Bullies: The Story of a SLAPP Suit Gone Wild
What did bloggers (and real journalists) lose at the hands of a Dallas County Judge earlier this week?
What is a SLAPP suit? It stands for a Strategic Lawsuit Against Public Participation. How does it work? It is filed, well, by bullies usually in an attempt to shut someone up on an issue involving the public's interest.
As a wild example, let's use Walmart. Say Walmart was building a supermarket across the street from your house and, as an example, their parking lot lighting was perhaps not up to code. You're a contentious sort of person so you start making noise.
A lot of noise.
Eventually somebody sues you and abuses the legal system to torture and punish you--hoping to shut you up.
Thus the name SLAPP suit.
Because of the popularity of SLAPP suits, many states have adopted anti-SLAPP suit laws. Texas just adopted special legislation, addressing this problem, recently. Coined the Texas Citizens Participation Act it passed with unanimous support from both houses of the Texas Legislature.
Let's translate that: in a rare showing of complete unity, all Republicans and all Democrats supported it and voted to pass it.
The TCPA gives victims of SLAPP suits a quick route, early on, to force a plaintiff to show his or her lawsuit has merit before it wastes the resources of the court and the public.
Put another way, the TCPA is a mechanism to stop the court system from being used as a sword by those who would file frivolous lawsuits to stifle free (or unpopular) speech
For the law to work, though, you have to get it in front of a judge.
Before we tell the story of the lawsuit, we need to introduce the personalities.
You don't have to be around Dallas long before you hear the name Avi Adelman and usually it's in a questionable context. Adelman is an annoyance. He's annoyed the local bars. He's annoyed restaurants. He's annoyed neighbors. He's annoyed city staff. He's annoyed politicians. He's annoyed--well you get the idea.
Adelman publishes an annoying blog Barkingdogs.org that frequently "scoops" the traditional Dallas media.
So when Walmart announced they were building a Walmart across the street from Adelman, it's a fair bet they were headed for being annoyed at some point.
Adelman is also effective. He's contentious, and once he sets his sights on you, he's formidable. He's an in-your-face kind of person who gets under your skin and when you've ended up on his bad side, you'll know it.
Another thing about Adelman: there's generally no middle ground. People either love the guy or hate the guy. While he has his supporters, he has his detractors.
Adelman has also had several run-ins with the law (both civil and criminal). To date, he's emerged unscathed from both. He was involved in a smackdown with a bar patron. Adelman's ticket was dismissed. Curiously enough the woman, Arikca Hanson has been on the lam--never showed up to court and the City has never attempted to find her or issue a warrant.
Adelman was also the subject of a defamation lawsuit brought by, now, convicted felon Fernando Rosales--formerly the owner of the Lost Society bar on Lower Greenville. The lawsuit was dismissed in 2012 after Rosales was arrested for possession of a controlled substance and lying to the Texas Alcoholic Beverage Commission.
One thing we've learned over time: when Avi Adelman gets involved in something, it has the potential for turning weird very, very quickly.
Melissa Kingston is a lawyer.
In law school she was called Rat Face.
We're sure no harm was meant by it.
As a matter of fact, we're pretty sure it was a compliment! Look at that cute little mousey nose! Those cute little pinky eyes! Finish by adding in some cute little whiskers and, come on now, who couldn't love a cute little face like that?
Kingston is a partner at Friedman and Feiger (don't worry, we'll tie all of this together toward the end of this yarn).
This is the same Melissa Kingston who found herself at the center of what must have undoubtedly been a harrowing experience last week. She says someone tried to carjack her.
According to Kingston, she was in the parking lot of Spec's liquor store.
With the convertible top down on her car.
In 48 degree weather (well, not according to Kingston, but the National Weather Service).
Anyway, a guy with a gun ("possibly a .38 special") speaking broken English comes tooling up, grabs her arm and tries to drag her out of the convertible with the top down in the parking lot of the liquor store in 48 degree weather all the while calling her "Sarah."
Kingston ended up faking him out, knocking him to the ground with the passenger door. Then she gets out of the car and begins "kicking the suspect repeatedly in the face and stomach."
Kingston then ran into the liquor store and sought shelter inside while the police were called and a dangerous carjacker was apprehended and put behind bars where he belongs.
Well, no that's not what she did next.
Kingston must have gotten back in her car, driven down the street and called the cops on her cell phone and reported the crime.
Well, no she didn't do that either.
