Coleman et al v. Campbell County Public Library Board of Trustees

Filing 6

MOTION for Order to Bar Ex-Parte Contacts and the Reckless Expenditure of Funds Owed as Refunds to make said contact by Charlie Coleman, Erik Hermes, John P. Roth, Jr Motions referred to J. Gregory Wehrman. (Attachments: # 1 Proposed Order Order Granting)(Voelker, Brandon) Modified to better describe on 2/13/2012 (LST).

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON CIVIL ACTION NO. 2012-00030 DLB CHARLIE COLEMAN, JOHN P. ROTH JR AND ERIK HERMES ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED PLAINTIFFS V. CAMPBELL COUNTY PUBLIC LIBRARY BOARD OF TRUSTEES DEFENDANT PLAINTIFFS’ MOTION TO BAR EX-PARTE CONTACTS AND THE RECKLESS EXPENDITURE OF FUNDS OWED AS REFUNDS TO MAKE SAID CONTACT Comes now the Plaintiffs, by Counsel, and hereby moves for an immediate Order from this Court to prevent Defendants from making any ex-parte contacts with the proposed class of taxpayers. Plaintiff seeks relief to bar Defendant from unlawful conduct in the form of an Order that bars Defendant from engaging in ex-parte self serving communication paid with monies ultimately owed to the Plaintiffs and class in the form of refunds. In support, Plaintiffs’ attach hereto as Exhibit A, the February 2012 “Connections” newsletter, sent to prospective class members. Defendant’s Executive Director specifically states, “The library is in total compliance with the spirit, intent and letter of the Kentucky Revised Statutes….” Furthermore, Defendant’s Executive Director seeks to mislead the prospective class by stating “It’s extremely unfortunate that time, energy and money that should be used to serve the public must instead be diverted to this shortsighted lawsuit.” Mr. Morgan’s statements are misleading and not based on fact. As argued in prior filings, KRS 173.790 governs the manner of taxation for the Defendant. Classification of this action as “short sighted” is to argue that the laws of the Commonwealth of Kentucky -1- do not apply to the Defendant. The unfortunate “time, energy and money” being spent, is being expended on misleading communications to the class. The Defendant’s Executive Director has also started attending various city council meetings to state similar remarks, for which Plaintiffs do not have the requisite “podium” in that they are not the Library. Furthermore, to allow the Defendant Library to use its standing as a library to then seek to mislead the public as to the issues raised herein is an abuse of the public trust and money. This action is simply brought to insure the rule of law is followed. The use of taxpayer money to mislead should be barred. Absent an Order from this Court, the use of monies, which are ultimately due in the form of refunds, will be spent on frivolous statements and public relations by the Defendant Library. In Gulf Oil Company v. Bernard, 452 U.S. 89 (1981) the United States Supreme Court stated that “because of the potential for abuse, a district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and the parties.” Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 171, 110 S.Ct. 482, 486-87 (1989) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). In Gulf, the Court found that proper regulation of communication with class members does not violate the First Amendment. The Sixth Circuit has embraced the decision in Gulf Oil by requiring orders limiting communication between parties and potential class members to be based on the specific circumstances of the case: [A]n order limiting communications between the parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties. Only such a determination can ensure that the court is furthering rather than hindering, the policies embodied in the Federal Rules of Civil Procedure, especially Rule 23. -2- Williams, 658 F.2d at 436 (quoting Gulf Oil Co. v. Bernard, 101 S.Ct. 2193, 2200 n.12). Specific circumstances where the federal courts have found that the purposes of Rule 23 class actions would be hindered include: (1) soliciting non-party class members; (2) counseling potential members and “drumming up” participation in the proceeding; or (3) communicating with class members and misrepresenting the status or effect of the pending action. Williams, 658 F.2d at 436. Defendant Executive Director Morgan is clearly attempting to misrepresent the status or effect of the pending action. Plaintiffs action is not brought to “unravel and undermine the work that helps so many,” as misrepresented by Defendant. To the contrary, Defendant engaged in a taxing scheme, with knowledge of a statutory limitation. The meeting in which Plaintiffs and their Counsel attended, the Defendant Library Board’s attorney acknowledged the existence and conflict between HB44 and KRS 173.790. For the Defendant’s Executive Director to then advise that he is “honestly baffled,” after his own attorney in a meeting advised of a potential problem, is the type of misrepresentation to be prohibited. Especially, in light of the fact that the taxpayers are paying for Mr. Morgan to engage in misrepresentation. Wherefore, based on the foregoing, Plaintiff would ask this Court to enter an Order prohibiting the further use of taxpayer dollars to engage in ex parte communications with the prospective class members. Respectfully Submitted, _/s/Brandon N. Voelker______________ Brandon N. Voelker The Voelker Firm, PLLC 4135 Alexandria Pike, Suite 109 Cold Spring, Kentucky 41076 (859) 781-9100 -3- CERTIFICATION This is to certify that on the 10th day of February 2012, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/Brandon N. Voelker_______________ Brandon N. Voelker -4-

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