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Idaho's Weekly Journal of Local & National Commentary  Week 3014

 

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by Free Market Duck

Ex Ada County Commish Judy Peavey-Derr threatens libel lawsuit against Deep Throat II
(July 10, 2007)

“Pure opinion – that is, a purely subjective judgment rather than an assertion of fact – is not actionable under the law of libel.” – Jonathon Kirsch, Kirsch’s Handbook of Publishing Law

Boise, ID – Whoa, listen up, gather around, shut up, girl friends.  Former Ada County Commissioner Judy Peavey-Derr has taken issue with one of Free Market Duck’s recent opinionated commentaries (See 06-13-2007 Ada County screws taxpayers, again...pays Cryptic Partners $1.4 million for $900,000 office space in Eminent Domain settlement ).

   Judy Peavey-Derr by her attorney, Allen Derr, who as public knowledge will reflect is her husband, think that Ms. Derr was defamed on two counts:  (1) FM Duck opined that “everybody involved in the Ada County Courthouse deal is a freaking crook,” and (2) FM Duck opined that Ms. Derr was in a conflict of interest position when she chaired the Ada County Commission’s 11-member Committee to Select Courthouse Developer Civic Partners (then Wilmore Holdings, Inc.) while simultaneously receiving a campaign donation from Wilmore Holdings, Inc.

   You be the judge.

   First is ex-commissioner Derr’s Demand For Retraction.  Then, FM Duck responds.  Finally, we invite controversial politician Judy Peavey-Derr to publish “her side” of the story in FM Duck’s Quack Off Commentary.

   Read on, mes amies.

------------------------------

From: derrallen@aol.com  Date:  Wed, 20 Jun 200 18:24:30 EDT
To: DeepThroat2@freemarketduck.com
Subject:  Quack Off

DEMAND FOR RETRACTION

June 20, 2007

To: FreeMarketDuck.com; Deep Throat II

I represent Judy Peavey-Derr.

Under date of June 13, 2007 you posted an article on your BLOG in which you accused Judy, along with others, of being a “freaking crook”. (sic, punctuation wrong.)

You also insinuate illegality in respect to an alleged campaign contribution.

This is by all definitions libel per se and thus actionable.

I presume you consider yourself a newspaper or a semblance thereof so that Idaho Code Section 6-712 would apply.

Demand under the provisions of said section 6-712, Idaho Code, is made that you retract said libelous statements within three (3) weeks of service of this demand in substantially as conspicuous a manner as your June 13, 2007 BLOG.

 Failure to retract said libelous statements within the time period may result in an action against you for exemplary (punitive) as well as general and actual damages.

 ALLEN R. DERR
Attorney at Law
200 North 3rd Street
Suite 8
P. O. Box 1006
Boise, Idaho 83701-1006
Telephone: (208) 342-2674
Facsimile: (208) 342-2676
ISB# 911

-----------------------------------------------------------------------------------------

Following is Free Market Duck’s response:

Allen Derr, Attorney-at-Law

200 North 3rd Street, Ste B

PO Box 1006

Boise, Idaho 83701-1006

RE:  Your DEMAND FOR RETRACTION of June 20, 2007

Dear Mr. Derr:

   In response to your “DEMAND FOR RETRACTION,” on June 20, 2007, you presume wrong in your assumption that Web Site www.FreeMarketDuck.com is a “newspaper” simply reporting objective or factual news rather than Opinion Commentaries.  As such, FM Duck Commentary does not fall under Idaho Code Section 6-712.  However, even if it did, it’s a moot point since:

“Pure opinion – that is, a purely subjective judgment rather than an assertion of fact – is not actionable under the law of libel.” – Jonathon Kirsch, Kirsch’s Handbook of Publishing Law

   As our online masthead clearly states on every Web page, we are “Idaho’s Journal of Local & National Commentary.”  Commentary means our “opinion,” not objective news reporting per se.  As our “About Us” on every page of our Web Site also clearly states, our “commentary” is from a subjective free market point of view.  As such, we are independent Libertarians expressing comments and opinions on social-political-economic news from a subjective free market point of view.  As a First Amendment lawyer, you also know that:

             “Fair comment” about a public official – especially a very controversial politician – or some matter of public concern is strongly protected from a claim of defamation under the First Amendment.  Thus, for example, author Gore Vidal was unsuccessful in a libel suit against William F. Buckley after conservative Buckley dismissed Vidal as “perverted” and Myra Breckenridge as “a pornographic potboiler done for money.”