No, Kingston got back into her car, drove the 5.1 miles from the liquor store back to her home near lower Greenville Avenue, and reported the crime 30 minutes later (giving the gunman plenty of time to pick up his "possibly a .38 special" and get away).
Hey, that's her story! We don't make this stuff up!
Accordingly, Dallas.Org is offering a $1,000 reward for information which leads to the arrest and conviction for ANY crime (and we mean ANY crime) committed in connection with Dallas Police report #0047056-A.
Kingston is active in neighborhood politics which is where her path crossed with Avi Adelman (but we'll get to that in a bit too).
We haven't been able to find anything in the ordinance, establishing that committee nor any organization. Perhaps it's there and we just missed it.
Nevertheless, the organization has a website and claims to have officers and committees.
The website claims they were founded in 1893, but the ordinance only came about in 2004.
They have sued people in District Court, under the name "Belmont Addition Conservation District."
They've made agreements with others under the name "Belmont Addition Conservation District.
We've been unable to locate articles of incorporation, nor a taxpayer ID (or anything of the sort) for any Belmont Addition Conservation District.
The question remains: what official act established this organization and what gives them the power to do what they do?
How do they get their money?
We have questions in to several people at the City, County and State in hopes of answering this question.
Melissa Kingston is married to Philip Kingston, described in court proceedings as an "unemployed stay-at-home-lawyer." We don't know his employment status but Melissa insists he "works" from home.
Philip is also a candidate for Dallas City Council.
Philip Kingston was the attorney of record (meaning he filed the lawsuit) for the Belmont Addition Conservation District lawsuit we reported about previously.
Judge Carlos Cortez
First off: who are Melinda Henry and Crystal Haynes and why doesn't Judge Cortez want anybody to see their witness statements? More on that in a bit.
Well, actually, we know who Melinda Henry is but we don't know the contents of her statement. Just hang with us a second.
Carlos Cortez is District Court Judge elected to serve the people of Dallas County.
To some who know him, he's a brilliant jurist. One local lawyer, who we'll decline to name, described him as the smartest judge on the bench.
"He knows the law better than anybody down there and he lets you know it," said our source.
Others will tell you this is true.
He also does Prince perfectly. We heard him sing karaoke once and we disagree with this assessment though. He doesn't just do Prince--he is Prince. Close your eyes and you'll swear it was the real thing!
Judge Cortez is one smart, talented guy.
Cortez also has special friends.
We've all heard the tongue-in-cheek quips about "...well, they must have paid off the judge!" But how often is the reverse the subject of a joke?
According to campaign filings, Judge Cortez paid Friedman & Feiger (Melissa Kingston's firm) $400 for solicitation/fundraising expenses in connection with a fundraiser for Cortez's campaign.
The relationship between Cortez and Friedman & Feiger was the subject of contention, last year, when plaintiffs suing Friedman & Feiger tried to recuse (remove) Cortez as the judge hearing the case. At that time, Cortez's campaign treasurer testified she didn't remember what the $400 payment was for.
From campaign filings, however, it would appear she figured it out!
Cortez was kept on the case and eventually, maybe predictably, dismissed the lawsuit against Friedman and Feiger. That case is currently on appeal.
In 2010, Cortez got into it with Dallas lawyer Randy Johnston after Johnston filed a complaint against Cortez with the State Commission on Judicial Conduct. The lawsuit accused Johnston of circulating unsubstantiated rumors started by three fellow Dallas County District Judges.
The turning point in the case happened in a 4 hour period--the morning and afternoon of Friday, February 11, 2011.
Johnston, you see, delivered witness statements taken from Melinda Henry and Crystal Haynes. The best description of what happened next came from the Court of Appeals in Texarkana who had obviously read the witness statements (which are still sealed from public view). The court writes:
"On Friday, February 11, 2011, Johnston hand delivered Cortez his response to the request for disclosure, which had been demanded by Cortez. This response included two witness statements taken by Johnston, the contents of which, if true, at the very least would certainly elicit public disapprobation of Cortez. Immediately after Cortez's receipt of the response to the request for disclosures that had been requested, Cortez was apparently either stricken with a sudden attack of pudeur or he determined that discretion was the better part of valor. Whatever might have prompted Cortez, he demonstrated remarkable alacrity by filing (on the same day) a notice of nonsuit of his claims agains Johnston."
Let's summarize this: in the morning, Johnston sent Melinda and Crystal's statements to Cortez. That afternoon Cortez dismissed his lawsuit against Johnston.
Cortez has since then been fighting tooth-and-nail to keep the statements, along with his own deposition, sealed from the public's view.
