that the case
16 was not interposed for any improper purpose. We do want
17 to put evidence on on that, to establish that that portion
18 of the rule was violated as well.
19 OPENING STATEMENT ON BEHALF OF
20 RESPONDENT WITHERS
21 MR. SOKOL: If Your Honor please: Although this
22 is one petition, it involves five separate parties.
23 May I face the Court, Your Honor?
24 JUDGE SCOTT: Yes.
25 MR. SOKOL: It involves five separate parties.
0016
1 Mr. Withers of course is mindful of the fact that he's one
2 of five Councilmen, but he's also quite sensitive to the
3 fact that it's Mr. Withers, Billy Withers, who has been
4 charged in this petition, and there's a direct impact and
5 effect upon him.
6 I'm mindful of the fact that when Your Honor was
7 about to adjourn several days ago that you said you were
8 particularly concerned about two counts. But I think it's
9 fair and I trust that Your Honor will permit, in behalf of
10 Mr. Withers, to go beyond those two counts, because the
11 case against Mr. Withers, the non-case against Mr.
12 Withers, exceeds, goes beyond the boundaries of these two
13 counts, subsumes 17 counts.
14 I think in the matter of sanctions, if I may
15 suggest that this is not an ordinary, garden variety
16 negligence kind of case. This is not a case where the
17 Petitioners were under the constraint of the looming
18 expiration of a statute of limitations. The Petitioners
19 had good and sufficient time before they made the decision
20 to execute an oath -- Mr. Timpone -- and to combine with
21 counsel in making charges against Mr. Withers at least on
22 two levels that are quite troublesome.
23 Number one, that he engaged in an exchange of
24 emails so that the public could be excluded from the
25 deliberations of Council. But it went beyond that. Each
0017
1 and every count is marked by this nefarious allegation
2 that Mr. Withers engaged in a course of conduct willfully
3 -- and the first of course was also willful, but willfully
4 -- to exclude Mr. Wilson and Reverend Turner.
5 Now, what had these Petitioners received? They
6 had received bundles of emails. Their review of those
7 emails, it wouldn't take a law degree, it wouldn't take
8 much education, for them to conclude that Mr. Withers did
9 not send any emails out whatsoever, save one when he said:
10 I can't come either Friday or Saturday. And that became
11 the basis for two-digit charges that he willfully excluded
12 these other two Councilmen, that he willfully discussed
13 public business, that he willfully intended to avoid
14 public awareness of public business.
15 There's nothing, there is nothing, there to
16 justify this charge against a public official.
17 Then the charge is that not only did Mr. Withers
18 in a premeditated kind of fashion, willful, subvert the
19 law, undermine the public interest by the use of email,
20 but no, he had face to face meetings. Mr. Withers had a
21 meeting with other Councilmen to discuss what shall be
22 done by relocating the homeless shelter and setting
23 priorities, after a whisper overheard, a whisper of Mr. -
24 - or Dr. Fortune.
25 If Your Honor looks to the transcripts, there's
0018
1 not anything, nothing. No person, except a person that
2 lived in a world of hallucination or imagination or
3 malicious intent on the part of the Petitioners, could
4 possibly conjure and conceive and then file.
5 And that's where the damage is. The damage has
6 been done. It's not enough for Mr. Kaufman to say, six
7 weeks later, we drop charges. When they filed this
8 petition in this court, a public document, subject to, and
9 was of course read and extensively reported by the press,
10 that's when the damage was done.
11 But beyond the homeless shelter -- and I won't
12 elaborate on what Mr. Stahl said. His presentation speaks
13 for itself. But for someone to say that Mr. Withers
14 engaged in an illegal meeting at Maury School, when the
15 very email itself just made reference to the fact that, I
16 can't make it on Saturday, and to take that and to make
17 that the seed, the seed for this kind of charge, is
18 reckless, it's irresponsible. It's as plain and simple as
19 that.
20 Then the Fred Bus. The Fred Bus, as bad or
21 worse -- pictures in the newspaper of Councilman Wilson,
22 Reverend Turner, seated right there in and about Mr.
23 Withers. Strange and warped as it is, another view might
24 be Mr. Withers met secretly with Councilman Wilson and
25 Reverend Turner and here's a picture of them on the Fred
0019
1 Bus. That's the level of absurdity that we have reached
2 through all the hours and for Mr. Withers all of the agony
3 and the risk of public perception in a most deleterious
4 fashion that he is an irresponsible public official.
5 If this code section is one to have any kind of
6 teeth whatsoever, if this code section is one to preclude
7 this kind of reckless and irresponsible action based on no
8 inquiry, no responsible inquiry whatsoever -- and I hope
9 the Court doesn't think I'm engaged in some exercise of
10 hyperbole. But if it doesn't have application here, it's
11 a section without meaning, without content, without
12 recognition of legislative intent.
13 We ask, and I ask on behalf of Mr. Withers, that
14 sanctions be imposed for the damage that has been done and
15 for the fact that there can be nothing, nothing on this
16 day, that these Petitioners have presented or could
17 present to justify the 17 counts against Mr. Withers.
18 Thank you.
19 JUDGE SCOTT: Mr. Sokol, let me ask you a
20 question about it, now that you've mentioned it again, the
21 17 counts. Counts 1 through 9 were dismissed by this
22 Court because at the time that these allegations allegedly
23 allegedly occurred --
24 MR. SOKOL: Yes, sir.
25 JUDGE SCOTT: -- these, the Respondents,
0020
1 especially Mr. Withers and Dr. Fortune, etcetera, were not
2 -- not -- subject to the Freedom of Information Act.
3 MR. SOKOL: Correct.
4 JUDGE SCOTT: Now, if you read all of the emails
5 in counts 1 through 9 -- how shall I put this -- there is
6 a clear reference to Mr. Withers being in attendance at
7 various and sundry locations, gatherings, meetings. Now,
8 had the Court ruled the other way -- and obviously, I've
9 been told again that to rule as I did in reference to the
10 Act not applying to newly elected officials before they
11 take an oath, they become a part of the public body.
12 But had the Court ruled the other way, then Mr.
13 Withers' involvement or attendance at these meetings at
14 the pump house -- and that's the one that just comes to
15 mind, wherever the pump house might be -- in any event,
16 given the reasonableness standard for imposing sanctions,
17 would you not agree that sanctions should not be imposed
18 in reference to 1 to 9 as to Mr. Withers?
19 MR. SOKOL: On the basis of comparability,
20 counts 1 through 9 are not laden with the kind of
21 seriousness that the others are. However, the fact that
22 Mr. Withers had not been sworn before July 1 and was a
23 Councilman-elect, that's juxtaposed with the statute. And
24 with all respect to the Court, I don't see how anyone
25 could bring an action charging someone with a violation
0021
1 before he was a public official.
2 JUDGE SCOTT: All right, I understand your
3 position.
4 MR. SOKOL: Thank you, sir.
5 JUDGE SCOTT: Mr. Kaufman?
6 MR. KAUFMAN: Your Honor, the legal standard for
7 sanctions is based on an -- it's an objective one.
8 JUDGE SCOTT: Yes, as set forth in your
9 amendment.
10 MR. KAUFMAN: I'm sorry?
11 JUDGE SCOTT: That was a good, succinct job of
12 setting forth the standard for determining whether
13 sanctions are in order.
14 MR. KAUFMAN: And it says -- and the rules are
15 that all doubt should be resolved in favor of the non-
16 movant, i.e., in this case Petitioners.
17 Finally, the standard includes the word "could"
18 -- could Petitioners in this case have formed a reasonable
19 belief. The issue is not should they have, the issue is
20 could they have.
21 Now, before I get into too much detailed
22 response, I want to remind the Court, and I'm sure it
23 needs no reminder, that Petitioners dismissed the three
24 counts in issue here when discovery indicated that those
25 counts weren't sustainable in court. We dismissed them,
0022
1 with prejudice. We didn't do a non-suit. We didn't just
2 dismiss them. We dismissed with prejudice.
3 Now, the investigation that was conducted is set
4 out for the Court in the brief and the Court indicated it
5 read it. But let me add a few things as I walk through
6 this very briefly for the Court, and I promise I will be
7 brief.
8 Let me start with some basic context that the
9 Court has already raised, the first nine counts. The
10 Court dismissed it. We brought those counts, and I think
11 the Court acknowledged that, on the basis of a good faith
12 attempt to extend the law to the match, Virginia's law, to
13 match that of Florida.
14 The Court ruled against us. But there's never
15 been a suggestion that that was ill faith. And those nine
16 counts, Your Honor, form the context and background to
17 everything that came after that. As the Court said, there
18 is lots of evidence in those nine counts intrinsic in
19 those emails, without any discovery taken, as to what we
20 knew when we started. Intrinsic in those emails there's
21 lots of information about people getting together, people
22 -- there's an invitation for people during the week of May
23 27th. There's a suggestion of a pump house meeting that
24 this Court has already raised. There's a discussion about
25 getting together along the riverfront to look at things.
0023
1 There are lots of discussions of get-togethers.
2 There is a case that we pled, I think it was
3 originally count 8, involving a gondola issue where all
4 five Respondents apparently got together. But in the
5 email count alone that we pled, they were preparing and
6 drafting a letter that Mayor Beck suggested should go out
7 on mayoral stationary to the Virginia Marine Resource
8 Commission, essentially saying: Hold onto what you're
9 doing because we're about to take power here and we're
10 going to revisit this; don't do anything.
11 Now, even before we got those emails, Mr.
12 Shelton knew about that. He knew about the letter. He'd
13 seen a copy of the letter. He knew that people were
14 getting together sending it, and he actually was the one
15 who dealt with that, and as a result of his successful
16 responses on June 28th -- I think that was the date of the
17 last Council session -- the Council did in fact enact
18 something involving the gondola. I don't have the exact
19 details of it.
20 The Court dismissed this count as preceding
21 swearing in, but there's clearly a gathering. There are
22 signatures on that letter. It's there. Had the Court had
23 permitted me to argue it, I would have shown all kinds of
24 intent to try to interfere with then-current Council
25 business and so on and so forth.
0024
1 But all of these get-togethers and all of these
2 email exchanges in the first nine counts formed a context.
3 The letter formed a context. Before this suit was filed,
4 Mr. Shelton had asked for homeless shelter material in a
5 FOIA dated June 28th. He got the response on I think it
6 was July 3. It was 41 pages.
7 60 days later, on September 3 he gets a letter
8 with Mayor Beck's name on it -- I'm not sure who signed
9 this; it's not the Mayor's signature, but it's by
10 authority; I can't read -- I can't make out who the
11 initials are -- saying: We're sorry for any
12 inconvenience, but we just realized that we didn't give
13 you this material; here's Mr. Timpone's FOIA request to
14 supplement what we originally gave you -- 60 days later.
15 When we went through Mr. Timpone's FOIA request,
16 there's all these emails about what has to be done to
17 comply with Mr. Shelton's initial request. We pled that
18 actually, and the Court dismissed it.
19 But all of this we knew. We also knew that
20 there had been a rumor about a gathering on Charlotte
21 Street which went to -- actually Councilman Howson was
22 asked about it and his email response to Mr. Timpone
23 formed the gravamen of what we did depositions on and
24 actually tried here in front of the Court last Friday.
25 So we've got a confirmed rumor, one rumor
0025
1 confirmed. We've got known context of the letter, the
2 homeless email, homeless shelter emails.
3 So with this context and understanding -- and
4 let's face it, the Respondents are public figures.
