From Chris BeHanna ----- PLEASE READ, FORWARD, CROSS-POST, PRINT OUT, AND SHOW TO YOUR FRIENDS! POST AT GUN STORES, CLUBS AND RANGES! PLACE IN YOUR MAILINGS. SPREAD THE WORD! THE MEMBERS' MEETING IS IN PHILADELPHIA ON SATURDAY, JUNE 6, 1998, BEGINNING AT 10 AM. ALL CONCERNED MEMBERS SHOULD PLAN TO BE THERE! CALL MEMBER SERVICES AT 1-800-672-3888 FOR INFORMATION. NOTICE: Second Amendment Action Committee Meeting For all NRA members with a few exceptions. 7 PM FRIDAY NIGHT JUNE 5, 1998. Holiday Inn Select, Center City: the level above the restaurant level, called the "meeting level." This unfortunately (and unavoidably) conflicts with the Friends of the NRA Dinner scheduled for the same time. The Friends of NRA meeting would cost you $50 a head. There is not time enough to make both meetings. ----- Begin Forwarded Message ----- NRA Management Held in Contempt of Court by Chris BeHanna NRA Life #CPC7725J Some of you have seen part of this before. Most of you haven't seen it all in one place. This post contains a message from Howard Fezell regarding the notice published in the May 1998 issues of the NRA magazines, Mr. Fezell's letter regarding the contempt finding, and Justice Shainswit's decision that holds NRA management in contempt of court for the notice printed on page P of the ballot issue of the NRA's magazines (decision as OCRed by NRA Director and Second Amendment Action candidate David Gross. Where obvious, I've corrected OCR errors.). This case is still active. It has *NOT* settled (according to Howard Fezell's website). The resources that have been spent so far in this action (plaintiffs' and defendants' -- the latter is YOUR MONEY, and NRA management will be reimbursing the plaintiffs with YOUR MONEY) could have significantly funded a federal lawsuit to overturn a gun control law, or could have turned a number of anti-gun politicians out of office. THIS EXPENSE WAS ENTIRELY AVOIDABLE. ALL THAT THE "WINNING TEAM" HAD TO DO WAS OBEY THE BYLAWS. THEIR ARROGANCE HAS COST YOU, THE MEMBERS, DEARLY. Chris BeHanna wrote and is responsible for everything above this line. ----- Begin Fezell Explanation of May 1998 Magazine Notice ----- Voting members of the N.R.A. received (or shall receive) a May issue of the Rifleman/Hunter/Guardian which, opposite The Armed Citizen, contains a full page NOTICE TO NRA VOTING MEMBERS on a full page card stock insert. Naturally, a lot of people are going to wonder what it is all about. At http://www.2ndAmendment.net I have just added a file to explain the legal action that was taken by 10 Board candidates to compel N.R.A. management to comply with the Association's Bylaws. This file includes a concise chronology of the major events which have taken place since December of last year. Yours for the Second Amendment (and a FAIR election) Howard J. Fezell 2nd Amendment Home Page http://www.2ndAmendment.net fezell@fred.net ----- End Fezell Explanation of May 1998 Magazine Notice ----- ----- Begin Fezell Contempt Article ----- Dear fellow N.R.A. members: This afternoon I received word that in the case of Fezell, et al. v. National Rifle Association Of America, the N.R.A. has: (a) been held in contempt of court; (b) shall be required to pay the plaintiffs' attorneys' fees and costs in connection with the contempt application. (c) pay a fine of $250.00 to the court. [Note from Chris: this is the maximum penalty allowed under New York Non-Profit Corporation Law. The plaintiffs did not seek more than this. Their goal, after all, is not to hurt the N.R.A., but rather to save it by trying to obtain a fair election conducted in accordance with the bylaws.] The Supreme Court For New York, New York County (Hon. Beatrice Shainswit, presiding) found that the notice published opposite the ballot in the 1998 Ballot Issue of N.R.A. magazines "violated the court's directive [of February 6] not to designate candidates in the official ballots, and prejudiced the rights of the named plaintiffs to a fair election." The Court also stated that "the notice depicted the plaintiffs in a negative light as troublemakers, interfering with the historical operations of the NRA Board elections, by its failure to explain that the plaintiffs merely sought an order requiring the NRA to follow its own unambiguous bylaw, and it even suggested that the order would be reversed on appeal." The Court did not set aside the latest Board election, however the case is by no means closed. The plaintiffs STILL have a count pending against N.R.A. management for its breach of fiduciary duty to conduct a fair election in accordance with the Association's bylaws. The amount of attorneys' fees that the N.R.A. will be required to pay is likely in the range of $30,000+. This would IN ADDITION TO an estimated $60,000 - $75,000 in attorneys' fees that the N.R.A. paid its own outside counsel in defending this lawsuit -- which could have been avoided if only N.R.A. management had been willing to