What is so damning it would make a District Judge dismiss a lawsuit in a matter of hours and fight like heck to keep it out of the spotlight?
One can only speculate.
Where it stands now: Cortez appealed to the Texas Supreme Court of Texas. A decision is expected soon and, in the opinion of most pontificators, we're going to soon find out exactly who Melinda Henry and Crystal Haynes are and see why Cortez didn't want us hear what they had to say in their statements.
But enough about the personalities. Where's the beef?
This story was about a lawsuit wasn't it?
Here's the short version: Adelman wanted "in" on the discussions happening with Walmart about the neighborhood store going in across the street from his house.
Kingston wanted him "out."
So on September 7, Adelman logged into his Godaddy.com account and registered "melissakingston.com".
A couple of days later, he began signing some emails: "Avi Adelman, email@example.com" in some of his Walmart-annoying activities--usually bearing the tag line: "Walmart: Screwing neighborhoods. One house at a time."
A signature on emails.
Five days later (that's 1-2-3-4-5 days if you, like me, happen to be slow on the backswing today), on September 12, Kingston files a 40-page swore-it-was-PMS-laden lawsuit against Adelman.
Kingston alleged theft, identity theft, misappropriation, theft, theft, confusion, spam, theft, spam, spam, spam, eggs, spam, spam and more theft.
She claimed that in the 1-2-3-4-5 days (actually, probably more like the 1-2 days) that Adelman signed emails "Avi Adelman, firstname.lastname@example.org" she suffered injury to business reputation, loss of profits, damage to her reputation, loss of identity, mental anguish, humiliation, frustration, severe embarassment, contempt and ridicule in the legal, business, and civic community, shame from her neighbors, and a broken, PMS'ing partridge in a pear tree.
Kingston then did what SLAPP-suitors usually start doing: burying the other side in paperwork. She wanted discovery. She wanted documents. She got a restraining order such that it was questionable as to whether Adelman could even walk around his own block for a period of time.
Sound like a SLAPP suit so far?
Adelman can't afford a lawyer but some guys know how and when to do the right thing. Enter Justin Nichols.
Based in San Antonio, Nichols is a young law school graduate who is just a plain decent guy. He took Adelman's case pro-bono (that means "free").
Most lawyers we've talked to try to go the extra mile to be cooperative with the other side. Normally judges appreciate cooperation. Nichols began commuting from San Antonio to Dallas to try and work through the motions and request for depositions.
Cooperation quickly started to fall apart.
On October 12, Nichols filed his action (the motion to dismiss) under the Texas Citizens Participation Act. Though the law says you need a court hearing within 30 days, Cortez's clerk told him the first available date was 40 days out. Ironically Judge Cortez would chastise Nichols for not being more aggressive with his court clerk (see where this is headed?).
The TCPA allows for something called "limited discovery." Even though it would delay the hearing even further, Nichols and Kingston's lawyer (also a Friedman & Feiger associate--see where this is headed yet?) agreed to work together to schedule depositions.
November got pushed back beyond the Christmas holidays. Then hearing schedules didn't mesh. So both sides agreed to cooperate, depose their witnesses, and set the TCPA hearing for last Monday (March 4).
So both sides cooperated, the hearing happened, and the chips fell where they might and life went on, right?
The week before the hearing, Kingston filed a motion to toss the SLAPP suit hearing because the hearing, that everybody agreed to move, didn't happen soon enough. Nichols, you see, tried to be cooperative.
Kingston had been looking for a "gotcha."
To quote Animal House: "You can't spend your whole life worrying about your mistakes. You [messed] up! You trusted us!"
Judge Cortez walked into his courtroom with a smirk on his face saying: "Who am I to second-guess the legislature!"
We're not lawyers. We're reporters. Well, OK, we're bloggers. But it seems to us the answer to Judge Cortez's off-the-cuff question might appear right in the legislation:
Sec. 27.002. PURPOSE. The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.
Nevertheless, Judge Cortez ruled that Kingston's lawsuit didn't have to stand the test of merit-or-meritless.
So the show will go on, and the bullying will continue. Dallas County's courts, and taxpayers, will get stuck with the tab.
For Kingston, her gaming the system paid off.
For Judge Cortez, his message is that gaming the system pays off and it doesn't matter what 100% of the legislature thinks.
As for the rest of us bloggers and journalists, let's hope Judge Cortez doesn't set a "gaming" precedent rendering our legislature's efforts moot.
We'd like to think it wasn't simply a "thank you" for a fundraiser--or maybe we should hope it was.