5 They've been in some cases known to the public for a good
6 many years. And Mr. Shelton and Mr. Timpone have been
7 able to form some reasonable judgments from dealing with
8 them and this other context.
9 Now, in terms of particularly the so-called Fred
10 Bus meeting, the brief sets out the mystery email. We
11 don't know when it was. We know when it couldn't have
12 been sent. We know when it couldn't have been sent,
13 because on August 7th at 2:38 in the afternoon there's no
14 dispute Mr. Howson's on the bus going up to Dogwood. We
15 don't know when that happened. We just don't know. We
16 call it a mystery.
17 But that mystery email referred specifically to:
18 After talking with you all on the bus, I've changed my
19 plans for the Maury tour. It's at the same rough period
20 of time, which is the first half of August. There was a
21 lot going on.
22 We pled and tried in front of this Court the
23 issue of the electronic meeting that we had labeled "CV
24 Zoning," which essentially revolved around the editing and
25 production and then finally sending of a letter to Mr.
0026
1 Mike Chandler over at Virginia Tech.
2 There was an exchange of emails about the
3 creation, creation and then who would be on the Historic
4 Preservation Committee. There were a number of other
5 things going on that didn't get pled. The emails are
6 going around.
7 It's reasonable in that context of meetings, of
8 the first nine counts, of the material, to suppose that at
9 some point people are going to want to get together and
10 discuss everything that's going on and come up with some
11 final resolution.
12 And Mr. Timpone asked Mr. Howson specifically
13 about this. He emailed him a letter: Tell me about
14 what's going on here. His initial question is reflected,
15 I think, in his deposition because he recalled it quite
16 well. His initial question in this was -- I'm going to
17 paraphrase this: Other than when you went to -- when you
18 went on the Fred Bus to Northern Virginia, when have you
19 met with people on the Fred Bus, other than that?
20 The response that comes back from Mr. Howson is
21 interesting, especially because of his response, I think
22 it was the day before, on Charlotte Street. The response
23 is not like the Charlotte Street response. The response
24 is: "Previously to the trip, I hadn't been on the Fred
25 Bus for years." But that wasn't exactly the question that
0027
1 was asked. The question was, other than this trip, when
2 were you on it?
3 The answer comes back: Well, before the trip I
4 didn't do anything. Okay, but it begs the whole question.
5 Second, Mr. Timpone says what date, who did you
6 meet with on the bus? And the answers are very short and
7 very revealing, because they're essentially: What bus?
8 What meeting? What date? What meeting, what meeting?
9 And then we have this thing about: Pat, I can't answer
10 your questions because this is totally a figment of your
11 imagination. Again, I'm paraphrasing.
12 Mr. Timpone didn't like that response. He
13 compared it with the Charlotte Street response and he was
14 not satisfied. It did not ring with him, and he said
15 that. He said it in his deposition. He said there was
16 something wrong with that. But he didn't follow up. He
17 waited, because he's not satisfied. He's got one rumor
18 confirmed, the other rumor's hanging fire.
19 Then he sees all these emails. An impression is
20 formed among Petitioners. And quite frankly, as I drafted
21 this thing, I had an impression, too. And I've walked the
22 Court through this and I'm not going to bore the Court too
23 much, but I would call the Court's attention to Exhibit 5,
24 which is a series of emails here. But you can find my
25 discussion of Exhibit 5, Your Honor, which might simplify
0028
1 things, on page 4 of the brief.
2 JUDGE SCOTT: I've read the brief.
3 MR. KAUFMAN: Okay. And I would simply call
4 your attention to a few of these emails that were going
5 around. You've got a May 12 email suggesting that an
6 open-ended discussion needs to be held with the whole new
7 Council because -- and I quote -- "If we don't, Joe will
8 beat us over the head for refusing to talk."
9 We've got a May 13 email from Mr. Howson to the
10 Mayor saying: "I think, just between you and me, that the
11 success of our retreat will hinge on our five reaching
12 consensus beforehand."
13 There's a May 17 letter from Mr. Howson to
14 someone named Vernon, someone named Nick, and all the
15 other Respondents, saying: "When is everyone available
16 the week of May 27th so we can sit down together and
17 connect the dots on riverfront?"
18 I'm not going to bore the Court here, but the
19 email 1379 gets my attention because of the sentence here:
20 "It is absolutely imperative we have solid agreement on a
21 near-term, 100 days, action plan and some sort of long-
22 range vision that can be set up for the community and city
23 staff." That was sent out just before -- by the Mayor.
24 It was sent out just before.
25 The next email from the Mayor was: "Let's get"
0029
1 -- "I recommend a meeting at the pump house."
2 We've got a series of emails I won't bore the
3 Court with involving the VMIC letter. I'm sure the
4 Court's intimately familiar with those.
5 We have context. Everything that was pled, a
6 strong impression is formed among all the Petitioners and
7 among counsel, based on simply reading these emails, of
8 what's happening. And what's happening appears to be a
9 group effort. They're getting together privately, they're
10 deciding things, preparing to use their voting power to do
11 things in public. But they're doing all that preparation
12 privately, and the public has a right to know.
13 Now, as to Maury specifically, there's a series
14 of four emails, and the emails essentially indicate Mr.
15 Withers asked Mr. Howson to go and Mr. Howson is reporting
16 that to everybody and inviting everyone to come along. We
17 have an email from Mr. Kelly saying "Friday afternoon is
18 good," an email from Mr. Withers, which is the only email
19 we have a copy of, saying, "I can't go on Friday; how
20 about the weekend or next week?," and a response from Mr.
21 Howson essentially saying Dr. Fortune's only available on
22 Friday, but I'll check with everybody and see about the
23 weekend or next week.
24 The next email we have is that famous mystery
25 email again. The date and time is impossible, absolutely
0030
1 impossible to be accurate. We can't reconcile it with
2 anything. It's a mystery email. This is again the one
3 that's sent at 2:38 on August 7th, and there's absolutely
4 no doubt where everybody is on that date and that time.
5 They're on the trip to Northern Virginia on the Fred Bus.
6 We don't know when that was sent. After the
7 first ones, but we don't know when. And that says: I've
8 changed my plans for the Maury tour. I'm just -- let me
9 get the exact words here. It says: "Since Billy is the
10 only one who's not been through Maury, I'm just going to
11 meet him there Saturday at 10:00." Well, we don't know
12 what Saturday and we don't know who else might decide to
13 come.
14 There's no indication that Dr. Fortune can't
15 come that day, just that during the week Friday afternoon
16 is better for him -- I'm sorry, Friday afternoon was the
17 only time he could come that week. We know that Mr. Kelly
18 likes late Friday. There's been no discussion of
19 Saturdays. We have no idea what's going on, what's
20 coming, and the Mayor hasn't been heard from.
21 So we don't know if it's just Mr. Howson and Mr.
22 Withers or if some of the others are coming. We just
23 didn't know.
24 But we have a context and the context is the one
25 I just described to the Court, a context of private get-
0031
1 togethers to discuss things and to look at things, like
2 the riverfront. So we had a reasonable belief, based on
3 what I said, that a face to face could have happened. And
4 if it did happen among three or more, we believed it was
5 improper and should have been subject to FOIA.
6 Again, Your Honor, let me come back to the
7 standard. The standard is objective, resolving all doubt
8 in favor of the Petitioners: Could we have formed a
9 reasonable belief? I think it's clear we could have based
10 on these emails and what we saw as a proclivity for
11 private meetings. Now, again, when it turned out that
12 that belief was incorrect we dismissed it with prejudice,
13 as is appropriate.
14 As far as the Fred Bus trip, I think I addressed
15 that already and don't see any need to say more, except
16 again, based on context, we could have formed that
17 reasonable belief. When we couldn't sustain it, when it
18 became obvious that what had happened was there was some
19 confusion and what really had happened was the trip on the
20 Fred Bus sponsored by Dogwood Development, we dismissed it
21 with prejudice.
22 As for September 17, what we called count 18,
23 the requested meeting, Ms. Spears' affidavit which the
24 Court has seen indicates that she got the information on
25 September 18th in the evening from talking with Mr.
0032
1 Bolinger. Mr. Bolinger was there at the table. His
2 affidavit sets out his personal observations, what he
3 heard and what he inferred, and this was communicated to
4 Susan.
5 Susan told my client, Mr. Shelton. Mr. Shelton
6 asked me to investigate. It's not on the record, Your
7 Honor, but the Court might know that Mr. Shelton's been
8 quite ill, especially in the last part of September and
9 early October, and he asked me to investigate because he
10 wasn't feeling well, and I did.
11 So I talked to Mrs. Spears. I talked with Mr.
12 Bolinger. I didn't see any reason to get an affidavit
13 from them at that point. I had my basis for filing and
14 asking what was going on, and had they had a meeting,
15 reasonable belief based on two people that I had spoken
16 with.
17 When this Court decided to entertain the motion
18 for sanctions, I then went and asked them, okay, please
19 give me an affidavit setting out what you told me earlier,
20 and that's what I have. That's what the Court's been
21 provided. And there's no real surprise in any of this
22 because I did proffer this to the Court on Friday.
23 Now, I would ask the Court to notice that this
24 case was filed September 26th, less than ten days after
25 the allegations in count 18. I don't know what effect
0033
1 filing that lawsuit had, but it's clear that after that
2 lawsuit was filed there was no meeting and it's clear that
3 there was no meeting before it was filed, in the eight or
4 nine days before it was filed, either. Again, I don't
5 know what effect the lawsuit had, but it's possible that
6 the lawsuit itself could have had an impact on events so
7 that we couldn't prove that count.
8 Finally, motive. Petitioners acted responsibly
9 and reasonably in dismissing these three counts with
10 prejudice when we couldn't sustain them. But at the time
11 they were filed, we did have, as I've just set out,
12 context and facts sufficient to form a reasonable basis
13 for the allegations.
14 There is a court case, Domen v. Sugarman, set
15 out more fully in the brief, the City of Richmond. It's
16 the Circuit Court for the City of Richmond. And it
17 suggests that it is not necessary -- in fact, the court in
18 Sugarman advised against a dismissal with prejudice in
19 circumstances like this. But we did it anyway. We
20 believed we could not sustain these and would not be able
21 to sustain them at any time in the future. We dismissed
22 with prejudice, no non-suit, no simple dismissal. We
23 believe that action, dismissing these three with
24 prejudice, demonstrates our good faith.
25 Thank you, Your Honor -- oh, one more thing.
0034
1 Your Honor, if I might. One point about Mr. Sokol's
2 comments on behalf of Mr. Withers. At the time this case
3 was filed -- the Court might remember on November 1st I
4 raised the issue of how we had approximately 41 pages or
5 so of blank emails from Mr. Withers, which had his name at
6 the top and no date and no -- no date, no "To", and no
7 content.
8 So at the time we filed we've got these blank
9 pages and we don't know what's in them. When the Court
10 permitted discovery, we had hoped that we would be -- that
11 those 41 pages would have content. So as for Mr. Sokol
12 and Mr. Withers, we've got the one definite email and 41
13 blank pages, which indicated they were emails, but we
14 didn't know who it was from, we didn't know when it was
15 sent, and we didn't know what the content was.
16 So those blank emails alone were enough to make
17 us believe that there was something there, something that
18 would demonstrate more involvement with Mr. Withers --
19 excuse me, Your Honor -- more involvement by Mr. Withers
20 in these matters than actually turned out to the case.
21 Thank you.
22 JUDGE SCOTT: Mr. Stahl, would you like to call
23 any witnesses?