   Your client, Ms. Judy Peavey-Derr, is not only a long-time politician in Boise, holding the position of Ada County Commissioner for many terms, she is a very controversial politician.  She, in fact, just lost her last Primary election for Ada County Commissioner due, in part, to her unpopular participation in illegal “closed meeting(s),” which resulted in a lawsuit that was recently upheld against her by the Idaho Supreme Court.  The only question remanded back to a lower court was the size of the fine for the participants holding “closed meetings” and the circumstances under which an attorney need be present.  Nevertheless, the main affirmation by the Idaho Supreme Court was that Ms. Derr did indeed participate in an illegal closed meeting.

   It is in Ms. Derr’s capacity as a public official, as a controversial politician dealing with hundreds of millions of taxpayer dollars in questionable expenditures, from the initial Courthouse land purchase to the University Place fiasco to the current Eminent Domain “deal” with Civic Partners while Civic is involved in an ongoing lawsuit for the same Courthouse Corridor property, that we criticized “…everybody involved in the Ada County Courthouse deal” as “a freaking crook.”  We stand by our opinion and point out that politician Derr as Ada County Commissioner and Chairlady of the Committee to Select the Courthouse Developer has been involved in the middle of the Courthouse debacle since the beginning.

   Note that we did not specifically single out and state that Ms. Derr personally was a “freaking crook” in our commentary.  We simply grouped all the politicians and public figures, including developer Civic Partners, into our opinion of how the entire Courthouse and University Place fiasco has been handled by those involved.  Your assumption that Ms. Derr exists in such a high profile in this group does not warrant your DEMAND, and was a complete surprise to us since we consider her limited political role as quite minor in the larger scheme of things.  Your response appears to us to be – or not to be, that is the question – more like a Shakespearean confession of “Methinks thou dost too much protesteth” rather than anything else.  Our response is:  if the shoe fits, wear it.

   Once again, our commentary included all politicians and public figures who participated in what is commonly known as the University Place fiasco, from the initial, questionable lease-purchase methodology of the 14 acres for the Courthouse Corridor to the $136 million University Place fiasco, to the questionable Eminent Domain issue, to Civic Partners’ current lawsuit v. the U of I Foundation and the U.S. Attorney’s ongoing federal criminal investigation out of Portland, Oregon.

   It is not just our opinion that Ms. Derr, as Ada County Commissioner and Chairlady of the Committee to Select the Courthouse Corridor Developer, participated in what Judge Hurlbutt described in Case # CV OC 0405740D, UIF v. Civic Partners, as a “complicated real estate deal” built on a “house of cards to accommodate things like tax revenues (Ada County tax revenues) that are not going to be paid.”  And further stated:

THE COURT:  Well, the Foundation's position in this transaction or series of transactions, at best, seems to have been bumbling, at least from the standpoint of an outsider looking in.  What the Foundation, University, the County, CCDC, Civic Partners, various attorneys, and public officials were thinking and trying to accomplish will forever remain a mystery.  Because in some respects, a number of people aren't talking or at least it's not part of this record.  To divine what was trying to be accomplished is beyond the power of this court.

And,

THE COURT:  If parking spaces were material to their consideration in entering into the RA (Reconciliation Agreement) -- and I'm -- I'm not sure it was anything other than to make it look like they were getting something for their payments in lieu of taxes in order to assuage somebody's sensibilities, but I'm not sure it was really material.  Because the whole structure of this deal really had little to do with parking spaces; it had everything to do with supporting the whole line of financing that was put in place to make this project work (note: emphasis added, and the line of financing was deemed criminally illegal, garnering a conviction for former U of I VP of Finance, Jerry Wallace.)

   And, as Judge Hurlbutt’s case continues,

MR. NICHOLS (UIF Attny):  On the same day they do an (Reconciliation) agreement they call agreement in connection with the assignment and assumption of the Parcel 1 sublease.  They do it the same day.

THE COURT:  Now, when you say "they," "they" is you.

MR. NICHOLS:  "They" is Civic Partners and the Foundation and the CCDC.

THE COURT:  Right.

MR. NICHOLS:  These are the three parties.

THE COURT:  So the "they" includes you.  It's a "we."

MR. NICHOLS:  Yes.  Yes.

THE COURT:  So if this is crazy, we all were crazy in putting this mess together.

 MR. NICHOLS:  Well...

   The point is that even Judge Hurlbutt has recognized and stated that the deals comprising Boise’s Watergate from beginning to end were a “mess” and “we all were crazy in putting this mess together.”  Who exactly Judge Hurlbutt is referring to in his definition of “we” is unsettling but from the above court transcripts it is obvious he is referring to everybody, including “the county,” which means Ada County Commissioner Judy Peavey-Derr, as participants in all the “deals” comprising “this mess.”

