consultants are sandburs

Sunday, June 02, 2013

Shamefully pathetic Larry Klayman - and his shamefully pathetic litigation. A motion to dismiss, and dismissal seems past due.

Photo from earlier Blueestem Prairie
coverage; read this link.
Not a media iceberg, not even a mainstream media tip of one, but the litigation has chilled protected free speech, seemingly so, and it is time to end the debacle and move on with people not feeling chilled to voice feelings and beliefs.

Bluestem Prairie, here.

Many helpful links go with that story. Please read it and follow the links.

From p.1-2 of the online motion to dismiss,

This lawsuit arises from newspaper reports of rulings by courts in Ohio that Plaintiff engaged in inappropriate conduct with his two minor children. Specifically, the two reports quote from an Ohio appellate court's decision that affirmed a magistrate judge's ruling. Thequoted language from the appellate court's decision ends with the following language: "we find no abuse of discretion on the part of the trial court in overruling Klayman's objections regarding the magistrate's finding that Klayman inappropriately touched the children."

[...] Indeed, it is hard to imagine what Plaintiff's explanation of his conduct could be, which probably explains why he consistently avoided testifying about this or otherwise telling the magistrate what he did and why. As the magistrate noted, Plaintiff would not answer the question of what he thought "inappropriate touching" was, and he even invoked the Fifth Amendment to avoid answering the question.

In his presuit notice, which is a statutory condition precedent to suing for defamation and defamation by implication, Plaintiff identified only one statement he was intending to sue on:"Turns out, gays aren't the only ones capable of disturbing, criminal sexual behavior --apparently even conservative straight guys tight with Bradlee Dean can turn out to be total creeps." That statement appeared in only one of the reports.

Thus, this lawsuit is about whether Plaintiff can sue Defendants for making that one statement in light of the magistrate's finding that Plaintiff's behavior was "grossly inappropriate,"and the Ohio appellate court's decision affirming the magistrate. He cannot, and the reasons he cannot is because the statement is truthful and cannot form the subject of a claim for defamation, because he does not identify any true statements of fact as is necessary to state a claim for defamation by implication, and because his claims are barred by the substantial truth doctrine and the privilege for fair and accurate reports of official documents.

(The Scribd post of the motion to dismiss is without attachments.)

Apart from all that, recall Klaymann was the attorney involved on behalf of mediocre musician Bradlee Dean, in suing Rachel Maddow, where the Dean-Klayman team had their heads handed them. But Klayman perseveres. And then some.

The online motion, at p.9-10 makes the gist of an argument for dismissal:

Not only do Counts I and II [i.e., the substance of the Klayman complaint] fail for the reasons just discussed, but they fail for the additional reason that even if the Statement or the impression it creates are not "perfectly accurate," they are substantially true, and that is all the law requires.

"Under the substantial truth doctrine, a statement does not have to be perfectly accurate if the 'gist' or the 'sting' of the statement is true." "According to U.S. Supreme Court and Florida case law, falsity exists only if the publication is substantially and materially false, not just if it is technically false." Put another way, "[a] 'statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.'"

Thus,instead of requiring perfect accuracy, what Florida "'law requires is that the publication shall be substantially true, and that mere inaccuracies, not affecting materially the purport of the article, are immaterial.'" The "gist" or "sting" of the Statement – in the context of the September 28 article in which it appears is that courts in Ohio found that Plaintiff inappropriately touched his children. That is, in fact, what those courts wrote in their orders. Plaintiff – who invoked the Fifth Amendment rather than testify about what he did – alleges that the Statement is nonetheless actionable because, by describing his behavior as criminal, it inaccurately states or creates the impression that he committed a crime or was convicted for inappropriately touching his children. The substantial truth doctrine exists exactly for this type of situation.

A supporting footnote adds:

In evaluating the meaning of a statement, including any defamatory meaning, the statement must be viewed in the totality of the publication in which it appears.

[citations omitted] Motion pages 11-12 continue [again omitting citations]:

There is an additional and independent reason Counts I and II fail. "[M]any safeguards and privileges have been established throughout the years that have effectively balanced the right of individuals to be free from defamatory statements against the rights guaranteed by the First Amendment to freedom of expression. "These "safeguards and privileges" apply equally to claims for defamation and defamation by implication. One of these privileges is for fair and accurate reports of government activities and documents.