24 MR. STAHL: Yes, Your Honor. We would like to
25 call Mr. Kaufman.
0035
1 JUDGE SCOTT: We've ruled on that, Mr. Stahl.
2 MR. STAHL: I have a different reason for
3 calling Mr. Kaufman this time, Your Honor, if you'd allow
4 me to offer it to the Court.
5 JUDGE SCOTT: No problem.
6 MR. STAHL: The third part of the rule -- and I
7 would, if Your Honor would allow rebuttal argument on his
8 argument --
9 JUDGE SCOTT: Well, not if we're going to call
10 witnesses. What I want to do is call witnesses.
11 MR. STAHL: I want to call Mr. Kaufman on the
12 third part of the rule, the one that says that by filing
13 you certify you've read it, you've reasonably inquired,
14 and, three, it's not interposed for any improper purpose,
15 such as to harass or to cause unnecessary delay or
16 needlessly increase the cost of litigation.
17 What I want from Mr. Kaufman is who's paying
18 him. As Your Honor will recall, on Friday as part of the
19 argument that we had concerning sanctions, in the
20 testimony of Shelton, Timpone, and Jenkins they all
21 refused to say who's paying their legal fees, and it
22 became quite clear they're not paying their legal fees and
23 that's why they felt totally comfortable in doing whatever
24 it is they were told to do by whoever told them to do it
25 and file the lawsuit, because there are no consequences to
0036
1 them. It's not their money.
2 Nothing would be more germane to the question of
3 harassment, the motivation, if the Court were to conclude
4 after hearing the testimony of Mr. Kaufman or perhaps Mr.
5 Shelton or others that, we aren't paying our fees, they're
6 being paid by the X Corporation or some other group of
7 people who otherwise don't want to get involved, and we
8 found out what it was these people told these people to
9 allege.
10 Much like the filing, as the Court will recall,
11 from the November 1 argument on the placing of the
12 advertisements in the Freelance Star, full-page ads. Who
13 paid for those? What's the purpose of this filing, which
14 on the basis of what Mr. Kaufman has just argued it's very
15 clear they didn't have a basis at all for the three counts
16 I've been talking about.
17 And you heard as to Mr. Withers they had some
18 blank pages. Because they were blank, they thought they
19 could infer there must be violations of law here, so let's
20 sue him.
21 On the second part of the rule, I don't believe
22 there could be any serious contention that it's violated
23 in the most obvious way. I now want to show that the
24 third part of the rule has been violated because it was
25 brought solely, this entire case -- 17 counts out of 18
0037
1 have either been dismissed or found for the Respondents by
2 the Court. This case was brought solely for political
3 reasons, for the purpose to harass these Respondents.
4 So I'd like to call Mr. Kaufman.
5 JUDGE SCOTT: The motion is denied.
6 MR. STAHL: Then I'd like to call Mr. Shelton.
7 JUDGE SCOTT: Yes, you can call Mr. Shelton.
8 But one moment, Mr. Stahl. Have a seat.
9 MR. STAHL: I'm sorry, Your Honor.
10 JUDGE SCOTT: I heard your comment on Friday
11 about you want to know who's paying, and I've heard you
12 say that now more than once. The Court thought about that
13 comment. The Court -- I want you to make sure you
14 understand my meaning. The Court thought about the fact
15 that the Freedom of Information Act in essence is what I'm
16 going to call a people's statute. Its purpose is to
17 promote open government, open discussion, in other words
18 so that the public knows what's going on in reference to
19 the public business.
20 When there are legitimate questions as to
21 compliance with this Act, it is hoped, obviously, by the
22 drafters of the statute that citizens would make inquiry,
23 as some citizens have done, to obtain information with
24 reference to potential violations of the Act and would
25 then exercise reasonableness and common sense in
0038
1 determining whether or not the public business is being
2 conducted in a public forum or whether something else is
3 occurring. Sometimes that costs money or it takes money
4 in order to do that.
5 Have you ever heard of the case NAACP versus
6 Buttons, Mr. Stahl?
7 MR. STAHL: Yes, Your Honor.
8 JUDGE SCOTT: In that case the State of Virginia
9 wanted to know who was paying, among other things, and
10 they insisted -- that is, the good Commonwealth of
11 Virginia insisted -- that they be provided with a list of
12 persons who contributed to the NAACP Legal Defense Fund,
13 which primarily conducted the civil litigation campaign
14 that resulted in -- well, we all know who it resulted in.
15 The Supreme Court said that there shall be no
16 chilling effect by government or anyone else under the
17 circumstances.
18 The Court would specifically find in reference
19 to your request wanting to know, quote unquote, "who pays"
20 or "who's paying," that there is an analogy here. So any
21 inquiry in reference to, to use your term, "who's paying,"
22 is inappropriate.
23 Call your first witness.
24 MR. STAHL: Your Honor, may I be heard briefly,
25 not to argue Your Honor's ruling, but only to make a
0039
1 distinction? I'm well aware of Buttons. That was a
2 radically, radically different case --
3 JUDGE SCOTT: Not very.
4 MR. STAHL: -- where the State of Virginia most
5 improperly sought to determine the membership of the NAACP
6 --
7 JUDGE SCOTT: Right.
8 MR. STAHL: -- which could not have violated
9 more grotesquely the First Amendment. I'm not -- there's
10 no political action group here. There's no public
11 interest being asserted here. We have three Petitioners
12 allegedly in their individual capacities.
13 JUDGE SCOTT: The enforcement of the Act is a
14 public purpose.
15 MR. STAHL: Your Honor, no question about it.
16 And but for the Respondents having fully complied with the
17 Act in terms of producing these emails, doing exactly what
18 the Act was intended to accomplish, we wouldn't even be
19 here. No one would even know what anyone had written to
20 anyone else. The Act worked beautifully.
21 We are not trying to inquire into the motivation
22 of a political action committee, a group that is
23 politically opposed to Respondents. That has nothing to
24 do with it. But if I, Your Honor, were to give to you a
25 hypothetical that a business in the City of Fredericksburg
0040
1 was paying for this litigation solely for the purpose of
2 trying to chill the First Amendment and statutory rights
3 of the Respondents to be good stewards of government and
4 to be Councilmembers and the Mayor of Fredericksburg, that
5 what they were doing was improper, I would proffer to Your
6 Honor it would be exactly the opposite of the hypothetical
7 or the statement Your Honor made to me.
8 JUDGE SCOTT: Mr. Stahl, for the reasons that I
9 stated we're not going to get into, quote, "who's paying."
10 Call your first witness.
11 MR. STAHL: Your Honor, that is what I want to
12 know from Mr. Shelton, because he said he's not and he
13 wouldn't tell us who is.
14 JUDGE SCOTT: Well, I read his deposition.
15 That's exactly what he said.
16 MR. STAHL: Very well.
17 JUDGE SCOTT: Call your next witness.
18 MR. STAHL: I don't have a witness, I don't
19 believe, Your Honor.
20 Your Honor, may I correct one thing? Not to
21 correct it, but to add to it. Early on today Mr. Kaufman
22 made a representation to the Court that he never got a fax
23 from my office asking for these documents. And I'm not
24 re-arguing Your Honor's ruling, but I want the record to
25 be clear, that I have in my hand the fax we sent him along
0041
1 with the transmission sheet that shows it was successfully
2 sent and received.
3 JUDGE SCOTT: You're talking about the Saturday
4 afternoon?
5 MR. STAHL: Yes, Your Honor.
6 JUDGE SCOTT: Or Saturday some time.
7 MR. STAHL: I know it is a nit, but if it's a
8 question of our integrity of what we did I didn't want to
9 leave any misimpression in the record. And if Your Honor
10 would like --
11 JUDGE SCOTT: I don't doubt your integrity at
12 all in reference to believing that you sent it and you've
13 got the confirmation sheet.
14 MR. STAHL: I do. Thank you, Your Honor.
15 JUDGE SCOTT: Mr. Kaufman, is there any oral
16 testimony that you'd like to present?
17 MR. KAUFMAN: No, Your Honor. But again, I can
18 only reiterate that, whatever their sheet shows, it didn't
19 come in. I don't know why.
20 JUDGE SCOTT: I don't doubt that statement. He
21 sent it. The issue is whether you received it and you've
22 answered no.
23 MR. KAUFMAN: Your Honor, I have no witnesses.
24 I'm content with the argument and my submission to the
25 Court.
0042
1 JUDGE SCOTT: All right. Mr. Sokol, it appears
2 that if there's anything else you'd like to add to your
3 presentation now would be the time.
4 MR. BARNSBACK: Your Honor, I don't want to
5 interrupt Mr. Sokol. May I have the Court's leave to
6 leave for a moment? And certainly it's no slight to Mr.
7 Sokol, but I have to take care of a personal matter, if
8 the Court wouldn't mind if I leave the courtroom.
9 JUDGE SCOTT: Yes.
10 MR. BARNSBACK: Thank you, Your Honor. I didn't
11 want to get up without saying something to the Court. I
12 apologize.
13 JUDGE SCOTT: That's all right. Do you want to
14 take a recess?
15 MR. BARNSBACK: No, Your Honor, no need for a
16 recess.
17 MR. SOKOL: If Your Honor please, I'd like to
18 again call the Court's attention to the memorandum the
19 Petitioners filed. At page 21 and at the top, that
20 paragraph was repeated in his argument by Mr. Kaufman. I
21 think it speaks very meaningfully to the sort of thinking
22 process or lack of thinking process that produced this
23 unfortunate petition:
24 "The Petitioners would like the Court to take
25 judicial notice that their petition was filed on September
0043
1 26, 2002, and that Petitioners' action in filing the
2 petition could have" -- "could" I think is the operative
3 word. The statute doesn't make any reference to "could."
4 It says that the attorney and the petitioner "certify" --
5 to me the word "certify" means vouch -- "that what they
6 are setting forth therein in each of the counts is well-
7 grounded in fact" -- "well-grounded in fact."
8 Then they have the audacity in presenting this
9 paper to invite the Court to credit them, to credit them,
10 to say: Well done, Mr. Kaufman, well done, Mr. Timpone,
11 because your filing this petition could have, could have
12 precluded Respondents actually meeting privately for the
13 purpose alleged.
14 So now Petitioners and their counsel are telling
15 the Court the meeting never took place, notwithstanding
16 the fact you said it was well-grounded in fact, and we
17 filed this petition and the meeting didn't take place, and
18 it was going to take place.
19 Then they say finally, to seal, to seal their
20 ongoing acts of responsibility, that if this was the
21 effect of the Petitioners' action, it was well done. And
22 if Your Honor doesn't award sanctions in some meaningful
23 and more than minimal way, it gives more incentive to the
24 repetition of this kind of thinking of could-have's and
25 the unfortunate effect it has produced, and I therefore
0044
1 ask that the sanctions be imposed on one or more of the
2 counts on behalf of Mr. Withers.
3 JUDGE SCOTT: Now, Mr. Stahl, we've heard your
4 argument. I assume that you have presented in argument
5 all that you would wish to say as to this issue?
6 MR. STAHL: Certainly I have presented all the
7 Court wishes to hear on this issue.
8 JUDGE SCOTT: No comment.
9 MR. KAUFMAN: I have nothing further, Your
10 Honor.
11 JUDGE SCOTT: The Court, recognizing the
12 standard for the award of sanctions, which is set forth
13 very succinctly in the Petitioners' brief, and considering
14 the argument that we have heard this morning and
15 considering as well the alleged factual basis or the
16 complete factual basis for the filing of counts 15, 16,
17 and 18 and applying that objective standard of
18 reasonableness to the presentations this morning, finds
19 that sanctions should be awarded in reference to the Fred
20 Bus trip and the Maury School meeting. Those are
21 convenient titles that have been given the counts numbers
22 15 and 16.