   This entire financial mess is covered in the book entitled, Boise’s Watergate: University Place & All The Governor’s Men as well as in an independent, detailed, 604-page Prince Report investigation that has cost taxpayers over $1 million to date.  Numerous actions by various parties mentioned in the Prince Report were deemed probably illegal.  Similar transactions to the Ada County Courthouse land and building lease-purchase deals were found unconstitutional recently by the Idaho Supreme Court in the Boise Airport Extension case.  The civil trial cited above and – to the best of our knowledge -- a federal criminal investigation by US Attorney Allan Garten out of the Portland, Oregon FBI District Office are still ongoing.  We do not know since the Ada County Prosecutor’s office and the FBI District Office in Portland, Oregon, have not responded to numerous inquiries.  Sequestering a secret grand jury, secret as required by law, would explain their silence but we do not know for sure.

   To claim that your client, Ms. Derr, as one of the Ada County politicians involved in various Ada County Courthouse deal(s), should somehow be exempt from First Amendment commentary and opinion is ludicrous.  Nor could any commentary from Free Market Duck, from a strictly quantitative readership point of view, possibly defame your client.  FM Duck’s readership is about 100 readers per week.  Ms. Derr, however, may have defamed herself through all of her public political actions and comments by publishing her own Reader’s Views in the Idaho Statesman newspaper, the daily circulation of which averages up to 230,000 readers and far exceeds FM Duck’s readership.  This technical fact is a moot point itself and only serves to indicate the frivolity of Ms. Derr’s DEMAND.  In the same way that one cannot libel the dead, the deader than a doorknob level of FM Duck readership would have a difficult time libeling anybody.  First Amendment rights, lack of intentional malice, and other legal precedents, however, supersede any logistical points concerning levels of readership.

   As a public official, and as Chairwoman of the Committee to Select the Developer for the Courthouse Corridor, which turned into a multi-million dollar financial boondoggle, Ms. Derr had multiple roles in this sordid financial mess that eventually affected the University of Idaho, the U of I Foundation, and the taxpayers of Ada County.  We have commented extensively on this.

   As our commentary that you referenced points out, one individual has already pled guilty to state criminal charges and two were sanctioned by the Idaho State Bar Association for their participation in Boise’s Watergate, which includes various Courthouse “deals” we referenced in our commentary.  A $7 million lawsuit by the U of I Foundation v. Civic Partners is still going on today, Case # CV OC 0405740, in the very same Courthouse in which Ms. Derr, acting as Ada County Commissioner in another legal action, participated in the granting of $1.4 million in an Eminent Domain lawsuit to subleasee Civic Partners for property valued at $900,000 by Ada County.

   The truth is, your client has participated as a public official in many questionable Courthouse deals from beginning to end and our First Amendment rights allow us to use plain English to refer to all the participants as “freaking crooks.”  According to Webster’s Encyclopedic Unabridged Dictionary of the English Language, the word “crook” means “swindler.”  Taxation is not a voluntary action and financial “messes” referenced by Judge Hurlbutt above that cost taxpayers hundreds of millions in questionable additional taxation can be likened to a swindle.  And the word “freaking” is currently a slang adjective or adverb used as an “intensifier” rather than a strict definition.  It is used to emphasize, not define.  For example, He is a freaking surfer addict, or She freaking devours tons of chocolate, or Congress is a bunch of freaking crooks.

   Your client, for all the above reasons, was not defamed by the words “freaking crooks.”

   In regards to ex-Commissioner Derr’s receipt of a campaign contribution from Civic Partners’ precursor corporation, Wilmore Holdings, Inc. with Steve Semingson as CEO for both corporations, our source is www.followthemoney.org, a national independent organization that tracks political contributions.  You can log onto the Internet and click on this hyperlink today, and quickly discover that Ms. Derr, running for state Senate in 1996, received a $250 campaign donation from Wilmore Holdings, Inc., the very same California development corporation which was chosen immediately after or during Ms. Derr’s chairing of the Committee to select this developer for the Courthouse and University Place property.  While she was not a commissioner at this time, she was acting on behalf of the Ada County Commissioners to choose the sole rights developer for the 14 acres known as the Courthouse Corridor.  We believe this is a conflict of interest, and Ms. Derr should have either refused the donation or not participated in the Ada County Courthouse development selection process.  It is in this capacity – as well as in the aforementioned Eminent Domain granting of an extra $500,000 to Civic Partners – and all the intricate financial deals in Boise’s Watergate, including the initial Courthouse deal to the University Place fiasco, that we opined that “…everybody in the Ada County Courthouse deal is a freaking crook.”