run an election in accordance with the Bylaws. Add to this total the $37,000 Jim Land swore under oath N.R.A. had to pay "to have two versions of the ballot issue available for printing." $30,000+ $60,000 - $75,000 $37,000 Think about what YOUR STATE could have done with that kind of money if only Mr. LaPierre and Mr. Land had acted differently a few months ago. Yours for the Second Amendment (and a FAIR election) Howard J. Fezell 2nd Amendment Home Page http://www.2ndAmendment.net fezell@fred.net ----- End Fezell Contempt Article ----- ----- Begin Transcript of Justice Shainswit's Contempt Order ----- SUPREME COURT : NEW YORK COUNTY IAS : PART 10 -------------------------------------------X HOWARD J. FEZELL, JOHN C. KRULL., JERRY L. ALLEN, FRANK H. SAWBERGER, LARRY R. RANKIN, JOHN GUEST, WILLIAM DOMINGUEZ, JEFF KNOX, KIM STOLFER, JOHN H. TRENTES, Plaintiffs, Index # 600211/98-003 Cal. # -- of 3/30/98 -against- NATIONAL RIFLE ASSOCIATION OF AMERICA, Defendant . -------------------------------------------X SHAINSWIT, J: Plaintiffs move for an order holding the defendant in contempt of court for violating the court's preliminary injunction order. For the following reasons, the motion is granted, but only to the extent of a finding of civil contempt and the imposition of a fine in the amount of $250.00 plus the plaintiffs' costs and expenses on this motion. By order dated February 6, 1998, this court issued a preliminary injunction enjoining defendant National Rifle Association of America ("NRA") from printing any type of designation in the 1998 ballot issue of the NRA's three official journals, and on the official ballot of the NRA, as to whether a candidate for election to the Beard of Directors of the NRA (the "Board") was nominated by petition of NRA members or by the present Board's Nominating Committee. Plaintiffs, themselves all "petition" as opposed to "Committee" candidates, had contended, and the court subsequently agreed, that any such designation would be in violation of the plain wording of Article VIII, Section 3(e) of the NRA's bylaws. Following the issuance of this court's order, NRA published its 1998 ballot issue in its March 1998 official journals. In place of its Nominating Committee Report, the NRA published a notice which, the plaintiffs claim, violates the preliminary injunction, and constitutes a thinly-veiled attempt to punish the ten named plaintiffs for bringing this lawsuit. The notice at issue states as follows: This page was reserved for the 1996 Nominating Committee Report. A lawsuit was filed in the Supreme court of the state of New York by ten candidates for the Board of Directors to prohibit any mention in the biographical sketches or in political ads as to how any candidate was nominated. Shaban 3/13/98 Affirm., Ex. D. Immediately following this statement was the full caption of this action, listing each of the ten named plaintiffs. The notice concluded by stating that, until the court's injunction was reversed by the Appellate Division, the order must be obeyed. The NRA denies any intent to disobey the court's injunction or to suggest any disrespect of the court's authority. It contends that the notice was prepared because deletion of the Nominating Committee report left a blank page in the ballot issues. The secretary of the NRA avers that he believed that deletion of a report which had been published every year since 1984 would cause a massive number of telephone calls from NRA members seeking an Page 2 explanation for the omission. He also claims that the printing process for the NRA official journals did not accept blank pages. The notice in its present term was believed to be the most accurate description of the lawsuit and the proper way to describe an injunction that was being appealed. Judiciary Law : 753(A)(1) grants to this court the power to punish a party for civil contempt "for disobedience to a lawful mandate of the court." In order to find that a civil contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; that, with reasonable certainty, the order has been disobeyed; that the party to be held in contempt had knowledge or the court's order; and, finally, that the disobedience must have prejudiced the rights of the other party. McCain v. Dinkins, 84 NY2d 216 (1994); McCormick v Axelrod, 59 NY2d 574, amended 60 NY2d 652 (1983). To constitute civil contempt, it is not necessary that the disobedience be deliberate or willful; the mere act, regardless of motive, is sufficient to sustain a finding of civil contempt, if such disobedience defeats, impairs, impedes or prejudices the rights of the other parties. Sentry Armored Courier Corp. v. New York City Off-Track Betting Corp., 75 AD2d 344 (1st Dept 1980); Yalkowsky v. Yalkowsky, 93 AD2d 834 (2d Dept 1983); Various Tenants of 446-448 West 167th Street v. New York City Department of Housing Preservation and Development, 153 Misc 2d 221 (App T, 1st Dept 1992), affd 194 AD2d 311 (1st Dept 1993). I accept the NRA's contention that it was unable to send the Page 3 ballot issues to the printers with a blank page, and that some explanation for the absence of the Nominating Committee's report in the March 1998 ballot issues was a prudent course of action. In addition, I make no findings as to the motive of NRA's management in the wording of this notice. However, I find that, regardless of motive, the notice violated the court's directive not to designate candidates in the official ballots, and prejudiced the rights of the named plaintiffs to a fair election. The notice did this by announcing that the ten plaintiffs, all candidates for election, had challenged the publication of the report of the Nominating committee. While it is true that the plaintiffs were not identified as "petition" candidates, there is a clear-cut implication that they are not "Committee" candidates. More important, the notice depicted the plaintiffs in a negative light as troublemakers, interfering with the historical operations of NRA Board elections, by its failure to explain that the plaintiffs merely sought an order requiring the NRA to follow the dictates of its own unambiguous bylaw, and it even suggested that the order would be reversed on appeal. "It is said that a party may not accomplish by indirection that which it is forbidden to do directly." Jones Lang Wooten USA v. Le Boeuf, Lamb, Greene, & MacRae, NYLJ, April 20, 1998, at 25, col. 3 (1st Dept). The NRA insists that the plaintiffs have not suffered any prejudice as a result of the notice because, before the publication of the March 1998 ballot issues, plaintiffs had identified themselves and publicized their court victory via the Internet, and Page 4 in political mailings and advertisements. Even assuming that the NRA could establish that all voting members were equally exposed to those materials, this has no bearing on the matter at hand. The only issue relevant to this lawsuit is how candidates for election to the Board are described "[i]n the both the official journal and the official ballot." NRA bylaws, Article VIII, Section 3(e). The prejudice to the plaintiffs herein arises from the violation of this bylaw, which was enacted to ensure a fair election process. The parties and the candidates are free to engage in any campaigning they see fit, whether via the Internet, or otherwise, as long as it does not violate the bylaws of the corporation. Plaintiffs have also sought a finding of criminal contempt of court. An adjudication of criminal contempt requires proof beyond a reasonable doubt of a willingness and intent to defy the dignity and authority of the court. Judiciary Law : 751; New York City Coalition to End Lead Poisoning v. Guiliani, __ AD2d __, 668 NYS2d 1, 3 (1st Dept 1997). The circumstances warranting a finding of criminal contempt are not even remotely present here. The question then comes as to an appropriate remedy for this civil contempt. Plaintiffs have requested a litany of relief from this court which they claim is necessary to purge the contempt, including an order (1) setting aside the pending Board election, (2) establishing a 90-day cooling off period, (3) declaring a new election after the 90-day period which will be monitored by the court, (3) requiring the NRA to provide plaintiffs with free advertising space in the official journals containing the new Page 5 ballots comparable to the space plaintiffs purchased in the March 1998 official journals , (4] requiring the NRA to publish an explanatory statement in the official NRA journals as to why the court issued the injunction and the need for a new election; and (5) requiring the NRA to reimburse plaintiffs for their attorneys fees to date. As an alternative to ordering a new election, plaintiffs suggest that the current Board hold over until next year. The NRA opposes any interference with the pending election. It has, however, been exceedingly cooperative in terms of attempting to ameliorate the effects of the notice. With the consent of plaintiffs' counsel, a second "explanatory" notice was published in the most recent issue of the NRA official journals which more fully explains the lawsuit, advises that the appeal of the February 6, 1998 order has been withdrawn, and concludes with an apology for any portrayal of the plaintiffs in a negative light. The full text of this explanatory note is as follows: NOTICE TO NRA VOTING MEMBERS On January 16, 1998, ten current nominees far the Board of Directors of the National Rifle Association, Howard J. Fezell, John C. Krull, Jerry L. Allen, Frank H. Sawberger, Larry R. Rankin, John Guest, William Dominguez, Jeff Knox, Kim, Stolfer, and John H. Trentes, commenced an action pursuant to New York's Not-For-Profit Corporation Law to enforce Article VIII Section 3(e) of the NRA Bylaws which provides: In both the official journal and on the official ballot, no persons nominated by petition nor by