23 The Court, based on Mr. Stahl's representation
24 on Friday that legal fees and costs approached $90,000 in
25 reference to this matter -- and Mr. Stahl, I presume you
0045
1 still believe that; is that correct?
2 MR. STAHL: It's in excess of that amount, Your
3 Honor.
4 JUDGE SCOTT: The Court, recognizing however
5 that the Petitioners did prior to trial dismiss these
6 counts with prejudice, assesses sanctions in the amount of
7 $4,000 as to each count. How that is distributed,
8 frankly, Mr. Stahl, I have no idea, because obviously if
9 in fact your firm is paid by the City of Fredericksburg
10 that sum should be reimbursed to the City of
11 Fredericksburg.
12 MR. STAHL: Whatever the Court awards that the
13 Petitioners pay, Mr. Sokol and I will turn back to the
14 City of Fredericksburg, obviously.
15 JUDGE SCOTT: The award therefore totals $8,000,
16 payable to the City of Fredericksburg, however
17 logistically you and Mr. Kaufman and his clients wish to
18 work it out.
19 MR. KAUFMAN: Your Honor.
20 JUDGE SCOTT: Yes?
21 MR. KAUFMAN: Just a point of clarification.
22 Against whom is this award?
23 JUDGE SCOTT: Against the Petitioners, not
24 counsel.
25 Mr. Kaufman, I asked on Friday that you prepare
0046
1 the order in reference to Friday's hearing as to all
2 issues.
3 MR. KAUFMAN: Are you talking to me, Your Honor?
4 JUDGE SCOTT: No. I'm sorry, I'm looking at Mr.
5 Stahl and I apologize, Mr. Kaufman, because that's the
6 second time I've done that.
7 MR. KAUFMAN: That's okay.
8 JUDGE SCOTT: Mr. Stahl, I asked you on Friday
9 to prepare the order in reference to Friday's proceedings.
10 MR. STAHL: You did, Your Honor. We have
11 delayed doing that for two reasons. One, we were waiting
12 for the transcript fully of Friday because there were a
13 number of different orders, as the Court will recall, on
14 that date. Secondly, we thought we would have this
15 concluded, as apparently we have, today and we'd embody it
16 all in one order.
17 JUDGE SCOTT: I'm going to ask you to do
18 something totally different.
19 MR. STAHL: All right, Your Honor.
20 JUDGE SCOTT: I want to give both of you input
21 in reference to the order, so I'm going to ask you to
22 circulate the order, as you would normally do it. I'm
23 going to ask that a separate order be prepared in
24 reference to today's proceedings and -- because I am going
25 to, I'm sure, add a great deal probably to your order in
0047
1 reference to Friday. So if you could just get me a draft
2 as soon as you can, I'd appreciate that.
3 MR. STAHL: Within a day or so, Your Honor.
4 JUDGE SCOTT: That's fine.
5 MR. STAHL: Very well, Your Honor.
6 JUDGE SCOTT: Anything else, gentlemen?
7 MR. KAUFMAN: I have nothing, Your Honor.
8 JUDGE SCOTT: Court's adjourned to 9:00 o'clock
9 tomorrow morning.
10 (Whereupon, at 10:15 a.m., the hearing in the
11 above-entitled matter was adjourned.)
12
1 APPEARANCES:
2 On behalf of Petitioners:
3 DAVID ZACHARY KAUFMAN, ESQ.
4 Kaufman Law Office
5 10625 Jones Street, Suite 201A
6 Fairfax, Virginia 22030
7 703-764-9080
8 MICHAEL E. BARNSBACK, ESQ.
9 DiMuro, Ginsberg and Mook, P.C.
10 908 King Street, Suite 200
11 Alexandria, Virginia 22314
12 703-684-4333
13
14 On behalf of Respondents Beck et al.,
15 HOWARD H. STAHL, ESQ.
16 JOHN F. O'CONNOR, ESQ.
17 Steptoe and Johnson
18 1330 Connecticut Avenue, N.W.
19 Washington, D.C.
20 202-429-3000
21 On behalf of Respondent Withers:
22 WILLIAM M. SOKOL, ESQ.
23 904 Princess Anne Street, Suite 101
24 Fredericksburg, Virginia 22401
25 540-899-9144
0003
1 P R O C E E D I N G S
2 JUDGE SCOTT: Good morning.
3 MR. STAHL: Good morning.
4 MR. KAUFMAN: Good morning. Your Honor, there's
5 a preliminary matter.
6 JUDGE SCOTT: One moment. One moment, Mr.
7 Kaufman, one moment.
8 (Pause.)
9 JUDGE SCOTT: Now, what's your preliminary
10 matter?
11 MR. KAUFMAN: Your Honor, at Mr. Stahl's request
12 I'm putting -- I would like to present to the Court our
13 offer of a compromise and settlement, even though we
14 believe that no sanctions are merited and that we've
15 brought these cases, these counts, in good faith. That
16 offer of compromise and settlement is that we will drop
17 our rights to appeal for the various counts, they drop
18 their rights to appeal and drop their claim for sanctions,
19 it ends the case and we all walk away.
20 JUDGE SCOTT: All right. You say you're putting
21 that on the record at Mr. Stahl's request?
22 MR. KAUFMAN: Yes, sir.
23 MR. STAHL: It was not at my request, Your
24 Honor. Mr. Sokol approached -- Mr. Kaufman approached me
25 five minutes, ten minutes before the Court convened and
0004
1 said: I'd like to speak with the Judge in chambers. I
2 said: About what topic? And he said: About a proposed
3 settlement. And I said: I have (no) interest in having any
4 off-the-record discussions with you whatever. And that
5 led to this.
6 I did not ask for this to be put on the record.
7 The first time I have heard it is right now. Nothing
8 could be more inappropriate and certainly politically
9 motivated than to make an offer of settlement on a record
10 at the beginning of a hearing on our application for
11 sanctions. I never heard it until I just heard it.
12 MR. KAUFMAN: Your Honor.
13 JUDGE SCOTT: Mr. Kaufman, if that's the case
14 let's not pursue this discussion.
15 MR. KAUFMAN: The only thing I'd add, Your
16 Honor, is that Mr. Stahl didn't want to listen to it. He
17 told me he had no interest in even listening to it.
18 JUDGE SCOTT: Well, that's his prerogative.
19 MR. KAUFMAN: Absolutely.
20 JUDGE SCOTT: That's his prerogative.
21 All right, this matter comes on for the limited
22 purpose today of discussing sanctions. Mr. Stahl, any
23 additional argument on behalf of the Respondents?
24 MR. STAHL: Argument and there very well may be
25 a need and I believe there is a need, Your Honor, to put
0005
1 on some additional evidence.
2 JUDGE SCOTT: That being the case, make your
3 argument very brief.
4 MR. STAHL: I will. Let me raise one issue with
5 the Court. At the conclusion of the hearing on Friday
6 last, Your Honor, I raised the issue with the Court to
7 ensure that we would get a copy of the Petitioners'
8 pleadings at a reasonable hour yesterday so that we would
9 see what they wanted to say and have an opportunity to
10 prepare for it.
11 Last night at 15 minutes until 7:00, we received
12 by fax, after several phone calls during the day to Mr.
13 Kaufman's office, the barebones pleading itself.
14 JUDGE SCOTT: Without exhibits?
15 MR. STAHL: Not a single one.
16 JUDGE SCOTT: No, I know, because I received the
17 same thing probably a few minutes before you.
18 MR. STAHL: None of them. And when we got here
19 this morning at about a quarter of 9:00, five minutes
20 before this statement that you just heard about, Mr.
21 Kaufman handed me the stack of exhibits that's three or
22 four inches tall. In those exhibits we noticed, had a
23 moment or two to review, there are two affidavits,
24 Bolinger and Spears. The one by Bolinger's not even
25 notarized.
0006
1 Those clearly have no place in this proceeding.
2 They're untested by cross-examination. They're the
3 rankest of hearsay, produced today. The one from Spears
4 is actually notarized last Saturday, so what could
5 conceivably be the explanation for not having faxed us
6 that on Sunday or yesterday?
7 This is all a game and charade. We should have
8 had this. I asked Mr. Kaufman this morning, I said: Why
9 did you not all me or Mr. O'Connor last evening? We would
10 have driven over to pick up the pleadings, the exhibits.
11 No response.
12 It violated Your Honor's order. It handicaps us
13 enormously. It tries to put in before Your Honor the
14 rankest, grossest hearsay that certainly has no place in
15 this proceeding. If they wish to call witnesses and the
16 Court permits, so be it. But we've been dramatically
17 handicapped, as in everything else in this case.
18 JUDGE SCOTT: Mr. Kaufman, do want a
19 continuance? I'm sorry. Mr. Stahl, do you want a
20 continuance?
21 MR. STAHL: No. No, I don't want a continuance.
22 But I want certainly to strike those affidavits, Your
23 Honor. I mean, they're affidavits. Everything in this
24 case thus far as either been tested by cross-examination
25 before Your Honor or been in depositions where both
0007
1 parties have been present and there's been an opportunity
2 to cross-examine.
3 In light of where we are and in light of this
4 application or opposition they filed 16, 15 pages of which
5 have got nothing to do with sanctions, I believe we do
6 need to call some additional witnesses, Your Honor.
7 MR. SOKOL: If Your Honor please, I'd like to
8 reserve the right for argument following testimonial
9 presentation.
10 JUDGE SCOTT: All right, Mr. Sokol, you'll be
11 given that opportunity for closing argument when we reach
12 that stage.
13 MR. SOKOL: Thank you, Your Honor.
14 JUDGE SCOTT: Let me say this to both of you.
15 The Court will entertain additional testimony, but this
16 hearing need not last more than two hours.
17 The Court received the same fax that you did,
18 Mr. Stahl. The fortunate part about it, at least as far
19 as this case is concerned, is that court lasted last night
20 until quarter to 8:00. So when I went downstairs, there
21 was this document. I won't describe it as to length. The
22 Court reviewed it last night, having received it whenever
23 it came in, but not being aware of it until about quarter
24 to 8:00.
25 No exhibits were attached, you're absolutely
0008
1 right. The exhibits were seen by this Court for the first
2 time this morning at approximately 8:15, approximately,
3 approximately.
4 The Court frankly sees no need for any
5 additional evidence or testimony other than a presentation
6 by the Respondents as to actual dollars. And obviously,
7 Mr. Kaufman, we have considered your argument or will have
8 considered your argument in your motion, and if you wish
9 to put in some brief testimony, and I mean brief, as to
10 certain aspects of things that you have alleged which
11 establish a reasonable basis for your including various
12 counts in your original bill of complaint, that would be
13 fine.
14 But anything else I can't imagine would be
15 either appropriate or germane to this proceeding, and
16 that's how I intend to proceed.
17 Are we ready?
18 MR. STAHL: We're ready, Your Honor.
19 JUDGE SCOTT: Now, opening statement. Given the
20 fact you want to call witnesses, please make it brief.
21 OPENING STATEMENT ON BEHALF OF RESPONDENTS
22 BECK ET AL.
23 MR. STAHL: All right. Your Honor, the first
24 witness we'd want to call and the reason for it is Mr.