The press has a privilege to report on the contents of government documents, so long as the report of the document is fair and accurate. This privilege applies even if the content of the documents is erroneous; and the press has no duty to determine the accuracy of the content before publishing fair and accurate reports of it.

The September 28 article was a fair and accurate report of the appellate court's order, which stated that it was affirming the magistrate's finding that Plaintiff inappropriately touched his children. The Statement's description of Plaintiff's behavior as being "criminal" fairly and accurately characterizes the inappropriate conduct described in the court orders. See, e.g., OhioRev. Code, §§2907.01(B) and 2907.06.

Counts I and II should be dismissed with prejudice because they are barred by the privilege for fair and accurate reports of government documents.

So there it is. May the defendants here attain the closure Rachel Maddow attained against earlier Klayman-Dean foolishness.

In all of this, what is a frivolous lawsuit, what is abusive use of access to the courts, and how can a defendant, once gaining dismissal, be made whole as before the litigation was instigated?

Final, biggest question: Why are we as a society inflicted with the likes of Bradlee Dean and Larry Klayman? What have we ever done to deserve that level of mean-appearing idiocy? Millenia of natural selection should have winnowed better.

UPDATE: A few other links, here, here and here, and the online docket and a pdf copy of the dismissal motion (both linked to via the opening Bluestem Prairie link).

FURTHER UPDATE: One-hundred seventy-three pages of court papers, with the Ohio Magistrate's decision against Klayman included, all in a family-law context - with the Magistrate's analysis therein regarding wrongful touching included.

If anybody cares for detail, (there are exhibits), go there, or be square.

 That item is a subpage of this website.

FURTHER UPDATE: After study of the last linked item, it is a January, 2013, petition by Klayman for further review, seeking a mandamus remedy; i.e., one ordering lower courts, in this instance, to undo prior decision making in Klayman's divorce-custody-child support litigation in Ohio and to give him a second bite at the apple - a new trial with different personnel.  Klayman's petition is filed with the Supreme Court of Ohio, after Klayman's adverse ruling from Ohio's Court of Appeals. While not knowing Ohio procedural law, it appears strange on the surface, that Klayman selected a petition for mandamus, and did not file a certiorari petition for discretionary review.

The first 23 pages of the 173p item present Klayman's briefing for mandamus and his affidavit, the affidavit stating:

Relator Larry Klayman, being duly sworn according to law, deposes and states that he has read the foregoing Complaint, [The item being captioned "ORIGINAL ACTION IN MANDAMUS" so that calling it a "Complaint" is appropriate] and that the statements made in the Complaint, which are incorporated and made apart [sic] of this Affidavit as if completely rewritten herein, are true based on the best of my knowledge and belief, and I am competent to testify to the same.

Much of the pre-affidavit item was clearly opinion and conclusions of Klayman, especially his speculation over Magistrate bias after he did not get his way.

It appears Klayman contends his children were, in effect, "kidnapped" by his ex-spouse's interference with visitation, that being, to Klayman, cause to unilaterally cease paying child support. In Klayman's own words (at item p.21):

After over almost six years of court proceedings, Relator has been met with nothing but indifference if not disdain from the Court of Common Pleas and the Court of Appeals, perhaps because of false accusations strategically filed against him and his religious beliefs, his gender, and his conservative political activism. These actions have harmed not only Relator, but also the children. For justice to finally be served, a writ of mandamus is needed in order to remand this case for a new trial utilizing Virginia law in front of an unbiased judiciary with instructions that Relator has an absolute defense to the payment of child support under the circumstances at issue in this matter. This concerns much more than Larry Klayman and his children; it is about the fair and just administration of justice. To be direct, the Cleveland family courts have a poor reputation for dysfunction. This Court can do much to rectify this not just for Mr. Klayman and his children, but also the entire Ohio system of family court justice.

Hyperbole, perhaps? Readers are encouraged to read the entire item. However, an impression readers might take away is that while custody was at issue and abuses of joint custody/visitation was alleged, there was also Klayman dissatisfaction over money; his only two footnotes in his twenty pages of argument stating:

1. {Ex-spouse] Ms. Luck and her new husband make in access of $150,000 a year and live in a house that Relator essentially paid for as a result of the divorce settlement. It is believed that the house is free and clear of any mortgage as the initial mortgage was for a very small amount, as most of the house was paid for in cash from the divorce.

