Tribe Wins Split-Decision In Court Cases
By Charles Flowers
FORT LAUDERDALE - The Seminole Tribe of Florida won a split-decision from a Broward Circuit Judge in the Tribe's lawsuit against the St. Petersburg Times, and a clear-cut victory in federal court, when an appellate court denied the state the right to sue to remove electronic slot machines.
On July 20, Judge Jay Leonard Fleet handed down an order granting the Times' motion to dismiss without prejudice the original lawsuit. However, the Tribe's attorney Donald Orlovsky of West Palm Beach, says the judge left the door open to re-filing Seminole Tribe of Florida v. Times Publishing Co. within 20 days.
"This case is not over," he said. "We do plan to file an amended complaint. And we will show how the Tribe was damaged."
In his 10-page ruling, Judge Fleet said the Tribe had to prove four elements to establish a cause of action: that it had a business relationship with employees, that the Times intentionally interfered with that relationship, that there was a breach of the relationship, and that damages resulted from it. The judge said that no damages had been shown to the court's satisfaction.
Judge Fleet said the Tribe, as Plaintiff "alleges a laundry list of past activities by Defendants perceived to be infringements upon alleged fiduciary relationships between it and various past and present employees. Plaintiff does not explicate how these actions caused either past, present, or future damages."
Also named as defendants in the lawsuit are Times staff writer Jeff Testerman and former computer-assisted reporting editor Bradley Goldstein, who left the newspaper after he and Testerman co-authored a three-part series on the Seminole Tribe called "Trail of Millions."
That title, which Orlovsky calls a slur against all Indians by comparing the business of Indian gaming to the "national disgrace" of Indian removal known as the Trail of Tears, is only part of the Tribe's complaint against the Times. More significant, he said, were concerns that Testerman and Goldstein broke the law, and encouraged others to commit crimes in furtherance of their newspaper series.
"We didn't bring this as a libel case, we brought it as an attempt to question newsgathering techniques," Orlovsky said.
As the lawyer's latest memorandum stated, "This case challenges newsgathering techniques utilized by the defendants in this case which are clearly ... violative of federal or state criminal or civil laws."
If the judge agrees, the claim may remove the newspaper from the safety of any First Amendment defense. The so-called "freedom of the press" amendment to the U.S. Constitution gives newspapers and other media wide latitude in reporting news.
The Seminoles' original suit, filed Feb. 12, had three counts. The first sought relief under Chapter 86 of the Florida Statutes, seeking a declaratory judgment against the newspaper, and defining state jurisdiction.
The second count accused the newspaper of interfering with Tribal business relationships, including those between the Seminole Tribe and its employees.
The third count accused the Times of negligent supervision of Testerman and Goldstein "in connection with newsgathering techniques relative to stories written about the Seminole Tribe." The articles in question were all published in December 1997.
The judge denied the newspaper's attempt to move the case to Pinellas County, where the Times is published, which means that he will retain jurisdiction when, and if, the case is set for trial.
The "smoking gun" in the case may be a letter sent that year by Goldstein to Tribal employees, including Chairman James Billie's assistant Pat Diamond.
Goldstein's letter reads, in part: "I understand the position this letter puts you in, but I've only the interest of the tribe at heart. I'm aware that you may be in possession of certain documents that could help our pursuit of the truth: namely how rank and file tribal members are being hurt by irresponsible leadership. You don't need to contact me by telephone. But if copies of those documents were to arrive in an envelope that has no return address on it, the truth will get out and there will be no trace...."
According to Orlovsky, "Goldstein's acts in attempting to procure the theft and covert transmittal of confidential documentation and information...is wrong, it is tortious (a legal term meaning damaging) and it is against the law."
The Times' attorney, George Rahdert of St. Petersburg, argued that Orlovsky had failed to state a cause of action for any of the three counts.
The legal fencing also included an effort by Rahdert to strike from the complaint the Tribe's allegations of racism by the newspaper, or, as Orlovsky puts it in his memorandum, "allegations that The Times is attempting to generate sentiments of anti-Indian hatred throughout its readership area."
In another section, the lawyer claims: "It is the Seminole Tribe's position that the defendants' racial animus toward the Seminole Tribe and its members was designed in large part to sell papers."
The judge granted the motion to strike, and asked for an amended complaint "devoid of emotion."
The Tribe was supported in its claim of racism by the head of the Florida office of the American Indian Movement, Sheridan Murphy.
"The St. Petersburg Times series was an unabashed attack on the sovereign status of Indian Nations and we now know that the St. Petersburg Times is the voice of anti-Indians," Murphy wrote.
The newspaper declined to publish his letter. Appellate Court Favors Tribe
On July 24, the Tribe also won a federal court victory in its ongoing sovereignty battle against the State of Florida regarding gaming on Tribal lands. In both its coverage and editorials, the St. Petersburg Times has allied itself with Attorney General Bob Butterworth and his minions.
"It's a bad outcome," said Assistant Attorney General Jonathan Glogau in a recent Times article of the appellate decision that denies the state the right to sue to remove electronic slot machines from tribal casinos.
In the same article, which appeared under Testerman's by-line, Bruce Rogow, who argued the Tribe's case, said, "This decision takes the state out of the litigation arena. So the state's left with the Interior secretary's arena."
In April, the Seminole Tribe joined a suit by the State of Florida against Interior Secretary Bruce Babbitt, after Babbitt filed notice that he would pass regulations on tribal casinos in Florida, as he is authorized to do under the Indian Gaming Regulatory Act. The State of Alabama, which like Florida has no tribal gaming compacts in place, also joined sides with Florida.
That means that the State of Florida v. Babbitt lawsuit, now headed for the U.S. Supreme Court, could be the controlling opinion to define federal, state, and Tribal jurisdiction over Indian gaming.
Calls Keep Coming
Despite being a named defendant in the Times case, Testerman continues to contact Tribal members, the Seminole Tribune has learned. The reporter has called Wesley Garcia, who is the chairman's brother-in-law, and other Tribal members who have unlisted telephone numbers.
Garcia said the reporter contacted him at a friend's house with an unlisted phone number. Garcia says Testerman asked him about personnel matters regarding the Tribal computer department, and his relationship to Chairman James Billie. Garcia said he was upset by the call and declined to provide any information to Testerman.
Meanwhile, Goldstein has resigned from the Times and is working in West Palm Beach.
Long-time Florida environmentalist and folksinger Dale Crider gave this insight into Goldstein's reporting methods.
"He said he just got down here from New York, and was working on a story about the Seminoles," Crider said. "He wanted to know what did I think about James Billie flying in a private jet. I said, 'Don't other leaders fly around in private planes?'
"He kept trying to get me to say something negative about the Chief," Crider continued. "I told him I just play music with him sometimes around campfires. He's one of us."
Crider was not quoted in the Times series.
Meanwhile, attorney Orlovsky vowed to battle on.
"No matter how you slice it, this case isn't going away," he said.