25 Kaufman. As you'll recall, in our motion for sanctions
0009
1 that we provided Your Honor a week ago we included in that
2 20-odd pages of deposition transcripts that unambiguously
3 establish that the Petitioners in this case had no
4 knowledge, first, second, third-hand, at all as to any
5 allegations that were made with respect to the three
6 counts that we're speaking of today, 15, 16, and 18.
7 They had no idea of where any of the rumors came
8 from about Maury School. They were totally
9 unknowledgeable on the Fortune comment and the alleged
10 meeting thereafter. On the homeless shelter, no knowledge
11 at all.
12 It was said at the argument last Friday by Mr.
13 Kaufman that he had conducted the investigation concerning
14 these facts and in the pleading that he filed last night
15 he said that it wasn't surprising that Shelton, Jenkins,
16 and Timpone knew nothing about any underlying facts that
17 would demonstrate the due diligence, the requisite
18 inquiry, that Rule 8.01-271.1 requires, because he had
19 done the investigation.
20 We would like to call Mr. Kaufman to explain to
21 this Court what investigation he did, when he did that
22 investigation. We sent him a letter on Saturday morning
23 saying, in light of your comments to the Court, we would
24 like you to produce to us any notes or memoranda that you
25 made or kept of any investigation you did pre-filing that
0010
1 related to compliance with this rule, along with any of
2 your time records to show that in fact interviews or
3 meetings or the like were in fact conducted to garner that
4 information.
5 So the first witness we'd like to call with that
6 reason would be Mr. Kaufman.
7 JUDGE SCOTT: Mr. Kaufman?
8 OPENING STATEMENT ON BEHALF OF PETITIONERS
9 MR. KAUFMAN: Your Honor, this petition for
10 sanctions deals with -- excuse me. The motion for
11 sanctions deals with Petitioners, not with counsel.
12 Furthermore, in the brief here I set out quite clearly
13 what we did with the emails and the other material here.
14 Everything there is contained there.
15 Finally, I never got this letter that they say
16 they sent me on Saturday. It hasn't come yet. They
17 didn't fax it to me that I'm aware of, and I would have
18 seen the fax. So I have absolutely no idea until he just
19 said that, this letter, never seen it, don't have any
20 knowledge of it. That's all I know.
21 But in terms of what counsel did to investigate,
22 that's set forth in the brief. This other material is
23 attempting to invade attorney work product and other
24 client confidential matters here. I don't understand why
25 they are doing it and I don't think it's in any way
0011
1 appropriate.
2 JUDGE SCOTT: Would you like to make any further
3 comment as to the issue of sanctions, irrespective of
4 whether you're called as a witness or not?
5 MR. KAUFMAN: I have quite a bit to say to the
6 Court about sanctions, but I had planned that for my
7 closing.
8 JUDGE SCOTT: Okay, that's fine.
9 The motion to all Mr. Kaufman as a witness is
10 denied. Who else would you like to call, or would you
11 like to make an opening statement?
12 MR. STAHL: I would like to make an opening
13 statement then, Your Honor, with respect to the first part
14 of the rule, if I might. 8.01-271.1 says that in the
15 filing of a complaint and the signing of a petition the
16 signature of the attorney or party constitutes a
17 certificate by him that, three things, Your Honor: one,
18 he has read the pleading, motion, or other paper; two, to
19 the best of his knowledge, information, and belief, formed
20 after reasonable inquiry, it is well-grounded in fact and
21 is warranted. I'll leave the rest out.
22 And the "and" is the third part, which I'll get
23 to in a moment, "is not interposed for any improper
24 purpose, such as to harass or to cause unnecessary delay
25 or needless increase in the cost of litigation."
0012
1 As to point 2, which is the point that I wanted
2 to call Mr. Kaufman on, what was to the best of his
3 knowledge, information, and belief, formed after
4 reasonable inquiry, that indicated to him that the
5 petition was well-grounded? The evidence, Your Honor, now
6 is irrefuted by the Petitioners that nothing was done by
7 the Petitioners to comply with part 2 of 8.01-271.1.
8 Shelton, Timpone, and Jenkins said they had no
9 idea where these three allegations came from. In Shelton
10 and Jenkins' case, they were totally clueless. When we
11 asked Shelton, for example, about the Fred Bus trip, he
12 said: "I don't know where we got that line." When we
13 asked him about Maury School, how did you know that a
14 meeting took place, he said: "I just read between the
15 lines."
16 And Maury School, Your Honor, is a particularly
17 egregious count to have been made because, if you'll
18 recall, originally Your Honor was going to grant the
19 demurrer, sustain the demurrer with respect to count 15,
20 the email count, but you allowed them to replead. And
21 they did replead, and they didn't replead on an email
22 count. They repled and said: And the meeting in fact
23 took place involving all of these Respondents.
24 No investigation, no analysis, no nothing. They
25 read between the lines. The Fred Bus trip, a malicious
0013
1 figment of their imagination. The Fortune episode and the
2 alleged meeting thereafter, which never of course
3 happened, a total figment of their imagination. They've
4 offered no evidence in their deposition and have offered
5 no evidence here to justify any basis for believing that
6 any such meeting happened.
7 Instead, what they try and sneak in, which we
8 only saw moments ago and I'm not even sure if Your Honor's
9 yet seen them at all, are two alleged affidavits, one of
10 which is not even notarized, that say that someone
11 inferred that a meeting might have taken place, which of
12 course never did.
13 So as to the Petitioners, we know they had no
14 evidence. They clearly have violated the rule. So who
15 else are we left with to see, was there compliance with
16 this rule? Only Mr. Kaufman, and in Mr. Kaufman's brief
17 on behalf of these Petitioners at footnote 2 on page 4, he
18 says:
19 "Respondents make much ado in their motion for
20 sanctions about Petitioners' inability to recall facts
21 during their depositions. But had Respondents asked the
22 Petitioners, which they did not, about their preparation
23 for the depositions, Respondents might have learned that
24 before their individual depositions Petitioners did no
25 review of any documents, no review of any pleadings, and
0014
1 had no preparation by their attorney. Petitioners asked
2 their attorney to investigate and he did so."
3 "It is therefore" -- I'm skipping the cite, Your
4 Honor. "It is therefore unsurprising that on many
5 occasions Petitioners would have been unable to recall the
6 facts necessary to formulate answers to the detailed
7 questions put to them by Respondents during their
8 deposition."
9 So he admits they didn't know anything; he knew
10 it. Well, he's just refused to testify. He's just
11 refused to tell Your Honor of what he did in order to
12 comply with the rule I earlier referenced.
13 The only evidence before Your Honor at this
14 point, in light of that declination -- as a matter of
15 fact, there is no evidence to show they did anything to
16 comply with this rule. So on this standard alone, the
17 Respondents are absolutely entitled to their, at a
18 minimum, attorney's fees and costs incurred in defending
19 against these scurrilous, baseless, unsubstantiated and
20 uninvestigated allegations.
21 I should say at this point perhaps, Your Honor,
22 we have not prepared a fee application in the sense of
23 detailing and breaking out the dollars that would be
24 required to substantiate the amount of time we spent in
25 dealing with these counts. But obviously, to the extent
0015
1 the Court awards sanctions and those sanctions would be
2 attorney's fees and costs, we would present that for Your
3 Honor's consideration with any comment the Petitioners
4 might want to make as well.
5 MR. SOKOL: If Your Honor please, perhaps this
6 would be an appropriate time for me to present the motion
7 for sanctions on behalf of Mr. Withers.
8 JUDGE SCOTT: All right, Mr. Sokol.
9 MR. SOKOL: With the Court's permission.
10 MR. STAHL: May I just say one thing before Mr.
11 Sokol begins, Your Honor?
12 JUDGE SCOTT: One moment, Mr. Sokol.
13 MR. STAHL: And I just didn't want to leave this
14 dangling. There is yet the third part of the rule, Your
15 Honor, that I read to you, about the "and", that the case
16 was not interposed for any improper purpose. We do want
17 to put evidence on on that, to establish that that portion
18 of the rule was violated as well.
19 OPENING STATEMENT ON BEHALF OF
20 RESPONDENT WITHERS
21 MR. SOKOL: If Your Honor please: Although this
22 is one petition, it involves five separate parties.
23 May I face the Court, Your Honor?
24 JUDGE SCOTT: Yes.
25 MR. SOKOL: It involves five separate parties.
0016
1 Mr. Withers of course is mindful of the fact that he's one
2 of five Councilmen, but he's also quite sensitive to the
3 fact that it's Mr. Withers, Billy Withers, who has been
4 charged in this petition, and there's a direct impact and
5 effect upon him.
6 I'm mindful of the fact that when Your Honor was
7 about to adjourn several days ago that you said you were
8 particularly concerned about two counts. But I think it's
9 fair and I trust that Your Honor will permit, in behalf of
10 Mr. Withers, to go beyond those two counts, because the
11 case against Mr. Withers, the non-case against Mr.
12 Withers, exceeds, goes beyond the boundaries of these two
13 counts, subsumes 17 counts.
14 I think in the matter of sanctions, if I may
15 suggest that this is not an ordinary, garden variety
16 negligence kind of case. This is not a case where the
17 Petitioners were under the constraint of the looming
18 expiration of a statute of limitations. The Petitioners
19 had good and sufficient time before they made the decision
20 to execute an oath -- Mr. Timpone -- and to combine with
21 counsel in making charges against Mr. Withers at least on
22 two levels that are quite troublesome.
23 Number one, that he engaged in an exchange of
24 emails so that the public could be excluded from the
25 deliberations of Council. But it went beyond that. Each
0017
1 and every count is marked by this nefarious allegation
2 that Mr. Withers engaged in a course of conduct willfully
3 -- and the first of course was also willful, but willfully
4 -- to exclude Mr. Wilson and Reverend Turner.
5 Now, what had these Petitioners received? They
6 had received bundles of emails. Their review of those
7 emails, it wouldn't take a law degree, it wouldn't take
8 much education, for them to conclude that Mr. Withers did
9 not send any emails out whatsoever, save one when he said:
10 I can't come either Friday or Saturday. And that became
11 the basis for two-digit charges that he willfully excluded
12 these other two Councilmen, that he willfully discussed
13 public business, that he willfully intended to avoid
14 public awareness of public business.
15 There's nothing, there is nothing, there to
16 justify this charge against a public official.
17 Then the charge is that not only did Mr. Withers
18 in a premeditated kind of fashion, willful, subvert the
19 law, undermine the public interest by the use of email,
20 but no, he had face to face meetings. Mr. Withers had a
21 meeting with other Councilmen to discuss what shall be
22 done by relocating the homeless shelter and setting
23 priorities, after a whisper overheard, a whisper of Mr. -
24 - or Dr. Fortune.
25 If Your Honor looks to the transcripts, there's
0018
1 not anything, nothing. No person, except a person that
2 lived in a world of hallucination or imagination or
3 malicious intent on the part of the Petitioners, could
4 possibly conjure and conceive and then file.
5 And that's where the damage is. The damage has
6 been done. It's not enough for Mr. Kaufman to say, six
7 weeks later, we drop charges. When they filed this
8 petition in this court, a public document, subject to, and
9 was of course read and extensively reported by the press,
10 that's when the damage was done.