   As you are well aware, public officials, especially highly controversial politicians who are questionably spending taxpayer money, are fair game in opinion pieces precisely because the public has a right to know what is going on and where their tax money is going.  We take great exception to politicians and their lawyers who attempt to frighten, attack, or censor free market commentators for exercising their First Amendment rights to freedom of speech.  The fact that Ms. Derr just lost an Idaho Supreme Court case RE illegal “Closed Meetings” which revealed a blatant attempt to curtail the public’s right to know and First Amendment right to comment through participatory government at open meetings, is indicative of the controversial politics that your client has participated in and supports our right to publish our opinion about her actions.

   In summary, we have not libeled Ms. Derr.  First, she is an extremely controversial politician spending taxpayer money – and we certainly do not comment upon Ms. Derr’s private life, which is none of our business.  Second, opinions about politicians and their political actions are protected by the First Amendment and not actionable.  We have a First Amendment right to express our subjective opinion of controversial politicians, which your client certainly is, or was.  Third, there was no malicious intent on our part to defame Ms. Derr.  She has perhaps already defamed herself in numerous Reader’s Views written by herself in the Idaho Statesman newspaper or by her own political actions and reaped those rewards by losing an election and a recent Supreme Court lawsuit.  Fourth, your client placed herself in a conflict of interest position by chairing a Committee that selected the very same corporation that gave her a political campaign contribution, according to www.FollowTheMoney.org , an independent national campaign tracking organization.

   For your information, we follow Kirsch’s Handbook of Publishing Law and refer that publication to you for clarification of our position both at the state and federal levels.  Attorney Jonathan Kirsch is an attorney specializing in copyright, trademark, and publishing law.  He is a partner in the firm of Kirsch & Mitchell in Los Angeles and a contributing writer for the Los Angeles Times Book Reviews.

   With all due respect – and no acknowledgement of guilt to your assertions of libel – we do, however, offer your client, Ms. Derr, the opportunity to publish her side of the story at www.FreeMarketDuck.com.

We are especially interested in:

1)     Ms. Derr’s comments on her conflict of interest position RE her receipt of a “donation” or “monetary contribution” from Wilmore Holdings, Inc., while she was chairing the selection committee that chose this same corporation, Wilmore Holdings, to develop the Ada County Courthouse, which initiated the $136 million University Place fiasco,
 

2)     Ms. Derr’s participation in the questionable lease-purchase methodology to go into multi-year debt to obtain the Courthouse land and pay for the new Ada County Courthouse building, two separate issues, with 30 annual renewable leases for the latter,
 

3)     Ms. Derr’s participation in overpaying Civic Partners $500,000, $1.4 million vs. the $900,000 appraised value for the Ada County Courthouse office space mentioned in the Eminent Domain case, and finally,
 

4)     Ms. Derr’s knowledge about who, legally, holds fee title to the Ada County Courthouse building, not the land under the building, and to whom does Ada County pay annual rent for the building?

   If no comments are received from Ms. Derr within three weeks from the date of this letter, we will assume she is not interested in publishing her side of the story.

   We stand by our commentary.  Ms. Derr (1) was in a conflict of interest position when she received a political campaign contribution from a company her committee chose to develop the Courthouse Corridor, and (2) participated with all the other “freaking crooks” in many of the Ada County Courthouse “deal(s)” from beginning to now.  That is our opinion after looking at all the evidence and under the First Amendment we have the right to comment on politicians and their actions to our readers.  NY Times v. Sullivan is a landmark case you may want to refer to.  A case closer to home is the recent Idaho Supreme Court Case of the Spokesman Review v. GOP politician Trent Clark, in which the Court held that “Clark is a public figure under the test articulated in the 1964 U.S. Supreme Court case New York Times v. Sullivan.  Thus, it said, he could recover damages in a defamation suit if he could provide ‘clear and convincing’ evidence that the newspaper acted with ‘actual malice’ – that is, the knowledge of falsity or a reckless disregard for the truth.”  Since Mr. Clark was a public figure and no malice was intended, the Court held for the Spokesman Review.

   FM Duck has not acted with “actual malice,” or “knowledge of falsity,” or “a reckless disregard for the truth.”  We are not a newspaper; we are a commentary (opinion) journal and stand by our opinion.

Editors,

FM Duck

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