2. Relator Klayman had religiously paid child support up to the time of the false allegations. Moreover, Ms. Luck and her husband are well off -- with a family income over $150,000 per year and living in a house, which is likely free and clear of any mortgage by this time. Relator Klayman has paid about a million dollars to Ms. Luck as a result of and since the parties divorced. Thus, the children are not without means and Relator should not have to pay child support where he has been unilaterally prohibited by the ex spouse, even to this day, from seeing or talking to his children for many years, now going on 6 years as of this date.

Klayman, at item p.9, para 21, alleges under oath:

21. This [underlying] contempt motion directly concerns "enforceability" of the child support provision in the Consent Marital Settlement Agreement. Under Virginia law, the decision in Hartman v. Hartman, 33 Vir. Cir. 373, 1994 WL 1031136 (Apr. 13, 1994)(Exhibit 8) provides a complete defense to the "enforcement" of child support. In Hartman, as in this case, the mother cut off the father's access to the children and told the child that someone else was his father. The court absolved the father from having to pay any child support payments to the mother of the child. This case involving the Relator, contrary to the strained and biased "reasoning" of the Magistrate and Ms. Luck, is even more extreme than Hartman, as Ms. Luck not only unilaterally, without court order, cut off contact with the children - in effect kidnapped them -- for the better part of four years, but she also made heinous false charges of child sexual abuse and alienated them by also telling them that Relator intended to take the children away from their family and friends. In so doing, Ms. Luck admittedly shared the custody petition of Relator with the children to try to coerce and scare them into joining her felonious and evil scheme to have the father indicted for child sexual abuse and thus get rid of him once and for all.

Klayman asserted Klayman's former wife invented "inappropriate touching" allegations as a tactic, only after he had raised denial of visitation issues in court; Klayman's mandamus item alleging:

7. Prior to this incident, Relator, who is a dedicated father, had been cut off from visitation and contact, even by telephone, by his former wife, just shortly after Ms. Luck had remarried in the summer of 2007. Before he was cut off from visitation, Relator religiously visited his children, at great time and expense, since he lived in Florida, regularly on weekends and holidays during the prior four years since the separation and divorce, and spent weeks with them during the summer. It was always a struggle to get his former wife to obey the visitation provisions of the Consent Marital Settlement Agreement, but Relator, although frequently frustrated, was at least able to have some contact with his children.

8. At the first status conference in this case, Magistrate David Mills ("Magistrate") told Ms. Luck, that she must abide by the Consent Marital Settlement Agreement and permit the previously agreed upon visitation schedule. But just days after this admonition by the court, Ms. Luck outrageously and "conveniently alleged," out of the blue, and years after the alleged events, that Relator had sexually abused his son Lance. A complaint was filed with the Department of Children and Families (DCF). Ms. Luck's counsel later told the Magistrate, falsely, that DCF had advised that Relator no longer have access to his children.

Read the entire online item, and draw your own conclusions. Read it with a fair mind, as it is Klayman telling his side of a story where neither me nor readers were present and involved.

The Magistrate's decision, which is pivotal to the suit against Ken Avidor and others, is an attachment to Klayman's mandamus petition, it's text beginning at p.47 of the online item. Hearings were ongoing during much of 2009, with the Magistrate's decision filed with the Clerk of Court, June 9, 2010.

The Magistrate's decision speaks for itself. In filing for mandamus, Klayman speaks for himself. The motion to dismiss Klayman's defamation lawsuit was filed May 22, 2013, hence, it appears Klayman has yet to respond, before any decision on motion will issue.

A hope would be mainstream media would be reporting the dismissal motion decision, but absent that readers can anticipate the blogsphere will be reporting.

Finally, if the motion is granted, it would effectively end Klayman's suit against Avidor and others. Should the motion to dismiss be denied, that would not be a vindication of Klayman's contention he was defamed, but only a decision that he should be allowed to take his contention to trial.

____________FURTHER UPDATE____________
More Klayman-related online links, here, here, here, here, here, here and here. One item states:

Larry graduated from Duke University with honors in political science and French literature. [...] Larry speaks four languages — English, French, Italian, and Spanish — and is an international lawyer, among his many areas of legal expertise and practice.

I can respect a talent for four languages, given my struggles with English alone. And a mastery of French after undergraduate studies also deserves respect. I respect skills I lack, and have always felt constrained by knowing only English. And that after wrestling with Thomas Mann, in undergraduate German classes - sweating blood to get the two years of credit for German study required of me as a chemistry major.

____________FURTHER UPDATE____________
Wonkette, on Klayman v. City Pages, yesterday, here; earlier, here.

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