11 But beyond the homeless shelter -- and I won't
12 elaborate on what Mr. Stahl said. His presentation speaks
13 for itself. But for someone to say that Mr. Withers
14 engaged in an illegal meeting at Maury School, when the
15 very email itself just made reference to the fact that, I
16 can't make it on Saturday, and to take that and to make
17 that the seed, the seed for this kind of charge, is
18 reckless, it's irresponsible. It's as plain and simple as
19 that.
20 Then the Fred Bus. The Fred Bus, as bad or
21 worse -- pictures in the newspaper of Councilman Wilson,
22 Reverend Turner, seated right there in and about Mr.
23 Withers. Strange and warped as it is, another view might
24 be Mr. Withers met secretly with Councilman Wilson and
25 Reverend Turner and here's a picture of them on the Fred
0019
1 Bus. That's the level of absurdity that we have reached
2 through all the hours and for Mr. Withers all of the agony
3 and the risk of public perception in a most deleterious
4 fashion that he is an irresponsible public official.
5 If this code section is one to have any kind of
6 teeth whatsoever, if this code section is one to preclude
7 this kind of reckless and irresponsible action based on no
8 inquiry, no responsible inquiry whatsoever -- and I hope
9 the Court doesn't think I'm engaged in some exercise of
10 hyperbole. But if it doesn't have application here, it's
11 a section without meaning, without content, without
12 recognition of legislative intent.
13 We ask, and I ask on behalf of Mr. Withers, that
14 sanctions be imposed for the damage that has been done and
15 for the fact that there can be nothing, nothing on this
16 day, that these Petitioners have presented or could
17 present to justify the 17 counts against Mr. Withers.
18 Thank you.
19 JUDGE SCOTT: Mr. Sokol, let me ask you a
20 question about it, now that you've mentioned it again, the
21 17 counts. Counts 1 through 9 were dismissed by this
22 Court because at the time that these allegations allegedly
23 allegedly occurred --
24 MR. SOKOL: Yes, sir.
25 JUDGE SCOTT: -- these, the Respondents,
0020
1 especially Mr. Withers and Dr. Fortune, etcetera, were not
2 -- not -- subject to the Freedom of Information Act.
3 MR. SOKOL: Correct.
4 JUDGE SCOTT: Now, if you read all of the emails
5 in counts 1 through 9 -- how shall I put this -- there is
6 a clear reference to Mr. Withers being in attendance at
7 various and sundry locations, gatherings, meetings. Now,
8 had the Court ruled the other way -- and obviously, I've
9 been told again that to rule as I did in reference to the
10 Act not applying to newly elected officials before they
11 take an oath, they become a part of the public body.
12 But had the Court ruled the other way, then Mr.
13 Withers' involvement or attendance at these meetings at
14 the pump house -- and that's the one that just comes to
15 mind, wherever the pump house might be -- in any event,
16 given the reasonableness standard for imposing sanctions,
17 would you not agree that sanctions should not be imposed
18 in reference to 1 to 9 as to Mr. Withers?
19 MR. SOKOL: On the basis of comparability,
20 counts 1 through 9 are not laden with the kind of
21 seriousness that the others are. However, the fact that
22 Mr. Withers had not been sworn before July 1 and was a
23 Councilman-elect, that's juxtaposed with the statute. And
24 with all respect to the Court, I don't see how anyone
25 could bring an action charging someone with a violation
0021
1 before he was a public official.
2 JUDGE SCOTT: All right, I understand your
3 position.
4 MR. SOKOL: Thank you, sir.
5 JUDGE SCOTT: Mr. Kaufman?
6 MR. KAUFMAN: Your Honor, the legal standard for
7 sanctions is based on an -- it's an objective one.
8 JUDGE SCOTT: Yes, as set forth in your
9 amendment.
10 MR. KAUFMAN: I'm sorry?
11 JUDGE SCOTT: That was a good, succinct job of
12 setting forth the standard for determining whether
13 sanctions are in order.
14 MR. KAUFMAN: And it says -- and the rules are
15 that all doubt should be resolved in favor of the non-
16 movant, i.e., in this case Petitioners.
17 Finally, the standard includes the word "could"
18 -- could Petitioners in this case have formed a reasonable
19 belief. The issue is not should they have, the issue is
20 could they have.
21 Now, before I get into too much detailed
22 response, I want to remind the Court, and I'm sure it
23 needs no reminder, that Petitioners dismissed the three
24 counts in issue here when discovery indicated that those
25 counts weren't sustainable in court. We dismissed them,
0022
1 with prejudice. We didn't do a non-suit. We didn't just
2 dismiss them. We dismissed with prejudice.
3 Now, the investigation that was conducted is set
4 out for the Court in the brief and the Court indicated it
5 read it. But let me add a few things as I walk through
6 this very briefly for the Court, and I promise I will be
7 brief.
8 Let me start with some basic context that the
9 Court has already raised, the first nine counts. The
10 Court dismissed it. We brought those counts, and I think
11 the Court acknowledged that, on the basis of a good faith
12 attempt to extend the law to the match, Virginia's law, to
13 match that of Florida.
14 The Court ruled against us. But there's never
15 been a suggestion that that was ill faith. And those nine
16 counts, Your Honor, form the context and background to
17 everything that came after that. As the Court said, there
18 is lots of evidence in those nine counts intrinsic in
19 those emails, without any discovery taken, as to what we
20 knew when we started. Intrinsic in those emails there's
21 lots of information about people getting together, people
22 -- there's an invitation for people during the week of May
23 27th. There's a suggestion of a pump house meeting that
24 this Court has already raised. There's a discussion about
25 getting together along the riverfront to look at things.
0023
1 There are lots of discussions of get-togethers.
2 There is a case that we pled, I think it was
3 originally count 8, involving a gondola issue where all
4 five Respondents apparently got together. But in the
5 email count alone that we pled, they were preparing and
6 drafting a letter that Mayor Beck suggested should go out
7 on mayoral stationary to the Virginia Marine Resource
8 Commission, essentially saying: Hold onto what you're
9 doing because we're about to take power here and we're
10 going to revisit this; don't do anything.
11 Now, even before we got those emails, Mr.
12 Shelton knew about that. He knew about the letter. He'd
13 seen a copy of the letter. He knew that people were
14 getting together sending it, and he actually was the one
15 who dealt with that, and as a result of his successful
16 responses on June 28th -- I think that was the date of the
17 last Council session -- the Council did in fact enact
18 something involving the gondola. I don't have the exact
19 details of it.
20 The Court dismissed this count as preceding
21 swearing in, but there's clearly a gathering. There are
22 signatures on that letter. It's there. Had the Court had
23 permitted me to argue it, I would have shown all kinds of
24 intent to try to interfere with then-current Council
25 business and so on and so forth.
0024
1 But all of these get-togethers and all of these
2 email exchanges in the first nine counts formed a context.
3 The letter formed a context. Before this suit was filed,
4 Mr. Shelton had asked for homeless shelter material in a
5 FOIA dated June 28th. He got the response on I think it
6 was July 3. It was 41 pages.
7 60 days later, on September 3 he gets a letter
8 with Mayor Beck's name on it -- I'm not sure who signed
9 this; it's not the Mayor's signature, but it's by
10 authority; I can't read -- I can't make out who the
11 initials are -- saying: We're sorry for any
12 inconvenience, but we just realized that we didn't give
13 you this material; here's Mr. Timpone's FOIA request to
14 supplement what we originally gave you -- 60 days later.
15 When we went through Mr. Timpone's FOIA request,
16 there's all these emails about what has to be done to
17 comply with Mr. Shelton's initial request. We pled that
18 actually, and the Court dismissed it.
19 But all of this we knew. We also knew that
20 there had been a rumor about a gathering on Charlotte
21 Street which went to -- actually Councilman Howson was
22 asked about it and his email response to Mr. Timpone
23 formed the gravamen of what we did depositions on and
24 actually tried here in front of the Court last Friday.
25 So we've got a confirmed rumor, one rumor
0025
1 confirmed. We've got known context of the letter, the
2 homeless email, homeless shelter emails.
3 So with this context and understanding -- and
4 let's face it, the Respondents are public figures.
5 They've been in some cases known to the public for a good
6 many years. And Mr. Shelton and Mr. Timpone have been
7 able to form some reasonable judgments from dealing with
8 them and this other context.
9 Now, in terms of particularly the so-called Fred
10 Bus meeting, the brief sets out the mystery email. We
11 don't know when it was. We know when it couldn't have
12 been sent. We know when it couldn't have been sent,
13 because on August 7th at 2:38 in the afternoon there's no
14 dispute Mr. Howson's on the bus going up to Dogwood. We
15 don't know when that happened. We just don't know. We
16 call it a mystery.
17 But that mystery email referred specifically to:
18 After talking with you all on the bus, I've changed my
19 plans for the Maury tour. It's at the same rough period
20 of time, which is the first half of August. There was a
21 lot going on.
22 We pled and tried in front of this Court the
23 issue of the electronic meeting that we had labeled "CV
24 Zoning," which essentially revolved around the editing and
25 production and then finally sending of a letter to Mr.
0026
1 Mike Chandler over at Virginia Tech.
2 There was an exchange of emails about the
3 creation, creation and then who would be on the Historic
4 Preservation Committee. There were a number of other
5 things going on that didn't get pled. The emails are
6 going around.
7 It's reasonable in that context of meetings, of
8 the first nine counts, of the material, to suppose that at
9 some point people are going to want to get together and
10 discuss everything that's going on and come up with some
11 final resolution.
12 And Mr. Timpone asked Mr. Howson specifically
13 about this. He emailed him a letter: Tell me about
14 what's going on here. His initial question is reflected,
15 I think, in his deposition because he recalled it quite
16 well. His initial question in this was -- I'm going to
17 paraphrase this: Other than when you went to -- when you
18 went on the Fred Bus to Northern Virginia, when have you
19 met with people on the Fred Bus, other than that?
20 The response that comes back from Mr. Howson is
21 interesting, especially because of his response, I think
22 it was the day before, on Charlotte Street. The response
23 is not like the Charlotte Street response. The response
24 is: "Previously to the trip, I hadn't been on the Fred
25 Bus for years." But that wasn't exactly the question that
0027
1 was asked. The question was, other than this trip, when
2 were you on it?
3 The answer comes back: Well, before the trip I
4 didn't do anything. Okay, but it begs the whole question.
5 Second, Mr. Timpone says what date, who did you
6 meet with on the bus? And the answers are very short and
7 very revealing, because they're essentially: What bus?
8 What meeting? What date? What meeting, what meeting?
9 And then we have this thing about: Pat, I can't answer
10 your questions because this is totally a figment of your
11 imagination. Again, I'm paraphrasing.
12 Mr. Timpone didn't like that response. He
13 compared it with the Charlotte Street response and he was
14 not satisfied. It did not ring with him, and he said
15 that. He said it in his deposition. He said there was
16 something wrong with that. But he didn't follow up. He
17 waited, because he's not satisfied. He's got one rumor
18 confirmed, the other rumor's hanging fire.
19 Then he sees all these emails. An impression is
20 formed among Petitioners. And quite frankly, as I drafted
21 this thing, I had an impression, too. And I've walked the
22 Court through this and I'm not going to bore the Court too
23 much, but I would call the Court's attention to Exhibit 5,
24 which is a series of emails here. But you can find my
25 discussion of Exhibit 5, Your Honor, which might simplify
0028
1 things, on page 4 of the brief.
2 JUDGE SCOTT: I've read the brief.
3 MR. KAUFMAN: Okay. And I would simply call
4 your attention to a few of these emails that were going
5 around. You've got a May 12 email suggesting that an
6 open-ended discussion needs to be held with the whole new
7 Council because -- and I quote -- "If we don't, Joe will
8 beat us over the head for refusing to talk."
