This is an unofficial transcript of a hearing held last week in the Fezell case. The only thing it lacks is the line numbers and the paragraphing may be slightly different from the official version. This hearing was prompted by the disregard that NRA management showed for Judge Shainswit's original injunction against printing the Nominating Committee report in the magazine. The Bylaws clearly state that candidates must not have the method of nomination in the magazine. The bylaw languished for some 16 years (including two during which time Knox partisans controlled the Nominating Committee. Those Nominating Committees named some familiar names, including Sue King, Marion Hammer, Susan Howard and others. Chris Knox http://www.NealKnox.com ================================================================== SUPREME COURT OF THE STATE OF NEW YORK 1 COUNTY OF NEW YORK - 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, Index No. JOHN H. TRENTES, 600211/98 Plaintiffs, - against - NATIONAL. RIFLE ASSOCIATION OF AMERICA, Defendant. - - - - - - - - - - - - - - - - - - - - x 60 Centre Street New York, New York March 5, 1998 BEFORE: HONORABLE BEATRICE SHAINSWIT, Justice Appearances: WHITMAN, BREED, ABBOTT, MORGAN, LLP Attorneys for Plaintiffs 200 Park Avenue New York, New York 10166 BY: JOHN T. SHABAN, ESQ. CADWALADER WICKER SHAM TAFT, ESQS. Attorneys for Defendant 100 Maidenlane New York, New York 10038 BY: GRANT B. HERING, ESQ. -and- FREEDMAN, LEVY, KROLL, SIMONDS, ESQS. 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 BY: STEPHEN N. SHULMAN, ESQ. MAURICE J. SCHWARTZBERG OFFICIAL COURT REPORTER 2 Proceedings THE COURT: Counsel, my attention has been called to a notice that appeared in the NRA Magazine which I found very troubling, and since my attention was called to it by a non-party to the proceeding, I would like to have comments on it by the lawyers for the parties, please. MR. SHABAN: Your Honor, is this the notice in question? THE COURT: That is the notice in question. I'm sure you're familiar with it. MR. SHABAN: Your Honor, I'm John Shaban, for the plaintiff. It's the plaintiffs' position and plaintiffs were in the process of discussing if, what and how we should do in dealing with this, that this notice essentially flies in the face of all the work we've done to date. We received an injunction from your Honor to level the playing field, force NRA to abide by its own bylaws. 3 Proceedings The Case Law supports your Honor's decision. Your Honor put together a nine or ten page opinion clearly laying out what the rationale of the Court is and what's fair and what was to be done, and what we believe the NRA has done with this notice was to circumvent that order surreptitiously. They didn't say who was nominated by petition and who was nominated by the nominating committee. But if your Honor will note, this notice appeared on page P of the ballot issue directly behind the biographical sketches of all the nominees. So, essentially what they've done is blackball these ten candidates and say, look, here's ten troublemakers, they put a monkeywrench in the works. Until we get this thing figured out, we can't help you out here, but here it is right in the middle of a ballot issue. 4 Proceedings THE COURT: There's more, Counsel, little bit more than that. The statement at the bottom is: A preliminary injunction was issued by Justice Shainswit. This injunction will be reviewed on appeal by the Appellate Division. Until it is reversed, the injunction must be obeyed. I find that statement bordering very closely on contempt. Now, are you making a motion to this effect, sir? MR. SHABAN: Your Honor, we will make a motion for a contempt before the Court. THE COURT: Is there anything you would like to say, counsel? MR. SHULMAN: First, your Honor, have not been informed until this moment what the subject of this proceeding was going to be. THE COURT: That is not true, sir. You were informed by my law secretary 5 Proceedings that the subject was the notice that appeared in your magazine. MR. SHULMAN: Your Honor, I accept what your Honor says, but I personally have only been told that you received a letter, that your Honor received a letter that included a page from a magazine, and we would not be told what was on the page. THE COURT: No, sir. Would you like my secretary to testify that he referred you to this particular notice? And, counsel, since I would be amazed to learn that you were not the one who drew this notice, I find your innocence a little disturbing, counsel. This is a notice drawn by lawyers, and you could not help but be aware of it, sir. Now, what is it that you have to say in defense of letting this notice appear in the Law Journal or drafting it, or whatever you had to do with it, 6 Proceedings sir? MR. SHULMAN: If your Honor would like, I would be happy to have the secretary of the NRA who prepared this notice come before your Honor and explain why it was prepared. I can tell you what I know about it, but I did not prepare this notice. THE COURT: You can tell me what you know about it, sir. MR. SHULMAN: What I know about it is this, that the NRA has been publishing the report of the nominating committee for 16 years continuously. That it was not publishing the report of the nominating committee in this issue because of your Honor's order. I have here the report of the nominating committee which was not published. That's the page that it is on, the page that had to be deleted. It can't be deleted because the magazine has all the pages. The determination was made that 7 Proceedings the membership had to be informed about why the nominating committee report was not published. THE COURT: And the reason they had to do it this way by publishing the caption so all the names were stated and with the statement that the Appellate Division, of course, is going to reverse, was something that just occurred to them out of the blue and had nothing to do with anything. MR. SHULMAN: Your Honor, the plaintiff extensively reported your Honor's decision on the Internet before this was ever done. Mr. Fezell had been on the Internet on a regular basis stating everything that's taking place in this case. This has been largely broadcast before the NRA published anything. This is not any piece of news whatsoever. Mr. Fezell himself has done it, and I can bring in, if your Honor 8 Proceedings wants, a dozen Internet statements prior to this publication. THE COURT: The Internet statements have nothing whatever to do with what appears to be contempt of Court in this statement, and, counsel, as a distinguished lawyer, you must know that. Now, if you're going to tell me that everybody at the NRA acts without legal advice, well, then, if counsel makes the motion, I will bring a contempt proceeding against them. MR. SHULMAN: Your Honor, at the time that this was published, the matter was on review in the Appellate Division. THE COURT: On review doesn't mean will be reversed, sir. MR. SHULMAN: It doesn't say it will be reversed. THE COURT: Sir, until it is reversed. That does not say it is on review, and maybe it will and maybe it 9 Proceedings won't, and you know that, sir, and I really would be very grateful if I heard something by a lawyer saying something proper in this case. I think your organization is out of control. MR. SHULMAN Well, your Honor, I apologize to the Court that you are taking it that way. Obviously, the NRA and myself in the arguments had a different feeling than your Honor. My understanding is that all orders of trial courts are subject to appeal; until they're reversed, they have to be obeyed. I don't see why that constitutes a statement that it is going to be reversed, and judging the way things have been going so far, it doesn't look very good for getting reversals. But, at the time that this statement was made, the matter had been filed on appeal in the Appellate 10 Proceedings Division. I had personally appeared in Justice Rubin's chambers to discuss getting a stay of your Honor's order. I was trying to work something out so that the matter could be heard in a manner that might let the election go forward. And, as it turned out, the stay was denied, and that was it. We had asked originally for interim relief. He persuaded us not to go for interim relief, but to wait and to have the stay heard and arrange for an expedited - - THE COURT: By stating the names of the petitioners and by saying "Until this is reversed. " Counsel, I don't think we really need much more on this. Counsel, submit your papers expeditiously. I mean expeditiously. MR. SHABAN: Yes, your Honor. THE COURT: Thank you, counsel. 11 Proceedings Call the next matter. (Proceedings concluded.) **** I hereby certify that the above is a true and accurate transcription of the proceedings. /s/ M. J. Schwartzberg MAURICE J. SCHWARTZBERG OFFICIAL COURT REPORTER