the Nominating Committee shall be so designated. The plaintiffs asked the court for a preliminary injunction directing the NRA to conduct its upcoming Board of Page 6 Directors election in conformity with this Bylaw. Upon examining the four corners or the Bylaw, Justice Beatrice Shainswit of the Supreme Court, New York County, found that the Bylaw clearly and unequivocally prohibited the NRA from stating or in any way indicating, in the official journal or on the official ballot, how a nominee was nominated. On February 6, 1998 the court implemented its decision by issuing a preliminary injunction order which enjoined the NRA from "printing any type of designation in the 1998 Ballot Issue of the three official journals (American Rifleman, American Guardian, American Hunter) and on the official ballot of the National Rifle Association of America ("N.R.A.") as to whether a candidate was nominated by petition or by the nominating Committee, including paid advertisements." Although the NRA had filed an Appeal from this injunction, it has subsequently seen the wisdom in the decision and has recognized that the decision and order fairly interpreted the Bylaw. The NRA has therefore accepted the court's decision in full and has decided to withdraw its appeal. The NRA published a notice in the March, 1998 Ballot Issue of its official journals in place of the Nominating Committee Report which has been published in the magazines since 1984. By such publication, the NRA did not intend to designate how these plaintiffs were nominated. Further, the NRA regrets if the notice portrayed the plaintiffs in a negative light or in any way indicated that the nomination of these plaintiffs should be regarded less favorably than that of other nominees. The NRA realizes that the plaintiffs were seeking the fair and appropriate interpretation of the NRA Bylaw and expresses its appreciation to plaintiffs, and to the court for its guidance. Section 753 of the Judiciary Law authorizes the court to punish a civil contempt by fine and/or imprisonment. See also Judiciary Law : 770. Section 773 authorizes the court to impose a fine sufficient to indemnify the aggrieved party for actual loss or injury caused by the contempt. However, where it has not been shown that an actual loss or injury has been caused, a fine may be imposed, not exceeding the sum of $250.00, plus the amount of the Page 7 complainant's costs and expenses. Id. Any interference by the court in the pending election is unwarranted, both factually as well as legally. The prejudicial effect of the notice has been, to the greatest extent possible, ameliorated by the subsequently-published explanatory notice. Ordering a new election or holding over the existing Board until 1999 would be highly prejudicial to the other candidates as well as the entire NRA membership. As a legal matter, the injunctive relief sought is available neither under the Judiciary Law nor N- PCL : 618. Since plaintiffs have failed to demonstrate an actual monetary loss stemming from the notice, the fine to be imposed is limited to the sum of $250.00 plus the amount of the plaintiff's costs and expenses, including attorneys' fees, incurred in connection with the contempt application. Page v Cheung On Mansion, 138 AD2d 324 (1st Dept 1988); Bennett Brothers v. Floyd Bennett Farmers Market Corp, 16 AD2d 897 (1st Dept 1962). The order to be settled hereon shall be accompanied by an affidavit detailing the costs and expenses, including attorneys' fees, incurred by plaintiffs in connection with the instant notion. Settle order. ENTER: /s/ BS J.S.C. Dated: April 20, 1998 ----- End Transcript of Justice Shainswit's Contempt Order ----- The people below are the ones NRA management sought to defeat by arrogantly violating the fair elections bylaw, and are the ones harmed by the "Vote Against" campaign. The candidates below fought for your right to have a fair election. They are worthy of your trust. 1. Please VOTE FOR THE FAITHFUL Second Amendment Action candidates: Jerry L. Allen David M. Gross* Robley T. Moore Michael J. Beko* John Guest Larry R. Rankin James A. Church Fred Gustafson Albert C. Ross* William Dominguez Don L. Henry* Frank H. Sawberger Howard J. Fezell* William B. Hunt Thomas L. Seefeldt Daniel B. Fiora* Phillip B. Journey* Kim Stolfer Arnold J. Gaunt Michael S. Kindberg* John H. Trentes Fred Griisser Jeff Knox Glen I. Voorhees Jr.* Wesley H. Grogan Jr.* John C. Krull Those with an asterisk have been deliberately targeted to be PURGED as "extremists." What's "extreme" about demanding your rights? Help NRA help you and support these candidates! 2. Visit their web sites for further information: http://www.2ndamendment.net (contains candidate statements) http://www.mcs.net/~lpyleprn/home.html http://www.nealknox.com/ (contains Heston interviews) U.S. mail point-of-contact: Second Amendment Action, 100 Heathwood Drive, Liberty, S.C. 29657 ----- End Forwarded Message