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The Wrath of Kann: Frivolous Fractivism at Work

PennEast - Jim Willis reports

Jim Willis
Editor & Publisher, Marcellus Drilling News (MDN)

 

An incident that took place in Conestoga Township, Lancaster County, the other night provides insights into the legal tactics of what can only be described as frivolous fractivism.

All’s we can say is, it’s about time! A loud mouthed anti-drilling protester in Lancaster County, PA was arrested and removed from a public meeting Tuesday for disorderly conduct. That is, she wouldn’t shut her mouth. So the officials running the meeting removed her. Good for them.

fractivism

Kim Kann at Conestoga Township Meeting (Photo: Lancaster Online)

The meeting was an educational forum about so-called home rule and what role the town can and should play when it comes to regulating things like pipelines. The Conestoga Township supervisor running the meeting asked for questions from the audience, not pontificating.

The anti-driller wanted to use the forum as a platform to vomit her opinions about the Williams Atlantic Sunrise Pipeline project. The supervisor repeatedly said it is an educational forum and the audience may ASK QUESTIONS ONLY. She wouldn’t relent and she wouldn’t ask a question – and she wouldn’t shut up. So they removed her and now she’s threatening a lawsuit, according to an article in State Impact offering the following.

An opponent of a controversial natural gas pipeline project was arrested Tuesday night and charged with disorderly conduct for speaking out at a public meeting in Lancaster County.

Conestoga Township supervisor Craig Eshleman says resident Kim Kann was removed by police because she violated the rules of the meeting. He says the gathering was not an official board meeting, but rather an educational forum about home rule– an effort to gain more local control by residents.

Eshleman circulated special rules for the meeting, which stated that residents could only ask questions. They were not allowed to make statements or give opinions. Discussion of the pipeline was also off-limits.

“I said, ‘Kim, do you have a question?’ I said that several times,” says Eshleman. “She proceeded to say she had the right to speak. But it was not a public board of supervisors meeting. We can make the rules and enforce the rules.”

Kann was not immediately available for comment Wednesday. Her attorney, Larry Otter, says she was attempting to clarify what she viewed as inaccurate statements from the forum’s panel.
“For a citizen to get up at a public meeting and get arrested for trying to clarify misstatements is appalling,” says Otter. “If it wasn’t an official supervisors meeting, what the hell was it?”

He plans to file a lawsuit against the township and police department for violating her First Amendment rights.*

So, now any kind of public meeting, regardless of its stated purpose, can be shanghaied by anti-drillers? Is that your learned opinion, Mr. Otter?

We see yet another frivolous lawsuit on the way. What we’d like to know is this: Who is paying Larry Otter’s legal fees to file the lawsuit? Is it Ms. Kann? Or, is it one of the myriad front organizations for the anti-drilling William Penn/Heinz Endowments/Park Foundation/Sierra Club/Big Green outfits? We’d like full disclosure on who is funding this kind of activity.

Anti-drillers and their childish tirades are tiresome and time wasters for everyone. They prevent actual work from getting done. Wait for the proper public forum to voice your opinion Ms. Kann.

Editor’s Note: Jim’s questions about who is funding Attorney Larry Otter were intriguing, so I decided to do a little research on Mr. Otter. Here’s a picture he includes of himself on his website and has used in campaign materials (he ran for Bucks County Judge at one point).

frivolous fractivism

Attorney Larry Otter

I could not determine who is paying Mr. Otter in this instance. Perhaps, it’s the same people who fund the bogus Community Environmental Legal Defense Fund (CELDF) or maybe it’s just Ms. Kann herself, who is a CELDF fan. What I did find, however, is some interesting background on Mr. Kann’s legal history, which makes him attractive to the scions of fractivism.

Specifically, I found this pretty fascinating blog post about another allegedly frivolous case in which Mr. Otter was involved, which apparently involved accusations by his client about someone poisoning their pet pig. There is still another regarding some elections shenanigans and, finally, the blog post also includes a link to a third case where the judge said this about Attorney Otter:

Reviewing the history of this case, and Mr. Otter’s close involvement in it, it is difficult to imagine a better example of frivolous, vexatious, and unreasonable multiplicity of proceedings or the continued pursuit of a baseless claim in the face of several irrebuttable defenses. Plaintiffs and Mr. Otter again provided no evidentiary support for their claim, provided no legal basis for their claim, and ignored the clear rulings of four prior courts interpreting the contract language, explaining the claim was time-barred, and concluding McDermott lacked standing…

Mr. Otter failed to show he had conducted any investigation of his claim or attempted to gather any supporting evidence. “An attorney’s obligation to the court is one that is unique and must be discharged with candor and with great care.” Baker Industries, 764 F.2d at 212. At the time Mr. Otter filed the Complaint on behalf of his clients, he had been informed four times previously his claim had no basis in fact or law. Yet, he unreasonably brought the same claim without any additional law or evidence to support. He has shown nothing new since his filings in the prior court actions to support the same claim in spite of those courts’ admonitions the claim lacked sufficient evidentiary or legal basis. A reasonable investigation of the facts and a competent level of legal research would have shown the numerous defenses to his claim, namely lack of standing, untimeliness, and claim preclusion. See Simmerman, 27 F.3d at 62. In the face of this, Mr. Otter continued to advocate his claim. “[W]here a litigant continues to pursue a claim in the face of an irrebuttable defense, bad faith can be implied.” Loftus, 8 F.Supp.2d at 461.

The circumstances of this case require sanctions in accordance with Rule 11 and § 1927 because I conclude Plaintiffs’ claims against Defendants were frivolous, legally unreasonable, and without factual foundation.

There’s more, but the reader will get the point; these are the tactics of fractivism and its allies.

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