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Dec 12, 2001

Steven M. Brown writes:

This settlement agreement -- along with the following very interesting back-channel information on Judge Sabraw (who will be in charge of appeals and enforcement for the next ? year or so) has made my day -- hell, made my decade!

Those who feel the 2/3 (or balanced) majority provision of the settlement gives the former majority members a permanent veto -- are looking at it upside down. It is more accurate to say that now, for the first time, it is WE who have the permanent veto. For too long, the majority simply did what it wanted, and we had no say whatever, let alone a veto. Now we not only have a say, we can say NO. That is no small thing, and that alone would be a huge victory all by itself.

But of course, that is only a small part of what we have gained. For although the settlement does allow the former majority, in the absence of a 2/3 (or balanced) majority, to appeal to Judge Sabraw -- that is the equivalent of giving them snow in winter.

Here is why. First of all, it is abundantly clear to all parties, especially to the court (whether publicly admitted by the defendants or not), that the ONLY reason for a settlement that awards our side a majority -- and takes it away from their side -- is this:

The present (outgoing) management has demonstrably failed by every measure of success, including its own. Under its leadership, the foundation is now legally insolvent; has incurred unpayable debts of at least $3.7 million; may at this moment be facing imminent bankruptcy; and has lost the confidence and support of its audience, as demonstrated by a precipitous drop of 40% in listenership at 3 stations in the past year alone (according to latest Arbitron reports) and an equally precipitous, or perhaps even greater, drop in listener funding, without which the foundation has no chance of surviving.

On what grounds, therefore, do you feel it likely that Judge Sabraw will overrule decisions by our new majority if challenged by the former majority? The settlement awarded us power precisely so that we might rescue Pacifica from the disastrous decisions and policies of that very same former majority. Thus the court expects us to begin almost immediately to reverse those discredited decisions and policies in finances, management, staffing and programming that were so clearly responsible for bringing Pacifica to its present sorry state. Indeed, Judge Sabraw is likely to be astonished if we do not immediately attempt to make those changes; else why did we seek power?

Therefore, unless a decision of ours be petty, mean, spiteful, vengeful, patently unfair or otherwise unrelated to sound governance and the prompt restoration of previously existing staffing and programming conditions at Pacifica, we can expect the judge to dismiss virtually all appeals from the former majority that attempt to challenge any new management decisions and policies we claim to be in the best interests of the foundation.

That would be the case with almost any judge. But I believe it is even more likely to be the case with Judge Sabraw.

The reason is that I have spoken about the judge with several prominent attorneys, one of whom has been my corporate counsel and personal attorney for over 20 years, who know and have appeared regularly before Judge Sabraw many times in the past and most recently within the last few months. I will also be receiving (I hope soon) a "judicial profile" or "cheat sheet" on Judge Sabraw prepared by legal observers over time at the request of a large West Coast law firm that regularly practices before him. This profile evaluates his competence, fairness, probity, intelligence, methods of procedure, attitude and preferences, in so far as any of the foregoing can be derived from on-the-scene observation and analysis by qualified analysts.

A preliminary report on the judge from these sources indicates that he is relatively young (early fifties); extremely bright, conscientious and hard-working (he comes from a family of jurists; his father was a distinguished and well known judge and legal scholar); reads the legal documents of each case carefully (unlike many judges, who skim or dump the "tedious stuff" in their clerks' laps); will not make decisions that turn on legal technicalities at the expense of fairness (and is known to bend the rules if necessary to ensure a just verdict instead of merely a legally correct one); doesn't tolerate bullying, posturing or tendentious long-windedness by attorneys; and is eminently practical in seeking solutions that get to the heart of the matter. He has also impressed (hard to do) lawyers by his willingness to apologize and admit he is wrong when it is called to his attention, even to rewriting a decision he had already tentatively announced, rather than becoming huffy and indignant when challenged (a common judicial trait). He is the leading judge for "complex cases" in Alameda County; is not fazed or daunted by difficult questions; and is known for crafting his decisions so artfully as to make them bullet-proof on appeal. He is considered to be a "lawyer's judge" -- no fluff, no hubris, no "attitude, often coming into court without a robe, and shuttling back and forth from chambers to retrieve his own papers "like a regular mensch", according to one source. His clerk is considered to be sharp, pro-active, and willing to involve himself in behind-the-scenes negotiations with opposing parties in the interests of avoiding needless hassles (and trials).

All in all, apparently a judge from whom we can hope for a fair shake -- making me almost wonder, perhaps, what would have happened had we chosen to roll the dice with him in a trial. The only thing I do not yet have is a slant on what his "politics" might be, but I hope that will be included in forthcoming information.

That's all I have right now. But I would say it is more than enough reason to get out the Champagne and thank your lucky stars we were so fortunate in finding champions of the calibre of Spooner, Adelson, Cagan, Maldonado and all the rest who expended so much blood, sweat, toil and tears over the last three years to bring us this victory against the powerful and well-funded corporate and political forces whose goal it was either to control Pacifica -- or destroy it.

And of course, equal cheers for all of us on the home front who so vigorously organized, demonstrated, agitated, speechified, leafleted, emailed, marched, fund-raised and hell-raised as full and equal partners of the lawsuit litigants to help bring forth this mighty and gratifying victory. Congratulations to us all.

Stephen M. Brown

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