9 We've got a May 13 email from Mr. Howson to the
10 Mayor saying: "I think, just between you and me, that the
11 success of our retreat will hinge on our five reaching
12 consensus beforehand."
13 There's a May 17 letter from Mr. Howson to
14 someone named Vernon, someone named Nick, and all the
15 other Respondents, saying: "When is everyone available
16 the week of May 27th so we can sit down together and
17 connect the dots on riverfront?"
18 I'm not going to bore the Court here, but the
19 email 1379 gets my attention because of the sentence here:
20 "It is absolutely imperative we have solid agreement on a
21 near-term, 100 days, action plan and some sort of long-
22 range vision that can be set up for the community and city
23 staff." That was sent out just before -- by the Mayor.
24 It was sent out just before.
25 The next email from the Mayor was: "Let's get"
0029
1 -- "I recommend a meeting at the pump house."
2 We've got a series of emails I won't bore the
3 Court with involving the VMIC letter. I'm sure the
4 Court's intimately familiar with those.
5 We have context. Everything that was pled, a
6 strong impression is formed among all the Petitioners and
7 among counsel, based on simply reading these emails, of
8 what's happening. And what's happening appears to be a
9 group effort. They're getting together privately, they're
10 deciding things, preparing to use their voting power to do
11 things in public. But they're doing all that preparation
12 privately, and the public has a right to know.
13 Now, as to Maury specifically, there's a series
14 of four emails, and the emails essentially indicate Mr.
15 Withers asked Mr. Howson to go and Mr. Howson is reporting
16 that to everybody and inviting everyone to come along. We
17 have an email from Mr. Kelly saying "Friday afternoon is
18 good," an email from Mr. Withers, which is the only email
19 we have a copy of, saying, "I can't go on Friday; how
20 about the weekend or next week?," and a response from Mr.
21 Howson essentially saying Dr. Fortune's only available on
22 Friday, but I'll check with everybody and see about the
23 weekend or next week.
24 The next email we have is that famous mystery
25 email again. The date and time is impossible, absolutely
0030
1 impossible to be accurate. We can't reconcile it with
2 anything. It's a mystery email. This is again the one
3 that's sent at 2:38 on August 7th, and there's absolutely
4 no doubt where everybody is on that date and that time.
5 They're on the trip to Northern Virginia on the Fred Bus.
6 We don't know when that was sent. After the
7 first ones, but we don't know when. And that says: I've
8 changed my plans for the Maury tour. I'm just -- let me
9 get the exact words here. It says: "Since Billy is the
10 only one who's not been through Maury, I'm just going to
11 meet him there Saturday at 10:00." Well, we don't know
12 what Saturday and we don't know who else might decide to
13 come.
14 There's no indication that Dr. Fortune can't
15 come that day, just that during the week Friday afternoon
16 is better for him -- I'm sorry, Friday afternoon was the
17 only time he could come that week. We know that Mr. Kelly
18 likes late Friday. There's been no discussion of
19 Saturdays. We have no idea what's going on, what's
20 coming, and the Mayor hasn't been heard from.
21 So we don't know if it's just Mr. Howson and Mr.
22 Withers or if some of the others are coming. We just
23 didn't know.
24 But we have a context and the context is the one
25 I just described to the Court, a context of private get-
0031
1 togethers to discuss things and to look at things, like
2 the riverfront. So we had a reasonable belief, based on
3 what I said, that a face to face could have happened. And
4 if it did happen among three or more, we believed it was
5 improper and should have been subject to FOIA.
6 Again, Your Honor, let me come back to the
7 standard. The standard is objective, resolving all doubt
8 in favor of the Petitioners: Could we have formed a
9 reasonable belief? I think it's clear we could have based
10 on these emails and what we saw as a proclivity for
11 private meetings. Now, again, when it turned out that
12 that belief was incorrect we dismissed it with prejudice,
13 as is appropriate.
14 As far as the Fred Bus trip, I think I addressed
15 that already and don't see any need to say more, except
16 again, based on context, we could have formed that
17 reasonable belief. When we couldn't sustain it, when it
18 became obvious that what had happened was there was some
19 confusion and what really had happened was the trip on the
20 Fred Bus sponsored by Dogwood Development, we dismissed it
21 with prejudice.
22 As for September 17, what we called count 18,
23 the requested meeting, Ms. Spears' affidavit which the
24 Court has seen indicates that she got the information on
25 September 18th in the evening from talking with Mr.
0032
1 Bolinger. Mr. Bolinger was there at the table. His
2 affidavit sets out his personal observations, what he
3 heard and what he inferred, and this was communicated to
4 Susan.
5 Susan told my client, Mr. Shelton. Mr. Shelton
6 asked me to investigate. It's not on the record, Your
7 Honor, but the Court might know that Mr. Shelton's been
8 quite ill, especially in the last part of September and
9 early October, and he asked me to investigate because he
10 wasn't feeling well, and I did.
11 So I talked to Mrs. Spears. I talked with Mr.
12 Bolinger. I didn't see any reason to get an affidavit
13 from them at that point. I had my basis for filing and
14 asking what was going on, and had they had a meeting,
15 reasonable belief based on two people that I had spoken
16 with.
17 When this Court decided to entertain the motion
18 for sanctions, I then went and asked them, okay, please
19 give me an affidavit setting out what you told me earlier,
20 and that's what I have. That's what the Court's been
21 provided. And there's no real surprise in any of this
22 because I did proffer this to the Court on Friday.
23 Now, I would ask the Court to notice that this
24 case was filed September 26th, less than ten days after
25 the allegations in count 18. I don't know what effect
0033
1 filing that lawsuit had, but it's clear that after that
2 lawsuit was filed there was no meeting and it's clear that
3 there was no meeting before it was filed, in the eight or
4 nine days before it was filed, either. Again, I don't
5 know what effect the lawsuit had, but it's possible that
6 the lawsuit itself could have had an impact on events so
7 that we couldn't prove that count.
8 Finally, motive. Petitioners acted responsibly
9 and reasonably in dismissing these three counts with
10 prejudice when we couldn't sustain them. But at the time
11 they were filed, we did have, as I've just set out,
12 context and facts sufficient to form a reasonable basis
13 for the allegations.
14 There is a court case, Domen v. Sugarman, set
15 out more fully in the brief, the City of Richmond. It's
16 the Circuit Court for the City of Richmond. And it
17 suggests that it is not necessary -- in fact, the court in
18 Sugarman advised against a dismissal with prejudice in
19 circumstances like this. But we did it anyway. We
20 believed we could not sustain these and would not be able
21 to sustain them at any time in the future. We dismissed
22 with prejudice, no non-suit, no simple dismissal. We
23 believe that action, dismissing these three with
24 prejudice, demonstrates our good faith.
25 Thank you, Your Honor -- oh, one more thing.
0034
1 Your Honor, if I might. One point about Mr. Sokol's
2 comments on behalf of Mr. Withers. At the time this case
3 was filed -- the Court might remember on November 1st I
4 raised the issue of how we had approximately 41 pages or
5 so of blank emails from Mr. Withers, which had his name at
6 the top and no date and no -- no date, no "To", and no
7 content.
8 So at the time we filed we've got these blank
9 pages and we don't know what's in them. When the Court
10 permitted discovery, we had hoped that we would be -- that
11 those 41 pages would have content. So as for Mr. Sokol
12 and Mr. Withers, we've got the one definite email and 41
13 blank pages, which indicated they were emails, but we
14 didn't know who it was from, we didn't know when it was
15 sent, and we didn't know what the content was.
16 So those blank emails alone were enough to make
17 us believe that there was something there, something that
18 would demonstrate more involvement with Mr. Withers --
19 excuse me, Your Honor -- more involvement by Mr. Withers
20 in these matters than actually turned out to the case.
21 Thank you.
22 JUDGE SCOTT: Mr. Stahl, would you like to call
23 any witnesses?
24 MR. STAHL: Yes, Your Honor. We would like to
25 call Mr. Kaufman.
0035
1 JUDGE SCOTT: We've ruled on that, Mr. Stahl.
2 MR. STAHL: I have a different reason for
3 calling Mr. Kaufman this time, Your Honor, if you'd allow
4 me to offer it to the Court.
5 JUDGE SCOTT: No problem.
6 MR. STAHL: The third part of the rule -- and I
7 would, if Your Honor would allow rebuttal argument on his
8 argument --
9 JUDGE SCOTT: Well, not if we're going to call
10 witnesses. What I want to do is call witnesses.
11 MR. STAHL: I want to call Mr. Kaufman on the
12 third part of the rule, the one that says that by filing
13 you certify you've read it, you've reasonably inquired,
14 and, three, it's not interposed for any improper purpose,
15 such as to harass or to cause unnecessary delay or
16 needlessly increase the cost of litigation.
17 What I want from Mr. Kaufman is who's paying
18 him. As Your Honor will recall, on Friday as part of the
19 argument that we had concerning sanctions, in the
20 testimony of Shelton, Timpone, and Jenkins they all
21 refused to say who's paying their legal fees, and it
22 became quite clear they're not paying their legal fees and
23 that's why they felt totally comfortable in doing whatever
24 it is they were told to do by whoever told them to do it
25 and file the lawsuit, because there are no consequences to
0036
1 them. It's not their money.
2 Nothing would be more germane to the question of
3 harassment, the motivation, if the Court were to conclude
4 after hearing the testimony of Mr. Kaufman or perhaps Mr.
5 Shelton or others that, we aren't paying our fees, they're
6 being paid by the X Corporation or some other group of
7 people who otherwise don't want to get involved, and we
8 found out what it was these people told these people to
9 allege.
10 Much like the filing, as the Court will recall,
11 from the November 1 argument on the placing of the
12 advertisements in the Freelance Star, full-page ads. Who
13 paid for those? What's the purpose of this filing, which
14 on the basis of what Mr. Kaufman has just argued it's very
15 clear they didn't have a basis at all for the three counts
16 I've been talking about.
17 And you heard as to Mr. Withers they had some
18 blank pages. Because they were blank, they thought they
19 could infer there must be violations of law here, so let's
20 sue him.
21 On the second part of the rule, I don't believe
22 there could be any serious contention that it's violated
23 in the most obvious way. I now want to show that the
24 third part of the rule has been violated because it was
25 brought solely, this entire case -- 17 counts out of 18
0037
1 have either been dismissed or found for the Respondents by
2 the Court. This case was brought solely for political
3 reasons, for the purpose to harass these Respondents.
4 So I'd like to call Mr. Kaufman.
5 JUDGE SCOTT: The motion is denied.
6 MR. STAHL: Then I'd like to call Mr. Shelton.
7 JUDGE SCOTT: Yes, you can call Mr. Shelton.
8 But one moment, Mr. Stahl. Have a seat.
9 MR. STAHL: I'm sorry, Your Honor.
10 JUDGE SCOTT: I heard your comment on Friday
11 about you want to know who's paying, and I've heard you
12 say that now more than once. The Court thought about that
13 comment. The Court -- I want you to make sure you
14 understand my meaning. The Court thought about the fact
15 that the Freedom of Information Act in essence is what I'm
16 going to call a people's statute. Its purpose is to
17 promote open government, open discussion, in other words
18 so that the public knows what's going on in reference to
19 the public business.
20 When there are legitimate questions as to
21 compliance with this Act, it is hoped, obviously, by the
22 drafters of the statute that citizens would make inquiry,
23 as some citizens have done, to obtain information with
24 reference to potential violations of the Act and would
25 then exercise reasonableness and common sense in
0038
1 determining whether or not the public business is being
2 conducted in a public forum or whether something else is
3 occurring. Sometimes that costs money or it takes money
4 in order to do that.
5 Have you ever heard of the case NAACP versus
6 Buttons, Mr. Stahl?
7 MR. STAHL: Yes, Your Honor.
8 JUDGE SCOTT: In that case the State of Virginia
9 wanted to know who was paying, among other things, and
10 they insisted -- that is, the good Commonwealth of
11 Virginia insisted -- that they be provided with a list of
12 persons who contributed to the NAACP Legal Defense Fund,
13 which primarily conducted the civil litigation campaign
14 that resulted in -- well, we all know who it resulted in.
15 The Supreme Court said that there shall be no
16 chilling effect by government or anyone else under the
17 circumstances.
18 The Court would specifically find in reference
19 to your request wanting to know, quote unquote, "who pays"
20 or "who's paying," that there is an analogy here. So any
21 inquiry in reference to, to use your term, "who's paying,"
22 is inappropriate.
23 Call your first witness.
24 MR. STAHL: Your Honor, may I be heard briefly,
25 not to argue Your Honor's ruling, but only to make a
0039
1 distinction? I'm well aware of Buttons. That was a
2 radically, radically different case --
3 JUDGE SCOTT: Not very.
4 MR. STAHL: -- where the State of Virginia most
5 improperly sought to determine the membership of the NAACP
6 --
7 JUDGE SCOTT: Right.
8 MR. STAHL: -- which could not have violated
9 more grotesquely the First Amendment. I'm not -- there's
10 no political action group here. There's no public
11 interest being asserted here. We have three Petitioners
12 allegedly in their individual capacities.
13 JUDGE SCOTT: The enforcement of the Act is a
14 public purpose.
15 MR. STAHL: Your Honor, no question about it.
16 And but for the Respondents having fully complied with the
17 Act in terms of producing these emails, doing exactly what
18 the Act was intended to accomplish, we wouldn't even be
19 here. No one would even know what anyone had written to
20 anyone else. The Act worked beautifully.
21 We are not trying to inquire into the motivation
22 of a political action committee, a group that is
23 politically opposed to Respondents. That has nothing to
24 do with it. But if I, Your Honor, were to give to you a
25 hypothetical that a business in the City of Fredericksburg
0040
1 was paying for this litigation solely for the purpose of
2 trying to chill the First Amendment and statutory rights
3 of the Respondents to be good stewards of government and
4 to be Councilmembers and the Mayor of Fredericksburg, that
5 what they were doing was improper, I would proffer to Your
6 Honor it would be exactly the opposite of the hypothetical
7 or the statement Your Honor made to me.
8 JUDGE SCOTT: Mr. Stahl, for the reasons that I
9 stated we're not going to get into, quote, "who's paying."
10 Call your first witness.
11 MR. STAHL: Your Honor, that is what I want to
12 know from Mr. Shelton, because he said he's not and he
13 wouldn't tell us who is.
14 JUDGE SCOTT: Well, I read his deposition.
15 That's exactly what he said.
16 MR. STAHL: Very well.
17 JUDGE SCOTT: Call your next witness.
18 MR. STAHL: I don't have a witness, I don't
19 believe, Your Honor.
20 Your Honor, may I correct one thing? Not to
21 correct it, but to add to it. Early on today Mr. Kaufman
22 made a representation to the Court that he never got a fax
23 from my office asking for these documents. And I'm not
24 re-arguing Your Honor's ruling, but I want the record to
25 be clear, that I have in my hand the fax we sent him along
0041
1 with the transmission sheet that shows it was successfully
2 sent and received.
3 JUDGE SCOTT: You're talking about the Saturday
4 afternoon?
5 MR. STAHL: Yes, Your Honor.
6 JUDGE SCOTT: Or Saturday some time.
7 MR. STAHL: I know it is a nit, but if it's a
8 question of our integrity of what we did I didn't want to
9 leave any misimpression in the record. And if Your Honor
10 would like --
11 JUDGE SCOTT: I don't doubt your integrity at
12 all in reference to believing that you sent it and you've
13 got the confirmation sheet.
14 MR. STAHL: I do. Thank you, Your Honor.
15 JUDGE SCOTT: Mr. Kaufman, is there any oral
16 testimony that you'd like to present?
17 MR. KAUFMAN: No, Your Honor. But again, I can
18 only reiterate that, whatever their sheet shows, it didn't
19 come in. I don't know why.
20 JUDGE SCOTT: I don't doubt that statement. He
21 sent it. The issue is whether you received it and you've
22 answered no.
23 MR. KAUFMAN: Your Honor, I have no witnesses.
24 I'm content with the argument and my submission to the
25 Court.
0042
1 JUDGE SCOTT: All right. Mr. Sokol, it appears
2 that if there's anything else you'd like to add to your
3 presentation now would be the time.
4 MR. BARNSBACK: Your Honor, I don't want to
5 interrupt Mr. Sokol. May I have the Court's leave to
6 leave for a moment? And certainly it's no slight to Mr.
7 Sokol, but I have to take care of a personal matter, if
8 the Court wouldn't mind if I leave the courtroom.
9 JUDGE SCOTT: Yes.
10 MR. BARNSBACK: Thank you, Your Honor. I didn't
11 want to get up without saying something to the Court. I
12 apologize.
13 JUDGE SCOTT: That's all right. Do you want to
14 take a recess?
15 MR. BARNSBACK: No, Your Honor, no need for a
16 recess.
17 MR. SOKOL: If Your Honor please, I'd like to
18 again call the Court's attention to the memorandum the
19 Petitioners filed. At page 21 and at the top, that
20 paragraph was repeated in his argument by Mr. Kaufman. I
21 think it speaks very meaningfully to the sort of thinking
22 process or lack of thinking process that produced this
23 unfortunate petition:
24 "The Petitioners would like the Court to take
25 judicial notice that their petition was filed on September
0043
1 26, 2002, and that Petitioners' action in filing the
2 petition could have" -- "could" I think is the operative
3 word. The statute doesn't make any reference to "could."
4 It says that the attorney and the petitioner "certify" --
5 to me the word "certify" means vouch -- "that what they
6 are setting forth therein in each of the counts is well-
7 grounded in fact" -- "well-grounded in fact."
8 Then they have the audacity in presenting this
9 paper to invite the Court to credit them, to credit them,
10 to say: Well done, Mr. Kaufman, well done, Mr. Timpone,
11 because your filing this petition could have, could have
12 precluded Respondents actually meeting privately for the
13 purpose alleged.
14 So now Petitioners and their counsel are telling
15 the Court the meeting never took place, notwithstanding
16 the fact you said it was well-grounded in fact, and we
17 filed this petition and the meeting didn't take place, and
18 it was going to take place.
19 Then they say finally, to seal, to seal their
20 ongoing acts of responsibility, that if this was the
21 effect of the Petitioners' action, it was well done. And
22 if Your Honor doesn't award sanctions in some meaningful
23 and more than minimal way, it gives more incentive to the
24 repetition of this kind of thinking of could-have's and
25 the unfortunate effect it has produced, and I therefore
0044
1 ask that the sanctions be imposed on one or more of the
2 counts on behalf of Mr. Withers.
3 JUDGE SCOTT: Now, Mr. Stahl, we've heard your
4 argument. I assume that you have presented in argument
5 all that you would wish to say as to this issue?
6 MR. STAHL: Certainly I have presented all the
7 Court wishes to hear on this issue.
8 JUDGE SCOTT: No comment.
9 MR. KAUFMAN: I have nothing further, Your
10 Honor.
11 JUDGE SCOTT: The Court, recognizing the
12 standard for the award of sanctions, which is set forth
13 very succinctly in the Petitioners' brief, and considering
14 the argument that we have heard this morning and
15 considering as well the alleged factual basis or the
16 complete factual basis for the filing of counts 15, 16,
17 and 18 and applying that objective standard of
18 reasonableness to the presentations this morning, finds
19 that sanctions should be awarded in reference to the Fred
20 Bus trip and the Maury School meeting. Those are
21 convenient titles that have been given the counts numbers
22 15 and 16.
23 The Court, based on Mr. Stahl's representation
24 on Friday that legal fees and costs approached $90,000 in
25 reference to this matter -- and Mr. Stahl, I presume you
0045
1 still believe that; is that correct?
2 MR. STAHL: It's in excess of that amount, Your
3 Honor.
4 JUDGE SCOTT: The Court, recognizing however
5 that the Petitioners did prior to trial dismiss these
6 counts with prejudice, assesses sanctions in the amount of
7 $4,000 as to each count. How that is distributed,
8 frankly, Mr. Stahl, I have no idea, because obviously if
9 in fact your firm is paid by the City of Fredericksburg
10 that sum should be reimbursed to the City of
11 Fredericksburg.
12 MR. STAHL: Whatever the Court awards that the
13 Petitioners pay, Mr. Sokol and I will turn back to the
14 City of Fredericksburg, obviously.
15 JUDGE SCOTT: The award therefore totals $8,000,
16 payable to the City of Fredericksburg, however
17 logistically you and Mr. Kaufman and his clients wish to
18 work it out.
19 MR. KAUFMAN: Your Honor.
20 JUDGE SCOTT: Yes?
21 MR. KAUFMAN: Just a point of clarification.
22 Against whom is this award?
23 JUDGE SCOTT: Against the Petitioners, not
24 counsel.
25 Mr. Kaufman, I asked on Friday that you prepare
0046
1 the order in reference to Friday's hearing as to all
2 issues.
3 MR. KAUFMAN: Are you talking to me, Your Honor?
4 JUDGE SCOTT: No. I'm sorry, I'm looking at Mr.
5 Stahl and I apologize, Mr. Kaufman, because that's the
6 second time I've done that.
7 MR. KAUFMAN: That's okay.
8 JUDGE SCOTT: Mr. Stahl, I asked you on Friday
9 to prepare the order in reference to Friday's proceedings.
10 MR. STAHL: You did, Your Honor. We have
11 delayed doing that for two reasons. One, we were waiting
12 for the transcript fully of Friday because there were a
13 number of different orders, as the Court will recall, on
14 that date. Secondly, we thought we would have this
15 concluded, as apparently we have, today and we'd embody it
16 all in one order.
17 JUDGE SCOTT: I'm going to ask you to do
18 something totally different.
19 MR. STAHL: All right, Your Honor.
20 JUDGE SCOTT: I want to give both of you input
21 in reference to the order, so I'm going to ask you to
22 circulate the order, as you would normally do it. I'm
23 going to ask that a separate order be prepared in
24 reference to today's proceedings and -- because I am going
25 to, I'm sure, add a great deal probably to your order in
0047
1 reference to Friday. So if you could just get me a draft
2 as soon as you can, I'd appreciate that.
3 MR. STAHL: Within a day or so, Your Honor.
4 JUDGE SCOTT: That's fine.
5 MR. STAHL: Very well, Your Honor.
6 JUDGE SCOTT: Anything else, gentlemen?
7 MR. KAUFMAN: I have nothing, Your Honor.
8 JUDGE SCOTT: Court's adjourned to 9:00 o'clock
9 tomorrow morning.
10 (Whereupon, at 10:15 a.m., the hearing in the
11 above-entitled matter was adjourned.)
12
